This Service Subscription Agreement ("Agreement") is a contract between you and myTrackBuddy applies to your use of myTrackBuddy and any related products including myTrackBuddy SmartTag and services available through myTrackBuddy (collectively the "Service"). You must read, agree with, and accept all of the terms and conditions contained in this Agreement. If you do not agree to be bound by the terms and conditions of this Agreement, please do not use or access this Services.
License Grant and Restrictions
myTrackBuddy hereby grants you a non-exclusive, non-transferable right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement.
You may not upload any content or data that is specifically designed to degrade, overload or stress any component of the Service offered by myTrackBuddy.
You may not access the Service if you are a direct competitor of myTrackBuddy, except with myTrackBuddy's prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Unless with myTrackBuddy's prior written consent, you shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or any part of the software content in any way; (ii) modify or make derivative works based upon the Service or any part of the software content; or (iii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You may use the Service only for your internal business purposes and shall not: (i) send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material harmful to children or infringe third party privacy rights; (ii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (iv) attempt to gain unauthorized access to the Service or its related systems or networks.
You are responsible for all activity, ESPECIALLY WITH REGARD TO EMAIL AND ANY OTHER FORMS OF SPAMMING, occurring under your user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify myTrackBuddy immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to myTrackBuddy immediately and use reasonable efforts to stop immediately any copying or distribution of the software content that is known or suspected by you or your Users; and (iii) not impersonate another myTrackBuddy user or provide false identity information to gain access to or use the Service.
Account Information and Data
You, not myTrackBuddy, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of the content you submitted, and myTrackBuddy shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any content or data. myTrackBuddy, from time to time, will monitor or access data in your account to ensure the decency of the content or for the purpose of software testing and technical support. It is your responsibility to backup data that you have submitted to myTrackBuddy and the data generated from the apps in your account using the utilities provided. myTrackBuddy reserves the right to withhold, remove and/or discard submitted content without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use the Service including submitted materials immediately ceases, and myTrackBuddy shall have no obligation to retain any data that is stored on the system. In any event, you are responsible for backing up all content and data on your own computer or storage device.
Intellectual Property Ownership
myTrackBuddy reserves all right, title and interest, including all related Intellectual Property Rights, the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, Technology or the Intellectual Property Rights owned by myTrackBuddy including trademarks and logos.
Charges and Payment of Fees
In the event of services involving payment, you shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. myTrackBuddy reserves the right to modify its fees and charges and to introduce new charges at any time. You may terminate any account at any time. In most cases, there will be no refund of any sort once the service started. If you have a special case, you must then make a request for the refund and state clearly the issue to myTrackBuddy or a reseller who is responsible for customer service. Provide your account number, user ID and the date of termination. If approved, the amount of refund will be calculated based on the number of months in service for that account times the monthly subscription fee. The total will then be subtracted from the yearly subscription fee and the remaining sum will be the amount of refund. There will be no refund for any myTrackBuddy SmartTags and releted products, only subscription fees. Please allow at least 30 days to process the refund.
Billing and Renewal
For paid services, myTrackBuddy charges and collects in advance for use of the Service. myTrackBuddy will automatically renew and bill you using pre-arranged payment service monthly or annually depending on the type of subscription. The renewal charge will be equal to the fee for the type of subscription of the account when you first subscribed to, unless myTrackBuddy has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis.
myTrackBuddy's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on myTrackBuddy's income. You agree to provide myTrackBuddy with complete and accurate contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, myTrackBuddy reserves the right to terminate your access to the Service in addition to any other legal remedies. Unless myTrackBuddy in its discretion determines otherwise, all payments will be billed in U.S. dollars. If you believe your bill is incorrect, you must contact myTrackBuddy or your reseller in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
Termination and Suspension of Account
1. myTrackBuddy reserves the right to terminate this Agreement and your access to the Service if your account becomes delinquent for over 30 days. If you or myTrackBuddy initiates termination of this Agreement, you will be obligated to pay the balance due on your account. myTrackBuddy reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that myTrackBuddy has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
2. Either party may terminate this Agreement or reduce the number of SmartTag Codes at any time. The access to the accounts ceases immediately upon termination. myTrackBuddy has no obligation to retain and make available content and data to you. You are responsible for backing up all data at all time. If applicable, in the event this Agreement is terminated by myTrackBuddy, excluding delinquent payment, a refund will be made to you extrapolated evenly over the remaining time within 30 days if the service is a paid subscription. In the event that this Agreement is terminated by you, no refund will be given. You must make a request for any refund or subscription issue to myTrackBuddy or your reseller, stating the account number, user ID and the date of termination. The amount of refund will be calculated based on the number of months in service for that account times the monthly subscription fee. The total will then be subtracted from the yearly subscription fee and the remaining sum will be the amount of refund. Please allow 30 days to process the payment.
3. Any breach of your payment obligations or unauthorized use of the myTrackBuddy Technology or Service will be deemed a material breach of this Agreement. myTrackBuddy, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, myTrackBuddy may terminate a free account at any time in its sole discretion. You agree and acknowledge that myTrackBuddy has no obligation to retain any data you have submitted, and may delete such data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
You shall indemnify and hold myTrackBuddy, it's licensors and it's subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of submitted content infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that myTrackBuddy (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release myTrackBuddy of all liability and such settlement does not affect myTrackBuddy's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim. myTrackBuddy shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by myTrackBuddy of its representations or warranties; or (iii) a claim arising from breach of this Agreement by myTrackBuddy; provided that you (a) promptly give written notice of the claim to myTrackBuddy; (b) give myTrackBuddy sole control of the defense and settlement of the claim (provided that myTrackBuddy may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to myTrackBuddy all available information and assistance; and (d) have not compromised or settled such claim. myTrackBuddy shall have no indemnification obligation, and you shall indemnify myTrackBuddy pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
Disclaimer of Warranties
myTrackBuddy MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. myTrackBuddy DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY myTrackBuddy.
Exclusion of Incidental, Consequential and Certain Other Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL myTrackBuddy BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IN THE EVENT OF NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF myTrackBuddy OR IT'S LICENSOR, AND EVEN IF myTrackBuddy HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
myTrackBuddy'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. myTrackBuddy IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
Local Laws and Export Control
myTrackBuddy and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Service, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government for such purposes.
Modification to Terms
myTrackBuddy reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
You specifically agree and acknowledge that you have reviewed the terms in this Agreement. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Service, pursuant to this Agreement. This Agreement shall be governed by Delaware law and controlling United States federal law, without regard to the conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Delaware. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and myTrackBuddy as a result of this agreement or use of the Service. The failure of myTrackBuddy to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by myTrackBuddy in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and myTrackBuddy supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.