..:: Trackmate ::..

User Agreement

IMPORTANT! BY DOWNLOADING, USING, OR ACCESSING ANY OF OUR DEVICES, SOFTWARE, SERVICES AND OTHER PRODUCTS, INCLUDING UPDATES AND UPGRADES THEREOF (COLLECTIVELY “PRODUCTS”), YOU CONCLUDE A LEGALLY BINDING AGREEMENT BASED ON THE TERMS OF THIS TRACKMATEGPS END USER AGREEMENT (“AGREEMENT”) WITH TRACKMATEGPS LLC. (“TRACKMATEGPS” OR “WE”) ON BEHALF OF YOURSELF, UNLESS YOU ARE ACTING AND AUTHORIZED TO ACT FOR A COMPANY OR OTHER ORGANIZATION IN WHICH CASE THE AGREEMENT IS WITH SUCH ORGANIZATION AND ANY REFERENCES TO “YOU” HEREIN MEANS SUCH ORGANIZATION. IF YOU DO NOT WISH TO AGREE, DO NOT INSTALL, USE, ACCESS OR RETAIN ANY OF OUR PRODUCTS AND RETURN ANY PRODUCTS YOU HAVE PURCHASED TO THE SELLER FROM WHICH YOU PURCHASED SUCH PRODUCTS FOR A FULL REFUND OF THE PURCHASE PRICE.

01. 117LICENSE.

We grant you a limited, revocable, non-exclusive right to use any software, firmware and intellectual property (collectively, “software”) embodied in Products solely for your own internal business purposes and solely in connection with your use of our or other compatible in-vehicle telematics devices, on the condition and so long as you comply with all terms and conditions of this Agreement. Except as otherwise provided herein, such rights are non-assignable, non-transferable and non-sublicensable. You may not extract, copy or use the software in connection with any other product or for use on any other device.

02. PRODUCTS OWNERSHIP.

The Products are protected by copyright and other intellectual property rights. Software and services are not sold, but only licensed or made available on a limited basis. Notwithstanding anything to the contrary herein, and notwithstanding any reference to the sale of any product to you hereunder, except for the rights expressly granted to you under this Agreement, all right, title and interest (including all copyrights, trademarks, service marks, patents, inventions, trade secrets, intellectual property rights and other proprietary rights) in and to the Products and any copies thereof (regardless of the form or media upon which such copies are recorded) are and shall remain exclusively owned by us and our licensors. You shall not remove or attempt to remove any marks, labels and legends from Products.

03. PROTECTIVE MEASURES.

Products may contain technological measures (including the ability to disable the Products) designed to prevent the illegal usage of software or other violations of this Agreement or applicable law. You agree not to circumvent or attempt to circumvent such measures.

04. UPDATES AND PATCHES.

We shall continuously improve our products and may, from time to time, cause software updates to be automatically installed with or without prior notification to you or provide access to updates through our website. You hereby consent to such automatic installations and agree to use only the updated version once it has been installed.

05. RESTRICTIONS.

To the fullest extent permissible under applicable law, you agree not to: (a) disclose, transfer or transmit in any manner any services, software or other copyrightable or licensed elements of Products whether temporarily or permanently; (b) modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any software elements of products; (c) use Products in a manner that violates laws or rights of others; (d) use the products as part of a fail-safe design for dangerous or emergency applications or as part of control measures required for hazardous materials, life support systems, munitions or weapons; (e) engage in any activity that interferes or disrupts services or any computer, software, network or other device used to provide the services; or (f) attempt, or cause, permit or encourage any other person to do any of the foregoing.

06. COMPLIANCE.

You shall comply with all applicable laws, including export control laws and regulations of the USA and Canada. You shall not export or re-export any Product directly or indirectly in contravention of such laws and regulations. You further acknowledge that the Products cannot be exported to, or used in, countries which are listed on Canada’s Area Control List, including (as of the date of this Agreement) North Korea.

07. SECURITY.

You are solely responsible for your failure to keep all user identifications and passwords (your “Login Credentials”) secure. If you believe the security of your Login Credentials has been compromised, or you suspect unauthorized use, you will promptly notify us. We will be entitled to treat all communications, instructions and transactions as authorized by you if your Login Credentials are used unless you have notified us of compromise or unauthorized use of your Login Credentials. If we suspect, in our reasonable opinion, fraudulent or unauthorized activity on your account, we reserve the right to terminate or suspend your access to our website or any applicable services or both and will contact you to advise of this decision.

08. CONFIDENTIALITY AND DATA TRANSFER.

We maintain reasonable technical and organizational security and data storage policies and measures for facilities within our control, in accordance with our TRACKMATEGPS Technical and Organizational Data Security Measures Statement, as amended by us from time to time. Data may be stored or transmitted through third party facilities, third party services or common carriers, including without limitation the internet, in the course of using our Products. You shall not provide third parties with access to any software and non-public information in and regarding the Products and any other confidential information that we provide without our prior written consent, except to your own employees, subject to adequate confidentiality agreements. We will not disclose your Individual Vehicle Data (as defined below) to any third party except in the following circumstances: (i) to our service providers, who have a need to know in order to assist us in providing Products to you, and who have all agreed to confidentiality terms and use restrictions similar to those set forth herein; (ii) with your consent; (iii) to comply with a subpoena, warrant, court order or other legal requirement (but to the extent practicable and unless prohibited from doing so, we will provide you notice of the disclosure so that you may seek a protective order or otherwise object to the disclosure); or (iv) where a company acquires us. For more information, please see our Privacy Policy.

09. YOUR VEHICLE DATA.

We claim no ownership of any vehicle data that you generate and associate with our devices installed in your particular vehicle(s) (“Individual Vehicle Data”) and which you transmit or process using our Products. We will process and transmit Individual Vehicle Data to provide, maintain and improve our Products and perform obligations under this Agreement and applicable law. In furtherance of such purposes, based on certain non-position data elements in your vehicle database (such a vehicle VIN), from time to time in certain jurisdictions we may query, on a confidential basis, databases maintained by reputable third party providers for additional information.

10. AGGREGATED DATA. TRACKMATEGPS

compiles, stores and uses aggregated data and system usage information to monitor and improve the Products and for the creation of new products, in accordance with the TRACKMATEGPS Data Analytics Policy. The aggregated data that we use in this manner is no longer associated with a device and as such is not Individual Vehicle Data. TRACKMATEGPS will not attempt to disaggregate the data or re-associate it with a device without your consent or unless legally compelled to do so or unless required for safety or troubleshooting purposes.

11. FEEDBACK.

You understand and agree that any feedback, input, suggestions, recommendations, troubleshooting information or other similar information that you provide or which is made available to us (whether directly or through a reseller including in the course of utilizing support, maintenance or other services) may be used by us to modify, enhance, maintain and improve our Products and shall become our exclusive property without any obligation or payment to you or to any of your customers whatsoever.

12. OUR LIMITED PRODUCT WARRANTY.

We warrant that during the Warranty Period each Product (including beta products obtained through the TRACKMATEGPS beta program, but excluding other test or demonstration products or product versions) will perform in accordance with the written specifications that we issue with respect to such Product, subject to the limitations and conditions set forth in our specifications and this Agreement, when used in accordance with our documentation and specifications. “Warranty Period” means either: (a) the one year period commencing on the activation date; or (b) the lifetime of the device, provided that the device is activated on certain rate plans ((“Limited Lifetime Warranty”)). Provided you properly complete and we receive from you, directly or through an authorized reseller, a justified written warranty claim and, if applicable, all affected devices (returned at your expense to the reseller from whom you purchased the devices or as otherwise specified by us), prior to the expiration of the Warranty Period, we will either repair or replace such device or use commercially reasonable efforts to correct any material defects in software and services. We reserve the right to replace any device and software with a more current version or model or refurbished device units in our sole discretion. We also reserve the right to charge you return shipping and a reasonable service fee if we determine that your warranty claim was not justified. The remaining Warranty Period for any purchased Products we repair or replace under warranty is deemed to be the greater of: (aa) the actual remaining Warranty Period for the replaced or repaired Product; and (bb) 90 days following the completion of such repair or replacement. Additionally, under the Limited Lifetime Warranty we will replace the device in accordance with the process specified above if the network on which the device operates no longer provides adequate coverage in your usage area (as determined by us in our discretion). To the maximum extent permitted by applicable law, the foregoing constitutes your sole and exclusive remedy and our sole and exclusive obligation for any breach of the foregoing warranty.

13. CONDITIONS AND EXCLUSIONS.

Warranty claims must be submitted promptly after the date when you noticed the defect. In order to make a warranty claim, you may be required to prove that the installation did not cause the defects or failures of the Product, unless the installation was performed by a TRACKMATEGPS-certified installer. Any products, services or items made or supplied by third parties (including vehicles tracked with our Products) are not covered by our limited warranty and we are not responsible for malfunctions by or in such products, services or items. You may need to purchase, license or procure products, software, data or services from third parties to enable the full use or functionality of our Products. You are responsible for ensuring that all such third party products, software, data or services meet our minimum requirements, including without limitation, processing speed, memory, client software, internet access, internet or other communication channel bandwidth.

14. CONDITIONS AND EXCLUSIONS.

15. Subscription to the Service

Use of the Service requires a paid subscription, which may be offered as an annual, quarterly or as a monthly subscription plan or rental plan. By signing up for the Service, you authorize the Company to charge your credit card for the Service on a recurring monthly, quarterly or annual basis. After signing up for the Service, Company will automatically renew your subscription at the end of the current subscription period by charging your credit card. You can cancel your subscription to the Service at any time, from the “Suspend/Cancel Service” menu item in your account home page or by sending an email to support@TRACKMATEGPS.com. Upon cancellation of your subscription to the Service, the Service will be deactivated and the SIM card terminated after a 6 month period and the device may no longer work indefinitely. To reactivate, you must do so within 6 months. After this period a new SIM card will be required to reactivate and a $35 reactivation fee may apply. All payments made for your subscription to the Service are non-refundable, unless otherwise noted in the TrackmateGPS 30 Day Satisfaction Guarantee. Please allow 3 business days prior to the end of your current subscription period to cancel your subscription to the Service, to avoid being charged for the subsequent subscription period. You also have the option to switch from an annual plan or quarterly plan to a monthly subscription plan, and vice versa, by sending an email to support@TRACKMATEGPS.com. Note that the price of your subscription to the Service will change according to the subscription plan rates offered by Company, at the time of your subscription plan modification. Any changes to your subscription plan will take effect within 48 hours. Company reserves the right to modify the price of your subscription to the Service at the time that changes to your plan or subscription are requested. Company reserves the right to suspend your subscription to the Service, if Company is unable to process the subscription renewal charge on your credit card. If you have any questions related to your subscription to the service, you can contact the Company at support@TRACKMATEGPS.com. With any of Company’s subscription plans, you may cancel your subscription at any time. Customers are responsible for return shipping charges. If the device is returned damaged beyond normal wear and tear, additional fees may be incurred. You may cancel your subscription at any time and return the TRACKMATEGPS device, subject to the following additional terms. Customers are responsible for all return shipping charges, and may incur additional fees for any device returned damaged beyond normal wear and tear.

16. Online Payments

You can pay for your subscription to the Service on the App or at TRACKMATEGPS.com. We accept credit and debit cards issued by U.S. banks. If a credit card account is being used for a transaction, Company may obtain pre approval for an amount up to the amount of the payment. If you enroll to make recurring payments automatically, all charges and fees will be billed to the credit card you designate during the setup process. If you want to designate a different credit card or if there is a change in your credit card, you must change your information online. This may temporarily delay your ability to make online payments while we verify your new payment information. Company uses Stripe, an entrusted, PCI compliant, third party company, to charge your credit card for device purchase and subscription renewal. Company does not retain your credit card information on its servers.
You represent and warrant that if you are making online payments that (i) any credit card, debit card and bank account information you supply is true, correct and complete, (ii) charges incurred by you will be honored by your credit/debit card company or bank, (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes, and (iv) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information. All features, content, specifications, devices, accessories and prices of devices, accessories, and services described on the website are subject to change at any time.

17. INSTALLATION WARNING.

Certain vehicles or installation configurations may require professional installation, additional equipment or modifications to your vehicles. Prior to installing our Products you should carefully review the relevant TRACKMATEGPS installation documentation. If you are uncertain that you have the requisite skills and understanding to install our Products, you must consult with an authorized TRACKMATEGPS reseller or installer. Improper installation can lead to short circuits and the risk of fire, leading to personal injury or significant damage to your vehicle. Installation or servicing may also require modifications to your vehicle. Failure to comply with procedures specified in the installation instructions for a Product, or attempting to install our Products without adequate knowledge of our Products, proper installation, configuration, servicing, repair or removal procedures, or your vehicle, may result in damage to the Product or your vehicle, which may cause malfunctions of vehicle controls or vehicular environmental systems and result in personal injury. You understand that any such activities not performed by an authorized TRACKMATEGPS reseller or installer will be at your sole risk. You also agree to comply with any safety-related instructions communicated to you by TRACKMATEGPS, including removing the Product from your vehicle if TRACKMATEGPS determines your vehicle is not suitable for the use of the Products. You hereby release and forever discharge, and will indemnify and hold harmless, us, our affiliates, resellers and agents and their directors, officers, employees and representatives from any and all losses, actions, causes of action, liability, claims, demands, penalties, costs, expenses (including legal fees and disbursements on a full indemnity basis), judgments and damages of any nature or kind whatsoever, whether under contract, tort, or any other theory of law or equity, which you or any other third party has or will have, arising or accruing from, as a result of, in relation to, or in connection with, same.

18. WARRANTY DISCLAIMER.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY TERMS, REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT OR QUIET POSSESSION AND THOSE ARISING BY STATUTE OR IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE CANNOT AND DO NOT REPRESENT, WARRANT OR COVENANT THAT: (A) ANY OF THE PRODUCTS WILL MEET YOUR BUSINESS OR OTHER REQUIREMENTS; (B) THE PRODUCTS WILL OPERATE OR BE PROVIDED WITHOUT INTERRUPTION; (C) THE PRODUCTS WILL BE ERROR-FREE, VIRUS-FREE OR THAT THE RESULTS OBTAINED FROM THEIR USE WILL BE ACCURATE, RELIABLE OR CURRENT (D) ANY ERRORS IN THE PRODUCTS CAN BE CORRECTED OR FOUND IN ORDER TO BE CORRECTED. MOREOVER, WITHOUT LIMITING THE GENERALITY OF SECTION 13 (CONDITIONS AND EXCLUSIONS) WE DO NOT ENDORSE, AND MAKE NO REPRESENTATION, OR WARRANTY WITH RESPECT TO, AND ASSUME NO RESPONSIBILITY, OBLIGATION OR LIABILITY FOR, ANY NON-TRACKMATEGPS PRODUCTS, SOFTWARE, DATA OR SERVICES INCLUDING BUT NOT LIMITED TO WIRELESS SERVICES, MAPPING SERVICES, POSTED ROAD SPEED SERVICES, INTERNET BANDWIDTH AND CLOUD STORAGE.

19. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

(a) We will, at our sole cost and expense, defend and indemnify or, at our option, settle, any claim, assertion or action brought against you or your affiliates, successors or assigns to the extent that it is based on a claim (an “Infringement Claim”) that any of our Products which we have supplied to you directly or through an authorized reseller infringes any copyright, patent, trade secret or trademark of any third party (excluding any of your affiliates) and indemnify you against damages awarded against you by a court of competent jurisdiction by final order from which no appeal is taken or after the time for appealing has expired, provided that you: (i) notify us promptly and within no more than 10 days after your receipt of notice of such claim in writing; and (ii) permit us to defend, compromise or settle the claim or action and provide all available information, assistance and authority to enable us to do so. We shall not be liable to reimburse you for any compromise or settlement made by you without our prior written consent, or for any legal fees or expenses incurred by you in connection with such claim.

(b) Should any of our Products or any part thereof become, or in our sole opinion are likely to become, the subject of an Infringement Claim, we may, at our option and expense: (i) procure, at no cost to you, the right to continue to use such Products which are the subject of the Infringement Claim; (ii) replace or modify the Products or infringing part thereof with non-infringing equivalents, at no cost to you; or (iii) if none of the foregoing alternatives are reasonably practical in our sole judgment, we may: (A) in the case of software or services, terminate such services or the licenses for such software and refund or issue a credit for any prepaid but unused fees for such software or services paid to us, if any; and/or (B) in the case of our devices, require you to return such devices and refund or issue a credit for the purchase price paid to us for the devices returned, depreciated on a straight-line basis over a 36 month period from the date of purchase.

(c) We have no obligation or liability whatsoever in respect of any Infringement Claim that is based on any of the following (collectively, the “Excluded Claims”): (i) in the case of any software, the use of other than the latest release and version of such software resulting from your interference with or disabling of the automatic software update process; (ii) the use of any Products in breach of this Agreement; (iii) non-TRACKMATEGPS products, software, data or services, (iv) the use, association or combination of any of our Products with, or the incorporation or integration into our Products of, any non-TRACKMATEGPS product, software, service, data, information or other material (including your own) that is not supplied by us or expressly identified by us in our written specifications or documentation as being required for the use and operation of our Products; (v) the use or operation of any of our Products, in any manner or for any purpose other than as expressly specified in our documentation for same; (vi) any modification, alteration, change, enhancement, customization or derivative work of the Products made by anyone other than us or our agents; (vii) changes we make to Products to comply with your instructions or specifications; (viii) your use or alleged misuse of data you collect through the operation of our products; (ix) for user-based vehicle insurance purposes, the use of the Products in association with driving, driver or vehicle activity or performance; or (x) any reselling or distribution of our Products. This Section states our entire liability and your sole and exclusive remedies with respect to any Infringement Claim.

20. Google Maps

You agree and understand that by using the Service, you agree to be bound by Google’s terms of use available at https://developers.google.com/maps/terms and Google’s privacy policy, as amended by Google from time to time, currently available at http://www.google.com/privacy.html.

21. Apple Terms

The following additional terms and conditions apply with respect to the Service if used on an Apple iOS-powered mobile device (“iOS App”):

You acknowledge that these Terms of Service are concluded between you and Company only, and not with Apple. Company, and not Apple, is solely responsible for Company’s iOS App and the services and Content available thereon.

You agree that your license to use the iOS App is limited to an Apple iOS-powered mobile device that you own or control and that your use of Company’s iOS App shall be subject to the Usage Rules set forth in Apple’s then-current App Store Terms of Service.

You and Company agree that Apple shall have no obligation to provide maintenance and support services with respect to Company’s iOS App.

To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to Company’s iOS App.

You agree that Company, and not Apple, is responsible for addressing any claims by you or any third party relating to Company’s iOS App or your possession and/or use of Company’s iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

You agree that Company, and not Apple, is responsible for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to Company’s iOS App or your possession and use of Company’s iOS App.

You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

You and Company agree that Apple and Apple’s subsidiaries are third party beneficiaries to the terms of service applicable to Company’s iOS App. Upon your acceptance of the Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as a third party beneficiary thereof.

22. Additional Android Terms

The following additional terms and conditions apply with respect to the Service if used on an Android-powered mobile device (“Android App”):

You acknowledge that these Terms of Service are concluded between you and Company only, and not with Google, Inc. (“Google”). Company, and not Google, is solely responsible for Company’s Android App and the services and Content available thereon.

You agree that your use of Company’s Android App shall be subject to the then-current Android Market Terms of Service.

Google Inc., as provider of the Android Market, shall have no obligation or liability to you with respect to Company’s Android App or these Terms of Service.

You acknowledge and agree that Google is a third party beneficiary to the Terms of Service applicable to Company’s Android App.

23. Revisions; General

Company reserves the right, in its sole discretion, to terminate your access to all or part of the Service, with or without cause, and with or without notice. In the event that any of the Terms of Service are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Service shall otherwise remain in full force and effect. These Terms of Service constitute the entire agreement between Company and you pertaining to the subject matter hereof. In its sole discretion, Company may from time-to-time revise these Terms of Service by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Service, so you are aware of any such revisions to which you are bound. Your continued use of the Service after revisions to these Terms of Service shall constitute your agreement to the revised Terms of Service. Certain provisions of these Terms of Service may be superseded by expressly designated legal notices or terms located on particular pages within the App.

**Please note that all terms, conditions, policies and/or procedures are subject to change without prior notice.

INDEMNIFICATION. UNLESS PROHIBITED BY APPLICABLE LAW, YOU SHALL INDEMNIFY AND HOLD HARMLESS TRACKMATEGPS, ITS AGENTS, SUPPLIERS, LICENSORS, SERVICE PROVIDERS, DISTRIBUTORS, SUB-DISTRIBUTORS, CONTRACTORS, SUCCESSORS OR ASSIGNS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (EACH AN “INDEMNIFIED PARTY”), FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, COSTS, LOSSES AND EXPENSES (INCLUDING REASONABLE LEGAL COSTS AND FEES) ARISING FROM OR RELATED TO ANY CLAIM, DEMAND, COMPLAINT OR ACTION BY A THIRD PARTY ARISING OUT OF OR INCIDENT TO: (A) YOUR ACTIONS OR FAILURE TO ACT UNDER OR RELATED TO THIS AGREEMENT; OR (B) YOUR BREACH OF ANY THIRD PARTY TERMS INCORPORATED HEREIN BY REFERENCE.

LIMITATIONS OF LIABILITY. YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY OF ALL INDEMNIFIED PARTIES TO YOU HEREUNDER OR OTHERWISE IN RESPECT OF THE PRODUCTS EXCEED THE AMOUNT YOU HAVE PAID FOR THE PRODUCTS OR SERVICES OR THE RIGHTS TO USE THE SOFTWARE IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE TIME THE CAUSE OF ACTION AROSE, SUBJECT TO ANY LESSER LIMITATION OF LIABILITY IN ANY TERMS INCORPORATED HEREIN BY REFERENCE (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY TERMS) IF APPLICABLE. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, LOSS OF DATA, BUSINESS INFORMATION OR LOSS OF USE THEREOF, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS, COST OF CAPITAL, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF GOODWILL OR ANY OTHER NON-DIRECT, PECUNIARY, COMMERCIAL OR ECONOMIC LOSS OR DAMAGE OF ANY KIND WHETHER FORESEEN OR UNFORESEEN ARISING FROM OR INCIDENTAL TO THIS AGREEMENT. FOR GREATER CERTAINTY, THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL NOT APPLY TO (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER; OR (B) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

APPLICABILITY. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT WILL APPLY IRRESPECTIVE OF THE NATURE OR FORM OF THE CLAIM, CAUSE OF ACTION, DEMAND, OR ACTION, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN.

TERMINATION. We reserve the right to terminate this Agreement in whole or in part with or without notice if: (a) you materially breach or otherwise materially fail to comply with any provision of this Agreement; (b) we determine that any registration information you submit or any update thereof is not true, accurate, complete or current; (c) you become insolvent or bankrupt; (d) you reorganize your business, make an assignment under or otherwise take advantage as a debtor of, bankruptcy or insolvency laws, including having a trustee or receiver appointed; (e) any steps are taken to wind up or otherwise terminate your existence as a legal entity; or (f) you cease operating your business. You may terminate the grant of rights to use the software or the provision of services by ceasing use of same. Upon any termination of this Agreement: (i) any and all rights granted to you under this Agreement shall immediately cease; (ii) you shall destroy, to the extent practicable, all copies of the software in your possession or control; (iii) if so requested by us, you shall certify in writing that all such copies of the software in your possession or control have been destroyed; and (iv) you shall cease all usage of the services. Upon request we will transmit to you a copy of data stored on our systems as of the date of termination, and we may condition this assistance on payment of reasonable fees and cost reimbursements, based on the size of the database and complexity of the task.

ASSIGNMENT. This Agreement and any rights granted to you under this Agreement may not be transferred or assigned by you, in whole or in part, whether voluntarily, by operation of law, or otherwise, without our prior written consent and any such attempted assignment or transfer shall be null and void, except that you may assign this Agreement in its entirety to a purchaser of all or substantially all of your assets or business or in connection with a merger, amalgamation, reorganization or similar transaction without consent and upon written notice to us. Subject to the foregoing, this Agreement will ensure to the benefit of and be binding upon the respective successors and permitted assigns of you and us. This Agreement may be assigned or novated by us in our sole discretion by way of written notice to you.

CHOICE OF LAW. If your headquarters are located in: (a) the United States of America, then this Agreement will be governed by and construed under the laws of the State of New York without giving effect to its conflict of laws principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Each party hereby irrevocably attorns and agrees to the exclusive jurisdiction of the courts of the State of New York and the U.S. federal courts located in the City of New York for any claim related to this Agreement or the Products and agrees not to bring any action, claim, suit or proceeding against the other party, its affiliates or agents (or any officer, director, or employee thereof) other than in such courts; or (b) anywhere else in the world, then this Agreement will be governed by and construed under the laws of the Province of Ontario without giving effect to its conflict of laws principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Each party hereby irrevocably attorns and agrees to the exclusive jurisdiction of the provincial and federal courts of the Province of Ontario for any claim related to this Agreement or the Products and agrees not to bring any action, claim, suit or proceeding against the other party, its affiliates or agents (or any officer, director, or employee thereof) other than in such courts.

RELATED THIRD PARTY PROVIDER TERMS. Our related third party providers require us to obtain your agreement to certain terms and conditions prescribed by them. The Wireless Provider Terms are set out at the following link and the Other Provider Terms (including cloud storage, mapping and posted road speed provider terms) are set out at the following link. These third party terms are hereby incorporated by reference into and form part of this Agreement and contain license and use limitations; limitations of liability; disclaimers; choice of law, arbitration and forum selection clauses; and other important terms and conditions that affect your rights and obligations. TRACKMATEGPS accepts no responsibility or liability for the services of such providers. By signifying your agreement to this TRACKMATEGPS End User Agreement you are also signifying your agreement to these third party terms.

ENTIRE AGREEMENT. This Agreement constitutes the entire and exclusive agreement between you and us with respect to the subject matter of this Agreement and cancels and supersedes any prior and contemporaneous understandings and agreements between the parties hereto with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between you and us, oral or written other than as expressly set forth in this Agreement and any terms expressly incorporated herein by reference. The headings in this Agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement.

SEVERABILITY. To the extent that any provision of this Agreement is declared by a court or other lawful authority of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and you and we will use our respective best efforts to substitute a new provision of like economic intent and effect for the illegal, invalid or unenforceable provision, and the remainder of this Agreement shall continue in full force and effect with respect to all other provisions.

AMENDMENTS AND WAIVERS. You agree that we may change the terms of this Agreement from time to time by notifying you via our website, email or other means. You agree to accept, and you hereby accept, any changes in Third Party Terms and other terms of this Agreement, unless the changes impose commercially unreasonable disadvantages on you. If a change imposes commercially unreasonable disadvantages on you and we receive a written objection from you within 30 days of the date when you received notice or you should have noticed the change, we may, at our sole option and discretion, (a) reverse such change with the effect that the immediately prior version of this Agreement shall continue to apply to you, or (b) terminate this Agreement and your use of the Products and refund to you, upon receipt of all devices, documentation and deliverables, in good working condition, subject to ordinary wear and tear, in your possession (aa) the amount paid to us for any devices and software, depreciated on a 36 months straight line basis, accounting for your use, and (bb) any prepaid services fees paid to us for time periods after the effective date of the change to which you objected in accordance with this Agreement. No modification, amendment, addition to or waiver of any rights, obligations or defaults shall be effective unless in writing and signed by the party against whom the same is sought to be enforced. One or more waivers of any right, obligation or default shall be limited to the specific right, obligation or default waived and shall not be construed as a waiver of any subsequent right, obligation or default. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights hereunder.

FORCE MAJEURE. Each party shall be relieved of their respective obligations hereunder and will not be liable to the other or to any third party if the affected party is unable or fails to perform any of its obligations under this Agreement, as a result of any fire, explosion, war, riot, strike, walk-out, labour dispute, flood, shortage of water, power, labour, transportation facilities or necessary materials or supplies, default or failure of carriers, breakdown in or the loss of production or anticipated production from plant or equipment, act of God or public enemy, act of war or terrorism, any law, act or order of any court, board, government, state-sponsored actor or other authority, or any other cause (whether or not of the same character as the foregoing) beyond the affected party’s reasonable control, for so long as such cause prevents the affected party from so performing, provided however that the other party may terminate this Agreement if the affected party is unable to perform its obligations for a period of 30 days or more, upon written notice to the other during the time the affected party is prevented from so performing.

GDPR-Specific Data Processing Terms

Unless otherwise specified, any term used below which is defined in the General Data Protection Regulation 2016/679 ("GDPR") shall have the same meaning ascribed to it in the GDPR.

The following GDPR-Specific Data Processing Terms apply to TRACKMATEGPS and you if and to the extent that you have entered into the End User Agreement with TRACKMATEGPS and the GDPR applies based on its terms; if the preceding conditions are met, the processing of any personal data of data subjects in the European Union (“EU”) or in the European Economic Area (“EEA”) that you, as a controller, transfer to us, as a processor, under the End User Agreement (“Your Personal Data”) are covered by these GDPR-Specific Data Processing Terms as part of the End User Agreement. If these conditions are not met, these GDPR-Specific Data Processing Terms do not apply to us and are not a part of the End User Agreement.

You hereby instruct us to process Your Personal Data in accordance with the End User Agreement.

TRACKMATEGPS agrees that it:

processes Your Personal Data only on documented instructions from the controller, including with regard to transfers of Your Personal Data to a third country or an international organization, unless required to do so by EU or Member State law to which TRACKMATEGPS is subject; in such a case, TRACKMATEGPS shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;TRACKMATEGPS shall immediately inform the controller if, in its opinion, an instruction infringes the GDPR or national data protection laws in the EU;
ensures that persons authorized to process Your Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
takes all measures required pursuant to Article 32 of the GDPR (security of processing) in respect of Your Personal Data;
respects the conditions referred to in paragraphs 2 and 4 of Article 28 of the GDPR for engaging another processor in respect of Your Personal Data;
taking into account the nature of the processing of Your Personal Data, assists the controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the controller's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the GDPR;
assists the controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR (relating to security of personal data) taking into account the nature of processing of Your Personal Data and the information available to the processor;
at the choice of the controller, deletes or returns all of Your Personal Data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless EU or Member State law requires storage of the personal data; and
makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller.

If and to the extent you wish to provide instructions or requests to TRACKMATEGPS that are not included in TRACKMATEGPS's regular product pricing, including, without limitation, in the context of audits, inspections or assistance required to be provided under points (e) and (f), TRACKMATEGPS may condition any additional time, materials and efforts on your agreement and payment of reasonable fees and cost reimbursements.

TRACKMATEGPS may add, remove and replace processors subject to TRACKMATEGPS's responsibility for ensuring that all sub processors meet the security requirements undertaken by TRACKMATEGPS. TRACKMATEGPS will use reasonable efforts to provide you with at least 72 hours advance written notice before adding or replacing a processor. Section 26 (Amendments and Waivers) of the End User Agreement shall apply regarding any objections or requests for changes. For a list of TRACKMATEGPS's current processors, please see our Privacy Policy.