BizSpeed – Terms of Service
These terms of service are intended to explain our obligations as a service provider and your obligations as a customer. Please read them carefully.
These Terms are binding on any use of the Software and apply to CUSTOMER from the time that BizSpeed provides CUSTOMER with access to the Software.
These Terms were last updated on Dec 21, 2017.
- “Access Fee”
means the monthly fee (excluding any taxes and duties) payable by CUSTOMER in accordance with the fee schedule set out on the Website (which BizSpeed may change from time to time on notice to You).
- “Confidential Information”
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Software but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party.
means any data inputted by CUSTOMER into the Software.
- “Intellectual Property Right”
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
means the software available (as may be changed or updated from time to time by BizSpeed) via the Website or via mobile devices.
means the equipment required to run the software in the field, including the truck fuel controller system, mobile devices, barcode scanners, cellular modems, charging cradles and other associated equipment. It does NOT include fuel meters or equipment CUSTOMER installed and owns on their vehicles.
means the Internet site at the domain BizSpeed.com or any other site operated by BizSpeed.
Means BizSpeed Inc. which is headquartered at 3050 Royal Blvd. South Ste 130, Alpharetta, GA 30022 USA
means you and includes your employees, consultants, representatives and agents.
USE OF SOFTWARE
BizSpeed grants CUSTOMER the right to access and use the Software via the Website and approved mobile devices with the user roles according to your subscription type. This right is non-exclusive and non-transferable and limited by these Terms.
- Payment obligations:
An invoice for the Access Fee will be issued to your billing contact starting on the date on which service begins. All invoices will include the Access Fee for the following period of use. BizSpeed will continue invoicing CUSTOMER monthly or annually, based on your requested billing cycle, until this Agreement is terminated in accordance with clause 8.
All BizSpeed invoices will be sent to CUSTOMER by surface mail or email and are payable by the monthly or annual renewal date specified in the invoice.
- General obligations:
CUSTOMER must only use the Software, Mobile Hardware and Website for your own lawful internal business purposes, in accordance with these Terms and any notice sent by BizSpeed or condition posted on the Website.
- Access conditions:
- CUSTOMER will ensure that all usernames and passwords required to access the Software are kept secure and confidential. CUSTOMER will immediately notify BizSpeed of any unauthorized use of your passwords or any other breach of security.
- As a condition of these Terms, when accessing and using the Software, CUSTOMER must:
- not attempt to undermine the security or integrity of BizSpeed’s computing systems or networks or, where the Software is hosted by a third party, that third party’s computing systems and networks;
- not use, or misuse, the Software in any way which may impair the functionality of the Software or Website, or impair the ability of any other user to use the Software or Website;
- not attempt to gain unauthorized access to any materials other than those to which CUSTOMER have been given express permission to access or to the computer system on which the Software is hosted;
- not transmit, or input into the Software, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which CUSTOMER do not have the right to use);
- not modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Software or the Website except as is strictly necessary to use either of them for normal operation.
- Usage Limitations:
Use of the Software may be subject to limitations, including but not limited to monthly transaction volumes defined as the number of calls CUSTOMER are permitted to make against BizSpeed’s application programming interface. Any such limitations will be specified within the Software.
- Communication Conditions:
As a condition of these Terms, if CUSTOMER use any communication tools available through the Website (such as automated emails), CUSTOMER agree only to use such communication tools for lawful and legitimate purposes. CUSTOMER must not use any such communication tool for posting or disseminating any material unrelated to the use of the Software including (but not limited to): files that may damage any other person’s computing devices or software, or material in violation of any law (including material that is protected by copyright or trade secrets which CUSTOMER do not have the right to use).
When CUSTOMER make any communication on the Website, CUSTOMER represent that CUSTOMER own the content of the communication. BizSpeed is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Software. CUSTOMER must exercise caution when using the communication tools available on the Website. BizSpeed reserves the right to remove any communication at any time in its sole discretion.
CUSTOMER will indemnify BizSpeed against all claims, costs, damage and loss arising from your breach of any of these terms or any obligation CUSTOMER may have to BizSpeed, including (but not limited to) any costs relating to the recovery of any Access Fees that have not been paid by You.
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
- Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
- Each party’s obligations under this clause will survive termination of these Terms.
- The provisions of clauses of confidentiality shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
Title to, and all Intellectual Property Rights in the Software, Mobile Hardware, the Website and any documentation relating to the Software remain the property of BizSpeed.
Title to, and all Intellectual Property Rights in, the Data remain your property. However, your access to the Data is contingent on full payment of the BizSpeed Access Fee. CUSTOMER must maintain copies of all Data inputted into the Software. BizSpeed adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. BizSpeed expressly excludes liability for any loss of Data no matter how caused.
- Third-party applications and your Data.
If CUSTOMER enables third-party applications for use with the Software, CUSTOMER acknowledge that BizSpeed may allow providers of those third-party applications to access your Data as required for the interoperation of such third-party applications with the Software. We shall not be responsible for any disclosure, modification or deletion of your Data resulting from any such access by third-party application providers.
WARRANTIES AND ACKNOWLEDGEMENTS
CUSTOMER acknowledges that:
- CUSTOMER is authorized to use the Software, Mobile Hardware and Website and is responsible for their employees or anyone else for whom they authorize access, including contractors or 3rd
- If CUSTOMER is using the Software and accessing the Website on behalf of or for the benefit of another organization (whether a body corporate or not) then BizSpeed will assume that CUSTOMER has the right to do so and that organization will be liable for your actions or omissions (including any breach of these Terms).
- The provision of, access to, and use of, the Software is on an “as is, where is” basis and at your own risk.
- BizSpeed does not warrant that the use of the Software will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Software, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Software. BizSpeed is not in any way responsible for any such interference or prevention of your access or use of the Software.
- It is your sole responsibility to determine that the Software meets the needs of your business.
- No warranties:
BizSpeed gives no warranty about the Software. Without limiting the foregoing, BizSpeed does not warrant that the Software will meet your requirements or that it will be suitable for your purposes. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
- Consumer guarantees:
CUSTOMER warrants and represents that CUSTOMER is acquiring the right to access and use the Software and agreeing to these Terms for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Software, the website or these Terms.
LIMITATION OF LIABILITY
- To the maximum extent permitted by law, BizSpeed excludes all liability and responsibility to CUSTOMER (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of Data, profits and savings) or damage resulting, directly or indirectly, from the use of, or reliance on, the Software.
- If CUSTOMER suffer loss or damage as a result of BizSpeed’s negligence or failure to comply with these Terms, and claim by CUSTOMER against BizSpeed arising from BizSpeed’s negligence or failure will be limited in respect of any one incident, or series of connected incidents to the access fees paid by CUSTOMER in the previous 3 months.
- If CUSTOMER are not satisfied with the Software, your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
- Prepaid Subscriptions
There will be no refund for any remaining prepaid period for a prepaid Access Fee subscription, unless that subscription is cancelled within the trial period.
- Cancellation during service term
CUSTOMER may cancel during their contracted service term. CUSTOMER is responsible for the first 12 months of fees related to their term, plus one half of the remaining term. After month 12, CUSTOMER is responsible for one half of the remaining term. For example, cancelling in month 24 of a 36 month term, CUSTOMER is responsible for 6 months of service fees.
- No-fault termination:
These Terms will continue for the period covered by the Access Fee. These Terms will automatically continue for the same period unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period.
- breach any of these Terms and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
- breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach for payment more than 30 days overdue); or
- the paying subscriber goes into liquidation or has a receiver or manager appointed of any of its assets or becomes insolvent, or makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction,
BizSpeed may take any or all of the following actions, at its entire discretion:
- Terminate these Terms and your use of the Software and the Website;
- Request CUSTOMER return all hardware associated with your service term. CUSTOMER is responsible for shipping.
- Suspend for any definite or indefinite period of time, your use of the Software and the Website;
- Take these actions in respect to any other persons in your organization or who have access to your information or that of your organization.
- Accrued Rights:
Termination of these Terms is without prejudice to the rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement CUSTOMER will:
- remain liable for any accrued charges and amounts which become due for payment before or after termination per the cancellation terms; and
- Immediately cease to use the Software, mobile hardware and Website.
- CUSTOMER retains the right to continue using the equipment and service at the end of the term, under the same pricing model, on a month to month basis unless BIZSPEED notifies CUSTOMER that terms are different.
Mobile hardware provided with a service agreement may be new or refurbished. All equipment will be inspected and tested prior to shipping to CUSTOMER.
CUSTOMER may elect to purchase equipment. If purchased, CUSTOMER must purchase through an approved reseller or through BIZSPEED.
Hardware provided as part of a service term is warrantied for normal wear and tear. If a device breaks due to normal use, CUSTOMER will pay for shipping to return to BizSpeed. BizSpeed will repair or replace the returned equipment and ship back to CUSTOMER. BizSpeed will pay to ship the replacement device to CUSTOMER. If BizSpeed replaces the device, the replacement will be comparable but may not be the same device model and manufacturer. It is BizSpeed’s discretion to provide the most suitable replacement unit.
If equipment is purchased and CUSTOMER owns the equipment, the warranty of the purchased equipment will apply. For non-BizSpeed equipment, CUSTOMER will work with the manufacturer or reseller to manage warranty items.
Unless ordered in the service agreement, CUSTOMER is responsible for installing equipment in their vehicles according to BizSpeed outlined installation instructions. If equipment is NOT installed according to BizSpeed guidelines, BizSpeed does not warrant or guarantee it will function as designed. For example, if equipment is installed in the rear of the truck near meters where the temperatures are not regulated (vs. the cab), then equipment may not function when operated below or above rated operating temperatures.
If CUSTOMER does not install equipment according to the installation instructions and it damages the equipment, CUSTOMER is responsible for paying the repair costs.
- Return of equipment:
Upon termination of the Services, for whatever reason, you must return the Equipment, undamaged, within twenty one (21) calendar days to BizSpeed. If the Equipment is not returned within twenty one (21) calendar days, or is returned damaged, CUSTOMER will be charged for the value of the Equipment. BizSpeed may retain any advance payment or deposit, or portion thereof that previously had not been refunded, if you fail to return the Equipment within this time period. If the Equipment is returned within sixty (60) days of termination, any fees charged for the Equipment will be refunded (other than fees for damages or those associated with early termination). No refunds will be made for any Equipment returned more than sixty (60) days after termination.
- Equipment Management:
BizSpeed reserves the right to manage BizSpeed provided Equipment during the time you are a customer. Management includes installing a device agent that allows sending software updates and remote control of the device.
Neither CUSTOMER nor a third party may change, interfere with, or block access to the Equipment data or settings. BizSpeed will repair or replace damaged Equipment as BizSpeed deems necessary. You understand that repair or replacement of the Equipment may delete stored content, reset personal settings, or otherwise alter the Equipment. If the Equipment was damaged due to your intentional acts or negligence as determined by BizSpeed, you will be responsible for the price of repair or replacement.
Any tampering with the Equipment, including, for example, opening and attempting to modify the Equipment, unless directed by BizSpeed for support purposes, or attempting to connect the Equipment to other hardware, will be treated as damage due to your intentional acts or negligence. You agree that you will use the Equipment only for its intended business use.
9 TECHNICAL SUPPORT
- Technical Problems:
In the case of technical problems CUSTOMER must make all reasonable efforts to investigate and diagnose problems before contacting BizSpeed. If CUSTOMER still needs technical help, please check the support provided online by BizSpeed or call us toll-free at 866-270-0541.
- Service availability:
While BizSpeed intends that the Software should be available 24 hours a day, seven days a week, it is possible that on occasion it may be unavailable to permit maintenance or other development activity to take place.
If for any reason BizSpeed has to interrupt the Software for longer periods than BizSpeed would normally expect, we will use reasonable efforts to publish in advance details of such activity on the Website and via email.
- Entire agreement:
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
- No Assignment:
CUSTOMER may not assign or transfer any rights to any other person without BizSpeed’s prior written consent.
- Governing law and jurisdiction:
These Terms and Conditions shall be governed by the laws of the State Georgia (USA), excluding choice of law principles. Any disputes or claims under these Terms and Conditions or their breach shall be submitted to and resolved exclusively by arbitration conducted in accordance with American Arbitration Association rules. One arbitrator appointed under such rules shall conduct arbitration. The arbitration shall be conducted in Atlanta, GA. Any decision in arbitration shall be final and binding upon the parties. Judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the above, BizSpeed may sue in any court for infringement of its proprietary or intellectual property rights.
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Any notice given under these Terms by either party to the other must be in writing by email or letter and will be deemed to have been given on transmission. Notices to BizSpeed must be sent to the address identified in the Definitions section. Notices to CUSTOMER will be sent to the email address which CUSTOMER provided when setting up your access to the Software or to your invoicing address.