KeepTruckin Terms of Service
Effective Date: August 6, 2019
This page explains our terms of service and contains important information about your legal rights – when you use KeepTruckin you are agreeing to these terms. To help make them easier to understand, we have included some helpful notes in blue below. These notes are not part of the terms of service and have no legal effect; rather, they are intended to help you follow along with the terms.
Table of Contents
- 1. Introduction
- 2. Description of our Services
- 3. Customer Use of the Services
- 4. Intellectual Property Rights
- 5. Privacy and Security
- 6. Service-Specific Terms & Conditions
- 7. Fees & Payment
- 8. Term and Termination
- 9. Warranty
- 10. Disclaimers
- 11. Indemnity
- 12. Limitation of Liability
- 13. Arbitration Agreement
- 14. General
- 15. Definitions
- Change Log
These Terms of Service and any Additional Terms (as defined below) (collectively, “Terms”) are a legal agreement between you, as Customer, Administrator, and/or End User, and KeepTruckin, Inc. (“KeepTruckin,” “we,” “our,”or“us“) and govern your use of and access to KeepTruckin’s services, including the KeepTruckin App Marketplace (as defined below) and any software, hardware, mobile applications, tools, features, and other products and services that are made available through our website (https://gomotive.com) (“Site“) or otherwise made available by us (collectively, and together with the items set forth in the definition of KeepTruckin Services, “Services“).
- Acceptable Use Policy: https://gomotive.com/acceptable-use-policy
- API Terms of Service: https://gomotive.com/api-tos
- Hardware Purchase Policy: https://gomotive.com/hpp
- Limited Hardware Warranty: https://gomotive.com/warranty
- Copyright Dispute Policy: https://gomotive.com/cdp
Whenever you use any of our Services you agree to all of these Terms and our Privacy Notice, as well as any additional terms, policies, or guidelines applicable to the specific Services you use.
For example, if you make use of any API from KeepTruckin, you will be subject to both these Terms and the API Terms.
If you are accepting these Terms on behalf of your employer or another entity or for use of the Services by your employer or another entity (“Customer“), you represent and warrant that (a) you have the legal authority to bind the applicable entity to these Terms, and are 18 years or older, and (b) that you agree, on behalf of the entity you represent, to these Terms. If you don’t have the authority to bind your employer or the entity you represent to these Terms, you should not click the checkbox or button or countersign these Terms. If you are accepting these Terms on your own for your own use of the Services as a Customer with an account, you agree that you have the legal authority to agree to these Terms and are 18 years or older.
For End Users:
If you are using the Services as an End User, you agree and acknowledge that the Customer and its Administrator has the ability to access, disclose, restrict, and remove information in or from an End User account, and that the Administrator may be able to monitor, restrict, or terminate access to an End User account.
For Customers who are also End Users:
If you are using the Services as both a Customer and an End User, you are accepting these Terms as both a Customer with a KeepTruckin account and as the related End User for such account.
FOR CUSTOMERS AND END USERS RESIDING IN THE UNITED STATES, PLEASE BE AWARE THAT THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE AND CLASS ACTION WAIVER LOCATED IN SECTION 13 OF THESE TERMS, AS IT REQUIRES ARBITRATION TO RESOLVE DISPUTES, IN MOST CASES, ON AN INDIVIDUAL BASIS. BY ACCEPTING THESE TERMS, CUSTOMER OR END USER, AS APPLICABLE, AGREES TO BE BOUND BY THE AGREEMENT TO ARBITRATE AND THE CLASS ACTION WAIVER.
2. Description of our Services
2.1 Provision of Services
Customer and End Users may access and use the Services solely in accordance with these Terms and the Documentation.
You may only use our Services and Hardware in accordance with these Terms, which we may change from time to time.
2.2 Downloadable Apps
The Services allow Customer and End Users to download Apps that may update automatically.
KeepTruckin may, at its discretion, change or update the Services and/or these Terms from time to time.
2.4 Customer Support
2.5 Free Services
KeepTruckin reserves the right to terminate access to Services offered on a free or free trial basis in its sole discretion.
3. Customer Use of the Services
3.1 Customer Responsibilities
Customer is responsible for any use of the Services through its account, including all use of the Services by Customer’s End Users and Administrators. Customer’s responsibility extends to use of the Hardware by End Users, including damage to and misuse of the Hardware, as further set forth in these Terms. Customer is responsible for obtaining consents and complying with any laws necessary to allow the operation of the Services, collection of Customer Data, and permission for KeepTruckin to process, store, and transfer Customer Data. In addition, Customer and End User are solely responsible for all of their own software, network and internet connection costs related to their use of the Services (including with respect to any firmware or other software updates released by KeepTruckin), including but not limited to mobile phone or mobile network data usage fees and applicable roaming charges which are provided by the Customer’s or End User’s mobile network provider under the Customer’s or End User’s separate contracts with them, and KeepTruckin is not responsible for these data services or any costs related thereto whatsoever.
By using our Services here are some of the promises that you make to us:
3.2 Compliance with Laws and Regulations
Customer and End User assume sole responsibility for their compliance with all applicable laws and regulations, including but not limited to any audio or video recording laws (when using the Dashcam), FMCSA Hours of Service of drivers and IFTA.
By using our Services here are some of the promises that you make to us:
3.3 End User Accounts
Customer may provision accounts for End Users to access Customer’s Services account. Customer is responsible for maintaining the confidentiality of account credentials used by End Users to access the Services and preventing unauthorized use of the Services. Customer may not permit sharing of End User accounts or passwords. Customer agrees to (a) prevent any unauthorized access, sharing, or use by End Users and terminate any unauthorized use of or access to the Services and (b) provide KeepTruckin with notice of such unauthorized access or use.
You will keep your account credentials confidential and not allow any third parties to use your account to access our Services.
3.4 Customer Administration
Customer is responsible for designating Administrators for its Services account, maintaining updated Administrator contact information, and managing access to Administrator accounts. Administrators may have the ability to access, disclose, restrict or remove Customer Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts. KeepTruckin’s responsibilities do not extend to a Customer’s internal management or administration of the Services.
You are responsible for the internal management and administration of your Services accounts.
Customer and End Users must only access and use the Services in accordance with these Terms, the Documentation, the Additional Terms, and all applicable laws. Customer will ensure that no person under the age of 18 is allowed to become an End User.
You must be 18 or over to use our Services.
3.6 KeepTruckin Rights
Although KeepTruckin is not obligated to monitor access to or use of the Services or to review Customer Data, KeepTruckin has the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. KeepTruckin responds to notices of alleged copyright infringement if they comply with the law and are reported using our Copyright Dispute Policy (available at https://gomotive.com/cdp). KeepTruckin reserves the right, but is not obligated, to remove or disable access to any Customer Data, at any time and without notice, including if KeepTruckin believes Customer Data to be in violation of these Terms or the Acceptable Use Policy or is alleged to infringe any third party’s rights. Under no circumstances will we be liable for the content you or any third party makes available through our Services, including, but not limited to, for any errors or omissions in content or Customer Data, or for any loss or damage of any kind incurred as a result of the use of any content or Customer Data posted, transmitted or otherwise made available via the Service.
You acknowledge that we do not screen Customer Data or any content that you or any third party make available through the Service, but that we shall have the right (but not the obligation) to refuse, move or delete any such content that is made available via the Service. We shall also have the right to remove any content that you or any third party make available through our Services that violates these Terms or is otherwise objectionable in our sole discretion.
We have the right to disable access to Customer Data if we believe it to be violating these Terms or infringing any third party’s rights.
You promise not to infringe our intellectual property rights or to use our Services to compete with KeepTruckin.
Customer will not (and will not allow any End Users or third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, (b) modify or create derivative works based on the Services, (c) sell, resell, license, copy, rent, lease, distribute, time-share the Services or otherwise use the Services for the benefit of a third party, (d) remove or alter proprietary notices from the Service, (e) use the Services to create any competitive or other product or service or (f) use, sell, copy, modify, create derivative works based on, publicly perform, publicly display, or distribute the KeepTruckin Output outside of the Services, except for regulatory compliance purposes or otherwise with KeepTruckin’s express consent.
We may suspend your access to and use of the Services.
KeepTruckin, in its sole discretion, may suspend Customer’s or End User’s right to use the Services if (a) Customer’s or End User’s use of the Services poses a security risk to the Services, may violate the Acceptable Use Policy or any Additional Terms, or may adversely affect the Services, KeepTruckin’s systems and infrastructure, KeepTruckin’s reputation, or a third party, (b) Customer or End User’s use of the Services could subject KeepTruckin to liability, (c) Customer is in breach of these Terms, or (d) any default on Customer’s payment obligations (including any payment obligation to any third party equipment financing company). KeepTruckin will use commercially reasonable efforts to provide prompt notice of a suspension.
We are not responsible or liable for your use of any Non-KeepTruckin Product.
3.9 Non-KeepTruckin Product
If Customer or End User uses any Non-KeepTruckin Product (including any Non-KeepTruckin Product made available by us, the KeepTruckin App Marketplace, or through our Site), (a) KeepTruckin will not be liable for any act or omission of such Non-KeepTruckin Product, including the Non-KeepTruckin Product’s access to or use of Customer Data or other information or reports and (b) KeepTruckin does not warrant or support any Non-KeepTruckin Product. Customer and/or End User are solely responsible for complying with licenses for Non-KeepTruckin Products and paying fees for Non-KeepTruckin Products. Customer and/or End User may authorize KeepTruckin to allow a Non-KeepTruckin Product to access or use Customer Data or other information or reports via the Services, email, phone, or other form of consent.
If KeepTruckin has an agreement with a Non-KeepTruckin Product, KeepTruckin may rely on a representation from that Non-KeepTruckin Product that Customer or End User has authorized access or use of Customer Data or other information or reports. KeepTruckin does not endorse any Non-KeepTruckin Product, or any opinions, recommendations, or advice therein.
You may not share your Customer API Key with any third party.
3.10 KeepTruckin App Marketplace
You acknowledge that the KeepTruckin App Marketplace includes listings for Apps that are created, offered, supported and maintained by third parties (“Third Party Developers”) unaffiliated with KeepTruckin or its affiliates (“Third Party Apps”). Notwithstanding anything to the contrary in these Terms, you acknowledge and agree that: (a) you must use your own discretion when you access or deploy Third Party Applications through the KeepTruckin Marketplace and access Third Party Developer services; (b) you should read the terms and conditions and privacy policies associated with any Third Party Applications as provided by the applicable Third Party Developer as they will govern your use of the Third Party Apps; and (c) KeepTruckin does not own or control any of these Third Party Developers or the Third Party Apps, and you will not hold KeepTruckin responsible or liable for any such Third Party Apps or acts or omissions of Third Party Developers, under any circumstances.
KeepTruckin does not in any way warrant the accuracy, reliability, security, completeness, usefulness, non-infringement, or quality of any Third Party Apps (including without limitation the content contained therein), even if a Third Party App complies with these Terms and the API Terms. You agree that you bear all risks associated with using or relying on Third Party Apps. If You have any questions about Third Party Apps or the terms that govern the use of the Third Party Apps, you should contact Third Party Developer of the Third Party App directly. In the event that KeepTruckin is the publisher of an App available through the KeepTruckin App Marketplace, then use of such App will be governed by these Terms.
Any support and maintenance of the Third Party Apps shall be provided by Third Party Developer, and only to the extent described in the related Third Party App’s terms of service or as otherwise communicated to You. You agree and acknowledge that KeepTruckin has no responsibility for providing such support and maintenance. Failure of a Third Party Developer to provide support and maintenance will not entitle you to any refund of fees paid, if any, for the App or the Service.
3.11 API Key
KeepTruckin may make available an API Key to Customer and/or End User solely for such Customer and/or End User’s internal use. Customer and/or End User is solely responsible for use of its API Key by Customer, End User, or any third party, including any Non-KeepTruckin Product. By using any API Key, Customer and End User are agreeing to the KeepTruckin API Terms of Service (available at https://gomotive.com/api-tos). You may not share any API Key with any third party; KeepTruckin may suspend your API Key in the event that it becomes aware that such API Key has been shared by you with any third party.
In the event that Customer or any End User authorizes a third party to access any Customer Data or other data or information via an API Key, KeepTruckin will not responsible or liable for any act or omission by such third party or use by such third party of the Customer Data or other data shared by Customer or its End Users.
4. Intellectual Property Rights
4.1 Reservation of Rights
Except for the limited licenses granted to Customer and End User in these Terms, KeepTruckin and its licensors own and reserve all right, title, and interest in and to the KeepTruckin Technology (including the rights to any text, graphics, images, music, software, audio, video, documents, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available by us through the Services).
We are providing you notice about our intellectual property rights.
4.2 KeepTruckin License
KeepTruckin grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license for Customer and its End Users to access and use the Software (including, as required, to use the Hardware) for personal and internal business purposes during the Services Term.
You own all of your Customer Data and any feedback or personal information you provide to us, but you also grant us a non-exclusive license to it.
4.3 Customer License
4.4 KeepTruckin Data
KeepTruckin may use and distribute the KeepTruckin Data (i) to provide, analyze, operate, and improve the Services and develop new products and services, (ii) to create and distribute reports and materials about the Services, and (iii) for any other lawful purpose. KeepTruckin owns and reserves all right, title, and interest in and to the KeepTruckin Data. KeepTruckin will not indicate to any third party that any KeepTruckin Data was provided by, obtained from, or associated with the Customer or Customer’s End Users, without Customer’s consent.
While Customer or End User retains ownership in any feedback and suggestions, Customer and End User agree that by submitting suggestions or other feedback regarding our Services or KeepTruckin, KeepTruckin may use such feedback for any purpose without compensation to Customer or End User. KeepTruckin appreciates all of your feedback and suggestions, and you can submit feedback by emailing KeepTruckin at email@example.com.
Customer grants KeepTruckin the right to use Customer’s name, trademark, and logo on KeepTruckin’s website and in marketing materials.
5. Privacy and Security
KeepTruckin uses commercially reasonable efforts to ensure that all facilities used to store and process Customer Data meet industry-standards for security.
5.3 Driver Connections and Data
The Services enable commercial motor vehicle driver Customers or End Users (“Driver“) to connect directly with a motor carrier customer of KeepTruckin (“Motor Carrier“), allowing Drivers to send messages and automatically share their Customer Data (e.g., driving logs, reports, data, location information) (“Driver Data“) with the Motor Carrier.
When Drivers connect with a Motor Carrier through the Services, the Motor Carrier’s administrators (“Fleet Administrators”) and its end users (“Fleet Users”) may access Driver Data for the Driver. When Drivers connect with a Motor Carrier through the Services, the Driver consents to automatically and continuously sharing Driver Data with the Motor Carrier and acknowledges that the Fleet Users and Fleet Administrators may send messages and other information to Driver. Motor Carriers and their Fleet Administrators will be able to disclose and share Driver Data with third parties. KeepTruckin will not be liable for any act or omission of a Motor Carrier, including access to or use of Driver Data or other information or reports.
5.4 Compelled Disclosure
KeepTruckin may disclose Customer Data and other information when required by law or regulation, so long as KeepTruckin gives the Customer prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Customer’s cost to contest or limit the disclosure.
6. Service-Specific Terms & Conditions
6.1 Service-Packaged Hardware Terms
If Customer is receiving Hardware as part of the Services and not purchasing the Hardware (“Service-Packaged Hardware“), Customer must keep the Service-Packaged Hardware free and clear of all claims, liens, and encumbrances.
This section sets forth additional terms that you agree to when you use certain Services, such as our Hardware and Apps.
KeepTruckin retains title to the Service-Packaged Hardware at all times. Customer acquires no ownership, title, property, right, equity, or interest in the Service-Packaged Hardware other than any licenses to the Software installed on the Service-Packaged Hardware further set forth in these Terms.
The terms of the limited warranty for Service-Packaged Hardware are set forth in the KeepTruckin Limited Hardware Warranty (available at https://gomotive.com/warranty), except that KeepTruckin warrants to Customer that the Service-Packaged Hardware will be free of defects in materials and workmanship for the duration of the Services Term. In order to make a claim under the KeepTruckin Limited Hardware Warranty, Customer must follow the procedures set forth therein and obtain a Return Merchant Authorization number.
6.1.4 Lost, Stolen, or Damaged Hardware Replacement
If Customer needs to replace Service-Packaged Hardware that is not covered by the Limited Hardware Warranty (e.g., the Service-Packaged Hardware is lost, stolen, or damaged), Customer can contact firstname.lastname@example.org to order replacement Service-Packaged Hardware for a Replacement Fee. Replacement Service-Packaged Hardware will continue to be owned by KeepTruckin. Upon return to KeepTruckin of any damaged Hardware, KeepTruckin may delete all data stored on the Service-Packaged Hardware, and KeepTruckin is not responsible for any loss of data for returned Service-Packaged Hardware.
6.1.5 Returns at End of Service Term
If Customer’s order for the Services, including any Service-Packaged Hardware, or any portion of the Services, expires or is terminated for any reason, Customer must package and return the applicable Service-Packaged Hardware, at Customer’s cost, to KeepTruckin within thirty (30) days of such expiration or termination. If the Hardware is (a) not returned within thirty (30) days or (b) is returned in poor condition (reflecting more than normal wear and tear) or with evidence that the Service-Packaged Hardware was used in violation of the Acceptable Use Policy, KeepTruckin will have the right to charge Customer the Replacement Fee.
If Customer returns any Service-Packaged Hardware in a defaced manner, for example, with writing on the Service-Packaged Hardware or with the serial number removed or scratched off, unless otherwise approved by KeepTruckin, KeepTruckin will have the right to charge Customer the Restoration Fee. Upon return to KeepTruckin, KeepTruckin may delete all data stored on the Service-Packaged Hardware and KeepTruckin is not responsible for any loss of data for returned Service-Packaged Hardware.
6.1.6 Substitute Hardware
KeepTruckin may, in its sole discretion, substitute any Service-Packaged Hardware with substantially similar hardware, so long as such substitution does not materially affect the Services on Customer’s account at the time of substitution.
6.2 Purchased Hardware Terms
Customer may purchase Hardware as further described in an Order Form (“Purchased Hardware”) or from an authorized retailer or a reseller partner, as applicable.
With respect to Purchased Hardware, title (except with respect to the Software installed on the Purchased Hardware) will pass to Customer upon KeepTruckin’s delivery to the carrier or at the point of purchase for retail purchases, in each case unless otherwise specified by the authorized retailer or the applicable Lender (as defined below).
6.3 General Hardware Terms
6.3.1 Delivery and Risk of Loss
All Hardware will be shipped in a commercially reasonable manner to the “ship to” address designated in Customer’s Order Form. Risk of loss for Hardware passes to Customer upon delivery of the Hardware to the “ship to” address, unless purchased from an authorized retailer as set forth in Section 6.2.2. Please refer to your Order Form and further communications with KeepTruckin regarding the estimated time of delivery of the Hardware. KeepTruckin is not liable for any delayed or late delivery of the Hardware. Customer is responsible for all freight, insurance, and other shipping related expenses, including, but not limited to, taxes and duties.
Customer is solely responsible for installing the Hardware in accordance with KeepTruckin’s written instructions and Documentation. Customer agrees that KeepTruckin is not liable for any cost, expense or damages arising from the installation of the Hardware.
6.3.3 Battery Drain
The Hardware connects to the battery of a vehicle and consumes a small drain on the vehicle’s battery, which may adversely affect the vehicle while not in operation. KeepTruckin is not liable for any consequences of the battery drain associated with use of the Hardware or the Services.
18.104.22.168 KeepTruckin Replacement
If KeepTruckin provides Customer with the wrong set of Cables due to no fault of Customer, Customer may, within thirty (30) days of receipt of the Cables, request a replacement set of Cables. KeepTruckin will, within fifteen (15) days of Customer’s request, send a replacement set of Cables. Customer must package and return the original Cables within thirty (30) days of Customer’s request. If the original Cables are (a) not returned within thirty (30) days or (b) show evidence of use, KeepTruckin will have the right to charge Customer a Replacement Fee.
22.214.171.124 Customer Replacement
If Customer orders replacement Cables for any other reason, Customer may return original Cables that are in new or like-new condition for a credit equal to the current retail price for the original Cables.
126.96.36.199 Cable Charges
KeepTruckin may charge Customer a cable fee per unit of Hardware depending on Customer’s Order Form at KeepTruckin’s then-current rates for Cables.
Customer is solely responsible for determining whether or not the Services and Hardware are compatible with any vehicles utilizing the Services and Hardware. Customer agrees that KeepTruckin is not responsible for any cost, expense or damage arising from compatibility issues.
6.4 Additional General Services Terms
6.4.1 Services Credits
If Customer has either (a) made a warranty claim for Purchased Hardware and has purchased Services associated with the Purchased Hardware or (b) made a warranty claim for Service-Packaged Hardware, and KeepTruckin has not sent a replacement unit within fifteen (15) days, then upon confirmation by KeepTruckin that the warranty claim is valid (e.g., the Hardware is returned before the deadline and the condition has not voided the warranty), KeepTruckin will credit Customer a prorated amount of the prepaid fees for Services that were unavailable due to the Hardware defect. If Customer has purchased Services from a reseller, Customer must consult its agreement with the reseller for more information about credits for the Services.
6.5 Additional Terms for Facility Insights
Customer and End User acknowledge and agree that the information provided in KeepTruckin’s Facility Insights tool is provided for informational purposes only. Although KeepTruckin attempts to ensure that the information made available through the Facility Insights tool is complete, accurate, and up to date, KeepTruckin assumes no responsibility for its completeness, accuracy, or timeliness.
6.6 Additional Terms for Google Maps
6.7 Additional Terms for Financed Equipment
If you are accessing the Services through a third party financing entity (“Lender”), the terms in this Section shall apply. Any obligation you may have to the Lender is absolute and unconditional, not subject to any setoff or counterclaim. You acknowledge and agree that when you sign the financing documents with the Lender, the Lender is prepaying for the Services on your behalf and such prepayment is final and cannot be refunded. You accept the risk that any Services are not provided or are not satisfactory. If you choose to discontinue use of the Services for any reason, you will continue to be liable for any outstanding payment obligations specified in your financing agreement with Lender. If you have any claim against or dispute with KeepTruckin, you may not take action by reason of such claims against Lender. If you are purchasing through a Lender, KeepTruckin may terminate your access to the Services should you breach these Terms or the terms between you and the Lender. Any refunds issued under this Agreement by KeepTruckin shall be remitted to the Lender in reduction of the total number of remaining payments owed by you. KeepTruckin shall remit any refunds issued pursuant to these Terms to the Lender in reduction of the total number of remaining payments owed by you.
6.8 Additional Terms for WiFi Hotspot
If Customer’s subscription package includes WiFi Hotspot service, the following terms and conditions apply:
6.8.1 Data Allotment
KeepTruckin will provide Customer with a monthly allocation of 500 MB of WiFi data per unit (a “Monthly Data Plan”), unless otherwise set forth in writing on Customer’s Order Form. Such Monthly Data Plan is subject to change or modification by KeepTruckin. If Customer wishes to increase its Monthly Data Plan, Customer may contact its sales or support representative.
6.8.2 Over-usage and Misuse
In the event that Customer’s data usage goes over its allotted Monthly Data Plan, or Customer uses the WiFi Hotspot in violation of these Terms or the Acceptable Use Policy, KeepTruckin may reduce connection speeds, restrict or block Customer’s connections, or take other measures to curtail Customer’s over-usage or misuse. KeepTruckin reserves the right to charge Customer for any overage fees.
6.8.3 Restrictions on Use
KeepTruckin may restrict access to the types of applications available with the WiFi Hotspot.
By using the WiFi Hotspot, Customer acknowledges and agrees that there are security, privacy and confidentiality risks inherent in accessing or transmitting information through WiFi. Security issues may include, among others, interception of transmissions, loss of data, and the introduction or viruses and other programs that can damage computers or other devices. Accordingly, Customer agrees that KeepTruckin is not liable for any interception of transmissions, computer worms or viruses, loss of data, file corruption, hacking or any other damages to Customer’s or its End Users’ computers or other devices that result from the transmission or download of information or materials through WiFi.
6.8.5 Acceptable Uses
6.9 Additional Terms for Apple Apps
These Terms apply to your use of all the Software, including the iPhone and iPad applications available via the Apple, Inc. (“Apple“) App Store (each an “Apple Store App“), but the following additional terms in this Section 6.5 also apply to Apple Store Apps:
Both Customer and KeepTruckin acknowledge that these Terms are concluded between Customer and KeepTruckin only, and not with Apple, and that Apple is not responsible for Apple Store Apps or the content;
The Apple Store Apps are licensed to Customer on a limited, non-exclusive, non-transferable, non-sublicensable basis, solely to be used in connection with the Services for private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
Customer will only use the Apple Store Apps in connection with an Apple device that Customer owns or controls;
Customer acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Store Apps;
In the event of any failure of the Apple Store Apps to conform to any applicable warranty, including those implied by law, Customer may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to Customer will be to refund to Customer the purchase price, if any, of the Apple Store App;
Customer acknowledges and agrees that KeepTruckin, and not Apple, is responsible for addressing any claims Customer or any third party may have in relation to the Apple Store App;
Customer acknowledges and agrees that, in the event of any third-party claim that the Apple Store App or Customer’s possession and use of the Apple Store App infringes that third party’s intellectual property rights, KeepTruckin, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
Customer represents and warrants that Customer is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties;
Both Customer and KeepTruckin acknowledge and agree that, in use of the Apple Store App, Customer will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and;
Both Customer and KeepTruckin acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer as the third-party beneficiary hereof.
6.10 Additional Terms for Smart Load Board
The following additional terms and conditions apply to your use of the Smart Load Board and all related Services:
KeepTruckin provides the Smart Load Board (“SLB”) so that carriers, brokers and shippers may offer to buy and sell freight services. KeepTruckin is not a freight broker and is not a party to the actual transactions facilitated by the SLB, and any terms and conditions of such transactions, including without limitation any pricing or payment terms, are solely among the users of the SLB. It is your responsibility, as a user of the SLB, to check the credentials of any party introduced to you by the SLB, including but not limited to information relating to safety ratings, proof of authority, credit history, necessary certifications and insurance coverage. Although we do our best to ensure that the information we make available through the SLB is as accurate and up-to-date as possible, we make no warranty or guarantee concerning its accuracy, completeness or suitability, and provide all information AS-IS. Use of the SLB is at your own risk.
In order to utilize the SLB, you represent and warrant to KeepTruckin that: (a) you are or represent a duly licensed and authorized freight broker, motor carrier, shipper, freight forwarder, third party logistics provider, or intermodal or rail company, as the case may be; (b) you will maintain all appropriate legal, governmental and regulatory authority necessary to engage in the transactions facilitated by the SLB to which you are a party, and specifically (i) you will not enter into a transaction to transport freight without the proper motor carrier authority and required licenses, equipment, certifications and insurance coverage, and (ii) you will not enter into a transaction to broker freight without the proper brokerage authority, licenses, certifications, insurance coverage and bond; (c) you will comply with all applicable laws when using the SLB and the Services, and you will use the SLB and the Services for lawful purposes only; and (d) you will not use the SLB and Services to advertise services for any third party entity or person. You further understand and agree that we reserve the right to restrict, in part or in full, access to the SLB and any of the Services if we learn that you are an entity, or are affiliated with an entity, that provides a service competitive to the SLB or our Services or if we believe you are attempting to create a competitive service.
7. Fees & Payment
Upon agreement to an Order Form by the parties, Customer will pay KeepTruckin the fees for the Services set forth in the Order Form on the payment schedule set forth in the Order Form.
All payments are due in U.S. dollars unless otherwise indicated on the Order Form or invoice. Customer is responsible for providing complete and accurate billing and contact information to KeepTruckin and updating KeepTruckin of any changes. All fees paid are non-refundable unless otherwise set forth in these Terms and are not subject to set-off by Customer. If Customer is purchasing the Services from an authorized reseller, Customer’s payment obligations may be to the authorized reseller.
You will honor your payment obligations and are okay with us using third-party payment processors to process your payments.
All fees are generally non-refundable.
7.2 Invoicing & Payment
Unless otherwise set forth in the Order Form, all fees will be invoiced or billed in advance. All invoices issued under these Terms are due and payable according to the payment terms in the Order Form, if applicable, or within 30 days from invoice send date. If Customer is paying by credit card, all fees are due and payable immediately, unless otherwise specified in Customer’s Order Form. If the Customer requires the use of a purchase order or purchase order number, the Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to these Terms and are void.
If Customer is purchasing the Services from an authorized reseller, any terms and conditions between Customer and the authorized reseller that conflict with these Terms are void.
7.3 Credit Card Payment
KEEPTRUCKIN MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY, RENEWALS, ADDITIONAL ORDERS, AND FEES) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY KEEPTRUCKIN) THAT CUSTOMER WILL TERMINATE THIS AUTHORIZATION OR WISHES TO CHANGE THE PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE KEEPTRUCKIN REASONABLY COULD ACT.
7.4 Free Trials and Other Promotions
Any free trial or other promotion that provides access to Services must be used within the specified time of the trial. If KeepTruckin has provided Hardware as part of a trial at no cost to Customer (the “Trial Hardware”), and Customer does not wish to continue its Services at the end of the trial, Customer must return the Trial Hardware within thirty (30) days of the end of the trial period. If Customer does not return the Trial Hardware within such timeframe, KeepTruckin may bill and invoice Customer Replacement Fees for such Trial Hardware, and Customer is responsible to pay KeepTruckin for such Replacement Fees. IF THE CUSTOMER IS IN A TRIAL PERIOD AND THE CUSTOMER HAS ALREADY PROVIDED A METHOD OF PAYMENT TO KEEPTRUCKIN FOR THE KEEPTRUCKIN SERVICES, KEEPTRUCKIN MAY CHARGE AUTOMATICALLY AT THE END OF THE TRIAL, UNLESS THE CUSTOMER NOTIFIES KEEPTRUCKIN THAT THE CUSTOMER WANTS TO CANCEL.
7.5 Discontinuation of Services
If Customer chooses to discontinue, cancel or terminate any Services for which Customer has agreed to in an Order Form before the end of the Subscription Term agreed to in such Order Form, KeepTruckin shall have the right to immediately invoice Customer or bill Customer’s authorized credit card for any balance due for the remainder of the Subscription Term, including any Replacement Fees and Restoration Fees.
7.6 Late Payments
Past due amounts are subject to a finance charge equal to the lower of 1.5% per month or the highest rate permitted by law from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by KeepTruckin in collecting past due amounts. If Customer’s fees are past due (including any fees owing to any third party equipment financing company), KeepTruckin may suspend the Services automatically and provide notice of termination for material breach.
7.7 Billing Disputes
If Customer disputes any invoices or charges, Customer must let KeepTruckin know within sixty (60) days after the date that KeepTruckin invoices or bills Customer for the disputed amount.
Customer is responsible for all taxes, except those directly relating to KeepTruckin’s net income, gross receipts, or capital stock. KeepTruckin will invoice Customer for sales tax when required to do so and Customer will pay the tax unless Customer provides KeepTruckin with a valid tax exemption certificate authorized by the appropriate taxing authority.
7.9 Future Functionality
Customer agrees that it has not relied on the availability of any future functionality of the Services or any other future product or service in executing these Terms or any Order Form. Customer acknowledges that information provided by KeepTruckin regarding future functionality should not be relied upon to make a purchase decision.
8. Term and Termination
8.1 Services Term
These Terms will continue in full force and effect during the Services Term until they are terminated as described herein.
This section describes the term of your agreement with KeepTruckin and how either you or KeepTruckin may terminate your use of the Services.
8.2 Subscription Terms
Unless set forth in an Order Form, following any Subscription Term, whether the initial subscription term or a renewal term, the Subscription Term will renew for a period of the same duration as the last Subscription Term but no longer than one (1) year (except as otherwise set forth in an Order Form), unless either party gives the other written notice of termination at least thirty (30) days prior to the expiration of the Subscription Term. UNLESS YOU GIVE NOTICE OF TERMINATION (WHICH CAN BE DONE BY EMAILING US AT SUPPORT@KEEPTRUCKIN.COM OR BY CALLING US AT 855-434-3564), YOUR SUBSCRIPTION TERM WILL AUTO-RENEW, AND YOU WILL BE BILLED FEES AT KEEPTRUCKIN’S THEN-CURRENT NON-PROMOTIONAL RATES.
8.3 Termination for Cause
Either party may terminate these Terms if (a) the other party is in material breach of these Terms and fails to cure that breach within thirty (30) days after receipt of written notice, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings. KeepTruckin may also terminate these Terms if it has the right to suspend the Services or in order to comply with law or regulation.
8.4 KeepTruckin Termination for Convenience
KeepTruckin may terminate Customer’s access to and use of the Services for convenience, at its sole discretion, any time upon notice to Customer. In the event of such termination for convenience by KeepTruckin, KeepTruckin will refund to Customer any prepaid fees for the Services on a prorated basis.
8.5 Customer Termination
Customer may terminate these Terms by providing notice at least thirty (30) days prior to the expiration of the Subscription Term. The Terms will then terminate at the end of the existing Subscription Term and Customer may access the Services until the end of the existing Subscription Term. Customer is responsible for all fees billable through the end of the existing Subscription Term.
8.6 Effect of Termination
If these Terms expire or are terminated, then (a) the rights granted by one party to the other will cease immediately except as otherwise set forth in this section, (b) KeepTruckin will have no obligation to maintain Customer Data and may delete any copies of Customer Data, and (c) the following sections will survive: 4 (Intellectual Property Rights), 5.4 (Compelled Disclosure), 6.1.5 (Returns), 7 (Fees & Payment), 8.6 (Effect of Termination), 10 (Disclaimers), 11 (Indemnity), 12 (Limitation of Liability), 13 (Arbitration Agreement), 14 (General), 15 (Definitions).
The warranty for the Hardware is set forth in the Limited Hardware Warranty (available at https://gomotive.com/warranty) and is incorporated into and made a part of these Terms. In the event of a conflict between these Terms and the Limited Hardware Warranty, the Limited Hardware Warranty will control.
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH IN THESE TERMS AND THE LIMITED HARDWARE WARRANTY, KEEPTRUCKIN AND ITS AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING THE KEEPTRUCKIN SERVICES AND ANY OUTPUT FROM THE KEEPTRUCKIN SERVICES, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES OF (I) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, AND NON-INFRINGEMENT, (II) ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR (III) THAT THE KEEPTRUCKIN SERVICES OR ANY KEEPTRUCKIN OUTPUT ARE, SECURE, ERROR-FREE OR UNINTERRUPTED.
THE KEEPTRUCKIN SERVICES AND KEEPTRUCKIN OUTPUT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND KEEPTRUCKIN MAKES NO WARRANTY REGARDING THE ACCURACY, COMPLETENESS, QUALITY, RELIABILITY, TIMELINESS, OR TRUTHFULNESS OF ANY KEEPTRUCKIN OUTPUT. CUSTOMER IS SOLELY RESPONSIBLE FOR (AND KEEPTRUCKIN DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER’S INSTALLATION OF THE HARDWARE, CUSTOMER’S OR END USER’S USE OF THE KEEPTRUCKIN SERVICES OR HARDWARE, CUSTOMER’S VEHICLES, AND INTERNET CONNECTIVITY.
This is our disclaimer of our legal liability for the quality, reliability, or safety of our Services and Hardware.
CUSTOMER AND END USER(S) ACKNOWLEDGE AND AGREE THAT THE KEEPTRUCKIN SERVICES ARE A DRIVER AID ONLY. THEY ARE NOT A SUBSTITUTE FOR A SAFE, CONSCIENTIOUS DRIVER. THEY CANNOT COMPENSATE FOR A DRIVER THAT IS DISTRACTED, INATTENTIVE, OR IMPAIRED BY FATIGUE, DRUGS, ALCOHOL, OR OTHERWISE. THE DRIVER IS RESPONSIBLE TO AVOID AN ACCIDENT. CUSTOMER’S DRIVERS AND END USERS SHOULD NEVER WAIT FOR ANY OF THE KEEPTRUCKIN SERVICES TO PROVIDE A WARNING BEFORE TAKING MEASURES TO AVOID AN ACCIDENT OR ANY VIOLATIONS.
FAILURE OF A DRIVER TO TAKE FULL RESPONSIBILITY FOR THE OPERATION OF A VEHICLE AT ALL TIMES CAN RESULT IN SERIOUS PERSONAL INJURY OR PROPERTY DAMAGE.
CUSTOMER AND END USER(S) ACKNOWLEDGE THAT USE OF THE SOFTWARE (OTHER THAN SOFTWARE EMBEDDED IN HARDWARE), INCLUDING THE APPS, WHILE DRIVING IS STRICTLY FORBIDDEN. DISTRACTED DRIVING IS DANGEROUS AND ILLEGAL IN MANY JURISDICTIONS.
10.4 IFTA Reporting
While KeepTruckin strives to create accurate fuel tax reports based on Customer Data and state and federal requirements, these reports are not guaranteed to be correct and are provided to Customer and/or End User for informational purposes only. Customer and End User(s) accept responsibility to ensure the accuracy and the suitability of the reports generated by the Services before submitting them to any state or federal agency. KeepTruckin accepts no responsibility or liability for any setbacks, financial or otherwise, incurred by using our Services. It is Customer’s and End User’s sole responsibility to maintain compliance standards for IFTA filing purposes.
10.5 Wireless Providers
Customer, End User(s) or KeepTruckin may use a third-party provider for cellular and wireless connectivity, including WiFi Hotspot connectivity (“Wireless Service Carriers“). KeepTruckin cannot and does not guarantee uninterrupted or continuous service or specific area coverage and is not responsible for downtime or loss of use of the Services caused by a Wireless Service Carrier’s lack of provision of such services.
CUSTOMER AND END USER(S) UNDERSTAND AND AGREE THAT CUSTOMER AND END USER(S): (1) HAVE NO CONTRACTUAL RELATIONSHIP WITH THE WIRELESS SERVICE CARRIERS, (2) ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN KEEPTRUCKIN AND THE WIRELESS SERVICE CARRIERS, (3) THAT THE WIRELESS SERVICE CARRIERS [PB3] HAVE NO LIABILITY OF ANY KIND TO CUSTOMER OR END USERS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, (4) THAT MESSAGES OR DATA TRANSMISSIONS MAY BE DELAYED, DELETED OR NOT DELIVERED, AND 911 CALLS MAY NOT BE COMPLETED, AND (5) THE WIRELESS SERVICE CARRIERS CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES.
10.6 Beta Products
Despite anything to the contrary in these Terms, Customer and End User(s) acknowledge that (a) Customer and/or End User, as applicable, has the sole discretion whether to use any Beta Products, (b) Beta Products may not be supported and may be changed by KeepTruckin at any time, including in a manner that reduces functionality, (c) Beta Products may not be available or reliable, and (d) KeepTruckin provides Beta Products “as-is” and will have no liability arising out of or in connection with Customer’s or any End User’s use of the Beta Products.
11.1 Customer and End User Indemnity
Customer and End User(s) will indemnify, defend, and hold harmless KeepTruckin and its affiliates, officers, directors, employees, agents, licensors, and distributors from and against all liabilities, damages, losses, and costs and expenses, including settlement costs and reasonable attorneys’ fees, arising out of a third-party claim regarding (i) Customer’s or End Users’ access to or use of the Services; (ii) Customer Data; (iii) Customer’s or End Users’ breach of these Terms, (iv) Customer’s or End User’s interactions with an Other Party, or (v) negligent acts or omissions of Customer or End Users.
This describes your obligations to indemnify us for third party claims.
11.2 Customer and End User Release
Because KeepTruckin is not party to any agreements between Customer or End User and any third parties, in the event that Customer or End User has a dispute with End Users, Fleet Users, Fleet Administrators, Motor Carriers, operators of Non-KeepTruckin Products, or other third parties, as applicable (each, an “Other Party“), Customer and/or End User agree to address such disputes directly with the Other Party in question and Customer and End User(s) release KeepTruckin (and our officers, directors, employees, agents, investors, licensors, distributors, and affiliates from any and all claims, demands, or damages (actual, exemplary, special, punitive, or consequential)) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
In consideration of the covenants under these Terms, Customer, on behalf of itself and its End Users (“Releasors”) hereby irrevocably and forever waives, releases, and discharges KeepTruckin and its affiliates, officers, directors, employees, agents, successors and assigns (“Releasees”) from any claims, suits, damages, losses, and liabilities of any kind that the Releasors had, now have, or may ever have against the Releasees in connection with disputes arising from, relating to, or in connection with an Other Party, during and after the Services Term. The Releasors have been made aware of and understand all rights they may have arising under California Civil Code Section 1542 (or any analogous state, federal, or international statute or principle) against KeepTruckin, which California Civil Code Section 1542 provides that:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
The Releasors expressly, knowingly, and intentionally waive any and all rights, benefits, and protections of California Civil Code 1542 (or any analogous state, federal, or international statute or principle). Customer and End User(s) acknowledge they have had an opportunity to be advised by counsel concerning the effect and import of these Terms under California Civil Code 1542 and other legal requirements. The parties acknowledge and agree that this waiver is an essential and material term of these Terms.
If you use any Non-KeepTruckin Products, you agree that KeepTruckin is not a party to your agreements with the owners of such Non-KeepTruckin Products and you release us from any claims or disputes relating to such Non-KeepTruckin Products.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, KEEPTRUCKIN AND ITS AFFILIATES, LICENSORS, AND DISTRIBUTORS WILL NOT BE LIABLE UNDER THESE TERMS OR FROM USE OR INABILITY TO USE THE KEEPTRUCKIN SERVICES FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (B) LOSS OF USE, DATA, BUSINESS, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), OR (C) DAMAGES FOR PERSONAL OR BODILY INJURY OR PROPERTY DAMAGE, REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER KEEPTRUCKIN HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
These are the limits of legal liability we may have to you.
TO THE FULLEST EXTENT PERMITTED BY LAW, KEEPTRUCKIN AND ITS AFFILIATES, LICENSORS, AND DISTRIBUTORS WILL NOT BE LIABLE UNDER THESE TERMS OR FROM USE OR INABILITY TO USE THE KEEPTRUCKIN SERVICES FOR AGGREGATE AMOUNTS THAT EXCEED THE GREATER OF (A) $100 USD OR (B) THE AMOUNT CUSTOMER HAS PAID OR IS PAYABLE FOR USE OF THE KEEPTRUCKIN SERVICES IN THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KEEPTRUCKIN AND CUSTOMER.
Some of the above limitations or exclusions may not be allowed in your jurisdiction and may not apply to you. The terms of this limitation of liability will apply to the extent permitted by applicable law.
13. Arbitration Agreement
13.1 Agreement to Arbitrate
Unless otherwise agreed to by both parties in writing or set forth in the “Exceptions to the Agreement to Arbitrate”, you and KeepTruckin agree that, in order to expedite and control the cost of any disputes, any legal or equitable claim arising out of or relating in any way to the Services, these Terms, and this Arbitration Agreement (“Claim“) will be determined by binding arbitration or in small claims court as further described below.
In the unlikely event we end up in a legal dispute, KeepTruckin and you agree to resolve it using arbitration (or in the courts located in San Francisco, CA if arbitration does not apply to the dispute or you opt out).
13.2 Informal Dispute Resolution
Except with respect to Claims listed in “Exceptions to the Agreement to Arbitrate” below, you and KeepTruckin agree to attempt to resolve any disputes informally. You and KeepTruckin agree to provide notice to the other party and attempt to resolve the dispute through discussion (“Informal Negotiation Period“). After 30 days, either party may bring a formal proceeding.
13.3 Arbitration Notice
If either you or KeepTruckin chooses to start an arbitration proceeding, the party initiating the proceeding will send a notice of its Claim (“Arbitration Notice“) to the other party. You will send the Arbitration Notice by email to email@example.com and by U.S. mail to: KeepTruckin, 55 Hawthorne Street, Suite 400, San Francisco, CA 94105.
13.4 Arbitration Procedures
Any arbitration proceedings between you and KeepTruckin will be conducted under the commercial rules then in effect for the American Arbitration Association (“AAA”), except with respect to the provision of this agreement which bars class actions in Section 13.8 and any specific rules and procedures explicitly discussed in this Section 13.4.
The award rendered by the arbitrator(s) shall include costs of arbitration, reasonable costs of expert and other witness and reasonable attorneys’ fees. For claims less than $10,000, KeepTruckin will advance to you AAA’s filing fees; provided, however, that such fees must be repaid to KeepTruckin if KeepTruckin prevails in the arbitration. Please see this link for the AAA’s current rules and procedures or contact the AAA at 1-800-778-7879.
13.5 Non-Appearance-Based Arbitration Option
Except with respect to the Exceptions to the Agreement to Arbitrate in Section 13.6, for Claims where the total amount of the award sought in arbitration is less than $10,000, the party seeking the award may choose non-appearance-based arbitration. If non-appearance-based arbitration is elected, the arbitration will be conducted online, by telephone, and/or solely based on written submissions to the arbitrator. The specific manner shall be chosen by the party initiating arbitration. Non-appearance-based arbitration involves no personal appearances by parties or witnesses unless otherwise mutually agreed to by the parties.
13.6 Exceptions to the Agreement to Arbitrate
Not withstanding the foregoing, the Arbitration Notice requirement and the Informal Negotiation Period do not apply to either law suits solely for injunctive relief to stop unauthorized use of the Services or lawsuits concerning copyrights, trademarks, moral rights, patents, trade secrets, claims of piracy or unauthorized use of the Services.
Either you or KeepTruckin may assert Claims which qualify for small claims court in San Francisco, CA or in any United States county in which you either live or work.
If the Agreement to Arbitrate is found not to apply to your Claim, the parties consent and agree to both venue and personal jurisdiction in the federal and state courts located in San Francisco, CA.
13.7 Opting Out of the Agreement to Arbitrate
You have the right to opt-out and not be bound by the binding agreement to arbitrate provided in these Terms by sending written notice of your decision to opt-out to firstname.lastname@example.org or by U.S. Mail to KeepTruckin, 55 Hawthorne Street, Suite 400, San Francisco, CA 94105. In order for your opt-out to be valid, the notice must be sent within 30 days of first using the Services.
13.8 No Class Actions
UNLESS YOU AND KEEPTRUCKIN AGREE OTHERWISE, YOU MAY ONLY RESOLVE DISPUTES WITH KEEPTRUCKIN ON AN INDIVIDUAL BASIS. CLASS ACTIONS, CLASS ARBITRATIONS, PRIVATE ATTORNEY GENERAL ACTIONS AND CONSOLIDATIONS WITH OTHER CLAIMS ARE NOT ALLOWED. NEITHER YOU NOR KEEPTRUCKIN MAY CONSOLIDATE A CLAIM OR CLAIMS AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS ACTION, A CONSOLIDATED ACTION OR A REPRESENTATIVE ACTION. If this specific section is found to be unenforceable, then the entirety of Section 13 (Arbitration Agreement) will be deemed void.
All attachments to the Terms and any Order Forms executed by the parties are hereby incorporated into the Terms by reference. The Terms, including the attachments and Order Forms, constitute the entire and exclusive understanding and agreement between KeepTruckin and you regarding the Services, and supersede and replace any and all prior or contemporaneous oral or written agreements between KeepTruckin and you regarding the Services, including any non-disclosure agreements.
If there is a conflict between the documents that make up these Terms, the documents will control in the following order: Order Form, Additional Terms, Terms, and the Documentation.
Here are some important details about the Terms.
If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
KeepTruckin may modify these Terms periodically. If an update will materially affect your use of the Services, KeepTruckin will notify you prior to the update’s effective date (except for changes due to legal or regulatory reasons which may be effective immediately). Otherwise, updates will be effective as of the date posted on this website and it is your responsibility to monitor the Site for updates to these Terms.
By continuing to use the Services or executing additional Order Forms after the changes become effective, you agree to be bound by the modified Terms. If you do not agree to the modified Terms for the Services, you may terminate the Services within 30 days of receiving notice of the change.
You may not assign or transfer these Terms, by operation of law or otherwise, without KeepTruckin’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. KeepTruckin may assign these Terms in their entirety, without notice, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
14.5 Governing Law
The Terms and the relationship between you and KeepTruckin shall be governed by the laws of the State of California except for its conflict of laws principles.
14.6 Causes of Action
Any cause of action related to the Services or the Terms must commence within one (1) year after the cause of action arises. Otherwise, such cause of action is barred permanently.
These Terms, Order Forms, and the KeepTruckin Technology will be the“Confidential Information”of KeepTruckin. You will not (a) use the Confidential Information except as expressly permitted by these Terms and (b) disclose Confidential Information to third parties.
Any notices provided by KeepTruckin under these Terms, including those regarding modifications to these Terms, will be given by KeepTruckin: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Notices to KeepTruckin must be sent to Keep Truckin, Inc., Attn: Legal Department, Office of the General Counsel, 55 Hawthorne Street, Suite 400, San Francisco, CA 94105 with a copy to email@example.com.
14.9 Force Majeure
KeepTruckin will not be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, labor disputes, governmental action, utilities failures, third-party software or hardware, and Internet disturbance) that was beyond its reasonable control. If such event continues for more than twenty (20) days, KeepTruckin may cancel unperformed Services upon written notice.
14.10 Relationship of the Parties
The parties are independent contractors. These Terms do not create a partnership, joint venture, or agency relationship between the parties.
KeepTruckin’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of KeepTruckin. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Any ambiguity in the Terms will be interpreted equitably without regard to which party drafted the Terms. “Including” and “include” will be construed to mean “including without limitation.”
14.13 Export Compliance
The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer and/or End User is responsible for compliance regarding Customer’s and its End Users’ use of the Services. Customer will not permit End Users to use the Services from a U.S. embargoed country.
14.14 Third-Party Beneficiaries
There are no third-party beneficiaries under these Terms.
The Terms and any Order Form may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.
14.16 Contact Information
“Acceptable Use Policy” means the acceptable use policy for the Services available at https://gomotive.com/acceptable-use-policy or otherwise provided by KeepTruckin.
Here is a list of the definitions (capitalized words) used in these Terms.
“Administrator” means a Customer-designated End User who administers the Services account and has access to permissions and other sensitive settings.
“API Key” means any API key for the Services that Customer can use or share with a third party for access, collection, and use of Customer Data.
“Apps” means downloadable software, including the mobile device software.
“Beta Products” means products, services, or software features available to Customer on a trial, beta, early access, or similar basis.
“End Users” means users of Customer’s Services account. End Users may include Customer, Customer’s and its affiliate’s employees, agents, and contractors.
“Customer Information” means any data and information Customer or its End Users upload, transmits, or submits to the KeepTruckin Software, including data and information from Non-KeepTruckin Products.
“Customer Data” means Customer Information and Hardware Data.
“Documentation” means any KeepTruckin-provided written documentation and policies.
“Hardware” means the KeepTruckin devices that are ordered by Customer under an Order Form or otherwise provided by KeepTruckin and used by Customer under these Terms. The following KeepTruckin devices are Hardware: the electronic asset tracking device (“Asset Gateway”), the vehicle gateway hardware (which, when coupled with the Software, may function as an electronic logging device) (“Vehicle Gateway”), the cable sets delivered with an Vehicle Gateway (“Cables”), and the any KeepTruckin dashboard camera (“Smart Dashcam”). For the avoidance of doubt, any Hardware referred to as an “ELD” or “Cellular ELD” prior to August 6, 2019 shall be deemed a “Vehicle Gateway.”
“Hardware Data” means the data and information regarding use of the Hardware, or collected from the Hardware, that KeepTruckin makes available to Customer via the Services.
“IFTA” means the International Fuel Tax Agreement.
“KeepTruckin App Marketplace” means KeepTruckin’s online marketplace for web or other software services or applications that utilize or interact with the API and integrate with the Service.
“KeepTruckin Data” means (a) usage data, statistics, aggregate data, and de-identified data derived from Customer Data and Hardware Data so that such data does not identify a person or (b) data and information used to generate the Hardware Data.
“KeepTruckin Output” means the Hardware Data and other information and reports made available to Customer through the Services.
“KeepTruckin Service(s)” means the (a) combined offerings of Software offered as a service and Service-Packaged Hardware, (b) Software offered as a service, either in combination with Purchased Hardware or otherwise, (c) the KeepTruckin App Marketplace, (d) support or other services described in an exhibit, attachment, or SOW referencing the Order Form or the Terms, (e) the Software, and (f) the Hardware, in each case that are ordered by Customer under an Order Form or otherwise provided by KeepTruckin and used by a Customer, End User, or Administrator under these Terms.
“KeepTruckin Technology” means the Services, Documentation, KeepTruckin Data, and KeepTruckin’s trademarks, logos, and other brand features.
“Non-KeepTruckin Product” means any Customer-provided or third-party services, products, websites, or applications, such as a service that interoperates with the Services, a website linked from the Services, and any application or service available through the KeepTruckin App Marketplace.
“Order Form” means the (a) ordering document, (b) ordering webpage, or (c) order confirmation or other communication of ordering, in each case for the KeepTruckin Services.
“Replacement Fee” means (a) $150 with respect to a Vehicle Gateway, (b) $300 with respect to a front facing Smart Dashcam, (c) $300 with respect to an Asset Gateway, (d) $400 with respect to a dual facing Smart Dashcam, and (e) $50 with respect to Cables, as KeepTruckin may update these amounts from time to time.
“Restoration Fee” means $25 with respect to any unit of Hardware, as KeepTruckin may update the amount from time to time.
“Software” means the Site, software embedded in Hardware, and fleet management and other software, including the Apps, that are ordered by Customer under an Order Form or otherwise provided by KeepTruckin and used by Customer under these Terms.
“Services Term” means the term of these Terms, which begins on the Effective Date and continues until the earlier of the expiration of Subscription Term or these Terms are otherwise terminated.
“Subscription Term” means the initial subscription term set forth in an Order Form and all renewal terms for the Services.
August 6, 2019: The Terms were updated to include terms and conditions governing Customer and/or End User use of the Facility Insights tool. The Terms were also modified to change all references to “ELD” or “Cellular ELD” to “Vehicle Gateway,” which reflects the Company’s new names for these products as of August 6, 2019. Finally, the definition of “Hardware” has been modified to include the Company’s newest product – the Asset Gateway. We also updated our mailing address.
June 10, 2019: The Terms were updated to include terms and conditions governing Customer and/or End User use of the WiFi HotSpot.
April 1, 2019: The Terms were updated to include easy-to-understand notes in the right margin to assist Customers and End Users with understanding the Terms, as well as adding language pertaining to how we work with our subsidiaries and affiliates.