NASCENT Technology LLC and its subsidiaries and affiliates (collectively, “NASCENT”) is and the sole legal and beneficial owner of NASCENT's readyAGS programs and systems which include, but are not limited to, NASCENT's readyAGS desktop solutions, NASCENT's readyAGS mobile app solutions, NASCENT's readyAGS cloud based solutions, NASCENT's readyAGS agent devices and appliances, and NASCENT's readyAGS, readyAGS Libraries and NASCENT's proprietary software all of which are collectively referred to as the “readyAGS System” and the related “readyAGS Software” and all of which collectively permit truck drivers and dispatchers and other end users to use Customer's mobile applications or NASCENT's readyAGS mobile applications in connection with readyAGS.
The readyAGS System provides: (1) a readyAGS user account website that may be accessed at www.readyAGS.com or other designated websites (each a “Site”), (2) services accessible through the Sites (“Web Apps”), (3) software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”), and (4) related services, including services that can be accessed using the Web Apps and Mobile Apps (“readyAGS Services”), all for use in conjunction with readyAGS products (“Products”) and in other ways that NASCENT provides. Some NASCENT Products and Services can be used together or in ways that integrate with products and services from third parties. The term “Services” means all readyAGS Sites, Web Apps, and Mobile Apps.
These Terms of Service (“Terms”) govern your access to and use of the Services.
By using the software that is embedded on the readyAGS System product (“Product”), you agree to the terms of the End User License Agreement (“EULA”) between you and NASCENT Technology LLC (“NASCENT”, “Licensor” or “we”). IF YOU DO NOT AGREE TO THESE TERMS OR THE TERMS OF THE EULA, YOU MAY NOT USE THE PRODUCT.
Licensee desires to use the readyAGS System and the readyAGS Software; and Licensor has agreed to license the readyAGS System and the readyAGS Software to Licensee, and Licensee agrees to accept such license subject to the terms and conditions set forth in these Terms
“Agent” means physical device appliance(s) installed within a customer's network;
“Affiliates” means any other entity that Licensee controls, that controls it, or is under common control with; where “control” means direct or indirect ownership of fifty percent (50%) or more of the stock entitled to vote at general meetings, the right to appoint a majority of the board of directors or a body performing a similar function, or effective control of the management of the company by contract or otherwise;
“Authorized Functionality” means all elements of the readyAGS Software;
“Customer” means a readyAGS organization utilizing readyAGS agents and readyAGS cloud based solutions;
“Delivery” – Licensee shall receive the readyAGS Software from either NASCENT or one of NASCENT's authorized resellers;
“Facility(ies)” means Customer's site(s) which utilize readyAGS;
“Improvements” or “New Versions” means any enhancements, improvements, upgrades, modifications, additions, bug corrections, patches, new releases or functional changes to the readyAGS Software made by Licensor to increase functionality, improve readyAGS Software efficiency or maintainability, or to support compliance with laws, regulations or industry standards;
“License” means the license for Licensee's use of the Ready AGS System and readyAGS Software for the Authorized Functionality;
“Object Code” means such compiled code to be executed by a given computer;
“readyAGS Software” means NASCENT's readyAGS Libraries which permit drivers to use NASCENT's readyAGS mobile app or Customer's mobile app in connection with NASCENT's readyAGS System;
“Source Code” means the human-readable version of the readyAGS Software that has not been compiled which is owned by and proprietary to Licensor;
“User” means YOU
- Grant of License.
Provided YOU, the end user, pays and is current with all required license fees, NASCENT, as Licensor, hereby grants to YOU as Licensee and Licensee accepts from NASCENT a nonexclusive, paid-up site license to use the readyAGS System and the readyAGS Software.
Where applicable, if any operating system is being licensed by NASCENT to Licensee along with the readyAGS Software for Licensee's use, except as otherwise provided for hereunder, Licensee agrees that such license to use the operating system is non-transferable and Licensee will not sub-license or otherwise transfer its rights to use the operating system supplied and licensed by NASCENT to Licensee for Licensee's use.
Licensee is prohibited from making any copies of the readyAGS Software and from separating any of the readyAGS Software's component parts or reverse engineering any parts of the readyAGS Software. NASCENT is the owner of the readyAGS System and the readyAGS Software and all elements thereof and Licensee hereby acknowledges that it does not own any part of the readyAGS System nor the readyAGS Software or any elements thereof owned by NASCENT and cannot be deemed an owner of such programs under any theory of law or under any statute including, but not limited to, 17 U.S.C. §117.
Licensee shall not reverse engineer, decompile or disassemble the readyAGS Software in whole or in part. Licensee has no ownership of or have any rights with respect to the readyAGS Software, including but not limited to Object Code and Source Code. NASCENT reserves all rights not explicitly granted herein.
Licensee shall not modify, merge, or incorporate any form or portion of the readyAGS Software with any other program or create any derivative work from the readyAGS Software. The readyAGS Software is to be used as set forth herein. Licensee agrees that the readyAGS System and the Ready readyAGS Software constitutes Confidential Information as defined hereunder, which belongs solely to NASCENT. Licensee hereby agrees not to disclose, provide or otherwise make available the readyAGS System or the Ready AGS Software, including, but not limited to, any form of the application or screen execution, machine-readable code and documentation, in any form to any person other than Licensee. Copyright or proprietary notices shall not be removed from the supplied readyAGS Software. Licensee will not register or make application for any patent, copyright or reserving in Licensee's or any other party's name, any information, data, systems or equipment furnished by NASCENT hereunder, nor will Licensee suffer or permit others to do so.
Licensee acknowledges and agrees that all components of the readyAGS System and the readyAGS Software consist of proprietary works of NASCENT, protected under U. S. copyright law and trade secret laws of general applicability. Licensee further acknowledges and agrees that Licensee has neither ownership of nor any rights with respect to any element of the readyAGS Software except as provided for herein. Licensor has all rights, title, and interest in and to the licensed Ready AGS System and the readyAGS Software which shall remain with NASCENT. Neither this Agreement nor any other agreements between NASCENT and BNSF conveys to Licensee any ownership interest in or to the licensed readyAGS Software, but only a limited right of use as set forth in this Agreement. Licensee shall keep the licensed readyAGS Software free and clear of all claims, liens and encumbrances. All transaction data and information created by, entered into, collected by or processed through the readyAGS System and the readyAGS Software is Licensor's proprietary information. Licensor is the sole and exclusive owner of all rights in and to such data and no ownership right to such data are granted or otherwise conveyed to Licensee.
Both parties agree that any unauthorized use of the licensed readyAGS Software by Licensee in breach of these terms and conditions would cause irreparable harm to Licensor. Accordingly, in addition to any other remedies to which Licensor may be entitled in the case of such breach by Licensee, Licensor may seek injunctive relief.
- License Fees.
The initial base readyAGS Software license fee covers and includes Licensee's right to use the existing and current version of the readyAGS Software. As of the License Activated Date the Initial Base License Fee is zero ($0.00) which is subject to price increases at Licensor's sole discretion.
- Term and Termination.
- These Terms will remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, NASCENT may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if NASCENT in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use the Product or Services under your Account (as described below) and will need to register for a separate Account with NASCENT.
- Effect of Termination. Upon termination of these Terms, your right to use the Services will automatically terminate.
The License granted is in effective upon acceptance of the readyAGS terms and conditions and has a term of sixty (60) days, with automatic sixty (60) herein may be terminated by Licensor at any time.
- Representations and Warranties.
- Licensor represents and warrants that it (i) has the necessary resources, qualifications, skills and expertise to deliver the readyAGS Software; (iii) has full title to the readyAGS Software and rights to grant the License granted herein;(iv) the readyAGS Software does not infringe any third party intellectual property rights; (v) Licensor has the right to license any third party readyAGS Software embedded in or included with the readyAGS Software and (vi) the readyAGS Software is free from defects in workmanship, design and materials and does not contain any viruses, malware, illicit code, disabling code, spyware or self-replicating code.
- In the event of any non-performance, bug, defect, failure or non-conformity of the readyAGS Software (“Bug”) which materially impacts the functionality and operation of the readyAGS Software, Licensee shall give notice to Licensor and Licensor will either (i) correct such Bug or otherwise restore functionality or (ii) terminate this License.
- Protection of Confidentiality and Intellectual Property Rights.
Confidential information means NASCENT's data or information that is confidential by its nature including without limitation technical, commercial, financial, marketing, business, operational or strategic information related to its business on any verbal, visual or written medium, whether it is marked confidential or restricted or not (“Confidential Information”). NASCENT may seek injunctive or other equitable relief to protect its Confidential Information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
You agree to defend, indemnify and hold NASCENT and its licensors and suppliers harmless from any damages, liabilities, claims or demands (including costs and attorneys' fees) made by any third party due to or arising out of (i) your use of the Products or Services, (ii) your violation of these Terms, (iii) any User Submissions or Feedback you provide; or (iv) your violation of any law or the rights of any third party. NASCENT reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify NASCENT and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without NASCENT's prior written consent. NASCENT will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- Limitation of Liability.
Nothing in these Terms and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.
IN NO EVENT SHALL ANY PARTY TO THIS AGREEMENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS, ANY COSTS OR EXPENSES FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR ANY OTHER INDIRECT DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EVEN IF THE POSSIBILITY THEREOF MAY BE KNOWN IN ADVANCE TO ONE OR MORE PARTIES.
- Governing Law and Jurisdiction.
The validity, interpretation, and performance of this Agreement shall be construed under the laws of the State of New York, USA, without giving effect to the principles of conflict of laws. Any action brought to enforce the terms or conditions of this Agreement shall be brought exclusively in the State of New York and venue shall be laid exclusively in the state and federal courts located in the Eastern or Southern District of New York.
- These Terms set out the entire agreement and understanding between the Parties with respect to the License of the readyAGS System and the readyAGS Software and takes precedence over any proposals, correspondence, or exchanges between the Parties oral or written, and in particular any terms and conditions previously agreed to or provided by Licensor. This Agreement may not be altered, modified or amended except by a written amendment executed by both Parties. Any failure by NASCENT to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
- No waiver of any breach of this Agreement shall be binding or effective unless in writing and no such waiver shall constitute a continuing waiver of the same or similar or other breaches. All rights and remedies are cumulative and (unless otherwise provided) are not exclusive of any rights or remedies provided by law.
- The Parties and their respective employees, personnel, contractors, sub-contractors and agents are independent contractors and nothing herein shall make them agents, employees, partners or co-joint-ventures of the other and there is no joint and several liability.
- Nothing in this Agreement shall be deemed to confer on either NASCENT or Licensee any kind of exclusivity unless otherwise agreed by the Parties in writing.
- The termination for any reason or expiration of these Terms shall not relieve either Party from any obligation that may have arisen prior to such termination or expiration of any provision that, to give full effect to its meaning, needs to survive termination or expiration.
- These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without NASCENT's prior written consent. These Terms may be assigned by NASCENT without restriction. These Terms are binding upon any permitted assignee.
- NASCENT may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account, mobile notifications, hard copy, or posting of such notice on your mobile app. NASCENT is not responsible for any automatic filtering you or your network provider may apply to email notifications.
- All legal notices required or permitted under this Agreement to Licensor shall be in writing (“Notices”) and will be deemed to have been duly received on the date of (i) signature of the return receipt for registered mail, or (ii) delivery confirmation notice when sent via any reputable overnight delivery service to NASCENT Technology LLC, Attn: readyAGS, 2744 Yorkmont Road, Charlotte, North Carolina 28209.
The parties hereto acknowledge that this Agreement represents the entire Agreement between the parties with respect to the readyAGS Software, and was entered into in the context of free and understanding negotiations, and is the product of individual bargaining between parties enjoying equal bargaining strength. To the maximum extent possible, each provision of this Agreement shall be interpreted in such a manner as to be permitted, valid and enforceable under applicable Law, but if any provision of this Agreement shall be prohibited by, or held to be invalid or unenforceable under applicable Law, such provision shall be severable and ineffective but only to the extent of such prohibition, invalidity or unenforceability, and the remaining provisions of this Agreement shall not be impaired or otherwise affected by such prohibition, invalidity or unenforceability, and the parties shall negotiate in good faith to replace such prohibited, invalid or unenforceable provision with a permitted, valid and enforceable provision that achieves, to the greatest lawful extent under this Agreement, the business and other purposes of such prohibited, invalid or unenforceable provision.