TrackAbout Terms of Service

(Last updated this policy April 6, 2017.)

Summary

Welcome to TrackAbout! Our Terms of Service (“Terms”) establish a contract between buyers of our service and TrackAbout so please make sure read and understand them. We have attempted to simplify these terms and write them in “plain English” wherever possible. More formal and specific legal language is used where we believe it is warranted. Our goal is to make this as easy to read as possible while still protecting both parties. These terms together with the terms of your signed Subscription Agreement (together the “Agreement”), shall govern your access and use of the Services. By using the TrackAbout Service, you explicitly agree to these Terms of Service. If you do not agree to these Terms of Service, you may not use the Service.

"We," "our" and "us" refer to TrackAbout, Inc.

"You" refers to Customer.

Definitions

"Affiliate" means, with respect to any Person, any other Person who, directly or indirectly (including through one or more intermediaries), controls, is controlled by, or is under common control with, such Person.

“Applicable Law” means all applicable provisions of (a) constitutions, treaties, statutes, laws (including the common law), rules, regulations, decrees, ordinances, codes, proclamations, declarations or orders of any Governmental Authority; (b) any consents or approvals of any Governmental Authority; and (c) any orders, decisions, advisory or interpretative opinions, injunctions, judgments, awards, decrees of, or agreements with, any Governmental Authority.

"Customer" is the company or entity that is using the Service and all of its Users; to include Users subscribed through TrackAbout’s Follow-On Tracking module.

"Customer Data" means all information submitted by Customer to the Services.

"Governmental Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator, court or tribunal of competent jurisdiction.

"Hardware" means any computer, laptop, tablet, phone, mobile computer, barcode scanner, radio frequency identification device (RFID), telemetry device or other computing device and related accessories used to exchange information with the Services.

"ID Tags" means barcode, radio frequency identification (RFID) or other uniquely identifiable tags that are affixed to assets and that can be read by the Hardware and serves as the update for tracking the status and movement of assets in that Customer's database.

"Person" means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity.

"Privacy Policy" TrackAbout's Privacy Policy is located here: https://corp.trackabout.com/PrivacyPolicy.html.

"Professional Services" means labor time incurred on behalf of a Customer and any other associated costs of providing that service including travel and out-of-pocket expenses.

“Registration Information” means information used to accurately identify and maintain contact with the Customer. This information includes items such as current addresses, email addresses, points of contact and phone numbers for key users and functions within the Customer.

"Service" means TrackAbout's online tracking and rental software and associated add-on modules and mobile apps that are licensed to Customer by TrackAbout including any future changes that TrackAbout may add.

"Statement of Work" an agreement between Customer and TrackAbout for TrackAbout to perform Professional Services or software development at the Customer's request. This agreement will specify the work to be performed and the price for the work.

"Subscription Agreement" means a TrackAbout agreement, estimate, renewal notification or order form executed by Customer and accepted by TrackAbout which specifies the Services subject to the terms of this Agreement

"Subscription Fees" means the fees paid by Customer to TrackAbout for the ongoing use of the Service. This does not include Professional Services, barcode labels, travel costs, shipping fees or any other 'one-time' fees.

“TrackAbout Intellectual Property” means all software code, user interface designs, technical designs and specifications, databases, business processes, discoveries, patents, copyrighted works, TrackAbout logos/artwork, case studies or other inventions which are part of the Service or may be created during fulfillment of this Agreement. This includes any and all ideas that Customer shares with TrackAbout for improvements to the Service.

"Users" means individuals who are authorized by Customer to use the Services, for whom access to the Services has been granted, and who have been supplied user identifications and passwords by Customer (or by TrackAbout at Customer's request). Users may include, but are not limited to, Customers, Customer's customers and suppliers and their affiliates' employees, consultants, contractors and agents.

Changes to the Service

TrackAbout makes periodic updates to the Service. Any changes are done at our discretion and are included as part of this Agreement. Certain features may or may not be available to you based on the TrackAbout modules or editions you have purchased.

Uptime Monitoring

We understand that service interruptions hinder productivity and disrupt your workday. We work hard to keep TrackAbout up and running. We believe that the best way to keep us accountable is with transparency. You can monitor service incidents and subscribe to incident notifications at http://status.trackabout.com.

Limited License

In order for you to use the Service, TrackAbout is granting you a limited license to use the Service as restricted in your Subscription Agreement, this Terms of Service and all Statements of Work. TrackAbout is not selling or licensing you the software outright. If this Agreement is terminated then you must stop all use of the TrackAbout software including any mobile apps or other software downloaded onto any Hardware.

Prohibited Conduct

Generally you agree to be a good citizen of the Service and to not attempt to damage the Service itself or use the Service to attack others. You may not use the Service in violation of any Applicable Law.

You agree that you will use the Service for its intended purpose as an asset tracking system and not use the Service for another purpose such as a platform to attack or hack other software systems. You will not use the system to send out unsolicited emails or spam.

You will not attempt to attack or hack the Service including denial of service attacks or penetration testing without prior written approval from TrackAbout.

You may not republish or resell the Service unless explicitly approved by TrackAbout. The Services made available to you through your signed Subscription Agreement are only for use by the company/entity named in the Subscription Agreement. We allow your customers and partners limited access to your system through the use of the TrackAbout Follow-On Tracking module. You are prohibited from subletting your system to the use of any other Person. User Account and Passwords To access the Services, you must register for a User account. The information you provide in the account registration must be accurate. You agree to update your Registration Information as necessary, including your correct email address, so we may send you notifications and other account-related communications. You are responsible for maintaining the confidentiality of the login names and passwords that you create. You agree to use strong passwords and to maintain the confidentiality of your passwords. You shall be responsible for all uses of your account and login information, whether or not authorized by you. You must notify us of any unauthorized use of your account, login information or password, and you should immediately change your password to prevent further unauthorized use. You grant us the right to use your Registration Information and any other information you provide in connection with the operation of the Service. We may also use the contact information that you submit to provide you with notices and promotional offers as set forth in our Privacy Policy.

Aggregated Statistics and Data Use

We will never share your personally-identifiable information (PII) with a third party without your consent. This includes information like the names, email addresses, phone numbers, fax numbers and street addresses of your customers, vendors and users. This is covered in our Privacy Policy.

We may analyze your Customer Data.. We may use an anonymized version of your Customer Data (with any personally identifiable information removed) and combine it with data from other sources to look for insights. We may share, publish or sell the results of this kind of analysis.

For example: TrackAbout could create and sell report that gives benchmarks for how quickly a given kind of asset is commonly picked up after being delivered to an end customer. This information would be aggregated and made anonymous in such a way that a reader of the report could not identify whether or not your Customer Data was combined to create the report.

Another example: TrackAbout could look across all of our clients and determine which types of equipment require the most maintenance. TrackAbout could then write articles in trade publications or sell reports that contain this aggregated data.

Given the very sensitive nature of rental rates, TrackAbout will not provide this kind of analysis for rental rates without explicit written permission from those companies contributing the data. Please contact us to discuss concerns with any other specific types of data.

Not Responsible for Hardware or the Internet

TrackAbout does not sell Hardware for accessing our Service, but TrackAbout may recommend vendors who do sell Hardware. TrackAbout is not responsible for issues related to the Hardware.

Customer must have Internet access to use the Service. Customer is responsible for providing this Internet access to their Users.

Same Terms for Professional Services

Any Professional Services will be delivered under a specific Statements of Work. These Statements of Work are subject to these same Terms of Service.

Termination and Suspension of Service

Customer may terminate this agreement with 90 days notice before the next renewal date. Once notice is given, the renewal date will become the cancellation date. The customer is still responsible for paying for the remainder of fees until the cancellation date. If notice is not given within 90 days of the renewal date, then the agreement will automatically renew. If you violate these Terms of Service, TrackAbout may immediately suspend or terminate services until such violation is cured by you to TrackAbout’s reasonable satisfaction. If you believe TrackAbout is in breach of this Agreement, you must notify TrackAbout and specify in detail the nature of the breach. TrackAbout shall undertake to cure the breach within ten (10) days of such notification and, if TrackAbout refuses or is unable to cure the breach within a reasonable time after undertaking such cure, TrackAbout will provide a pro rata refund of the remaining contract that was paid for but not used, as your sole remedy.

Once your use of TrackAbout Services has ended, TrackAbout may delete the stored Customer Data. If you want an export of your Customer Data, this will be done on a Statement of Work at TrackAbout's normal Professional Service rates.

Late Payment Remedies; Disputed Invoices

Prompt payment to TrackAbout is required of all Customers. Any late payments will be subject to a late fee of 1.5% per month or the largest fee allowed by law, whichever is lower. If any invoice is over 30 days late, TrackAbout reserves the right to suspend the Customer's account, disable some of its features and/or notify Users (beyond just the billing contact) that the account is past due. If any invoice is over 60 days late, TrackAbout reserves the right to change the billing terms of all future invoices to 'due upon receipt'. If any invoice is over 90 days late, TrackAbout reserves the right to terminate your account and delete the Customer Data in your account. If any invoice is in dispute, both parties will make a good faith effort to resolve the issue as quickly as possible. While in dispute, the normal late fees above do not apply. If not disputed within 30 days of receipt, the above late payment remedies will apply to an invoice.

Location of Customer Data and Your Use

TrackAbout may operate its service on server infrastructure located anywhere in the world and are controlled from offices in the United States. Customer Data may be stored on one or more of these servers in one or more parts of the world. You are responsible for compliance with any local data protection laws that may affect you.

Intellectual Property

TrackAbout owns all title to all Intellectual Property related to Services or Professional Services. TrackAbout and Customer may discuss ideas for improvements or additions to the Service. TrackAbout owns the title to all such ideas that end up as part of the Service. TrackAbout also owns title to any software, reports or other works created for Customer as Professional Services unless there is a specific provision to the contrary added to the Statement of Work to change this.

You may not redistribute TrackAbout’s Intellectual Property without our express written consent.

Warranty

THE SERVICE IS PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. TRACKABOUT MAKES NO WARRANTY THAT THE SERVICE IS COMPLETE, SUITABLE FOR YOUR PURPOSE, OR ACCURATE. TRACKABOUT HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED, STATUTORY OR OTHER WARRANTIES WITH RESPECT TO THE SERVICE, OR THE AVAILABILITY OF THE FOREGOING, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THE ENTIRE RISK AS TO RESULTS OBTAINED THROUGH USE OF THE SERVICE RESTS WITH YOU AND TRACKABOUT MAKES NO REPRESENTATION OR WARRANTY THAT THE AVAILABILITY OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT SERVICE WILL BE ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED.

LIMITATION OF LIABILITY

TRACKABOUT SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES ARISING OUT OF OR CONNECTED TO YOUR USE OF, OR INABILITY TO USE THE SERVICE INCLUDING, WITHOUT LIMITATION, ANY AND ALL DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY OR STATUTORY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, PROFITS, REVENUE, DATA., GOODWILL OR FOR ANY COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), EVEN IF TRACKABOUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY UNDER WHICH DAMAGES ARE SOUGHT, WHETHER IN BREACH OF CONTRACT OR IN TORT, INCLUDING NEGLIGENCE.

IN NO CASE WOULD TRACKABOUT'S LIABILITY FOR THE SERVICE EVER EXCEED THE AMOUNT THAT CUSTOMER HAS PAID TRACKABOUT FOR THE SERVICE IN THE PREVIOUS TWELVE (12) MONTHS.

IN NO CASE WOULD TRACKABOUT'S LIABILITY FOR A STATEMENT OF WORK EVER EXCEED HALF (50%) OF THE AMOUNT THAT CUSTOMER HAS PAID TRACKABOUT ON THAT STATEMENT OF WORK.

Indemnification

TrackAbout will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) of a third party (collectively, "Losses") incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer alleging that the use of the Services as permitted hereunder infringes any copyright, trademark, or misappropriation of a trade secret of a third party, provided that Customer (a) promptly gives TrackAbout notice of the claim, suit, action, or proceeding; (b) gives TrackAbout sole control of the defense and related settlement negotiations; and (c) provides TrackAbout with all reasonably available information and assistance necessary to perform TrackAbout's obligations under this paragraph.

Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services in violation of this Agreement or applicable law, (b) use of the Services after TrackAbout notifies Customer to discontinue use because of an infringement claim, or (c) modifications to the Services made other than by TrackAbout.

If the Services are determined by a court of competent jurisdiction to infringe the rights of other Persons, TrackAbout will, at its own expense, in its sole discretion, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such claim without cost to Customer; (b) to replace the Services with a non-infringing Services, or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the Subscription Fees paid for under the Agreement for the terminated portion of the Agreement. The rights and remedies granted Customer under this section state TrackAbout's entire liability, and Customer's exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.

Severability

The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.

Assignment

Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Agreement in its entirety (including all Statements of Work), without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer will keep its billing and contact information current at all times by notifying TrackAbout of any changes. Any purported assignment in violation of this section is void. A party's sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party's election, termination of the Agreement upon written notice to the assigning party. In the event of such a termination by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Relationship of the Parties; No Third Party Beneficiaries

The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Agreement.

Force Majeure

Neither party will be liable for any loss or delay (including failure to meet any service level commitment) resulting from any unforeseen event, including, but not limited to, denial-of-service attacks, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving TrackAbout employees), internet service provider failure or delays, civil unrest, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Service date will be extended to the extent of any delay resulting from any force majeure event.

Governing Law

This Agreement shall be governed in accordance with the laws of the State of Pennsylvania and any controlling U.S. federal law.

Venue; Waiver of Jury Trial; Fees

The state and federal courts located in Allegheny County, Pennsylvania will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Contract. In any action or proceeding to enforce rights under the Contract, the prevailing party will be entitled to recover its reasonable costs and attorney's fees.

Changes to these Terms of Service

As our business evolves, we may change these Terms of Service from time to time. If we do, we will announce the change on our website and/or email you.

If we make a material change to the Terms of Service, we will provide Customer with reasonable notice prior to the change taking effect,. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Contract will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer's acceptance of any revised terms and conditions.

Entire Agreement

This Agreement, including all exhibits and/or Statements of Work, represent the entire agreement, supersedes all prior agreements, and represents the final expression of the Agreement. Under no circumstances will any administrative document issued by Customer in connection with this Agreement modify, alter, or expand the rights, duties or obligations of the parties, or modify the Agreement in any way. The Agreement will not be modified or amended, except when both parties have expressly agreed in writing and signature, or by a properly executed Statement of Work.