ELD ONE™ End User License Agreement
1. Grant of Rights.
Subject to your complete and ongoing compliance with all the terms and conditions of this License, TMS ONE grants you (1) a limited, non-exclusive, non-transferable, revocable license, without the right of sublicense, to install and use the authorized number of copies of the Software for each month that you have paid for in advance (one copy used in each unit) solely in machine-readable form and solely for your use for lawful purposes, on the authorized number of compatible mobile devices that you or your drivers own or control, and (2) right to access and use the Service and its contents.
2. Use Restrictions.
You may not: copy, sell, rent, sublicense, assign, modify, publicly display or distribute, or make a derivative work from the Software or Service. The Software contains valuable trade secrets owned by TMS ONE. To the extent permitted by applicable law, you may not reverse engineer, decompile, recompile or otherwise access the Software or Service source code; use the Software or Service on behalf of others or allow any third party to access the Software. The Software and Service allow communications to be sent between you and your drivers so you and your drivers may not send SPAM or otherwise duplicative or unsolicited messages in violation of applicable laws; send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material which violates privacy rights; send or store material containing viruses or other harmful computer code; interfere with or disrupt the integrity or performance of the Software or Service; or attempt to gain unauthorized access to the Software.
3. Location-Based Data.
The primary purpose of the Software and Service is for a carrier to track its units. By logging into the Software, you authorize TMS ONE to access your location and report it in the Service. You agree and acknowledge that (1) location data TMS ONE collects from you is directly relevant to your use of the Software and Service and (2) TMS ONE may, for so long as your drivers allow, provide drivers locations to the Service so that they may be monitored by you, as the carrier. If you choose to disable the Software, you will not be able to effectively use the Service. PLEASE BE AWARE OF THE FACT THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE AND TMS ONE DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION DATA. If you provide data about equipment or loads, including but not limited to source and destination, contract rate, lane usage, and equipment type, you agree TMS ONE may use that data for any analytical purposes to improve the Software and Service. If you use the Software outside the United States, you expressly consent to the transfer and processing of your data outside that jurisdiction.
4. Intellectual Property Ownership.
TMS ONE exclusively owns all title and copyright in the Software and Service. You may not remove or alter any copyright notice or other warning displayed in the Software or Service. This License is not a sale and does not convey any of these rights of ownership to you.
TMS ONE reserves the right, in its sole discretion, to change, modify, add, or remove portions of the Software or Service, or to change, modify, add, or remove portions of this License at any time by making the modified License available to you through the Service. The License will be identified as of the most recent date of revision and will be effective immediately upon being made available through the Service, except as follows: (1) in the event any modification materially alters your rights, TMS ONE will attempt to notify you directly through a message sent to the email address you have provided to TMS ONE, if any, or through a pop-up window or other notification when you access or use the Software or Service, (2) such materially modified License will be effective upon the earlier of your use of the Service with actual knowledge of the changes or 30 days after the changes are made available to you, and (3) no modifications to this License will apply to any dispute between you and TMS ONE that arose prior to the date of such modification. Your use of the Service after modifications to the License become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of the EULA or any modifications, then you agree that your sole and exclusive remedy is to discontinue any use of the Software and Service.
6. Third-Party Communications Systems.
In order to use the Software and Service, you must use third party communication systems such as mobile phones or similar devices and their related wireless service. TMS ONE HAS NO RESPONSIBILITY FOR THE AVAILABILITY, QUALITY OR PERFORMANCE OF THIRD-PARTY COMMUNICATIONS SYSTEMS OR EQUIPMENT FURNISHED BY COMMUNICATIONS CARRIERS.
7. No Warranties.
THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND. TMS ONE DOES NOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR SERVICE. YOU ASSUME THE ENTIRE RISK AS TO RESULTS AND PERFORMANCE OF THE SOFTWARE AND SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TMS ONE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE, COMMON LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. TMS ONE DOES NOT REPRESENT OR WARRANT THAT (1) THE USE OF THE SOFTWARE WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER DEVICE, SOFTWARE, SYSTEM, OR DATA; (2) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (3) ERRORS OR DEFECTS WILL BE CORRECTED; OR (4) THE SOFTWARE AND SERVICE WILL ALWAYS BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
8. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TMS ONE BE LIABLE FOR PERSONAL INJURY OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR SERVICE, EVEN IF TMS ONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS LICENSE. IN NO EVENT SHALL TMS ONE’S TOTAL LIABILITY IN CONNECTION WITH THIS LICENSE EXCEED THE ACTUAL AMOUNT PAID TO TMS ONE FOR THE USE OF THE SOFTWARE AND SERVICE GIVING RISE TO THE CLAIM. THIS LIMITATION MAY NOT APPLY TO CERTAIN JURISDICTIONS.
You agree to indemnify, defend and hold TMS ONE and its affiliates, officers, directors, and employees, harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of your use or misuse of the Software or Service, and you violation of this License, any applicable law or regulation, or the rights of any third parties related to the use of the Software or Service.
Your rights under this License will terminate immediately without notice if you do not comply with all of the terms of this License. You may terminate the License by uninstalling the Software and ceasing to use the Service. TMS ONE may terminate this License at any time for any reason, including any actual or suspected misuse or abuse by you of the Software or Service. Sections 4, 6-8, 10 and 12 will survive any termination of this License.
11. Governing Law and Arbitration.
This License shall be construed and governed under the substantive laws of the State of Illinois, without effect of conflict of law’s provisions. To the extent that any court proceeding is permitted in this License, you and TMS ONE agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Cook County, Illinois for the purpose of litigating all such disputes. However, you agree that all disputes brought under this License shall be resolved by binding arbitration before an arbitrator under the commercial arbitration rules of ADR Systems in Chicago. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION.
By accepting this License and using the Software and Service, you acknowledge and confirm that you are a bona fide shipper, third-party logistics provider, freight forwarder, intermodal or rail company or motor carrier of legal age to operate and to enter into this License.
13. U.S. Government Users.
For U.S. Government agencies or contractor licensees, use, duplication or disclosure of the Software is granted with “Restricted Rights” subject to the restrictions set forth in this License and as provided in FAR 52.227.19(c)(2) or subparagraph (c)(1)(ii) of the rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and/or in similar or successor clauses in the FAR, or the DOD or NASA FAR Supplement.
14. International Use.
The Service is controlled and operated from within the United States and intended for use within the United State. TMS ONE makes no representations that the Software or Service is appropriate in locations outside the United States. Those who choose to access the Software or Service from other locations are responsible for compliance with applicable laws.
This License is the entire agreement between you and TMS ONE, and supersedes any and all prior agreements, negotiations, or other communications between you and TMS ONE, whether oral or written, with respect to the subject matter of this License. You may not export or re-export the Software without (1) the prior written consent of TMS ONE; and (2) complying with applicable export control laws and obtaining any necessary permits and licenses. In the event that any provision of this License is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from this License; and (b) the validity and enforceability of all of the other provisions, shall in no way be affected or impaired by that change. You may not assign this License without the prior written consent of TMS ONE, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. TMS ONE may assign this License without restriction and without any notice to you or consent from you. Subject to the foregoing, this License shall be binding on the parties and their respective successors and permitted assigns. The failure to exercise, or delay in exercising, a right, power or remedy provided in this License or by law shall not constitute a waiver of that right, power or remedy. TMS ONE’s waiver of any obligation or breach of this License shall not operate as a waiver of any other obligation or subsequent breach of the License.
1. Information We Collect.
2. Location-Based Data.
When you use the Software, we collect certain technical and routing information about your mobile device like the browser type, operating system, CPU speed, and Internet Protocol (“IP”) address of your originating Internet service provider. The App is primarily designed, however, to track driver location and load status as well as to allow shipping customers to see a status of their particular delivery. We use the IP address to track your use of the Service, including pages visited and time spent on each one. All of the information that is automatically submitted to us by your browser is considered anonymous information. To the extent that we share such information with third parties, it is not traceable to any particular user and will not be used to contact you.
4. How We Use the Collected Information.
We collect personally identifiable information only for the purpose of displaying information about your specific unit to the fleet owner and shipping customers. When you submit personally identifiable information to us, you understand that you are agreeing to allow us to access, store and use that information for those purposes. We may be required by law enforcement or judicial authorities to provide personally identifiable information to the appropriate governmental authorities. If we receive such a request, we will provide the requested information on receipt of the appropriate documentation, like a subpoena or court order. We may also release information to law enforcement agencies or other third parties if we feel it is necessary to protect the safety and welfare of our personnel. We do not share any of your personally identifiable information with anyone else but may share anonymous information with our advertising partners.
5. Transfer of Customer Information.
Customer lists and information are considered assets of our business. If we merge with another entity or sell our assets to another entity, our customer lists and information, including personally identifiable information you have provided us, would be included among the assets that would be transferred.
We strive to maintain secure data networks protected by industry standard firewall and password protection. Our security and privacy policies are periodically reviewed and enhanced as necessary and only authorized individuals have access to the personally identifiable information that is provided by our users. We do not, however, guarantee that unauthorized, inadvertent disclosure will never occur.
7. Background Location.
ELD ONE application needs to use background location as this is a requirement of Federal Motor Carrier Safety Administration (FMCSA) Electronic Logging Device (ELD) mandate. We must satisfy FMCSA’s minimal requirements including collecting and recording the exact geolocation. Due to the fact that ELD ONE application is a tool used by drivers throughout the day (shift), drivers periodically lock and minimize the application on their tablets/phones and we must continue to track their location in the background. This is one of the main requirements of the mandate as geolocation must be recorded and shown during specific events such as but not limited to Driving, Intermediate Location, On/Off duty statuses.