Trak iT® Wireless Inc. welcomes you as a valued customer. By logging into your account youhave hereby entered into an agreement with Trak iT® Wireless Inc. This agreement representsthe governing terms and conditions under which Trak iT® Wireless Inc. makes its servicesavailable to the Customer. This Agreement also represents the complete agreement andunderstanding between Trak iT® Wireless Inc. (hereinafter referred to as "Provider") and ourCustomer (hereinafter "Customer" or "You"). At any and all times during the term of thisAgreement, you must also comply with the Acceptable Use Policy and any and all other policiesadministered by Provider (collectively "terms and conditions"). The terms and conditions areoften updated so please take the time to carefully read all of the terms and conditions wheneveryou browse through the website or log into your account.
Provider will provide you with the services corresponding with the payment and service plan asoutlined in your service agreement. Your use of any of the services are subject to your strictadherence to this Agreement, the Acceptable Use Policy and all other terms and conditionsadministered by Provider. The account as set up for you shall be used only for legal purposesunder all applicable international, federal, state/provincial, and local laws. These services are forthe exclusive use of the Customer or for any authorized user of the account and does not extendto any other third party or entity. Customer may not resell any of the services to third parties,unless otherwise approved by Provider or both parties have entered into a reseller agreement(separate agreement). In the event that Provider acts a reseller to the Customer wherebyproviding Customer with hardware, software or other equipment manufactured by third parties,Customer shall not have any claims against Provider for any malfunctions, defects, alterationsthat may occur with this third-party equipment. Instead the Customer shall seek any remediesdirectly from the manufacturer. Nevertheless, the Customer shall only use the Services and thethird-party equipment in accordance with the terms and conditions contained herein and shallnot resell, transfer or export any of the third party equipment in violation of any US, Canada orforeign laws.
- Limited Liabilities.
Provider will utilize its best efforts to maintain acceptable performance of the contractedservices, but Provider makes absolutely no warranties whatsoever, express or implied, includingwarranty of merchantability or fitness for a particular purpose and non-infringement of third-partyrights. Provider cannot guarantee continuous service, service at any particular time, or integrityof data stored or transmitted via its system or via the Internet. Provider will not be liable for theinadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored onits system. Provider shall not be liable to Customer or any of its customers for any claims ordamages which may be suffered by Customer or its customers, including, but not limited to,losses or damages of any and every nature, resulting from the loss of data, inability to accessInternet, or inability to transmit or receive information, caused by, or resulting from, delays,non-deliveries, or service interruptions whether or not caused by the fault or negligence of Provider.In no event shall Provider be liable to Customer for any indirect, special or consequentialdamages or lost profits arising out of or related to this Agreement or the performance or breachthereof. The aggregate, total liability of Provider under this Agreement, if any, shall in no event orcircumstances exceed the total amount actually paid by the Customer hereunder. This provisionshall survive this Agreement.
Customer agrees that it shall defend, indemnify, save and hold harmless from any and alldemands, liabilities, losses, costs, claims, including reasonable attorney's fees, ("Liabilities")against Provider, its agents, its customers, servants, officers, employees, that may arise or resultfrom any services provided, performed or agreed to be performed or any product sold byCustomer, its agents, employees or assigns. Customer agrees to defend, indemnify and holdharmless Provider against liabilities arising out of any injury to person or property caused by anyproducts sold or distributed in connection with Provider's services.
- Invoicing and Service Fees.
Invoicing for any of the services shall be as follows: Customer shall be billed in accordance withthe terms contained in their agreement or VAR agreement as applicable. In the event thatCustomer fails to make payment as required, Provider reserves the right, in its sole, absoluteand unfettered discretion, to discontinue service to Customer without notice or liability for actualcompensatory or consequential damages. All costs and expenses, including without limitation,late fees or bank charges, that Provider may incur as a result of termination or discontinuance ofservice for the reasons stated herein shall be borne by the Customer. Nonpayment by Customershall entitle Provider to unilaterally terminate this agreement, in which case the provisions ofparagraph 1, 2, 4, 5, & 6 shall continue in full force and effect, and/or, at its sole discretion,Provider may discontinue or suspend service to Customer until payment is made. A Customerchoosing to reconnect may incur reinstatement fees. Reinstatement and setting up a newaccount shall only take place once Customer has made all of its outstanding payments and hasbrought its delinquent account current.
- Software Terms.
Provider shall grant customer a non-exclusive non transferable, limited license to use suchlicensed software only and solely to the extent required to use the service. If Provider is thelicensor, Customer shall in no event be entitled to claim title to or any ownership interest in anyof the licensed software (or derivations or improvements thereto) and Customer shall executeany documentation reasonable required by Provider. To memorialize Provider's existing andcontinued ownership of licensed software. If a third party is the licensor, Customer's entitlementshall be limited solely to the license offered by and such third party. Customer further agrees thatis shall not copy, reverse engineer, decompile, disassemble, sell, lease, license or sublicensethe licensed software; or create, write or develop any derivative software or any other softwareprogram, based on the licensed software.
All cancellation in accordance with the terms and conditions contained herein must be submittedin writing to Provider via written communication. All Customer accounts must be paid in fullbefore the transaction will be considered complete. All refunds for unused time shall be proratedexcept (i) if Customer receives free months of services, the free months of services will not becalculated in the prorated refund and (ii) down grade of services does not mean a proratedrefund to Customer but rather it will be applied to the Customer account for use of futureservices.
- Term and Termination.
This Agreement will commence upon the sign-up date and continue for the term of 1 (one) year.The Company may, at its option, immediately terminate this Agreement upon the followingconditions (i) a payment default; (ii) Customer's failure to comply with any of the terms andconditions, including this Agreement or the Acceptable Use Policy; or (iii) Customer's tamperingwith the services and products of Provider. Any such termination may be effected without priorwritten notice. Customer may terminate this agreement in the event that Provider is in materialbreach of its obligations under this Agreement and Provider has failed to cure within ten (10)business days from the date Notice is received from Customer indicating the breach. Upontermination, Customer shall pay any and all charges due and owing on the date thereof relatedto the Services, remove from Provider premises all property owned by Customer, if applicable,otherwise it will be removed, and return to Provider any property that was provided by Providerto Customer. The rights and obligations of both parties, which by their nature would continuebeyond the termination of this Agreement, including without limitation those relating toconfidentiality, payment of charges, limited liability and indemnification shall survive suchtermination. Termination of services for any of the reasons contained herein shall not entitleCustomer to a refund of any of the fees paid to Provider. Provider may also terminate thisAgreement at its convenience at which time Customer will only be entitled to its prorated amountof the fees which have been pre-paid (not including set-up fees or provisioning fees, whereapplicable). Please note: transferring data/GPS reporting away from Provider does not constitutean automatic cancellation of Customer's account. Customer must follow the cancellationprocedures as indicated on the website or in this Agreement. (a) Effect of Termination. Customershall comply with all applicable procedures related to equipment and software removal orreinstatement upon termination. If the Customer's service is disconnected prior to the end of theterm of this Agreement, the Customer shall be charged an early termination fee equal to the pro-rated amount of the monthly/annual fees remaining in the term of this Agreement less the set-upfees, as per the attached Service Order Form. Early termination fee shall apply in all casesexcept in the following: (i) in the event the Customer terminates its services due to a materialbreach by Provider, or (ii) if Provider must discontinue service to Customer due to any reasonother than the breach of this Agreement by the Customer.
Provider reserves the right to make changes, modifications, updates to the Terms andConditions at any time with or without notice. Changes will be posted on the website, so weencourage all Customers to review these terms and conditions each time you visit our web siteto assure that you understand our existing usage policies.
- Force Majeure.
Except with respect to accrued payment obligations, neither party shall be liable, nor shall anycredit allowance or other remedy be extended, for failure of performance or equipment due tocauses beyond such party's reasonable control, including but not limited to: acts of God, fire,flood or other catastrophe; any law, order, regulation, direction, action or request of anygovernmental entity or agency or any civil or military authority; national emergencies,insurrections, riots or wars, unavailability of rights-of-way or materials; or strikes, lock-outs, workstoppages or other labor difficulties, provided however, the party to which the force majeureevent has happened shall use commercially reasonable efforts to eliminate such an event.
- Entire Agreement and Severability.
This instrument constitutes the entire agreement between the parties, and represents thecomplete and entire understanding of the parties with respect to the subject matter contained inthis agreement. This instrument supercedes any other agreement or understanding between theparties, whether written or oral. In the event that any term or provision of this instrument is heldby a court of competent jurisdiction to be unenforceable, then the remaining provisions of thisinstrument and the agreement which it evidences, shall remain in full force and effect. Theparties hereto intending to be legally bound hereby, and in consideration of the covenants andagreements contained herein, do hereby execute this instrument, with each party warrantingtheir ability to enter into this agreement for the person or entitle herein named as a party hereto.Provider's failure to enforce any provision of this Agreement shall not be construed as a waiverof any provision or right. This provision shall survive the termination of this Agreement.
Provider may assign this Agreement and/or any of its interest without Customer's prior consent.Any such assignment, however, will not change the obligations of Provider to Customer.Customer will not assign, sell or otherwise transfer its rights or obligations under this Agreementwithout prior written consent of Provider. Any assignment or transfer prohibited by this provisionwill be void.
The parties recognize that they will have access to confidential proprietary information and ortrade secrets of the other party. Customer specifically acknowledges that the services constitutevaluable trade secrets of the Provider. Accordingly, the parties agree that all of the terms andconditions, services and products and all other non-public information related to the foregoingshall be kept in the strictest confidence and shall not be revealed to any third parties without theprior written consent from the other party. This provision shall survive the termination of thisagreement. The parties agree that they will not attempt to copy or in any way alter, re-engineeror otherwise tamper with any of the confidential information.
- Intellectual Property.
Customer represents and warrants that the Customer's use of the services shall not infringe theintellectual property or other proprietary rights of Provider or any other third party. Customerfurther acknowledges that all right, title and interest in any and all technology, including thesoftware that is part of or is provided with the Services and any trademarks or service marks ofProvider is vested in Provider or its licensors. Customer shall have no interest in any of theIntellectual Property of Provider. Customer shall not copy, translate, modify, distribute ordisseminate the Intellectual Property or to use it in a manner other than for the Services or granta third party to do so. Nothing contained herein shall waive a Customers right that may havealready existed with a third-party software licensor.
- Customer Data.
Customer shall remain responsible for its content residing on the Provider servers except asotherwise agreed upon with Provider, for the backup hereof. It is the sole responsibility of theCustomer to maintain and obtain backups of all data collected. It is recommended that monthlyor quarterly full history reports are run and downloaded by Customer. Upon service cancellation,Customer will no longer have access to it’s data stored on Provider servers.
Each party represents and warrants that it has the right and authority to enter into thisAgreement and that by entering into this Agreement it will not violate, conflict with or cause amaterial default under any other Agreement. Customer represents that they are 18 years of ageand have the legal capacity to enter into this Agreement or otherwise have signed up forservices under parental/adult guidance supervision and approval.
Provider as referenced herein are service marks of Provider and shall not be used without theprior written permission of Provider. Provider claims copyright interest in all original content orworks provided by Provider on its web site, If any pages, information or content is copies it mayonly be copied for non-commercial uses and Provider shall, in any event, retain all copyright andother proprietary interests therein. Other product company names as they may appear on theProvider web site remain the trademarks of its respective owners.
Any rights not expressly granted herein are reserved.
Customer acknowledges that she/he has read and understands this Agreement (including anyon line orders forms, attachments, schedules, addenda and amendments) and is not enteringinto this Agreement on the basis of any representation not expressly set forth in it. Customerfurther acknowledges and accepts that this entire Agreement and its attachments are provided inthe English language only.
- Copyright Notice.
Copyright ©2019 Provider all rights reserved.
- Hardware as a Service – HaaS.
**The following subsections are only apply to clients who have chosen the HaaS model,Hardware which is included in the monthly price of the Service.**
- Term and Renewal
Customer shall have access to the Service for 36-months unless this Agreement terminates earlier inaccordance with its terms.This Agreement shall automatically renew for successive 1-month terms unless Customer informsProvider of cancellation a minimum of 30 days before the end of the initial 36-month term.
In the event that Customer cancels the Service prior to the expiry of the first 36-months, Customer will berequired to pay a cancellation fee equal to the monthly price times the number of months remaining onthe initial 36-month term.There shall be no provision or credit for prorated access to the Service for any unused term, be it theremainder of the initial 36-month term, or any single full month thereafter.Customer must return the Hardware to the Provider. In the event that Hardware is not returned inworking condition, Customer will pay for the device(s) to Provider in addition to the cancellation fees.
- Plan Option after 36 Months
At any time after the initial 36-month term, Customer may continue to pay for Services. At such time,Hardware will remain in warranty by Provider.
Hardware shall be free from defects in material and workmanship and operate with the System for theduration that the Customer continue to pay for Services at the agreed upon Price. Customer must notifyProvider if the Equipment is not in conformity with this limited warranty during the stated warranty period.Provider’s sole obligation, and Customer’s sole remedy, under this limited Equipment warranty is, atProvider’s option, the repair, replacement or correction of any non-conforming Equipment or part thereof.OTHER THAN THE WARRANTY ABOVE, THIS AGREEMENT DOES NOT INCLUDE ANYWARRANTIES, EXPRESS OR IMPLIED, BY OR ON BEHALF OF RESELLER OR PROVIDER OR ANYENTITY GRANTING LICENSE RIGHTS RELATING TO THE SYSTEM.