IMPORTANT -- BY LOGGING INTO THE MOBILETRAQ SERVICE YOU REPRESENT THAT YOU HAVE COMPLETE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY. THE TERM "YOU" IN THIS AGREEMENT MEANS YOUR COMPANY AND ALL OF ITS EMPLOYEES. THE TERM "MOBILETRAQ" IN THIS AGREEMENT MEANS MOBILETRAQ AND/OR EBLOX, INC., THE COMPANY WHICH DEVELOPS, OWNS, AND OPERATES THE MOBILETRAQ SERVICE. YOU ARE AGREEING TO ALL THE TERMS OF USE (THE "SERVICE AGREEMENT" OR "THIS AGREEMENT"). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT LOGIN TO THE SERVICE.
Terms and Conditions
1. The Service
The Service consists of a browser interface, data encryption, data transmission, data access and data storage. As used in this Agreement the terms "You" and "Yours" encompasses each user accessing the Service by means of a valid account established by You, including any and all employees of your company. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while using the Service. mobileTRAQ makes no guarantees as to the continuous availability of the Service or of any specific feature(s) of the Service. mobileTRAQ will inform You of any significant changes to the Service or the terms and conditions of this Agreement that it may make from time to time.
2. Use of Proprietary Software
mobileTRAQ grants to You subject to the terms and conditions of this Service Agreement, an individual, personal, non-sub licensable, non-exclusive and non-transferable license to use mobileTRAQ's proprietary Software ("mobileTRAQ Software"), in object code form only, and only in accordance with the applicable end user documentation, if any, and solely in conjunction with this Service Agreement. Neither You or any employee of your company will, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the mobileTRAQ Software; modify, translate, or create derivative works based on the mobileTRAQ Software; or rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the mobileTRAQ Software; use the mobileTRAQ Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels on the mobileTRAQ Software. Because the mobileTRAQ Software is proprietary, You agree not to publish or disclose to third parties any evaluation of mobileTRAQ's Software without mobileTRAQ's prior written consent. You acknowledge that mobileTRAQ retains exclusive ownership throughout the world of all mobileTRAQ Software, any portions or copies thereof, and all rights therein. Upon termination of this Service Agreement for any reason, this License will terminate, and You, and any user accessing the Service by means of a company account, if applicable, will cease to use or have access to the mobileTRAQ Software.
3. Restrictions and Policies
A. General Use. You agree not to transmit or permit Your employees to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind. You will only use the Service for lawful purposes, in compliance with all applicable laws including, without limitations, copyright, trademark, obscenity and defamation laws. Unlawful activities may include (without limit) storing, distributing or transmitting any unlawful material, attempting to compromise the security of any networked account or site, or making direct threats of physical harm. You will not use the Service in any way for spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such. You hereby agree to defend, indemnify and hold mobileTRAQ harmless against any claim or action that arises from Your use of the Service in an unlawful manner or in any manner inconsistent with the restrictions and policies stated herein.
B. Privacy Policy and Confidentiality. It is mobileTRAQ's policy to respect the privacy of its users. mobileTRAQ provides information such as your name, address, and credit card number to organizations (such as credit verification and billing services) to ensure that we receive proper payment for our services. mobileTRAQ will not share, rent, sell, or trade personal information (including email addresses) that identifies our customers or users to third parties. mobileTRAQ will not share, rent, sell, or trade data contained in Your account. However, mobileTRAQ may use this information to contact You to ensure that You are satisfied with mobileTRAQ products or services, learn about any ideas you may have to improve our offerings, call your attention to additional offerings or services provided by mobileTRAQ, and communicate other information that mobileTRAQ believes will be useful. In addition, mobileTRAQ may share email address and other information required to ensure that mobileTRAQ channel partners and contractors can provide service and support to you.
User and Account Data given to us are considered confidential. mobileTRAQ may occasionally ask You to provide demographic or personal preference data. If You elect to provide such data, mobileTRAQ may use them to analyze the characteristics of MobileTRAQ customers and visitors to the mobileTRAQ Web site. mobileTRAQ may also use such data to customize the specific information provided to You, or tailor it to better meet Your needs. mobileTRAQ may share non-individual identifying information aggregated from such data with third parties without notifying you. mobileTRAQ's privacy policy is subject only to mobileTRAQ's obligation to comply with applicable laws and lawful government requests and to protect iitself. mobileTRAQ reserves the right to contact users of the Service via email or other means to inform them of their account status or changes or alterations to the service, or to inform them about additional offerings or services being provided or contemplated. Users may at any time request that they not receive informational email messages not related to their account activity or current use of the service by sending their name and address to remove@mobileTRAQ.com. mobileTRAQ reserves the right at any time to change its privacy policy upon thirty (30) days notice to users, which notice may be sent by email.
C. Data Backup and Security. mobileTRAQ shall use all reasonable efforts to protect Your data behind a secure firewall system, to conduct daily data backups, and to store weekly full-system backup in a separate, fire-safe facility. mobileTRAQ shall use reasonable, industry-accepted policies and systems to protect Your data from unauthorized access by third parties, however, mobileTRAQ makes no and hereby disclaims all representations or warranties in that regard. You hereby release, acquit and hold mobileTRAQ harmless from all loss, cost, damage and liability incurred as a result of a third party's unauthorized access and use of Your data (including, without limitation, personal and financial information).
4. Support
mobileTRAQ, or its designee(s), shall provide telephone and email support between 8:00am and 6:00pm (Central time zone) Monday-Friday, except on mobileTRAQ, or designee(s), holidays, but has no obligation to provide You with hard-copy documentation, upgrades, enhancements, modifications, or other support unless specifically contracted for.
5. Provision of Contact and Billing Information and Payment of Fees
If the terms of Your mobileTRAQ Online account require You to pay for the Service, You agree to provide mobileTRAQ with accurate billing information and with truthful, accurate, and complete contact information, including Your legal name, company name, street address, email address, and telephone number, and to update this information within 30 days of any change to it. If the contact information You have provided is false or fraudulent, mobileTRAQ reserves the right to terminate Your access to the Service immediately without any obligation to return Your data. You agree to pay mobileTRAQ the then applicable fees (the "Fees") by a payment method to be determined by mobileTRAQ in its sole discretion (credit card, invoice, purchase order, prepayment or other payment method). mobileTRAQ reserves the right to change the form of payment upon reasonable prior notice to You.
All fees include access to the mobileTRAQ service [as described on website]. Applicable fees for additional services are available by contacting mobileTRAQ. mobileTRAQ reserves the right to change the Fees, applicable charges and usage policies and to institute new charges at any time, upon at least thirty (30) days prior notice to You (which may be sent by email). mobileTRAQ allocates up to 250 MB of database storage as part of your basic service fee. The Fees will be charged in advance on the anniversary of Your signup date ("Billing Date") based on your selected payment schedule. Payment by fraudulent means will result in immediate and permanent termination of the account, as well as possible collection efforts and criminal penalties.
For credit card payments, Your account will be considered delinquent if Your credit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid at the beginning of the next billing cycle. For invoices, full payment for invoices issued in any given month must be received by mobileTRAQ within thirty (30) days after the mailing date of the invoice, or Your mobileTRAQ account will be considered delinquent. Your access to the Service may be suspended if Your account is delinquent. mobileTRAQ may impose a charge to restore archived data from delinquent accounts. Unpaid charges are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Any account which is suspended for more than 30 days will be terminated without any obligation on the part of mobileTRAQ to maintain Your data.
If You believe mobileTRAQ has billed You incorrectly, You must contact mobileTRAQ in writing no later than thirty (30) days after the Billing Date on the first billing statement in which the error or problem appeared, to be eligible for any appropriate adjustment or credit.
6. Passwords and Security
You will choose or be given all applicable passwords to use in connection with the Service. You are entirely responsible for maintaining the confidentiality of Your passwords and account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by You). Furthermore, You are entirely responsible for any and all activities that occur under Your account (including, if applicable, the accounts of each user accessing the Service by means of an account established by You), and You shall ensure that You exit from Your account at the end of each session. You shall notify mobileTRAQ immediately of any unauthorized use of Your account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by You) or any other breach of security. mobileTRAQ cannot and will not be liable for any loss or damage arising from Your failure to comply with these requirements.
7. Termination
This Service Agreement is automatically renewable based on your selected payment schedule unless either party requests change or termination. Either party may reduce the level of service or terminate this Service Agreement by notifying the other party in writing at least thirty (30) days in advance of the termination date. mobileTRAQ, in its sole discretion, may terminate your use of the Service if You fail to comply with this Agreement. If You have purchased the Services, You will pay in full for the Service up to and including the last day of the current billing cycle associated with your selected payment schedule. To cancel the Service or reduce the level of service provided by mobileTRAQ (if available), You must contact mobileTRAQ in writing. All such requests received prior to ten (10) days of the end of the customer billing cycle will incur no additional charges. Requests for cancelled or reduced service received within ten (10) days of the end of the customer billing cycle may incur one additional month of billing charges. mobileTRAQ will remove the data of an account after termination. mobileTRAQ may, but is not obligated to, delete archived data, but will not do so until thirty (30) days after the termination of this Agreement. mobileTRAQ reserves the right to cease offering the Service and remove all data to no-charge users having no activity on the Service within the sixty (60) day period prior to such cessation.
Upon expiration or termination, You will immediately cease all use of the Service, including the mobileTRAQ Software and any documentation. You are entitled to receive a back-up of Your data, subject to then current fee for the Data Delivery Service. Delinquent accounts must be brought to good standing within 15 days of termination in order to receive data. The following provisions of this Service Agreement shall survive termination or expiration of this Agreement: Section 2 (regarding mobileTRAQ's ownership), 3, 5 (regarding payment obligations), 7, 8, 9, 10 and 12. Termination is not an exclusive remedy and all other remedies will be available whether or not the license granted herein is terminated. Notwithstanding the foregoing, if You are dissatisfied with the Service, the materials available on or through the Service, or with any of mobileTRAQ's terms and conditions, Your sole and exclusive remedy is to discontinue using the Service.
8. Warranty and Disclaimer
THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND MOBILETRAQ DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. MOBILETRAQ DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM USE OF THE SERVICE.
9. Limitation of Liability
MOBILETRAQ'S TOTAL LIABILITY WITH RESPECT TO THE SUBJECT MATTER OF THIS SERVICE AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY YOU TO MOBILETRAQ FOR THE SERVICE UNDER THIS SERVICE AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. NEITHER MOBILETRAQ NOR ITS LICENSORS SHALL BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT), WHETHER OR NOT FORESEEABLE AND EVEN IF MOBILETRAQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. U.S. Government Matters
You may not remove or export from the United States or allow the export or re-export of any part of the Software or applicable documentation, if any, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation licensed in this Service Agreement are "commercial items" and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Service Agreement.
11. Third Party Linking
mobileTRAQ may, at its election, provide links from the Service to other World Wide Web sites or resources. Because mobileTRAQ has no control over such sites and resources, You acknowledge and agree that mobileTRAQ is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that mobileTRAQ shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
12. Miscellaneous
This Agreement is between mobileTRAQ and You, and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any user accessing the Service by means of an account established by You). The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by You except with mobileTRAQ's prior written consent. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. YOU AND MOBILETRAQ AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN THE COUNTY OF TRAVIS IN THE STATE OF TEXAS. You and mobileTRAQ agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous or contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and You do not have any authority of any kind to bind mobileTRAQ in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. It is the express will of the parties that this Agreement and all related documents have been drawn up in English.