| THESE TERMS AND
CONDITIONS OF USE FORM A PART OF YOUR SUBSCRIBER AGREEMENT.
PLEASE READ THEM CAREFULLY.
You agree to these Terms and Conditions of Use (Terms of Use)
in consideration of, and as a condition to, being allowed
to use TRACKEM® (defined below).
Use of TRACKEM® subject to Terms of Use;
Modifications:
Your use of TRACKEM® is subject to these Terms of Use.
Provider (defined below) may modify these Terms of Use from
time to time (a) by giving you notice of the modified Terms
of Use, or (b) by posting them on the TRACKEM® Website
(defined below). The modified Terms of Use will be binding
on you as of the date of such notice or posting, whichever
is earlier, whether or not you review them, unless within
five (5) days of such notice or posting you give notice that
you have elected to terminate your Subscriber Agreement (defined
below). If you elect to terminate the Subscriber Agreement
as permitted in the preceding sentence, then your Subscriber
Agreement will be deemed terminated effective one business
day after the date on which the notice of termination is received
by Provider.
Definitions:
The following definitions apply to these Terms of Use: Provider
means Solutions Into Motion® (aka SiM). TRACKEM® means,
collectively and severally, the TRACKEM® Website; any
and all other services provided on, available through or offered
for use on or in connection with the TRACKEM® Website;
all Information; and all Materials.
TRACKEM® Website means the website currently located at
Trackem.com, any other websites hereafter designated by Provider
as a TRACKEM® Website, and all of their respective constituent
web pages. Information means all information provided by,
available through, or offered for use on or in connection
with TRACKEM®, including without limitation all information
provided on, available through, or offered for use on or in
connection with the TRACKEM® Website. Materials means,
collectively and severally, every tangible thing you receive
from Provider; everything you see or read on the TRACKEM®
Website.
Subscriber Agreement means your Subscriber Agreement with
Provider of which these Terms of Use are a part, together
with these Terms of Use and any other Exhibits to the Subscriber
Agreement. Suppliers means Third Parties that supply goods
or services to Provider in connection with SOLUTIONS INTO
MOTION®.
Third Party or Third Parties means any and all organizations,
entities or individuals other than Provider and you. User
means a person or persons using TRACKEM®, and includes
a Subscriber as defined in the Subscriber Agreement.
You and your refers to you as User.
Use of TRACKEM® for Lawful, Internal Purposes Only:
You agree and warrant that your use of TRACKEM® will be
solely for your lawful, internal purposes only, and for no
other purpose. Without limiting the foregoing, you may not
provide or otherwise make available TRACKEM® to any Third
Party. You may not use TRACKEM® for any purpose that is
unlawful or prohibited by these Terms of Use.
Not for Navigation:
You acknowledge and agree that TRACKEM® is not a navigational
aid, and you agree and warrant that TRACKEM® will not
be used in navigation.
Not for Emergency Use:
You acknowledge and agree that TRACKEM® is not for emergency
use, and you agree and warrant that TRACKEM® will not
be used for emergency purposes. Furthermore, if your device
offers an “emergency” button or other emergency
functionality you agree that this may send your last known
location to the TRACKEM® server.
Use of Information:
You are solely responsible for your conduct with respect to
any Information, including without limitation your conduct
in creating, storing, transmitting, disseminating, accessing,
receiving, or using any Information.
No Warranties:
USE TRACKEM® AT YOUR OWN RISK. TRACKEM® IS PROVIDED
TO YOU "AS IS" AND "AS AVAILABLE," WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.
Without limiting the foregoing,
Provider does not warrant that TRACKEM® or its operation
will be accurate, reliable, uninterrupted, error-free or free
of viruses or other harmful agents, nor does Provider warrant
that any Information will be accurate, reliable, complete,
or timely. You acknowledge that Information may be transmitted
via satellite and over local exchange, inter-exchange and
Internet backbone carrier lines and through routers, switches
and other devices owned, maintained and serviced by local
and long distance carriers, utilities, satellite companies,
communications companies, Internet service providers and other
Third Parties, all of which are beyond the control of Provider.
You accept all risk arising out or relating to the delay,
failure, interruption, corruption, or interception of any
Information.
No agent or representative has the authority to create any
warranty regarding TRACKEM® on behalf of Provider.
Exclusion and Release of Liability; Exclusion of Consequential
Damages:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER
SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT
OF ANY BREACH OF, OR OTHER CLAIM RELATING TO, THE SUBSCRIBER
AGREEMENT. WITHOUT LIMITING THE FOREGOING, PROVIDER SHALL
NOT BE LIABLE FOR, AND YOU PROSPECTIVELY WAIVE AND RELEASE
PROVIDER FROM, ANY CLAIMS ARISING OUT OF OR RELATING TO YOUR
USE OF TRACKEM®, INCLUDING WITHOUT LIMITATION YOUR ACCESS
TO OR USE OF THE SECURE ASSET REPORTING SERVICES, THE INFORMATION,
THE MATERIALS, OR ANY OTHER SERVICES AVAILABLE THROUGH OR
USED IN CONJUNCTION WITH TRACKEM®; ANY CLAIMS ARISING
OUT OF OR RELATING TO THE CREATION, CONTENT, STORAGE, TRANSMITTAL,
DISSEMINATION, ACCESSING, RECEIPT, USE, DELAY, FAILURE, INTERRUPTION,
CORRUPTION, OR INTERCEPTION OF ANY INFORMATION; AND ANY CLAIMS
ARISING OUT OF OR RELATING TO ANY DELAY, FAILURE, INTERRUPTION
OR LOSS OF SERVICE; PROVIDED, HOWEVER, THAT THIS SENTENCE
SHALL NOT RELEASE PROVIDER OF INTENTIONAL OR WILLFUL MISCONDUCT.
IF, DESPITE THE FOREGOING, PROVIDER IS FOUND TO BE LIABLE
TO YOU, THEN THE ENTIRE AGGREGATE LIABILITY OF PROVIDER FOR
ALL CLAIMS AND CAUSES OF ACTION FOR BREACH OF, OTHER CLAIM
RELATING TO, THE SUBSCRIBER AGREEMENT, OR WHICH ARISE OUT
OF OR RELATE TO YOUR USE OF TRACKEM®, WHETHER BASED ON
CONTRACT, NEGLIGENCE, RECKLESSNESS, STRICT LIABILITY OR OTHERWISE,
FOR ANY PERSONAL INJURY OR ILLNESS OR DEATH, DAMAGE TO OR
LOSS OF ANY REAL OR PERSONAL PROPERTY, LOSS OF DATA, LOST
PROFITS, BUSINESS INTERRUPTION, DESTRUCTION OF BUSINESS OR
OTHER BUSINESS INJURY, AND ANY OTHER INJURIES OR DAMAGES OF
ANY KIND SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE SERVICE
FEES ACTUALLY PAID BY YOU UNDER THE SUBSCRIBER AGREEMENT IN
THE SIX MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE
TO THE CLAIM. WITHOUT LIMITING THE FOREGOING, IN NO EVENT
SHALL PROVIDER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, CONTINGENT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION LOST OR IMPUTED PROFITS, BUSINESS INTERRUPTION,
LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES),
EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND UNDER NO CIRCUMSTANCES SHALL PROVIDER BE LIABLE
FOR PUNITIVE DAMAGES.
Additional Protected Entities:
For purposes of any disclaimers of warranty, any exclusions
or limitations of liability or damages, any indemnity provisions,
any and all references to "Provider" shall mean
Provider, its Suppliers, and their respective officers, directors,
agents, shareholders, owners, employees, trustees, administrators,
receivers, sureties, insurers, attorneys, successors and predecessors
in interest, parent and subsidiary and affiliated corporations,
communications providers, partners, licensors and suppliers,
attorneys, assigns and receivers of each of the foregoing,
past, present and future.
Safety Equipment:
TRACKEM® is not intended to replace or eliminate the need
for any safety equipment. You agree to have and maintain all
safety equipment that may be required or advisable with respect
to any asset being tracked using TRACKEM®.
Links to Third Party Sites:
Links to sites operated by Third Parties ("Linked Sites")
will let you leave the TRACKEM® Website. Linked Sites
are not under the control of Provider, and Provider is not
responsible for the contents of any Linked Sites or any link
contained in any Linked Sites, or any changes or updates to
such sites. Provider is not responsible for any information,
data, or transmission of any kind received from any Linked
Sites. Provider is providing these links to you only as a
convenience, and the inclusion of any link does not imply
endorsement by Provider of any Linked Sites or of any information,
product or services.
Indemnification:
You agree to defend, indemnify and hold Provider, its Suppliers,
and their respective officers, directors, agents, shareholders,
owners, employees, trustees, administrators, receivers, sureties,
insurers, attorneys, successors and predecessors in interest,
parent and subsidiary and affiliated corporations, communications
providers, partners, licensors and suppliers, attorneys, assigns
and receivers of each of the foregoing, past, present and
future, harmless from and against any claims, actions or demands,
liabilities and settlements, including without limitation
reasonable legal and accounting fees, arising from or relating
to or alleged to arise from or relate to your use of TRACKEM®.
Intellectual Property:
Provider or its suppliers shall retain all right, title and
interest, including without limitation all copyright, patent,
trade secret, trademark and other proprietary rights, in any
and all intellectual property embodied in TRACKEM®, including
without limitation all source code, object code, databases,
user interface screens, algorithms, development frameworks,
repositories, system designs, system flow, processing techniques
and procedures related thereto, online and/or printed documentation,
copies, and derivatives of any of the foregoing, in whole
or in part. You should assume that all Materials are copyrighted
and protected under treaty provisions and worldwide copyright
laws, unless otherwise noted. Except as otherwise expressly
provided in this section, you may not copy, distribute, transmit,
display, perform, reproduce, publish, modify, rewrite, reverse-engineer,
disassemble, de-compile, transcribe, store in a retrieval system,
translate into any language or computer language, retransmit
in any form or by any means (electronic, mechanical, photo
reproduction, recordation or otherwise), create derivative
works from, license, sublicense, transfer, or sell any Information
or Materials without the prior written consent of the copyright
owner. You agree to comply with all provisions of any license
applicable to any software included in Materials. If you violate
any of the terms of this section, your permission to use TRACKEM®
will automatically terminate. In addition, violation of the
provisions of this section may subject you to severe civil
and criminal penalties.
Requests to reproduce Materials should be sent to Provider
at:
Solutions Into Motion® Limited. 601 Tradewind Drive. Unit
4, Ancaster On. L9G 3L1
Modification of TRACKEM® Website:
You agree that Provider may modify the appearance or operation
of the TRACKEM® Website at any time for any reason, with
or without notice. You agree that Provider will not be liable
to you or any Third Party as a result of such modification.
Termination:
Your right to access or use TRACKEM® will automatically
terminate upon the expiration or other termination of your
Subscriber Agreement. Terminating your service before the
end of the agreed term will result in a cancellation administration
fee for each subscriber. These are considered liquidating
damages, no penalties will apply. The cancellation charge
will be $100.00 and must be paid for termination for any reason.
In the case of the Lease bundle, termination is subject to
the Terms and Conditions of your lease with the third party
Leasing Company.
Subscription Renewal:
Subscriptions shall automatically renew at the expiration of the then-current term for an additional term of the same duration as the initial term. This automatic renewal allows your service to remain uninterrupted. If you do not wish for your subscription to be automatically renewed, you must manually cancel your subscription by contacting us at 1-866-868-7225 (and requesting a Cancellation Form) prior to the expiration of the then-current term. Upon any term change or cancellation, your subscription will remain active through your then-current term; however your subscription will not be automatically renewed upon the expiration of this term. Subscriptions that have been automatically renewed on a term will be subject to a cancellation fee of $100.00 per device.
Compliance with Laws:
You are responsible for compliance with all federal, provincial,
state, and local laws applicable to your use of TRACKEM®.
Injunctive Relief:
You agree that Provider will suffer irreparable injury in
the event you fail to comply with any of these Terms of Use,
and that monetary damages may be inadequate to compensate
Provider for such breach. Accordingly, you agree that Provider
will, in addition to any other remedies available to it at
law or in equity, be entitled to injunctive relief, without
posting a bond, to enforce these Terms of Use.
Survival:
All terms, conditions and warranties contained in these Terms
of Use which by their sense and context are intended to survive
the performance hereof by the parties hereunder shall survive
the completion of the performance, cancellation or termination
of the Agreement. Without limiting the foregoing, the provisions
entitled "Use of Information," "No Warranties,"
"Exclusions and Release of Liability; Exclusion of Consequential
Damages," "Additional Protected Entities,"
"Indemnification," and "Jurisdiction and Limitation
of Action" shall survive the termination of this Agreement.
Jurisdiction and Limitation of Action:
Exclusive jurisdiction and venue for any dispute with Provider,
or which in any way relates to your use of TRACKEM®, resides
in the state or federal courts at Boston, Massachusetts, and
you consent to the exercise by those courts of personal jurisdiction
over you. For purposes of the preceding sentence, "Provider"
shall include Provider and all other entities identified in
the paragraph entitled "Other Protected Entities."
If any provision of these Terms of Use is found to be invalid
by any court having competent jurisdiction, the invalidity
of such provision shall not affect the validity or enforceability
of any of the remaining provisions of these Terms of Use.
No waiver of these Terms of Use shall be deemed a further
or continuing waiver of such term or condition or any other
term or condition. Any cause of action you may have with respect
to Provider must be commenced within six months after the
claim or cause of action arises, or such claim or cause of
action is barred.
Complete Agreement:
The Subscriber Agreement, including these Terms of Use and
any other Exhibits to the Subscriber Agreement, constitutes
the entire agreement and understanding between Provider and
you with respect to your use of TRACKEM®, superseding
all prior or contemporaneous communications and/or understandings.
The Subscriber Agreement, including these Terms of Use and
any other Exhibits to the Subscriber Agreement, may not be
modified except by a subsequent writing signed by Provider
and you.
Notices:
Provider may deliver notice to you under the Subscriber Agreement,
including these Terms of Use and any other Exhibits to the
Subscriber Agreement, by means of electronic mail or by first
class mail to the electronic mail address or postal mailing
address set out in the Subscriber Agreement. You may give
notice to Provider at any time via letter delivered by first
class postage to the postal mailing address set out in the
Subscriber Agreement.
Trackem® service may require additional ’services
and/or fees’ from your Wireless Service Providers. These
charges are at the discretion of your provided Wireless Service
Provider and maybe subject to change. |
