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Terms and Conditions |
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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. Term contracts will automatically renew unless
written notice of request to terminate agreement is provided
30 days prior to term expiry date.
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, decompile, 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 4V5
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. Term contracts will automatically
renew unless written notice of request to terminate agreement
is provided 30 days prior to term expiry date. 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 per
user 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.
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.
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