THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND WAIVER OF JURY TRIAL. PLEASE READ IT CAREFULLY BEFORE AGREEING.
Spytec GPS Terms of Service
- Privacy Notice – available at https://spytec.com/pages/privacy-policy
- Copyright Policy
- Complaint Policy (including Trademark and Privacy)
Product and Use
Safe and Lawful Use
- Providing false or inaccurate information during the registration process;
- Using, or encouraging others to use, the Offering in violation of any domestic or foreign law, regulation, or ordinance;
- Removing the SIM card from a Product;
- Using the SIM card from a Product in connection with any other product or service;
- Opening, dismantling, mutilating or reverse engineering any of the Offering;
- Using the Offering to harass, stalk, defame, threaten, otherwise violate the legal rights of others, or attempting to do any of the foregoing through the Offering;
- Attempting or assisting another to access, alter, or interfere with the communications or information of a Customer or other user of the Offering;
- Using the Offering if you are a competitor of ours; or
- Any breach of this Agreement, or violation of any applicable Spytec policy.
Spytec reserves the right, in its sole discretion, to terminate or suspend your access to or use of the Offering if Spytec believes that you have violated the terms of this Agreement or applicable law, engaged in any Improper Use, or your usage of the Offering 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 Customer.
Customer shall not be entitled to a refund or other offset of any fees paid to Spytec if, for any reason, Spytec takes corrective actions if it reasonably believes there was Improper Use of the Offering by Customer, or anyone associated with, or otherwise using, Customer’s account.
Spytec reserves the right to disclose any information deems 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 any Product 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 Offering.
For Products that contain Li-polymer or Li-ion batteries, Customer shall read and follow all applicable rechargeable battery instructions. Customers are 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.
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 shall 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 in order to access the Offering.
In addition to any fees that you pay to purchase a Product, the Offering may require payment of fees for on-going, self-renewing subscription access. If you use such subscription features of the Offering, the payment method (e.g. credit card or debit card) associated with your account will be billed at the interval, and, subject to the conditions herein, you will be granted access to the Offering for the amount of time, identified when you purchase your subscription.
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, or any other method of legal acceptance, 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.
To collect and or process fees, we use a third party to process payments (“Payment Processor”). The processing of payments will be subject to the terms, conditions and privacy policies of Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor. You agree to provide us accurate and complete information about you and your chosen Payment Method. You authorize us to share such information as well as transaction information with the Payment Processor. As a user purchasing a subscription, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for such subscription. You agree to make payment using that selected payment method, and you authorize us, through the Payment Processor, to charge your payment method at the times and in the amounts associated with such subscription. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment. You represent and warrant that you have the legal right to use any credit card(s) or other payment means used to initiate any transaction. Customer is responsible for informing Spytec of any changes in billing information to avoid interruption in service or cancellation of your account.
If you believe that you have been billed improperly or if you believe there is a discrepancy in your account, please notify us immediately through our Customer Service Department at 1-877-212-7400.
For any subscription, you agree that your license to the Offering is not a service, repair or maintenance to real or personal property.
Cancellation and Termination of Service Plans
UNLESS YOU CANCEL BEFORE RENEWAL AND EXCEPT WHERE PROHIBITED BY LAW, SUBSCRIPTIONS AUTOMATICALLY RENEW FOR AN ADDITIONAL TERM OF THE SAME LENGTH UPON EXPIRATION. FEES OR CHARGES DURING ANY SUCH RENEWAL TERM SHALL BE THE SAME AS THAT DURING THE PRIOR TERM UNLESS WE HAVE GIVEN YOU NOTICE OF AN INCREASE AS DESCRIBED HEREIN, IN WHICH CASE THE INCREASE SHALL BE EFFECTIVE UPON RENEWAL AND THEREAFTER.
Fees for the Offering are non-refundable, but may you may cancel your subscription or account by following the directions on our Help Center page.
Spytec reserves the right to review Customer’s use of and access to the Offering, and to cancel or discontinue the Customer’s use or access in its sole discretion, with or without notice, in which case Spytec may also, in its sole discretion, 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.
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. IF YOU CANCEL BEFORE THE END OF YOUR SUBSCRIPTION, YOU WILL BE CHARGED THE ENTIRE REMAINING AMOUNT OF SUBSCRIPTION FEES AT THAT TIME.
We do not store your data forever. Spytec shall have no obligation to retain any customer data, whether aggregated or not, after termination or expiration of the Agreement. In addition, we reserve the right to designate your account “inactive” if you have not logged into your account in the past eighteen (18) months. If your account is marked as “inactive” your data may be deleted from our system unless it has become the subject of a legal proceeding, or we are otherwise required by law to retain it for a longer period of time. Except as otherwise noted herein, we reserve the right to delete data from any “inactive” account upon at least thirty (30) days’ prior written notice sent to the email address associated with the applicable user account(s). In the 30 days after receiving such notice, will be able to download the data from your account or otherwise back it up at your discretion.
Suspension of Service
Spytec may temporarily suspend Customer’s access to any portion or all of the Services or deactivate any active Product(s) if: (i) Spytec reasonably determines that (A) there is a threat or attack on the Offering; (B) Customer’s use of the Offering disrupts or poses a security risk to the Offering or to any other customer or vendor of Spytec; (C) Customer is using the Offering for fraudulent or illegal activities; or (D) Spytec’s provision of the Offering to Customer 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.
Return Policy and Product Warranty
If the Customer is dissatisfied with a GPS tracking device for any reason, a GPS tracking device may be returned within 30 days of receipt, subject to certain requirements, for full refund of the price of the Product, even if opened or used. After 30 days, returns are subject to the terms of the Warranty for the GPS tracking device.
You are responsible for return shipping costs, except in the case of a defective Product, in which case Spytec shall cover the cost of return shipping. Spytec is not liable for packages lost or damaged during return shipment.
Please see our Return Policy for see complete return policy terms and procedures.
THE LOCATION INFORMATION PROVIDED IS AN APPROXIMATE LOCATION OF THE PRODUCT. SPYTEC DOES NOT REPRESENT, WARRANT OR GUARANTEE THE RELIABILITY OR ACCURACY, COMPLETENESS OR TIMELINESS OF ANY LOCATION INFORMATION PROVIDED THROUGH THE SERVICE OR THAT THE SERVICE SHALL BE ERROR FREE OR UNINTERRUPTED.
You hereby consent to Spytec disclosing 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 the Offering.
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 except as otherwise noted in this Agreement. Data that has been deleted by Spytec may not be able to be restored.
Right of Access
As long as you are in compliance with the conditions of this Agreement, and all incorporated documents, if any, Spytec grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable, non-assignable right to access, receive, and use the Offering solely for the purposes for which they are provided. No rights not explicitly listed are granted.
Customer acknowledges and agrees that the Offering, and all enhancements, updates, upgrades, corrections and modifications thereto, may include the patent, copyright (including, but not limited to, the look and feel of the Service), trademark (including, but not limited to all product names and service names), service mark, trade secrets, or other intellectual property rights (collectively “Proprietary Rights”) of Spytec, its affiliates, licensors and/or partners and that Spytec, its affiliates, licensors and/or partners 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, licensors and/or the partners to the Product, Service or Platform, regardless of whether such items or services are created or suggested by Customer. This Agreement does not convey title or ownership to you, but instead gives you only the limited rights set forth herein.
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.
Customer agrees that with respect to the Offering, it shall not, nor shall it permit any third party to (a) assign, transfer, lease, rent, sell, distribute or import the Offering to any third party; (b) combine, embed or incorporate the Offering into any other product or service for purposes of receiving the data feed delivered from the Offering, unless expressly authorized by Spytec; (c) remove or alter any proprietary notices in the Offering; (d) use the Services in connection with the transmission, sale, license, or delivery of any infringing, defamatory, offensive, or illegal products, services, or materials; (e) use the Offering in any manner that threatens the integrity, performance, or availability of the Offering; (f) use the Offering in any manner that violates local, state, federal or foreign laws, regulations or orders, (g) open, modify or alter any Product, (h) place any SIM card (or similar) provided by Spytec in any other product or device, or (i) assist in creating a competing third-party product or service. With regard to the Platform or the associated software, and the software associated with the Product(s), Customer shall not directly or indirectly, or permit any party to (x) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms; (y) copy, modify, translate, or create derivative works therefrom, or (z) tamper with or modify any security features therein.
Modifications and Maintenance
Spytec may alter or modify all or part of the Offering from time to time, provided such alterations or modifications shall not materially decrease the fundamental function of the Offering. 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 Offering from time to time. This may include application and database maintenance as well as general website maintenance and may involve Offering unavailability.
Customer agrees to follow all rules and policies applicable to the Offering, 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.
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 Products, 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.
You agree not to distribute, upload, make available or otherwise publish through the Offering any suggestions, information, ideas, comments, causes, promotions, documents, questions, notes, plans, drawings, proposals, or materials similar thereto (“Submission”) or any graphics, text, information, data, designs, instructions and/or schematics, links, profiles, audio, photos, software, music, sounds, video, comments, messages or tags, or similar materials (collectively, with Submissions, “Content”) that:
- is unlawful or unethical, or that encourages another to engage in anything unlawful or unethical;
- is false, misleading, or fraudulent;
- contains a virus or any other similar programs or software which may damage the operation of our or another’s computer(s);
- violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, right of privacy or publicity or other intellectual property right of any party; or
- is libelous, defamatory, pornographic, obscene, lewd, indecent, inappropriate, invasive of privacy or publicity rights, abusing, harassing, threatening or bullying.
Content Submitted or Made Available to Us
You are under no obligation to submit anything to us or through use of the Offering, and unless otherwise noted, we will not claim ownership of any Content. However, in order for us to provide the Offering, we need your permission to process, display, reproduce, create derivative works, and otherwise use the Content that you make available to us, if any. Therefore, if you choose to submit any Content through or on the Offering, or otherwise make available any Content through the Offering, you hereby grant us a perpetual, irrevocable, transferrable, sub-licensable through multiple tiers, non-exclusive, worldwide, royalty-free license to reproduce, use, modify, display, perform, distribute, translate and create derivative works from any such Content, including without limitation distributing part or all of the Content in any media format through any media channels.
By submitting any Content to us you hereby agree, warrant and represent that: (a) the Content do not contain proprietary or confidential information, and the provision of the Content is not a violation of any third-party’s rights; (b) all such Content are accurate and true, (c) we are not under any confidentiality obligation relating to the Content; (d) we shall be entitled to use or disclose the Content in any way, to the maximum extent permissible under applicable law; and (e) you are not entitled to compensation or attribution from us in exchange for the Content.
No Substitute for Direct Supervision
The Product, Service and Platform 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.
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.
Accuracy of Customer Information
Customer agrees to provide Spytec with accurate contact and billing information. Customer further agrees that Spytec may use and rely on information provided, subject to Spytec’s Privacy Notice. Spytec may suspend or terminate Service and close Customer’s account, in its sole discretion, if it has grounds to believe that false, misleading, or materially inaccurate information was provided.
Software Security Notice
USE OF THE OFFERING MAY EXPOSE A MOBILE DEVICE OR COMPUTER TO AN OPEN NETWORK, WHICH CUSTOMER AGREES TO USE AT HIS/HER OWN RISK. SPYTEC CANNOT AND DOES NOT GUARANTEE THE SECURITY OF CUSTOMER’S DATA AND COMMUNICATIONS WHILE USING A MOBILE DEVICE OR COMPUTER IN CONNECTION WITH THE OFFERING. 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 OFFERING.
Customers may view our Privacy Notice at our website. Any dispute over privacy is subject to this Agreement, including limitations on damages and application of the law. To establish your Customer account and serve you as a Customer, Spytec will initially collect information, such as name, physical address, e-mail address, telephone number, and billing information.
We request that customers contact us directly at email@example.com or by telephone toll-free at 1-877-931-0721 with any questions or concerns about privacy in connection with our Products, Services or Platform.
As between Spytec and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the individual data provided by Customer (“Customer Data”). Customer hereby grants to Spytec a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary or reasonable for Spytec to provide the Offering to Customer.
Notwithstanding anything to the contrary in this Agreement, Spytec may monitor Customer’s use of the Offering and collect and compile aggregated statistics concerning Customer’s use of the Offering , and compile such data with other user’s information and anonymize such data (“Aggregated Statistics”). As between Spytec and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Spytec. Customer acknowledges that Spytec may compile Aggregated Statistics based on Customer Data input into the Offering . Customer agrees that Spytec may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Personal Data, as defined in Spytec’s Privacy Notice.
Disclaimer of Warranty
EXCEPT FOR THE LIMITED PRODUCT RETURN POLICY SET FORTH HEREIN, SPYTEC MAKES NO WARRANTY OR GUARANTEE OF ANY KIND WITH RESPECT TO THE OFFERING WHICH IS PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SPYTEC DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SPYTEC DOES NOT WARRANT THAT THE RECEIPT OF DATA, MAPPING INFORMATION, AND OTHER CONTENT FROM THE OFFERING WILL BE AVAILABLE AT ALL TIMES, AT ALL GEOGRAPHIC LOCATIONS, UNINTERRUPTED OR ERROR-FREE, OR THAT THE TRANSMISSION OF DATA, MAPPING INFORMATION, AND OTHER CONTENT PROVIDED TO THE CUSTOMER WILL ALWAYS BE ACCURATE, TIMELY OR COMPLETE. SPYTEC DOES NOT WARRANT THAT ANY PRODUCT PURCHASED OR OTHERWISE USED WILL NOT BECOME SLOW, MALFUNCTIONING, NONFUNCTIONAL OR OBSOLETE DUE TO CHANGES IN TECHNOLOGY.
GPS and Cellular Service Disclaimer
SPYTEC IS NOT RESPONSIBLE FOR LIABILITIES OF ANY KIND RESULTING FROM DELAYS IN DELIVERY OR PROVIDING SERVICES, REGARDLESS OF THE CAUSE OF THE DELAY.
CUSTOMER UNDERSTANDS AND AGREES THAT: (I) THE PRODUCT 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 OFFERING 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 OFFERING UNLESS THE PRODUCT IN USE IS ABLE TO RECEIVE GPS SIGNALS, AND WILL NOT BE RELAYED TO SPYTEC UNLESS AND UNTIL THE PRODUCT IS ABLE TO RECEIVE ADEQUATE CELLULAR SERVICE.
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 LESSER OF $500 (USD), OR THE AMOUNT 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 OF YOUR ACCOUNT, 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 OFFERING, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF THE OFFERING.
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 OFFERING, 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 OFFERING. IN FURTHER LIMITATION, TO THE FULLEST EXTENT ALLOWED BY LAW, 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 OFFERING.
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; (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 Offering 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.
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. Spytec shall cover the cost of all AAA fees in the event that Customer is financially unable to do so or if the arbitrator determines it would be unreasonable to have Customer split the cost of arbitration.
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; pandemic; epidemic; embargoes; acts of civil or military authority; judicial or governmental action; terrorism; labor disputes; large scale illness; 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.
All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
This Agreement constitutes the entire agreement between the parties with respect to Customer’s use of the Product, Service and Platform, and supersedes and replaces all prior understandings or agreements, written or oral, regarding such subject matters.
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.
No waiver of or by Spytec shall be deemed unless in a signed writing, nor shall any such signed waiver be considered 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.
If you believe in good faith that any material posted on our Services infringes the copyright in your work, please contact our copyright agent, designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
- A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of the copyright that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed;
- Identification, with information reasonably sufficient to allow its location of the material that is claimed to be infringing;
- Information reasonably sufficient to permit us to contact you;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and,
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
You acknowledge that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
Spytec GPS, Inc.
499 Fashion Ave , 14N
New York, NY 10018
Complaint Policy (Including Trademark and Privacy)
If you believe in good faith that any material posted on the Service infringes any of your rights other than in copyright, or is otherwise unlawful, you must send a notice to firstname.lastname@example.org containing the following information:
- Your name, physical address, e-mail address and phone number;
- A description of the material posted on the Service that you believe violates your rights or is otherwise unlawful, and which parts of said materials you believe should be remedied or removed;
- Identification of the location of the material on the Service;
- If you believe that the material violates your rights, a statement as to the basis of the rights that you claim are violated;
- If you believe that the material is unlawful or violates the rights of others, a statement as to the basis of this belief;
- A statement under penalty of perjury that you have a good faith belief that use of the material in the manner complained of is not authorized and that the information you are providing is accurate to the best of your knowledge and in good faith; and
- Your physical or electronic signature.
If we receive a message that complies with all of these requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to the poster of the claimed violative material, or any other party.
All notices given by you or required under this Agreement shall be in writing and addressed to: Spytec GPS, Inc., Attn: LEGAL, 499 Fashion Aveneue, 14N , New York, NY 10018, or sent via email to email@example.com.