Terms of Service
Last Updated: 07/08/2022
Welcome to the GroundCloud (“GroundCloud,” “we” or “us”) website located at groundcloud.com (the “Site”). Please read these Terms of Service (the “Terms”) carefully because they govern your use of our Service (as defined below). By using our Services, you agree to be bound by these Terms, with your agreement being further specified in Section 2. Please contact us with any questions at email@example.com.
1. Description of Service
1.1. The “Service(s)” means GroundCloud’s logistics management software (the “Software”). The Software includes, but is not limited to, the Site, our mobile device application (the “App”), the Services (as defined in Section 9 of these Terms), and all of Our Content (as defined below). The Service does not include Your Data (as defined below) or any software application or service that is provided by you or a third party, which you use in connection with the Service, whether or not GroundCloud designates them as official integrations (each a “Non‐ GroundCloud Product”). Any modifications and new features added to the Service are also subject to these Terms. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to GroundCloud, including the rights to any text, graphics, images, music, software, audio, video, documents, works of authorship of any kind, de‐identified and aggregated data collected by the Services, and information or other materials that are posted, generated, provided or otherwise made available by us through the Services (“Our Content”).
2. Agreement to Terms
2.2. PLEASE BE AWARE OF THE AGREEMENT TO ARBITRATE LOCATED IN SECTION 13 OF THESE TERMS, AS IT REQUIRES ARBITRATION TO RESOLVE DISPUTES, IN MOST CASES, ON AN INDIVIDUAL BASIS, RATHER THAN JURY TRIALS AND CLASS ACTIONS.
3. Your Access and Use of the Services
3.1. You may access and use the Services only for lawful, authorized purposes and you shall not misuse the Services in any manner (as determined by GroundCloud in its sole discretion). See Section 11 below for further provisions outlining prohibited uses of the Services. You shall comply with any codes of conduct, policies, storage limitations, or other notices GroundCloud provides you or publishes in connection with the Services from time to time, but if any of those policies materially change the Terms, we will provide you with reasonable notice as provided in Section 5 below.
3.2. Any Software or any of Our Content that may be made available by or on behalf of GroundCloud in connection with the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to these Terms, GroundCloud only grants you a personal, non‐sublicensable, non‐exclusive and revocable license to use the object code of any Software solely in connection with the Service. Any rights not expressly granted herein are reserved.
3.3. Subject to your compliance with these Terms, GroundCloud grants you a limited, non‐ exclusive, non‐transferable, non‐sublicensable and revocable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App. GroundCloud reserves all rights not expressly granted to you under these Terms including, but not limited to, in and to the App.
3.4. You may not share your Account information with, or allow access to your Account by, any third party. You are solely responsible for all activity that occurs under your access credentials, whether or not a third party accesses your Account.
3.5. Notwithstanding Section 3.4, you may allow other certain users, e.g. employees, independent contractors, and other third parties, (“End Users”) to access the Services in accordance with these Terms. To the extent that you create any Accounts for other users of the Services, direct us to create any Accounts for End Users, or allow End Users to access the Services, you are responsible for all End Users’ activity and ensuring that they are in compliance with these Terms.
3.6. You may specify certain End Users as “Administrators” through the administrative console. Administrators may have the ability to access, disclose, restrict or remove Your Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts. GroundCloud’s responsibilities do not extend to the internal management or administration of the Services, and you are responsible for all Administrators’ activities and ensuring that they are in compliance with these Terms.
3.7. To the extent that you allow End Users and Administrators to access the Services or create, or direct us to create, any Accounts for other users, you are responsible for (i) maintaining the confidentiality of usernames and passwords, (ii) managing access to End User Accounts and other Accounts which you create, and (iii) ensuring that all End Users and users of other Accounts which you create are in compliance with these Terms.
3.8. You agree to prevent any unauthorized access or use by End Users or other users of Accounts and terminate any unauthorized use of or access to the Services.
3.9. You may not sell, resell or lease the Services unless you have entered into a separate agreement with GroundCloud to do so.
3.10. You shall promptly notify GroundCloud if you learn of a security breach related to the Service.
3.11. You assume sole responsibility for your driving logs and for complying with all state and federal regulation.
4. Your Data, Your Privacy, Your Ownership of Your Data, and Licenses for Our Use of Your Data
4.3. Your acceptance of these Terms does not grant us full ownership of all of Your Data. As between GroundCloud and you, you are only granting us the rights and licenses necessary to provide our Services to you and any other services for which you have signed up through any of our resellers, business partners and affiliated businesses. In order for us to provide the Services to you, we need to be able to transmit, store and copy Your Data in order to display it to you and to those with whom you share it, to index it so you are able to search it, to make backups to prevent data loss, to send your submissions and messages through our platform, and so on.
For example, if you submit documents or send messages to a Fleet User, you are granting us a royalty‐free, perpetual, sublicensable, irrevocable and worldwide license for us to transform, modify, reproduce, display, perform and distribute such documents and messages for your and the Fleet User’s use of the Services.
Your acceptance of these Terms gives us the permission to do so and grants us any such rights and licenses necessary to provide the Service to you, and any other services or products for which you have signed up through any of our resellers, business partners and affiliated businesses. For example, if you have agreed to share any of Your Data, or any other data we collect in connection with your use of the Services, with one of our partners or affiliates or other
third party, you grant us the rights and licenses to share or deliver such data. This permission includes allowing us to use third‐party service providers in the operation and administration of the Service and the rights granted to us are extended to these third parties to the degree necessary in order for the Service to be provided. By signing up for any additional services or products, you expressly acknowledge and agree that you have the authority to consent to share and deliver Your Data to the relevant third parties, and that such sharing and delivery does not violate any contracts you have with any third parties.
If you authorize a third party to receive Your Data, we may provide Your Data to a third party. If we have an agreement with such third party to market the Services or otherwise provide services or products to you, either jointly or separately, we may rely on a representation from that third party that you have authorized such third party to receive Your Data.
For clarification purposes, you grant us the necessary licenses to Your Data for us to create aggregated and de‐identified data for our use in providing the Services and otherwise. Notwithstanding anything else in these Terms, we may use and sell such aggregated and de‐ identified data, which is compiled from our users, and does not directly identify you, for any purpose we see fit.
4.4. You are solely responsible for your conduct (including by and between all users), the content of Your Data, and all communications with others while using the Services. You represent and warrant that you own all Your Data or you have all rights that are necessary to grant us the license rights in Your Data under these Terms. You also represent and warrant that neither Your Data, nor your use and provision of Your Data, nor any use of Your Data by GroundCloud on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, result in the violation of any applicable law or regulation, or violate any contracts you have with any third party. We are not responsible for the accuracy, appropriateness, or legality of Your Data or any other information you and your users may be able to access using the Services. Should you be in violation of these Terms, we have the right, within our sole discretion, to remove any of Your Data causing such violation and/or to terminate your account.
4.5. The Services provide features that allow you and your End Users to share Your Data and other materials with others. When you choose to share Your Data through our Services, you are granting us the necessary rights and licenses to do so. Please consider carefully what you allow to be shared.
4.6. While you retain ownership in all rights to your feedback and suggestions, you agree that by submitting suggestions or other feedback regarding our Services or GroundCloud, GroundCloud may use such feedback for any purpose without compensation to you. We appreciate all of your feedback and suggestions, and you can submit feedback by emailing us at firstname.lastname@example.org.
4.7. The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register or sign up for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible.
5. Changes and Modifications to Terms of Service
5.1. We may modify these Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the modified Terms because if you continue to use the Services after we’ve let you know that the Terms have been modified, 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 no longer use the Services. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
6. Limitations on Services and Third‐Party Relationships
6.1. GroundCloud is not a party to any relationships or agreements between you and any third parties for the performance of any duties between the parties, and does not have control over and disclaims all liability for the quality, timing, legality, failure to provide, or any other aspect whatsoever of any professional duties performed by you or other users of the Services. GroundCloud acts only as an interface to facilitate ‐‐ not to direct or control ‐‐ communications between users of GroundCloud’s Services.
7. Who May Use the Services
7.1. You may use the Services only if you are 18 years or older and capable of forming a binding contract with GroundCloud and are not barred from using the Services under applicable law.
7.2. If you want to access and use the Services, you’ll have to create an account (“Account”). You can do this via the Services. It’s important that you provide us with accurate, complete and up‐to‐date information for your Account and you agree to update such information to keep it accurate, complete and up‐to‐date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
8. Warnings and Awareness About Connections Between Drivers and Companies
8.1. The Services enable a commercial motor vehicle driver (“Driver”) to connect directly with a motor carrier (“Company”), allowing Drivers to send messages and automatically share their driving logs, documents, location information and other data (“Driver Data”) with the Company. When Drivers connect with a Company through the Services, the Company’s employees and
other third parties who are also connected to that Company (“Fleet Users”) may access Driver Data for all Drivers who are connected to that same Company.
8.2. If a Driver connects with a Company, the Driver should be aware that the Driver’s Driver Data will be automatically shared with that Company and its Fleet Users and that Company and its Fleet Users will be able to send messages to that Driver. Please consider carefully the parties with whom you choose to connect and what you choose to share. GroundCloud’s role in this process is solely to provide the technology and platform that enables these Services. Please see Sections 3 & 4, above, and Section 11, below, as well as the rest of these Terms, for further specific provisions outlining your responsibility for anything shared through the Services.
The following provisions of this Section 9 apply to you only if you have ordered services from GroundCloud, as applicable, and have a direct billing relationship with GroundCloud for such services. If you have entered into an agreement for the provision of services with a reseller or other third party and have a direct billing relationship with such reseller or third party, please refer to the provisions of that agreement for your rights and obligations with respect to such payment and other arrangements for services. If you have entered into an agreement for the provision of services with a third party, however, you are still bound by the rest of these Terms of Service if you use any of the services.
9.1. Pricing and Payments. Upon acceptance of your Order Form by GroundCloud, you agree to pay GroundCloud in accordance with the terms set forth on your Order Form and the terms of this Agreement, and you authorize GroundCloud to bill your Payment Method in advance on a periodic basis in accordance with such terms. Please be aware that the pricing for the Services will be governed by the terms in your Order Form, upon acceptance by GroundCloud, and not the pricing set forth at groundcloud.com/pricing.
9.2. Billing Arrangement. We use a third‐party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account on the Services (your “Billing Account”) for use of the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. We are not responsible for error by the Payment Processor. By choosing to use the Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to bill your Payment Method. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
9.3. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
9.4. Recurring Billing. Some of the Services may consist of an initial period, for which there is a one‐time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, EMAIL SUPPORT@GROUNDCLOUD.COM.
9.5. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
9.6. Billing Disputes. If you dispute any charges you must let GroundCloud know within sixty (60) days after the date that GroundCloud invoices you. All amounts paid are non‐ refundable and we reserve the right to change our prices in the future. GroundCloud may choose to bill you through an invoice, in which case, full payment for invoices issued must be received by the date specified in the invoice. Past due fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
9.7. Taxes. You are responsible to pay any and all taxes that we may be required to collect or pay based on providing the Services other than taxes based on our net income.
9.8. Discontinuation of Services. If you choose to discontinue, cancel or terminate any Services for which you have agreed to on an Order Form before the end of the term agreed to in such Order Form, GroundCloud shall have the right to immediately charge the Payment Method associated with your Account for the remaining balance due with respect to the agreed upon Term of your Services, all as further specified in your Order Form or in any agreements to extend the initial term of your Order Form.
9.9. AUTO‐RENEWAL FOR SERVICES. Unless you opt out of auto‐renewal, which can be done by emailing us at email@example.com, any Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then‐current non‐promotional rate. If you terminate a Service, you may use your subscription until the end of your then‐current term; your subscription will not be renewed after your then‐current term expires. However, you won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then‐ current subscription period.
9.10. Reaffirmation of Authorization. Your non‐termination or continued use of any Service reaffirms that we are authorized to charge your Payment Method for that Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Service.
9.11. Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Service must be used within the specified time of the trial. You must stop using a Service before the end of the trial period in order to avoid being charged for that Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Service, please contact us at firstname.lastname@example.org.
11. General Prohibitions
11.1. IT IS STRICTLY FORBIDDEN TO USE THE GROUNDCLOUD APP WHILE DRIVING.
11.2. You further agree not to do any of the following:
11.2.1. Post, upload, publish, submit or transmit anything that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
11.2.2. Use, display, mirror or frame the Services, or any individual element within the Services, GroundCloud’s name, any GroundCloud trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without GroundCloud’s express written consent;
11.2.3. Access, tamper with, or use non‐public areas of the Services, GroundCloud’s computer systems, or the technical delivery systems of GroundCloud’s providers;
11.2.4. Attempt to probe, scan, or test the vulnerability of any GroundCloud system or network or breach any security or authentication measures;
11.2.5. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by GroundCloud or any of GroundCloud’s providers or any other third party (including another user) to protect the Services;
11.2.6. Attempt to access or search the Services or download any Software or Our Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by GroundCloud or other generally available third party web browsers;
11.2.7. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
11.2.8. Use any meta tags or other hidden text or metadata utilizing a GroundCloud trademark, logo, URL or product name without GroundCloud’s express written consent;
11.2.9. Use the Services for the benefit of any third party or in any manner not permitted by these Terms;
11.2.10. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source‐ identifying information;
11.2.11. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
11.2.12. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail‐ bombing the Services;
11.2.13. Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
11.2.14. Impersonate or misrepresent your affiliation with any person or entity; 11.2.15. Violate any applicable law or regulation; or
11.2.16. Encourage or enable any other individual to do any of the foregoing.
11.3. Although we’re not obligated to monitor access to or use of the Services or to review or edit any of Services or Your Data, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any of Our Content or Your Data, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any of Our Content or Your Data to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
12. Additional Terms for Apple Apps
These Terms apply to your use of all the Services, including the iPhone and iPad applications available via the Apple, Inc. (“Apple”) App Store (each an “App Store App”), but the following additional terms also apply to App Store Apps:
Both you and GroundCloud acknowledge that the Terms are concluded between you and GroundCloud only, and not with Apple, and that Apple is not responsible for App Store Apps or the Content;
The App Store Apps are licensed to you on a limited, non‐exclusive, non‐transferable, non‐ sublicensable basis, solely to be used in connection with the Services for your private, personal, non‐commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
You will only use the App Store Apps in connection with an Apple device that you own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Apps;
In the event of any failure of the App Store Apps to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the App Store App;
You acknowledge and agree that GroundCloud, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the App Store App;
You acknowledge and agree that, in the event of any third party claim that the App Store App or your possession and use of the App Store App infringes that third party’s intellectual property rights, GroundCloud, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and GroundCloud acknowledge and agree that, in your use of the App Store App, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
Both you and GroundCloud acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
13. Arbitration Agreement, Dispute Resolution and Releases
PLEASE READ THIS SECTION CAREFULLY AS IT MAY AFFECT YOUR LEGAL RIGHTS AND YOUR RIGHT TO FILE A LAWSUIT IN COURT, YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION.
Unless otherwise agreed to by both parties in writing, you and GroundCloud agree that, in order to expedite and control the cost of any disputes, any legal or equitable claim arising out of or
relating in any way to your use of the Services, or any use of the Services by a user to whom you provide access to your Account, or arising out of or relating to these Terms (“Claim”) will be resolved as follows:
13.1. Informal Dispute Resolution. Except with respect to Claims listed in Section 13.6, below, you and GroundCloud agree to attempt to resolve any disputes informally before initiating any arbitration or other formal proceedings, and neither of us may start an arbitration or other formal proceeding for at least 30 days after you contact us or we contact you regarding any dispute (“Informal Negotiation Period”).
13.2. Agreement to Arbitrate. If such dispute is not resolved within 30 days, you or GroundCloud may initiate a formal arbitration proceeding in accordance with the terms in this Section 13. Except with respect to Claims listed in Section 13.6, below, you and GroundCloud agree to resolve any Claims relating to or arising from the Services or these Terms through final and binding arbitration in accordance with the terms in this Section 13.
13.3. Arbitration Notice. If either you or GroundCloud chooses to start an arbitration proceeding, the party initiating the proceeding will send a notice of its Claim (“Arbitration Notice”) to the other party. You will send your Arbitration Notice by email to email@example.com and by U.S. mail to:
GroundCloud, 920 2nd Ave. South, Ste. 1225, Minneapolis, MN 55402
13.4. Arbitration Procedures. Any arbitration proceedings between you and us will be conducted under the commercial rules then in effect for the American Arbitration Association (“AAA”), except with respect to the provision of this agreement which bars class actions in Section 13.8 and any specific rules and procedures explicitly discussed in this Section 13.4. The award rendered by the arbitrator(s) shall include costs of arbitration, reasonable costs of expert and other witness and reasonable attorneys’ fees.
13.5. Non‐Appearance‐Based Arbitration Option. Except with respect to the exceptions to arbitration below in Section 13.6, for Claims where the total amount of the award sought in arbitration is less than $10,000, the party seeking the award may choose non‐ appearance‐based arbitration. If non‐appearance‐based arbitration is elected, the arbitration will be conducted online, by telephone, and/or solely based on written submissions to the arbitrator. The specific manner shall be chosen by the party initiating arbitration. Non‐appearance‐based arbitration involves no personal appearances by parties or witnesses unless otherwise mutually agreed to by the parties.
13.6. Exceptions to the Agreement to Arbitrate.
13.6.1. Notwithstanding the foregoing, the Arbitration Notice requirement and the Informal Negotiation Period do not apply to either lawsuits solely for injunctive relief to stop unauthorized use of the Services or lawsuits concerning copyrights, trademarks, moral rights, patents, trade secrets, claims of piracy or unauthorized use of the Services.
13.6.2. Either you or GroundCloud may assert claims which qualify for conciliation court in Hennepin County, Minneapolis, MN.
13.7. Opting Out of the Agreement to Arbitrate. You have the right to opt‐out and not be bound by the binding agreement to arbitrate provided in these Terms by sending written notice of your decision to opt‐out to firstname.lastname@example.org AND by U.S. Mail to GroundCloud, 920 2nd Ave. South, Ste. 1225, Minneapolis, MN 55402. In order for your opting out to be valid, your notice must be sent within 30 days of first using the Services.
13.8. No Class Actions. Unless you and GroundCloud agree otherwise, you may only resolve disputes with us on an individual basis. Class actions, class arbitrations, private attorney general actions and consolidations with other Claims are not allowed. Neither you nor GroundCloud may not consolidate a Claim or Claims as a plaintiff or a class member in a class action, a consolidated action or a representative action.
13.9. Consent to Jurisdiction. If the agreement to arbitrate provided for in these Terms is found not to apply to you or your Claim, or if you or GroundCloud challenges any arbitration award or seeks to have an arbitration award enforced, you and GroundCloud agree that any judicial proceeding will be brought in the federal or state courts located in Hennepin County, Minneapolis, MN. You and GroundCloud consent and agree to both venue and personal jurisdiction in the federal and state courts located in Hennepin County, Minneapolis, MN.
13.10. Release from Third‐Party Claims. Because GroundCloud is not party to any agreements between you and any third parties or involved in the completion of any associated professional services, in the event that you have a dispute with one or more other Drivers, Fleet Users or Companies or other third parties, as applicable (each, an “Other Party”), you agree to address such dispute directly with the Other Party in question and you release GroundCloud (and our officers, directors, agents, investors, subsidiaries, and employees from any and all claims, demands, or damages (actual or consequential)) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
14. Links to Third Party Websites or Resources
14.1. The Services may contain links to third‐party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third‐party websites or resources.
15. Digital Millennium Copyright Act
15.1. We respect the ownership rights of artists and other content owners and creators and ask that you do too. We respond to notices that we receive regarding alleged infringement if they comply with the requirements of and process specified in the Digital Millennium Copyright Act of 1998 (“DMCA”). For an overview of the DMCA’s notice and takedown procedures for
allegedly infringing material, please seehttp://www.copyright.gov/legislation/dmca.pdf. For more comprehensive provisions please see http://www.copyright.gov/title17/92chap5.html#512. To review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here.
15.2. Upon receipt of a notice which complies with the DMCA, we will take whatever action we deem appropriate, including removing the allegedly infringing content from the Services and limiting or terminating use of the Services for any users who are infringing the property rights of others.
15.3. Please note that this Section is intended to inform you and copyright owners of procedures under the DMCA and to comply with GroundCloud’s rights and obligations under the DMCA. This Section does not constitute legal advice, and it may be advisable to contact an attorney concerning your rights and obligations under the DMCA and any other applicable laws.
16.1. These Terms will continue in full force and effect unless and until your Account or these Terms are terminated as described herein.
16.2. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an
email to us at email@example.com. Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of the Terms that should, by their nature, survive termination of this Terms will survive termination. Such provisions include, but are not limited to: Your Data, Your Privacy, Your Ownership of Your Data, and Licenses for Our Use of Your Data; Disclaimers; Indemnity; Limitation of Liability; Arbitration Agreement, Dispute Resolution and Release; General Terms; and provisions related to ownership.
16.3. In the event that you have paid for Services, and we terminate your Account in our own discretion with no fault of your own, we will refund you a proportionate amount of the fees paid for the Services for the time from which we terminated your Account to the end of the then‐ current payment period.
16.4. All accrued rights to payment shall survive termination of the Terms.
16.5. Notwithstanding Section 16.2, please be aware that once your Account has been terminated, we no longer have any obligation to maintain or provide Your Data, and we may delete or destroy all copies of Your Data in our possession or control, unless legally prohibited.
17.1. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, IF APPLICABLE TO YOU, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON‐INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. GROUNDCLOUD EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY DRIVER, FLEET USER, COMPANY OR OTHER THIRD PARTY. Except with respect to the limited warranty contained herein, if applicable to you, we make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error‐free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any of the Services or anything shared by any users of the Services.
17.2. You are solely responsible for your interactions with other users on the Services. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Services.
17.3. Neither GroundCloud nor its affiliates or licensors is responsible for the conduct of any user of GroundCloud’s Services. Your use of the Services and your use of Your Data in connection with the Services and performance of and participation in any professional services is at your sole risk and discretion and GroundCloud hereby disclaims any and all liability to you or any third party relating thereto.
18. Limitation of Liability
18.1. NEITHER GROUNDCLOUD NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, 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 SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GROUNDCLOUD 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 TO YOU.
18.2. TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, GROUNDCLOUD DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY PROFESSIONAL SERVICES PERFORMED BY USERS OF OUR SERVICES IN CONNECTION WITH THEIR USE OF THE SERVICES. GROUNDCLOUD WILL NOT BE LIABLE TO YOU UNDER ANY CIRCUMSTANCES ARISING OUT OF THE MISUSE OF YOUR USER CONTENT BY THIRD PARTIES INCLUDING, WITHOUT LIMITATION, OTHER USERS WITH WHOM YOU HAVE CONNECTED THROUGH THE SERVICES OR ENTERED INTO AN AGREEMENT IN CONNECTION WITH THE PERFORMANCE OF PROFESSIONAL SERVICES. IN NO EVENT WILL GROUNDCLOUD’S TOTAL
LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE GREATER OF (A) FIVE THOUSAND DOLLARS ($5,000) OR (B) IF YOU HAVE ORDERED SERVICES FROM GROUNDCLOUD, THE TOTAL AMOUNT OF FEES RECEIVED BY GROUNDCLOUD FROM YOU FOR VEDR SAAS SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT OR ACTION GIVING RISE TO THE DAMAGES CLAIMED BY A PARTY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GROUNDCLOUD AND YOU.
18.3. Any cause of action related to the Services or the Terms must commence within one (1) year after the cause of action arises. Otherwise, such cause of action is barred permanently.
19.1. You will indemnify, defend and hold harmless GroundCloud and its officers, directors, employees and agents, from and against, and covenant not to sue them for any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Our Content; (ii) Your Data; (iii) your performance of or participation in professional services in connection with your use of the Services or Our Content; or (iv) your violation of these Terms. GroundCloud reserves the right to control and conduct the defense of any matter subject to indemnification under these Terms. If GroundCloud decides to control or conduct any such defense, you agree to cooperate with GroundCloud’s requests in assisting GroundCloud’s defense of such matters.
20. General Terms
20.2. Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without GroundCloud’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. GroundCloud 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.
20.3. Governing Law. The Terms and the relationship between you and GroundCloud shall be governed by the laws of the State of Minnesota.
20.4. Notices. Any notices or other communications provided by GroundCloud under these Terms, including those regarding modifications to these Terms, will be given by GroundCloud: (i) via email; or (ii) by posting to the Site. For notices made by e‐mail, the date of receipt will be deemed the date on which such notice is transmitted.
20.5. Waiver and Severability. GroundCloud’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of GroundCloud. 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. If any of these Terms are unenforceable, it will not affect the enforceability of the rest of the Terms.
21. Contact Information
If you have any questions about these Terms or the Services please contact us at firstname.lastname@example.org or at 920 2nd Ave. South, Ste. 1225, Minneapolis, MN 55402.
VEDR EQUIPMENT AND SERVICES AGREEMENT
This VEDR Equipment and Services Agreement is made and entered into as of today (the “Effective Date”) by and between you and Windigo Logistics, Inc., a Minnesota corporation d/b/a GroundCloud, with its principal place of business at 920 2nd Ave Suite 1225 Minneapolis, MN 55402 (“GroundCloud”). GroundCloud and User may sometimes be referred to in this Agreement, individually, as a “Party” and, collectively, as the “Parties.”
FOR AND IN CONSIDERATION of the mutual covenants contained in this Agreement (as defined in Section 1 below), GroundCloud and User agree as follows:
1. Agreement Documents. The Agreement between GroundCloud and User (the “Agreement”) shall consist of all of the following, as may be amended from time to time:
a. This VEDR Equipment and Services Agreement;
b. Any purchase order of User accepted by GroundCloud;
2. Certain Definitions. In addition to the capitalized terms defined elsewhere in this Agreement and in GroundCloud’s Terms of Service, the following capitalized terms shall have the meanings specified in this Section 2:
“Data” means any data and content you create, post, upload, transmit or otherwise make available via the Services (which may include data you elect to import from Non‐GroundCloud Products you use), and incudes but is not limited to data and video as recorded by the VEDR Equipment on any User Vehicles.
“Delivery Services” means package delivery services performed by User as a contracted service provider for FedEx.
“Documentation” means the written Software and VEDR Equipment related specifications GroundCloud provides to User hereunder.
“FedEx” means FedEx Ground Package System, Inc. and its affiliates
“Non‐GroundCloud Product“ means any software application or service that is provided by You or a third party , which you use in connection with the Service, whether or not GroundCloud designates them as official integrations
“Programs” refers to the software products owned or distributed by GroundCloud, including but not limited to GroundCloud’s logistics management software, to which GroundCloud grants User access as part of the Services, including program documentation, and any program updates provided as part of the Services.
“Routes” refers to the FedEx defined pickup and delivery Routes contracted by User.
“Services” refers to GroundCloud Programs and Services including, but not limited to, Route Planning, Navigation, Time Tracking, Fleet Tracking, Safety Training, and Inspection Reports.
“Software” means any software (in machine executable object code format only, if applicable) provided to User under this Agreement, including, but not limited to, the operating software embedded in the VEDR Equipment.
“Software as a Service” consists of system administration, system management, and system monitoring activities that GroundCloud performs for GroundCloud Programs, and includes the right of User to use the GroundCloud Programs and Services.
“Terms of Service” means GroundCloud’s published Terms of Service, which may be found at www.groundcloud.com/tos, as may hereafter be amended by GroundCloud in its sole discretion and which are fully incorporated into the Parties Agreement by reference.
“User Vehicles” means User‐owned vehicles bearing the “FedEx” trademark.
“Users” means and refers to the entity entering into this Agreement, together with those individuals authorized by You or on Your behalf to use the Services.
“VEDR Equipment” means video recording cameras, sensors and other hardware that are installed on User vehicles, which are used to monitor and record various events, activities, movements, and other Data associated with the operation of the vehicle, and which are remotely accessed by GroundCloud for purposes of providing the Services.
“VEDR SaaS Fees” refer to those fees payable by a User for one or more of the following services: (i) network connectivity, (ii) video‐based driver safety monitoring; and/or (iii) driver safety coaching.
“You” and “Your” refers to the individual or entity that has ordered Software as a Service from GroundCloud.”
“Your Reports” refers to reports the GroundCloud service produces for Your business use, and that belong to You, as distinct from the GroundCloud Services and Programs, which do not.
3. Scope of Agreement.
a. Sale of VEDR Equipment. Subject to the terms and conditions of the Parties’ Agreement, GroundCloud shall sell to User and User shall purchase from GroundCloud VEDR Equipment. The specific VEDR Equipment and applicable pricing will be specified in a separate User purchase order form accepted
by GroundCloud. GroundCloud may, for reasons of availability, substitute the VEDR Equipment specified in a purchase order with alternative VEDR Equipment; provided that such alternative VEDR Equipment is functionally the same, in all material respects, as the ordered VEDR Equipment.
b. Provision of Services and Programs. Subject to the terms and conditions of the Parties’ Agreement hereto, GroundCloud shall provide User with system administration, system management, and system monitoring Services and GroundCloud Programs as specified on Appendix A hereto, and such other Services as may be agreed to in writing by the Parties (by amendment to this Agreement) from time to time. All such Services shall be governed by the terms of this Agreement (including the Terms of Service. During the Term of the Agreement, GroundCloud will provide reasonable updates, enhancements and support to the Programs and Services. In addition, GroundCloud shall be entitled at any time and without liability to improve, modify, suspend, test, maintain or repair the systems used by GroundCloud to provide the Services in whole or in part and/or any other services rendered under this Agreement even if this requires temporarily suspending the operation of the Services, provided that GroundCloud shall use reasonable efforts to minimize all forms of disruption resulting therefrom.
4. User’s Duty of Cooperation. User acknowledges and agrees that GroundCloud’s delivery and installation (as applicable) of VEDR Equipment, and the provision of Programs and Services depends on the full and timely cooperation of the User and its employees, contractors and agents. At all times during the Term of the Agreement, User shall, and shall use commercially reasonable efforts to cause its employees, contractors and agents to, comply with all instructions from GroundCloud relating to deployment of the VEDR Equipment and the provisions of the Services, and shall provide in a timely manner and at no cost to GroundCloud, assistance, cooperation, information, and feedback, as well as access to User personnel, data, facilities and equipment, reasonably necessary to enable GroundCloud to perform its obligations hereunder. User acknowledges that GroundCloud’s ability to perform its obligations under the Agreement may be delayed or adversely affected if User does not comply with all of its obligations under the Agreement.
5. Delivery. All items of VEDR Equipment shall be delivered FOB to GroundCloud’s designated carrier. Title to VEDR Equipment purchased hereunder (excluding title to the Software) will pass to User upon GroundCloud’s delivery to its selected carrier (unless otherwise agreed upon in writing by the Parties). User shall pay all freight, insurance, taxes and duties, and any other shipping related expenses. User must provide GroundCloud with written notice of any discrepancy between the applicable purchase order for the VEDR Equipment and the shipment delivered no later than fifteen (15) calendar days after delivery to User or its designee (including any third party purchaser of User) hereunder. Failure of User to provide timely written notice of any discrepancy with the VEDR Equipment shall constitute acceptance by User.
6. Installation of VEDR Equipment.
a. Installation by GroundCloud. If User contracts for installation services to be provided by GroundCloud, GroundCloud shall use commercially reasonable efforts to install the VEDR Equipment or cause the Equipment to be installed by its designated subcontractor. User shall provide GroundCloud (or its designated subcontractor) with reasonable cooperation, including, without limitation, accurate information about vehicle types, and access to all necessary User personnel, facilities and equipment (including the VEDR Equipment) for the purpose of performing its obligations hereunder. Any GroundCloud installation services provided hereunder shall be provided at the time and location agreed upon by the User and GroundCloud (or its designated subcontractor). User shall be responsible for providing GroundCloud with the applicable VEDR Equipment (subject to supply by GroundCloud) and access to Vehicles on the specified installation date. User shall ensure that each Vehicle is located in a safe, designated installation area protected from adverse weather and environmental hazards. User shall comply with all reasonable instructions related to the installation. GroundCloud shall have no responsibility or liability for failing to complete an installation due to vehicle or VEDR Equipment unavailability, lack of advance notice of accurate vehicle information, or lack of access to an appropriate installation site on the agreed installation date.
Additional fees will apply for any rescheduled installation due to User’s failure to provide GroundCloud access to vehicles, facilities and/or necessary equipment on the scheduled installation date or any other reason caused by User.
b. Installation by User. If User does not contract for installation services to be provided by GroundCloud, then User shall be solely responsible for the installation of the VEDR Equipment on any of User’s Vehicles. User will undertake installation of the VEDR Equipment only after successful completion of the approved installation certification process and receipt of the related certification from GroundCloud or, if applicable, its designated manufacturer. Notwithstanding User’s receipt of such certification, GroundCloud expressly disclaims any and all responsibility for any damages arising out of improper installation and maintenance of any VEDR Equipment not installed by, or on behalf of, GroundCloud. User shall defend, indemnify and hold GroundCloud and its affiliates, shareholders, members, directors, officers, managers, and employees harmless from all damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) resulting from improper installation of the VEDR Equipment by a Party other than GroundCloud or its designated subcontractor.
c. Manufacturers’ Warranties. In the event that (i) GroundCloud (or its designated subcontractor) installs the VEDR Equipment on a User vehicle, or (ii) User installs the VEDR equipment on a User vehicle following receipt from GroundCloud (or its designated manufacturer) of the required installation certification, GroundCloud shall make commercially reasonable efforts to transfer and assign all applicable manufacturer warranties to User. However, if User installs VEDR Equipment on its own vehicle without having first received the required installation certification from GroundCloud (or its designated manufacturer), GroundCloud shall have no obligation to transfer or assign the applicable manufacturer warranties to User. The terms of the assigned manufacturer warranties may vary by manufacturer; copies of the applicable manufacturer warranties are set forth on Exhibit A hereto.
7. Pricing and Payment.
a. Pricing. Subject to the terms of the Agreement, User will pay GroundCloud the fees for the VEDR Equipment as set forth in the governing purchase order(s). Unless otherwise agreed to by the Parties in in writing, the fees for all Services shall be at GroundCloud published rates as set forth at: https://www.groundcloud.com/groundcloud/pricing/. User is responsible for any and all applicable sales, excise, use, value‐added, or other similar taxes that GroundCloud is obligated to collect from User
b. Payment. GroundCloud will bill User monthly for Services rendered to User. User agrees to make payments to GroundCloud within thirty (30) days from the receipt of invoice. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower.
c. Disputes. If User disputes any fee, expense, or other charge, GroundCloud and User will use their best efforts to resolve the dispute within ninety (90) days of the payment due date. GroundCloud will provide copies of all supporting documentation relating to the dispute within thirty (30) days after User has notified GroundCloud in writing of the disputed amount. User may withhold payment of the disputed amount until resolution; provided, however, User may not withhold payment on undisputed portions of the invoice(s).
8. Term of Agreement and Termination.
a. Term. The initial term of this Agreement is one (1) year, beginning on the Effective Date listed above. Thereafter, this Agreement shall automatically renew for subsequent 1‐year periods, unless written notification of non‐renewal is given by either Party at least ninety (90) days prior to the initial expiration date or the expiration of any renewal period.
b. General Termination. Either Party (the “Non‐breaching Party”) may terminate this Agreement immediately by written notice to the other Party (the “Breaching Party”) following the occurrence of any of the following events:
i. The Breaching Party fails to make any payment required hereunder and such failure continues for a period of thirty (30) days after written notice of such breach;
The Breaching Party is in material breach of this Agreement (other than for nonpayment) and such breach is not cured within thirty (30) days after written notice thereof;
The Breaching Party becomes the subject of insolvency or bankruptcy proceedings, ceases doing business, makes an assignment of assets for the benefit of creditors, dissolves, or has a trustee appointed for all or a substantial portion of Breaching Party’s assets.
Amounts Due. Upon termination, any outstanding amounts due hereunder shall be paid to
GroundCloud by User within thirty (30) days from such termination, and GroundCloud shall have no obligation to return any undisputed amounts previously paid by User to GroundCloud
d. Termination of Licenses. Any and all software licenses granted and all Programs and Services provided hereunder shall terminate upon termination or expiration of this Agreement.
9. Limited License.
b. User’s License Term. The User’s License is granted for and shall apply during the applicable term of this Agreement, including any renewal periods, and shall automatically terminate without further action effective upon termination of the Agreement.
c. Restrictions on Use. Except as otherwise expressly provided in this Agreement, User agrees to: (a) only use the Software and Services in the manner, and for the purposes, expressly specified in this Agreement, and be responsible for utilizing the proper version of any Software; (b) not decompile, disassemble, analyze or otherwise examine the Software and/or Services for the purpose of reverse engineering, or facilitate or permit a third party to do so (except to the extent this restriction is expressly prohibited by applicable law); (c) not delete or in any manner alter any notice, disclaimers or other legends contained in the Software and Services or appearing on any screens, documents, reports, numeric results or other materials obtained by User through use of the Software and Services (“Notices”); (d) reproduce and display all Notices on Copies User makes, in accordance with this Agreement; (e) not attempt to access any systems, programs or data of GroundCloud that are not licensed under this Agreement; (f) not copy, reproduce, republish, upload, post, transmit or distribute the Software or Services, or any portion thereof, or facilitate or permit a third party to do so; and (g) not use any device or software to interfere or attempt
to interfere with the proper operation of the Software and Services. GroundCloud may immediately terminate this Agreement in the event that User breaches the provisions of this Section 9.
d. Retained Rights. Except for the limited license granted to User herein, this Agreement does not confer or transfer to User any right, title or interest in or to the Software, any documentation, or any intellectual property rights relating thereto. GroundCloud and its licensors retain all right, title and interest in and to the foregoing. User for itself, and on behalf of each employee designated by User to use the Software (an “End User”), agrees to keep all items to which GroundCloud or any of its licensors retains title free and clear of all claims, liens and encumbrances except those of GroundCloud or its licensors, and any act of User or End User, voluntary or otherwise, purporting to create a claim, lien or encumbrance on any such item is void.
10. User Data. As between GroundCloud and User, User shall own the information, data and content captured by the VEDR Equipment in User’s possession or otherwise provided by User to GroundCloud in connection with GroundCloud’s provision of the Services (“Data”). The Data will be User’s Proprietary Information; provided, however, that, GroundCloud and its subcontractors shall have the right to use such Data in connection with performance of Services hereunder and to improve and expand GroundCloud’s VEDR Equipment and Services. In addition, but subject to the provisions in Section 11 (Sharing of User Data with FedEx), GroundCloud shall have the right to use and disclose any components of the Data for any lawful purposes; provided that, GroundCloud does not indicate to any third party that such components were provided by, obtained from, or associated with, the User or User’s personnel. Such usage rights shall continue and survive destruction of any video clips to which such Data components relate. User also grants GroundCloud a perpetual right to use Data from video clips for demonstration purposes, provided that User’s name and logo are obscured and GroundCloud does not indicate to any third party that such video clips were provided by, obtained from, or associated with, the User or User’s personnel. The rights granted to GroundCloud pursuant to this Section 10 shall survive termination and expiration of this Agreement.
11. Sharing of User Data with FedEx.
a. Authorization. Notwithstanding any limitations on GroundCloud’s right to use User’s Data in Section 10, above, User acknowledges and agrees that GroundCloud, whether by separate agreement with FedEx or otherwise, may freely utilize the video recordings and other User Data concerning the activities of User’s personnel and the operation of the User Vehicles in order to assess individual User’s compliance with certain “Key Indicators” (as may be defined by FedEx at any time) in the performance of Delivery Services, and also to identify accidents and other incidents that may give rise to “Public Liability Claims” (as may be defined by FedEx at any time). In addition to the foregoing, User expressly authorizes GroundCloud to provide FedEx, or its designee, with each of the following
Proof of installation of VEDR Equipment in User’s Vehicles and on‐going connectivity of VEDR Equipment with GroundCloud systems;
Copies of any raw User Data, including but not limited to, copies of video footage, video events, and meta‐data elements related to video, as may be requested of GroundCloud from time‐to‐ time by FedEx, or its designee; and
Summaries and evaluations based on User Data, prepared by GroundCloud, or its designated subcontractors, including but not limited to, assessments as to whether User is meeting the minimum thresholds for FedEx’s Key Indicators (as may be applicable at the time) and any other associated minimum thresholds as may be communicated by GroundCloud to FedEx (including, but not limited to, providing any “pass‐fail” judgments as determined by GroundCloud in its sole judgment).
b. Preservation of Data. User has full responsibility for maintaining VEDR Equipment in an operating condition to record Data and to preserve Data. For the avoidance of doubt, GroundCloud has no obligation to provide any User Data to FedEx or its designee, and User assumes full responsibility for preserving and sharing its Data with FedEx and its designees.
c. Indemnification. User agrees to defend, indemnify and hold harmless GroundCloud and its affiliates, shareholders, members, directors, officers, managers, and employees harmless from all damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) resulting from the inability or any failure by GroundCloud to share User’s Data with FedEx or its designees.
a. Manufacturer Warranties as to VEDR Equipment. Pursuant to the provisions of Section 6(c), if GroundCloud (or its designated subcontractor) installs the VEDR Equipment on a User vehicle, or if User installs the VEDR equipment on a User vehicle following receipt from GroundCloud or its designated manufacturer of the required installation certification, GroundCloud hereby assigns and transfers to User (to the extent it is able to do so) any and all rights in any applicable manufacturer warranties to User, the terms of which are set forth on Exhibit A hereto. IF, HOWEVER, USER INSTALLS VEDR EQUIPMENT ON ITS OWN VEHICLE WITHOUT HAVING FIRST RECEIVED THE REQUIRED INSTALLATION CERTIFICATION FROM GROUNDCLOUD (OR ITS DESIGNATED MANUFACTURER), THEN GROUNDCLOUD DOES NOT TRANSFER OR ASSIGN APPLICABLE MANUFACTURER WARRANTIES TO USER. IF GROUNDCLOUD ASSIGNS APPLICABLE MANUFACTURER WARRANTIES TO USER, USER ACKNOWLEDGES AND AGREES THAT WITH RESPECT TO ANY CLAIM FOR BREACH OF WARRANTY (REFERRED TO AS A “WARRANTY CLAIM”), ITS USE AND POSSESSION OF ANY VEDR EQUIPMENT AND ANY RIGHTS OF USER RELATING TO A WARRANTY CLAIM SHALL BE GOVERNED SOLELY BY THE TERMS OF ANY TRANSFERRABLE VEDR EQUIPMENT MANUFACTURER’S WARRANTY, AND USER SHALL LOOK SOLELY TO THE THIRD PARTY MANUFACTURER, AND NOT TO GROUNDCLOUD, WITH RESPECT TO ANY AND ALL APPLICABLE VEDR EQUIPMENT WARRANTY CLAIMS. IF USER INSTALLS THE VEDR EQUIPMENT ON A USER VEHICLE WITHOUT FIRST HAVING RECEIVED THE REQUIRED INSTALLATION CERTIFICATION FROM GROUNDCLOUD (OR ITS DESIGNATED MANUFACTURER), USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE VEDR EQUIPMENT SHALL BE ACCEPTED AND USED BY USER “AS‐IS,” WITHOUT ANY PRODUCT WARRANTY OF ANY KIND.
b. Warranty as to Services. GroundCloud warrants to the User that any Services to be performed hereunder shall be performed in a professional and workmanlike manner, consistent with nationally recognized industry standards and in accordance with applicable federal, state and local laws. GroundCloud warrants that it and its subcontractors have obtained and shall maintain during the term and any renewals of this Agreement all licenses, authorizations, approvals, consents and permits required to perform the Services. GroundCloud (and its vendors, subcontractors and suppliers) shall, at all times, provide skilled, experienced, competent personnel to perform the Services. GroundCloud’s and its licensors’, suppliers’, subcontractors’, and distributors’ sole liability, and User’s exclusive remedy, under this Section 12(b) shall be for GroundCloud, at its option, to either (i) use commercially reasonable efforts to replace any non‐ functioning Software with functional Software and, to the extent necessary, correct material defects in the Software which impair its functionality, or (ii) refund to the User any fees received by GroundCloud from User for the Services during any period for which they did not function as represented. The foregoing service warranty is conditioned upon normal maintenance and use in conformity with instructions furnished by GroundCloud from time to time and the VEDR Equipment not having been subjected to misuse, neglect, or accident or alteration, repair or improper testing in any respect by a party other than GroundCloud or its representatives. In addition, this Services warranty will not apply and GroundCloud will have no liability for breach of its warranty to the extent such breach is due to (i) delays or inability to perform that are beyond the reasonable control of GroundCloud; or (ii) errors or omissions on the part of the User, its agents, employees, or subcontractors.
c. Limitation of Warranties. THE LIMITED EXPRESS WARRANTIES IN THIS SECTION 12 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY; AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 12, GROUNDCLOUD AND ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS, AND DISTRIBUTORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON‐INFRINGEMENT. GROUNDCLOUD AND ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS MAKE NO WARRANTY THAT THE SERVICES OR THE OPERATION OF ANY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, THAT ALL DEFECTS IN THE SOFTWARE CAN BE CORRECTED, OR THAT ANY SPECIFIC RESULT OR OUTCOME WILL BE ACHIEVED BY UTILIZING THE VEDR EQUIPMENT OR SERVICES. GROUNDCLOUD, ITS LICENSORS, SUPPLIERS, AND SUBCONTRACTORS DO NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE CONTINUOUS OR UNINTERRUPTED. GROUNDCLOUD SHALL HAVE NO LIABILITY FOR ACTS OR OMISSIONS OF USER OR OTHER THIRD PARTIES OVER WHOM IT HAS NO CONTROL, INCLUDING THE ACTS OR OMISSIONS OF USER’S PERSONNEL IN THE OPERATION OF VEHICLES OR THE PERFORMANCE OF DELIVERY SERVICES. USER SHALL DEFEND, INDEMNIFY AND HOLD GROUNDCLOUD AND ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES HARMLESS FROM ALL DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) RELATING TO THE ACTION OR INACTION OF USER’S PERSONNEL, SUBCONTRACTORS OR ANY OTHER PARTY FOR WHOSE ACTS USER IS RESPONSIBLE, EXCEPT TO THE EXTENT OF GROUNDCLOUD’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
13. Limitations of Liabilities. UNDER NO CIRCUMSTANCE SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTIONS, LOSS OF DATA, OR FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, AND WHETHER SUCH LIABILITY ARISES FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ALL EVENTS, THE LIABILITY OF THE PARTIES TO EACH OTHER UNDER THIS AGREEMENT FOR DAMAGES OR LOSS OF ANY KIND SHALL NOT EXCEED THE GREATER OF (A) THE SUM OF $5,000, OR (B) IF YOU HAVE ORDERED SERVICE FROM GROUNDCLOUD, THE TOTAL AMOUNT OF FEES RECEIVED BY GROUNDCLOUD FROM YOU FOR VEDR SAAS SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT OR ACTION GIVING RISE TO THE DAMAGES CLAIMED BY A PARTY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THIS BARGAIN BETWEEN GROUNDCLOUD AND YOU.
14. Representations, Warranties and Covenants of User. User represents, warrants, and covenants to GroundCloud as follows:
That User and its personnel shall comply with all applicable laws in connection with its use of the VEDR Equipment, the operation of the Vehicles, performance of Delivery Services, and User’s obligations under this Agreement;
That GroundCloud has, and shall have at all times relevant have legally sufficient authorization and permissions from User with respect to the access, collection of, and use of User’s Data, and the provision of Data to FedEx pursuant to the terms of the Agreement; and
That User will use and maintain the VEDR Equipment only in accordance with the provisions of this Agreement and that it will not use the VEDR Equipment for any purposes other than those expressly authorized by this Agreement.
Representations, Warranties and Covenants of GroundCloud. GroundCloud represents, warrants, and covenants to User as follows:
That GroundCloud shall comply with all applicable laws, including those applicable to privacy and personal data, in connection with the performance of Services, and GroundCloud’s obligations under this Agreement; and
That it has all required licenses to provide the Services to User and that the provision of Services by GroundCloud shall not infringe upon the intellectual property rights of any third parties.
shall defend, indemnify, and hold GroundCloud, and its affiliates, shareholders, members, directors, officers, managers, and employees, harmless from and against any claim, action, proceeding, loss, liability, or damages including, without limitation, reasonable attorneys’ fees and costs (collectively, “Losses”) arising from or related to (a) User’s access to or use of the Services, (b) User’s breach of this Agreement; (c) User’s misuse of VEDR Equipment or Data; (d) any allegation that the collection, processing, storage, transmission or sharing of Data either (i) violates any agreement between User and any third party, or (ii) infringes on any rights of a third party, or (e) Your performance or non‐performance of services for third parties while using our Services.
b. Indemnification by GroundCloud. GroundCloud shall defend, indemnify, and hold User, and its affiliates, shareholders, members, directors, officers, managers, and employees, harmless from and against any Losses arising from or related to GroundCloud’s breach of this Agreement.
a. Proprietary Information. Each Party recognizes that it may have access to the other Party ‘s confidential information, including but not limited to trade secrets, technical product information, financial and marketing data, catalog information, customer lists, sales records and leads, specific knowledge of the types and categories or items ordered by customers and particular needs and requirements related thereto, as well as pricing, business practices and other proprietary commercial information (the “Proprietary Information”) and that Proprietary Information constitutes valuable special and unique property of such Party.
b. Non‐Disclosure. Each Party agrees that it will not, for any reason or purpose whatsoever, during the term of this Agreement and thereafter, directly or indirectly, disclose to any third party, or use for its own purposes, any of the Proprietary Information without the other Party’s written authorization, except as is necessary in the ordinary course of performing its duties under this Agreement. In the event of a breach or threat of breach by a Party of the provisions of this section, the non‐breaching Party shall be entitled to an injunction restraining such Party from using or disclosing the Proprietary Information, but the foregoing shall not be construed as prohibiting the non‐breaching Party from having available to it any other remedy, either at law or in equity, for such breach or threatened breach, including but not limited to the recovery of damages from such breaching Party.
c. Exceptions. This section does not apply to Proprietary Information that: (i) is or becomes publicly available through no fault of the recipient; (ii) is or has been received in good faith by the recipient without restriction on use or disclosure from a third party having no obligation of confidentiality to the disclosing Party ; or (iii) is or has been independently developed by the recipient without reference to Proprietary Information received from the disclosing Party, as evidenced by the recipient’s written records.
18. Tradenames and Trademarks. Except as may be expressly provided in the Parties’ Agreement, this Agreement does not grant to any Party a license to use any trademark, trade name or logo of the other Party, and each Party recognizes that the trademarks, trade names and logos of the other Party represent valuable assets of
Indemnification by User. In addition to any obligations arising under the Terms of Service, User
that Party and that substantial recognition and goodwill are associated with such trademarks, trade names and logos. Each Party hereby agrees that it shall not use or permit any third party to use, at any time, the other Party’s trademarks, trade names or logos, except that GroundCloud may use User’s name, logo and/or trademark for the limited purpose of identifying User as a User of GroundCloud in any advertising, promotion, announcement, or marketing literature relating to the services offered by GroundCloud
19. Compliance with Laws. Each Party shall comply with all applicable laws and regulations, including, without limitation: the U.S. Foreign Corrupt Practices Act, all laws relating to data privacy and the use of information provided by the User to GroundCloud hereunder, international communications, and the transmission of technical or personal data, and all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority. User shall not export, or allow the export or re‐export of any VEDR Equipment in violation of any such restrictions, laws or regulations. User shall obtain and bear all expenses relating to any necessary licenses, permits, and/or exemptions and any duties and fees with respect to the export from the U.S. of all VEDR Equipment to any location and shall demonstrate to GroundCloud compliance with all applicable laws and regulations prior to delivery thereof by GroundCloud
20. Force Majeure. Neither Party shall be liable for any delay or default in performing its obligations (other than payment obligations) if such default or delay is caused by any event beyond the reasonable control of such Party, including, but not limited to, acts of nature, war or insurrection, civil commotion, destruction of production facilities or materials by earthquake, fire, storm or flood, material or Products shortages, labor disturbances, epidemic, or other similar event. The Party suffering such cause shall immediately notify the other Party of the cause and the expected duration of such cause and shall use commercially reasonable efforts to remedy its inability to perform. If either Party’s performance is delayed by more than sixty (60) days pursuant to this Section, the other Party may immediately terminate this Agreement by written notice given before the affected Party resumes performance
21. Relationship of the Parties. This Agreement shall not be deemed to create any agency, joint venture, partnership or similar working relationship between the Parties. The Parties are independent entities and neither Party shall have any right or authority to assume or create any obligations, or to make any representations or warranties on behalf of the other Party, whether express or implied, or to bind the other Party in any respect. A Party shall not take any action that could lead a third party to believe it has such authority. Nothing stated in this Agreement shall be construed as creating relationships of partners, employer and employee, franchisor and franchisee, or principal and agent between the Parties.
22. Use of Subcontractors. GroundCloud shall be entitled to subcontract (in whole or in part) GroundCloud’s responsibilities under this Agreement to a third party of GroundCloud’s choice, but GroundCloud shall remain responsible for GroundCloud’s subcontractor’s actions in carrying out GroundCloud’s obligations under this Agreement; provided, however, that any delegation of the work associated with this Agreement through subcontracting shall not relieve GroundCloud of its responsibilities under the Agreement nor result in extra cost or liability to User.
23. Survival of Certain Obligations. The termination of this Agreement shall not relieve either Party of its obligations or negate the limitations under Section 6 (Installation of VEDR Equipment), Section 7 (Pricing and Payment), Section 9 (Limited License), Section 10 (User Data), Section 11 (Sharing of User Data with FedEx), Section 12 (Warranties), Section 13 (Limitations of Liabilities), Section 14 (Representations, Warranties and Covenants of User), Section 15 (Representations, Warranties and Covenants of GroundCloud), Section 16 (Indemnification), Section 17 (Proprietary Information), Section 18 (Tradenames and Trademarks), Section 19 (Compliance with Laws), Section 20 (Force Majeure), Section 21 (Relationship of the Parties), Section 26 (Inconsistent Terms), Section 28 (Severability) or Section 29 (Choice of Law; Venue), all of which shall survive the expiration or termination of this Agreement for any reason.
24. No Assignment. User shall not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of GroundCloud. Any unauthorized attempted assignment by User shall be null and void and of no force or effect. This Agreement shall be binding on all successors and assignees. The Parties agree that (a) GroundCloud may assign or transfer this Agreement as part of a sale of all or substantially all of its assets or stock or in a merger with or into another business entity or in connection with any similar type of transaction; and (b) GroundCloud may assign this Agreement to an affiliate.
25. Entire Agreement. This Agreement includes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all other prior understandings, correspondence, and agreements, oral or written, between them with respect to the subject matter hereof. No term of this Agreement may be amended or waived without the written agreement of the Parties. Failure to enforce any provision of this Agreement by a Party shall not constitute a waiver of any term hereof by such Party.
26. Inconsistent Terms. The documents constituting the Parties’ Agreement are as described in Section 1 above, and the terms and conditions of the Agreement shall apply to all proposals, quotations, purchase orders, acknowledgements, acceptance forms and invoices (collectively, “Ancillary Documents”) received by GroundCloud from User for any VEDR Equipment, Programs and Services sold or provided by GroundCloud. Any attempt to vary in any degree the terms and conditions of the Agreement by Ancillary Documents are hereby objected to and rejected unless expressly agreed otherwise by the Parties in writing.
27. Waiver. No failure or delay by a Party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver of any such right or remedy.
28. Severability. Any provision of this Agreement that is held to be unenforceable in any jurisdiction shall be ineffective only as to that jurisdiction, and only to the extent of the unenforceability of such provision without invalidating the remaining provisions hereof.
29. Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the state of Minnesota, without giving effect to the principles of conflicts of laws thereof. Subject to the Dispute Resolution provisions and Arbitration Agreement in the Terms of Service, any legal proceeding relating to this Agreement shall be the state or federal courts located in Minneapolis, Minnesota.
30. Notices. Except as otherwise provided in this Agreement, all notices, demands and other communications provided for hereunder shall be in writing and shall be given by (i) by email (with confirmation of delivery); (ii) by personal delivery; or (iii) by nationally recognized overnight courier (prepaid), sent to each Party, at its/his address as set forth below or at such other address or in such other manner as may be designated by such Party in written notice to each of the other Parties. All such notices, demands and communications shall be effective when personally delivered, one (1) business day after delivery to the overnight courier, or upon receipt after dispatch by mail to the Party to whom the same is so given or made:
If to GroundCloud:
Windigo Logistics, Inc., d/b/a GroundCloud
920 2nd ave south Suite 1225
Minneapolis, MN 55402
Attn: David Leland, CEO