Valgen End User License Agreement

Terms and Conditions

Valgen has developed ProsperFleet, a proprietary intelligence platform to provide analysis, insights and data to the commercial fleet market (“Platform”). Platform shall be licensed through an agreement (“Agreement”) directly to organizations (“Organization”) and its end-users (“User” or “Users”) or indirectly through resellers, distributors or white label partners (“Partners”).

PLEASE READ CAREFULLY THE END USER SERVICES AND LICENSE AGREEMENT (“LICENSE”) BEFORE ACCESSING, OR USING THE SOFTWARE OR OTHERWISE INSTALLING, USING OR RUNNING ANY SOFTWARE (AS DEFINED BELOW), PROVIDED TO YOU (“USER”, “YOU”) BY VALGEN, INC. (AS DEFINED BELOW) DIRECTLY, OR INDIRECTLY THROUGH A DISTRIBUTOR, RESELLER OR OTHER THIRD PARTY LICENSED AND AUTHORIZED BY VALGEN (“VALGEN”).

BY ACCESSING OR USING SERVICES IN ANY MANNER INCLUDING BY INSTALLING, HAVING INSTALLED, CONTROLLING, LOGGING IN TO PLATFORM, ACCESSING OR OTHERWISE USING ANY VALGEN SOFTWARE OR UPDATES AND UPGRADES THEREOF IN ANY MANNER, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY ALL THE TERMS AND CONDITIONS HEREOF. YOU REPRESENT THAT YOU HAVE FULL RIGHT, POWER, AND AUTHORITY TO ENTER INTO AND PERFORM HEREUNDER. YOU MAY NOT ACCESS OR USE THE SERVICES IN ANY MANNER NOR INSTALL, DEPLOY, CONTROL, ACCESS OR USE ANY VALGEN SOFTWARE IN ANY MANNER, UNTIL YOU HAVE ACCEPTED THESE TERMS. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.

THESE TERMS ARE MADE BETWEEN YOU AND (I) VALGEN, IF YOU RESIDE IN THE USA, OR CANADA OR (II) ANY ONE OF VALGEN AFFILIATES AT VALGEN’S DISCRETION IF YOU RESIDE ELSEWHERE (VALGEN AND ANY OF ITS AFFILIATE SHALL BE COLLECTIVELY REFERRED TO AS “VALGEN”), WITH RESPECT TO THE SERVICES AND ANY VALGEN SOFTWARE, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY OTHER DOCUMENT, AGREEMENT OR ARRANGEMENT BETWEEN YOU AND ANY THIRD-PARTY INCLUDING DISTRIBUTOR OR ANYONE ON ITS BEHALF.

YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES AND VALGEN SOFTWARE, FOR YOUR RELIANCE ON THE SERVICES AND VALGEN SOFTWARE AND FOR ANY USE OF ANY OF THE FOREGOING NOT IN ACCORDANCE WITH THE TERMS HEREOF OR AS CONTEMPLATED HEREUNDER.

SECTION 1: GRANT OF LIMITED LICENSE

VALGEN grants you, the User, subject to full compliance with the terms and conditions set forth herein and, in the Agreement, a non-exclusive, non-transferable, non-sublicensable, right for the duration of the Services Term solely for the operation of the Platform. 

In General. Valgen hereby grants you, the User, a limited, non-exclusive, non-transferable license to use Platform during the Term, solely for the operation of the Platform (the “License”).

1.2.  Authorized Users.  Users, whether located in or outside of the U.S., and their usage of the Platform are Organization’s responsibility, and Organization must comply with all applicable laws and security protocols pertaining to their access, including applicable export laws, restrictions, and regulations. Platform shall not be used or copied/distributed to prohibited countries, specifically China or Russia, persons or entities as indicated in an Office of Foreign Assets Control (OFAC) of the US Department of Treasury list.

1.3.  Restrictions. User shall not (a) decompile, reverse engineer, or otherwise attempt to obtain the source code for Platform; (b) sublicense or allow any third party (other than contractors, for whom User shall be wholly responsible) to use Platform, except pursuant to the normal operation of the Platform; (c) use the name or proprietary logo(s) of Valgen (including ProsperFleet) without Valgen’s prior written consent; (d) use Platform for any purpose other than the operation of the Platform; (e) use Platform in a manner that interferes with the use by Valgen, its other customers or partners; (f) use the Platform to create a competing electronic platform for the purpose of offering a fleet intelligence system; or (g) use the Platform for illegal or fraudulent use.

1.4. Protected Branding. Valgen owns a number of distinct branded terms. These branding components shall include but are not limited to brand names Valgen, ProsperFleet, ProsperServe, ProsperVue, the Valgen stacked squares logo (collectively, “Branded Terms”) and websites Valgen.com, prosperfleet.com, prospervue.com and prosperserve.com. Unless otherwise authorized in writing by Valgen, the user shall refrain from using the Branded Terms in any material, marketing or copy, including access to the Platform provided through a white label partner agreement.

1.5.  Incorporation of Valgen.com’s Terms of Service. Usage of Platform is predicated on the online Terms of Service governing Accounts and Users is found at https://www.valgen.com/terms-and-conditions (the “Online Terms”). User acknowledges that it has read and agrees to be bound by the Online Terms and understand all capabilities and limitations of Platform. Users to the Platform must follow the proper sign-up process and hereby consent to the Terms in creating their accounts and will be bound by them. In the event of any conflict between the Online Terms and an Agreement between Organization or Partner, the Agreement shall govern.

SECTION 2: THIRD-PARTY AND WARRANTY

2.1.  THIRD PARTY SOFTWARE. IN ACCEPTING THESE TERMS, YOU CONFIRM AND ACKNOWLEDGE THE UTILIZATION OF THIRD-PARTY SOFTWARE COMPONENTS IN THE VALGEN SOFTWARE AND ACKNOWLEDGE THAT SUCH THIRD-PARTY COMPONENTS ARE BEING DELIVERED TOGETHER WITH THE VALGEN SOFTWARE, WITH YOUR CONSENT AND USE THEREOF IS SUBJECT TO THEIR RESPECTIVE LICENSES’ TERMS AS AND TO THE EXTENT MADE AVAILABLE TO YOU BY VALGEN. WITHOUT DEROGATING FROM VALGEN’S LIMITED WARRANTY PROVIDED IN SECTION 2.2 BELOW, SUCH THIRD-PARTY COMPONENTS ARE UTILIZED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER AND VALGEN HEREBY EXPRESSLY DISCLAIMS WITH RESPECT TO ANY SUCH THIRD-PARTY COMPONENTS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

2.2.  Warranty.  VALGEN’s warranty under Section 3.1 above will not apply in the event the VALGEN Software or any part thereof is (i) modified or adjusted in any manner by any party other than VALGEN or without VALGEN’s written approval, (ii) used in conjunction with your or any third party’s products, which resulted in the defect, other than as specified in the Documentation or approved in writing by VALGEN, (iii) abused, mishandled, misused or otherwise used not in accordance with the Documentation and these Terms, or (iv) was not fully paid for, or (v) was not promptly updated with VALGEN’s most recent Software release provided to you by VALGEN. VALGEN’s warranty hereunder is a one- time warranty and does not restart upon the provision of any updates, upgrades or new releases of the VALGEN Software or any part thereof.

SECTION 3: ORGANIZATION’S OBLIGATIONS WITH REGARD TO PLATFORM USAGE

3.1.  Supervise Platform Users. Organization shall retain responsibility for all its Users to ensure proper use of Platform in accordance with these terms and the Online Terms.

3.2.  Platform Operation. User shall (a) use Platform in an operating environment (e.g., hardware and software) recommended by Valgen for validity of warranty, which are Windows and iOS operating systems, and Chrome, Firefox, Edge and Safari browsers.

3.3.  Data Authorization.  User hereby grants Valgen permission to collect information on their use of the Platform, and within the parameters indicated by Valgen. Further, Valgen may collect, use, share and store data made available via the Platform in connection with the Services provided, including analyzing performance, monitoring acceptable use and ensuring stability of the Platform.

3.4.  Compliance with Applicable Laws. User when operating the Platform shall comply with all applicable laws, rules and regulations.

SECTION 4: DATA CREDITS AND USAGE

4.1.  Data Credits. Users shall be provided credits to download data through an authorized administrator of their licensing Organization (“Credits”). The Credits when assigned to the Organization are non-refundable, however they will remain valid for the Term of License and transferrable to other Users within the Organization, which the User hereby grants such permission.

Should Organization fail to pay the fees as agreed, Valgen in its sole discretion has the right to immediately suspend the Services or terminate access to all Users for cause.

SECTION 5: FLEET DATA USAGE

5.1.  License.  Valgen, Inc. (“Valgen”) hereby grants to User and User hereby accepts from Valgen a nontransferable, nonexclusive license to use our proprietary and compiled fleet data provided through Platform (“Licensed Data”) in accordance with the terms and conditions set forth in an Agreement.

5.2.  Term and Termination.

5.2.1.  Term.  The term of this Section shall commence on the start date of this License and shall continue for a period of one License Year, and renewed if those records are re-purchased on the anniversary unless terminated earlier as herein provided (The “Term”). “License Year” shall mean and refer to each twelve (12) month period during the Term that begins on the Start Date or an anniversary thereof when data is delivered.

5.2.2.  Termination.  Upon the termination of this License, User shall: (a) delete and discontinue the use of Licensed Data in their possession, and if so requested (b) return to Valgen all copies, partial copies, and any documentation or materials evidencing Licensed Data and (c) certify in writing to Valgen that the foregoing actions have been completed.

5.3.  Limitation on Use.  Use of the Licensed Data by User shall be limited as follows:

5.3.1.  Organization End-User Purposes.  User shall use the Licensed Data solely for Organization’s sales and marketing purposes.

5.3.2.  Access to Systems. If User is given access, whether on-site or through remote access, to any Valgen facility, application, API, computer or electronic data storage system, retrieval or network (“Networks”) in order to perform the services, User shall (i) limit such access and use solely to perform the services, and shall not access, or attempt to access, any computer system, electronic file, software, or other electronic services other than those specifically required to perform the Services; (ii) comply with all of Valgen’s security and usage policies regarding the use of the Networks. All user identification and passwords disclosed are deemed to be, and shall be treated as, Confidential Information and used in accordance with the Terms of Use for the Platform.

5.3.3.  Customer Data Usage. Except as permitted for the Organization’s internal purpose, User is expressly prohibited from using Licensed Data for any other purpose, including but not limited to sharing, transferring, re-selling Licensed Data to any third party, deriving any works for commercial publications or otherwise, in any form or any manner, whether by itself or de-identified, merged with other data, aggregated, modified, cleansed or incorporated into any report or document and in any manner as a competitor to Valgen. User shall maintain reasonable measures designed to protect Licensed Data, Apps and Networks from unauthorized access, loss, destruction, disclosure or use, and shall indemnify Valgen for any unauthorized access, loss, destruction, disclosure or use of User Data caused by User’s negligent acts or omissions.

5.3.4.  Direct Marketing and Analysis Restrictions.  User’s use of the Licensed Data will be subject to: (i) the Direct Marketing Restrictions set forth below; and (ii) for fleet name lists provided, the Market Analysis Restriction set forth below in addition to the Direct Marketing Restrictions:

Direct Marketing Restrictions: Solicitations. Any solicitation, ad copy and sales communication used by Organization or User shall not mention the source of the recipient’s name, address and fleet information.

Seeding. Licensed Data may be seeded to detect any unauthorized use or duplication thereof.

State Restrictions. Because certain portions of the Licensed Data are derived from state procured motor vehicle information, Valgen is obligated to comply with certain restrictions and/or requirements placed upon the use of such vehicle information by the individual states.  User shall comply with all such restrictions and requirements now or hereafter imposed upon User by any state and made known to User by Valgen in this section.

Analysis Restriction.  All analysis shall be solely for evaluating the performance of sales and marketing initiatives.

Compliance. The User shall comply with CAN-SPAM and privacy laws pertaining to email marketing to Contacts contained within the Licensed Data.

5.4.  Authorized Users. Organization may designate any of its employees as an “Authorized User” to use the Licensed Data. Organization may designate as an “Authorized User”, any non-employee party or other entity provided that such party:

(a) is engaged in work performed for or on behalf of Customer, and

(b) is not a competitor of, or in any manner a competitor to Valgen

User is responsible for protecting all passwords and/or usernames and disclosing them to only other authorized users within the Organization. User will immediately notify Organization of any loss, theft, or unauthorized use of any passwords, usernames, or accounts associated with the Licensed Products.

Terminated Users: Authorized Users terminated by an Organization shall:

(i)  immediately discontinue logging into the Platform;

(ii)  discontinue all use of Licensed Data;

(iii)  return to their Organization all Licensed Data, including all copies thereof.

SECTION 6: WARRANTIES

6.1.  Limited Performance Warranty. Valgen represents and warrants that Platform shall conform in all material respects to the specifications set forth in this License, including, without limitation, that it will perform substantially as demonstrated and will be free of material errors or defects, and that all Services will be performed in a good and workmanlike manner.

6.2.  No Other Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN THE ABOVE SECTIONS, THE PLATFORM, INCLUDING ANY ACCOMPANYING MANUALS AND OTHER MATERIALS, AND THE SERVICES, ARE PROVIDED BY VALGEN “AS IS,” WITHOUT WARRANTY OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR ANY WARRANTY THAT PLATFORM WILL BE ERROR- FREE OR OPERATE WITHOUT INTERRUPTION, OR THAT PLATFORM WILL MEET THE CUSTOMER’S REQUIREMENTS, AND ANY WARRANTIES IMPLIED BY LAW, BY THE COURSE OF DEALING BETWEEN THE PARTIES, OR OTHERWISE, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.

SECTION 7: CONFIDENTIALITY

7.1.  Included Information. For purposes of this License, the term “Confidential Information” means all confidential and proprietary information of a User, including but not limited to the names, email addresses, and other personally-identifiable information of users of the Platform; security codes; and all documentation provided by Valgen.

7.2.  Disclosure. User may not display or allow any third parties outside the Licensed Organization to use or otherwise have any access to the VALGEN Software or to any information regarding the Services and/or performance thereof including any business, installation, performance, reliability, optimization or integration information, and User’s impression of the Services all of which are deemed VALGEN Confidential Information (the “VALGEN Information”). Confidential Information shall: (a) be treated as highly confidential by recipient, kept by recipient in absolute confidence and be afforded by recipient all reasonable and necessary safeguards (and at least the same level of protection that recipient affords its own confidential information) to protect such information from any disclosure which is not expressly permitted hereunder (b) not be divulged, directly or indirectly, by recipient to any third party for any purpose whatsoever, and (c) not, without the prior written consent of discloser, be used by recipient for any purpose except as set forth in this section.

SECTION 8: TERM AND TERMINATION

8.1.  Term. The term of this License shall be for the period indicated in an Agreement (directly or indirectly) between Valgen and the licensing Organization and, unless earlier terminated for cause in accordance with this Agreement, will continue for the duration of any Term or renewal term set forth in such an Agreement.

8.2.  Effect of Termination/Non-Renewal. Upon any termination or non-renewal of the Agreement, the License shall terminate, and User shall have no further rights in the Platform.

SECTION 9: OWNERSHIP OF INTELLECTUAL PROPERTY AND DATA

9.1.  Usage Data. Unless otherwise set out in an Agreement, User hereby gives express consent that the VALGEN Software may store and collect certain data and diagnostic information in connection with the routine operation of the VALGEN Software and Services, including, performance, capacity usage, configuration data and hardware faults (“Usage Data”), which will be periodically transmitted to or accessed by VALGEN for the purpose of VALGEN’s internal use and improvement. No data identifying a User or any individual person is accessed, transmitted or provided by VALGEN to any third party (outside of built-in Third-Party software or the technology platform providers) as part of this process, and no interruption of service is required to gather such Usage Data. If you or anyone on your behalf, interrupts or prevents VALGEN’s collection of Usage Data, you must provide VALGEN with prior written notice thereof, and VALGEN, Distributor or Licensed Partner may require an amendment to the Order or Agreement as applicable.

9.1.1.  Valgen Data. Valgen is the exclusive owner of ProsperFleet and all of the intellectual property rights associated within ProsperFleet, including software, copyrights and data provided in the Platform (“Valgen Data”).

9.2.  Feedback. If User provides feedback, comments, suggestions, ideas, description of processes, or other information to Valgen about or in connection with Platform, including without limitation any ideas, concepts, know-how or techniques contained therein (“Feedback“), then User grants Valgen a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise use the Feedback for any purpose, without any compensation or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed Confidential Information, and nothing in this License limits Valgen’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise. Except as expressly set forth in this License, User is granted no licenses or other rights in or to any Valgen Data or any use thereof.

9.3.  Additional Responsibility. User grants Valgen all rights and licenses in and to the User’s Data necessary for Valgen to provide the Services and perform its obligations under this License.

SECTION 10: LIMITATION OF CLAIMS AND DAMAGES

10.1.  Limitation of Claims. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES (EVEN IF THIS AGREEMENT IS TERMINATED) FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR BUSINESS ADVANTAGE), WHETHER BASED UPON A CLAIM OR ACTION OF TORT, CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY, CONTRIBUTION, CLASS ACTION, MASS TORT, INDEMNITY OR ANY OTHER LEGAL THEORY OR CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2.  Limitation of Damages. VALGEN’S TOTAL LIABILITY UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OR FORM OF ACTION, AND WHETHER BEFORE OR AFTER ITS TERMINATION, SHALL NOT EXCEED THE TOTAL OF ALL LICENSE FEE AMOUNTS PAID TO VALGEN BY THE ORGANIZATION UNDER THE CURRENT TERM.

SECTION 11: INDEMNIFICATION

11.1.  User’s Obligation to Indemnify. User will indemnify, hold harmless, and defend Valgen, its licensors, service providers, and their respective affiliates, managers, agents and employees, from and against all losses, costs, and expenses, including reasonable attorneys’ fee, from third party claims to the extent arising from (a) any materials provided, published, or disseminated by Organization; (b) Users’ negligent acts or omissions in the operation of the Platform, and (c) violations of any applicable laws.

11.2.  Exceptions. The foregoing indemnification shall not apply to infringement to the extent caused by (a) Organization or User’s modification or use of Platform other than as contemplated by the License; (b) User’s failure to use corrections or enhancements made available by Valgen to the extent that such corrections or enhancements would make ProsperFleet non-infringing (and Valgen notified Customer of that fact in writing (email or internal notification in Platform is also sufficient); or (c) information, specification or materials provided by Customer or third party acting for Customer which is the cause of such infringement claim.

11.3.  Governing Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of conflicts of laws and without regard to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

11.4.  Waiver of Jury Trial. EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS LICENSE.

11.5.  Entire Agreement. This License and the Agreement (either between Valgen and Organization or Partner and Organization) constitutes the entire agreement between Valgen and User with respect to the subject matter contained herein and supersedes all prior agreements and understandings between the Parties. In the event of any conflict between similar provisions of the License and Agreement, this Agreement shall take precedence. Modifications and amendments to this Agreement, including any exhibits, schedules, statements of work, appendices and other attachments, shall be enforceable only if they are in writing and signed by authorized representatives of both Parties. If a court or arbitrator finds any provision of this Agreement to be invalid or unenforceable under applicable law, the remainder of the agreement shall remain in full force and effect and shall be interpreted so as best to carry out the Parties’ intent. This Agreement controls the relationship between the Parties without evidence of either Party’s signature, by virtue of its incorporation via reference or electronic link in a statement of work, insertion order, or the like.

 

Exhibit A – Platform Service Level Agreement Guidance

The guidance contained within this Exhibit 1 is for Platform Users and is only meant to be Valgen’s current good-faith guidelines regarding the uptime, availability, maintenance, and technical troubleshooting resolution times of the Platform.

Uptime and Availability.  The Platform SLA is 99.95%.

Maintenance.  Regular maintenance is necessary for Valgen to provide Users with the best possible experience on the Platform. Valgen will typically need an average of one hour a week for standard, scheduled maintenance. Such maintenance is scheduled to the best of Valgen’s abilities after standard business hours and multi-step critical maintenance and multi-step critical data migrations shall typically occur on weekends.

If emergency maintenance is necessary during a mid-week day or if an unusual amount of time is required to perform maintenance, Users will be given as much advance notice as reasonably possible by Valgen.

Response Times.  Valgen takes loss or failure of Platform seriously. Valgen encourages every User who experiences a significant loss or failure of functionality to contact prosperfleet.support@valgen.com and report what happened. The time it takes Valgen to restore Platform functionality may vary depending on the severity of the diagnosed issue(s). Valgen will make every effort to respond to and resolve such issues as soon as possible, and will ensure Users are informed and updated on Valgen’s progress.

Valgen’s business support hours are 9:00 AM – 5:00 PM CST, Monday through Friday, except holidays. Customer may send an email to prosperfleet.support@valgen.com.

¹ following active receipt of notification to acknowledge receipt

² following active receipt of notification to work through issues