SmartAdmin

END USER LICENSE AGREEMENT

BY CLICKING THE ACCEPT BUTTON OR OBTAINING AND INSTALLING A CELLCONTROL DEVICE FROM OBDEDGE, LLC, YOU AGREE to the terms of THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST CLICK THE BUTTON THAT INDICATES THAT YOU DO NOT ACCEPT THE TERMS AND YOU MAY NOT OBTAIN AN ACCOUNT OR INSTALL THE CELLCONTROL DEVICE OR SOFTWARE.

Agreement Terms

This Agreement includes the attached terms and conditions and contains, among other things, warranty disclaimers, liability and use limitations. Any different or additional terms and conditions of any related purchase order, confirmation or similar form, even if signed by the parties after the date hereof will not modify the terms of this Agreement unless specifically drafted as an Amendment to this Agreement in accordance with Section 22 and properly executed by both parties.

TERMS AND CONDITIONS

In consideration of the mutual covenants and promises of this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, the parties agree as follows:

AGREEMENT: This Agreement governs the use of the “CellControl System”. The “CellControl System”, and any associated services, third party software, documentation, online or web-based functionality, updates or upgrades, are referred to collectively in this Agreement as the “CellControl System.” The license granted hereunder is conditioned upon Licensee’s acceptance of the terms set forth herein and the acceptance of the Cellcontrol privacy policy (which may be amended from time to time and can be reviewed at www.cellcontrol.com/privacy-policy.)
CELLCONTROL SYSTEM: Licensor has developed the CellControl System, which includes a hardware device (the “Trigger”) for installation in a vehicle, and related software (“Operating Software”) for installation on a handheld or mobile device that interacts with the Trigger to provide the ability to reduce or minimize functionality of that handheld or mobile device when the vehicle is in motion. The Trigger includes software installed therein, which is also considered as part of the CellControl System, and has wireless communication capabilities for communicating with the Operating Software. A unique identification number (a “UserID”) is issued or assigned to each handheld or mobile device of an Authorized End User (as defined below in Section 4) of the CellControl System. Administrators (as defined below in Section 4) are able to access and control individual policies and requirements for each UserID using an internet based, privately accessible, management interface (the “Remote Management Console”), which is also part of the CellControl System. Individual UserIDs may be linked to a specific Trigger or may be linked to multiple Triggers.
LICENSE AND USE:

A. The CellControl System (with the exception of the physical Trigger which is sold) is licensed, not sold. Upon Licensee’s acceptance and execution of this Agreement, Licensor grants Licensee a limited, nontransferable, nonsublicensable, nonexclusive license in the Territory to use the CellControl System, subject to the terms and conditions set forth herein. For purposes of the preceding sentence, “use” of the CellControl System means:

i. Access by a number of Authorized End Users to the functionality of the CellControl System by means of a UserID – the number of Authorized End Users is based on the number of UserIDs assigned or designated in the CellControl System. Each handheld or mobile device requires a separate UserID and constitutes a different Authorized End User;

ii. Access by a number of Administrators to the functionality of the CellControl System by means of access to and ability to control the policies and requirements of each UserID. Access to the functionality of the CellControl System shall be through the Remote Management Console that allows Administrators to add or remove Authorized End Users from the account of Licensee and to set, change, and monitor rules and policies for groups of Authorized End Users or for individual Authorized End Users; and

iii. Use of a number of Triggers to be installed in the vehicles owned or used by Authorized End Users.

B. Wireless or 3rd Party Charges. Use of the CellControl System may require access to and use of the Internet, wireless networks, cellular networks, or similar third party services, equipment, and systems. Specifically, the CellControl System may require any enabled handheld or mobile device to communicate with Licensor’s servers via data or sms (text) transmissions. Thus, use of the CellControl System may result in fees or charges under the particular cellular plan for data and/or text transmission of each Authorized End User. Accordingly, all Authorized End Users should review and consult their own cellular plan before activating or enabling the Operating Software on their handheld or mobile device. Licensor shall have no responsibility for any cellular, data, roaming or like charges incurred under Licensee’s or any Authorized End User’s wireless plan as a result of Licensee’s use of the CellControl System, and such charges, if incurred, shall be the sole and exclusive responsibility of Licensee, and its Administrators and Authorized End Users.

C. Approved and Authorized Equipment. The CellControl System may only be used with approved equipment and hardware.

i. Devices and Authorized Distributors. Licensee, and its Administrators and Authorized End Users, may only access and use the CellControl System with approved Triggers and Operating Software provided by Licensor. Approved Triggers and Operating Software must be obtained directly from Licensor or one of its authorized resellers/distributors. ii. Approved Mobile Device Platforms. The CellControl System is not currently compatible with all mobile devices and/or device operating systems/platforms. It is Licensee’s responsibility to confirm the compatibility of the device/platform of its Authorized End Users before including and adding such Authorized Users to the account of Licensee for use of the CellControl System. iii. Third Party Equipment and Services. Licensor provides only the web-accessible Remote Management Console, approved Triggers, and Operating Software for installation on handheld and similar computing devices. Licensee, and its Administrators and Authorized End Users, are responsible for purchasing or obtaining any needed mobile device (cell phone/pda, computer, laptop, alternate web device), modem or router, and/or any other appropriate hardware and/or software, cabling or connections (collectively, “Third-Party Equipment”), as well as Internet service, mobile device service plan with text and/or data capability (“Third Party Services”) from appropriate sellers, resellers, manufacturers or service providers. Licensor is not responsible for and does not warrant any Third Party Equipment or Third Party Services in any way whatsoever.

D. Safe Driving Responsibility. Notwithstanding access to and use of the CellControl System, Licensee, and its Administrators and Authorized End Users, acknowledge that the CellControl System is not and cannot be viewed or considered as an assurance of personal safety. There are numerous manners in which a driver or vehicle operator can be distracted that do not involve the use of cellular (or similar) technology while driving. Furthermore, Licensor cannot prevent tampering or disabling of a Trigger or Operating Software, although such tampering is expressly prohibited. Licensor shall have no liability for the negligence of Licensee, and its Administrators and Authorized End Users, while driving or operating a vehicle, nor shall Licensor have any liability in failing to communicate instances where disabling or tampering has occurred, as there are a variety of factors beyond Licensor’s control which could interfere with the electronic transmission or receipt of such notices. By using the CellControl System, Licensee, and its Administrators and Authorized End Users, specifically agree to the release and hold harmless provisions of this Agreement.

E. Communications Policy. Licensee authorizes Licensor to send a data transmission to all specified handheld or mobile devices of Authorized End Users registered under Licensee’s account in order to transmit the Operating Software to those devices. Licensee further authorizes Licensor to send text messages to all Authorized End User cellular/wireless numbers registered to Licensee’s account, as necessary to transmit important notices, including updates to Licensor’s website, as well as upgrades or enhancements to the Operating Software. Licensee also permits Licensor to send email or text messages as necessary to notify Licensee, and its Administrators and Authorized End Users (as applicable), of any violations of this Agreement or of any Authorized End User policies or potential tampering of an Trigger or Operating Software. Unless Licensee specifically opts-out, Licensee also authorizes Licensor to send emails to all Authorized End Users’ and Administrators’ email addresses associated with Licensee’s account (including emails of a commercial nature) regarding the CellControl System, or updates, modifications or enhancements thereto. Licensor is not responsible for any data or wireless charges as a result of these communications.

F. Changes in Terms. CELLULAR AND INTERNET TECHNOLOGY AND APPLICABLE LAWS, RULES, AND REGULATIONS CHANGE FREQUENTLY. ACCORDINGLY, LICENSOR RESERVES THE RIGHT TO CHANGE THESE TERMS AND CONDITIONS AT ANY TIME IN ORDER TO COMPLY WITH SUCH CHANGES. ANY CHANGES OR MODIFICATIONS WILL BE EFFECTIVE UPON POSTING OF THE REVISIONS ON LICENSOR’S WEBSITE REFLECTING THE NEW EFFECTIVE DATE. LICENSEE’S CONTINUED USE OF THE CELLCONTROL SYSTEM FOLLOWING THE POSTING OF THE CHANGES OR MODIFICATIONS ONLINE WILL CONSTITUTE LICENSEE’S ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. LICENSEE SHOULD FREQUENTLY REVIEW THESE TERMS (INCLUDING THE EFFECTIVE DATE) AND APPLICABLE POLICIES FROM TIME-TO-TIME TO UNDERSTAND THE TERMS THAT APPLY TO LICENSEE’S USE OF THE CELLCONTROL SYSTEM AND LICENSOR’S WEBSITE.

LICENSEE’S USERS AND RESPONSIBILITY:

A. Authorized End Users. Licensee shall designate certain of its employees, contractors, or other personnel to be granted the ability to use and/or access to the CellControl System (each, an “Authorized End User”). Licensor will identify or provide Licensee with a unique UserID for each Authorized End User. Each UserID will be governed by a set of policies and requirements that determine reduced or minimal functionality of an Authorized End User’s handheld or mobile device while the Authorized End User is operating a moving vehicle connected with a Trigger in accordance with this Agreement. By installing the CellControl System software on the Authorized End User’s handheld device or phone, each such Authorized End User agrees to such installation and to the reduced or minimized functionality of their handheld device or phone when used in accordance with this Agreement. B. Administrators. Licensee shall provide to Licensor the names of those individuals who will also act as administrators for Licensee (“Administrators”), with responsibility on behalf of Licensee for overseeing access by Authorized End Users to the CellControl System and for accessing and controlling the policies and requirements for the UserIDs in accordance with this Agreement. Licensee represents, warrants and agrees that each Administrator will have authority, on behalf of Licensee, to perform his or her duties. It is Licensee’s and each Administrator’s joint and several responsibility to maintain the security of account access information, and Licensor shall have no responsibility for damages caused or occasioned by lost or stolen account access information. If, during the term of the Agreement, a then-current Administrator ceases to be an active employee of Licensee or ceases to serve as an Administrator, and if there are no remaining Administrators, Licensee shall promptly appoint another Authorized End User as an Administrator. The CellControl System will provide the Administrator with certain administrative capabilities with respect to Licensee’s use of the CellControl System that other Authorized End Users will not have, including the ability to access and control the policies and requirements for the UserIDs. Licensee agrees that the Administrators will promptly cancel the UserID of any Authorized End User who (i) ceases to be employed by Licensee, (ii) Licensee no longer wishes to have access to the CellControl System, or (iii) Licensee knows or reasonably believes is causing Licensee to breach any provision of this Agreement or is in any way mishandling the CellControl System. Licensee shall notify Licensor at the time a UserID is canceled for any of the reasons specified in clause (iii) above.
5. TRANSFER: Licensee shall not, and shall not permit others to, directly or indirectly, sell, rent, lease, loan, test, timeshare, or sublicense the CellControl System.

LIMITATIONS ON USE: Licensee shall not, and shall not permit others to, directly or indirectly (a) reverse assemble, reverse compile, or otherwise reverse engineer or attempt to derive the source code of all or any part of the CellControl System, (b) modify, translate, alter, change or create derivative works of all or any part of the CellControl System, (c) download, copy or collect information that could be used to copy all or any part of the CellControl System, or (d) access or use all or any part of the CellControl System for any purpose other than for handheld or mobile device functionality purposes in accordance with this Agreement. Licensee agrees, upon request by Licensor at any time, to exchange its current version of the CellControl System for an updated version and to discontinue use of the version that was replaced.
OWNERSHIP OF INTELLECTUAL PROPERTY: Licensor reserves all rights in the CellControl System not expressly granted to Licensee in this Agreement. Licensee acknowledges and agrees that Licensor owns all right, title and interest in and to the CellControl System (including, without limitation, all software, code, interfaces, hardware, text, photographs, graphics, animation, applets, music, video and audio incorporated therein and any related user guides and documentation), the trademarks CELLCONTROL, OBDEDGE, and any marks, logos, taglines, or trade names related to the CellControl System, URLs such as www.cellcontrol.com and www.trucesoftware.com and the trade dress, look and feel of the CellControl System, all of which are covered by various protections including, without limitation, patent, copyright, trademark, and trade secrecy law. If Licensee suggests new features or functionality that Licensor, in its sole discretion, adopts for the CellControl System, such new features or functionality will be the sole and exclusive property of Licensor and any and all claims of Licensee as to the same are hereby waived and released. Licensor reserves the right, in its sole discretion and without incurring any liability to Licensee, to update, improve, replace, modify or alter the specifications for and functionality of all or any part of the CellControl System from time to time.
SUPPORT: Licensor offers support for the CellControl System currently through the website http://www.cellcontrol.com (or such other site or URL as may be designated or identified by Licensor from time to time). Licensor reserves the right to change the support that it offers (and to discontinue all or some of the support for the CellControl System) at any time and without notification to Licensee.
DISCLAIMERS OF WARRANTIES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR PROVIDES THE CELLCONTROL SYSTEM AND SUPPORT SERVICES (IF ANY) "AS IS" WITH ALL FAULTS, AND THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT OF SUCH CELLCONTROL SYSTEM OR SUPPORT SERVICES (IF ANY) WILL BE WITH LICENSEE. THERE IS NO REPRESENTATION OR WARRANTY HEREIN AGAINST INTERFERENCE WITH LICENSEE’S ENJOYMENT OR AGAINST INFRINGEMENT. LICENSOR DISCLAIMS ANY AND ALL OTHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REPRESENTATIONS, WARRANTIES, CONDITIONS, UNDERTAKINGS, OR TERMS WITH RESPECT TO THE CELLCONTROL SYSTEM AND ANY SERVICES PROVIDED HEREUNDER, INCLUDING ANY AS TO THE CONDITION, QUALITY, TITLE, DURABILITY, PERFORMANCE, EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, CONFORMITY TO ANY SPECIFICATION OR DESCRIPTION, EXISTENCE OF ANY LATENT OR PATENT DEFECTS, FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INFRINGEMENT OR THAT LICENSEE’S USE OF THE CELLCONTROL SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE. THESE DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL CONDITION OF THE AGREEMENT.
EXCLUSIVE REMEDY: ANY LIABILITY OF LICENSOR FOR A DEFECTIVE TRIGGER WILL BE LIMITED EXCLUSIVELY TO REPLACEMENT OF LICENSEE’S TRIGGER WITH ANOTHER TRIGGER. THIS EXCLUSIVE REMEDY IS AN ESSENTIAL CONDITION OF THE AGREEMENT.
LIMITATIONS OF LIABILITY: IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE OR ITS ADMINISTRATORS, AUTHORIZED END USERS, OR ANY OTHER EMPLOYEE, CONTRACTOR, PERSONNEL, OR AGENT FOR (a) ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, AND LEGAL FEES AND EXPENSES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (b) ANY CLAIM BY ANY THIRD PARTY; OR (c) TO THE EXTENT ALLOWED BY APPLICABLE LAW, DAMAGES RESULTING FROM DEATH OR INJURY OF LICENSEE OR ITS ADMINISTRATORS, AUTHORIZED END USERS, OR ANY OTHER EMPLOYEE, CONTRACTOR, PERSONNEL, OR AGENT OR ANYONE ELSE ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, USE, IMPROPER USE, OR INABILITY TO USE THE CELLCONTROL SYSTEM, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long a given warranty may last, so the above limitations may not apply. THE TOTAL LIABILITY OF LICENSOR TO LICENSEE OR ITS ADMINISTRATORS, AUTHORIZED END USERS, OR ANY OTHER EMPLOYEE, CONTRACTOR, PERSONNEL, OR AGENT WILL BE LIMITED TO LICENSEE’S ACTUAL DIRECT DAMAGES, IF ANY, WHICH DAMAGES IN NO EVENT WILL EXCEED THE CUMULATIVE PAYMENTS ACTUALLY RECEIVED BY LICENSOR FROM LICENSEE PURSUANT TO THIS AGREEMENT WITHIN THE PRECEDING TWELVE (12) MONTHS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ARE AN ESSENTIAL CONDITION OF THE AGREEMENT.
INDEMNIFICATION. Licensee agrees to indemnify, defend and hold Licensor harmless from and against any loss, claim, judgment, liability, damage, action or cause of action (including reasonable attorneys' fees and court costs) arising out of or in connection with (a) any use of the CellControl System, (b) any breach by Licensee of its obligations set forth in this Agreement, (c) the negligence or willful misconduct of Licensee, its Authorized End Users, Administrators, or other employees, contractors, personnel or agents, and (d) claims by any of Licensee’s employees, contractors, or other personnel for compensation of any kind, including for injuries or damages under the workmen’s compensation or similar acts.
TERMINATION: Unless otherwise agreed in writing, this Agreement shall in full effect as long as Licensee continues to use the Cellcontrol System. If Licensee does cease use of the Cellcontrol System, all rights and obligations of this Agreement will immediately cease and terminate, except for the rights and obligations under Sections 6, 9, 10, 11, and 12 and any outstanding payments due under Section 14.
FEES AND PAYMENTS: Licensee shall pay Licensor the fees set forth in associated proposals which have been executed by both parties. Costs for purchase of any Triggers shall be due and payable at time of purchase of such Trigger(s). Licensor shall invoice Licensee for the service charges as agreed in any proposals executed by both parties, or executed web-based offerings. All hardware purchases shall be due and payable immediately. Service charges will be due within thirty (30) days of date of invoice. Payments due hereunder will be made by Licensee without any deduction, setoff or bank charges to Licensor at the banking institution in the United States designated by Licensor in U.S. dollars or on any other terms mutually agreed upon. All payments made by Licensee are non-refundable. Overdue payments required to be paid by Licensee pursuant to this Agreement (other than amounts that are the subject of a legitimate dispute) will accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowable interest under applicable law, from the due date until paid, and Licensee shall pay Licensor’s costs of collection, including Licensor’s reasonable attorneys’ fees and court costs. The amounts due to Licensor do not include, and Licensee shall pay, any sales, use, property, value-added or other taxes (including any amounts to be withheld for the purpose of paying the foregoing) relating to, resulting from or based on use of the CellControl System. If Licensor is required to pay any of the foregoing taxes, then such taxes will be billed to and promptly paid by Licensee.
GOVERNING LAW AND FORUM: This Agreement will be governed by and construed in accordance with the laws of the State of Louisiana, United States, without reference to its conflict of laws principles. Each party hereby consents to the personal jurisdiction of the State of Louisiana, acknowledges that venue is proper in any state or Federal court in the State of Louisiana, agrees that any action arising out of or related to this Agreement must be brought exclusively in a state or Federal court in the State of Louisiana, and waives any objection it has or may have in the future with respect to any of the foregoing. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
FORCE MAJEURE. No failure or omission by either party to carry out or observe any of the terms and conditions of this Agreement (other than any payment obligation) will give rise to any claim against such party or be deemed a breach of this Agreement if such failure or omission arises from an act of God, an act of government or any other force majeure event.
WAIVER: Failure or delay to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement will not be deemed a waiver of that term, covenant or condition or of any other term, covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or more times will not be deemed a waiver or relinquishment of that right or power at any other time.
SEVERABILITY: All provisions of this Agreement apply to the maximum extent permitted by applicable law. If a court of competent jurisdiction finds any part of this Agreement to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in full force and effect.
THIRD PARTY RIGHTS: Except as expressly set forth herein, nothing in this Agreement shall be construed as giving any person or entity, other than the parties hereto and their successors and permitted assigns, any right, remedy or claim under or in respect of this Agreement or any provision hereof.
NOTICES. All notices, requests, or other communications hereunder must be in writing and addressed to the parties at the addresses set forth above. Notices mailed by registered or certified mail will be conclusively deemed to have been received by the addressee on the fifth business day following the mailing or sending thereof. Notices sent by facsimile will be conclusively deemed to have been received when the delivery confirmation is received. If either party wishes to alter the address to which communications to it are sent, it may do so by providing the new address, in writing, to the other party.
COMPLIANCE WITH LAWS: Licensee shall comply with all applicable foreign, Federal, state, and local laws, regulations, and ordinances (as such laws may have been amended or may be amended from time to time in the future) in performing its obligations under this Agreement.
COMPLETE AGREEMENT AND AMENDMENT: This Agreement constitutes the entire agreement between the parties with respect to the use of the CellControl System and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by the parties. Neither the course of conduct between parties nor trade practice will act to amend or modify any provision of this Agreement.
ASSIGNMENT: Licensor may assign this Agreement, in whole or in part, at any time, with or without notice to Licensee. Licensee may not assign, delegate or otherwise transfer this Agreement, or assign, transfer or sublicense any rights or duties under this Agreement without the express written consent of Licensor prior to any assignment.