Driver Pulse @ Work Terms of Service
These Terms of Service (“Terms”) apply to the access and use of Tenstreet’s Driver Pulse @ Work products and services set out herein and are made and entered into between Tenstreet, LLC (“Tenstreet”) any motor carrier, company or affiliate thereof, and/or user that accesses or uses the Driver Pulse @ Work application on their mobile devices or tablets (“Client” or “You” and “Your”). By downloading, accessing, or using the Driver Pulse @ Work application (“App”) you confirm that you have read and agree to the following terms and conditions (“Terms”). If you do not agree to these Terms, you may not access or use the App or Services. Both Tenstreet and Client may be referred to herein individually as a “Party” and collectively as the “Parties.”
PLEASE READ THESE TERMS CAREFULLY, AS THEY FORM PART OF A LEGALLY BINDING AGREEMENT BETWEEN YOU AND TENSTREET FOR THE SOFTWARE, AND/OR SERVICES PROVIDED FROM THE TENSTREET PLATFORM (WHICH MAY BE TIED TO THE RECIEPT OF SERVICES AN ANOTHER ORDER FORM). YOU HEREBY AGREE AND ACKNOWLEDGE THAT THESE TERMS FORM A PART OF, AND ARE INCORPORATED BY REFERENCE INTO, THE ORDER FORM, AND SHALL BE BINDING ON YOU AS IF YOU HAD PHYSICALLY SIGNED THESE TERMS.
PLEASE PRINT A COPY OF THESE TERMS FOR YOUR RECORDS. BY DOWNLOADING AND USING THE PULSE @ WORK APP, YOU WARRANT THAT YOU HAVE READ THESE TERMS CAREFULLY AND HAVE THE REQUISITE CORPORATE AUTHORITY TO AGREE TO AND BIND CLIENT TO THESE TERMS, IN CONSIDERATION FOR THE MUTUAL COVENANTS SET FORTH HEREIN AND FOR SUCH OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.
1. Services. Tenstreet is the owner of a platform of technology and software which offers multiple services and features through its computer interface (“Tenstreet Platform”). Client desires to utilize the Tenstreet Platform, for the Driver Pulse @ Work services (hereinafter referred to as “Services”) which may include, but are not limited to the following Driver Pulse offerings: the provision of multiple management, tracking, reporting, and communication services between motor carriers and drivers, which may include True Fuel (as defined herein), TruckMap (as defined herein), in-App messaging (“Messages”), training modules and training content (“Training”), management services such as Tasks, Docs, engagement and retention services, including Rewards (as defined herein) and the Wallet, and other additional Services as offered by Tenstreet from time to time.
1.1 Upgrades. Services provided under these Terms of Service will consist of the in-scope Services set out in this Section. Upgrades, additional or supplemental services or products (“Upgrades”) provided by Tenstreet to Client beyond those set out in this Section will be mutually agreed upon in writing between the Parties, which will set forth the specific upgrades, services, products, and any necessary changes, additional fees, and terms and conditions applicable to such Upgrades. Client may request Upgrades at any time by contacting sales@tenstreet.com and Tenstreet will work together with Client to enact such Upgrades. All Upgrades shall only occur if agreed upon in writing through a separate agreement and shall be effective only when signed by both Parties.
2. Right to Use. The Services are provided through a web-based platform to which Client is granted a right to use through and according to these Terms. Client agrees and acknowledges that from time to time Tenstreet may make changes to its software, programs or other methods utilized to provide Tenstreet Services to Client under this Agreement. It is Client’s sole responsibility to have and maintain working hardware, equipment and connection to Tenstreet’s web-based platform which is compatible with Tenstreet’s then-current software, services, or other programs.
3. Client’s Use of the Services.
3.1 These Terms and the provisions of the Services are at all times subject to Tenstreet’s Acceptable Use Policy in the use of the Services, as well as Tenstreet’s Privacy Policy. Tenstreet’s Pulse @ Work is a feature of Tenstreet’s Driver Pulse mobile application. All users are subject to Tenstreet’s Driver Pulse Terms of Use. Tenstreet reserves the right to terminate the Services at any point in time for violation of these Terms, the Driver Pulse Terms of Use or the Tenstreet Acceptable Use Policy.
3.2 Cautious Driving. It is strictly forbidden to utilize the Services and/or the App in a non-verbal manner for any purpose while driving. Client and the driver using the Services and/or the App shall never do so in any manner which will distract from the driver’s attention while on the road and will only engage with the App in a non-verbal manner when any vehicle is not in operation, is stopped in an appropriate manner and location and when permitted by law. The information provided by the Services is not intended to replace the information provided on the road, such as travel direction, lane restrictions, road blockages, traffic signs, traffic lights, law enforcement instructions, time based restrictions, etc. The user of the App should always drive vigilantly according to road conditions and in accordance with traffic laws.
3.3 Client agrees to: (i) provide commercially reasonable assistance to Tenstreet in any necessary configurations to enable the Services as necessary; (ii) use the Services only in vehicles registered with Driver Pulse @ Work and on devices owned or controlled by Client.
3.4 Client will ensure that credentials to the Tenstreet Platform are secure from unauthorized persons, and that Client utilizes reasonable and appropriate security measures in the access of the information available on the Tenstreet Platform. Client agrees that all users will access the Services through unique login credentials from each user. Client agrees to promptly deactivate (or notify Tenstreet to deactivate) those users who cease to work for Client or whose job duties no longer require use of the Tenstreet Platform so that such users may no longer have access to the Tenstreet Platform. Client acknowledges and agrees that Tenstreet prohibits the sharing of usernames and passwords among users, with unauthorized users, and any third party (again, Client may authorize Tenstreet to provide separate credentials exclusively for use by third parties). Client shall instruct its users, including any authorized third parties, that they are not allowed to share, display or otherwise provide their usernames, passwords, or multifactor authentication codes to any other person including co-workers. Client shall immediately notify us if any user credentials may have been disclosed or compromised and Client will hold Tenstreet harmless from and against any unauthorized and/or harmful access to the Services, data breach, and/or breach of these Terms through the use of login credentials issued to Client’s users.
3.5 Client will not, and will not permit any other individual to: (i) modify, and/or make derivative works of, disassemble, reverse compile and/or reverse engineer any part of the Services, or reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of any Service or any other compiled software provided or made available by Tenstreet; (ii) use or permit the use of, reproduce or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, sell, distribute, assign, rent, lease, or transfer any Tenstreet Service, any portion thereof, or any of Client’s rights thereto; (iii) use any manual and/or automated software, devices and/or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” and/or download data from any pages contained in the Services; (iv) use and/or access the Services in order to build a similar and/or competitive website, product, and/or service; (v) take any action that materially interrupts or interferes with, or that might reasonably have been expected to materially interrupt or interfere with, the Services, or Tenstreet’s business operations; (vi) use the Services in any unlawful way or for any unlawful purpose and/or to violate any federal, state, international law, code of conduct and/or other guidelines which may be applicable to the Tenstreet Services provided; and/or (vii) circumvent or disable any security or technological features or measures of the Services.
3.6 Client shall not access, store, distribute or transmit any Viruses or any material in the use of the Services that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or offensive, (ii) facilitates illegal activity and/or (iii) causes damage or injury to any person or property. “Virus” means any thing or device (including without limitation any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device, prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise) and/or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
3.7 Client agrees that it will not upload, store, distribute, transmit or ask Tenstreet to upload, store, distribute, or transmit any content or material that infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity and/or other rights. Client agrees and understands that by providing any such materials to Tenstreet for use in the Services, or the Tenstreet Platform, or by uploading, storing or using Services to distribute or transmit any material, that Client has all right, title, license, interest, or ownership of intellectual property rights to so use, store, distribute or transmit.
3.8 True Fuel Services. As a part of Driver Pulse @Work Tenstreet shall provide Client with the True Fuel services (“True Fuel Services”) which include, but are not limited to: (i) providing Client with a stand-alone fuel optimization service operating through Driver Pulse which monitors fuel economy on a per truck basis and combines real-time driver coaching with comprehensive analytics to improve fuel economy; and (ii) providing Client with True Fuel standard reports that in aggregate assess, in quantified terms, how efficiently fuel was burned over the entire course of each trip for a fleet. These reports identify discrete causes of inefficiency by truck and by driver, to give fleets specific insights and metrics regarding fuel economy and fuel cost savings opportunities
3.9 TruckMap. The TruckMap Terms of Use are applicable at all times when utilizing the TruckMap features of Pulse @ Work.
3.10 Rewards. The Tenstreet Driver Rewards Program Terms and Conditions are applicable at all times when using the Rewards features of Pulse @ Work.
3.11 Training. Tenstreet provides certain training content made available for Client’s drivers, employees, or contractors that includes various courses which may be completed online or through the Tenstreet Driver Pulse mobile or web application. The training content includes lessons, presentations, interactive quizzes, learning activities, and certificates of completion. If Client utilizes Tenstreet training content, Client acknowledges and agrees that the training content provided is designed to address a general overview of the various regulatory and other employment or contractor related topics. Tenstreet makes no warranty or guarantee that the training will provide the individual with the requisite level of knowledge or skill as to the subject matter nor that the individual is qualified to perform a specific job or function. Further, Tenstreet training content is not a substitute for hands-on training, function-specific training, site-specific training, or requisite in-person training and skill testing. Rather, Client is ultimately responsible for ensuring that all state, federal, and local training requirements are met as well as that individuals completing the training content possess the minimum level of qualification, skill, knowledge, and/or know how to perform a specific job or function. Any certificate of completion provided indicates that the individual has completed the training program, which included spending the requisite time, completing the instruction, and passing any exams included with the content. If Client utilizes Tenstreet training content, Client agrees and acknowledges that Tenstreet shall not be liable in any way for any claims related to the training or lack thereof of any individual who participates in any Tenstreet training content.
3.12 Messages. If Client initiates any electronic message (text, email, or push notification) through the Tenstreet Services to be transmitted by Tenstreet, Client represents that i) it has all appropriate consents necessary to send such electronic message; ii) it believes reasonably and in good faith that the recipient desires to receive such electronic message; iii) it will not send any false, misleading, or deceptive information in any electronic message; iv) it is solely responsible for all content of any electronic message; and v) that Tenstreet has the right to monitor and store any electronic message initiated by Client in the Tenstreet Platform.
4. Compliance with Applicable Law. Each Party shall comply with all laws applicable to each Party in connection with their respective activities and obligations under this Agreement. Client will at all times follow and comply with all applicable laws and regulations in the United States and if applicable, Canada, in the use of the Services, including but not limited to the Federal Motor Carrier Safety Administration regulations, the Fair Credit Reporting Act, the Telephone Consumer Privacy Act, the CAN-SPAM Act, various state and local privacy laws, and the regulations of the Federal Trade Commission (“FTC”), the Equal Employment Opportunity Commission (“EEOC”), or any other applicable government body. Client recognizes that the laws and applicable regulations relating to the Services under the Tenstreet Platform are subject to change from time to time. As such, Client agrees and acknowledges its responsibility to be knowledgeable and fully comply with such laws and regulations.
5. Transportation Data. Transportation Data such as the driver, location, load movement, fuel consumption, status of trip, behavioral information related to the operation of the vehicle, and interactions with the Services will be used and maintained within the Tenstreet Platform as collected and provided to us on behalf of Client, through the use of the Services (“Transportation Data”). Through the use of the Services, you authorize Tenstreet to remotely and automatically collect Transportation Data through the use of the Services or that is otherwise provided to Tenstreet for the purposes authorized in these Terms. Client authorizes and consents that Tenstreet may use the Transportation Data: (i) to operate, manage, and provide the Services set out herein, including without limitation to providing technical support and addressing or preventing technical issues; (ii) transmit such data for Client use to Client and to Client’s designated third parties as authorized by Client; (iii) as otherwise requested and/or approved by you. Nothing herein shall be construed to limit or impair the use of the data by Tenstreet as needed for the provision of the Services. Client gives Tenstreet a royalty-free perpetual license and right to (i) use Transportation Data as set forth herein, to improve, enhance, and support the nature, quality and feature of Tenstreet products, software, and services subject to the limitations set forth herein; and (ii) to aggregate and anonymize Transportation Data and other data collected by Tenstreet provided by Client or on behalf of Client, in connection with these Terms and to use such aggregated and anonymized data, as well as data regarding your use of the Tenstreet Platform and the Services, including any summary or derivative information based thereon, for Tenstreet’s analytical and other business purposes during and following the term of this Agreement, provided that Client will not be identified as the source of such information.
6. Warranty and Disclaimer of Warranty. Tenstreet hereby represents and warrants that the Services shall materially conform to the documentation provided by Tenstreet. Tenstreet’s sole responsibility and the sole remedy for breach of this warranty is to use commercially reasonable efforts to remedy any non-conforming Services. CLIENT EXPRESSLY AGREES THAT THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AT THEIR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TENSTREET, AND ITS AFFILIATES, LICENSORS, AND SUPPLIERS DISCLAIM ALL GUARANTEES, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL ENSURE COMPLIANCE WITH ANY STATUTORY OR REGULATORY OBLIGATIONS.
7. Termination. Tenstreet or Client may terminate the use of the Services at any time for convenience by uninstalling the App. Notwithstanding termination Client shall not be relieved of its obligation to pay any monies due or accruing due by the effective date of termination; and (b) all relevant terms as set out in these Terms survive the expiration or termination. Upon termination Client shall immediately discontinue all use of the Services.
8. Indemnity. Client agrees to hold Tenstreet harmless and will indemnify and defend Tenstreet and its respective subsidiaries, affiliates, directors, officers, contractors, agents, and employees from all damages, costs, losses, claims, liabilities and expenses including reasonable attorney fees arising out of Client’s: (i) breach of this Agreement; (ii) acts or omissions in violation of any applicable law; (iii) unauthorized or wrongful use of the Services, or any part thereof, (iv) infringement of any third-party’s intellectual property; or (v) for any incident or accident in which one of Client’s vehicles is involved in which the Services are being utilized or are installed.
9. Consequential Damages Waiver. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, STRICT LIABILITY OR OTHERWISE, WILL TENSTREET BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, CORRUPTION OR LOST DATA, BREACH OF DATA OR SYSTEM SECURITY, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF THE PARTIES HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10. Liability Cap. UNDER NO CIRCUMSTANCES WILL TENSTREET OR TENSTREET’S AGGREGATE LIABLITY BE LIABLE TO CLIENT OR ANY OTHER THIRD PARTY IN TOTAL OR CUMULATIVE LIABLITY FOR ANY DAMAGES, COSTS OR OTHER LIABILITIES ARISING OUT OF THIS AGREEMENT IN EXCESS OF $100 (ONE HUNDRED DOLLARS) REGARDLESS OF WHETHER SUCH CLAIM IS BROUGT IN CONTRACT, WARRANTY, TORT, OR OTHER THEORY. THE PROVISIONS OF THIS SECTION ALLOCATES THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT AND AS A MATERIAL INDUCEMENT THEREFOR AS TENSTREET WOULD NOT BE ABLE TO PROVIDE THE SERVICES OR PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT WITHOUT SUCH TERMS.
11. General Provisions.
11.1 Entire Agreement. This Agreement constitutes the entire understanding between the parties and supersedes all previous agreements, negotiations and representations. This Agreement may only be modified in writing signed by both parties; however, subsequent representations by Client to show compliance with existing or future laws are effective when signed by Client and become a part of this Agreement. This Agreement is for the exclusive benefit of the parties hereto and no benefit is intended for any third party. Where there is a pre-existing agreement between the Parties, whether a Master Service Agreement (“MSA”) or agreement, these Terms shall be construed with the terms of such pre-existing agreement between the Parties. Where there is a conflict between these Terms and the pre-existing agreement or MSA, the pre-existing agreement or MSA shall control.
11.2 No Waiver. Tenstreet’s failure to enforce at any time any provision of this Addendum or the Tenstreet AUP does not waive Tenstreet’s right to do so later. Any waiver must be in writing and signed by and an authorized Tenstreet agent to be legally binding.
11.3 Notices. All communications and notices to be given under this Agreement will be made to Tenstreet at 120 W. 3rd Street Tulsa, OK 74103 ATTN: General Counsel; legal@tenstreet.com and to the Client at the address and email address set forth in the Legal Notice Information set forth herein. Each party will notify the other promptly of any change of address (physical or e-mail) or telephone number.
11.4 Severability. This Agreement is intended to be subject to, and in compliance with, all applicable state and federal statutes and regulations. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void and the remaining provisions of this Agreement shall remain in effect. Insofar as this Agreement or any of its provisions may subsequently be determined to be at variance or not in compliance with any such statute or regulation, Tenstreet and Client shall negotiate in good faith to modify or amend this Agreement so as to put into effect the original intent of the parties and comply with the applicable law.
11.5 Relationship of the Parties. The relationship of the parties established by this Agreement is solely that of independent contractors. No partnership, joint venture, franchise, fiduciary or employment relationship is created by this Agreement. Neither party is the representative or agent of the other party for any purpose, and neither party has power or authority to act as agent for or to represent, act for, bind, or otherwise create or assume, any obligation on behalf of the other party.
11.6 Governing Law and Venue. This Agreement is deemed to have been entered into and executed in the State of Oklahoma. As such, this Agreement shall be governed by, interpreted and enforced in accordance with the laws of the State of Oklahoma without reference to the principles or rules of conflict of laws. The parties to this Agreement specifically consent to the jurisdiction of the Courts of Oklahoma over any action arising out of or relating to this Agreement with venue for any such action in the state or federal courts located in Tulsa County, Oklahoma.
11.7 Representations. The parties acknowledge that they have each read this Agreement, understood the contents thereof, and have had the opportunity to have an attorney of their choosing review this Agreement on their behalf. Further, each Party represents and warrants to the other that (a) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has the right and all necessary authority to enter into this Agreement; (c) the undersigned is a duly authorized representative of the Party who has all power and authority to execute and bind the Party to this Agreement; (d) upon execution of this Agreement it will constitute a legal, valid, and binding obligation of such Party enforceable against it in accordance with its terms.
11.8 Force Majeure. Neither party is responsible for any events or circumstances beyond its control and without negligence of such party that prevent it from the performance, delay, or breach of its obligations under this Agreement, which include but are not limited to acts of war, riots, embargos, strikes, fires, flood, theft, pandemic, action or inaction of government, disruptions in communications, or acts of God. The party affected by such circumstances shall take all reasonable actions to minimize the consequences of any such event.
