1. Grant of License: Subject to the terms, conditions, use limitations and payment of fees
as set forth herein, ALK Technologies, Inc. (“ALK”) grants the end-user (“you”) a
license to install and use the PC*MILER solution(s) (including traffic data
subscriptions) you have purchased (“PC*MILER”) on a single personal computer. The
PC*MILER software, data and documentation are provided for your personal, internal
use only and not for resale. They are protected by copyright held by ALK and its
licensors and are subject to the following terms and conditions which are agreed to by
you, on the one hand, and ALK and its licensors (including their licensors and
suppliers) on the other hand.
2. Title: You acknowledge that the PC*MILER computer programs, data, concepts,
graphics, documentation, manuals and other material by, developed by or licensed to
ALK, including but not limited to program output (together, “program materials”), are
the exclusive property of ALK or its licensors. You do not secure title to any
PC*MILER program materials by virtue of this license.
3. Copies: You may make one (1) copy of the PC*MILER program materials, provided
you retain such copy in your possession and use it solely for backup purposes. You
agree to reproduce the copyright and other proprietary rights notices of ALK and its
licensors on such a copy. Otherwise, you agree not to copy, reverse engineer,
interrogate or decode any PC*MILER program materials or attempt to defeat protection
provided by ALK for preventing unauthorized copying or use of PC*MILER or to
derive any source code or algorithms therefrom. You acknowledge that unauthorized
use or reproduction of copies of any program materials or unauthorized transfer of any
copy of the program materials is a serious crime and is grounds for suit for damages,
injunctive relief and attorneys' fees.
4. Limitations on Transfer: This license is granted to you by ALK. You may not directly
or indirectly lease, sublicense, sell or otherwise transfer PC*MILER or any PC*MILER
program materials to third parties, or offer information services to third parties utilizing
the PC*MILER program materials without ALK's prior written consent. To comply
with this limitation, you must uninstall PC*MILER from your computer prior to selling
or transferring that computer to a third party.
5. Limitations on Network Access: You may not allow end-users or software applications
on other computers or devices to directly or indirectly access this copy of PC*MILER
via any type of computer or communications network (including but not limited to local
area networks, wide area networks, intranets, extranets, the internet, virtual private
networks, Wi-Fi, Bluetooth, and cellular and satellite communications systems), using
middleware (including but not limited to Citrix MetaFrame and Microsoft Terminal
Server) or otherwise (including but not limited to access through PC*MILER
connectivity products), or install or use PC*MILER on a network file server, without
first notifying ALK, executing a written supplemental license agreement, and paying
the license fee that corresponds to the number and types of uses to which access is to be
allowed.
6. Limitations on Data Extraction: You may extract data (including but not limited to
program output such as distances, maps, and driving directions) from PC*MILER and
use it in other applications on the same computer on which PC*MILER is legally
licensed and installed. You may not transfer data extracted from PC*MILER onto any
other computer or device unless you have licensed PC*MILER for that computer or
device.
7. Limitations on Mobile Communications: Without limiting the generality of the foregoing, you
may not transmit PC*MILER street-level driving directions through mobile communications
systems such as Qualcomm, satellite, or cellular services or to mobile devices such as
computers, handhelds, pagers, or telephones without first executing a written supplemental
license agreement with ALK and paying the license fee that corresponds to the number and
types of devices and systems to and through which transmission is to be permitted.
8. Limitations on Disclosure: You may disclose PC*MILER distances to trading partners
for specific origin-destination moves for which you provide transportation services and
use PC*MILER distances as a basis for payment. You may not make any other
disclosure of PC*MILER programs and materials, including but not limited to program
output, to anyone outside the legal entity that paid for and holds this license, without
prior written permission of ALK. You acknowledge that the PC*MILER programs and
materials by, developed by or licensed to ALK are very valuable to ALK and its
licensors, and their use or disclosure to third parties except as permitted by this license
or by a written supplemental license agreement with ALK is strictly prohibited.
9. Security: You agree to take reasonable and prudent steps to safeguard the security of
the PC*MILER program materials and to notify ALK immediately if you become
aware of the theft or unauthorized possession, use, transfer or sale of the PC*MILER
program materials licensed to you by ALK.
10. Acceptance: You are deemed to have accepted the PC*MILER program materials
upon receipt.
11. Warranties: ALK represents and warrants that:
A. For ninety (90) days from date of purchase, PC*MILER, when delivered and
properly installed, will function substantially according to its specifications on a
computer purchased independently by you.
B. For ninety (90) days from date of purchase, the software media on which ALK
provides PC*MILER to you will function substantially free of errors and defects.
ALK will replace defective media during the warranty period at no charge to you
unless the defect is the result of accident, abuse, or misapplication of the product.
C. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE. THE
PC*MILER PROGRAM, DATA AND DOCUMENTATION IS SOLD "AS IS".
IN NO EVENT SHALL ALK OR ITS LICENSORS BE LIABLE FOR ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES SUCH AS, BUT
NOT LIMITED TO, LOSS IN CONNECTION WITH OR ARISING OUT OF
THE EXISTENCE OF THE FURNISHING, FUNCTIONING OR USE OF ANY
ITEM OF SOFTWARE, DATA OR SERVICES PROVIDED FOR IN THIS
AGREEMENT. IN THE EVENT THAT A COURT OF PROPER
JURISDICTION DETERMINES THAT THE DAMAGE LIMITATIONS SET
FORTH ABOVE ARE ILLEGAL OR UNENFORCEABLE THEN, IN NO
EVENT SHALL DAMAGES EXCEED THE CONTRACT PRICE. THIS
WARRANTY SHALL NOT ACCRUE TO THE BENEFIT OF THIRD PARTIES
OR ASSIGNEES.
12. Disclaimer: The data may contain inaccurate, incomplete or untimely information due
to the passage of time, changing circumstances, sources used and the nature of
collecting comprehensive geographic data, any of which may lead to incorrect results.
PC*MILER’s suggested routings and traffic data are provided without a warranty of
any kind. The user assumes full responsibility for any delay, expense, loss or damage
that may occur as a result of their use. The user shall have no recourse against Canada,
whether by way of any suit or action, for any loss, liability, damage or cost that may
occur at any time, by reason of possession or use of Natural Resources Canada data.
13. Termination: This Agreement will terminate immediately upon any of the following
events:
A. If you seek an order for relief under the bankruptcy laws of the United States or
similar laws of any other jurisdiction, or a composition with or assignment for the
benefit of creditors, or dissolution or liquidation, or if proceedings under any
bankruptcy or insolvency law are commenced against you and are not discharged
within thirty (30) calendar days.
B. If you materially breach any terms, conditions, use limitations, payment obligations,
or any other terms of this Agreement.
C. Upon expiration of any written supplemental license agreement between you and
ALK of which this license is a part.
14. Obligations on Termination: Termination or expiration of this Agreement shall not be
construed to release you from any obligations that existed prior to the date of such
termination or expiration.
15. Hold Harmless and Indemnity: To the maximum extent permitted by applicable law,
you agree to hold harmless and indemnify ALK and its subsidiaries, affiliates, officers,
agents, licensors, co-branders or other partners, and employees from and against any
third party claim (other than a third party claim for Intellectual Property Rights) arising