OPERATOR ACKNOWLEDGEMENT
Please read this Operator Agreement (the “Agreement”) carefully before using the Via Solution.
This Agreement is a binding agreement between you and Via Mobility LLC and its affiliates and subsidiaries (“Via,” “Company,” “we,” “us”). “You,” “Operator” and “users” shall mean all users of the Service. You accept this Agreement each time you access the Via Solution. If you do not accept this Agreement, you must not use the Via Solution. If you are under 18 years of age, you represent and agree that you possess the legal consent of your parent or guardian to access and use the Via Solution.
We may revise this Agreement at any time by posting an updated version. You should visit this page periodically to review the most current Agreement because you are bound by them. Your continued use of the Via Solution after a change to this Agreement constitutes your binding acceptance of these this Agreement.
The terms “post” and “posting” as used in this Agreement shall mean the act of submitting, transmitting, sharing, uploading, publishing, displaying, or similar action on any website, mobile application, or Internet service under Via’s control.
If you are using the Via Solution on behalf of a company, entity, or organization (collectively “Organization”), then you represent and warrant that you:
1. are an authorized representative of that Organization;
2. have the authority to bind that Organization to this Agreement; and
3. agree to be bound by this Agreement on behalf of that Organization.
1. BACKGROUND.
Via Transportation, Inc., the parent company of Via, is the developer and owner of a proprietary technology platform and certain related systems and methods used to establish, monitor, operate and/or manage on-demand transit networks, and has developed a cloud based version of its platform and related systems and methods (collectively the “Via Solution”).
You are accessing the Via Solution to provide services to a Customer of Via (“Customer”) in connection with Customer’s operation of an on-demand transit deployment that may include route planning, tracking, and real-time reporting of vehicle locations, and multi-channel communications (the “Deployment”). You and Via enter into this Agreement to govern your access to the Via Solution and in consideration for Via allowing such access. This Agreement consists of the terms and conditions set forth and any ordering documents, purchase orders, order descriptions or other order confirmations between you and Via. Via is not granting you any independent rights hereunder.
2. CONFIDENTIALITY.
2.1 Non-Disclosure Obligations. Confidential information means information, data or materials in either tangible or intangible form that are trade secrets of, or proprietary and confidential to Via or its clients or business partners, including as may be so designated by statute, regulation, common law, and privacy laws adopted under applicable law, or which are marked as “Confidential” or which, by their nature and the context of their disclosure, should reasonably be known to be confidential (together “Confidential Information”). Confidential Information may be provided or disclosed by Via or the Customer orally, in writing or in graphical, machine-readable or other form to you. You shall hold the Confidential Information in confidence and shall not make any use or disclosure of the Confidential Information to any individual or entity during the entire term of this Agreement and thereafter without the express written consent of Via in each instance, except to those individuals who need to know such Confidential Information for purposes of Deployment operations. You shall handle all Confidential Information received with the same degree of care as it uses to maintain the confidentiality of your own confidential information, which shall in no event be less than reasonable care. As between you and Via, all Confidential Information shall remain the sole and exclusive property of Via and no disclosure or permitted use of the Confidential Information under this Agreement shall be construed as the grant of any right, title or interest, by license or otherwise, in or to the Confidential Information. The remedy at law for breach or threatened breach of this Section 2.1 shall be inadequate, and in addition to any other remedy available, Via shall be entitled to seek injunctive relief. In the event that you receive a request for Via’s Confidential Information under the local freedom of information law, you agree to provide Via timely notice of such a request and to assist Via in seeking to protect its Confidential Information under any applicable exemption for trade secrets, to the extent possible under Applicable Law.
2.2 Exclusions. You shall have no obligation under Section 2.1 with respect to any Confidential Information disclosed to it which: (i) you can demonstrate was already known to you at the time of its receipt hereunder; (ii) is or becomes generally available to the public other than by means of breach of this Agreement or any other agreement any party may have with Via; (iii) is independently obtained from a third party (other than the Customer or any authorized recipient) whose disclosure to you does not violate a duty of confidentiality and does not require further restrictions on such disclosure; or (iv) is independently developed by you or on your behalf without use of, reference to or reliance on any Confidential Information of Via, and such independent development can be reasonably evidenced by you. In addition, you may make disclosure of Confidential Information in a judicial, legislative, or administrative investigation or proceeding or to a government or other regulatory agency; provided that, to the extent permitted by, and practicable under, the circumstances, you shall provide to Via prior written notice of the intended disclosure to enable Via the reasonable opportunity to contest or limit such disclosure or, if prior written notice is not permitted or practicable under the circumstances, prompt notice of such disclosure.
2.3 Specific Operator Obligations. You may not use your access to the Via Solution for any purpose other than as needed for the operation of the Deployment. You acknowledge that the back-end tools and data reporting platforms that are included within the Via Solution include trade secrets and other Confidential Information of Via. You shall cause all individuals who receive log-in credentials from Via to such tools and platforms to keep such credentials confidential and not to share them with anyone else within your Organization. You shall only allow the individuals who have a need to access the Via Solution for the operation of the Deployment and who have been granted access credentials by Via to access such tools and platforms. You warrant and covenant that such individuals are and will remain limited to those who need such access for the purpose of the operation of the Deployment. You shall put in place information barriers and firewalls to ensure that, pursuant to its obligations under Section 2, Via’s Confidential Information is not shared with any employees other than those who have a need to know such information, or with any of your affiliates, or with any competitors of Via.
3. INTELLECTUAL PROPERTY AND RELATED RIGHTS.
3.1 The Via Solution. As between you and Via hereunder, all intellectual property rights of any type in and to the Via Solution and all of their derivative works and improvements are owned by and are proprietary to Via. No right, title or interest in or to the Via Solution or any portion there of is or shall be granted or transferred to you under this Agreement or any agreement between you and the Customer, whether by license or otherwise. You acknowledge and agree that you shall have no right to use, reproduce, distribute, sublicense, modify or otherwise provide to third parties, the Via Solution, in whole or in part, except as explicitly granted herein. You shall not directly or indirectly disassemble, decrypt, scan, decompile or otherwise reverse engineer in any manner any components or elements of the Via Solution or assist a third-party to do so. In the event that Via provides you with any hard-copy or electronic copies of materials containing Via’s Confidential Information, including information pertaining to the Via Solution and its operation, and you retain copies of such materials in accordance with its general procurement rules following the termination of this Agreement, you acknowledge that all intellectual property rights relating to the Via Solution and all of their derivative works and improvements remain the sole property of Via.
3.2 Customer Data. No right, title or interest in or to any intellectual property rights in and to all data that is input by or on behalf of you, the Customer and/or end-users into the Via Solution (“Customer Data”) is or shall be granted or transferred you under this Agreement, whether by license or otherwise.
3.3 Further Assurances. To the extent any intellectual property rights in or to the Via Solution or the Customer Data vest in you, you hereby assign to Via all such intellectual property rights and shall, at Via’s cost and expense, execute, acknowledge and deliver to Via such documents and shall take such actions as may reasonably be requested by Via to effect such assignment. You and each of your personnel hereby waive, and agree not to assert, moral rights including the right of attribution and authorship or limitation on subsequent modification, that you may have in the Via Solution or any derivative works and improvement thereto.
4. DISPUTE RESOLUTION; GOVERNING LA.
4.1 Dispute Resolution; Governing Law. The laws of the State of New York will govern this Agreement without regard to the principles of conflicts of laws. Except for either party’s right, in connection with any matter involving any Agreement, to seek equitable or declaratory relief in any court of competent jurisdiction, all disputes not resolved informally by the parties shall be submitted for arbitration before a panel of three (3) arbitrators selected one each by the parties and one by the American Arbitration Association (the “AAA”), at least one of whom shall be an expert in the field of cloud-deployed software solutions. The arbitration shall be conducted in accordance with the provisions contained herein and in accordance with the Commercial Arbitration Rules of the AAA in effect at the time of the arbitration. A written notice of intent to arbitrate shall be provided by one party to the other party within a reasonable time after the dispute has arisen, and in no event shall such notice be provided after the date when institution of legal or equitable proceedings based on such dispute would be barred by the applicable statute of limitations. All arbitration shall be administered by the AAA and shall take place in New York, New York unless otherwise agreed to by the parties. All aspects of the arbitration including the result shall be treated as confidential and shall not be disclosed.
5. TERM AND TERMINATION
5.1 Term. This Agreement will take effect on the date that you accept and continues for so long as you continue to have access to the Via Solution.
5.2 Termination of Access. Via may terminate your access to the Via Solution at any time after you cease to provide services to the Customer for purposes of the Deployment. In addition, if you materially broach an obligation under this Agreement, Via may provide written notice specifying the nature of the breach to both you and the Customer and you will have thirty (30) days from receipt of notice to cure. If not so cured, Via may terminate your access to the Via Solution. Upon termination of your access to the Via Solution, all copies and embodiments of Via’s Confidential Information (including any downloaded mobile applications) must be returned.
6. MISCELLANEOUS
6.1 Miscellaneous. The prevailing party in any dispute is entitled to the recovery of reasonable legal fees and expenses. Unenforceable provisions will be reformed to permit enforceability with maximum effect to the original intent. Waiver of a breach is not waiver of other or later breaches. This Agreement is separate from and without prejudice to the terms and Order between Via and the Customer, and to any agreement between you and the Customer.