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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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Terms and Conditions
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