PULSAR INFORMATICS SERVICE LICENSE AGREEMENT
TRUCKING FATIGUE METER SOFTWARE SERVICES
 

Please read this agreement (“Agreement”) carefully. By using the Licensed Software as defined below, you and any entity or employer you are authorized to represent (hereinafter “Customer”) signify that Customer accepts all the terms and conditions of this Agreement. Customer agrees that this Agreement is like any written negotiated agreement signed by Customer. This Agreement is enforceable against Customer. If Customer does not agree to the terms of this Agreement, Customer may not use the Licensed Software. Except for those sections of this Agreement which may reasonably be understood to relate to the rights and obligations of Customer as the primary licensee, “Customer” also includes Authorized Users.

1. DEFINITIONS
   1. “Access Issue” means a situation in which any of Customer’s Authorized Users cannot access the Licensed Software using a web browser over a broadband internet connection despite repeated attempts.
   2. “Active Driver” means, on any given day, a person being monitored through the Trucking Fatigue Meter system with actual duty information present during any portion of the trailing 
      14-day period.
   3. “Authorized User” means each employee, agent, contractor, and other person that Customer permits to use the Licensed Software for Customer’s benefit.
   4. “Event of Force Majeure” means any circumstance not within the reasonable control of Pulsar, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence, cannot be, or be caused to be, prevented, avoided or removed by Pulsar, (ii) such circumstance materially and adversely affects the ability of Pulsar to perform its obligations under this Agreement, and (iii) Pulsar has taken all reasonable precautions, due care and reasonable alternative measures in order to avoid the effect of such event on Pulsar’s ability to perform its obligations under this Agreement and to mitigate the consequences thereof.
   5. “Excluded Event” means any period during which the Licensed Software is unavailable to Customer or any Authorized Users due to: (i) the acts or omissions of Customer or any Authorized Users; (ii) the failure or malfunction of any equipment, applications, networks or systems not owned, leased or controlled by Pulsar; (iii) Events of Force Majeure; (iv) Scheduled Maintenance; (v) any suspension of the License in accordance with the terms of this Agreement; (vi) the unavailability of Customer personnel, including as a result of any failure to provide Pulsar with accurate, current contact information; (vii) Customer’s use of the Licensed Software in a manner inconsistent with the terms of section 3 (Permitted Use) of this Agreement; (viii) any suspension of Customer’s subscription to the Licensed Software requested by Customer; or (ix) the termination of the License.
   6. “License” shall have the meaning set forth in section 2.1 hereof.
   7. “Licensed Software” means (i) software marketed by Pulsar as Workforce Fatigue Meter, (ii) Updates, and (iii) all documentation, instructions, manuals, diagrams and other materials, in whatever medium or format, pertaining to the foregoing.
   8. “Outage” means a discrete time during which Authorized Users are unable to access the Licensed Software for reasons other than Excluded Events.
   9. “Primary Data” shall have the meaning set forth in section 9.1 hereof.
   10. “Scheduled Maintenance” means the planned performance of software maintenance activities by Pulsar to maintain and update the Licensed Software as necessary.
   11. “Secondary Data” shall mean data that: (i) is derived from Primary Data, (ii) is substantially dissimilar to Primary Data, and (iii) does not include personally identifiable information.
   12. “Start Date” shall have the meaning set forth in section 4.1 hereof.
   13. “Subscription Fee” shall have the meaning set forth in section 4.2 hereof.
   14. “Term” shall have the meaning set forth in section 5.1 hereof.
   15. “Total Minutes” (or “TM”) means the total number of minutes during a particular calendar month within the Term. (For a month with 31 days wholly within the Term, TM = 44,640.)
   16. “Trucking Fatigue Meter” means a Pulsar software application accessed through a web browser, the function of which is to monitor individual driver fatigue in daily operations and to observe trends in driver fatigue over time.
   17. “Unavailable Minutes” (or “UM”) means the total number of Outage minutes during a particular calendar month during the Term, counting any Outage occurring concurrently for multiple Authorized Users as a single Outage.
   18. “Updates” means bug fixes and patches and other updates, enhancements, modifications, upgrades, versions, or releases of the Licensed Software, but shall not include new products or modules unless otherwise determined by Pulsar in its sole discretion. 
   19. “Uptime Percentage” means a percentage calculated each calendar month in accordance with the following formula:

       Uptime Percentage = 100 * (TM – UM) / TM

   20. “Support Issue” means a technical support issue reported by Customer to Pulsar concerning the use or operation of the Licensed Software that, in the sole discretion of Pulsar, lies within the scope of the intended functionality of the Licensed Software as currently released.
        
2. LICENSE GRANTED
   1. Subject to the conditions herein, Pulsar hereby grants to Customer, solely as a licensee, a non-transferable, non-exclusive, limited right and license to display and use the Licensed Software during the Term (“License”). Pulsar reserves all other rights in the Licensed Software, which is protected by copyright, trade secret, and other intellectual property laws.
   2. Customer is responsible for the compliance of all Authorized Users with the terms of this Agreement.
       
3. PERMITTED USE
   1. Customer agrees to use the Licensed Software only for Customer’s internal business purposes and not in a manner that violates any applicable law, regulation, or the terms of this Agreement.
   2. Customer shall not reproduce, modify, copy, deconstruct, reverse engineer, sell, trade or resell, or make derivative works of the Licensed Software. 
   3. Customer agrees not to use the Licensed Software to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to: 
      1. illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage criminal or civil liability under any local, state, federal or foreign law; 
      2. content that would impersonate someone else or falsely represent Customer’s identity or qualifications, or that constitutes a breach of any individual's privacy; 
      3. except as permitted by Pulsar in writing, investment opportunities, solicitations, chain letters, or other unsolicited commercial communication;
      4. virus, Trojan horse, worm or other disruptive or harmful software or data; and
      5. any information, software or content which is not legally Customer’s and accessed without permission from the copyright owner or intellectual property rights owner.
          
4. SUBSCRIPTIONS, FEES AND PAYMENTS
   1. The Licensed Software is licensed on a subscription basis. The subscription period shall commence on the Start Date (“Start Date”) set forth in a Pulsar Informatics Quote or Order Confirmation Form (“Order”) signed by Customer, and shall continue for the duration of the subscription period set forth therein (“Subscription Period”) unless terminated earlier in accordance with the provisions of this Agreement.
   2. In consideration for the License and other rights granted by Pulsar hereunder, Customer agrees to pay to Pulsar a subscription fee for each successive monthly period during the Term (“Subscription Fee”). The Subscription Fee shall be calculated at the end of each monthly period as the product of: (i) the average number of Active Drivers during the period, and (ii) the monthly subscription fee per driver as set forth in the Order.
   3. The monthly subscription fee per driver set forth in the Order shall remain in effect for the duration of the Subscription Period. Pulsar shall notify Customer of any change in the price of the monthly subscription fee per driver at least 30 days in advance of the end of the Subscription Period.
   4. Customer and Pulsar may mutually agree in writing to extend the Subscription Period at any time prior to the end of the Subscription Period. At the end of the Subscription Period, Customer’s subscription to the Licensed Software shall automatically renew on a month-to-month basis, unless the License is canceled or terminated in accordance with the terms of this Agreement.
   5. Unless otherwise specified in the Order, Subscription Fees will be billed to Customer on net 30 terms at the end of each monthly period during the Term. Customer shall pay with one of the following payment methods: (i) a valid credit card, (ii) sufficient funds in a checking or savings account to cover an electronic debit of the payment due, or (iii) another payment option agreed between the parties in writing. All fees paid are nonrefundable.
   6. If Customer terminates this Agreement pursuant to section 5.3, Customer shall, upon the effective date of termination, remit to Pulsar any unpaid Subscription Fees due for all monthly periods prior to the effective date of termination, as well as all Subscription Fees pertaining to the remainder of the Subscription Period calculated on the basis of the average number of Active Drivers from the Start Date through the date of termination.
   7. If Customer’s payment and registration information is not accurate, current, and complete and Customer does not notify Pulsar promptly when such information changes, Pulsar may suspend or terminate Customer’s License.
   8. Customer shall be responsible for the payment of all taxes that may be applicable in connection with this Agreement as required by any local, federal, state or foreign government authority, including but not limited to import/export taxes and sales and use taxes, and excluding all taxes relating to Pulsar’s income.
   9. Any fees that may be charged by third parties to integrate the Licensed Software with Customer’s existing information technology infrastructure or to gain access to electronic logging data or such other data as may be required for the operation of the Licensed Software are separate from and not included in any Subscription Fee assessed in connection with the License.
       
5. TERM AND TERMINATION
   1. The term of this Agreement (“Term”) shall commence on the Effective Date and continue in effect for one (1) year, and shall automatically renew for successive one-year periods until terminated as provided for herein.
   2. This Agreement may be terminated (a) by either party if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days after receiving written notice of such breach from the non-breaching party; or (b) by either party immediately upon written notice, if the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course of business.
   3. Customer may terminate this Agreement at any time, with or without cause, upon thirty (30) days prior written notice to Pulsar. 
   4. Upon termination of this Agreement, the License shall automatically terminate and Customer will no longer be able to access the Licensed Software. 
   5. Customer agrees that it is not entitled to a refund of any Subscription Fee or portion thereof upon termination of this Agreement.
   6. Section 4 and sections 9 through 22 shall survive the termination of this Agreement. 
       
6. DISCLAIMER
   1. THE LICENSED SOFTWARE IS PROVIDED ON AN “AS-IS” BASIS. PULSAR MAKES NO GUARANTEE OF THE AVAILABILITY OF SPECIFIC FUNCTIONALITY OR FEATURES, OR THAT THE LICENSED SOFTWARE WILL BE AVAILABLE ON AN UNINTERRUPTED BASIS OR ERROR-FREE. EXCEPT TO THE EXTENT PROHIBITED BY LAW, PULSAR MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM RESPONSE TIME, MAXIMUM OR AVERAGE LATENCIES OR ANY OTHER PERFORMANCE METRIC.
      ​​​​​​
7. SERVICE AVAILABILITY
   1. Pulsar shall ensure the Licensed Software is in good working order and accessible through a web browser over a standard broadband Internet connection with an Uptime Percentage of at least 99.40%. Pulsar shall undertake to resolve any Access Issue in accordance with the terms of this Agreement.
   2. An Outage will be deemed to commence when Customer initiates a technical support request by contacting Pulsar by either phone or email. The Outage will be deemed to end when Pulsar has restored availability of the Licensed Software and has notified Customer of the same.
   3. Updates
      From time to time Pulsar may issue Updates to the Licensed Software. Customer agrees that the terms of this Agreement shall apply to any Updates. Pulsar shall not be obligated to issue Updates, and the issuance of any Update shall not obligate Pulsar to issue Customer any new features, products, product versions, or subsequent upgrades to the Licensed Software
   4. Scheduled Maintenance
      Pulsar normally conducts Scheduled Maintenance in the following time period:
      Saturday 3:00 p.m. – 6:00 pm Eastern Standard Time

      Pulsar may deem it necessary to perform additional Scheduled Maintenance at other times. Pulsar will provide Customer with three (3) days’ advance notice of any such additional Scheduled Maintenance.

      Customer acknowledges that while the Licensed Software may continue to be available to Customer during Scheduled Maintenance, it may operate more slowly than normal and/or some features may not be available.
       

8. TECHNICAL SUPPORT
   1. Subject to the payment of Subscription Fees due, Pulsar will provide Customer with technical support with regard to the online availability, use and operation of the Licensed Software. Such technical support shall be available throughout the Term in accordance with the terms and conditions herein.
       
   2. Support Process

      For the purposes of this Agreement, the following steps shall constitute the technical support process:

      1. Case Generation: An Authorized User initiates a technical support request by contacting Pulsar either by phone or email.
      2. Initial Response: Pulsar sends Customer an email validating the technical support request and classifying it as either a Critical Support Issue or a Normal Support Issue.
      3. Status Updates: In the event a Support Issue requires some time to diagnose and resolve, Pulsar shall periodically send Customer emails describing the status of the efforts being made to achieve a resolution of the matter.
      4. Resolution: Pulsar shall send Customer a confirmation email after the Support Issue has been resolved.
          
   3. Classification of Support Issues

      Pulsar reserves the right to validate and diagnose technical issues reported to Pulsar as either Critical or Normal. Pulsar shall apply its best efforts to resolve each Support Issue within the response times set forth in section 8.4 below. Customer acknowledges that the duration of this resolution period may vary depending on the severity and complexity of the underlying technical issue. When working on a resolution to a Support Issue, Pulsar agrees to provide periodic status updates to Customer. Customer may at any time escalate a Support Issue by sending a written statement of business impact to Pulsar. 

      In the event that Pulsar determines that a technical support request falls outside the scope of a Support Issue, Pulsar shall: (i) identify to Customer the specific factors that contributed to Pulsar’s classification of the technical support request as such, and (ii) provide Customer with an estimate of time and costs to perform the work to resolve the issue. Should Customer deem the issue sufficiently important to require resolution, Customer and Pulsar shall negotiate in good faith the terms upon which Pulsar may proceed.

   4. Response Time

      Pulsar shall apply its best efforts to respond to each technical support request in accordance with the response times specified in the table below.

      Response Time for:	Support Issues
      	Critical	Normal
      Initial Response	1 hour	Next business day
      Status Updates	hourly	weekly
      Resolution	As soon as possible	Within a reasonable time period

       

   5. Contact Information

      The following contact information shall be used for the purpose of reporting technical support issues to Pulsar:
      24-hour support hotline: (877) 791-0989
      Email address: TFMsupport@pulsarinformatics.com
       

9. DATA PRIVACY & SECURITY
   1. All data, materials and other information uploaded, posted or stored through Customer’s use of the Licensed Software, including electronic logs as well as individual worker names, duty times, sleep timing and duration, and any other personally identifiable information, whether provided directly by Customer or indirectly by a third party designated by Customer (collectively, “Primary Data”) shall be Customer’s exclusive property.
   2. Customer understands that the use of the Licensed Software may require Customer to register individual user accounts with Pulsar. Customer is responsible for maintaining the confidentiality of any account, user name, or password information used in conjunction with the Licensed Software and for restricting access to such account as well as the information technology used to access such account. Customer is responsible for all activities that occur under any account associated with Customer.
   3. Pulsar has established an online privacy policy, which is available at www.pulsarinformatics.com (“Privacy Policy”). By using the Licensed Software, Customer consents to Pulsar’s collecting, storing, and processing Customer’s Primary Data in accordance with the Privacy Policy.
   4. The Licensed Software is designed to be accessed through the Internet and thus makes use of third-party hardware, networking equipment, telecommunications services, and other information technology infrastructure. Pulsar makes commercially reasonable efforts to protect the privacy and security of Customer’s Primary Data and Customer’s use of the Licensed Software, including efforts to: (i) ensure that all Primary Data is protected from unauthorized use, alteration, access or disclosure, and to protect and ensure the confidentiality, integrity and availability of Primary Data; and (ii) prevent unauthorized access to and unauthorized use of the Licensed Software. Pulsar has taken precautions in the design of the Licensed Software to assure that ordinary use of the Licensed Software will not result in the breach of any privacy-related regulations. Notwithstanding the foregoing, it may be possible for some individuals to utilize illegal methods to input, track, store, or otherwise access data not in accordance with the Licensed Software’s intended use. CUSTOMER HEREBY ACKNOWLEDGES THAT THE LICENSED SOFTWARE IS NOT INTENDED FOR SUCH USE AND THAT SHOULD CUSTOMER CHOOSE TO USE THE SOFTWARE IN SUCH A MANNER, CUSTOMER ALONE ASSUMES ALL RESPONSIBILITY FOR COMPLIANCE WITH APPLICABLE DATA PRIVACY LAWS. CUSTOMER FURTHER AGREES TO INDEMNIFY PULSAR FOR ANY AND ALL DAMAGES AND OTHER ACCRUED LIABILITIES CAUSED BY CUSTOMER’S USE OF THE LICENSED SOFTWARE IN VIOLATION OF THIS PROVISION.
       
10. CONFIDENTIALITY
    1. The Licensed Software contains proprietary and confidential information of Pulsar. Customer agrees to maintain the Licensed Software and any information provided in conjunction with the support of the Licensed Software in confidence and to use a reasonable degree of care to protect the confidentiality of the Licensed Software.
    2. Primary Data constitute proprietary and confidential information of Customer. Pulsar agrees to maintain Primary Data and any other information provided by Customer in conjunction with the performance of this Agreement in confidence and to use a reasonable degree of care to protect the confidentiality of such information. 
    3. Customer may provide Pulsar with personally identifiable information to the extent necessary for each party to perform their obligations hereunder. Pulsar shall implement appropriate measures to ensure the confidentiality and security of personally identifiable information transmitted to Pulsar, protect against any unanticipated access or disclosure of information, and prevent any other action that could adversely affect Customer or any individual identified by the data
        
11. INTELLECTUAL PROPERTY RIGHTS
    1. Customer acknowledges that the Licensed Software is the exclusive property of Pulsar and that Pulsar retains all rights, title and interest to the Licensed Software, including all copyrights, trade secrets, patents, patents pending, or other proprietary rights relating thereto.
    2. Pulsar shall retain sole intellectual property rights to the Licensed Software, any algorithms developed by Pulsar to analyze Primary Data, as well as any Secondary Data. 
    3. Customer agrees that Pulsar may use Customer’s feedback, suggestions, or ideas regarding the Licensed Software in future modifications of the Licensed Software. Customer hereby grants Pulsar a perpetual, worldwide, fully transferable, non-revocable, fully paid-up, royalty-free license to use the feedback Customer provides to Pulsar as set forth herein. 
    4. Customer acknowledges that Pulsar holds and retains all worldwide rights, title and interest in and to the word “Pulsar Informatics” and its logos, trademarks, and service marks (collectively, the “Marks”). All use of the Marks by Customer shall enure to the benefit of Pulsar. Subject to the provisions of this section 11.4 herein, Pulsar grants Customer a limited, personal, nonexclusive, royalty-free, non-transferable license to use and display the Marks in any report, website, press release or other publication. Customer may not alter any Mark by distortion or animation, or by changing its color, font, or aspect ratio, or by combining it with any other name, mark, or logo.
        
12. MARKETING REFERENCES
    1. Each party may reference its commercial relationship with the other party in marketing materials upon prior written consent from the other party which shall not be unreasonably withheld. Each party shall provide the other party with the opportunity to review the details of any planned publications.
        
13. LIMITATION OF LIABILITY
    1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA ARISING OUT OF OR CONNECTED IN ANY WAY WITH THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE. 
    2. PULSAR’S TOTAL LIABILITY TO CUSTOMER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER DURING THE MOST RECENT 3-MONTH PERIOD PRECEDING ANY CLAIM. 
    3. EACH PARTY ACKNOWLEDGES THAT THE PRICE OF THE SUBSCRIPTION FEE REFLECTS THE ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
        
14. INDEMNIFICATION
    1. Customer agrees to defend, to indemnify and to hold harmless Pulsar, its suppliers and its resellers from and against liabilities, costs, damages and expenses (including settlement costs and reasonable attorneys' fees) arising from any claims from anyone, including Customer or any third party, that result from or relate to Customer’s use, misuse, reproduction or distribution of the Licensed Software or Customer’s breach of any representation, warranty or obligation under this Agreement.
        
15. U.S. GOVERNMENT RESTRICTED RIGHTS
    1. The Licensed Software is a “Commercial Item” as that term is defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are defined in 48 C.F.R. §252.227-7014(a)(5) and 48 C.F.R. §252.227-7014(a)(1), and used in 48 C.F.R. §12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4 and other relevant sections of the Code of Federal Regulations, as applicable, the Licensed Software is licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this Agreement. Manufacturer is Pulsar Informatics, Inc., 505 Broadway E #136, Seattle, WA 98102, U.S.A.
        
16. EXPORT LAWS
    1. Customer agrees not to import or export the Licensed Software (or any copies thereof) or any products utilizing the Licensed Software in violation of any applicable laws or regulations of the United States or the country to which Customer has imported or exported. Customer agrees to indemnify Pulsar from all liability if Customer violates any such laws or regulations.
        
17. THIRD-PARTY SOFTWARE
    1. Portions of the Licensed Software comprise software code owned by and licensed from third parties under open source licenses. These third parties are identified below, along with the specific software code licensed and the terms and conditions upon which such code has been licensed.
        

       Source	Software Code	License Terms
       			GeoNames	Geographical names data	Creative Commons Attribution 4.0 International License. To view a copy of this license, visit http://creativecommons.org/licenses/by/4.0/ or send a letter to Creative Commons, PO Box 1866, Mountain View, CA 94042, USA

        

18. GOVERNING LAW
    1. This Agreement is construed in accordance with and shall be governed by the laws of the State of Washington.
        
19. SEVERABILITY
    1. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired.
        
20. ENTIRE AGREEMENT
    1. This Agreement constitutes the entire agreement between Pulsar and Customer with respect to the subject matter hereof, and supersedes all other prior and contemporary agreements, understandings, and commitments between the parties regarding the subject matter of this Agreement.
        
21. NO WAIVER
    1. No failure or delay of Pulsar to fully or partially exercise any right, power or remedy will preclude any future exercise of any such right, power or remedy. No express waiver or assent by Pulsar to any default in any term or condition of this Agreement shall constitute a waiver or asset to any succeeding default in the same or any other term or condition hereof.
        
22. BINDING EFFECT
    1. This Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their successors and permitted assigns. Except as otherwise expressly provided herein, the provisions of this Agreement shall not be construed as conferring any rights on any other persons.
        
23. MODIFICATIONS AND UPDATES
    1. Pulsar may modify or update the terms and conditions of this Agreement at any time and without notice. Customer’s continued use of the Licensed Software after any changes to the terms and conditions of this Agreement will mean that Customer accepts those changes. Any aspect of the Licensed Software may be changed, supplemented, updated, modified, or deleted in the sole discretion of Pulsar and at any time without notice.
        
24. CONTACT INFORMATION
    1. Any inquiries regarding the terms and conditions of this Agreement should be directed to:
       Matthew van Wollen
       Chief Financial Officer
       Pulsar Informatics, Inc.
       505 Broadway E #136
       Seattle, WA 98102
        

Last updated 8 Oct 2021