REGISTRATION OF AUTHORIZED USERS
ACCOUNT PASSWORD AND SECURITY
Your Authorized Users will be issued a user name and password to access the website and use the Software. Your Authorized Users are solely responsible for the confidentiality of their user name and password. In the event of any known or suspected unauthorized use of their user name or password, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of their user name or password, immediately notify ProDriverHR. In the event of a breach of security, they will remain liable for any unauthorized use of their user name and password until they or you notify ProDriverHR of such breach of security.
SUSPENSION OF SERVICES
ProDriverHR may, at any time, without notice to you, suspend or terminate your Authorized Users access to the Software if, in ProDriverHR’s sole discretion, you or your Authorized Users fail to comply with any material term or provision hereof or if ProDriverHR believes that you or your Authorized Users, by your or their conduct, have violated any applicable law or are acting contrary to the interests of ProDriverHR.
You understand that the electronic processing and transmission of electronic communications is fundamentally necessary to use of the Software. DSL, cable, wireless or another high speed Internet connection is required for proper use of the Software. Your Authorized Users are solely responsible, at their own expense, for acquiring, installing, maintaining, and updating all connectivity equipment, hardware, software, and other equipment as may be necessary for Authorized Users to connect to, access, and use the Website and Software as permitted by this Agreement. You acknowledge and understand that transmission to the Website involves transmission over the Internet, and over various telecommunications networks, which are not under the control of ProDriverHR and that such transmissions may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. ProDriverHR assumes no responsibility for the reliability or performance of any Authorized User's Internet connections to the Software and/or Website. ProDriverHR is not responsible for any electronic communications, Customer Data or either of them that are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across telecommunications networks, including, but not limited to, the Internet.
DISCLAIMER OF WARRANTIES
THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. PRODRIVERHR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE AND THE SERVICES;
PRODRIVERHR DOES NOT WARRANT THAT THE FUNCTIONALITY OF THE WEBSITE, THE SOFTWARE OR THE PERFORMANCE OF ANY SERVICES IS FIT FOR ANY PARTICULAR PURPOSE OR THAT THE OPERATION OF THE WEBSITE, THE SOFTWARE OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR ACCURATE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE, THE SOFTWARE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS;
PRODRIVERHR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE, THE SOFTWARE, THE SERVICES OR ANY CUSTOMER DATA IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, SECURITY, TIMELINESS, SEQUENCE, AUTHENTICITY OR COMPLETENESS OR OTHERWISE AND DISCLAIMS ANY RESPONSIBILITY THEREFORE; AND
PRODRIVERHR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE EFFECTIVENESS OF THE CONTENT PRESENTED THROUGH THE WEBSITE OR THE SOFTWARE OR THAT THE USE OF THE WEBSITE OR THE SOFTWARE WILL RESULT IN AUTHORIZED USERS’ SAFE OPERATION OF THEIR VEHICLES.
LIMITATION OF LIABILITY
The Software accessed at alert.prodriverhr.com and alertdriving.com/pulsedriving is owned by Sonic E-Learning Inc. and is provided under license to ProDriverHR Inc. The Software accessed at select.prodriverhr.com is owned by Trajectory IQ and the content thereof is proprietary to ProDriverHR Inc. and Prevue Inc. The Software accessed at teendriverblueprint.com and courses.coachingnewdrivers.com is owned by ProDriverHR and the content is provided under license from DriveSafeRideSafe Inc. The structure, organization and code of the Software are valuable trade secrets of the respective owners as herein stated. Canadian and U.S. copyright law and international treaty provisions also protect the Software. DriverFit, Pulse Driving and Driver Blueprint are licensed trademarks of ProDriverHR Inc. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademarks owners’ names. Trademarks can only be used to identify printouts produced by the Software and such use does not give you any rights of ownership in such trademarks. These Master Terms and Conditions do not grant to you any intellectual property rights in and to the Software or any part thereof and provides only the Master Terms and Conditions under which your Authorized Users are licensed to use the Software. These Master Terms and Conditions are not an agreement for the sale of the Software to you.
You acknowledge and agree that all right, title and interest, (including all Intellectual Property Rights), in and to the Software, the Documentation, the Website, (including the Look and Feel of the Website), the Domain Names and all Custom Modules, including, without limitation, all Intellectual Property Rights in any ideas, concepts, designs, inventions, and expressions embodied in such materials, will be at all times be vested in and remain the property of the owners of the Software. No title or ownership rights whatsoever are transferred to you in respect of the Software, Documentation, Website (or its Look and Feel), the Domain Names, or any Custom Modules. ProDriverHR Inc. and the owners of each Software hereby reserve all rights not expressly granted in this Agreement.
ProDriverHR acknowledges and agrees that all right, title and interest, (including all Intellectual Property Rights), in and to all your data, will at all times be vested in and remain the property of you, as applicable. No title or ownership rights whatsoever are transferred to ProDriverHR in respect of your data. You grant to ProDriverHR a royalty- free, non-exclusive, worldwide, transferable license to use your data supplied to ProDriverHR, and all derivatives of such data, for the purposes of ProDriverHR providing access to and use of the Software to your Authorized Users.
Throughout the Confidentiality Period, neither party shall disclose the other party’s Confidential Information or the terms and conditions of this Agreement to any third parties except to: (i) such party’s employees, agents, representatives, accountants, attorneys, and financial advisors with a “need to know” and subject to the reasonable confidentiality restrictions; or (ii) as otherwise required by law. Confidential Information disclosed in tangible or electronic form may be identified as confidential with conspicuous markings, or otherwise identified with a legend as being confidential, but in no event shall the absence of such a mark or legend preclude disclosed information which would be considered proprietary or confidential by a party exercising reasonable business judgment from being treated as Confidential Information.
Throughout the Confidentiality Period each party shall use the same care to prevent disclosing to third parties the Confidential Information of the other party as it employs to avoid disclosure, publication, or dissemination of its own Confidential Information, but in no event less than a reasonable standard of care. Except as contemplated by this Agreement, throughout the Confidentiality Period neither party shall make any use of the other party’s Confidential Information (except as required to perform its obligations under this Agreement) or refuse to promptly return, provide a copy of, or destroy the other party’s Confidential Information upon request of the other party. To the extent that Customer requires the return of any Confidential Information of Customer that is essential to the performance of ProDriverHR’s obligations under this Agreement, ProDriverHR shall be relieved of such obligations. The Recipient shall immediately notify the Discloser upon gaining knowledge of any disclosure, loss, or use of the Discloser’s Confidential Information in violation of this Agreement.
Each party acknowledges that its disclosure of the Discloser’s Confidential Information may cause irreparable harm to the Discloser which cannot be sufficiently compensated by monetary damages and that the Discloser shall be entitled, without waiving any other rights or remedies, to seek such injunctive or equitable relief as is deemed just by a court of competent jurisdiction.
Neither party may use the other party’s name in advertisements or press releases, nor otherwise disclose the content of this Agreement without the other’s prior written consent. The obligations stated in this section shall survive the expiration or termination of this Agreement.
To the maximum extent permitted by applicable law, you will defend, indemnify and hold ProDriverHR harmless from and against any and all claims, damages, losses, liabilities, costs and expenses of any kind, including all legal fees and costs, arising out of (i) your breach of any provision of these Master Terms and Conditions, and/or (ii) your Authorized Users use of the Software. ProDriverHR reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any action, claim or matter otherwise subject to indemnification by you. You will co-operate as fully as reasonably required in the defense of any claim.
TERM AND TERMINATION
Unless terminated sooner in accordance with the provisions of this Agreement, the Term of this Agreement shall commence on the Effective Date and shall terminate upon 60 days prior written notice from one party to the other of their intent to terminate the Agreement.
This Agreement may be terminated by either party on thirty (30) days prior written notice if the other party is in default of any of its material obligations under this Agreement and such default is not remedied to the satisfaction of the other party within such thirty (30) day period.
This Agreement may be terminated by either party immediately upon written notice to the other if the other party: becomes or is declared bankrupt/ becomes the subject of any proceeding related to its liquidation or insolvency which is not dismissed within ninety (90) days; makes an assignment for the benefit of creditors; suffers or permits the appointment of a receiver for its business and assets; ceases to do business; or voluntarily or involuntarily dissolves or liquidates its business; and as a result is unable to perform its obligations hereunder.
All warranty disclaimers, limitations on liability, and proprietary rights shall survive termination of this Agreement and you agree to remain bound by those provisions that survive termination.
FORCE MAJEURE EVENTS
Neither party shall be held responsible for any delay or failure in performance under this Agreement (except for the payment of any Fees by you) to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, inability to obtain delivery of parts, supplies, labor conditions, earthquakes or any other cause beyond its control and without the fault or negligence of the delayed or nonperforming party.
The failure of either party to enforce at any time or for any period of time, the provisions of this Agreement shall not be interpreted to be a waiver of such provisions or of the right of such party to enforce each and every such provision. In the event that any provision of this Agreement shall be held by law, or found by a court or other tribunal of competent jurisdiction to be unenforceable as stated herein, such provision shall remain enforceable to the extent permitted by applicable law or the findings of the court or other tribunal of competent jurisdiction, and the remaining portions hereof shall remain in full force and effect.
The parties hereto are independent contractors. Nothing contained herein or done in pursuance of this Agreement shall constitute either party the agent, partner, or co- venturor of the other party for any purpose or in any sense whatsoever, or create any form of joint enterprise whatsoever between the parties.
All notices, consents, approvals, statements, authorizations, documents or other communications (collectively "notices") required or permitted to be given hereunder shall be in writing, and shall be delivered by fax, personally or mailed by registered mail, postage pre-paid, to the said parties at the respective addresses set forth hereunder, namely: to ProDriverHR at: Suite 110, 190 Carleton Drive, St. Albert, Alberta, Canada T8N 6W2 Attention: President, Fax: (888) 622-7630 and to Customer at the address indicated on the Business Terms or at any such other address or addresses as may be given by either of them to the other in writing from time to time. Such notices, if mailed, shall be deemed to have been given on the second (2nd) Business Day following such mailing, or, if delivered by fax or personally, shall be deemed to have been given on the day of delivery, if a Business Day, or if not a Business Day, on the Business Day next following the day of delivery; provided that if such notice shall have been mailed and if regular mail service shall be interrupted by strike or other irregularity before the deemed receipt of such notice as aforesaid, then such notice shall not be effective unless delivered.
You may not assign, transfer, sub-contract or in any other manner assign to any third party the rights and/or duties of this Agreement (whether by assignment, change of control, operation of law or otherwise), except to an Affiliate of yours whom ProDriverHR, in its discretion, determines is financially sound and who has agreed in writing with ProDriverHR to be bound by all of the provisions of this Agreement, without the prior written consent of ProDriverHR, which shall not be unreasonably withheld, and any such assignment, transfer or sub-contract shall be void and of no force or effect. ProDriverHR may assign, transfer, sub-contract any of its rights or obligations under this Agreement.
The headings used in this Agreement and its division into articles, sections, schedules, and other subdivisions do not affect its interpretation. References in this Agreement to articles, sections, schedules, and other subdivisions are to those parts of this Agreement. The parties agree that any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting party will not apply in interpreting this Agreement.
Disputes arising out of or relating to this Agreement shall be governed by and interpreted in accordance with the laws of the Province of Alberta, and the parties irrevocably and unconditionally consent to the jurisdiction of such courts. In the event of any dispute arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable legal fees and costs.
These Master Terms and Conditions set forth ProDriverHR’s entire liability and your exclusive remedy with respect to your purchase of Subscriptions for, and your Authorized Users use of, the Software. You acknowledge that these Master Terms and Conditions are a complete statement of the agreement between you and ProDriverHR and that there are no other prior or contemporaneous understandings, promises, representations or descriptions regarding the Software. These Master Terms and Conditions do not limit any rights that ProDriverHR may have under trade secret, copyright, patent, trademark or other laws. ProDriverHR’s representatives are not authorized to make modifications to these Master Terms and Conditions or to make any additional representations, commitments, or warranties binding on ProDriverHR other than in writing signed by an officer of ProDriverHR. Accordingly, such additional statements are not binding on ProDriverHR and you should not rely upon such statements. If any provision of these Master Terms and Conditions is invalid or unenforceable under applicable law then it is to that extent deemed admitted and the remaining provisions will continue in full force and effect.
"Affiliate" as to any Person means any other Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. The term "control" (including, with correlative meanings, the terms "controlled by" and "under common control with" as used with respect to any Person) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person whether through ownership of voting securities, by contract or otherwise.
"Billing Information" means the data that ProDriverHR receives and generates concerning the Software, the number of Licenses issued to Authorized Users and charges for all other Services provided by ProDriverHR to Customer.
"Business Confidential Information" means Confidential Information excluding any Customer Data or other Personal Data contained therein.
"Business Day" means a day other than: a Saturday, a Sunday, or any other day on which the principal chartered banks located in Toronto, Ontario are not open for business.
"Business Terms" means the particulars of the business deal agreed between ProDriverHR and Customer from time to time for the purchase by Customer of Licenses and Services from ProDriverHR, including, without limitation, the following: number of Licenses to be purchased, the type(s) of Services purchased, pricing, payment terms, Territory and address notice/contact person(s) of Customer.
"Confidential Information" means any business or technical information relating to either party, including, but not limited to equipment, software, designs, technology, technical documentation, product or service specifications or strategies, marketing plans, pricing information, financial information, inventions, applications, methodologies and other know-how, and from time to time which is disclosed by a party (the "Discloser") in tangible form, electronic form, oral form, or visual form to the other party (the "Recipient"). The Software, Documentation, all Billing Information and the terms and conditions of this Agreement form part of the Confidential Information of ProDriverHR. Customer Data form part of the Confidential Information of Customers, as applicable. Confidential Information does not include any information that the Recipient can demonstrate: (i) was in the public domain at the time of disclosure to it; (ii) was published or otherwise became a part of the public domain, after disclosure to the Recipient, through no fault of its own; (iii) was in the possession of the Recipient at the time of disclosure to it from a third party who had a lawful right to such information and disclosed such information to it, without a breach of duty owed to the Discloser; or (iv) was independently developed by the Recipient without reference to Confidential Information of the Discloser.
"Confidentiality Period" means the Term of this Agreement and the period of three (3) years immediately thereafter.
"Customer" means any person who has purchased a license to use the Software and access the Website.
"Customer Data" means all data provided by Customer and their Authorized Users to ProDriverHR (including all Personal Data), and all data generated from the use of the Software by Authorized Users of Customer.
"Data Protection Legislation" includes: the Personal Data Protection and Electronic Documents Act (Canada) and all Canadian provincial legislation for which the Governor in Council (Canada) has granted an exemption order on the basis that such provincial legislation is substantially similar thereto; the Fair Credit Reporting Act (U.S.); and any other privacy laws of general application in the Territory that are applicable to the Services, including laws applicable to the processing of any end-user Customer Data, as amended from time to time.
"Data Subject" means an individual natural Person to whom Personal Data relates.
"Documentation" means such user guides, release notes and/or training manuals concerning the Software in printed or electronic format, which ProDriverHR may make available for use with the Software.
"Domain Name" means all domain names through which the Software may be accessed.
"Fees" means the License Fees and all other amounts payable by Customer to ProDriverHR as set out in the Business Terms.
"Intellectual Property Right" means any and all rights, in any jurisdiction, provided under: (a) patent law; (b) copyright law (including moral rights); (c) trademark law (including laws governing trademarks, trade names and logos); (d) design patent or industrial design law; (e) semi-conductor chip or mask work law; or (f) any other statutory provision (including laws governing domain names) or common law principle (including trade secret law and law relating to information of the same or similar nature and protected in the same or similar way) governing intellectual property, whether registered or unregistered, and including rights in any and all applications and registrations in respect of the foregoing.
"License Fee" means the fee payable to ProDriverHR for each Subscription Key and/or Subscription purchased under this Agreement.
"License Key" means the alphanumeric string of characters or other duly assigned username issued by ProDriverHR that permits an Authorized User to access and use specific components and modules of the Software.
"Look and Feel" means the distinctive and particular elements of graphics, design, organization, presentation, layout, user interface, navigation, trade dress and stylistic convention (including the digital implementations thereof) within the Website and the overall appearance and impression substantially formed by the combination, coordination and interaction of such elements.
"Person" means any individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, joint venture, body corporate, a government or any department or agency thereof, and a natural person in such person's capacity as trustee, executor, administrator or other legal representative.
"Personal Data" means any information relating to an identified or identifiable natural Person.
"Services" means all services rendered by ProDriverHR to Customer under this Agreement.
"Software" means the Training or Evaluation Software as updated and revised from time to time.
"Statement of Work" means a separate document, executed by ProDriverHR and Customer that outlines specific deliverables to be created by ProDriverHR for Customer, and the associated fees and timelines for delivery.
“Subscription Key” means an alphanumeric string of characters or other duly assigned username issued by ProDriverHR to allow Authorized Users to self-register and gain access to a License Key to access and use the Software.
"Term" means the Initial Term and all Extension Terms.
"Training Module" means each discrete lesson forming part of the Training Software.
"User ID" means an Authorized User's valid email address provided to ProDriverHR for registration and administration purposes.
"Website" means the collection of computer files on the Internet located at any of the URLs listed herein and all underlying websites maintained for ProDriverHR and/or its Licensors, Affiliates or Developers hereunder as updated and revised from time to time.