Terms of Use

Last Updated: 2/10/2021

ON BEHALF OF YOURSELF, OR ON BEHALF OF THE COMPANY YOU ARE AUTHORIZED TO ACT FOR (HEREIN MEANS “YOU”), YOU ARE AGREEING TO ENTER INTO A LEGALLY BINDING CONTRACT AND ACCEPT THESE TERMS OF USE (THE “CONTRACT” OR “TERMS OF USE”) WITH ELEOS TECHNOLOGIES, LLC (“ELEOS” OR “WE” OR “US”) BY DOWNLOADING, USING, OR ACCESSING ANY OF ELEOS’ SOFTWARE, SERVICES, AND OTHER PRODUCTS, INCLUDING UPDATES AND UPGRADES THEREOF (COLLECTIVELY “PRODUCTS”). IF YOU DO NOT AGREE WITH THE TERMS OF USE DO NOT ACCESS OR OTHERWISE USE THE PRODUCTS.

LICENSE GRANT FOR SERVICES. As long as You are not in default of these Terms of Service, We grant You the limited, non-transferable, non-sub-licensable, revocable, and non-exclusive right to use our Products, as defined in Paragraph 2, for business purposes and in compliance with this Contract. Additionally, We grant You the right to modify without restriction, any reference code We provide for integration web services (“Reference Code’), to be used solely as an aid to the integration of Your systems with our Products. Other than with respect to the rights to Reference Code expressly granted herein, You shall not have any right or license to modify, reproduce, distribute, or create derivative works of our Products, including, but not limited to software in source or object form. You may not extract, copy, or use the software in connection with any other Product or for use of any other device.
PRODUCTS OWNERSHIP. The term “Products” shall mean (i) Eleos’ mobile apps (“The Apps”), (ii) Eleos’ cloud-based systems (“Platform Services”), including any updates or upgrades for The Apps and Platform Services, and (iii) all intellectual property and material, including, but not limited to, any products, software, materials and methodologies proprietary to Eleos or provided by Eleos and any trade secrets, know-how, methodologies and processes related to Eleos’ products or services.
LIMITS OF LICENSE AND INTELLECTUAL PROPERTY OWNERSHIP. We hereby reserve all right, title, and interest in and to the Products not expressly granted in this Contract. Except as otherwise provided herein, You shall not reverse engineer or otherwise attempt to derive source code from any materials provided by Eleos hereunder. YOU SHALL NOT SELL OR LICENSE THE APPS TO OTHERS.
PROTECTIVE AND SAFETY MEASURES. Products may contain technological measures (including the ability to disable the Products) designed to prevent the illegal usage of software or other violations of this Contract or applicable law. Furthermore, The Apps may include safety measures, such as, but not limited to, in-motion logic safety mechanisms that regulate or disable the use of The Apps while users are driving motor vehicles. You agree and acknowledge that You shall have and shall retain exclusive responsibility for training all of Your users regarding the appropriate and safe use of The Apps, and You shall be exclusively responsible to implement, monitor, and enforce compliance with relevant safety practices, including practices concerning the use of mobile devices while operating a motor vehicle. You agree not to circumvent or attempt to circumvent such protective and safety measures. Furthermore, the Products may require certain installation.
UPDATES AND PATCHES. We shall continuously improve the Products and may, from time to time, cause software updates to be automatically installed to Platform Services and The Apps with or without prior notification to You. However, We will not publish updates to The Apps without Your prior consent unless such updates are required for The Apps to maintain usability and compliance with app store policies. You hereby consent to such automatic updates and agree to use only the updated version once it has been installed.
SECURITY. You are solely responsible for Your failure to keep all user identifications and passwords (Your “Login Credentials”) secure. Login Credentials are specific to an individual user and cannot be shared by more than one individual. If You believe the security of Your Login Credentials has been compromised, or You suspect unauthorized use, You shall promptly notify us. We will be entitled to treat all communications, instructions and transactions as authorized by You, and considered to be Your users, if Your Login Credentials are used unless You have notified us of compromise or unauthorized use of Your Login Credentials. If we suspect, in our reasonable opinion, fraudulent or unauthorized activity on Your account, We reserve the right to terminate or suspend Your access to our website or any applicable services or both and will use reasonable efforts to contact You.
YOUR DATA. We do not own any data in any format that is processed, stored, and transmitted on Your behalf in the Products, including, but not limited to, text data, document images, videos, or photos (collectively, “Your Data”). You retain all responsibility and ownership of Your Data. You shall be solely responsible for any content transmitted in the Products, including the accuracy, integrity, and legality of such content. You agree that You will remain in compliance with all applicable privacy and data protection laws and regulations with respect to any of Your Data uploaded or submitted in the Products and that We are entitled to immediately terminate Your use of the Products upon breach of this compliance. You grant access to Your Data to Eleos’ personnel who will, on occasion, examine Your Data for purposes of quality control and to identify usage patterns that can guide future platform enhancements. As used herein, “Aggregate/Anonymous Data” means: (i) data generated by aggregating Your Data with other data so that results are not identifiable and (ii) anonymous learnings, logs, and data regarding use of the Platform Services. Notwithstanding anything to the contrary herein, You agree that We shall (y) have the right to generate Aggregate/Anonymous Data, and (z) Aggregate/Anonymous Data is our property. You acknowledge and grant Us the perpetual, royalty-free, transferable, irrevocable, and exclusive right to use Your Data in Aggregate/Anonymous Data for any business purpose during or after the term of this Contract (including without limitation to develop and improve our products and services and to create and distribute reports and other materials). We will not distribute Aggregate/Anonymous Data in a manner that personally identifies You or Your employees or independent contractors. We will implement and maintain reasonable technical and organizational security and data storage measures consistent with industry standards for facilities within our control. You acknowledge and agree that data may be stored or transmitted through third party facilities, third party services or common carriers, including without limitation the internet, in the course of using the Products. Eleos maintains a consistent and ongoing practice of keeping Your Data, including all of your confidential and proprietary information, protected. Eleos will not share any of Your Data, including confidential and proprietary information, with Knight-Swift Transportation Holdings Inc. (“Knight-Swift”), or any of its directors, employees, agents or other personnel. Eleos has in place, and complies with, internal security and privacy policies and procedures designed to protect the security, confidentiality, and integrity of the information you share with Eleos and ensure that such information is not shared with Knight-Swift.
COMPLIANCE WITH GOVERNMENT REGULATIONS. You shall comply with all applicable laws and shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. for use of the Products without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any governing country or organization of nations.
FEEDBACK. You understand and agree that any feedback, input, suggestions, recommendations, troubleshooting information or other similar information (the “Feedback”) that You provide or which is made available to Us (whether directly or through a reseller including in the course of utilizing support, maintenance or other services) may be used by Us to modify, enhance, maintain and improve our Products. You acknowledge and agree to assign all such Feedback, royalty-free, worldwide, transferable, irrevocable, perpetual license to Eleos and such Feedback shall become our exclusive property without any obligation or payment to You or to any of Your customers whatsoever.
WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS CONTRACT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ELEOS DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY TERMS, REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT OR QUIET POSSESSION AND THOSE ARISING BY STATUTE OR IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ELEOS CANNOT AND DOES NOT REPRESENT, WARRANT OR COVENANT THAT: (A) ANY OF OUR PRODUCTS WILL MEET YOUR BUSINESS OR OTHER REQUIREMENTS; (B) THE APPS, PLATFORM SERVICES, OR MODULES WILL OPERATE OR BE PROVIDED WITHOUT INTERRUPTION; (C) THE APPS, PLATFORM SERVICES, OR MODULES WILL BE ERROR-FREE, VIRUS-FREE OR THAT THE RESULTS OBTAINED FROM THEIR USE WILL BE ACCURATE, RELIABLE OR CURRENT (D) ANY ERRORS IN THE APPS, PLATFORM SERVICES, OR MODULES CAN BE CORRECTED OR FOUND IN ORDER TO BE CORRECTED. MOREOVER, ELEOS DOES NOT ENDORSE, AND MAKES NO REPRESENTATION, OR WARRANTY WITH RESPECT TO, AND ASSUMES NO RESPONSIBILITY, OBLIGATION OR LIABILITY FOR, ANY NON-ELEOS PRODUCTS, SOFTWARE, DATA OR SERVICES INCLUDING BUT NOT LIMITED TO WIRELESS SERVICES, MAPPING SERVICES, POSTED ROAD SPEED SERVICES, INTERNET BANDWIDTH AND CLOUD STORAGE.
INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS. Subject to the terms and conditions herein, we will indemnify you for money damages for, and will assume the defense of, any claim in a lawsuit that the services provided by us under this Contract infringe any intellectual property rights of any third party but solely to the extent that (i) the alleged infringed patents or other IP is registered in the U.S. and (ii) any such claim is based exclusively upon the services provided by us under this Contract and only to the extent that no additional steps, components, or parts provided by any person other than us are required to directly or indirectly infringe any such intellectual property rights, including, but not limited to, customizations implemented via our Platform Services and (iii) you were using the most current version of the Products at the time of the alleged infringement. Notwithstanding the foregoing, we shall not be required to indemnify you against any willful infringement by you or to any claims of infringement based wholly upon features provided by us as custom software development at your request or direction, and this indemnity provision shall in no way extend to any claim based upon the content or substance of Your Data. The indemnification obligation under this Section 11 will apply only if (a) you promptly notify us in writing of any such claim being filed or threatened, (b) we are given exclusive control of the defense of such claim and any negotiations relating to its settlement, including binding settlement authority, and (c) you assist us with the conduct and defense of the lawsuit as reasonably requested by us. Upon the filing or pendency of any lawsuit contemplated by this provision, we shall have the right to immediately terminate this Contract.
INDEMNIFICATION. You will indemnify, defend, and hold us (and our parent and affiliates) and our suppliers, licensors, service providers, sub-distributors, contractors, and the respective officers, directors, employees and agents (each an indemnified party) harmless from and against any damages, liabilities, costs, losses and expenses (including attorney’s fees) arising out of or in connection with any claim, demand, complaint, or action arising out of or connected to use of the Products under this Contract, by Your and Your users’ acts or omissions, or Your and Your users’ breach of any of Your obligations under this Terms of Service. We will provide notice of such claim and shall retain the right to provide assistance in the defense and authority to elect to defend and settle such claim. Notwithstanding the foregoing sentence, no action by Us shall affect Your obligation to indemnify herein, and We shall be entitled to recover costs and fees (including attorneys’ fees) to enforce our right to indemnity and defense herein.
LIMITATIONS OF LIABILITY. YOU AGREE THAT OUR MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THIS CONTRACT, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT OR CONTRACT, SHALL BE LIMITED TO THE AMOUNT OF USAGE FEES PAID BY YOU WITHIN THE TWELVE MONTHS PRIOR TO THE DATE OF THE CLAIM FOR THE SPECIFIC SERVICES FROM WHICH THE CLAIM AROSE AND IN NO EVENT SHALL WE BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN. HOWEVER, IN NO EVENT WILL THE AMOUNT OF ANY CLAIM EXCEED THE AMOUNT OF AVAILABLE INSURANCE.
TERMINATION. We reserve the right to terminate Your rights of use of the Products at any time if (a) You are in material breach or default with respect to any term or provision in this Contract or Third Party Contract, including a Reseller Contract, and You fail to cure the same within thirty (30) days after written notice thereof, which notice shall specify the breach or default in reasonable detail, (b) you are adjudged bankrupt, file or have filed against you any petition under bankruptcy, insolvency, or similar laws, have a receiver appointed for its business property, or make a general assignment for the benefit of creditors, and such condition is not remedied or removed within thirty (30) days, or (c) a court of final jurisdiction determines that your exercise of your rights hereunder infringes or contravenes any valid and outstanding right or license of a third party based upon a patent or copyright or any similar proprietary rights.
DISPUTE RESOLUTION. Any disputes or claims under this Contract or its breach shall be submitted to the other party, and both parties shall cooperate to resolve the dispute before initiating a law suit.
GOVERNING LAW. This Contract shall be governed by and construed under the laws of the State of South Carolina, without regard to that state’s conflict of laws principles. Each party accepts unconditionally the jurisdiction and venue of the state and federal courts located in Greenville County, South Carolina. This Contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
PARAGRAPH HEADINGS. Form paragraph headings are for reference only and shall not be used or relied upon in the interpretation of this Contract.
ASSIGNMENT. This Contract and any rights granted to You under this Contract may not be transferred or assigned by You, in whole or in part, whether voluntarily, by operation of law, or otherwise, without our prior written consent and any such attempted assignment or transfer shall be null and void, except that You may assign this Contract in its entirety to a purchaser of all or a majority of Your assets or business or in connection with a sale or merger. This Contract will benefit and be binding upon the successors and permitted assigns. This Contract may be assigned by Us in our sole discretion.
SEVERABILITY. If any clause or other provision herein is or becomes illegal, invalid, or unenforceable, such provision will be modified, rewritten, or interpreted to include as much of its nature and scope as will render it enforceable. If such provision cannot be so modified, rewritten, or interpreted to be enforceable in any respect, it will not be given effect, and the remainder of the Contract will be enforced as if such provision were not included.
REMEDIES CUMULATIVE. Except as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.
AMENDMENTS. You agree that We may change the terms of this Contract from time to time. You agree to accept, and You hereby accept, any changes in terms of this Contract, unless the changes impose commercially unreasonable disadvantages on You. If a change imposes commercially unreasonable disadvantages on You and we receive a written objection from you within 30 days of the date when You received notice or You should have noticed the change, we may, at our sole option and discretion, (a) reverse such change with the effect that the immediately prior version of this Contract shall continue to apply to You, or (b) terminate this Contract and Your use of the Products and refund to You any prepaid services fees for time periods after the effective date of the change to which You objected in accordance with this Contract.