1. OWNERSHIP. We, along with our service and information providers ("Providers"), own and have copyrights on our site and all of its contents. You will not copy, reproduce, republish, upload, post, transmit, distribute, sell, transfer or modify any of the content, data, information or materials found on our site, but you may download, display and print one copy of the materials presented on our site on a single computer for your personal, non-commercial use. Trademarks, logos and service marks displayed on our site ("Marks") are ours, and our Providers', registered and common law Marks. Your use of and access to our site does not grant you any license or right to use any of the Marks. You will not use any robot, spider, other automatic device, or manual process to monitor materials available through our site. All software, applications, and modules used on our site are proprietary to us or licensed to us by other parties. You may not reproduce, reverse engineer, create derivative works of, reverse assemble or reverse compile, sell, lease, distribute, rent, assign, transfer, or modify any software on our site.
2. PURCHASE. Customer agrees to purchase the Service subscription indicated above Customer’s signature on the Quote and Customer agrees to purchase all necessary hardware and software required for successful implementation of the Service directly from iTrack America or separately from an authorized iTrack America Reseller. Customer purchases the System for Customer’s own use and not for resale or use by others.
3. COPYRIGHT AND TRADEMARK NOTICES. All contents of our site are Copyright, iTrack America All rights reserved. iTrack America and iTrackAmerica.com are trademarks of iTrack America. Other product, service and company names listed in our site may be the trademarks of their respective owners.
4. USE OF SITE. You may only use our site if you are at least 18 years of age and can enter into binding contracts (our site is not available for use by minors). You are responsible for maintaining the secrecy of your passwords, login and account information. You will be financially accountable for all uses of our site by you and anyone using your password and login information. You agree to be completely responsible for all charges, fees (including, without limitation, any monthly or use fees charged by us), duties, taxes and assessments arising out of the use of our site. You also represent and warrant that all information supplied by you to us is true and accurate. You may not use our site: to post or transmit any unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law; or for any other purpose that is unlawful or prohibited by these Terms. We may, at any time and without advance notice or liability, terminate or restrict your access to all or any component of our site. Your access to our site may not be uninterrupted or available at all times. We cannot promise that our site will be error-free, that defects or errors will be corrected or that our site or the servers that make it available are free from viruses or other harmful components. You will not use any device, software or routine that interferes or attempts to interfere with the normal operation of our site or take any action that imposes an unreasonable load on our computer equipment.
5. SOFTWARE AVAILABLE ON THIS SITE.
5.1. Any software that is made available to download from our site ("Software") is our copyrighted work, or our affiliates, and/or their suppliers. Your use of the Software is governed by the terms of the end user license agreement, if any, which accompanies, or is included with, the Software ("License Agreement"). You may not install or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms.
5.2. For any Software not accompanied by a License Agreement, we hereby grant to you a personal, nontransferable license to use the Software for viewing and otherwise using our site in accordance with these terms and conditions and for no other purpose.
5.4. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. THE SOFTWARE IS WARRANTEED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT.
5.5. You acknowledge that the Software and any accompanying documentation and/or technical information are subject to applicable export control laws and regulations of the United States. You agree not to export or re-export the Software, directly or indirectly, to any countries that are subject to United States export restrictions.
6. USER INFORMATION. Content you send to us, as between us and you, whether via e-mail, forms, messages, ideas, and/or suggestions, becomes our sole property and is transmitted at your sole risk. You are strictly prohibited from uploading to our site any material that contains any virus, worm, "trojan horse", time bomb, or similar contaminating or destructive feature. Violators may be prosecuted to the maximum extent of the law.
8. LINKS. Our site may contain links to other sites that we do not operate or control. We are not responsible for these other sites. We provide these links for your reference and convenience. We do not endorse the contents of these other sites. These links are not an indication of our association with the owners or operators of any of these other sites or our endorsement of any material on those sites. You are free to access these other sites, but you do so at your own risk. You agree not to create a link from any site, including any site controlled by you, to our site without our express, written permission.
9. WARRANTY DISCLAIMER. WE MAKE NO, AND OUR PROVIDERS MAKE, NO WARRANTY OF ANY KIND REGARDING OUR SITE AND/OR ANY CONTENT, DATA, MATERIALS, INFORMATION, PRODUCTS OR SERVICES PROVIDED ON OUR SITE, ALL OF WHICH ARE PROVIDED ON AN "AS IS" BASIS. WE EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY THAT OUR SITE WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED. WE FURTHER DISCLAIM ANY WARRANTY AS TO THE ACCURACY, COMPLETENESS AND TIMELINESS OF ANY CONTENT OR INFORMATION FOUND ON OUR SITE. WE EXPRESSLY DISCLAIM AND OUR PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THIS WARRANTY DISCLAIMER MAY BE LIMITED IN ITS APPLICABILITY TO YOU. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. WE, OUR AFFILIATES, AND/OR THEIR RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES ON THIS WEB SITE AT ANY TIME.
10. LIABILITY LIMITATION. iTrack America shall not be liable for any loss or damage which may arise in connection with the furnishing or use by Customer of iTrack America products or services. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, iTrack America WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (A) FOR ANY AMOUNTS, INCLUDING ATTORNEYS’ FEES, IN EXCESS OF THE AGGREGATE AMOUNT OF THE FEES PAID TO iTrack America HEREUNDER DURING THE TWO (2) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE OR (B) FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, REVENUE, DATA OR USE, WHETHER IN CONTRACT OR TORT; OR (C) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES EVEN IF iTrack America HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. iTrack America SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL NOR SHALL IT BE LIABLE FOR ANY WARRANTIES GRANTED BY ANY PERSON IN EXCESS OF THOSE GRANTED TO CUSTOMER HEREIN. iTrack America SHALL NOT, DURING OR AFTER ANY TERM OF THIS AGREEMENT, OWE ANY OBLIGATION OF COMPENSATION, INDEMNITY OR DAMAGES TO CUSTOMER WITH RESPECT TO GOODWILL OR MARKET SHARE CREATED BY EFFORTS HEREUNDER. The entire liability of iTrack America and third parties who contribute to the Service and Customer’s exclusive remedy under or for breach of this agreement shall be refund of the service fees paid for the two (2) month period preceding the date the claim arose, regardless of any defect in the service, software, communications networks, or negligence on iTrack America’s part, or iTrack America’s subcontractor’s part and regardless of the claim or form of action. IN NO EVENT WILL iTrack America OR THIRD PARTIES WHO CONTRIBUTE TO THE INSTALLATION OF THE iTrack America SYSTEM OR THE SERVICE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR ANY OTHER PECUNIARY LOSS) THAT CUSTOMER OR ANY THIRD PARTY MIGHT INCUR DUE TO THE INSTALLATION OF THE iTrack America SYSTEM OR CUSTOMER’S USE OR INABILITY TO USE THE SERVICE OR iTrack America’S FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF iTrack America HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ASSUMES ALL RISK OF USE OF THE SERVICE, INCLUDING BUT NOT LIMITED TO, THE RISK OF TRAFFIC ACCIDENTS WHILE USING THE SERVICE. THE SERVICE IS NOT GUARANTEED AGAINST EAVESDROPPERS OR INTERCEPTORS. CUSTOMER AGREES THAT iTrack America SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR LACK OF PRIVACY OR SECURITY. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND OLD HARMLESS iTrack America AND THIRD PARTIES WHO CONTRIBUTE TO THE SERVICE FROM ANY LOSS, LIABILITY OR DAMAGE, OR CONSEQUENTIAL OR OTHERWISE, OCCASIONED BY, GROWING OUT OF, OR ARISING FROM CUSTOMER’S BREACH OF THIS AGREEMENT, USE OR MISUSE OF THE SERVICE OR ANY OTHER ACT OR FAILURE TO ACT BY CUSTOMER, CUSTOMER’S AGENTS OR EMPLOYEES. THE FAILURE OF CUSTOMER TO PERFORM ITS OBLIGATIONS UNDER ANY OTHER AGREEMENT BETWEEN iTrack America AND CUSTOMER SHALL BE A DEFAULT UNDER THIS AGREEMENT. Nothing in this Agreement shall limit or alter the indemnification rights of iTrack America and/or Customer with respect to third party claims of infringement, including specifically any indemnification provided by iTrack America’s suppliers and service providers that covers both iTrack America and Customer.
11. DOLLAR LIMITATION. If, despite the limitations above, we are or a Provider is found liable for any loss or damage which arises out of or is in any way connected with any of the occurrences described in such sections, then our liability and the Providers' liability will in no event exceed, in total, the sum of US$250.00. Some states do not allow the limitation of liability, so the limitations above may not apply to you.
12. INDEMNIFICATION. You will defend and indemnify us and any Provider and each of our officers, directors, employees and agents from and against any claim, cause of action or demand, including, without limitation, reasonable legal and accounting fees, brought by you or on your behalf in excess of the liability described above or by third parties as a result of your breach of these Terms or the documents made part of these Terms by reference, your violation of any law or the rights of a third party or your use of our site.
13. GENERAL. The headings in these Terms are for your convenience and reference only. Such headings do not limit or affect these Terms. Your acceptance of these Terms and use of our site do not create a joint venture, partnership, employment or agency relationship with us. You may not assign, delegate or transfer your rights or obligations under these Terms. We may modify these Terms at any time. Your continued use of our site, following any modification of these Terms, will be subject to the Terms in effect at the time of your use. You will review these Terms periodically. Your continued use of our site, following any modification, will be your acceptance of the modified Terms. Except as described in the preceding sentences, you and we can only modify these Terms in a written document signed or otherwise accepted by you and by us. Other terms and conditions may apply to your of services and products through our site and to your use of other portions of our site. You will observe these other terms and conditions. If we fail to act with respect to your breach or anyone else's breach on any occasion, we are not waiving our right to act with respect to future or similar breaches. If a court finds any provision of these Terms to be unenforceable or invalid, that provision will be enforced to the fullest extent permitted by applicable law and the other Terms will remain valid and enforceable. These Terms, together with those items made a part of these terms by reference, make up the entire agreement between us and you relating to your use of our site, and replaces any prior understandings or agreements (whether oral or written) regarding your use of our site. The laws of the State of Massachusetts (USA), without regard to its conflict of laws rules, will govern these terms and conditions, as well as your and our observance of them. If you take any legal action relating to your use of our site or these Terms, you agree to file such action only in the state and federal courts located in State of Massachusetts (USA). In any such action or any action we may initiate, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to costs, both taxable and non-taxable, and reasonable attorneys' fees. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.