Please read the terms contained herein carefully. You must indicate your acceptance of these terms by clicking the “I Agree” button before you can register with us and begin using the Services and/or the Drive Smarter App.
Access to Services.
Cedar grants you the right to access and use the Services on up to three (3) separate devices (smartphone, tablet, etc.) during the Term of this Agreement pursuant to the terms and conditions contained herein.
Application Software License.
Use of the Services requires you to have and use the Drive Smarter App. The Drive Smarter App is licensed (not sold) to you by Cedar pursuant to the following terms, as well as pursuant to the other terms contained this Agreement.
Grant of License.
During the term of this Agreement and subject to the terms and conditions contained herein, Cedar grants to you a limited, non-exclusive, non-transferrable license to use the Drive Smarter App solely in connection with the Services. You may only use the Drive Smarter App on any iPhone or iPod touch that you own or control and as permitted by the Usage Rules set forth in Section 9.b. of the App Store Terms and Conditions. This license does not allow you to use the Drive Smarter App on any iPod touch or iPhone that you do not own or control, and you may not distribute or make the Drive Smarter App available over a network where it could be used by multiple devices at the same time. Cedar does not sell or transfer title to the Drive Smarter App to you, but instead only grants a limited license as described herein. All rights not expressly and specifically granted under this Agreement are reserved to Cedar.
Source of Licensed Application.
Cedar, and not Apple, is solely responsible for the Drive Smarter App and the content thereof, as well as for maintenance and support thereof. You acknowledge and agree, along with Cedar, that Apple has no obligation to furnish any maintenance or support services with respect to the Drive Smarter App.
Export Law Compliance.
You agree that you shall not use, ship, transfer, send or otherwise export or re-export the Drive Smarter App in any manner in any manner prohibited by the United States Export Administration Act or any other applicable export laws, restrictions or regulations. In particular, but without limitation, you agree that you shall not export or re-export the Drive Smarter App into any U.S. embargoed countries, to a national or resident of any U.S. embargoed countries, or to anyone on the U.S. Treasury’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Drive Smarter App, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
In order to utilize the Services offered pursuant to this Agreement, you must register as a user and create a user account (an “Account”). You agree and warrant that all information you provide to Cedar as part of the registration process, including but not limited to any contact information and other registration information for your Account, is truthful and accurate. You further agree to maintain the accuracy of your Account information and to inform Cedar promptly of any changes to your Account information, including but not limited to any changes to your e-mail address. You agree to accept responsibility for all activities that occur under your Account. You agree not to disclose your Account password to others, except as otherwise permitted in this Agreement, and you agree to notify Cedar immediately of any unauthorized use of your Account. Cedar is neither responsible for nor liable for any loss or other injury that you may incur as a result of someone else using your Account or password, either with or without your knowledge.
Consent to Collection and Use of Personal Information and Data; Privacy.
Limitations on Use and Access Rights.
You may use the Services solely in connection with your use of the Drive Smarter App and/or the Drive Smarter product. You agree that you shall comply with all applicable laws in accessing and using the Services and any associated software, products, web site or other related technology, including but not limited to the Drive Smarter App (collectively, the “Drive Smarter Technology”). In particular, and without limiting the foregoing, you agree that you shall not, nor shall you attempt to, nor shall you permit or assist others to,
(i) download a copy of any software or any other Drive Smarter Technology from Cedar’s servers or otherwise access the Service or any data collected through the Service except through your registered user account;
(ii) use, copy, modify, adapt, or distribute the Services or any software or other component of the Drive Smarter Technology, except as expressly authorized by Cedar;
(iii) reverse assemble, reverse compile, or otherwise translate the source code for any portion of the Drive Smarter Technology;
(iv) use the Services or any portion of the Drive Smarter Technology to develop a substitute or competitive software program or service, except as otherwise permitted by applicable law;
(v) abuse or fraudulently use the Services or any Drive Smarter Technology;
(vi) access or attempt to access any other systems, programs or data hosted on Cedar’s servers;
(vii) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way the material from the Site;
(viii) permit any third party to benefit from the use or functionality of the Services by renting, leasing, selling or otherwise offering access to the Services for the third party’s benefit, except as expressly authorized herein;
(ix) work around any technical limitations in the Services or any Drive Smarter Technology, or use any tool to enable features or functionalities that are otherwise disabled in the Services or any Drive Smarter Technology,
(x) perform or attempt to perform any actions that would interfere with the proper working of the Services or any other component of the Drive Smarter Technology;
(xi) access, alter, or destroy any information regarding Cedar’s other customers, or otherwise perform or attempt to perform any actions that would prevent access to or the use of the Services or any other component of the Drive Smarter Technology by Cedar’s other customers, or
(xii) perform or attempt to perform any actions that would impose an unreasonable or disproportionately large load on Cedar’s infrastructure.
You acknowledge that Cedar’s provision of the Services relies on information and data submitted by yourself and other users. You agree that, to the best of your knowledge, any data you provide to Cedar shall be accurate. Without limiting the foregoing, you expressly agree not to submit false alerts or other false data reports to Cedar in connection with your use of the Services. Cedar does not guarantee the accuracy, integrity or quality of any such user-submitted data. Under no circumstances will Cedar be liable in any way for any user-submitted data, or for any loss or damage of any kind incurred as a result of your reliance on any data transmitted or otherwise made available via the Services. Further, Cedar does not and is not obligated to regularly review, monitor, delete or edit any user-submitted data. However, Cedar reserves the right to do so at any time in its sole discretion, for any reason, and to edit or delete any user-submitted data with or without notice. Cedar is not responsible or liable for damages of any kind arising from Cedar’s alteration or deletion of any user-submitted data, even when Cedar is advised of the possibility of such damages.
The Term of your initial subscription to access the Services is one (1) year from the date of registration. You may thereafter renew your subscription and extend the Term in additional one (1) year increments upon payment of the then-applicable yearly subscription fee.
Your rights under this Agreement shall terminate immediately if you fail to comply with your obligations under the Agreement or abide by its terms and conditions. Upon termination, you will cease all use of the Services. Your obligations under this Agreement shall remain in full force and effect until discharged by performance.
The license and other rights granted to you as part of this Agreement may not be transferred, leased, assigned, or sublicensed to any other party.
Access to and Availability of Services.
Access to and use of the Services requires you to have certain hardware and software, including but not limited to a mobile device, as well as the means to connect to Cedar’s network. You are solely responsible for providing the necessary hardware, software and connectivity used to access the Services. You are responsible for ensuring that your hardware and software are kept current and up-to-date, including any necessary security patches and software updates, and that your connectivity is operational and unhampered as necessary to access and login to the Services. Cedar shall make reasonable efforts to ensure that the Services are available at all times; however, Cedar does not represent, warrant or guarantee that access to the Services will be uninterrupted. Further, Cedar does not guarantee that you will be able to access or use all features of the Services at all times.
Cedar shall have the right, in its sole discretion, to modify, update, or enhance the Services and/or any Drive Smarter Technology to improve its performance, capabilities and/or efficiency, or for other reasons. Such modifications may include both error corrections and changes in appearance and functionality. Cedar intends to use reasonable efforts to notify you of significant modifications to the Services and/or the Drive Smarter Technology prior to their implementation; however, Cedar cannot guarantee that such notice shall be provided, nor is Cedar obligated to notify you of any such modifications.
Ownership of Proprietary Rights.
As used herein, “Proprietary Rights” shall mean and include any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade names, domain names, trade dress, logos, trademarks, service marks, and other similar rights or interests in intellectual or industrial property. You acknowledge and agree that all right, title and interest in and to any Proprietary Rights embodied in the Services and any Drive Smarter Technology are and shall be the sole and exclusive property of Cedar and/or its licensors. This Agreement does not provide you with any interest in or to said Proprietary Rights, but only grants a limited right of access and use. Further, this Agreement does not grant you any rights to or right to use any trademarks or service marks of Cedar.
Disclaimer of Warranties; Indemnification; Resolution of Disputes.
CEDAR’S SERVICES AND THE Drive Smarter TECHNOLOGY ARE PROVIDED BY CEDAR ON AN “AS IS” AND “AS AVAILABLE” BASIS. CEDAR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES AND/OR THE Drive Smarter TECHNOLOGY, TO THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS ASSOCIATED WITH OR PROVIDED THROUGH THE SERVICES AND/OR THE Drive Smarter TECHNOLOGY, OR TO THE FUNCTIONALITY OF THE SERVICES AND/OR THE Drive Smarter TECHNOLOGY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, CEDAR DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OF WORKMANLIKE EFFORT, OF SUITABILITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF CONTENT, OR OF NON-INFRINGEMENT, AS WELL AS WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OR TRADE. FURTHER, CEDAR MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES, THE Drive Smarter TECHNOLOGY, AND ANY INFORMATION OR DATA PROVIDED THROUGH THE SERVICES OR Drive Smarter TECHNOLOGY ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES, INCLUDING YOUR USE OF ANY AND ALL ASSOCIATED CONTENT, DATA OR SOFTWARE OR Drive Smarter TECHNOLOGY DISTRIBUTED BY, DOWNLOADED OR ACCESSED FROM OR THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK. CEDAR DOES NOT WARRANT OR GUARANTEE THAT ITS SERVICES, SERVERS, Drive Smarter TECHNOLOGY, OR E-MAILS OR OTHER COMMUNICATIONS SENT BY OR ON BEHALF OF CEDAR ARE FREE OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS. FURTHER, CEDAR DOES NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED AND ERROR-FREE OPERATION OF ITS SERVICES, NOR THAT ALL COMMUNICATIONS BETWEEN YOU AND CEDAR WILL BE SECURE FROM ACCESS OR INTERFERENCE BY THIRD PARTIES.
CEDAR WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR OTHERWISE RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES OR ANY ASSOCIATED Drive Smarter TECHNOLOGY, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, EVEN IF CEDAR HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, CEDAR WILL NOT BE LIABLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE DEVICE, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESSING OR USE OF THE SERVICES, OR FROM YOUR DOWNLOADING OF ANY DATA OR OTHER MATERIALS FROM CEDAR’S SERVERS, OR FOR ANY DAMAGES ARISING OUT OF A THIRD PARTY’S UNAUTHORIZED ACCESS TO AND USE OF YOUR INFORMATION STORED ON CEDAR’S COMPUTERS AND/OR SERVERS. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CEDAR, ITS PARENT, SUBSIDIARIES OR AFFILIATES — WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY — ARISING OUT OF OR RELATING TO THE USE OF THIS SERVICES EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO CEDAR FOR ACCESS TO OR USE OF THE SERVICES.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATION MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You shall, at all times during the term of this Agreement and thereafter, indemnify, defend and hold Cedar and each of its subsidiaries and parent entities and their respective officers, members, managers, directors, shareholders, employees, agents and affiliates, harmless against all claims, proceedings, demands and liabilities of any kind whatsoever, including legal expenses and reasonable attorney fees, arising out of your use or misuse of the Services and/or any other Drive Smarter Technology, arising from any activity connected with your user account, or any of your obligations under this Agreement.
You agree that if you are dissatisfied with the Services or any aspect of the Drive Smarter Technology, if you do not agree with any part of this Agreement, or you have any other dispute or claim with or against Cedar with respect to this Agreement, the Services, or the Drive Smarter Technology, your sole and exclusive remedy is to discontinue using the Services and any Drive Smarter Technology.
Cedar may use one or more affiliated companies and third party agents in order to provide you with the Services. Any terms and conditions related to the disclaimer of warranties, your obligation to indemnify Cedar, and your available remedy in the event of any dispute apply equally with respect to these affiliated companies and agents.
Apple is not responsible for addressing any claims you or any third party may have relating to the Drive Smarter App or your possession and/or use of the Drive Smarter App, including but not limited to: (i) product liability claims; (ii) any claim that the Drive Smarter App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for any third party claim that the Drive Smarter App or your possession or use of the Drive Smarter App infringes that third party’s intellectual property rights; Cedar is solely responsible for the investigation, defense, settlement, and discharge of any such claims. In the event of a failure of the Drive Smarter App, you may notify Apple, and Apple will refund the purchase price for the Drive Smarter App to you. To the maximum extent permitted by applicable law, Apple will have no other warrant obligation with respect to the Drive Smarter App, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure of the Drive Smarter App to conform to any warranty.
Third Party Beneficiary.
Both you and Cedar hereby acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions contained herein, Apple will have the right (and will be deemed to have accepted the right, to enforce this Agreement against you as a third party beneficiary thereof.
Governing Law and Jurisdiction.
This Agreement, and the parties’ respective rights hereunder, shall be governed exclusively by, and construed and enforced in accordance with, the laws of the State of Ohio, without giving effect to the principles of conflicts of laws. The parties agree that any dispute or claim arising out of or relating to this Agreement shall be resolved individually, without resort to any form of class action, exclusively in the United States District Court for the Southern District of Ohio or, if such Court does not have jurisdiction to adjudicate such action, in the courts of the State of Ohio located in Hamilton County.
If any provision of this Agreement is determined to be invalid or unenforceable for any reason whatsoever, the remainder of this Agreement shall be enforced to the extent possible, and the offending provision shall be treated as though not a part of this Agreement. Cedar’s failure to act with respect to a breach of this Agreement by you or others does not constitute a waiver of its rights.