RTC

1. RTC TERMS AND CONDITIONS:
You, as the “Customer,” hereby agree to be bound to the Terms and Conditions as set forth by Richman Technology Corporation (RTC), as stated on the RTC designated website located at http://richmantech.com/termsandconditions.html. These General Terms and Conditions form an integral part of the “Agreement” relating to the RTC Service. All references herein to “you” and “your” means you, your employees, agents, and contractors, and any other entity on whose behalf you accept these terms and conditions, all of whom shall also be bound by this “Agreement.” Prior to using the RTC Service, you shall notify such personnel in writing that the RTC Service requires RTC to access their GPS hardware and otherwise obtain location and route information, and to record, compile and display such information internally, which information shall be subject to RTC’s privacy policy as outlined at http://richmantech.com/privacypolicy.html. RTC may, at its sole discretion, amend or change the terms and conditions as stated on the RTC website without notification to you and therefore RTC encourages you to periodically visit the designated website to stay current.

2. SERVICE
RTC has developed a certain proprietary software suite known as CyLink® which it provides as Software-AS-A-Service (SaaS) and which you desire to obtain, under license, to use as SaaS. Subject to the terms and conditions of this Agreement and during the Term hereof, RTC hereby provides you with a limited, non-exclusive, non-transferable and terminable license to access and to use RTC’s online business application suite of modules known as CyLink® (the "Service") solely for your business operations. The terms of this Agreement shall also apply to any modules or features subsequently provided by RTC to you and/or purchased by you that augment or enhance the current application. RTC shall host the Service and may update its functionality and user interface from time to time, in RTC’s sole discretion and in accordance with this Agreement, to improve the Service and your use of the Service. You agree that your use of the Service is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by RTC with respect to future functionality or features.

3. PROPRIETARY RIGHTS

    3.1. Grant of License - RTC hereby grants to you, during the Term, a non-exclusive, non-transferable right to use the Service, for your own internal business purposes, in support of your internal business needs and its services to your Clients, subject to the terms and conditions of this agreement and any Client Agreement with each client. Upon (i) termination of a Client Agreement, (ii) suspension of the Service as herein contemplated, or (iii) upon termination of this Agreement for any reason, all licensed rights granted to you for that client, pursuant to this Agreement, shall terminate immediately, and your client shall promptly discontinue all further use of the Service

    3.2. Restrictions - You and your clients will not: (i) copy, modify, port, adapt, translate, localize, reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, the Service or any portion thereof for any purposes, including, without limitation, to (x) build a competitive product or service; (y) build a product using similar ideas, features, functions or graphics of the Service; or (z) copy any ideas, features, functions or graphics of the Service or any dashboard related thereto; (ii) create derivative works based on the Software, the Service or any portion thereof or merge any of the foregoing with any third party software or services; (iii) remove, obscure or alter any proprietary notices or labels on the Software, or any portion of the Service; (iv) transfer, lease, assign, sublicense, pledge, rent, share, distribute or allow any lien or encumbrance to be placed on the Service or Software or any portions thereof; (v) disclose the results of any performance, functional or other evaluation or benchmarking of the Software or Service; provided, however, you may distribute the reports and other data generated by the Service (excluding any RTC intellectual property or confidential information included therein); (vi) use the Software, the Service or any portion thereof to provide services to any non-Client third party or for the benefit of any non-Client third party; (vii) create Internet “links” to or from the Service, or “frame” or “mirror” any content forming part of the Service, other than on your own intranets or otherwise for its own internal business purposes; (viii) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; or (ix) permit access to the Software, the Service or any portion thereof by any third party other than your designated users who have been provided access to the Service by RTC (each, a “User”) who (a) are bound by the terms of a written agreement with you which will protect RTC and its Intellectual Property Rights in a manner no less protective as the terms hereof and (b) use the Software and the Service solely for your benefit (each a “Permitted Contractor”). You shall be liable to RTC for any breach of the terms of this Agreement by any of its Permitted Contractors to the same extent that Customer would be liable hereunder had it committed the same breach. As used herein, “Intellectual Property Rights” includes, without limitation, patented or unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other Intellectual Property Rights, derivatives thereof and similar forms of protection, anywhere in the world.

    3.3. Reservation of Rights - Other than as expressly set forth in this Agreement, no license or other rights in or to the RTC Technology or Intellectual Property Rights therein are granted to you and all such licenses and rights are hereby expressly reserved. In furtherance of, and not in limitation of the foregoing, RTC owns all rights, title and interest, including any and all related Intellectual Property Rights, in and to the RTC Technology and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or your User, relating to the Service. Customer acknowledges and agrees that RTC will retain all right, title and interest to bench marking data, abstracted derivative data, transactional, performance data and metadata (but not to you Data) related to use of the Software or the Service which RTC may aggregate, benchmark and collect in such a way as to not allow identification of you or a user (including Software use optimization and product marketing), provided that such use does not reveal your identity or your Users or specific Software use characteristics that may be identified to you (collectively, the “Transactional Data”). This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, RTC Technology or Intellectual Property Rights owned by RTC.

4. RTC SERVICE:
The RTC Service combines GPS, wireless and web technologies to enable employee or fleet dispatching and activity reporting. For RTC to provide these services, RTC has to periodically receive the GPS location of your employees or fleet. In using the RTC Service, you allow your employee’s or fleet’s GPS hardware to be located and these locations to be recorded, compiled, stored and displayed. You may also transmit data to and from your employee or fleet and dispatch locations. Use of the RTC Service requires payment of a monthly fee, which includes download to your wireless device of the RTC Service software and any upgrades, modifications, or additions thereto (collectively, “RTC Software”), but does not include any hardware that may be required for certain wireless devices (such as standalone GPS receiver).

5. YOUR LOCATION AND ROUTE INFORMATION:
For RTC to provide the RTC Service, RTC must record your route information, including your point of origin, the address of your destination, the starting time of your trip, and the route you are instructed to follow (if any), and must periodically receive your GPS location from the GPS hardware associated with your wireless device, as well as continuously record and compile data regarding the location of your GPS and wireless devices. In using the RTC Service, you allow RTC to access your GPS hardware and otherwise obtain this location and route information, and to record, compile, and display such information internally. Such information is subject to RTC’s privacy policy located at http://richmantech.com/privacypolicy.html. Your use of the RTC Service indicates that you accept the terms and conditions of RTC’s privacy policy.

6. SAFE AND LAWFUL USE OF THE RTC SERVICE:
You are responsible for ensuring that your employees and drivers drive safely, observe all traffic rules and use their own personal judgment while driving. You agree to comply with the following when using the RTC Service:

  1. Observe all traffic laws and otherwise drive safely
  2. Use your own personal judgment while driving and using the RTC Service
  3. Do not input destinations, or otherwise interact with the RTC Service, unless your vehicle is stationary and parked
  4. Do not use the RTC Service for any illegal, unauthorized, unintended, unsafe, hazardous, or unlawful purposes, or in any manner inconsistent with this “Agreement”
  5. Arrange all GPS and wireless devices and cables as necessary for use of the RTC Service in a secure manner in your vehicle, if required to do so, so that they will not interfere with your driving and will not prevent the operation of any safety device (such as an airbag).

7. PAYMENT & FEES:
Before your RTC Service will be activated, you must have completed the appropriate direct billing agreement with RTC and applicable Monthly Recurring Charges. You agree to pay all fees charged to your account for the RTC Service, including applicable state and local taxes, in accordance with the RTC billing terms in effect at the time the charge(s) becomes payable. You will be charged such fees each month, even if you do not use the RTC Service. RTC reserves the right to change the fees for the RTC Service at any time, upon prior written notice to you. If payment is not made in the designated time frame due, RTC reserves the right to pursue any and all legal remedies to collect the amounts owed by you and to suspend or terminate your access to the RTC Service. Demonstration or Field Trial programs are not subject to payment for services and shall be bound by the Demo Loan Agreement and other applicable Terms and Conditions herein.

You agree that in the event RTC is required or requested by you and/or any legal authority to participate in any legal proceeding involving your use of the RTC Service or Software (but RTC itself is not a party to the proceeding), you shall be responsible for all legal fees and costs incurred by RTC as a result of such required or requested participation.

8. TELEPHONE CHARGES:
You are responsible for any fees assessed by your wireless telephone carrier to access the RTC Service, including any data plan charges, toll, out-of-area, roaming or other telephone connections. RTC reserves the right to change at any time the phone number designated for you to access the RTC Service, including eliminating any toll-free numbers.

9. TERMINATION:
RTC reserves the right to terminate your access to the RTC Service at any time for any or no reason and without notice to you. You may cancel the RTC Service at any time by notifying RTC via: (i) a phone call or an email addressed to the RTC Support department; (ii) a letter addressed to RTC, Inc., 4926 Savannah St., San Diego, CA 92110. Any such cancellation by you shall become effective upon RTC’s receipt of your notice. Upon termination of your RTC Service, RTC shall have no liability to you or any further obligations under this “Agreement,” other than to provide you with any pro rata refund that may be due.

10. ACCOUNT INFORMATION:
You agree: (a) when signing up for the RTC Service, to provide RTC with true, accurate, current, and complete information about yourself, and (b) to inform RTC promptly of any changes to such information to keep it true, accurate, current and complete. If you provide RTC with any information that is untrue, inaccurate, not current or incomplete, RTC has the right to suspend or terminate your access to the RTC Service. All of your account information, as well as other payment and personal information provided by you to RTC is subject to RTC’s privacy policy located at http://www.richmantech.com. Your use of the RTC Service indicates that you accept the terms of RTC’s privacy policy.

11. SOFTWARE LICENSE:
Subject to your compliance with the terms of this Agreement, RTC hereby grants to you a personal, non-exclusive, non-transferable license to: (i) download or otherwise copy the RTC Software onto your wireless device; (ii) use the RTC Software (in object code form only) on such wireless device in order to access and use the RTC Service; and (iii) access and use the RTC Service. This license shall terminate upon termination of this Agreement or upon suspension, termination or cancellation of your access to the RTC Service. Except for the limited license expressly granted herein, RTC shall own all rights, title and interest in and to the RTC Software, including, without limitation, all intellectual property rights therein. You agree to not do any of the following:

  • Reverse engineer, decompile, disassemble, translate, modify, alter or otherwise change the RTC Software or any part thereof.
  • Attempt to derive the source code, audio library or structure of the RTC Software without the prior express written consent of RTC.
  • Remove from the RTC Software or alter any of RTC’s or its suppliers’ trademarks, trade names, logos, patent or copyright notices or other notices or markings.
  • Distribute, sublicense or otherwise transfer the RTC Software to others.

12. LIMITATION OF LIABILITY:
RTC shall apply its best efforts to protect the security and confidentiality of Customer data. However, Customer agrees that the consideration which RTC is charging hereunder does not include consideration for assumption by RTC of the risk of customer's incidental or consequential damages. In no event shall RTC be liable for incidental, consequential, punitive, special or exemplary damages, or indirect damages of any type or kind (including, but not limited to, loss or disclosure of customer data, lost revenue, lost profits, or loss of other economic advantage) arising from breach of warranty, breach of contract, negligence or any other legal cause of action, to the maximum extent permitted by law. The maximum liability of RTC, whatsoever, arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort or otherwise, shall in no case exceed the equivalent of 3 months fees paid by Customer under the “Agreement.” The parties acknowledge that the limitations set forth in this Section are integral to the license of the Service and that, were RTC to assume any further liability other than as set forth herein, license fees in respect thereof would of necessity be charged. In certain states and/or jurisdictions that do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, the exclusions set forth above may not apply. You expressly acknowledge that RTC does not operate or control the Internet and that: (a) viruses, worms, Trojan horses, or other undesirable data or software; or (b) unauthorized users (e.g., “hackers”) may attempt to obtain access to your data, Website, computers, or networks. You further acknowledge that RTC exercises no control over and has no responsibility for any content or data transmitted or maintained using the Service nor for the information or material accessible upon, or actions taken on, the Internet and RTC expressly disclaims any and all liability arising there from.

13. DISCLAIMER OF WARRANTIES:
RTC DOES NOT REPRESENT THAT YOUR USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY RTC. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND IS FOR COMMERCIAL USE ONLY. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES.

14. INDEMNIFICATION:
To the extent permitted by applicable law, you agree to indemnify, defend and hold RTC and its licensors (including their respective licensors, suppliers, assignees, subsidiaries, affiliated companies, and the respective officers, directors, employees, shareholders, agents and representatives of each of them) free and harmless from and against any liability, loss, injury (including injuries resulting in death), demand, action, cost, expense, or claim of any kind or character, including but not limited to attorney’s fees, arising out of or in connection with your use of the RTC Service or the RTC Software. You understand and agree that the RTC Software is downloaded to your wireless device at your own discretion and risk and that you will be solely responsible for any damages to your wireless device, or loss of data, that results from the download of such software. RTC does not warrant that the RTC Service or the RTC Software will not infringe on third party intellectual property rights. RTC also does not warrant that your use of the RTC Service will be uninterrupted or error-free. Rather, temporary interruptions of the RTC Service may occur from time to time (such as when you drive into an area that has no cell phone coverage or when the RTC Service or your carrier’s network undergoes maintenance). RTC will exercise reasonable efforts to attempt to limit or prevent such occurrences, but in no event will RTC be liable for any financial or other damages due to such interruptions. RTC also does not warrant the accuracy of the map or other data used for the RTC Service. Such data may not always reflect reality due to, among other things, road closures, construction, weather, new roads and other changing conditions. RTC has technological and operational security policies and procedures to protect your information from loss, misuse, alteration, or unintentional destruction, but RTC makes no representations or warranties regarding the security of the RTC Service or the transmission of data or information to and from RTC and your wireless device. RTC will not be liable to you or anyone else in the event of any unauthorized infiltration of any of its systems. RTC has technological and operational security policies and procedures to protect your information from loss, misuse, alteration, or unintentional destruction, but RTC makes no representations or warranties regarding the security of the RTC Service or the transmission of data or information to and from RTC and your wireless device. RTC will not be liable to you or anyone else in the event of any unauthorized infiltration of any of its systems.

15. ARBITRATION AND GOVERNING LAW:
This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws or rules. In the event of litigation, the state and federal courts located in San Diego County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. In that event, you hereby consent to the exclusive jurisdiction of such courts. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs.
16. BINDING ARBITRATION:
These rights notwithstanding, you hereby agree to the resolution of any dispute through mutually acceptable Alternative Dispute Resolution process and binding arbitration, in preference to judicial litigation and to share such service fees equally with RTC.

17. NO THIRD PARTY BENEFICIARIES:
Third-party beneficiaries to this Agreement shall be limited to your clients, as provided under Client Agreements for your services.

18. ATTRIBUTION:
You agree to allow RTC to reference you as a customer using RTC technology on RTC’s website and in print copy or marketing collateral. You agree to provide RTC with an approved company logo that RTC may publish on RTC’s website and/or marketing collateral to communicate such relationship. This logo will be linked to your website. You agree to allow RTC to reference you in media-related interviews conducted by the press and RTC.

19. COUNTERPARTS:
This Agreement and any Transaction Document may be executed in one or more counterparts, all of which together shall constitute one original document. In lieu of the original, a facsimile transmission or copy of the original shall be as effective and enforceable as the original.

20. DEFINITIONS:
Your data” or "Customer Data" shall mean any data, information, or other materials of any nature whatsoever, provided to RTC by you in the course of implementing and/or using the Service. "Electronic Communications" shall mean any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service. “Software” means the computer source code and object code, including, without limitation, the software, provided or used by RTC in connection with the Service provided hereunder. “RTC Technology” includes, without limitation, the Software, all proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical information) made available to Customer through the Service or otherwise.

21. ENTIRE AGREEMENT:
This Agreement constitutes the entire agreement between RTC and you with respect to the subject matter hereof. RTC’s or your failure to require performance of any provision shall not affect either party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself If any provision herein is held unenforceable, then such provision will be modified to reflect the intention of the parties and the remaining provisions of this Agreement will remain in full force and effect.

22. ASSIGNMENT, CONSENTS & NOTICES:
You may not resell, assign, or transfer any of your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to RTC. Notwithstanding the foregoing, RTC may assign this Agreement to any affiliate at any time without notice. By using the RTC Service, you consent to receive from RTC all communications, including notices, agreements, legally required disclosures or other information in connection with the RTC Service (collectively, “Notices”) electronically. RTC may provide such Notices by posting them on RTC’s website or by downloading such Notices to your wireless device. If you desire to withdraw your consent to receive Notices electronically, you must discontinue your use of the RTC Service. If you have any questions regarding the terms of this Agreement, please contact RTC by sending an email to care@richmantech.com, by writing to RTC Customer Service, 4926 Savannah San Diego, CA 92111 or by calling RTC Customer Support at (619) 275-5170.

23. WAIVER & SEVERABILITY:
The failure of either party hereto to enforce at any time any of the provisions or terms of this Agreement or any rights in respect thereof or the exercise of or failure to exercise by either party any rights or any of its elections herein provided, shall in no way be considered to be a waiver of such provisions, terms, rights or elections or in any way to affect the validity of this Agreement. If any of the provisions of this Agreement, or portion thereof, are held invalid or unenforceable, such invalidity or unenforceability shall not affect the remainder of this Agreement. In such event, the parties shall negotiate, in good faith, a substitute, enforceable provision which most nearly effects their original intent in entering into this Agreement, failing which the parties agree that the governmental body, arbitrator or mediator making such determination shall have the power to modify the provision in a manner consistent with its objectives such that it is enforceable and/or to delete specific words or phrases and, in its reduced form, such provision shall then be enforceable and shall be enforced.

24. EXPORT CONTROL:
You agree to not export, from anywhere, any part of the data provided to you or any direct product thereof, except in compliance with all licenses and approvals required under applicable export laws, rules and regulations.