End User License agreement for Software PROVIDED BY YUISHIN FLEET MANAGEMENT SERVICES cc
IMPORTANT - PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. IT CONTAINS RESTRICTIONS ON YOUR USE OF THE YIUSHIN FLEET MANAGEMENT SERVICES, DISCLAIMERS, LIMITATIONS OF LIABILITY, GOVERNING LAW AND OTHER IMPORTANT TERMS. IF YOU DO NOT READ THIS AGREEMENT BUT YOU STILL INSTALL OR USE THE YUISHIN FLEET MANAGEMNT SOFTWARE AND SERVICES, THIS AGREEMENT WILL STILL BIND YOU.
This Software License Agreement is a legal agreement between you or the entity that you are authorised to represent ('You' or 'Your') and YUISHIN FLEET MANAGEMENTcc (YFM) Services (as defined herein). You acknowledge and accept the terms and conditions of this Agreement by using the software in your business on your internal or individual computer systems as agreed with YFM.
This Agreement applies to the following YFM Services:
FleettraK
SalestraK
StarfisH
Fleetlog
Any and all YFM services provided by YFM
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YFM reserves the right to change the terms and conditions of this Agreement at any time, effective upon making the modified provisions available on the YFM Fleetcube.com website you use to access the YFM Services (the 'Site') or by updating the existing license on the software that You are using. You are responsible for regularly reviewing these terms and conditions. Continued use of the YFM Services after any such changes shall constitute Your consent to such changes. YFM does not and will not assume any obligation to notify You of any changes to this Agreement.
1. GRANT OF LICENSE.
YFM provides the services and online documentation (FAQ's, bulletins, and online Help) located within the YFM services and any modifications, updates, revisions, or enhancements received by You from YFM (the 'YFM Services') and licenses its use under the terms contained herein and subject to the license restrictions herein.
You are granted a non-transferable, non-exclusive license to use the YFM Services under the terms stated in this Agreement for use within Your Company. The grant of rights hereunder to the YFM Services is not a sale of the YFM Services or any portion thereof and does not convey any rights or ownership in the YFM Services. YFM reserves all rights not expressly granted by this Agreement and You hereby acknowledge that all title and ownership of the YFM Services and all associated intellectual property rights are and shall remain with YFM.
YFM does not claim ownership of the materials You provide to YFM or that You post, upload, input or submit (the 'Data') when using the software. The data and material that you and/or your company post, input or submit shall belong to your company and you and your company take full responsibility for the integrity of the data and hold YFM harmless from all claims related to data.
2. LICENSE RESTRICTIONS.
a. You may not sell, distribute, lease, rent, sublicense, modify, alter or transfer the YFM Services, the software or this license. You may not sell, distribute, lease, rent, sublicense or otherwise offer access to or use of, the YFM Services via the Internet or via any other network that is accessible by third parties. You may not reverse-engineer, reverse-translate, disassemble or decompile the YFM Services or any portion thereof, or otherwise attempt to discover the source code or structural framework of the YFM Services.
b. YFM reserves all rights not expressly granted to You in this Agreement.
3. FEES; PAYMENT TERMS.
Your use of the YFM Services will require certain specified fees to be paid. All fees will be specified in a separate agreement, which will be signed by You as acceptance of the fees payable to YFM.
a. You are responsible for all expenses and charges associated with accessing the Internet and connecting to the Site, any service fees associated with such access and connection, and for providing all equipment necessary for You to make such connection, including, without limitation, computer and modem.
c. You agree to provide YFM with accurate, current and complete information required by registration for the YFM Services, including, without limitation, Your legal name, address, telephone number's, e-mail address, and to maintain and update this information to keep it accurate, current and complete. Failure to provide and maintain accurate, current and complete information may, at YFM's option, result in immediate suspension or termination of Your right to use the YFM Services.
4. PASSWORD.
As part of the registration process for the YFM Services, You will be required to select certain passwords. You are solely responsible for maintaining the confidentiality of any passwords You use to access the YFM Services, and agree that YFM will have no obligations with regard to the use by third parties of such password. You are entirely responsible for any and all activities that occur under Your account and passwords. You agree to notify YFM immediately if You have any reason to believe that the security of Your account has been compromised.
5. SECURITY.
YFM agrees to exercise reasonable care to prevent any unauthorised access to Your data. Each party hereto agrees to notify the other promptly of any unauthorised access to or use of the YFM Services or Your data. Each party agrees to use all reasonable efforts to take remedial measures to rectify any such unauthorised access. YFM shall not be liable for any damages incurred by You in connection with any unauthorised access to or disclosure of Your data resulting from actions of You, any third party or from the failure of electronic or other security measures.
6. CONFIDENTIALITY.
The YFM Services constitute the confidential and trade secret information of YFM. You agree that You will use the YFM Services solely as permitted under this Agreement and the exercise of Your rights hereunder and shall not disclose or permit any unauthorised access to the YFM Services.
You shall take reasonable precautions, at least as great as the precautions You take to protect Your own confidential information, to maintain the YFM Services in strict confidence.
The foregoing obligations shall survive (a) as to the YFM Services materials that constitute a trade secret, for so long as such information remains a trade secret under applicable law; and (b) for all other YFM Services materials, for a period of five (5) years from the date of termination or expiration of this Agreement.
You shall indemnify and hold harmless YFM and its affiliates, directors, officers, employees, agents, successors and assigns, against any and all claims, expenses, judgements, liabilities, damages or losses, including reasonable legal fees and expenses, and, at YFM's option, shall defend all actions and proceedings, at Your sole expense, arising from Your breach of this Section.
YFM may be irreparably damaged if the obligations under this Section are not specifically enforced and YFM may not have an adequate remedy at law in the event of an actual or threatened violation by You of Your obligations under this Section. You agree, therefore, that YFM shall be entitled, in addition to other available remedies, to seek an injunction restraining any actual, threatened or further breaches of Your obligations under this Section or any other appropriate equitable order or decree.
7. MODIFICATIONS TO YFM SERVICES.
YFM reserves the right to modify the YFM Services or any portion thereof at any time, including the availability of any functional area of the YFM Services. YFM may also impose limits on certain features and services or restrict Your access to parts of the YFM Services without notice or liability.
8. SERVER AVAILABILITY AND SCHEDULED DOWN TIMES.
Should YFM need to perform maintenance on the hardware needed to access the YFM Services, YFM will attempt to do so during the hours of 12:01-2:00 am South African Time Monday through Friday.
In the event a mission critical maintenance situation arises, YFM may be required to perform emergency maintenance at any time. During these scheduled and emergency maintenance periods, You may be unable to transmit and receive data. You agree to co-operate with YFM during the scheduled and emergency maintenance periods.
In addition, YFM partners with industry leading Internet data centres to provide the maximum bandwidth and performance levels for the YFM Services. However, the true performance and speed of Internet access depends on many factors that are outside of YFM's control.
YFM does not give any warranties or undertakings as to the availability, performance or quality of the YFM Services in this regard.
9. WARRANTY.
YFM does not provide a warranty of any kind related to usage of the software or YFM services. By using the service, you take full responsibility.
10. DISCLAIMER OF WARRANTIES.
YFM DOES NOT WARRANT THAT THIS SOFTWARE IS FREE OF BUGS, IMPERFECTIONS, ERRORS OR OMISSIONS. YFM SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (a) OF MERCHANTABILITY; (b) FITNESS FOR A PARTICULAR PURPOSE; (c) OF NON-INFRINGEMENT; (d) ACCURACY OR COMPLETENESS; OR (e) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
YFM SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES CAUSED BY THE OPERATION OF THE SERVICE, ACTS OF ABUSE OR MISUSE, MODIFICATION OR UNAUTHORIZED REPAIRS, WHETHER BY YOU, YOUR AGENTS OR THIRD PARTIES.
YFM SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE IN CONNECTION WITH OR ARISING OUT OF THE INTERRUPTION OR LOSS OF USE OF THE PROGRAM OR ANY OTHER ITEMS OR SERVICES PROVIDED BY YFM.
11. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW, YFM AND ITS AGENTS' LIABILITY TO YOU FOR ANY DAMAGES OR LOSSES ARISING HEREUNDER, WHETHER BASED IN CONTRACT, TORT, DELICT OR OTHERWISE, SHALL BE LIMITED TO AND NOT EXCEED THE AMOUNT OF THE LICENSE FEES PAID BY YOU TO YFM FOR THE USE OF THE SOFTWARE AND YFM SERVICES.
TO THE FULLEST EXTENT PERMITTED BY LAW, YFM SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, SAVINGS, REVENUE OR DATA, EVEN IF YFM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
12. INDEMNIFICATION.
You agree to indemnify and hold harmless YFM and its affiliates, employees, agents, licensors, successors and assigns from all damages and liability, including reasonable attorneys' fees, incurred by: (a) Your violation of Your obligations under this Agreement, (b) the negligence or wilful acts of You, or (c) the violation by You of YFM's or any third party's rights, including, but not limited to, privacy rights, other property rights, trade secret, proprietary information, trademark, copyright or patent rights and claims for libel and slander or unfair trade practices in connection with the use or operation of the YFM Services. Your obligation to indemnify shall survive the expiration or termination of this Agreement by either party for any reason.
13. TERMINATION.
a. YFM may cancel or terminate this Agreement at any time: (i) by providing You with thirty (30) days notice of such action; (ii) for Your material breach of any of the terms and conditions set forth herein: (iii) if:
(w) There is a regulatory or statutory change limiting YFM's ability to provide the YFM Services;
(x) Any event occurs, which is beyond the reasonable control of YFM or a third party infrastructure provider which YFM relies upon to provide the YFM Services, that prevents YFM from continuing the YFM Services;
(y) You have, or YFM has a well founded belief that You have, ceased to trade, have become insolvent, have entered into bankruptcy, are unable to pay Your debts.
b. You may cancel or terminate this Agreement at any time by following the agreed cancellation procedures detailed by YFM. If You choose to cancel using this service, You should be aware that cancellation of any YFM Service will result in the cancellation of all users that are accessing the YFM Service within Your organisation. In addition, cancellation of any YFM Service authorises YFM to destroy all data entered through the use of the service.
c. The following obligations will survive termination of this Agreement: (a) indemnification; (b) obligations to make payments of amounts that become due under this Agreement before termination; and (c) any other provision herein where the context of such provision indicates an intent that it shall survive the termination of this Agreement.
14. DATA BACKUP AND ESCROW.
YFM will not produce regular backups of Your data. This is your own responsibility within your corporate organisation.
15. RECOMMENDED ENVIRONMENT
These YFM Services have been designed to work optimally in the environment documented within the system requirements. Any defects, inconsistencies, or issues arising out of operating outside the parameters set forth therein may require You to pay additional maintenance/upgrade costs to YFM to support and/or rectify.
16. MISCELLANEOUS.
a. This Agreement constitutes the entire agreement between YFM and You, and expressly supersedes any prior or contemporaneous written or oral agreements between the parties regarding the subject matter hereof, including without limitation any unilateral offer, purchase order or other similar instrument in writing. This Agreement may not be amended, altered or changed except by a written agreement signed by both parties.
b. In the event that any court having jurisdiction shall determine that any provision contained in this Agreement is unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect.
c. Your rights in this Agreement are personal and are not assignable. YFM may assign its rights and obligations under this Agreement to third parties.
d. This Agreement will be governed by and construed in accordance with the laws of South Africa excluding (i) its principles of conflict laws; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; (iv) the Protocol amending the 1874 Convention, done at Vienna April 11, 1980; and (v) the Uniform Computer Information Transactions Act (UCITA).
To the fullest extent permitted by law and consistent with valid entry into a binding agreement, the controlling language of this Agreement is English and any translation you have received has been provided solely for your convenience. In the event You have entered into this Agreement by means of a translated version of this Agreement in a language other than English, You may request an English language version of this Agreement by notice to YFM. To the fullest extent permitted by law, all correspondence and communication between You and YFM under this Agreement must be in the English language.
e. With regard to other African countries, the parties declare that they have required that this Agreement and all documents related hereto, either present or future, be drawn up in the English language only.
f. European Union. To the fullest extent permitted by law, if You are located in a member state of the European Union, You hereby waive all notices, acknowledgements or receipt and confirmations relative to contracting by electronic means which may be required under Articles 10(1), 10(2), 11(1) and 11(2) of EU Directive 2003/31/EC as implemented in Your jurisdiction in respect of this Agreement and Your use of the Service.
g. The parties agree that any claim, controversy or dispute arising out of or relating to this Agreement shall be settled by final and binding arbitration to be conducted by an arbitration tribunal in Johannesburg South Africa in accordance with the commercial arbitration rules of South Africa, and the decision of the arbitrator's) shall be binding; provided that YFM may bring or defend an action: (i) involving allegations of personal injury to a third party; or (ii) for injunctive or other equitable or extraordinary relief, in a court of law.
h. The remedies provided in this Agreement and otherwise at law or in equity are cumulative and not exclusive. The failure by either party to exercise any right or remedy under this Agreement or otherwise available at law or in equity will not be deemed a waiver of any subsequent right or remedy.
i. No person or entity who is not a party to this Agreement shall derive any rights whatsoever hereunder as a third party beneficiary of this Agreement.
17. ACCEPTANCE.
You acknowledge that You have read the terms and conditions of this Agreement and hereby agree to be bound by the terms hereof. Your acknowledgement of this Agreement will also serves as acknowledgement and agreement to be bound by the terms enumerated in Section 3 (Fees and Charges) of this Agreement regarding Fees, such Fees having been made known and agreed upon prior to the acceptance of this Agreement. This Agreement will continue to be effective upon Your acceptance by electronic acknowledgement of the YFM Services on the software being used or provided on the YFM website – www.fleetcube.com. Each time You log into the YFM Services or use the software, You are reaffirming continued acceptance of this Agreement and the Fees.