ONLINE PORTAL TERMS AND CONDITIONS
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE REGISTRATION PROCESS YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERN YOUR USE OF THE ACYCLICA, INC. ONLINE PORTAL ("PORTAL"), AND ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE WHEN YOU CLICK "I ACCEPT" BELOW ("EFFECTIVE DATE").
Capitalized terms herein used which are not herein defined shall have the respective meanings ascribed to them in Section 16
Acyclica provides intelligent transportation and congestion management systems which include certain features and functionalities that are available through an online portal accessed over the Internet at www.acyclica.com (the "Portal"). Acyclica reserves the right to make changes, modifications and enhancements to the Portal from time to time in its sole discretion.
Customer is solely responsible for obtaining, at its cost and expense, Internet connectivity and the necessary hardware and software to access and use the Portal and to allow the Portal Equipment Internet connectivity.
Acyclica and its licensors own all rights, title and interest, including all related Intellectual Property Rights, in and to the API (defined below) and the Portal, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Portal. The Acyclica name, the Acyclica logo, and the product names associated with the Portal are trademarks of Acyclica or third parties.
Permission to Use.
Subject to the terms of this Agreement, Acyclica hereby grants to Customer a non-exclusive, revocable, non-sublicensable, non-transferable subscription for Customer's Users' access and use of the Portal, in accordance with the Documentation and solely for Customer's internal business purposes in association with Portal Equipment. Acyclica and its licensors reserve all rights not expressly granted to Customer in this Agreement. "User(s)" means Customer's named employees who are authorized to use the Portal by Customer.
Subject to the terms and conditions of this Agreement, Acyclica grants Customer a nonexclusive, revocable, non-sublicensable, non-transferable right to use the API, and the API Key that may be generated, activated and provided to Customer by Acyclica, solely to access the API, in all cases, solely (a) for Customer's internal business purposes of interacting with Portal Equipment, and (b) solely in accordance with any applicable Acyclica documentation. The API is Acyclica's Confidential Information (defined below). Customer shall not share or disclose the API to any third party. Customer shall use the API Key will all calls to the API made by Customer.
License Restrictions and Limitation of Use.
Except as expressly permitted under this Agreement, Customer shall not, and shall not assist or encourage any third party to, (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party access to or use of the Portal or API in any way; (ii) interfere with or disrupt the integrity or performance of the Portal or API in any manner; (iii) attempt to gain unauthorized access to the Portal or its related systems or networks; (iv) remove, alter, or obscure any proprietary notices (including copyright notices) of Acyclica or its licensors contained within the Documentation or displayed in connection with the Portal (including API); (v) modify or make derivative works based upon the Portal or API; (vi) itself, or permit others, to duplicate, copy, translate, disassemble, decompile, reverse engineer or remanufacture the API or software associated with the Portal in whole or in part or otherwise attempt to derive the source code of either of the foregoing; (vii) reverse engineer or access the Portal or API in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Portal, or (c) copy any ideas, features, functions or graphics of the Portal; or (viii) otherwise use the Portal or the API except as expressly allowed under this Agreement. Customer shall not allow access to the Portal by anyone other than a User, and if Customer desires to allow access to the Portal by anyone other than an employee, Customer may request access from Acyclica.
Customer is responsible for all activity occurring under Customer's User accounts and Customer shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer's use of the Portal, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall use, and shall ensure all Users use: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Portal, and will notify Acyclica promptly of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) maintain the confidentiality of all access credentials for the Portal provided by Acyclica.
Customer is responsible for all activity occurring under Customer's user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer's use of the Portal, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Portal, and will notify Acyclica promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Acyclica immediately and use reasonable efforts to stop immediately any unauthorized use of the Portal or API that is known or suspected by Customer or Customer's users; and (iii) not impersonate another Portal user or provide false identity information to gain access to or use the Portal. Customer will not attempt to or use Customer's access to the Portal to knowingly interfere with or disrupt the integrity or performance of the Portal or the data contained therein.
Acyclica has no support or maintenance obligations under this Agreement. Customer may be entitled to support or maintenance under a separate agreement with Acyclica or an Acyclica distributor.
Account Information and Data.
Acyclica does not own any Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Acyclica shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Customer's breach or bankruptcy/insolvency under Section 9), Acyclica will make available to Customer a file of the Customer Data if requested by Customer within thirty (30) days of termination. Customer agrees and acknowledges that (i) Acyclica is not obligated to retain Customer Data for longer than thirty (30) days after termination, and (ii) Acyclica has no obligation to retain Customer Data, and may delete Customer Data, if Customer has materially breached this Agreement, including any failure to pay outstanding fees, and such breach has not been cured within ten (10) days of notice of such breach. Upon termination for cause resulting from an uncured breach, Customer's right to access or use Customer Data shall immediately cease, and Acyclica shall have no obligation to maintain or forward any Customer Data.
Customer will not provide, post or transmit any Customer Data that: (a) infringe or violate any Intellectual Property Rights, publicity/privacy rights, law or regulation; or (b) contain any viruses or programming routines, macros, or other elements that may damage, surreptitiously intercept or expropriate any system, data or personal information. Acyclica may take remedial action, including immediate suspension of Customer's access to the Portal, if Customer's configuration of the Portal, Customer Data or violates Section 6.
Acyclica may use Congestion Data for any lawful purpose. As between Acyclica and Customer, Acyclica owns all right, title, and interest in and to Congestion Data.
Fees and Payment Terms.
If Customer purchases access to the Portal through an Acyclica reseller, Customer will pay reseller applicable fees. Fees and payment terms will be set forth in separate ordering documents. Notwithstanding the previous sentence, if the ordering documents does not state payment terms, then Customer will pay all applicable fees within 30 days' of Customer's receipt of Acyclica's invoice.
In addition to any other rights granted to Acyclica under applicable law and/or this Agreement, Acyclica reserves the right to suspend Customer's access to the Portal if Customer is (a) in breach of this Agreement, or (b) late paying Acyclica any fees owed to Acyclica under any other agreement Customer has with Acyclica for the purchase of products or services for a period of ten (10) or more days.
Term and Termination.
The term of this Agreement shall commence on the Effective Date and shall continue until terminated as allowed in this Agreement.
Either party may terminate this Agreement upon written notice if the other party (a) is in default with respect to any material term or condition of this Agreement and such failure or default continues unremedied for a period of thirty (30) days following written notice of such failure or default; (b) shall formally declare bankruptcy, insolvency, reorganization, liquidation, or receivership; or (c) shall have instigated against it bankruptcy, insolvency, reorganization, liquidation, or receivership proceedings, and shall fail to remove itself from such proceedings within ten (10) days from the date of institution of such proceedings. Acyclica may terminate this Agreement upon written notice to Customer in the event Customer ceases use of the Portal or Portal Equipment.
In the event of any termination of this Agreement, any amounts owed to Acyclica under this Agreement before such termination or expiration will be immediately due and payable.
Upon termination or expiration of this Agreement for any reason, all rights and licenses granted by Acyclica to Customer hereunder and/or thereunder will immediately cease to exist and Customer must (a) discontinue all use of the Portal and API; and (b) at Acyclica's request, return to Acyclica or dispose of (as instructed by Acyclica), at Customer's expense, all copies of Documentation in Customer's possession or control.
Sections 6, 7, and 9-16, together with any accrued payment obligations, will survive expiration or termination of this Agreement for any reason.
Proprietary Rights and Risk of Loss.
Notwithstanding anything contained herein to the contrary, the Portal, API (including any software incorporated or embedded in any Portal Equipment, which is licensed and not sold to Customer hereunder), and Documentation, and all worldwide Intellectual Property Rights therein, are the exclusive property of Acyclica and its licensors. All rights not expressly granted to Customer under this Agreement are reserved by Acyclica and its licensors.
Acyclica makes no representations or warranties regarding the Portal, API, or Portal Equipment under this Agreement. THE PORTAL AND PORTAL EQUIPMENT ARE PROVIDED "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND ACYCLICA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Any warranty provided by Acyclica with respect to any Portal Equipment shall be set forth in a separate agreement between Customer and either Acyclica or an Acyclica distributor.
Customer will defend, indemnify and hold harmless Acyclica and its affiliated companies and each of their respective officers, directors, employees and agents from and against any claims, liabilities, losses, damages, judgments, awards, fines, penalties, costs and expenses (including reasonable attorneys' fees and defense costs) which may be sustained or suffered by any of them arising out of or based upon (a) Customer's access to and use of the Portal, API, Portal Equipment; and/or (b) Customer's breach of its obligations, representations and/or warranties under this Agreement; provided, however, Customer shall have no indemnity obligations under this Section 12 to the extent any such claim results from Acyclica's gross negligence or willful misconduct. Acyclica will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Portal as provided infringes any U.S. patents or any copyrights or misappropriates any trade secrets of a third party, and Acyclica will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If the Portal becomes, or in Acyclica's opinion is likely to become, the subject of an infringement claim, Acyclica may, at its option and expense, either (i) procure for Customer the right to continue using Portal, (ii) replace or modify Portal so that it becomes non-infringing, or (iii) terminate this Agreement upon written notice to Customer and refund Customer the Portal Fees paid by Customer during the twelve (12) month period preceding the effective date of termination. Notwithstanding the foregoing, Acyclica will have no obligation under this Section 12 or otherwise with respect to any infringement claim based upon (a) any use of Portal not in accordance with this Agreement or the Documentation or for purposes not intended by Acyclica, (b) any use of Portal in combination with other products, equipment or software not intended by Acyclica to be used with Portal, (c) any Customer Data, or (d) any modification of the Portal by any person other than Acyclica or its authorized agents or subcontractors. THIS SECTION 12 STATES ACYCLICA'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
In connection with the indemnification obligations under this Section 12, the party to be indemnified (the "Indemnified Party") shall give the indemnifying party (the "Indemnifying Party") prompt written notice of any covered claim, allow the Indemnifying Party to control the defense and settlement of the claim, and cooperate with the Indemnifying Party, at the Indemnifying Party's reasonable request and expense, in defending or settling the claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to participate in (but not control) the defense of any such claim with counsel of its choice and at its own expense.
Limitation of Liability.
IN NO EVENT WILL ACYCLICA BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY PENALTIES TO WHICH CUSTOMER MAY BE SUBJECT, ARISING FROM OR RELATING TO THIS AGREEMENT, THE API, THE PORTAL, OR PORTAL EQUIPMENT IN ANY WAY, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF ACYCLICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACYCLICA'S TOTAL CUMULATIVE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE SHALL NOT EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNTS PAID TO ACYCLICA BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENTS GIVING RISE TO SUCH LIABILITY.
The party receiving Confidential Information ("Receiving Party") from the other party ("Disclosing Party") will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party's duty hereunder. The Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
The Receiving Party's obligations under this Section 14 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party's Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party's reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party's possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or upon the expiration or termination of this Agreement; provided, however, the Receiving Party may retain one (1) archival copy for record retention purposes and compliance with applicable law. Upon the request of the Disclosing Party, the Receiving Party will certify in a writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 14.
Each party acknowledges that a breach or threatened breach of this Section 14 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 14 by the other party or any of its employees or agents.
Compliance with Laws and Export Regulations.
Customer shall comply with all applicable laws and regulations concerning its use of the Portal, including all applicable privacy laws and export and import control laws and regulations. Customer will defend, indemnify, and hold Acyclica harmless from and against any breach of this Section 15.1.
Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including the license rights granted to Customer hereunder) to any third party without Acyclica's prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Customer shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, or otherwise; provided, however, for any such assignment by Customer to be valid, (a) Customer must provide written notice to Acyclica prior to such assignment, (b) all amounts due and payable at such time must be immediately paid to Acyclica and (c) the assignee must execute an assignment and assumption agreement (in a form approved by Acyclica) that confirms such assignee's assumption of all of Customer's obligations hereunder. Acyclica shall have the right to assign this Agreement to any other person, firm or corporation without notice to Customer and shall have the further right to subcontract any installation and/or services, including monitoring, which it may be required to perform hereunder. Customer acknowledges that this Agreement, and particularly those paragraphs relating to Acyclica's disclaimer of warranties, maximum liability, limitation of liability, and third party indemnification, inure to the benefit of and are applicable to any assignees and/or subcontractors, and they bind Customer with respect to said assignees and/or subcontractors with the same force and effect as they bind Customer to Company.
All notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, electronic facsimile (fax), or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address for each party first set forth above, and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner.
Relationship of Parties.
The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond the reasonable control of such party. Without limiting the generality of the foregoing, Customer acknowledges that Acyclica's Portal may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. Acyclica is not responsible for delays, delivery failures or other damage resulting from such problems.
Governing Law and Venue.
This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado without reference to its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Except for any injunctive or other equitable relief pursuant to Section 14, any action or proceeding arising from or relating to this Agreement shall be brought exclusively in a federal or state court in Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.
Customer hereby grants to Acyclica the limited right to use Customer's name and marks in marketing and publicity materials listing Customer as a customer of Acyclica; provided, however, any such use must be pre-approved by Customer, which approval shall not be unreasonably withheld or delayed.
The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word "including" means "including but not limited to."
This Agreement, including any attachments hereto and thereto, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.
"API" means collectively the Acyclica application programming interface (API) provided or made available by Acyclica for use in association with the Portal including all updates, upgrades, enhancements and error corrections made generally available by Acyclica in its sole discretion.
"API Key" means the unique string identifying Customer as a user of an API, assigned by Acyclica to Customer in Acyclica's discretion, to enable Customer to access and/or use such API. API Keys may be subject to activation, suspension and/or deactivation by Acyclica to ensure usage consistent with this Agreement and all applicable requirements, and for any other reason in Acyclica's discretion.
"Confidential Information" means the terms and conditions of this Agreement and all information related to a party's business, financial affairs or operations, including information related to business plans, technology, source code, product or service development plans, pricing, techniques and methods, which is either marked or identified as confidential or which the receiving party knew or reasonably should have known, under the circumstances, was confidential. Without limiting the foregoing, the API shall be considered the Confidential Information of Acyclica.
"Congestion Data" means any information or data collected by the Portal Equipment.
"Customer Data" means any data, information or material that Customer submits through the Portal.
"Documentation" means the user manuals and other technical documentation made available by Acyclica to Customer for the Portal in either electronic, online help files or hard copy format.
"Intellectual Property Rights" means all present and future worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights.
"Portal Equipment" means the physical equipment (but expressly excluding API), such as sensors, that Customer purchases from Acyclica or a distributor of Acyclica systems for in association with the Portal.