REALTRACK GPS TERMS OF SERVICE
BY USING (1) ANY SERVICE PROVIDED BY REALTRACK GPS, INC., A FLORIDA CORPORATION (“REALTRACK GPS” OR “WE”) OR (2) ANY SERVICES ACCESSIBLE THROUGH WWW.REALTRACKGPS.COM (COLLECTIVELY, THE “SERVICE”), OR BY CREATING OR MAINTAINING AN ACCOUNT FOR SERVICE FOR USE BY YOU OR ANY OTHER PERSON, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, UNLESS WE EXPRESSLY AGREE IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF REALTRACK GPS THAT DIFFERENT OR ADDITIONAL TERMS APPLY. THESE TERMS APPLY TO YOU WHETHER OR NOT YOU CLICK “I AGREE” THROUGH ANY REGISTRATION OR ACCESS PROCESS AT REALTRACKGPS.COM (THE “REALTRACK GPS WEBSITE”) AND WHETHER OR NOT YOU ARE THE REGISTERED MEMBER UNDER AN REALTRACK GPS SERVICE ACCOUNT OR A USER THEREOF. IF YOU DO NOT AGREE, PLEASE DO NOT ATTEMPT TO USE OR ACCESS THE SERVICE OR THE REALTRACK GPS WEBSITE. You will be referred to from time to time as “you” in this Agreement. “Member” means you if you are the registered or named holder of a subscription or Account for the Service, or the named Account holder if you are using an Account registered in the name of another person. “Account” means the account (a) under which you use the Service, whether registered to you or a Member who has provided you access to use his, her, or its account, or (b) that you create on behalf of another person who becomes a Member thereby. Accounts; Member Subscription You may use the Service only while you are (1) a paying Member who subscribes to the Service, or (2) using the Service with the express permission of a paying Member who subscribes to the Service, or a registered participant in an alpha or beta testing program (in either case, your participation may be terminated at any time by RealTrack GPS for any reason). Unless otherwise specified by RealTrack GPS or by another express Agreement with RealTrack GPS to the contrary, your right to access or use the Service terminates on the earlier of (a) the date which is the last day of the billing cycle for which the last Service prepayment for the Account has been received by RealTrack GPS, or (b) the date on which any charge or fee, or other balance due under the Account, is past due and RealTrack GPS determines, in its discretion, to terminate the Account or suspend the Service, or (c) any other date upon which RealTrack GPS has the right to terminate the Account or suspend the Service as provided in this Agreement or any other applicable agreement or policy. You represent and warrant that you are at least 18 years of age or have the approval of your parent or guardian to register for or use the Service. If RealTrack GPS becomes aware that you or a Member is under the age of 18 and not appropriately supervised, RealTrack GPS may cancel the Account or otherwise restrict access to it.
You represent, to the extent you use any feature of the Service and you are not a Member, that you have the express permission of a Member to use that Member’s Account. Conversely, if you are creating or registering an Account on behalf of another person who will become a Member thereby, you hereby represent, warrant, and covenant that you have the express authority to register such person, create such Account, and bind such Member (as a “Member”) to this Agreement and the policies and requirements pertaining to the Service, and you hereby indemnify RealTrack GPS from any loss, damage, claim or expense (including reasonable attorney’s fees and expenses) arising out of or related to your failure to actually acquire such authority or such new Member’s dispute or denial of any such authority. RealTrack GPS reserves the right to discontinue allowing persons who are not (or who do not become thereby) registered Members to create, use, or access Accounts or the Service, whether on an account by account basis or otherwise, in its sole discretion. RealTrack GPS may establish other reasonable Account or Service registration or usage limits in its discretion. We further reserve the right to refuse Service to any person for any reason, in our discretion. During registration, each Member must submit and maintain current and accurate Account and contact information, including a working e-mail address and telephone number, and any inaccuracy therein shall be grounds for Account termination. We may distribute notices and other important information to members to such e-mail addresses, or by publication on the RealTrack GPS Website, by transmission through the Service, or by written communication sent by mail to the Member address on record. Regardless of method, each Member is responsible to assure that other users of the Account or the Service thereunder are notified accordingly and all such users shall be deemed to have received such notice when provided to the Member of record by reasonable means. Such notices, including any amendments to this Agreement determined by RealTrack GPS in its discretion, or to any policies, rules, or restrictions, shall be effective as against the Member and all other Service users upon such publication or distribution. You are responsible for installing the equipment and services, if any, and configuring the same correctly, as necessary for your access to the Service. If RealTrack GPS specifies, at any time, any particular system requirements or hardware specifications for use of the Service, you will be responsible to provide the same or to cease to use the Service. Price and Payment; Cancellation or Termination of Service Each Member will be billed according to his, her, or its chosen Service and billing plan, as described on the applicable page(s) of the RealTrack GPS Website. Generally (and subject to the Member’s chosen Service and plans), Service plans provide one of two billing options: (1) recurring fees and base/minimum Service usage charges are billed in advance for each billing cycle, and excess usage or other non-recurring fees, charges, and surcharges are billed in arrears (a “Prepaid Usage Plan”); or (2) plan recurring charges and other base fees are billed in advance, usage charges are billed in increments on an interim basis as usage thresholds are reached through the billing cycle, and when final usage totals for the billing cycle are available, the Member will be billed, and the Account balance trued up, according to the most favorable standard RealTrack GPS usage tier that matches the applicable Account’s level of usage for that billing cycle, in arrears following the end of the billing cycle, at which time all other excess usage, non-recurring fees, charges, and surcharges for such billing cycle shall also be billed (“Automatic Best Rate Plan”). Generally, Accounts are billed on Prepaid Billing Plans unless a Member expressly selects an Automatic Best Rate Plan (which may not be available for all Service plans or all Members), and meets all required criteria and other
qualifications therefor. RealTrack GPS is not required to offer Automatic Best Rate Plans to all Members or for all Service plans. RealTrack GPS reserves the right to withdraw or modify Service or billing plans at any time or from time to time effective at the end of any billing cycle. Monthly prepaid amounts are valid for the billing cycle (typically, a calendar month) for which they are prepaid and expire at the end thereof, whether used or not. No refunds for unused time or capacity, or for partial periods of usage prior to effective Account cancellation, shall be given. The Member agrees to pay all fees, usage charges, and other Service charges applied to the Member’s Account in accordance herewith or with the applicable Service plan and in accordance with the type of billing plan (whether a Prepaid Usage Plan or an Automatic Best Rate Plan) selected by the Member, and to comply with applicable billing terms (prepaid or post-paid) in effect at the time the fee or charge becomes payable (including without limitation, as applicable, that payments will be charged to the Member’s payment card). Time is of the essence for payments hereunder, and any past due amounts shall bear interest at the lower of 18% per annum or the highest rate allowed by applicable law. Each Member is responsible for any costs or expenses (including legal or collection agent fees and expenses) of collecting any past due amounts from such Member or on his, her, or its Account. Unpaid bills may be sent to third party collections. Member payment obligations are not contingent upon collection of any amounts from any users or third parties. A Member may cancel his, her, or its Account (1) by e-mail (to support@RealTrackGPS.com) or (2) through the cancellation process on the RealTrack GPS Website (at www.RealTrackGPS.com), effective at the end of the current billing cycle or other Account period (typically, a calendar month), unless such Member has expressly committed to a longer period of Service, in which case such cancellation is effective at the end of such period, by the process required in any agreement for such commitment. Unless otherwise expressly provided in another agreement with RealTrack GPS, any notice of cancellation must be submitted at least 5 business days’ prior to the end of the billing cycle (typically, a calendar month), or the cancellation will take affect at the end of the following billing cycle. RealTrack GPS may, without refund, terminate an Account or suspend access to the Service immediately without notice, in RealTrack GPS’s sole discretion, if you or a Member whose account you are using, or any other user of that Account, fails to (1) pay all amounts when due, or (2) comply with this Agreement, thereby terminating this Agreement (except for terms which by their nature should survive) and all obligations of RealTrack GPS hereunder or with respect to the Service. The Member shall be responsible for any balance due on the Account.
Member accepts that RealTrack GPS will charge Member’s credit card every billing period until Member cancel the service. Returns Policy Member may return most new, unopened items sold and fulfilled by RealTrackGPS.com within 30 days of delivery for a refund. A $35 restocking fee per item returned will apply and will be discounted from the initial payment. Member will pay the return shipping costs. Items should be returned in their original product packaging. Account Rules and Requirements; Acceptable Use Policies When an Account is registered, the registrant will select a PASSWORD (or, for multi-user accounts, multiple PASSWORDS may be selected). All users agree to keep their respective PASSWORD
secret, and any person who registers an Account on behalf of any other person, or any Member who allows use of the Service by other users under its Account, shall cause such persons to, and to agree to, keep all applicable respective PASSWORD secret. You will be held liable for all Account use or misuse under your PASSWORD, and Member Account holders are responsible for all activities under the Account under any PASSWORD (including, with respect to each of the foregoing, any civil or criminal liability therefor). If you feel there may have been a breach in security, such as the unauthorized disclosure or use of any phone number or PASSWORD, you must promptly notify RealTrack GPS, and we strongly recommend that you change PASSWORD. RealTrack GPS is not liable for any loss or damage arising from your failure to comply with this section or any unauthorized Account usage. When creating an Account for, using or accessing the Service, you agree, and each Member shall cause all other users of such Member’s Account to agree, to abide by all of RealTrack GPS’s use policies in effect from time to time, including any Acceptable Use Policy published at the RealTrack GPS Website, any policies distributed by email, or any amendments thereto, which policies include, without limitation, the following: you, and each Member or other user of the Account (a) shall not (nor allow any person to) (i) use the Service in any manner which is illegal, fraudulent or deceptive, harassing, threatening, harmful, libelous, defamatory, abusive, slanderous, hateful, sexually, racially or ethnically objectionable, vulgar, pornographic, obscene, or otherwise objectionable or unlawful; (ii) attempt to gain unauthorized access to any account, the RealTrack GPS network, or any related components; (iii) use or access the Service by mobile telephone while operating a motor vehicle to the extent prohibited by any competent jurisdiction (when such usage is permitted, we strongly recommend use of a hands-free telephone); or (iv) interfere with another’s use and enjoyment of any RealTrack GPS services. Any violation of RealTrack GPS policies by you or anyone using your Account will be grounds for termination of the Account, at RealTrack GPS’s sole discretion, and you may be reported to appropriate law-enforcement agencies. RealTrack GPS shall not be liable for any injury or damage suffered by or during use of the Service, and you hereby indemnify and hold harmless RealTrack GPS and its agents, officers, employees, and providers from any claims, damage, or loss (including attorneys fees and expenses) arising out of your use of the Service or that of any other user of your Account. Service Availability and Guarantee; Modifications RealTrack GPS guarantees that the data network component of the Service will be available 99% of the time (the “‘Service Guarantee”), subject to (and other than) (1) scheduled maintenance outages of which we provide notice on the RealTrack GPS Website or by email, and (2) regular backup and maintenance performed (without further notice) between 2 a.m. and 5 a.m. Eastern Time Zone. Other than the Service Guarantee, we make no guarantee as to the continuous availability of the Service or any specific feature of the Service. If the calling network component of the Service is unavailable, other than the maintenance and backup described above, more than 1% in any preceding 90 day period, we will, upon request from the registered Account holding Member, credit to the Account one day of time for every day of unavailability in excess of 1%, provided, however, that such credit cannot exceed the current monthly minimum service commitment level for that Account, or $50.00, whichever is less. This shall be your sole remedy for our failure to fulfill the Service Guarantee. You hereby waive all claims for damages for Service unavailability, scheduled or unscheduled other than claims under the Service Guaranty, and indemnify RealTrack GPS for any similar claims made by any other users on your Account. We may at any time change, modify, suspend, or discontinue any aspect of the Service at any time, including, without limitation, the availability of any Service feature, database or content, hours of availability, or equipment needed to access the Service. We may also impose limits on certain features or restrict your access
to parts or all of the Service without notice or liability. We do not guaranty that the Service may be accessed from all locations or with all equipment or types of communications access. We do not recommend, and do not support, use of the Service in mission critical situations or on mission critical equipment. While we will use reasonable efforts, we cannot promise that you or any Member will be able to maintain or keep any specific inbound telephone or toll-free number that we provide you and we do not support number portability. As between you and RealTrack GPS, we own all sim cards we provide as part of the Service and reserve the right to reallocate them at our discretion. No Emergency Notifications; Not for Use in any Emergency Situations While the Service is designed to promptly broadcast data and alert messages to a large group of recipients, it is intended for general business, organizational, and personal use and may not have the capacity to deliver messages of an emergency nature on an immediate basis. Accordingly we strongly recommend that alternative methods, specifically intended for mission critical or emergency services usage, be used, rather than the Service, to deliver emergency messages of any urgent, public safety or similar nature. You agree that RealTrack GPS has no liability to you arising out of or related to any such use and indemnify RealTrack GPS for any claim or liability, and all resulting costs, damages, and expenses (including reasonable attorney’s fees and expenses) arising out of your use of the Service for such purposes. Use Of RealTrack GPS Content and Software All information and materials published, transmitted, or otherwise available on the RealTrack GPS Website or through the Service (including, but not limited to, terms of service, use policies, service documentation, user help, informational resources, images, equipment configurations, interactive voice response, menus, audio clips, and video clips, collectively, “Content”) are protected by copyright or trademarked (as applicable), and owned or controlled by RealTrack GPS, its licensors, or affiliated companies. You shall abide by all copyright and trademark notices, limitations, and restrictions applicable to any Content or to the Service. Without limiting the foregoing, no Content may be copied, reproduced, republished, reused, uploaded, downloaded, posted, or transmitted, other than through the Service in accordance with its intended use, nor may derivative works be created from it or distributed in any way. The software, hardware, and other technologies which RealTrack GPS uses to deliver the Service (the “RealTrack GPS Technologies”) contain confidential and proprietary information, trade secrets, and other property rights belonging to RealTrack GPS and its licensors, and all rights to the RealTrack GPS Technologies and all property rights related to the Service, including without limitation all patents (registered or unregistered), trade secrets (including diagrams, drawings, processes, production methods, information, data, computer software, and formulas), copyrights (whether registered or unregistered), domain names and subdomains, end-user and consumer information, work product resulting from custom implementation services, and contract rights, including all derivative works thereof (whether produced by RealTrack GPS, you, or otherwise), shall remain exclusively with RealTrack GPS and its applicable licensors. Your rights to the RealTrack GPS Technologies are limited to a non-exclusive and non-transferable runtime right solely during the term of the applicable Account subscription and solely for the purpose of using the Service. All Service is hosted by RealTrack GPS and no software code (other than APIs if RealTrack GPS agrees to provide the same in its sole discretion) will be provided to you.
You may not modify, create derivative works or, redistribute, sell, decompile, reverse engineer, or disassemble the RealTrack GPS Technologies or otherwise attempt to deduce the source code, design, or data transmission characteristics of the RealTrack GPS Technologies. You may not use packet sniffers or other network or IP tracing technologies on the Service or with the RealTrack GPS Technologies except for the specific purpose of optimizing your network for use of the Service in accordance with RealTrack GPS Service documentation. Trademarks The brand names, slogans, trademarks, service marks, designs, and logos used on the RealTrack GPS Website or in conjunction with the Service, including without limitation REALTRACK GPS (collectively, the “Marks”) are the trademarks of RealTrack GPS and its licensors. You may not copy, display or use the Trademarks in any manner except as may be automatically displayed by the Service or the RealTrack GPS Website or as may be provided in a separate express written agreement with RealTrack GPS. Indemnification You agree to indemnify and hold harmless RealTrack GPS, and its subsidiaries, parents, affiliates, managers, shareholders, officers, directors, agents, resellers, sales affiliates, licensees or other partners, and employees, from all claims, demands, liabilities, losses, damages and expenses (including without limitation reasonable legal fees and expenses), arising from or in connection with your use of the Service, any other user’s use of your Account, or your or their conduct while using the Service, your violation of this Agreement, or your violation of any rights of another, including without limitation any violation of applicable law or any tort committed while using the Service. Disclaimer of Warranties TO THE MAXIMUM EXTENT PERMITTED BY LAW, REALTRACK GPS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, THE ACCOUNT, THE SOFTWARE, THE REALTRACK GPS WEBSITE, OR ANY OTHER SERVICE OR MATERIALS PROVIDED BY REALTRACK GPS. REALTRACK GPS MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICE. THE SERVICE IS PERFORMED AND THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EACH OF WHICH IS HEREBY DISCLAIMED). YOU ARE SOLELY RESPONSIBLE FOR THE BACKUP OF ANY DATA WHICH YOU MAY REQUIRE BE STORED IN RESPECT OF THE SERVICE. IN PARTICULAR, EXCEPT AS PROVIDED UNDER THE SERVICE GUARANTEE, REALTRACK GPS DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE IS BORNE BY YOU. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT AND THE SERVICE WOULD NOT BE AVAILABLE WITHOUT IT. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO PORTIONS OF THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL
RIGHTS THAT VARY BY JURISDICTION.