Last Updated: February 2020
1. STATEMENT OF MEANING
1.1 “Account” means the accounts Customer generate, over the Hosted Software, to obtain Customer Data.
1.2 “Affiliates” means any other operation that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, the Customer.
1.3 “Apps” means the software applications for smartphones and tablets handed out by FLOTILLA through Google Play or Apple App Store.
1.4 “Authorized User” means Customer’s employees whom Customer authorizes to use the FLOTILLA Software strictly on its behalf.
1.5 “Customer” means the establishment for which you are accepting this agreement, and Affiliates of that establishment.
1.6 “Customer Data” means data input by Customer into Apps and Hosted Software, and the analysis, reports, and alerts generated by the Products containing such data. To avoid any doubt, Customer Data does not include any FLOTILLA Software.
1.7 “Documentation” means any documentation made accessible to Customer through FLOTILLA website or otherwise made accessible to Customer by FLOTILLA.
1.8 “Hosted Software” means FLOTILLA’s web-based software platform, including the interface accessed online.
1.9 “Order Form” means the quote describing the purchase of FLOTILLA licenses issued by FLOTILLA.
1.10 “Refund” means an amount refunded to the Customer pursuant to the terms of this Agreement equal to (i) pre-paid fees for the time remaining in an applicable license term prorated to the period of time between (a) the date of termination and (b) the original license termination date specified in an Order Form. For the avoidance of doubt, a Refund may only be issued as expressly provided hereunder.
1.11 “FLOTILLA Software” means the Apps and Hosted Software, including any modifications, patches, updates, and upgrades thereto that FLOTILLA develops or provides in connection with this Agreement, and Support Services.
1.12 “Services” means the FLOTILLA Software and Professional Services.
1.13 “Support Services” means the customer support services, and Documentation, but excluding any Professional Services.
1.14 “Professional Services” means the professional services that are provided by FLOTILLA to Customer (i) as purchased separately by Customer pursuant to an Order Form, (ii) in FLOTILLA’s sole discretion, or (iii) as otherwise mutually agreed between the Parties.
1.15 “Terms” means the terms contained in this Agreement.
To access or use the services provided by FLOTILLA, You must be an authorized representative of legal entity or at the age of majority according to the relative legislation. By accepting these Business Terms, You assure that the information you provide is accurate, complete and always present. Inaccurate or incomplete information may result in the immediate termination of your account via Flotilla.
3. INTELLECTUAL PROPERTY RIGHTS
4. AGREEMENT TO TERMS
By accepting this Agreement, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Products. If you are accessing and using the Products on behalf of a company (such as your employer) or other legal entity which is our Customer, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. References to “you” and “your” in these Terms refer to that company or other legal entity, our Customer. You may not use the Services if you are our direct competitor, as determined in our sole discretion, except with our prior written consent.
5. CHANGES TO TERMS OR SERVICES
We may modify the Terms at any time at our sole discretion. If we do so, we will inform you either by posting the modified Terms within the Services or through other communications with you, our Customer. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Services, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not continue to use the Services.
6. PRODUCT UPDATES
FLOTILLA continuously improves the Products, and may from time to time (i) update FLOTILLA Software and cause Firmware updates to be automatically installed onto Customer Hardware, (ii) update the Apps. FLOTILLA may change or discontinue all or any part of the Products, at any time and without notice, at FLOTILLA’s sole discretion. Updates or upgrades may include security or bug fixes, performance enhancements, or new functionality, and may be issued with or without prior notification to Customer. Customer hereby consents to such automatic updates.
The payment and billing terms are set forth in the applicable Order Form. Customer is responsible for all payments of applicable taxes, however designated or incurred under this Agreement, and Customer shall reimburse FLOTILLA for any taxes paid or payable on behalf of Customer.
Service fees are charged on a monthly basis, unless agreed otherwise between the Parties. Services are billed at the beginning of each month. All payments should be cleared of any applicable taxes and fees for bank transfer (for payments made through the regular wire bank transfer). All the applicable taxes (such as VAT) should be paid by you according to your local legislation.
Flotilla reserves the right to amend and change its fees and charges from time to time with the prior notice of at least 30 days before the changes come into effect, by sending you an email. By using Flotilla third party payment processors, you agree to their terms of service. All fees and charges are non-refundable, which means that there are no refunds or credits for periods where you did not use the Services or used it partially.
Customer shall be solely responsible for administering and protecting Accounts. Customer agrees to provide access to the FLOTILLA Software only to Authorized users, and to require such Authorized Users to keep Account login information, including user names and passwords, strictly confidential and not provide such Account login information to any unauthorized parties. Customer is solely responsible for monitoring and controlling access to FLOTILLA Software and maintaining the confidentiality of Account login information and any provided API tokens. In the event that Customer or any Authorized User becomes aware that the security of any Account login information has been compromised, Customer shall immediately notify FLOTILLA and de-activate such Account or change the Account’s login information. Authorized Users may only use FLOTILLA Software strictly on behalf of Customer and subject to the terms and conditions applicable to Customer herein. Customer is responsible and liable for any breach by an Authorized User of his or her obligations hereunder.
9. CUSTOMER DATA
Ownership and Usage: Customer Data is accessible via the FLOTILLA Software. Customer owns all Customer Data, and FLOTILLA will keep Customer Data confidential. Customer hereby grants to FLOTILLA a non-exclusive, transferable, sublicense-able, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, display, and distribute Customer Data in connection with operating and providing the Services. FLOTILLA will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. FLOTILLA will not share Customer Data without Customer consent, except when the release of data is compelled by law. FLOTILLA may collect and use analytics, statistics or other data related to the Customer Data and Customer’s use of the FLOTILLA Software (i) in order to provide the FLOTILLA Software to Customer; (ii) for statistical use (provided that such data is not personally identifiable); or (iii) to monitor, analyze, develop upon, maintain, and improve the FLOTILLA Software. Such use shall survive the termination of this Agreement, unless legally prohibited or Customer requests in writing upon termination that such use be limited to non-personally-identifiable data. Customer may export Customer Data at any time through the export features in the FLOTILLA dashboard or via the FLOTILLA API. Customer acknowledges that some information may not be exportable via the FLOTILLA dashboard or the API. If this Agreement terminates or expires and Customer does not renew, Customer Data may be immediately deleted.
10.1 Confidential Information: “Confidential Information” means any technical, financial, or business information disclosed by one Party to the other Party that:
(i) is marked or identified as “confidential” or “proprietary” at the time of such disclosure; or
(ii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary.
FLOTILLA Confidential Information includes information related to any Products, including the pricing thereof, customers, and any data or information that FLOTILLA provides to Customer in the course of providing the Products to Customer. Customer Confidential Information includes Customer Data and any data or information that Customer provides to FLOTILLA for the purpose of evaluating, procuring, or configuring the Services (for example, makes and models of vehicles or equipment, address book or CRM data, vehicle routes, or similar information). Confidential Information excludes information that: (i)is now or hereafter becomes generally known or available to the public, through no breach of the receiving Party’s confidentiality obligations; (ii) was known, without restriction as to use or disclosure, by the receiving Party prior to receiving such information from the disclosing Party; (iii) is acquired by the receiving Party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving Party without use or knowledge of or reference to any Confidential Information of the disclosing Party.
10.2 Confidentiality Obligations: The receiving Party agrees: (i) to maintain the disclosing Party’s Confidential Information in strict confidence; (ii) not to disclose such Confidential Information to any third parties (except for any agents of receiving Party in performing under this Agreement under reasonable confidentiality obligations); and (iii) not to use any such Confidential Information for any purpose except to perform under this Agreement or as authorized by the disclosing Party. Notwithstanding anything to the contrary in this Agreement, the receiving Party may disclose the disclosing Party’s Confidential Information to the extent required by law or regulation, provided that the receiving Party uses reasonable efforts to give the disclosing Party advance notice of such requirement and reasonably cooperates with the disclosing Party at the disclosing Party’s expense in preventing, limiting, or protecting such disclosure.
11. PROPRIETARY RIGHTS
11.1 FLOTILLA Software: FLOTILLA and its licensors exclusively own all right, title and interest in and to the FLOTILLA Software that Customer accesses or licenses, including all associated intellectual property rights. Customer acknowledges that the FLOTILLA Software is protected by copyright, trademark, and other laws of the United Arab Emirates and foreign countries. Customer agrees not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Customer shall and hereby does irrevocably transfer and assign to FLOTILLA all right, title, and interest it may have in the FLOTILLA Software to FLOTILLA and FLOTILLA hereby accepts such transfer. No ownership rights are being conveyed to Customer under this Agreement. Except for the express rights granted herein, FLOTILLA does not grant any other licenses or access rights, whether express or implied, to any other FLOTILLA software, services, technology or intellectual property rights.
Customer hereby grants FLOTILLA permission to use the Company name and logo on FLOTILLA’s website, customer lists, and marketing materials to list Customer as a customer. However, FLOTILLA will not use Customer’s name, trademarks, or logos in any other way without Customer’s prior consent.
The term of this Agreement begins upon the date on which you accept this Agreement by executing an Order Form that references this Agreement, and shall continue until the expiration of the last active Order Form where the license period ends or until otherwise terminated earlier as provided hereunder.
You may terminate your use of the Services at any time by sending a notice to Flotilla at least 30 days prior to the date of termination. Flotilla may unilaterally block your use of the Services including the suspension of access to your account if you fail to comply with or violate terms and conditions defined by the Terms of Service. In such case Flotilla shall send you a notice prior to the date of termination. In the event of termination you will continue to be responsible for any fees and/or charges you have incurred prior to the termination.
13.2 Effect of Termination: At the Customer’s request, and subject to FLOTILLA’s data retention and backup policies, FLOTILLA shall delete and remove any Customer Data on the Hosted Software.
14. DISPUTE RESOLUTION
15. LIMITATION OF LIABILITY
15.1 No Consequential Damages: NEITHER FLOTILLA NOR CUSTOMER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PRODUCTS, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY.
15.2 Cap: EXCEPT AS TO ANY EXPRESS INDEMNIFICATION OBLIGATION SET FORTH HEREIN, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PRODUCTS EXCEED THE AMOUNTS CUSTOMER HAS PAID TO FLOTILLA HEREUNDER, OR IF CUSTOMER HAS NOT HAD ANY PAYMENT OBLIGATIONS TO FLOTILLA (FOR EXAMPLE THROUGH A FREE TRIAL), ONE HUNDRED DOLLARS ($100).
15.3 THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FLOTILLA AND CUSTOMER.
16. GENERAL TERMS
These Terms together with any applicable Order Form constitute the entire and exclusive understanding and agreement between FLOTILLA and you regarding the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between FLOTILLA and you regarding the Services, however if an Order Form differs from these Terms then the terms of the Order Form control over these Terms. You may not assign or transfer these Terms, by operation of law or otherwise, without FLOTILLA’s prior written consent, except in the case of a merger, acquisition, or sale of all or substantially all assets of your company. Any attempt by you to assign or transfer these Terms, without such consent, will be null. FLOTILLA may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the Parties, their successors and permitted assigns. Any notices or other communications provided by FLOTILLA under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; (ii) by posting to FLOTILLA’s website; or (iii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Either Party’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of both Parties. Except as expressly set forth in these Terms, the exercise by either Party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
17. CONTACT INFORMATION
If you have any questions about these Terms or the Services, please contact FLOTILLA at firstname.lastname@example.org