TERMS OF SERVICE AGREEMENT

 

This Terms of Service Agreement (these “Terms of Service”) governs your use of the software and related services (the “Software”) of Global Tracking Communications, LLC (the “Company”), for use pursuant to and subject to certain terms and conditions between the Company and your employer (“Licensee”). All users of the Software are subject to the terms and conditions contained in these Terms of Service.

 

BY CLICKING THE “ACCEPT” BUTTON OR CHECKING THE “ACCEPT” BOX YOU: (i) REPRESENT THAT YOU ARE DULY AUTHORIZED BY LICENSEE TO ACCESS AND USE THE SOFTWARE; AND (ii) ACCEPT THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS OF SERVICE AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS OF SERVICE, DO NOT CLICK THE “ACCEPT” BUTTON OR CHECK THE “ACCEPT” BOX AND YOU WILL HAVE NO LICENSE TO, AND MUST NOT ACCESS OR USE, THE SOFTWARE.

 

  1. LICENSE GRANT TO USE THE SOFTWARE

 

Subject to your strict compliance with these Terms of Service, the Company hereby grants you a non-transferable, non-exclusive, non-sublicensable, limited license to use the Software solely for business purposes on behalf of Licensee. You do not receive title to the Software and you may not distribute or use the Software other than for the purposes set forth in these Terms of Service. You may not modify, adapt, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. You may not create any derivative works of the Software. The Software is subject to all restrictions on use, disclaimers of warranties and other provisions in these Terms of Service. The Company reserves all rights not expressly granted to you.

 

  1. TERMINATION OR RESTRICTION OF ACCESS

 

Your license to use the Software is effective until terminated. You may terminate the license at any time by discontinuing your use of the Software and deleting any related data from your device(s).

 

These Terms of Service and your right to use the Software will terminate immediately without notice if you fail to comply with these Terms of Service. The Company may terminate or suspend your access to the Software at any time. Upon termination, you agree to immediately cease using the Software and deleting any related data from your devices(s), including all accompanying documentation and materials.

 

  1. PROPRIETARY INFORMATION

 

The entire contents of the Software (including all information, text, displays, images, video and audio and any software made available through or in connection with the Software) and the design, selection and arrangement thereof, are proprietary to the Company or its affiliates or licensors and are protected by United States and international laws regarding copyrights, trademarks, trade secrets and other proprietary rights. You are only authorized to use the content on the Software for business use on behalf of Licensee. You may not copy, modify, create derivative works of, publicly display or perform, republish, store, transmit or distribute any of the material of the Software without the prior written consent of the Company. Neither the title nor any intellectual property rights to any material in the Software are transferred to you, but instead will remain with the Company or the applicable owner of such content. Except as expressly authorized by the Company in writing, you may not reproduce, sublicense, distribute, sell or exploit for any commercial purposes any part of, or access to, the Software.

 

The Company name and logos, and all related names, logos, product and service names, designs and slogans contained in the Software are trademarks of the Company, its affiliates, licensors and/or contractors unless otherwise clearly specified in writing. You may not use such marks without the prior written permission of the Company. All other names, brands and marks are used for identification purposes only and may be the trademarks of their respective owners. All rights are reserved.

 

  1. Collection and Use of Information

 

The Company may, directly or indirectly through the services of others, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, by means of providing maintenance and support services.

 

You agree that the Company may use such information for any purpose related to any use of the Software by you, including but not limited to: (i) improving the performance of the Software or developing updates; and (ii) verifying compliance with the terms of these Terms of Service and enforcing the Company’s rights, including all intellectual property rights in and to the Software.

 

  1. DISCLAIMER OF WARRANTIES

 

THE COMPANY, ITS AFFILIATES AND ITS LICENSORS expressly disclaim any and all REPRESENTATIONS AND warranties (express or implied) IN CONNECTION WITH THE USE AND OPERATION OF THE SOFTWARE, including but not limited to the WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, EFFECTIVENESS, COMPLETENESS, ACCURACY, TITLE, AND NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NONE OF THE COMPANY, ITS AFFILIATES OR ITS LICENSORS WARRANTS THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

The foregoing provisions set forth in this Section are essential parts of and cannot be severed from THESE TERMS OF SERVICE.

 

  1. LIMITATION OF LIABILITY

YOU WAIVE THE ABILITY TO ASSERT A CLAIM AGAINST THE COMPANY MORE THAN ONE (1) YEAR AFTER THE FIRST EVENT OR FACT THAT GAVE RISE TO THE CLAIM. in no event SHALL THE COMPANY, ITS AFFILIATES OR ITS LICENSORS be held liable to YOU OR any OTHER party for any indirect, incidental or consequential damages (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR BUSINESS OPPORTUNITIES), REGARDLESS OF THE LEGAL THEORY, WHETHER SUCH DAMAGES WERE FORESEEABLE, OR WHETHER THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE EXCEED $100. THESE LIMITATIONS OF LIABILITY SHALL SURVIVE THE TERMINATION OF THESE TERMS OF SERVICE.

 

The foregoing provisions set forth in this Section are essential parts of and cannot be severed from THESE TERMS OF SERVICE.

 

  1. INDEMNIFICATION

    You agree to indemnify and hold harmless the Company and its shareholders, partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, third party information providers, licensors, licensees, distributors, contractors and others involved in providing the Software and related online services (collectively, the “Indemnified Parties”), from and against any and all liabilities, expenses, damages and costs, including reasonable attorney’s fees, arising from any violation by you of these Terms of Service.

 

The foregoing provisions set forth in this Section are essential parts of and cannot be severed from these Terms of Service.

 

  1. COMMENTS AND SUBMISSIONS

 

The Company welcomes your comments with respect to the Software. All comments, suggestions or other information sent by you to the Company will become the Company’s property. For avoidance of doubt, the Company shall own any developments by the Company or on its behalf arising out of your comments, suggestions or other submissions. To the extent the Company does not own such materials, you grant and agree to grant the Company a perpetual, irrevocable, non-exclusive, royalty-free license to utilize, create derivative works of, distribute and sublicense such materials for any purpose in connection with the Company’s web sites, products and services. You understand that all information you submit is non-confidential for all purposes, and you have no expectation of any review, compensation or consideration of any type for all submissions hereunder.

 

  1. ARBITRATION

 

Any controversy or claim, whether based in contract, tort, statute, regulation or otherwise, between you and the Company or the Company’s subsidiaries or affiliates, and any of the Company’s officers, directors and employees, arising out of or relating to these Terms of Service or your use of the Software, shall be adjudicated by binding arbitration, before a single arbitrator, in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS (or any successor of that organization in effect at the time the arbitration is initiated) which shall administer the arbitration.

 

If you decide to initiate arbitration, the Company agrees to pay the filing fee required by JAMS to initiate your arbitration (up to $250.00), and that the other costs of the arbitration proceeding will be split equally between you and the Company. You may hire an attorney to represent you. Each party to the arbitration shall bear its own costs and expenses related to such arbitration, regardless of which party prevails, but a party may recover any or all of its costs and expenses from the other party to the same extent as in court. The arbitration award shall be in writing and shall include findings of fact and conclusions of law. Judgment on the arbitration award may be entered by any court of competent jurisdiction. Either party may seek any interim or preliminary relief from a court of competent jurisdiction necessary to protect the rights or property of either party pending the completion of arbitration. You hereby agree that the arbitration will be held at the JAMS office closest to the Company’s principal place of business, Wilmington, Delaware, or any other location where you and the Company agree to hold the arbitration.

 

This section is deemed to be a written agreement to arbitrate pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. You and the Company agree that this section is intended to satisfy the writing requirement of the FAA. The FAA will apply even though these Terms of Service provides that it is governed by the law of the State of Delaware. YOU HEREBY WAIVE THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT AND OTHER RIGHTS THAT YOU WOULD OTHERWISE HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. You hereby acknowledge that you have read and understood the implications of this provision.

 

  1. CHOICE OF LAW, VENUE.

 

These Terms of Service and all questions of interpretation, construction and enforcement hereof, and all controversies arising hereunder, shall be governed by and construed in accordance with the applicable laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Delaware. The state and federal courts in Wilmington, Delaware shall serve as the exclusive jurisdiction for any and all claims for interim or preliminary relief, as well as to enforce the confidentiality of arbitration, as set for herein, and you hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or in any way related to these Terms of Service, in the state and federal courts located in Wilmington, Delaware, and hereby further irrevocably and unconditionally waive your right and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

 

The foregoing provisions set forth in this Section are essential parts of and cannot be severed from these Terms of Service.

 

  1. MISCELLANEOUS

    Your use of the Software is subject to the Company’s Privacy Policy, a current version of which is available here: https://gpstrackit.com/privacy-policy/.

 

You agree and certify that neither the Software nor any other technical data received from the Company, nor the direct product thereof (whether a process or service or otherwise), will be directly or indirectly exported or transmitted outside the United States except as authorized and as permitted by the laws and regulations of the United States. If the Software has been rightfully obtained by you outside of the United States, you agree that you will not re-export or transmit, directly or indirectly, the Software nor any other technical data received from the Company, except as authorized by the laws and regulations of the of the United States and the laws and regulations of the jurisdiction in which you obtained the Software. You agree that you will not export in any manner the Software without first obtaining all necessary approvals from the appropriate agencies in the United States and any other applicable countries.

 

The Software is a “Commercial Item” consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are defined in the Federal Acquisition Regulations (“FAR”) at 48 CFR 2.101, developed exclusively with private funds. Consistent with 48 CFR 12.212, and the comparable DFAR in the DoD FAR Supp. at 227.7202-1 through 227.7202-4, the Software is licensed to you only as commercial software and only with the rights and obligations granted to public users generally as set forth above in the license grant contained in these Terms of Service. Notwithstanding any other FAR, DFAR or other contractual provision into which this license agreement may be incorporated, any government end user only acquires the rights to use the Software as set forth in these Terms of Service. The Software is acquired under the specific terms and conditions set forth herein. If any portion of the Software is deemed “non-commercial,” or the following FARs or DFARs are deemed to apply, the Software is licensed under the terms hereof and under the RESTRICTED RIGHTS set forth in 48 CFR 52.227-19 and DFAR 252.227-7014 (and the government’s use, duplication and disclosure rights are restricted as set forth therein).

 

Except as expressly set forth above, these Terms of Service completely and exclusively states the agreement between you and the Company with respect to the Software, and no other terms that may have been communicated to you orally or in any other manner shall have any force or effect.

 

The Company’s licensors and contractors are express third party beneficiaries of any of these Terms of Service that are applicable to their products or services, including disclaimers of warranty and limitations of liability, and shall have the right to enforce directly against you all of your applicable representations, warranties, covenants, indemnifications and obligations under these Terms of Service.

The Company’s failure to insist upon or enforce strict performance of any provision of these Terms of Service shall not constitute a waiver of the provision. Neither a course of dealing or conduct between you and the Company nor any trade practices shall be deemed to modify these Terms of Service.

 

You agree that no joint venture, partnership, employment, or agency relationship exists between you and the Company as a result of these Terms of Service or use of the Software.

 

A printed version of these Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.