FOCUS by TELUS – Terms of Use
Last Updated: May 14, 2021
FOCUS FLEET AND FUEL MANAGEMENT is a registered business name of TELUS Communications Inc. The following terms of use (the “Terms of Use”) govern your use (the term ‘use’ will mean access or use, as applicable) of the FOCUS by TELUS platform through the FOCUS Zoom mobile application (the “App”), the FOCUS by TELUS web portal (collectively the “Platform”), and the FOCUS ELD Software ( “FOCUS ELD”). The Platform provides you with access to certain asset management services (the “Platform Services”). You agree that you are accessing the Platform and Platform Services under an enterprise license (such enterprise licensee, the “Enterprise Customer”), in accordance with the terms of an agreement between the Enterprise Customer and FOCUS (the “Enterprise Agreement”).
These Terms of Use form an agreement between TELUS Communications Inc. dba FOCUS FLEET AND FUEL MANAGEMENT (“FOCUS”) and you. The term “you” refers to the person or entity using the Platform or receiving any Platform Services. A copy of these Terms of Use may be downloaded, saved and printed for your reference. By clicking “I AGREE” or similar electronic acceptance, you agree with these Terms of Use. If you do not accept and agree to be bound by these Terms of Use, please do not use the Platform. The rights of FOCUS set out in these Terms of Use are in addition to, and in no way limit, FOCUS’ rights under the Enterprise Agreement.
FOCUS reserves the right to amend any term of these Terms of Use at any time without notice to you. Any such amendments will be made to these Terms of Use posted at www.focusoptimization.com/tou-zoom , and will be effective immediately. It is your responsibility to regularly review the Terms of Use for any amendments. You are not obliged to continue accessing the Platform or using the Platform Services after an amendment to these Terms of Use is made; however, in the event you do not agree to the changes, you must immediately cease use of the Platform and the Platform Services. Your continued use of the Platform or the Platform Services following any amendment shall be deemed to be your acceptance of the amended Terms of Use.
FOCUS reserves the right to change any information, material or content contained on or provided through the Platform (the “Content”) at any time, and from time to time, without notice. Content does not include your personal information.
USE OF PLATFORM
FOCUS grants you a personal, revocable, non-exclusive and non-transferable license during the Term to use the Platform, including downloading and installing the App on your personal mobile phone device for the purpose of accessing the Platform Services in accordance with these Terms of Use.
As a condition of your use of the Platform, you warrant that: (1) you have reached the age of majority in your jurisdiction of residence; (2) you possess the legal authority to create a binding legal obligation; (3) you will use the Platform in accordance with these Terms of Use; (4) all information supplied by you on the Platform is true, accurate, current and complete; and (5) you are authorized by the Enterprise Customer to access and use the Platform.
Subject to any restrictions set out in the Enterprise Agreement, the Platform is provided solely (the “Permitted Use”) to: (1) give you access to any services offered to the Enterprise Customer through the Platform, including access to the asset management services set out therein, for the benefit of, or in relation to, the operation of the Enterprise Customer’s business; and (2) provide feedback and otherwise communicate with FOCUS in connection with the foregoing.
FOCUS retains the right to deny access to anyone to the Platform or the Platform Services it offers, at any time and in its sole discretion, if FOCUS deems that you have used the Platform in any manner contrary to the Permitted Use or if you have violated any of the terms of this Terms of Use.
You will defend, indemnify and hold harmless FOCUS, its affiliates and their respective officers, directors, employees, agents, sponsors, licensors, and suppliers from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought in connection with or as a result of your use of the Platform and Platform Services in violation of these Terms of Use.
NO UNLAWFUL OR PROHIBITED USE
You will not, without FOCUS’ prior written permission, use the Platform and the Content for purposes other than the Permitted Use. Without limiting the generality of the foregoing, you will not, and will not permit anyone else to: (1) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, license or circulate in any form any part of the Platform or the Content, or ‘frame’, ‘mirror’ or otherwise incorporate the Platform or the Content or any part thereof on any commercial or non-commercial website; (2) access or monitor any part of the Platform or the Content using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission; (3) violate the restrictions in any robot exclusion headers on the Content or the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform; (4) take any action that imposes, or may impose, in FOCUS’ discretion, an unreasonable or disproportionately large load on the Platform; (5) deep-link to any portion of the Platform for any purpose; (6) remove (or permit anyone else to remove) any watermarks, labels or other legal or proprietary notices included in the Platform or the Content; (7) use the Platform or the Content as part of any service for sharing, lending or multi-person use, or for the purpose of any other institution except the Enterprise Customer, except as specifically permitted by FOCUS and only in the exact manner specified and enabled by FOCUS; (8) attempt to, assist, authorise or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Platform or the Content; (9) create derivative works based on the Platform or the Content, in whole or in part, or to decompile, disassemble, reverse engineer or otherwise exploit any part of the Platform or the Content; (10) use the Platform or the Content in a manner that violates the rights (including to intellectual property rights) of any third party, including by providing, uploading or transmitting any User Content or Submissions that violate such third-party rights; (11) track and/or monitor any individual without such individual’s prior permission, and will otherwise only do so where permitted by law; (12) send spam or otherwise unsolicited messages in violation of applicable laws; (13) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children; (14) send messages to any email lists, distribution lists, newsgroups, or spam email addresses; or (15) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (16) willfully tamper with the security of any devices used in connection with the Platform (“Devices”) or the Platform Services; (17) access data not associated with your account; (18) log into an unauthorized server or another non-Enterprise-Customer FOCUS account without authorization; (19) attempt to probe, scan or test the vulnerability of the Platform or to breach FOCUS or FOCUS security or authentication measures without proper authorization; (20) willfully render any part of the Platform unusable; (21) publish or disclose to third parties any evaluation of the Platform Services without FOCUS’ prior written consent; (22) remove, modify, obscure any copyright, trademark, patent or other proprietary notice that appears on the Platform or in association with the Platform Services; or (23) use any data or information obtained through the use of the Devices for any unlawful purpose or in violation of any applicable law (including, without limitation, data protection and privacy laws).
You agree to report immediately to FOCUS, and to use your best efforts to stop immediately, any violation of these Terms of Use or any of FOCUS’s other published policies, including but not limited to the Privacy Policy (collectively, “Policies”) that may be issued from time to time, all of which are incorporated herein by reference.
THE PLATFORM
(1) Equipment and Utilities. You are responsible for and shall bear the costs associated with providing and maintaining Internet access and all necessary telecommunications equipment, software and other materials necessary for accessing the Platform.
(2) Consents. If a monitored user is a minor, you acknowledge that you have lawful guardianship over such minor. You further acknowledge that you have the legal right to lawfully monitor such monitored user in the location or locations where the Device(s) is used. You agree to indemnify and hold FOCUS, its agents, licensees, licensors, and subcontractors harmless from any and all costs and expenses regarding any claim(s) arising from the unauthorized tracking and/or monitoring of the Device(s) by you.
TECHNOLOGY RISKS
You understand, acknowledge and agree that FOCUS does not control, and accepts no responsibility for, any content passing through the Internet, the availability of the Internet generally, or for Internet connectivity. You understand, acknowledge and agree that the Internet is inherently risky even if reasonable security measures are taken. You understand, acknowledge and agree that FOCUS cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Platform but have implemented security controls including reasonable administrative, technical and physical safeguards, in an effort to protect against unauthorized access, use, loss, modification and disclosure, of personal information in our custody and control and adhere to generally accepted industry practices with respect to securing the transmission of data to, from and through the Platform.
USER ACCOUNT
You may be required to successfully sign up for a user account (the ‘User Account’) using the available interfaces within the Platform and you will be issued a username and password login credentials by FOCUS and/or the Enterprise Customer (‘User ID’) in order to use the Platform and receive any Platform Services. You will keep your User ID secure and will not share your User ID with anyone else, and you will not collect or harvest any personal data of any other user of the Platform, including account names or login credentials. FOCUS reserves the right to disable any User Account issued to you at any time in the event of a breach of any of your warranties, representations or obligations under these Terms of Use. If FOCUS disables access to a User Account issued to you, you may be prevented from accessing the Platform, the Content or your account details. You must notify FOCUS and the Enterprise Customer immediately if you become aware of or otherwise suspect any unauthorized use, disclosure or loss of your User ID or password.
You may not assign, transfer or sublicense your User Account and these Terms of Use, by operation of law or otherwise, without FOCUS’ prior written consent. Any attempt by you to assign or transfer your User Account or these Terms of Use, without such consent, will be null and of no effect.
PRIVACY
Please click here to review our current privacy policy (“Privacy Policy”), which contains important information about our practices in collecting, storing, using and disclosing your personal information, and which is hereby incorporated into and forms a part of these Terms of Use.
TERM, TERMINATION AND SUSPENSION
These Terms of Use will take effect on the date and at the time you select “I AGREE” (or similar) when presented with the opportunity to view and agree to these Terms of Use.
Without limiting anything in these Terms of Use, FOCUS may immediately terminate or suspend these Terms of Use, or cease providing the Platform and Platform Services, at any time: (i) if you do not comply with these Terms of Use; (ii) if necessary to prevent threats to the privacy, security and integrity of your data or the data of any other user(s), or to the Platform; (iii) upon expiry or termination of the Enterprise Agreement; (iv) otherwise in accordance with the Enterprise Agreement; and/or (v) to comply with any applicable law or court or order.
Either you or FOCUS may terminate these Terms of Use as follows: (1) FOCUS may terminate these Terms of Use upon 30 days’ written notice to you, by email (at your current email address on file with FOCUS) or through the Platform; (2) you may terminate these Terms of Use at any time upon 30 days’ written notice to FOCUS, by requesting (by email or through any then-available interfaces on the Platform) that your User Account be deleted or deactivated, ceasing use of the Platform and uninstalling and removing all local software components thereof from your systems, including removing the App from your mobile device.
SUBMISSIONS
By submitting any reviews, questions, comments, suggestions, ideas or similar information through the Platform in connection with the Platform Services (collectively, “Submissions”), you grant FOCUS and its affiliates, a royalty free, in perpetuity, right to: (1) use, reproduce, edit (length, size or clarity), translate, distribute, publish, create derivative works from and publicly display such Submissions in any media; and (2) use the name that you submit in connection with such Submission in connection with the foregoing. You acknowledge that FOCUS may choose to provide attribution of your Submissions (for example, listing your name and city on a review that you submit) at our discretion, and that such submissions may be shared with others using our Platform. You acknowledge and agree that Submissions are non-confidential and non-proprietary. You also acknowledge that FOCUS may exercise its rights (e.g. use, publish, delete) to use any Submissions without any notice to you.
FOCUS takes no responsibility and assumes no liability for any Submissions posted or submitted by you. FOCUS has no obligation to post your Submissions and reserves the right, in its absolute discretion to determine which Submissions are published on the Platform. You are fully responsible for the content of your Submissions, including reviews posted to the Platform. Without limiting the foregoing, you will not post or transmit to or from the Platform any commercial material or content (including solicitation of funds, advertising, or marketing of any good or services), or upload to or transmit through the Platform any content or Submission that is offensive, hateful, obscene, defamatory or violates any applicable laws, in each case as determined by FOCUS in its sole discretion. You will be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of content to the Platform.
If you do not agree with any of the above, please do not provide any Submissions.
OWNERSHIP
As between you and FOCUS, all Content, including (without limitation) all designs, infrastructure graphics, pictures, illustrations, software, artwork, video, music, sound, names, words, titles, phrases, logos and marks displayed on the Platform, including the App, are owned by FOCUS and are protected by copyright, trade-mark and other intellectual property laws.
FOCUS and its licensors expressly reserve all rights in the Platform, including the App, and all materials provided by FOCUS in connection with these Terms of Use that are not specifically granted to you. You acknowledge that all right, title and interest in the Platform, all materials provided by FOCUS in connection with the Platform (including the Content), and any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with FOCUS (or its licensors), and that the Platform, including the App, and all materials provided by FOCUS hereunder are licensed and not ‘sold’ to you.
THIRD PARTY WEBSITES & VIRUSES
The Platform may provide links to third party websites. These links are provided for your convenience only and FOCUS does not endorse the information contained on those web sites or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability or fitness for any purpose. The content in any linked web site is not under FOCUS’ control, and if you choose to access any such website, you do so entirely at your own risk.
The downloading and viewing of Content is done at your own risk. FOCUS cannot and does not guarantee or warrant that the Platform or the Content are compatible with your computer system or that the Platform or the Content, or any links from the Platform or the Content, will be free of viruses, worms, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system, and you are responsible for the entire cost of any service, repairs or connections of and to your computer system that may be necessary as a result of your use of the Platform.
DISCLAIMER AND LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF USE AND TO THE FULLEST EXTENT PERMITTED BY THE LAW THAT APPLIES TO YOUR JURISDICTION, FOCUS PROVIDES THE PLATFORM AND THE CONTENT WITHOUT WARRANTY OR CONDITION OF ANY KIND. USE OF THE PLATFORM OR THE CONTENT IS AT YOUR OWN RISK. FOCUS DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, ABOUT THE MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, TIMELINESS, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THE PLATFORM OR THE CONTENT. THE PLATFORM AND THE CONTENT MAY INCLUDE ERRORS, OMISSIONS AND INACCURACIES. FOCUS DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES IN THE PLATFORM OR THE CONTENT.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY AGREE THAT NEITHER FOCUS NOR ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT FOCUS OR ITS SUPPLIERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT.
WITH RESPECT TO ANY DIRECT DAMAGES, YOU AGREE THAT THE TOTAL AGGREGATE LIABILITY OF FOCUS AND ITS AFFILIATES AND SUPPLIERS IN CONNECTION WITH OR UNDER THESE TERMS OF USE OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT IS LIMITED TO $20.00. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF USE WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.
The limitation above reflects the allocation of risk between you and FOCUS. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose.
GOVERNING LAW AND JURISDICTION
To the extent that you access and use the Platform and Platform Services in:
(1) Canada, these Terms of Use shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein, excluding any conflict of laws which would lead to the application of any other laws. If you reside outside of Quebec, the courts of the Province of Ontario shall have exclusive jurisdiction to entertain any action arising under these Terms of Use, and you hereby accept and irrevocably submit to the jurisdiction of the courts of Ontario and acknowledge their competence and agree to be bound by any judgment thereof. If you reside in Quebec, the courts of the Province of Quebec shall have exclusive jurisdiction to entertain any action arising under these Terms of Use, and you hereby accept and irrevocably submit to the jurisdiction of the courts of Quebec and acknowledge their competence and agree to be bound by any judgment thereof.
(2) The United States, these Terms of Use shall be governed by the laws of the State of New York, excluding any conflict of laws which would lead to the application of any other laws. The courts of the State of New York shall have exclusive jurisdiction to entertain any action arising under these Terms of Use, and you hereby accept and irrevocably submit to the jurisdiction of the courts of the State of New York and acknowledge their competence and agree to be bound by any judgment thereof.
A printed copy of these Terms of Use and of any notice in electronic form shall be admissible in any judicial or administrative proceedings to the same extent and under the same conditions as other business documents and records originally generated and maintained in printed form.
GENERAL PROVISIONS
These Terms of Use, all Policies constitute the entire and exclusive understanding and agreement between FOCUS and you pertaining to the subject matter hereof, and these Terms of Use supersede and replace any and all prior oral or written understandings or agreements between FOCUS and you regarding the Platform and Platform Services (for clarity, excluding the Enterprise Agreement between FOCUS and the Enterprise Customer).
FOCUS may assign or transfer these Terms of Use, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder will be in a written form and given: (i) by FOCUS via email (in each case to the address that you provide); or (ii) via the Platform. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
FOCUS shall not be liable for delay or failure of performance of any obligations required by these Terms of Use when such delay or failure arises from circumstances beyond the reasonable control of FOCUS. Such causes may include, without limitation, acts of God, acts of government in its sovereign or contractual capacity, acts of a public enemy, acts of civil or military authority, war, riots, civil strife, terrorism, blockades, sabotage, rationing, embargoes, epidemics, earthquakes, fire, flood, quarantine restrictions, power shortages or failures, utility or communication failures or delays, labour disputes, strikes, or shortages, supply shortages, equipment failures or solitary malfunctions. The time for performance of any act delayed by such events may be postponed for a period equal to the delay.
The failure of FOCUS to enforce any right, provision, or term of these Terms of Use will not constitute a waiver of future enforcement of that right, term, or provision. The waiver of any such right, term or provision will be effective only if in writing and signed by a duly authorized representative of FOCUS. Except as expressly set forth in these Terms of Use, the exercise by either party of any of its remedies under these Terms of Use will be without prejudice to its other remedies under these Terms of Use or otherwise.
If for any reason a court of competent jurisdiction finds any provision, or term, of these Terms of Use void, invalid or otherwise unenforceable, that provision, or term, will be enforced to the maximum extent permissible and the other provisions, or terms of these Terms of Use will remain in full force and effect.
CONTACT
Should you have any questions regarding these Terms of Use, the Platform or the Platform Services, you may contact FOCUS Support via email at: focus.tech@telus.com