EULA(End User License Agreement)
For Web-Based Use of ProMiles’
Services and Software
This agreement (“Agreement”) governs, except as explained below with respect to another agreement, all access and use by YOU of the ProMiles Software Dev. Corp (PSDC) website located on the World Wide Web at ProMiles.com (the “Website”), and access and use by YOU of all products, or data, and services including without limitation, fuel tax/permit services, mapping, routing, and credentialing services, including without limitation fuel tax online, and Permit Manager, ProMiles Online, Fuel Management Online, and eCredentials, hereinafter the “SERVICES”, available at or through or on behalf of the Website, PSDC, PSDC partners, resellers, or other third parties. An exception to the governance of this Agreement arises when the terms and conditions of this Agreement, are modified by, supplemented by or conflicted by another agreement, having a term of at least one year, to the advantage of PSDC in which case said other Agreement shall control to the extent it advantages PSDC.
For purposes of this agreement, SOFTWARE is defined to include any product or data made available to YOU by ProMiles Software Development Corporation in connection with the SERVICES. SOFTWARE also includes PSDC products, databases, data and SERVICES offered by PDSC, PSDC partners, resellers, or other third parties. The TERM SOFTWARE and SERVICES is further defined to include any new features that augment or enhance the current SOFTWARE or SERVICES, including the release of new tools and resources. Usage of SOFTWARE or SERVICES without accepting this agreement is strictly prohibited.
ACCEPTANCE BY USE OR CLICK
By accepting this agreement, either by clicking a box indicating YOUR acceptance or by using the SOFTWARE or SERVICES, YOU agree to the terms of this Agreement. If YOU are entering into this agreement on behalf of or for a legal person, company or other entity legal or otherwise, YOU represent that YOU have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “YOU” or “YOUR” shall include such entity and its affiliates. If YOU do not have such authority, or if YOU do not agree with these terms and conditions, YOU must not accept this agreement and may not use the SOFTWARE or SERVICES. The term YOU and YOUR includes, without limitation, the legal person accepting the Agreement and those entities on whose behalf or for which the legal person acts.
Upon YOUR acceptance of this Agreement, PSDC hereby grants to YOU a non-exclusive, non-transferable license to use the SOFTWARE and SERVICES solely for YOUR own internal business purposes, subject to the terms and conditions of this Agreement. YOU may not give any other person, user, party, organization, or entity access to, possession of, or copies of the SERVICES and SOFTWARE to which YOU have access or license. Distribution of credentials for online access to the SERVICES or SOFTWARE is expressly forbidden. All rights not expressly granted to YOU are reserved by PSDC and its licensors.
CHANGES TO AGREEMENT OR SOFTWARE AND SERVICES
PDSC reserves the right from time to time to change the terms and conditions of this Agreement. Any changes to the terms and conditions will be reflected in an updated Agreement. The updated Agreement will be displayed on the website and YOUR access and use of the SOFTWARE and SERVICES by clicking a box indicating YOUR acceptance or the like constitutes YOUR acceptance of the Agreement as updated. PDSC will endeavor as a courtesy to notify YOU of changes to the terms and conditions of the Agreement. Any new features that augment or enhance the current SOFTWARE or SERVICES, including the release of new tools and resources, shall be subject to the Agreement. YOUR access and use of the SOFTWARE and SERVICES, regardless of notification, constitutes YOUR acceptance of the Agreement as changed. YOU can review the most current version of this Agreement at any time at: https://www.promiles.com/EULA.
OWNERSHIP OF THE DATA and SOFTWARE
YOU acknowledge PSDC’s ownership of the SOFTWARE and SERVICES. The term SOFTWARE includes as part of its meaning all data code, HTML/CSS, scripts, components, databases, information, and algorithms and any other technological assets related to the functioning or operation of the SOFTWARE, hereinafter collectively and individually DATA. YOU agree not to transfer, republish, repurpose, resell, redistribute, reverse engineer, transmit, copy, scrape, modify, misrepresent or use the SOFTWARE, DATA and SERVICES, commercially or non-commercially, in any form except as explicitly stated in this agreement. Use or access to the SERVICES or SOFTWARE and DATA does not constitute a license to the SOFTWARE, DATA and SERVICES except as explicitly stated in this agreement.
YOU agree that unless otherwise specified, the SOFTWARE, DATA and SERVICES and all intellectual property rights to the SOFTWARE, DATA, and SERVICES including but not limited to U.S. and international copyrights, trade secrets, and the ProMiles trademark, are owned by PSDC.
USE OF ONLINE SERVICES
YOU acknowledge and agree that:
- YOU will not use the SERVICES or SOFTWARE in any manner or for any purpose that is prohibited by these terms and conditions;
- YOU will not use the SERVICES or SOFTWARE for any illegal or unauthorized purpose, and that YOU will not, in the use of the SERVICES or SOFTWARE, violate any laws in YOUR jurisdiction (including but not limited to copyright, trade secret, patent or trademark laws);
- YOU will not attempt to gain unauthorized access to the SERVICES, SOFTWARE or their related systems or networks or bypass or circumvent any other measure employed to limit or prevent access to the Website, its content, the SOFTWARE or SERVICES;
- YOU will use commercially reasonable efforts to prevent unauthorized access to or use of the SERVICES or SOFTWARE, and to notify PSDC promptly of any such unauthorized access or use;
- YOU will not modify, adapt, or hack the SERVICES or SOFTWARE or modify another website so as to falsely imply that it is associated with the SERVICES, PSDC, or any other PSDC service;
- YOU will not obtain or attempt to obtain, through any means, any materials or information on the Website, about the SERVICE or SOFTWARE that have not been intentionally made publicly available either by their public display on the Website or through their accessibility by a visible link on the Website;
- YOU will not interfere or attempt to interfere with the proper working of the Website, SERVICES or SOFTWARE or any activities conducted on or through the Website, SERVICES, or SOFTWARE including accessing any data, content or other information prior to the time that it is intended to be available to the public on the Website;
- PSDC may employ third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the SERVICES and SOFTWARE;
- YOU will not take or attempt any action that, in the sole discretion of PSDC, imposes or may impose an unreasonable or disproportionately large load or burden on the Website, SERVICES or SOFTWARE or such operation’s infrastructure;
- YOU have not falsely identified yourself, nor provided any false information, to gain access to the SERVICES or SOFTWARE;
- YOUR login information will only be used by the named users designated by YOU; and
- YOU are responsible for maintaining the security of YOUR account and password. PSDC cannot and will not be liable for any loss or damage from YOUR failure to comply with this security obligation.
USER RESPONSIBILITY: DRIVING DIRECTIONS
PSDC strives to collect and present the most accurate driving directions possible for its SOFTWARE and SERVICES. These directions are not guaranteed to be accurate. YOU accept the responsibility for YOURSELF and for any others with whom YOU share directions generated by the SOFTWARE to obey all posted traffic signs and to obey all national, state, and local laws, rules, restrictions, regulations, and law enforcement personnel governing travel wherever YOU or those with whom YOU share directions may drive. PSDC accepts no responsibility or liability for any mishaps or damages, financial or otherwise, that result from using its driving directions, as further outlined in the INDEMNITY section below.
USER RESPONSIBILITY: DISTRACTED DRIVING
Review maps before departing. If YOU need to refer to a map or driving directions, pull over to a safe location. Distracted driving could divert a person’s attention away from the primary task of driving. All distractions can endanger driver, passenger, general motorist, and bystander safety.
PSDC accepts no responsibility or liability incurred by attempting to use the SOFTWARE, SERVICE or any derivative thereof while driving.
DATA AND DATA ANALYTICS
The SERVICES shall be provided pursuant to written processing instructions provided by YOU and approved in advance by PSDC. YOU shall be responsible for ensuring the validity, accuracy and completeness of all information (including Personal Information as defined below), data and instructions provided to PSDC by YOU (“User Data”). PSDC shall be entitled to rely upon the User Data in providing the SERVICES. PSDC shall not be required to act on instructions provided by YOU if PSDC reasonably doubts an instruction’s contents or YOUR compliance with this Agreement or any Legal Requirements. PSDC its affiliates or subsidiaries, may extract information from the User Data provided to PSDC by YOU and use this information with any other data in connection with research and development or creation of data and analytics tools and products. YOU represent that YOU have sufficient rights in the information provided hereunder to authorize such use by PSDC, its affiliates or subsidiaries; PSDC will own all right, title or interest in or to any information, products, services, or intellectual property arising from the User Data and analytics research and development activities. PSDC’s, its affiliates’ or subsidiaries’ access to and use of information, including use in commercial products developed as a result of or in connection with such research and development activities, will not be a violation of this Agreement.
USER RESPONSIBILITY: FUEL TAX REPORTS
PSDC strives to create accurate fuel tax reports based on user data and state and federal requirements. These reports are not guaranteed to be correct. YOU accept responsibility to ensure the accuracy and the suitability of the reports generated by the SOFTWARE before submitting them to any state or federal agency. PSDC accepts no responsibility or liability for any setbacks, financial or otherwise, incurred by using its SOFTWARE or SERVICES, as outlined in the INDEMNITY section below. PSDC will provide reasonable IFTA audit support, via telephone and the use of ProMiles audit reports, to YOU only to the extent YOU are an active Customer, at no additional cost beyond the cost of the SERVICES. ProMiles will not be responsible and shall not be liable for the results of any such audit. It is the sole responsibility of the YOU to maintain compliance standards for IFTA filing purposes. If requested by YOU, PSDC will use commercially reasonable efforts to provide onsite support for an IFTA audit. PSDC shall bill YOU for such onsite support at $150 per hour plus all reasonable travel expenses.
USER RESPONSIBILITY: PERMIT SERVICES
PSDC strives to create accurate fuel permits based on YOUR data and state and federal requirements. These permits are not guaranteed to be correct. YOU accept responsibility to ensure the accuracy and the suitability of the permits generated by the SOFTWARE before submitting or relying on them. PSDC accepts no responsibility or liability for any setbacks, financial or otherwise, incurred by using its SOFTWARE or SERVICES, as outlined in the INDEMNITY section below. PSDC will not be responsible and shall not be liable for the results of any deleterious action taken by any state, federal or regulatory entity relating to PSDC permitting. It is the sole responsibility of the YOU to maintain compliance standards for filing purposes. If requested by YOU, PSDC will use commercially reasonable efforts to provide over the phone or onsite support for an issues concerning permitting. PSDC shall bill YOU for such onsite support at $150 per hour plus all reasonable travel expenses.
RIGHT TO DENY ACCESS
PSDC reserves the right to deny YOU access to its SERVICES and SOFTWARE at its sole discretion for any reason and without notification.
PSDC strives to present the most accurate SERVICES, SOFTWARE, and DATA possible. PSDC does not, however, provide any guarantee, express or implied, that the SOFTWARE, SERVICES, and DATA or reports generated therefrom are completely accurate, as explained in the DISCLAIMER OF WARRANTIES, section below.
DISCLAIMER OF WARRANTIES
YOU acknowledge and agree that:
- YOU USE THE SERVICES AND SOFTWARE AT YOUR SOLE RISK. THE SERVICES AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PSDC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
- NEITHER PSDC, NOR ITS SUPPLIERS OR LICENSORS, MAKE ANY WARRANTY THAT: (i) THE SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR SOFTWARE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF THE SERVICES OR SOFTWARE WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED.
- ANY MATERIAL DOWNLOADED, INSTALLED, OR OTHERWISE OBTAINED THROUGH THE SERVICES and SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM(S), DAMAGE TO YOUR NETWORK(S), OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR INSTALLATION OF ANY SUCH MATERIAL.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PSDC SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PSDC AND/OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SERVICES OR SOFTWARE. IN NO EVENT WILL PSDC, ITS AFFILIATES, OR LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN IN RELIANCE ON SUCH CONTENT. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR SOME DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR SOFTWARE, OR WITH ANY OF THESE TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES AND SOFTWARE.
YOU FURTHER EXPRESSLY UNDERSTAND AND AGREE THAT PSDC’S CUMULATIVE LIABILITY WITH RESPECT TO ALL INCIDENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE CUMULATIVE AMOUNT PAID BY YOU FOR SERVICES IN THE 6 MONTHS PRECEDING THE EVENT GIVING RISE TO A CLAIM, OR CAUSE OF ACTION.
YOU will indemnify, defend and hold harmless PSDC, its directors, officers, employees, affiliates and agents against any claims, losses, costs, fines, penalties or damages (including court costs and reasonable attorneys’ fees) (collectively, “Claims”) arising out of or connected with YOU or YOUR, affiliates, employees, agents or representatives, (i) gross negligence or willful misconduct; (ii) breach of this Agreement; and (iii) actual infringement of any patent, copyright, trademark, service mark, trade secret or other proprietary right of a third party; YOU will indemnify, defend and hold harmless PSDC, its directors, officers, employees, affiliates and agents against any causes, claim or actions, losses, costs, fines, penalties or damages (including court costs and reasonable attorneys’ fees) (collectively, “Claims”) arising out of or connected with any of the SERVICES or SOFTWARE provided in connection with this Agreement.
This Agreement, the SERVICES and SOFTWARE, and the rights and obligations hereunder may not be assigned by any act of the Licensee or YOU or by operation of law, including but not limited to bankruptcy, assignment for benefit of creditors, collateral for a loan, or satisfaction of a loan, without the prior written consent of PSDC.
This Agreement gives YOU specific legal rights and YOU may have other legal rights that vary from state to state. This Agreement shall be governed by the laws of the state of Colorado, without regard to its conflict of laws provisions. All claims, causes or actions brought in connection with this Agreement will be brought only in a court situated in the state of Colorado, county of Larimer or Denver, having subject matter jurisdiction. All parties agree such court provides a proper venue and such court has personal jurisdiction over the Parties. All Parties consent to such court’s personal jurisdiction and venue. All parties expressly waive and relinquish any right to challenge the venue or personal jurisdiction of such court.
If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.
The following trademarks, amongst others are owned by PSDC:
“ProMiles” – is a registered trademark of ProMiles Software Development Corporation.
“TruckMiles” – is a registered trademark of ProMiles Software Development Corporation.
“XF” – is a registered trademark of ProMiles Software Development Corporation.
“KingPin” – is a registered trademark of ProMiles Software Development Corporation.
“FuelTaxOnline” – is a registered trademark of ProMiles Software Development Corporation.
This Agreement does not provide any license or rights to YOU to use such trademarks.
THIRD PARTY RIGHTS AND TRADEMARKS
The SOFTWARE and SERVICES may include a portion, subset or derivative compilations from third parties. By using the SERVICES and SOFTWARE, YOU agree to the Terms and Conditions of these providers in their entirety. Third parties retain the right to modify their Terms and Conditions independently of PSDC. The third parties include the following:
- Map data ©1984-2021 Tele Atlas/TomTom North America, Inc. All rights reserved. https://www.tomtom.com/en_us/
- Canadian Data © 2021 DMTI Spatial Inc. and its licensors and © 2021 Tele Atlas/TomTom North America.
- Bing™ Maps – including © 2021 HERE Earthstar Geographics SIO and ©2021 Microsoft Corporation https://www.microsoft.com/
- Portions of Canadian map data are reproduced under license from Her Majesty the Queen in Right of Canada with permission from Natural Resource Canada.
- Logos for specific truck stop chains or fuel brands may be registered as trademarks or service marks by their respective owners.
- Google Maps Platform © 2018-2021 Google LLC, https://cloud.google.com/maps-
Copyright (c) 1994 – 2021 ProMiles Software Development Corporation. All rights reserved. No part of this publication or software may be reproduced, transmitted, stored in a retrieval system, nor translated into any human or computer language in any form or by any means without the written permission of the copyright owner, ProMiles Software Development Corporation, 1900 Texas Avenue, Post Office Box 398, Bridge City, TX 77611 U.S.A.
- Map data ©1984-2021 Tele Atlas/TomTom North America, Inc. All rights reserved. https://www.tomtom.com/en_us/
Any rights not expressly granted herein are reserved.