TQL TRAX LICENSE AGREEMENT
TQL TRAX Application Terms and Conditions
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF SERVICE CAREFULLY. YOU MUST READ, UNDERSTAND, ACCEPT AND AGREE TO BE BOUND BY ALL TERMS OF THIS AGREEMENT (“Agreement”) BEFORE DOWNLOADING, ACCESSING OR OTHERWISE USING THE TQL TRAX APPLICATION (as defined below). BY DOWNLOADING THE APPLICATION, ACCESSING IT, AND/OR USING IT IN ANY FORM, YOU ENTER INTO A VALID AND BINDING LEGAL CONTRACT WITH TQL (as defined below). IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, ACCESS, OR OTHERWISE USE THE APPLICATION.
I. INTRODUCTION
These terms and conditions of service and our Terms of Use and Privacy and Cookies Policy (available at https://www.tql.com/terms and https://www.tql.com/privacy) represent the entire agreement between you and Total Quality Logistics, LLC and its successors and assigns (collectively “TQL”) to the exclusion of all other terms and conditions whether express or implied. At all times, your acceptance is expressly limited to the terms of this Agreement.
II. DEFINITIONS
(a) “You” and “your” means you, your employees, agents, and contractors, and any other individual or entity on whose behalf you accept these terms and conditions, all of whom shall also be bound by this Agreement.
(b) “Application” refers to the TQL TRAX application developed by or for TQL, and as upgraded, enhanced or modified by TQL from time to time, and which is available for download as a mobile application via Apple’s software distribution platform (“App Store”) and through Google’s software distribution platform (“Google Play Store”) and/or available via web portal at https://trax.tql.com (“Web Portal”).
(c) “Content” refers to any and all materials, information or data displayed, distributed, provided or performed on or by the Application, which includes but is not limited to text, software, scripts graphics, maps, photos, sounds, music, videos, logos, interactive materials and any other material.
III. LIMITED LICENSE
The Application is licensed, not sold. You do not own, in part or in whole, the Application. Subject to your compliance with this Agreement, TQL hereby grants to you a limited, personal, revocable, non-exclusive, non-transferable license to: (i) download, access or otherwise copy the Application or its Content onto your wireless device, and (ii) access and/or use the Application (in object code form only) on such wireless device or computer in order to access and use the Application as made available and permitted by TQL at its sole discretion. The Application may be utilized through the use of a phone, computer or similar communication device only for internal business purposes relating to services provided to you by TQL, and not for the use by any third-party. Except for the limited license expressly granted in this Agreement, as between you and TQL, TQL shall exclusively own all right, title and interest in and to the Application and its Content, including without limitation all intellectual property rights therein. This license shall terminate upon any termination of this Agreement, or upon any suspension, termination or cancellation of your access to the Application.
In addition, you shall not do any of the following:
• Sell, copy, transfer, make available, rent, lease, license, sublicense, or lend the Application or any Content to any third party.
• Reverse engineer, decompile, disassemble, translate, modify, publish, transmit, participate in the transfer of, rental, sale or reproduction, create derivative works or products based on, display or in any way exploit the Application, Content, or any part thereof.
• Attempt to derive the source code, audio library or structure of the Application or any of its Content without the prior express written consent of TQL.
• Remove from the Application or any of its Content, or alter, any of TQL’s or its suppliers’ trademarks, trade names, logos, patent or copyright notices, or other notices or markings.
The Application originates in the United States, and is subject to United States export laws and regulations. In addition, the Application and its Content may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Application and related software. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S.-embargoed countries, (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List, or (c) to any other country or to any other persons or entities prohibited from receiving exports from the United States. By using the Application, you represent and warrant that you are not located in any such country, on any such list or otherwise prohibited from receiving exports from the United States. Further, without limiting the foregoing, you agree that you will not use the Application and related software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons. This Agreement, including Section III, is void where prohibited by law and may not be considered an offer in any jurisdiction where this Agreement is not valid and any license granted is void in those jurisdictions. Notwithstanding the foregoing, all disclaimers and limitations in this Agreement favoring TQL shall at all times apply. You may not use the Application in any way other than as expressly set forth in this Agreement.
IV. INTELLECTUAL PROPERTY RIGHTS
The Application is protected by copyright, trademark, and other intellectual property rights under the laws of the United States of America. You shall abide by all copyright notices and trademark information, and other applicable restrictions.
V. RIGHT TO MODIFY, SUSPEND OR TERMINATE
TQL, in its sole discretion, may change, modify or update, suspend or discontinue the Application at any time. TQL may also modify the terms of this Agreement, impose limits, limit or restrict access to the Application or certain features of the Application at any time without any notice and without any liability. Before using or accessing the Application, please review this Agreement for any changes as your continued use of the Application will constitute your agreement and consent to any modified terms to the fullest extent of the law.
VI. YOUR OBLIGATIONS
(a) You warrant, represent, certify and acknowledge to TQL that you are: (i) in the case of an individual and not a corporation or other legal entity, of full legal age and have full capacity to enter into a binding and enforceable contract, are legally permitted to download and/or use the Application, that this Agreement is valid and enforceable in your jurisdiction, and, you take full personal responsibility and liability for downloading and using the Application; or (ii) if you accept this Agreement on behalf of a corporation or other legal entity, you have the authority to take those actions on behalf of the corporation or other legal entity and this Agreement shall be binding upon such corporation or other legal entity;
(b) You shall be exclusively responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, receive or use the Application, including, without limitation, hardware devices, software, and Internet, wireless, broadband, phone or other mobile communication device or computer connection services;
(c) You shall be exclusively responsible for ensuring that such equipment or ancillary services are compatible with the Application and you shall be solely responsible for all charges incurred in connection with use of the Application;
(d) You are responsible for all of your activity in connection with the use of the Application;
(e) You agree to fully comply with all applicable local, provincial, state, national and foreign laws, treaties and regulations in connection with the Application and with any policy TQL may publish from time to time;
(f) Any fraudulent, unauthorized, unintended, unsafe, hazardous, offensive, harassing, objectionable, abusive, inappropriate, criminal or otherwise illegal activity will be grounds for immediate suspension or termination by TQL of this Agreement and/or access to the Application, without notice or liability of any kind;
(g) You acknowledge and agree that TQL has the right to report any and all suspicious or illegal activity to the appropriate legal or law enforcement authorities without notice to you; and
(h) You agree at all times to use the Application in a safe and lawful manner, including but not limited to; observing all safety and traffic laws; taking all measures to otherwise drive safely; not inputting or entering data, or otherwise interacting with the Application unless your vehicle is stationary and parked; and agree not to use the Application in any manner inconsistent with this Agreement.
VII. PAYMENT
You are solely responsible for any fees assessed by your wireless carrier and/or internet service provider to access the Application, including, without limitation, any toll, out-of-area, roaming, or other similar or related connection charges.
VIII. TERMINATION
TQL reserves the right to terminate your access to the Application at any time for any or no reason and without notice to you. Upon any termination of your license to use the Application, TQL shall have no liability to you or any further obligations under this Agreement.
IX. DISCLAIMER
THE APPLICATION IS PROVIDED STRICTLY ON AN "AS IS", "WHERE IS" AND "AS AVAILABLE" BASIS. TQL DOES NOT MAKE, AND YOU HAVE NOT RECEIVED ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE APPLICATION OR ITS CONTENT. YOU ACKNOWLEDGE AND AGREE THAT TQL DOES NOT REPRESENT OR WARRANT THAT: (I) ACCESS TO AND/OR USE OF THE APPLICATION AND ITS CONTENT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, DEVICE, PHONE, COMPUTER, SYSTEM OR DATA, (II) ACCESS TO AND/OR USE OF THE APPLICATION AND ITS CONTENT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) ACCESS TO AND/OR USE OF THE APPLICATION AND ITS CONTENT WILL BE ACCURATE OR RELIABLE, (IV) ERRORS OR DEFECTS WILL BE CORRECTED, (V) ACCESS TO AND/OR USE OF THE APPLICATION AND ITS CONTENT AND SYSTEMS THAT MAKE THE APPLICATION AVAILABLE ARE FREE OF VIRUSES, WORMS, TROJANS, MALICIOUS CODE, SPYWARE, MALWARE OR OTHER HARMFUL COMPONENTS OF ANY KIND, OR (VI) THE INFORMATION PROVIDED RELATIVE TO THE LOCATION OF ANY CARGO OR CORRESPONDING TRAVEL ROUTE(ES) ARE A PRECISE OR OTHERWISE ACCURATE REPRESENTATION OF THE CURRENT LOCATION OR ROUTE TAKEN. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM A COURSE OF CUSTOM OR TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OR CONDITION OF COMPLIANCE WITH ANY DESCRIPTION, OR ANY IMPLIED WARRANTY OR CONDITION OF NON-INFRINGEMENT, VIOLATION AND/OR NON-MISAPPROPRIATION OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY TQL TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
X. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL TQL, ITS LICENSORS, SUPPLIERS, ASSIGNEES, SUBSIDIARIES, AFFILIATED COMPANIES, AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, CONTRACTORS, AGENTS AND REPRESENTATIVES OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE APPLICATION BE LIABLE TO YOU OR ANYONE CLAIMING THROUGH YOU FOR ANY LOSS OF PROFITS OR REVENUE, DAMAGE TO PROPERTY OR PERSON, LOSS OR INACCURACY OF DATA OR DETRIMENTAL RELIANCE THEREON, FAILURE TO REALIZE EXPECTED RESULTS, REVENUES OR SAVINGS, ECONOMIC LOSS OF ANY KIND, OR INCIDENTAL, CONSEQUENTIAL, STATUTORY, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES ARISING OR RESULTING FROM YOUR ACCESS TO, RELIANCE ON, OR USE OF, OR INABILITY TO ACCESS OR USE THE APPLICATION, WHETHER BASED ON THEORIES OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE FOREGOING SHALL APPLY WHETHER OR NOT TQL KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR HAS BEEN ADVISED OF SUCH POSSIBILITY, OR SUCH POSSIBILITY IS REASONABLY FORESEEABLE. TQL SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS IN THE APPLICATION’S DELIVERY OR FUNCTION. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
XI. INDEMNIFICATION
To the fullest extent permitted under applicable law, you agree to indemnify, defend and hold TQL and its licensors, suppliers, assignees, subsidiaries, affiliated companies, officers, directors, employees, shareholders, members, contractors, agents and representatives, free and harmless from and against any claims, liability, loss, injury (including injuries resulting in death), demands, actions, costs, expenses, or claims of any kind or character, including but not limited to attorney’s and expert fees, arising out of or in connection with your use of the Application and its Content. TQL reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to fully cooperate with our defense of these claims.
XII. GOVERNING LAW
All issues, questions and disputes of any kind concerning the construction, validity, interpretation and enforceability of this Agreement, regardless of your place of residency or domicile, and the performance and obligations or the rights and obligations of TQL in connection with the Application shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to any choice of law or conflict of law rules. You consent to the jurisdiction and venue of the federal, state and local courts in Clermont County, Ohio.
XIII. ITUNES APP STORE AND GOOGLE PLAY STORE
You agree that the acknowledgements and understandings set forth in this Agreement are solely between you and TQL, not Apple or Google, and that Apple is not responsible for App Store’s Apps or their content just as Google is not responsible for the Google Play Store’s Apps or their content. Neither Apple nor Google have any obligation whatsoever to furnish any maintenance or support services in connection with App Store or Google Play Store Apps. You will not involve Apple or Google in any claims relating to your use of App Store Apps, Google Play Store Apps, or in any third-party claims alleging infringement of intellectual property rights by the App Store Apps or Google Play Store Apps. You agree to comply with all third-party agreements in connection with your use of App Store Apps and/or Google Play Store Apps (for example, your wireless provider agreement). Finally, you agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement solely for the purpose of enforcing applicable terms against you in connection with your use of App Store Apps. Similarly, you agree that Google and Google’s subsidiaries, are third party beneficiaries of this Agreement solely for the purpose of enforcing applicable terms against you in connection with your use of Google Play Store Apps.
XIV. MISCELLANEOUS PROVISIONS
Failure to require performance of any provision shall not affect any party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
If any provision in this Agreement is determined to be unenforceable, then such provision will be modified to reflect the intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
By using The Application, you consent to receive from TQL all communications, including notices, agreements, legally required disclosures or other information in connection with the Application (collectively, “Notices”) electronically. TQL may provide such Notices by posting them on TQL’s website at https://www.tql.com/, or by downloading such Notices to the Application on your wireless device or within the Web Portal. Notices shall be deemed received on the weekday following the day when they were posted or sent. If you desire to withdraw your consent to receive Notices electronically, you must discontinue your use of the Application.
No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of TQL. All remedies afforded to TQL under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of TQL, at any time or from time to time, to require performance of any obligations shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
Last revised effective 10/15/2020
