Business Terms of Service
This Agreement between you (“you,” “your,” or “Customer”) and Spytec GPS, Inc. (“Spytec” or the “Company,” or “us”) sets forth the terms and conditions that apply to your use of the GPS-based Services (as defined herein) provided by Spytec, unless otherwise subject to an express written agreement between you and Spytec expressly superseding the terms herein. Subject to the Spytec GPS Business Order Form (the “Order Form”) and this Spytec GPS Business Terms of Service (collectively, the “Agreement”), Spytec shall provide the Services to you. Customer and Spytec shall each be a “party” or “Party” and shall collectively be the “parties” or “Parties”. By ordering or using Devices, or subscribing to or using Services, you hereby agree to the following terms and conditions:
IMPORTANT: USE OF A GPS TRACKING DEVICE AND RELATED TRACKING SERVICES AND SOFTWARE IS SUBJECT TO VARIOUS LAWS, REGULATIONS AND ORDINANCES, WHICH MAY VARY DOMESTICALLY AND INTERNATIONALLY DEPENDING ON THE LOCATION OF THE DEVICE AND USER. YOU REPRESENT AND WARRANT THAT YOU, YOUR COMPANY, AND ALL PERMITTED USERS, SHALL COMPLY WITH ALL SUCH LAWS. PLEASE CONSULT WITH AN ATTORNEY REGARDING SUCH LAWS IF YOU HAVE ANY QUESTIONS.
DUE TO THE INHERENT NATURE OF GPS TECHNOLOGY AND DEPENDENCE UPON OTHER TECHNOLOGIES THAT MAY BE PROVIDED BY THIRD PARTIES, NO GUARANTEE CAN BE MADE AS TO THE FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE USE OF ANY DEVICES, SERVICES, PLATFORM OR API.
CUSTOMER UNDERSTANDS AND AGREES THAT SPYTEC HAS NO CONTROL OVER AVAILABILITY OF SERVICE ON A CONTINUOUS, UNINTERRUPTED BASIS, IN LIGHT OF FACTORS THAT MAY AFFECT THE SERVICE, MANY OF WHICH MAY BE OUTSIDE SPYTEC’S CONTROL, INCLUDING, WITHOUT LIMITATION: (I) EQUIPMENT DAMAGE OR MALFUNCTIONS; (II) PERIODIC MAINTENANCE PROCEDURES OR REPAIRS WHICH SPYTEC MAY UNDERTAKE; (III) LOCATION-BASED INTERFERENCE WITH GPS SIGNAL; (IV) CELLULAR SERVICE COVERAGE AND CONNECTIVITY OR (V) CAUSES BEYOND THE CONTROL OF SPYTEC OR THAT ARE NOT REASONABLY FORESEEABLE, INCLUDING, WITHOUT LIMITATION, INTERRUPTION OR FAILURE OF TELECOMMUNICATION OR DIGITAL TRANSMISSION LINKS, HOSTILE NETWORK ATTACKS, NETWORK CONGESTION OR OTHER FAILURES. NOTE THAT EVEN WHEN SERVICE IS FULLY FUNCTIONING, LOCATION CHECKS ARE NOT CONTINUOUS, BUT INTERMITTENT, WITH A PERIOD BETWEEN PINGS TO THE DEVICE THAT MAY BE BETWEEN SEVERAL SECONDS TO SEVERAL MINUTES.
CUSTOMER UNDERSTANDS AND AGREES THAT SPYTEC HAS LIMITED ITS LIABILITY, INCLUDING IN CONNECTION WITH THE DEVICES AND SERVICES INCLUDING WITH REGARD TO ACCESS OUTAGES OR ERRORS. CUSTOMER SHALL NOT BE ENTITLED TO ANY SETOFF, DISCOUNT OR OTHER CREDIT FOR ANY INTERRUPTION IN SERVICES SET FORTH HEREIN. PLEASE SEE THE SECTION BELOW ENTITLED LIMITATION OF LIABILITY FOR FURTHER INFORMATION CONCERNING THE LIMITATIONS OF LIABILITY.
“Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Spytec in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“API” means the application programming interface offered by Spytec in connection with GPS tracking services.
“Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services, Platform or Devices under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services, Platform or Devices has been purchased hereunder.
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted through the Services about the Customer or an Authorized User, or its location.
“Devices” means the physical vehicle tracking or asset tracking devices that are able to periodically send location and other information to enable tracking by Customer through the Services.
“Permitted User” means any person or entity that (i) is in control of or otherwise places the Devices or (ii) accesses the Services using credentials, such as a username and password, provided that with regard to either (i) or (ii), the Device or information is obtained from Customer or an Authorized User.
“Platform” means the software platform associated with GPS tracking offered by Spytec.
“Proprietary Rights” means any patent, copyright, trademark, service mark, trade secret, or other intellectual property rights, whether registered or unregistered.
“Services” means the subscription service for the GPS tracking services and access to and use of the associated Platform and/or API.
2. Access and Use
- Spytec provides GPS location trackers for vehicles, persons and other assets, and a Platform and API that enables live tracking of the Devices through smartphones, tablets and computers. The Platform is compatible with various devices and operating systems, which may include Windows and Macintosh computers, and Android- and iOS-based smartphones and tablets. Use of the Platform requires an active Services subscription with Spytec, and the Platform is optimized to work with a Spytec GPS-branded tracker.
- Subject to terms and conditions of this Agreement, Spytec hereby grants Customer a non-exclusive and non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use.
- Customer represents and warrants that (i) it owns and/or has obtained all necessary rights, permissions and approvals from third parties for the collection of all Customer Data and other information and content used by Customer in connection with the Service other than content or information supplied by Spytec, (ii) it has the right to track (or to permit its customers to track) the Devices that are tracked using the Services, and (iii) it shall comply with all applicable laws and regulations.
- Customer is responsible and liable for all uses of the Services resulting from its access to the Services, Platform and Devices. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users and Permitted Users, and any act or omission by any Authorized User or Permitted User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
- Compliance, Lawful Use and Authorization. As a condition of Customer’s use of the Service, Customer agrees that it will use the Service and location information provided through the Service solely for lawful purposes and in accordance with this Agreement, and will comply with any applicable local, state, federal and foreign laws, government rules or requirements. Customer represents and warrants it shall be fully responsible for obtaining any necessary consent from the person(s), vehicles, or assets that will be tracked. Notwithstanding anything else in this Agreement, Spytec has no obligation to monitor Customer’s use of the Services, Platform or Devices.
- Customer agrees that it shall not make any Improper Use of the Devices or Services. “Improper Use” shall mean any improper act by Customer or use of the Device other than as allowed pursuant to this Agreement, including:
- Providing false or inaccurate information during the registration process;
- Using the Devices or Services in violation of any domestic or foreign law, regulation, or ordinance;
- Removing the SIM card from a Device;
- Using the SIM card from a Device in connection with any other product or service;
- Opening, modifying, dismantling, mutilating or reverse engineering of any Device;
- Using the Devices or Services to harass, stalk, defame, threaten, or otherwise violate the legal rights of others;
- Attempting or assisting another to access, alter, or interfere with the communications or information of a Customer or other user of the Services;
- Any breach of this Agreement, or violation of any applicable Spytec policy; or
- Any violation of Section 3.e (Prohibited Conduct).
- Prohibited Conduct. Customer agrees that with respect to the Service, it shall not, nor shall it permit any third party to (a) assign, transfer, lease, rent, sell, distribute or import such Service to any third party; (b) combine, embed or incorporate the Service into any other product or service for purposes of receiving the data feed delivered from the Devices and Service, unless expressly authorized by Spytec; (c) remove or alter any proprietary notices in the Services; (d) use the Services in connection with the transmission, sale, license, or delivery of any infringing, defamatory, offensive, or illegal products, services, or materials; or (e) use the Service in any manner that threatens the integrity, performance, or availability of the Services.
- Spytec reserves the right, in its sole discretion, to terminate or suspend Service if Customer has engaged in any Improper Use or Customer’s usage of the Devices or Services that results in, or is the subject of, legal action or threatened legal action, against Spytec or any of its affiliates or partners, without consideration for whether such legal action is ultimately determined to be with or without merit. Customer shall be liable for any costs incurred by Spytec in connection with any Improper Use by any Authorized User or Permitted User.
- Customer shall not be entitled to a refund or other offset of any fees paid to Spytec if, for any reason, Spytec takes corrective action with respect to actions taken by Spytec in its reasonable belief of Customer’s Improper Use of the Devices or Services.
- Spytec reserves the right to disclose any information deemed necessary to satisfy any applicable law, regulation, subpoena or other legal process, or government request. Customer agrees that information and tracking records in connection with the use of a Device or the Service may be released to any law enforcement agency that requests the information in connection with an ongoing investigation, with or without a subpoena or warrant.
- Notwithstanding anything else in this Agreement, Spytec has no obligation to monitor Customer’s use of the Devices or Services.
- For Devices that contain Li-polymer or Li-ion batteries, Customer shall read and follow all applicable rechargeable battery instructions. As between Customer and Spytec, Customer is solely responsible for proper charging, usage, maintenance and periodic inspection of batteries to ensure safety and proper working order. Customer understands and assumes all risk associated with Li-polymer or Li-ion batteries and Spytec shall have no liability with regard to the functionality or safety of any such batteries.
- Customer’s use of the Services will be billed according to the Service plan selected and other terms as set forth in Order Form.
- All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Spytec’s income.
- Customer is responsible for informing Spytec of any changes in billing information to avoid interruption in service or cancellation of your account.
- Spytec reserves the right to change pricing, from time to time, subject to the terms of any pricing commitment in any Service plan that you have selected. Subject to applicable law, you accept the new price by continuing to use the Service after the price change takes effect. If you do not agree with a price change, you have the right to reject the change by canceling the Service prior to the price change going into effect.
- In connection with your use of the Platform, you may be charged usage or other access fees by your cellular carrier or Internet provider. Spytec will not be responsible for any data or other usage charges that the Customer incurs from its carrier(s) for cellular, Wi-Fi, or other data or communications services.
- If Customer fails to make any payment when due, without limiting Spytec’s other rights and remedies: (i) Spytec may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) Customer shall reimburse Spytec for all costs incurred by Spytec in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
- Term. This Agreement shall commence on the date upon which both Parties have signed this Agreement (“Effective Date”) and shall continue for the subscription period selected by Customer as set forth in the Order Form (the “Initial Term”). Following the Initial Term, this Agreement shall renew automatically for successive periods of the same length as the Initial Term (each, a “Renewal Term,” and collectively with the Initial Term, the “Term”) upon, except as otherwise provided in this Agreement, the same terms and conditions, unless and until either party provides written notice of its intent not to renew at least (i) fifteen (15) days prior to the expiration of any month-to-month subscription Term, or (ii) thirty (30) days prior to the expiration of Term longer than one (1) month. If Customer cancels prior to the end of the Term, Customer will be responsible for all monthly service and support fees (including any minimum monthly service fees) remaining for the then-current Term.
- Termination. In addition to any other express termination right set forth in this Agreement:
- Spytec may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Spytec’s delivery of written notice thereof.
- Spytec reserves the right to review Customer’s use of the Services, and to cancel or discontinue the Service to such Customer in its sole discretion, with or without notice, provided that Spytec shall refund any prepaid and unused Service fees, in the event that Customer has not breached the terms of this Agreement or otherwise engaged in any Improper Use.
- Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
- Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Spytec shall have the right to immediately discontinue Customer’s access to the Services, and all of Customer’s rights granted pursuant to this Agreement shall cease and Customer may not use the Services in any way once the Agreement is terminated. No expiration or termination will affect Customer’s obligation to pay all fees that may have become due before or concurrent with such expiration or termination, or entitle Customer to any refund. Spytec shall have no obligation to retain any customer data, whether aggregated or not, after termination or expiration of the Agreement.
- Suspension. Notwithstanding anything to the contrary in this Agreement, Spytec may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services or deactivate any active Device(s) if: (i) Spytec reasonably determines that (A) there is a threat or attack on the Platform or Services; (B) Customer’s or any Authorized User’s use of the Platform or Services disrupts or poses a security risk to the Platform or Services or to any other customer or vendor of Spytec; (C) Customer, or any Authorized User, is using the Platform or Services for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Spytec’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Spytec has suspended or terminated Spytec’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) Customer’s failure to timely pay any fees due (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Spytec shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Spytec shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured, unless Spytec or Customer otherwise terminates this Agreement pursuant to the terms herein. Spytec will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
- Survival. This Section 5, the introductory paragraphs, and Sections 1, 3, 8, 11, 13 15, 16, 17, 18, 19 and 20 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
- Terms of Sale. Customer agrees to provide payment in accordance with the terms of the Order Form.
- Returns. Please see our Return Policy for complete terms and procedures.
- THE LOCATION INFORMATION PROVIDED IS AN APPROXIMATE LOCATION OF THE DEVICE. SPYTEC DOES NOT REPRESENT, WARRANT OR GUARANTEE THE RELIABILITY OR ACCURACY, COMPLETENESS OR TIMELINESS OF ANY LOCATION INFORMATION PROVIDED THROUGH THE SERVICES OR THAT THE SERVICES SHALL BE ERROR FREE OR UNINTERRUPTED.
- You consent and permit Spytec to disclose location and related information to you or any person or entity using your username/password about the person(s), vehicle or other asset that is tracked in connection with delivery of the Services.
- Subject to any other written agreement or plan that Customer has entered into with Spytec, Spytec assumes no obligation to store Customer Data for any particular period of time. Data that has been deleted by Spytec may not be able to be restored.
- Proprietary Rights. Spytec, including through its affiliates and/or partners, shall own all Proprietary Rights in any technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, or documentation provided in connection with the Services, Platform or Devices, including all front-end (e.g., user interface) and back-end aspects. Customer acknowledges and agrees that the Devices, Platform and Services may include Proprietary Rights of Spytec, its affiliates and/or partners and that as between Customer and Spytec, Spytec shall retain title to and ownership of those Proprietary Rights and any and all improvements, modifications, fixes or enhancements made by or for Spytec, its affiliates and/or the partners to the Devices, Platform and/or Services, regardless of whether such items or services are created or suggested by Customer. The ownership of Spytec’s trademarks and logos and the goodwill relating thereto shall remain vested with Spytec, and any use by Customer and all goodwill in the use of such marks shall inure to the benefit of Spytec, and nothing herein conveys to Customer any right, title or interest in or to such trademarks other than the right to use such trademarks in accordance with the provisions of this Agreement.
- Limited License for Device Software. With regard to the software installed on the Devices, subject to the terms and conditions contained in this Agreement, Spytec hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use such software during the Term solely in connection with its permitted use of the Services. Customer shall not directly or indirectly, or permit any other party to, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms; or copy, modify, translate, or create derivative works therefrom.
- Mapping Data. Customer acknowledges that third-party mapping software and data are provided by a third-party service provider which retains copyright ownership in any third-party data, materials, graphical output or other resources that it provides in connection with the Services.
- Feedback. If Customer or any of its employees, agents or contractors sends or transmits any communications or materials to Spytec by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services or Devices, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Spytec is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Spytec on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Spytec is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Spytec is not required to use any Feedback.
9. Modifications and Maintenance
Spytec may alter or modify all or part of the Devices and Services from time to time, provided that such alteration or modification shall not materially adversely alter the fundamental nature of the Service. Subject to the foregoing, such alterations and modifications, or both, may include, without limitation, the addition or withdrawal of features, information, products, services, software or changes in instructions. Spytec reserves the right to perform scheduled maintenance for the Services from time to time. This may include application and database maintenance as well as general website maintenance and may involve Services unavailability.
Customer agrees to follow all rules and policies applicable to the Services and Platform, including but not limited to the installation of required or automated updates, modifications and/or reinstallations of software related to the Platform and obtaining available patches to address security or performance issues.
10. No Substitute for Direct Supervision
The Devices and Services are not substitutes for responsible childcare, adult care, or any other form of monitoring for a dependent person who may or may not need competent adult supervision, and should not be used as such.
11. Account Security
Customer is responsible for maintaining the confidentiality of the login, password and other information associated with your account. You accept responsibility for all activities that occur under your account. You agree to notify Spytec immediately of any unauthorized use of your account or any other breach of security. You agree that, to the extent permitted by law, Spytec will not be liable for any loss you may incur as a result of someone other than you using your account access information, either with or without your knowledge. You further agree that you could be held liable for losses incurred by Spytec or another party because of someone else’s use of your account access information.
12. Accuracy of Customer Information
13. Software Security Risk
USE OF THE SERVICES MAY EXPOSE A MOBILE DEVICE OR COMPUTER TO AN OPEN NETWORK, WHICH CUSTOMER AGREES TO USE AT ITS OWN RISK. SPYTEC CANNOT AND DOES NOT GUARANTEE THE SECURITY OF THE CUSTOMER DATA AND COMMUNICATIONS WHILE USING A MOBILE DEVICE OR COMPUTER IN CONNECTION WITH THE SERVICES. CUSTOMER UNDERSTANDS AND AGREES THAT SPYTEC CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND THAT IT SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RESULTING FROM AN ALLEGED OR ACTUAL LACK OF SECURITY RELATING TO CUSTOMER’S USE OF SPYTEC’S DEVICES OR SERVICES
15. Disclaimer of Warranty
EXCEPT FOR THE LIMITED PRODUCT RETURN POLICY SET FORTH IN SECTION 6, THE SERVICES ARE PROVIDED “AS IS” AND SPYTEC HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SPYTEC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SPYTEC MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY DEVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE ERROR-FREE, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, TIMELY, COMPLETE, FREE OF HARMFUL CODE, OR THAT PATCHES OR WORKAROUNDS WILL BE PROVIDED. SPYTEC FURTHER DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO ANY BREACH OF INTERNET SECURITY OR DISRUPTION OF CUSTOMER’S CONNECTIONS TO THE INTERNET, DUE TO ANY ACTIONS OF THIRD PARTIES, INCLUDING FAILURE OF THE SERVICES OF THIRD-PARTY PROVIDERS, HACKING OR ANY MALFEASANT ACTIONS BY THIRD PARTIES. SPYTEC DOES NOT WARRANT THAT ANY DEVICE PURCHASED OR OTHERWISE USED WILL NOT BECOME SLOW, MALFUNCTIONING, NONFUNCTIONAL OR OBSOLETE DUE TO CHANGES IN TECHNOLOGY.
16. GPS and Cellular Service Disclaimer
CUSTOMER UNDERSTANDS AND AGREES THAT: (I) THE DEVICE IS A WIRELESS DEVICE AND THAT THE SERVICE WORKS BY USING GPS (GLOBAL POSITIONING SYSTEM) AND OTHER WIRELESS COMMUNICATION TO DETERMINE A PERSON’S, VEHICLE’S OR OTHER ASSET’S LOCATION AND RELAY SUCH INFORMATION TO SPYTEC; (II) THE SERVICE WILL NOT OPERATE UNLESS A PERSON, VEHICLE OR OTHER ASSET IS IN AN AREA THAT HAS ADEQUATE WIRELESS COMMUNICATIONS AND GPS COVERAGE AND, EVEN IF IN SUCH AREA, THE SERVICE IS SUBJECT TO WIRELESS SERVICE NETWORK AND GPS TRANSMISSION LIMITATIONS AND MAY BE ADVERSELY AFFECTED BY TERRAIN, SIGNAL STRENGTH, WEATHER AND ATMOSPHERIC CONDITIONS, OR OTHER THINGS THAT SPYTEC DOES NOT CONTROL; AND (III) INFORMATION ABOUT A PERSON’S, VEHICLE’S OR OTHER ASSET’S LOCATION WILL NOT BE RECEIVED BY THE DEVICE UNLESS THE DEVICE IN USE IS ABLE TO RECEIVE GPS SIGNALS, AND WILL NOT BE RELAYED TO SPYTEC UNLESS AND UNTIL THE DEVICE IS ABLE TO RECEIVE ADEQUATE CELLULAR SERVICE.
17. Limitation of Liability
- SPYTEC SHALL NOT BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS OR LOST DATA, EVEN IF SPYTEC IS INFORMED THAT THOSE DAMAGES MAY OCCUR. SPYTEC’S CUMULATIVE LIABILITY UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL THEORY SHALL NOT EXCEED THE GREATER OF THE AMOUNT PAID OR PAYABLE TO SPYTEC UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE LIABILITY ACCRUES FOR A CLAIM.
- UNDER NO CIRCUMSTANCES SHALL SPYTEC, ITS SUPPLIERS, ITS LICENSORS OR ITS AFFILIATES BE LIABLE TO YOU, ANY USER, OR ANY THIRD PARTY AS A RESULT OF YOUR, OR THAT PARTY’S USE OR MISUSE OF, OR RELIANCE ON, THE DATA OBTAINED FROM THE USE OF THE SERVICE, PLATFORM OR DEVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE.
- UNDER NO CIRCUMSTANCES SHALL SPYTEC, ITS SUPPLIERS, ITS LICENSORS OR ITS AFFILIATES BE LIABLE TO YOU, ANY USER, OR ANY THIRD PARTY AS A RESULT OF YOUR, OR THAT PARTY’S LOSS OF ANY EQUIPMENT, WHETHER INTENTIONAL OR UNINTENTIONAL.
- UNDER NO CIRCUMSTANCES SHALL SPYTEC, ITS SUPPLIERS, ITS LICENSORS OR ITS AFFILIATES BE LIABLE TO YOU, ANY USER, OR ANY THIRD PARTY AS A RESULT OF THE INABILITY TO USE THE DEVICE, SERVICE OR PLATFORM, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF ANY RELATED SERVICES, OR FROM YOUR RELIANCE ON OR USE OF THE INFORMATION OBTAINED BY YOUR USE OF THE SERVICE, PLATFORM OR DEVICE. IN FURTHER LIMITATION, SPYTEC, ITS SUPPLIERS, ITS LICENSORS AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST PROPERTY, DAMAGED PROPERTY, INJURY, LOST DATA, OR ANY OTHER LOSS RESULTING FROM YOUR USE OF, OR THE FAILURE OR MALFUNCTION OF, THE SERVICE, PLATFORM OR DEVICE.
- WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL SPYTEC, ITS SUPPLIERS, ITS LICENSORS OR ITS AFFILIATES, BE LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING IN ANY WAY FROM FORCES OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION INTERNET FAILURES, COMPUTER FAILURES, THIRD PARTY SERVICES, ANY TYPE OF EQUIPMENT FAILURE, ACTS OF NATURE, ACTS OF GOVERNMENTS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR ENVIRONMENTAL CONDITIONS.
- THE ABOVE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Customer agrees to indemnify and hold harmless Spytec, including its affiliates, directors, officers, agents, licensees, employees and contractors, from any claim, liability, loss, damage, cost or expense (including, without limitation, suits, judgments, litigation, costs and attorney’s fees of every kind and nature) arising out of or related to: (i) Customer’s breach of this Agreement, including any breach of any of Customer’s representations and warranties; (ii) any negligence or willful misconduct of Customer; (iii) any action or conduct of Spytec undertaken pursuant to this Agreement at the direction of the Customer (iv) any claim related to Customer’s use of Devices or Services alleging a violation of any third party’s rights, violations of law, or a breach of the foregoing, or (v) any Improper Use by Customer.
19. Dispute Resolution
Any claim, controversy or dispute that arises between the parties, their agents, employees, officers, directors or affiliates (“Dispute”) that the parties are unable to settle through consultation and negotiation shall be exclusively resolved by binding arbitration, and not in court, except that customer may assert claims in small claims court for disputes within the jurisdiction of such court. Customer or Spytec may also bring suit in court to seek injunctive or declaratory relief for infringement or other misuse of intellectual property rights.
In any arbitration under this Agreement, a single arbitrator shall be selected by mutual agreement of the parties in accordance with AAA procedures from a list of qualified arbitrators maintained by the AAA and will conduct the arbitration under the rules of the AAA then in effect, except as otherwise provided in this Agreement. The AAA rules may be found at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879. If the parties are unable to agree to an arbitrator, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitration shall be conducted in New York County, New York and all expedited procedures prescribed by the AAA rules will apply. You may choose to have the arbitration conducted by telephone, on the basis of written papers and documents submitted to the arbitrator, or in person. The arbitration shall be treated as confidential.
Before commencing an arbitration, you must send a letter describing your claim and the specific relief you seek to Spytec GPS, Inc., Attention: LEGAL, 135 W 36th Street, 13th Floor, New York, NY 10018 by certified mail, Federal Express, UPS, or Express Mail (signature required). Spytec shall have thirty (30) days to attempt in good faith to resolve your claim before you commence arbitration. If Customer and Spytec are unable to reach a settlement within 30 days, either party may commence an arbitration.
IN CONNECTION WITH CUSTOMER’S AGREEMENT TO ARBITRATE, THE CUSTOMER WAIVES ANY RIGHT TO PURSUE DISPUTES ON A CLASS-WIDE BASIS, THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING UNLESS ALL PARTIES CONSENT IN WRITING.
This Agreement and all matters arising out of, or otherwise relating to, this Agreement shall be governed exclusively by the laws of the State of New York, excluding its conflict of law provisions. CUSTOMER UNDERSTANDS THAT THERE IS NO JURY IN ARBITRATION AND THAT COURT REVIEW OF AN ARBITRATOR’S DECISION IS LIMITED. CUSTOMER AND SPYTEC BOTH WAIVE ANY RIGHT TO A TRIAL BY JURY.
Any decision or award as a result of an arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact. The arbitrator’s decision and award shall be final, conclusive and binding, and judgment may be entered upon the decision and award in accordance with applicable law in any court having jurisdiction thereof. Subject to the terms of this Agreement, the arbitrator shall have the right to award any damages permitted by law, including, if otherwise permitted by statute, Customer’s reasonable attorney’s fees and costs incurred in connection with an arbitration. Spytec waives any right to seek recovery of its own attorney’s fees and costs unless the arbitrator determines that Customer’s claims were frivolous or asserted for an improper purpose. Payment of all filing and AAA fees will be governed by the AAA’s rules.
- Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
- Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the Order Form, (ii) second, this Agreement; and (iii) third, any other documents incorporated herein by reference.
- Survival. Any provision that, in order to give proper effect to its intent, should survive the expiration or termination, shall survive the expiration or earlier termination of this Agreement.
- Customer Reference. Customer agrees that Spytec (i) may identify Customer as a recipient of services (ii) has a non-exclusive, limited license to use Customer logo, name, and trademark in Spytec’s sales presentations, marketing materials and press releases, and (iii) may develop and use a customer profile of Customer for use by Spytec on Spytec’s website for promotional purposes.
- Force Majeure. If the performance of any part of this Agreement by Spytec is prevented, hindered, delayed or otherwise made impracticable by unforeseen circumstances or causes beyond Spytec’s reasonable control, including without limitation: acts of God; war; riot; embargoes; acts of civil or military authority; large-scale illness; judicial or governmental action; terrorism; labor disputes; shortages in transportation, facilities, fuel, energy or labor materials; failure of telecommunications infrastructure; hacking; or failure of any computer, server or software, Spytec shall not be held responsible for failure to perform for so long as such event continues to delay Spytec’s performance.
- Waiver; Severability. No waiver of or by Spytec shall be deemed a waiver of any subsequent default of the same provision of this Agreement. If any term or provision of this Agreement is invalid, illegal, or unenforceable either in its entirety or by virtue of its scope or application to given circumstances, in any jurisdiction, such invalid, illegal, or unenforceable provision shall be modified only to the extent necessary to render same valid, enforceable, or not applicable to given circumstances, or excised from this Agreement, as the situation may require, and shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, and this Agreement will be construed and enforced as if such provision had been included herein as so modified in scope or application, or had not been included herein, as the case may be.
- Right to Modify. Spytec reserves the right to change any of the provisions set forth herein, and to update its website to reflect such changes. Customer’s continued use of the Devices or Services following the posting or other notice to you, including a notice sent to the email address that we have associated with your account, of any updates or changes to these terms and conditions constitutes acceptance of such changes. If you do not agree with any updated or changed terms or policies, you have the right to reject the terms, change or update by canceling the Services and no longer using the Services. Notwithstanding the foregoing, Spytec does not assume any obligation to provide Customer with notice of any change to these terms and conditions.
- Relationship of the Parties. Nothing stated in this Agreement shall be construed as creating the relationships of principal and agent, representative, partners, employer and employee, franchisor and franchisee, or joint venturers, and neither Party may represent or bind the other Party in any way.
- Counterparts and Electronic Signature. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic Signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile, recorded check boxes, or signatures through electronic services, such as DocuSign.