CERTEDRIVE CORP. TERMS OF SERVICE
THESE TERMS OF SERVICE CONTAIN AN ARBITRATION PROVISION, SECTION 14.
Last Updated: March 1, 2024
Welcome to CerteDrive! These Terms of Service (these “TOS” or this “Agreement”) state the terms under which CerteDrive authorizes drivers, clinics, and companies to use the Software (defined below). These TOS are a legally binding contract between you (the driver, clinic, or subscriber company accepting these TOS below) (“You” or “User”) and CerteDrive Corp., 1140 Monroe Ave. NW, Suite 150, Grand Rapids, Michigan 49503.
1. The Software. A description of the software, including its features and operation (“Software”) is posted to http://www.CerteDrive.com (the “Site”). The Software processes information provided by User and generates reports based upon such information. You are solely responsible for the accuracy, completeness, and use of the information. The Software is not an expert system, does not generate medical opinions, does not provide medical advice, does not diagnose or treat disease, is not used to prevent disease, and is not used in connection with the request for or delivery of health care. Neither the Software nor these TOS create a doctor-patient relationship.
2. Intellectual Property Rights.
a. CerteDrive retains all intellectual property rights in the Software, including copyrights, trade secrets, trademarks, patents, and “know-how.” User is granted a limited license to access the Software via the Site, enter data, and generate reports. User shall not download the Software, make unauthorized copies, create derivative works, permit third party access to the Software, reverse engineer, or decompile the Software.
b. User shall not take any action to interfere with the operation of the Site, attempt to copy its underlying technology, upload other computer programs or files, or copy content. User agrees not to use any automated software (crawlers, robots, bots, spiders, extractors, or the like) at the Site; or circumvent, disable, or otherwise interfere with security-related features or digital rights management functions at the Site; or hack, reverse engineer, or disable any technology at the Site.
c. Report formats are proprietary to CerteDrive. User shall not publish or publicly distribute copies of such reports and shall not make commercial uses of the reports.
3. User Account: Data.
a. To use the Software, User must create an account. User represents and warrants that: (i) User or its authorized representatives will be the only persons uploading data and engaging in transactions in connection with this Agreement; (ii) it shall keep passwords secure and shall notify CerteDrive of any suspected breach of security or unauthorized use of its account; (iii) it has the right to transact business in the US and to enter into this Agreement for the use of the Software; (iv) it has the right to upload personal information (as defined in the CerteDrive Privacy Policy) and other information to the CerteDrive database (“Data”); (v) the person signing this Agreement has the actual authority to bind the User to its terms and conditions; (vi) it shall not assign or transfer the account to a third party; and (vii) it shall not enable third party access to its account or the Software. User further represents and warrants that all and that any such Data provided by User shall be accurate and complete.
b. For purposes of verification, fraud prevention, compliance with law and with these TOS, and Site security, CerteDrive or its contractors (each, a “Data Contractor”) may collect information about persons seeking to establish accounts (“Submitted Data”). Such Submitted Data may be analyzed via machine learning, artificial intelligence, and analyses based upon various databases intended to assist in verification and compliance. Data Contractor will provide the results of that analysis to CerteDrive (“Provided Data”). Submitted Data and Provided Data are referred to collectively as “Customer Data” for purposes of this Section. User hereby grants CerteDrive a broad license to use Customer Data in connection with its business, and to authorize Data Contractor the right to use Customer Data; without limitation: the right to copy, transmit, use, host, perform, display, and create derivative works; to combine with other data; and to operate, analyze, and improve the services of CerteDrive and/or the Data Contractor; to evaluate and assess compliance by User with applicable law. This license is worldwide, irrevocable, perpetual, royalty-free, paid up, sublicensable and transferable, for all media now known or later developed. User hereby waives and claim against CerteDrive or Data Contractor for use of Customer Data as set forth above.
c. User is responsible for retaining electronic or physical copies of its Data on a regular basis to ensure that it always has access to its own Data. Although CerteDrive has designed the Site to enable uptime of over 98%, CerteDrive relies upon third parties for power, data storage, server access, software maintenance, system troubleshooting, system security, and other technology services.
4. CerteDrive Use of Data; HIPAA Release.
a. CerteDrive may use account information, Data, and information CerteDrive collects from User’s use of the Software, except to the extent such account information, Data, and information contains personal information, for all purposes permitted by this Agreement and by applicable law. By way of example, CerteDrive may use Data to (a) investigate and verify proper conduct at the Site and monitor the security and integrity of the Site; (b) respond to requests from government agencies (such as the U.S. Department of Transportation); (c) respond to service of legal process (such as a court order, summons, subpoena, and the like); (d) improve the Software; (e) communicate with third parties, and deliver certain Data and reports to such parties (including clinics, employers, and potential employers); (f) conduct research; (g) communicate with You; (h) provide services to third parties; and (i) collaborate with third parties in connection with such activities.
b. The collection, use, and handling of personal information is described in CerteDrive’s Privacy Policy (https://certedrive.com/privacy-policy/). Please review the Privacy Policy and contact CerteDrive with any questions.
c. All personal information provided by a User is such User’s confidential information. With respect to all personal information, CerteDrive shall not: (i) sell or share the personal information, except to the extent necessary to assist CerteDrive in processing personal information for a business purpose on behalf of User and pursuant to a written contract binding the third party to observe all the requirements set forth in this Section 4.c (which, where applicable, shall be considered satisfied by such a third party agreeing to these TOS).; (ii) retain, use, or disclose the personal information for any purpose other than for the business purposes specified in this Agreement and CerteDrive’s Privacy Policy, including retaining, using, or disclosing the personal information for a commercial purpose other than the business purposes specified in this Agreement and CerteDrive’s Privacy Policy, or as otherwise permitted by applicable privacy laws; (iii) retain, use, or disclose the information outside of the direct business relationship between the User and CerteDrive; (iv) combine the personal information that CerteDrive receives from, or on behalf of, the User with personal information that it receives from, or on behalf of, another person or persons, or collects from its own interaction with a User, except to the extent required to perform any business purpose and as permitted by applicable law.
d. With respect to its Users, CerteDrive is not a “health care provider,” “health plan,” “public health authority,” “employer,” “life insurer,” “school or university,” “health care clearinghouse,” “health insurance issuer,” “health maintenance organization,” “Medicare program,” “medicaid program,” provider of a “Medicare supplemental policy,” a provider of a “long-term care policy,” provider of “employee welfare benefit plans,” provider of “veterans health care program,” provider of the “Civilian Health and Medical Program of the Uniformed Services,” provider of “The Indian health service program under the Indian Health Care Improvement Act,” or provider of “The Federal Employees Health Benefit Plan under chapter 89 of title 5” and does not receive “health information” (as those terms are used in connection with the Health Insurance Portability And Accountability Act of 1996 (currently 42 U.S.C. 1395 et seq. as amended and regulations thereunder) (“HIPAA”). Notwithstanding the forgoing, if any portion of the relationship between and among CerteDrive and the Users who are drivers, clinics or other health care providers, employers, prospective employers, and/or CerteDrive clients, is governed by HIPAA, Users who hold privacy rights with respect to “health information” and/or “individually identifiable health information” hereby authorize the disclosure of Data that are “health information” and/or “individually identifiable health information” to CerteDrive for the uses set forth in this Agreement. Similarly, Users that are “covered entities” represent and warrant that they’ve obtained all authorization required by law, including HIPAA, for CerteDrive to make such uses and disclosures as required or permitted under this Agreement. Such Users further hereby release and agree not to sue CerteDrive from its use and disclosure of any such Data and indemnify CerteDrive for any damages resulting from such use and disclosure. This permission and indemnification to use, disclose and release applies to the third parties who are clinics, health care providers, employers, prospective employers, government agencies, and third party clients of CerteDrive. For the avoidance of doubt, by signing below, User who is using the Software in connection with the generation, storage, and/or disclosure of medical information hereby authorizes (and for Users that are clinics, that they’ve obtained proper authorizations from their applicable patients that are Users) the release of their personal health information to CerteDrive, User’s employer, User’s prospective employer, training facility, or representatives of the foregoing solely in connection with Department of Transportation examination process and related requirements, employment, and prospective employment. Any third party receiving User personal health information from CerteDrive shall be bound by HIPAA and further, shall not sell any User personal health information.
5. Access; Uptime, Security; Release of Liability. CerteDrive agrees to use reasonable measures to support the operation of the Software and the Site and to provide security for the Data. The Site will occasionally be down (and the Data inaccessible) for testing, upgrading, and maintenance. CerteDrive does not represent that the Software will always be accessible or that Data is 100% secure. User hereby releases and agrees not to sue CerteDrive for any loss of Data, inability to access Data, or other damages or claims arising from or relating to the Site and the Software.
6. Software Fees; Inactivity.
a. CerteDrive shall provide User a price list for the fees applicable to User’s use of the Software, including financial processing fees. User agrees to timely pay such fees in full. If User uses a credit card for payment of its Software fee, it hereby authorizes CerteDrive to charge such card for the fees applicable to the services. CerteDrive may adjust fees from time to time, with advance notice to User. Failure to pay fees on time and in full is a material breach of this Agreement.
b. Once an account is created, User may continue using the Software until access is terminated by User or by CerteDrive. CerteDrive may inactivate accounts after a period of nonuse of ninety (90) days. User may contact CerteDrive to request reinstatement as a User.
7. AS-IS Warranty. CERTEDRIVE PROVIDES THE SOFTWARE “AS IS,” WITH NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CerteDrive does not warrant that the functions contained in the Software will meet User’s specific requirements, the requirements of User’s particular industry, will be error-free, or operate without interruption. CerteDrive will use commercially reasonable efforts to correct bugs and maintain the Software. If User is not satisfied with the Software, its sole and exclusive remedy is to cease use of the Software. This is in lieu of all other remedies by contract, by law, and at equity.
8. Limitations of Liability for Damages. Regardless of the form of action or theory of recovery, in no event shall CerteDrive be liable to User in connection with this Agreement, the Software, or the Site, for any indirect, special, exemplary, consequential, incidental or punitive damages, even if CerteDrive is aware of the possibility of such damages; lost profits, lost revenue, lost business expectancy, business interruption losses, or loss of data; and/or direct damages in an amount in excess of the transaction fees for the preceding thirty (30) days.
9. Effective Date. This Agreement is effective on the date last updated above. By accessing and using the Site or the Software, signing this Agreement, or providing information to us (by any means, whether in correspondence, via our Software or Site, or otherwise), you accept and agree to be bound by the terms and provision of this Agreement. User “signs” and accepts this Agreement by clicking “I agree” at the bottom of this Agreement. IF YOU DO NOT AGREE WITH THIS AGREEMENT OR OUR PRACTICES, PLEASE DO NOT USE THE SITE OR THE SOFTWARE.
10. Privacy Policy. This Agreement incorporates CerteDrive’s User Privacy Policy, located here and incorporated by reference.
11. Entire Agreement. This Agreement includes the terms located at the referenced URLs, including Software features, privacy policy, and Business Associate Agreement. It replaces any prior or contemporaneous writings or oral communications. These TOS may be updated and modified by CerteDrive from time to time and those modifications are incorporated as the Agreement. User will be notified of significant modifications when it logs on or accesses the Software or its account. If User does not accept the modifications to these TOS, its sole remedy is to cease use of the Software.
12. Termination of Services; Termination of Agreement. In the event of a material breach, response to legal process, concern for the integrity of the Site, reasonable suspicion of improper conduct at the Site, or other good faith belief, CerteDrive may suspend or terminate an account, remove or limit access to Data, or limit services to which an account holder has access, and shall use reasonable efforts to provide prior notice to an account holder. Either party may terminate this Agreement if there is a material breach by the other that is not cured within five (5) business day after receipt of written notice of such breach. Upon termination, User is responsible for ensuring that it has possession of its Data and all reports generated by it in connection with the use of the Software, and for paying any fees and expenses owing as of the date of termination. Upon termination of this Agreement CerteDrive may block access to or delete uploaded User Data. All provisions of this Agreement regarding intellectual property ownership, disclaimer of warranties, and limitations of liability, shall survive any termination of this Agreement.
13. The Site and Software are Located in and Delivered from Grand Rapids, Michigan, USA. This Agreement is entered into, performed in, and based in Grand Rapids (Kent County), Michigan, USA and shall be governed by Michigan law. The Site does not give rise to personal jurisdiction over CerteDrive, either specific or general, in jurisdictions other than Michigan.
14. Dispute Resolution. The parties shall attempt to resolve any disputes through good faith business negotiations. All disputes or claims arising out of or relating to this Agreement (including the validity or breach thereof) shall be settled by arbitration, to be conducted by a single arbitrator in Grand Rapids, Michigan, by and in accordance with the then effective commercial rules of the American Arbitration Association or JAMS. The costs of the arbitration and the reasonable attorneys’ fees of the prevailing party shall be included in any award rendered by the arbitrator. Judgment upon the award may be entered in any court having jurisdiction thereof. Neither party shall disclose the existence, Data or result of any arbitration proceeding without the prior written consent of the other party. Any other action brought by either party related to this Agreement shall be initiated and maintained solely in Kent County, Michigan, or in the U.S. District Court for the Western District of Michigan. The parties expressly submit to the exclusive personal jurisdiction and venue of these courts and waive any objection on grounds of forum non conveniens.
15. No Implied Waiver. No waiver by CerteDrive shall be implied. Any waiver of any term of this Agreement must be in writing and signed by an officer of CerteDrive.
16. Severability. If any portion of this Agreement is found to be unenforceable, such portion will be modified to reflect the parties’ intent set forth in such portion and only to the extent necessary to make it enforceable. The remaining provisions of this Agreement will remain in full force and effect.
17. Assignment. CerteDrive may assign, subcontract, delegate, and transfer its rights and obligations under this Agreement to a third party who agrees to be bound by its terms. User may not assign or transfer its account.
18. Business Associate Agreement. For those Users who are covered entities and receive personal health information in connection with this Agreement, the Business Associate Agreement set for here is incorporated by reference and made a part of this Agreement.
19. SMS/Text Messages.
a. By providing your mobile/cellular phone number to CerteDrive, you agree to receive text (SMS) messages as a form of electronic communications under this Agreement (by way of example, relating to your use of the Software, and your receipt of Data, Reports, and notices). These text messages will be from CerteDrive, Your current employer, or a prospective employer. If you need help responding to CerteDrive’s text messages, call or email CerteDrive. Your wireless carrier’s standard messaging rates apply to all text messages received and sent, including any downloading of content. All charges are billed by and payable to your wireless carrier.
b. You represent that you are the owner or authorized user of the phone number you provide to CerteDrive and the wireless device you use to subscribe to CerteDrive’s services. You represent that the information you provide is accurate and complete. You represent that you are authorized to approve the applicable charges.
c. Data obtained from you in connection with this SMS service may include your mobile phone number, your carrier’s name, and the date, time, and content of your messages and other information that you may provide. CerteDrive may use this information to contact you and to provide the services you request and to otherwise operate, develop, and improve CerteDrive’s services. Your wireless carrier and other service providers may also collect data from your SMS usage, and their practices are governed by their own policies. CerteDrive may disclose information in accordance with this Agreement, including its privacy policy.
d. CerteDrive is not liable for any delays or failures in your receipt of any messages, as delivery is subject to effective transmission from your network operator and processing by your mobile device. CerteDrive provides text message services on an AS IS, AS AVAILABLE basis. CerteDrive reserves the right to alter the terms applicable to text messages from time to time. CerteDrive may suspend or terminate the text message service if it believes you are in breach of the terms and conditions. The text message service is also subject to termination in the event your wireless service terminates or lapses. CerteDrive may discontinue this service at any time.
20. Electronic Notices, Documents, and Signatures; Notices. The parties consent to electronic signatures, documents, communications, and legal notices. CerteDrive may provide User with notices, including those regarding changes to these TOS, by email, first class mail, text, or postings to the Site. Notice by either party is deemed given upon the earlier of (a) actual receipt, (b) twenty-four (24) hours after an email is sent, provided that the recipient acknowledges receipt or a hard copy is sent by first class mail with the United States Postal Service; (c) if by mail only, then three (3) days after first class mail is deposited with the U.S. Postal Service, (d) User clicks through of any notice posted to the Site; or (e) courier delivery, such as Fed Ex.
CerteDrive contact information is below:
CerteDrive Corp.
1140 Monroe Avenue NW, Suite 150
Grand Rapids, Michigan 49503
Telephone: (616) 459-1566
Email: support@certedrive.com
21. Force Majeure. It shall not be a material breach of this Agreement, and neither party shall be liable to the other, if prevented from performing its duties or responsibilities under this Agreement by reason of any fire or other casualty, acts of God, earthquake, floods, explosions, interrupted power supply, attacks on technology infrastructure, sabotage, war, riots, acts of terrorism; inability to procure or a general shortage of labor, equipment, facilities, materials or supplies in the open market; strikes, court orders, laws, regulations, or orders of government or military authorities; pandemic, or any other cause not within the control of such party whose performance is delayed.