WHEREAS TruckRight Data Management Inc. (the ôCompanyö) has developed a software-as-a-service human resource management application branded ôTruckRightö, which may include access to a Drivers Authenticated Data (D.A.D.) feature; and
WHEREAS each individual, company or other legal entity (the “Customer”) that subscribes to access TruckRight remotely over the cloud shall be bound by the terms and conditions of this Agreement:
NOW THEREFORE Company and Customer agree as follows:
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Definitions.
- ôSoftwareö shall mean the human resource management application branded ôTruckRightö, which may include a Drivers Authenticated Data (D.A.D.) module developed by Company, to which the Customer has subscribed under this Agreement by completing the TruckRight Order Form or the D.A.D. Order Form.
- “Services” shall mean the services to be provided by Company to Customer under this Agreement as part of the subscription for use of the Software, which shall include those services ordered by Customer through the TruckRight Order Form or the D.A.D. Order Form, which may include some or all of the following: Remote Access to the Software on the “cloud”; Set-up services; On-site training services; Recruitment training services; Driver Authenticated Data and/or Accessorial services.
- "SAAS” shall mean the software as a service package consisting of both the Software and the Services provided to the Customer in exchange for the Subscription Fee.
- “Subscription Fee” shall mean the monthly fee paid to Company as compensation for access to SAAS as referenced in the TruckRight Order Form or D.A.D. Order Form.
- In consideration for the Subscription Fee, the Company agrees to provide remote access over the cloud to Customer for the Software and Services. This Agreement does not grant Customer a license to receive the Software for installation on Customer’s computer. Customer further acknowledges that at no time shall it be entitled to download, distribute, install or otherwise redistribute the Software in any form not explicitly covered by this Agreement. At no time will Customer hold title to or ownership of any of the object or source code of the Software. The Customer understands that access to SAAS shall end in the event that Customer fails to make any subscription payment as required.
- Length of Service. Upon subscribing to SAAS, Customer agrees to an initial term of twelve (12) months (the “Term”). Thereafter, unless Customer cancels its subscription for SAAS by giving thirty (30) days prior written notice to Company, this Agreement shall automatically renew for successive Terms of one year each.
- Customer acknowledges that the Software is provided as is and cannot be customized or modified in any way. Customer acknowledges that it has reviewed all functions and features included in Software and Services and that the Software and Services meet Customer’s requirements. Customer acknowledges that in order to use the Software effectively Customer will have to populate the Software with its own data, which data will be protected by Company pursuant to the Data Protection Agreement attached hereto as Schedule 1.
- Warranties. Customer acknowledges that SAAS is a service and not a product and that Company makes no warranties or representations of any kind whether expressed or implied for the SAAS it is providing. Company also disclaims any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by Customer including loss of data resulting from delays or service interruptions by any cause. Customer acknowledges that connection speeds may vary depending upon a number of factors such as the time of day and volume of activity accessing the SAAS. Company does not guarantee the speed or availability of end to end connections. Company expressly limits its damages for any inability to access SAAS or other down time to the pro rata monthly charge paid by Customer during such times of system unavailability. Company specifically denies any responsibilities for any damages, direct or indirect, arising as consequence of such unavailability. Company does not represent or guarantee that the SAAS will be free from loss, corruption, attack, viruses, interference, hacking, or other security intrusion, and Company disclaims any liability relating thereto. Any material downloaded or otherwise obtained through the use of SAAS is accessed at the Customer’s own discretion and risk and the Customer will be solely responsible for any damage to the Customer’s device.
- Disputes. This Agreement and any disputes arising hereunder shall be governed by the laws of Ontario. If any dispute arises over the use of SAAS, the parties agree to negotiate a resolution in good faith, failing which any legal proceeding will only be commenced in the Province of Ontario and the courts of Ontario shall have exclusive jurisdiction with respect to the resolution of any such dispute. If any provision of this Agreement is held to be unenforceable the enforceability of the remaining provisions shall in no way be affected or impaired thereby.
- Limitation on Use. The Customer agrees to use SAAS only for the purposes permitted by this Agreement, and only to the extent permitted by any applicable law, regulation or generally accepted practice in the applicable jurisdiction. The Customer agrees that it will not reproduce, copy, duplicate, sell, resell, rent or trade the SAAS (or any part thereof) for any purpose.
- Changing the Service. The Company reserves the right at any time to modify this Agreement and impose new or additional terms or conditions on the Customers use of the SAAS. Such modification and additional terms and conditions will be communicated to the Customer and, if accepted, will be effective immediately and will be incorporated into this Agreement. In the event the Customer refuses to accept the changes, the Company will have the right to terminate this Agreement and the Customer’s account. The Customer agrees that the Company shall not be liable to the Customer or any third party for any modification or cessation of the SAAS. Customer may not assign or transfer this Agreement in whole or in part without the prior written consent of Company. In the event that Customer contemplates whole or partial sale of Customers business, ownership change or change in jurisdiction Customer shall notify Company by mail facsimile or email no less than sixty days prior to the effective date of the event.
- Content. The Customer acknowledges that the Company is not responsible or liable in any way for any Content provided by others and has no duty to pre-screen such Content. However, Company reserves the right at all times to determine whether Content is accurate and in compliance with this Agreement. The Customer is responsible for backing up, to their own computer or other device, any important document, image or other Content that the Customer stored or can access via SAAS. The Company shall use reasonable skill and due care in providing SAAS, but the Company does not guarantee or warrant that any Content stored or accessed through SAAS will not be subject to inadvertent damage, corruption or loss.
- Company’s Proprietary Rights. The Customer acknowledges and agrees that the Company and/or its licensors own all legal right, title and interest in and to the Software, including but not limited to graphics, user interfaces, any scripts or other tools used in connection with the SAAS, including any and all intellectual property rights that exists therein, whether registered or not. The Customer further agrees that SAAS contains proprietary and confidential information that is protected by applicable intellectual property and other laws, including but not limited to copyright. The Customer agrees that it will not use such proprietary information or materials in any way whatsoever except for use of SAAS in compliance with this Agreement.
- License from Company. The use of any part of SAAS, except for the use as permitted in this Agreement, is strictly prohibited and infringes on the intellectual property rights of others and may subject the Customer to civil penalties, including possible monetary damages.
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Termination.
- Termination by the Customer. The Customer may terminate their account and/or stop using SAAS. Any fees paid by the Customer prior to termination may be non-refundable, including any fees paid in advance for the billing year which you terminate. Termination of the Customer’s account shall not relieve the Customer of any obligation to the Company’s proprietary rights.
- Termination by the Company. The Company may at any time, under certain circumstances and without prior notice, immediately terminate or suspend all or a portion of the Customer’s account and/or access to the Service. Cause for such termination shall include: (i) violations of this Agreement or any other policies or guidelines that are posted on SAAS; (ii) a request by the Customer to cancel or terminate the Account; (iii) a request and/or order from law enforcement, a judicial body, or other governmental agency; (iv) where provision of SAAS to it is or may become unlawful; (v) unexpected technical or security issues or problems; (vi) Customer’s participation in fraudulent or illegal activities; (vii) failure to pay any fees owed by the Customer in relation to SAAS. Any such termination or suspension shall be made by the Company in its sole discretion and the Company will not be responsible to the Customer or any third party for any damages that may result or arise out of such termination or suspension of the Customer’s account.
Effects of Termination. Upon termination of the Customer’s Account, the Customer will lose all access to the Service and any portions thereof, including, but not limited to its Account and Content. Any information that has been stored regarding the employees of the Customer in the D.A.D system is subject to the agreement between the Company and the employee.
- Limitation of Liability: The Customer expressly understands and agrees that the Company and its affiliates, subsidiaries, officers, directors, employees, agents, partners, and licensors shall not be liable to the Customer for any direct, indirect, incidental, special, consequential or exemplary damages including but not limited to, damages for loss of profits, goodwill, use, data, cost of procurement of substitute SAAS, or other intangible losses resulting from: (1) the use or inability to use the SAAS; (2) any changes made to the SAAS or any temporary or permanent cessation of the SAAS or any part thereof; (3) the unauthorised access to or alteration of the Customer’s transmission or data; (4) the deletion of, corruption of, or failure to store and or send or receive your transmission or data on or through SAAS; and (5) any other matter relating to SAAS.
Schedule 1: Data Protection Agreement
WHEREAS Company has developed a software as a service application for human resource management branded ôTruckRightö, which may include access to a Drivers Authenticated Data (D.A.D.) feature; and
WHEREAS Customer has obtained a license to access TruckRight remotely over the cloud, pursuant to which Customer may populate TruckRight with Customer data, including the personal information of its drivers and other employees; and
WHEREAS Company and Customer wish to ensure the confidentiality of Customer’s data;
NOW THEREFORE, in consideration of the mutual benefits to be obtained by having Customer access and use TruckRight remotely, the parties agree as follows:
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Definitions
For the purposes of this Agreement,
- “Confidential Information” means any and all personal or other information provided by Customer to the Company to be used in conjunction with TruckRight, in any form or format, including any information expressly marked as confidential by the Customer or any information that, by its nature, a reasonable person would consider to be confidential. Confidential Information includes any copies or duplicates of the information obtained provided by Customer for use with TruckRight.
- “Government Authority” means any government, privacy commissioner, regulatory authority, governmental department, agency, commission, bureau, official, minister, Crown corporation, court, board, tribunal, dispute settlement panel, body, or other law-, rule- or regulation-making entity.
- "Privacy Law” means any applicable privacy law in force in any province or territory in Canada where Customer may reside and includes any amendments thereto and any successor legislation.
- “Secure Destruction” means the act of rendering paper documents or electronic media unreadable and incapable of being accessed in any manner that could make it possible to reconstruct any Confidential Information contained therein, before such documents or media are recycled, discarded or removed from the control of Company.
- "Subcontractor” means an individual or organization engaged to provide services to or on behalf of Company, who may have access to the Customer Confidential Information in the TruckRight database.
- “Transfer” means to transmit, transport or otherwise convey or cause the transmittal, transportation or conveyance of Confidential Information from one location or person to another or to grant access to Confidential Information.
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Use of Confidential Information
- Company’s use of Confidential Information under this Agreement shall be for the sole purpose of providing services to the Customer.
- Company acquires no rights in or to the Confidential Information.
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Disclosure of Confidential Information
- Company shall not disclose Confidential Information to a third party, other than a Subcontractor required for the provision of services to the Customer, without the express, prior, written authorization of the Customer.
- Before Confidential Information is disclosed to a Subcontractor, Company shall ensure that the Subcontractor is bound by a confidentiality agreement that prohibits any and all unauthorized use or disclosure of Confidential Information and that requires compliance with all policies, procedures and measures required to fulfill Company’s obligations under Section 5 of this Agreement.
- If an individual contacts Company to lodge a privacy complaint or submit a request for access to Confidential Information, Company shall immediately notify the Customer. Conversely, if an individual contacts the Customer to lodge a privacy complaint or submit a request for access to any Confidential Information contained in TruckRight, the Customer shall immediately notify Company. The parties shall follow any and all privacy and access complaint processes and procedures as may be agreed upon by them.
- If Company receives a request for Confidential Information for a purpose not authorized under an agreement between the Customer and Company, or if Company becomes aware that it may be required by law to disclose Confidential Information, Company shall immediately notify the Customer about the request or requirement and shall not disclose the Confidential Information unless otherwise directed to do so in writing by the Customer unless required by law.
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Compliance and security
- Company shall manage any and all personal information received from the Customer in accordance with the provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA)).
Company shall also ensure that any and all Subcontractors comply with the provisions of PIPEDA and MFIPPA.
- Company shall maintain appropriate physical, procedural, technical and general security measures to protect Confidential Information against loss, theft, accidental or unlawful modification or destruction, or unauthorized use, disclosure or access.
- If Company becomes aware of a security or privacy incident that may lead to unauthorized Confidential Information access, use or disclosure, it shall provide the Customer as soon as possible with a report of all the details known at the time. Company shall then provide the Customer with updates as additional details become known.
- If a security or privacy incident as set out in Article 4.3 occurs, Company shall cooperate in any and all investigations by a governmental authority or the Customer. Company shall work with the Customer in advance to coordinate any statement, submission, reply or disclosure required by a Governmental Authority.
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Indemnification and limitation of liability
- Provided Company has used reasonable commercial efforts to maintain the confidentiality of the Confidential Information, Company shall not be held responsible by Customer for any breach of this Agreement and Customer agrees to indemnify, defend and hold Company harmless against any third-party claim for damages, losses or expenses incurred as a result of disclosure of any Confidential Information.
- The provisions of Article 5 shall survive the termination of this Agreement.
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Term and termination
- This Agreement may be executed by the parties in one or more copies, including by facsimile transmission, each of which shall be considered one and the same agreement, and shall become effective when one or more copies have been signed by each party and delivered to the other party.
- This Agreement shall commence on the date that it is signed by both parties and shall terminate in the event that Customer has discontinued its use of the TruckRight application either voluntarily or by failure to pay the monthly fees associated therewith. Termination does not release a party from any obligations accrued while this Agreement was in force.
- Any party may, for any reason, terminate this Agreement by providing sixty (60) days’ written notice to the other party of its intention to terminate this Agreement.
- Not withstanding Article 6.3, the Customer may terminate this Agreement without notice if the Customer determines that Company or any Subcontractor has failed to comply with the terms and conditions of this Agreement.
- Upon termination, Company shall Secure Destruction of any Customer Confidential Information in its possession within 3 months of the termination date.
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General
- This Agreement shall be governed by and interpreted in accordance with the laws of Ontario and the laws of Canada, without regard to the principles of conflicts of laws in those jurisdictions.
- The invalidity or unenforceability of one or more provisions of this Agreement shall not affect any other provision of this Agreement.
- This Agreement is for the benefit of, and shall be binding upon, the parties and their respective successors and assigns.
- Customer has accepted this Agreement by its duly authorized representative and Customer has taken all necessary actions required by its corporate governance to commit to this Agreement.
- This Agreement may be amended only by a written document duly executed by both parties.
- Each party shall appoint an individual to receive notifications and communications with respect to the operation of this Agreement and shall provide the other Party with all relevant contact information in writing for that individual. All notifications and communications provided for in this Agreement shall be made in writing and delivered by mail, facsimile or electronic mail.
Appendix A: Driver/Employee Data to be transferred regularly to TruckRight by the Customer through automated process
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Driver/Employee — mandatory
- First, middle and last names
- Gender
- Date of birth
- OEN (Ontario education number)
- Address: unit number, street number, street name, PO box, city or town, province, postal code
- Home telephone number
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Driver/Employee — optional
- Work telephone number
- Mobile telephone number
- Email address
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Emergency contact information — optional
- Contact 1: title and first, middle and last names, home telephone number, mobile telephone number, work telephone number (including extension)
- Contact 2: (same fields as Contact 1)