CERTEDRIVE SOFTWARE TERMS OF SERVICE
Welcome to CerteDrive! CerteDrive assists drivers, clinics, and fleet operators in their efforts to comply with U.S. Department of Transportation Certification requirements. CerteDrive’s online software simplifies reporting, compliance, and record-keeping. The Terms of Service below state the terms under which CerteDrive authorizes drivers, clinics, and companies to use the software. The Terms of Service are a legally binding contract between you (the driver, clinic, or subscriber company) (“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 Terms of Service (“TOS” or “Agreement”) 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, 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 Software or the Site. User shall not upload other technology, use any automated software (crawlers, robots, bots, spiders, extractors, etc.) at the Site; disable, hack, or seek to circumvent security-related features or digital rights management functions 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) its authorized representatives will be the only persons uploading data and engaging in transactions through that account; (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 personally-identifiable data to the CerteDrive database (“Data”), and storage of the Data by CerteDrive or its third party providers will not violate any state or federal law or violate the rights of any third party; (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.
b. 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 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); to respond to service of legal process (such as a court order, summons, subpoena, and the like); (c) improve the Software; (d) communicate with third parties (including clinics, employers, and potential employers and also may include the delivery of certain Data and reports to such third parties); (e) conduct research; (f) communicate with its Users; (g) provide services to third parties; and (h) collaborate with third parties in connection with such activities.
b. 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 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. Such Users further hereby release and agree not to sue CerteDrive from its use of any such Data. This permission to 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.
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; Duration.
a. User shall be a fee to use the Software on a “per transaction” basis (including financial processing fees) as set forth at the Site. CerteDrive may adjust fees from time to time, with advance notice to User. For some Users, CerteDrive does not charge a transaction fee.
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. User may contact CerteDrive to request reinstatement as a User. 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 each transaction.
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, 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 signed. User “signs” and accepts this Agreement by clicking “I agree” at the bottom of this Agreement.
10. Entire Agreement. These TOS are made up of this Agreement and the terms located at the referenced URLs, including Software features and pricing. It replaces any prior or contemporaneous writings or oral communications. The 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 the TOS, its sole remedy is to cease use of the Software.
11. 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 Data. All provisions of this Agreement regarding intellectual property ownership, disclaimer of warranties, and limitations of liability, shall survive any termination of this Agreement.
12. 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.
13. 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 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. 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.
14. 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.
15. 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.
16. Assignment. CerteDrive may assign, subcontract, delegate, and transfer its rights and obligations under this Agreement to a third party. User may not assign or transfer its account.
17. Notices.CerteDrive may provide User with notices, including those regarding changes to these TOS, by email, first class mail, or postings to the Site. Notice is deemed given upon the earlier of (i) actual receipt, (ii) twenty-four (24) hours after an email is sent, (iii) three (3) days after first class mail is deposited with the U.S. Postal Service, or (iv) User’s click through of any notice posted to the Site.
18. 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; or any other cause not within the control of such party whose performance is delayed.