TracPoint owns and operates the Tracpoint.com web site (our "Site"), on which we provide a service that enables customers (each a "Customer", or "you," "your," etc.) to perform field data collection on mobile devices and to store Subscriber Content (as that term is defined below). The service may also include installation and operation of one or more downloadable software applications from us intended for integrated use therewith (with the Site, such service, and such software applications collectively and individually being referred to as the "Service"). Your use of our Service is subject to the terms and conditions set forth in these Terms of Service (these "Terms" or the "Terms of Service"). These Terms govern your use of the Service whether or not you are a registered user.
These Terms constitute a legally binding agreement by and between you and us. By accessing and using the Service, you accept these Terms and agree to the provisions, terms, conditions, and notices contained or referenced herein whether or not you become a registered user. You also consent to the processing and storage of Subscriber Content and acknowledge that we are simply a data processor, as that term is generally defined.
Your access to and use of our Services is conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms. If you do not agree with these terms, do not use the service. We acknowledge that each Customer may authorize multiple Members (as defined below) to use the Service under that Customer's particular Account (as defined below). Access to or use of the Service by you shall cause these Terms and Conditions to be binding upon yourself, the primary Account holder to your respective Account, and all Members under such Account.
On the condition that you comply with all your obligations under the Terms we grant to each Customer a limited, royalty-free, non-exclusive, non-transferable, terminable right and license to use the Service, which includes downloading, installing, and operating the mobile software application components, all in accordance herewith and with such instructions and documentation as we may post on the Site or otherwise promulgate from time to time. This license is for the sole purpose of using the Service for its intended purpose as outlined in the Terms. You may not copy, modify, adapt, distribute, sell, lease, or reverse engineer any part of our Service or software.
We reserve the right to make changes to these Terms at any time without notice to you by posting the changed Terms on the Site or by otherwise making them available to you with reasonable prominence. All changes shall be effective immediately thereupon. Please check these Terms periodically for changes. Your continued use of the Services after the posting of changes constitutes your binding acceptance of such changes. We may change the features and functions of the Service, including the API (defined below), over time. It is your responsibility to ensure that calls or requests made to the Service are compatible with the current API. We will make reasonable attempts to avoid changes to our APIs that are not backwards compatible, and we will make reasonable efforts to notify you of any changes to that effect prior to implementation if they become necessary.
To use the Service, you must register for a TracPoint account (the "Account"). You are solely responsible for any and all activity under your Account. Your account supports the addition of other users ("Members") to collaborate and share Subscriber Content. Each Member within your TracPoint account may use the Service on his or her own mobile device. Each user must be assigned to a separate Member account. Sharing of Member accounts between multiple individuals is not permitted.
You agree to use our Service responsibly, with good judgment, and in a manner conforming at minimum to prevailing standards for internet etiquette, and you are solely responsible for all acts that occur under your Account. For example and without limitation, while using the Service you agree not to: (i) violate any applicable law or regulation; (ii) infringe the rights of any third party, including without limitation, intellectual property, privacy, and contractual rights; (iii) use information obtained through our Service for any unauthorized, improper, or illegal purpose; (iv) interfere with or damage our Service, including without limitation through the use of viruses, bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing, forged electronic mail address information, means to reproduce or circumvent the navigational structure or presentation of the Service or its content, or similar methods or technology; (v) use our Service (1) to collect, transmit, distribute, post, or submit any unauthorized personal information concerning anyperson (including without limitation photographs, personal contact information, or numbers of credit, debit, or calling cards or accounts) without their proper consent or (2) to track an individual; (vi) use our Service in connection with the distribution of unsolicited commercial email ("Spam") or advertisements; (vii) stalk or harass any person; (viii) collect any information about any other user other than as customarily arises in the course of permitted use of our Service; (ix) remove any copyright, trademark, or other proprietary right notices or legends contained in the Service; (x) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile, or otherwise disassemble any portion of the Service or our Site or any software used on or for the Service; (xi) use the Service to collect information about or from minors without proper consent, or (xii) assist or facilitate any third party in doing any of the foregoing. In order to protect the integrity of the Service, we reserve the right at any time in our sole discretion to block users on certain IP addresses from accessing our Site.
For purposes of these Terms of Service, "Subscriber Content" shall mean data entered into the Tracpoint application by your or your Member users.
By entering, submitting, or uploading any Subscriber Content, you acknowledge, agree, represent, and warrant to us that: (i) the Subscriber Content has been collected in compliance with all applicable laws, regulations, and policies; (ii) the Subscriber Content does not contain any confidential or proprietary information that you do not have authority to submit; (iii) you have the right to submit such Subscriber Content for storage and use or have received all necessary consents and approvals; (iv) you will use the Subscriber Content in compliance with all applicable laws, regulations, and policies; (v) your use of the Subscriber Content does not infringe or violate the rights of any third party; and (vi) you are not entitled to any kind of compensation or reimbursement of any kind from us for your Subscriber Content. You grant us the right to delete, remove or disable any Subscriber Content that we determine does not comply with these Terms of Service.
Unless otherwise specified in any other document executed between you and us pertaining to specific content, you will continue to own all Subscriber Content you enter, submit, or upload. You grant us a royalty-free, worldwide, non-terminable, assignable, right and license to use, copy, and make derivative works of, your Subscriber Content for the sole purpose of operating the Service.
Subscriber Content of third parties and other information entered, submitted, or uploaded through the Service by third parties are the property of their respective authors and should not necessarily be relied upon by you for any purpose. We do not guarantee the accuracy or completeness of any Subscriber Content on the Service nor do we monitor Subscriber Content for accuracy. We take no responsibility and assume no liability for any Subscriber Content that you or any other user posts or sends over the Site.
Username and Password
Upon registering for an account with a valid email address, you will select a username and password. You are solely responsible for maintaining the confidentiality of your username and password, and you will not share this information with others. You will ensure that all Members within your account comply with these Terms. In the event of a breach of your account or password, you agree to notify us immediately of any unauthorized use and to comply with our reasonable instructions. We will not be liable for any loss or damage arising from your refusal or failure to comply with this section of the Terms.
When you are using the Tracpoint application programming interface (API), requests you make to the API are authenticated using your account's unique API key. Just as with your password, you are responsible for maintaining the confidentiality and usage of your API key. You are solely responsible for all usage of the Service under your account, authorized or unauthorized, including any usage of your API key.
We may from time to time audit your use of the Tracpoint API to ensure compliance with these terms.
We take data security very seriously and will vigorously pursue all actual or threatened security breaches. Please report any security concerns to firstname.lastname@example.org.
Registration and Payments
As a registered Service user, you may participate in some, but not all, of the features and services available within the Service. Some of the Services require payment. By subscribing to the Services that require payment, you agree to be charged on a recurring basis for subscription fees in advance of our providing such Services to you. The subscription fee is billed on the first day of each billing period, unless or until you cancel your subscription. Fees are payable in advance as billed and are non-refundable unless otherwise stated. We do not give pro-rated refunds for unused time if you cancel during the middle of a billing cycle.
We are not responsible for any additional bank fees, interest charges, finance charges, overdraft charges, or other fees resulting from charges billed by Fulcrum. Currency exchange settlements will be based on agreements between you and the provider of your credit card.
We reserve the right to modify our fees, but will notify you in advance of increases.
The Subscriber Content and materials available on our Site are protected by our or third parties' rights of publicity, copyright, trademarks, service marks, patents, trade secrets, and other proprietary rights and laws. Unless you have been given express written permission, you may not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works of any such materials or Subscriber Content available on our Site. Notwithstanding the above, you may use the Subscriber Content and materials on our Site for its intended purpose through the ordinary course and scope of our Service and in compliance with the Terms of Service.
You may not use of any of our trademarks in any manner, including as metatags on other web sites. You may not display any of our Site in a frame unless done through a supported, built-in feature of the Service (or any of our Subscriber Content via in-line links) without our express written permission, which may be requested by contacting us. You may, however, establish ordinary links to the homepage and other sections of our Site without our written permission.
If the Customer is the U.S. Government or an agency or department therefore (collectively "Government"), the Service is provided with RESTRICTED RIGHTS; use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights clause at 48 C.F.R. 52.227-19.
Third Party Websites
We may provide links to third-party websites on the Site, and some of the Subscriber Content is supplied by third parties. We have no responsibility or accountability for these third-party websites or the Subscriber Content they enter, submit, or upload. A link to another website or service is not an endorsement of that website or service or the information it provides. Your use of any of the information on this Site is at your own risk.
Account Suspension or Cancellation
In our sole discretion, we may terminate your access to our Service for any reason or no reason, including without limitation your breach of these Terms. If your account is terminated, your access to our Service may be affected without prior notice. We may immediately deactivate or delete any of your accounts and all related information and files in such accounts, and bar any further access to such files or our Service. We may refund unused prepaid fees, but are not obligated to. You agree that we will not be liable to you or any third party for any loss or damages of any kind resulting from any termination of your access to our Service. To voluntarily terminate your access to the Service at any time via our Site, simply follow the directions provided on the Site. If for some reason you cannot sign in, you may terminate your account by sending us written or email notice of termination to email@example.com.
Upon discontinuation or termination, you will no longer have access to your Subscriber Content. We shall, however, retain a non-terminable, royalty-free, assignable worldwide license to use the Subscriber Content.
All systems used to process and store Subscriber Content will adhere to commercially reasonable security standards. We may process and store Subscriber Content with a third party in the United States or any other country in which such third parties maintain facilities.
We may, but are not obligated to, provide assistance and guidance respecting our Service through our representatives. When communicating with our representatives, you may not be abusive, obscene, threatening, harassing, or racially offensive, or otherwise behave inappropriately. If we feel that your behavior towards any of our representatives is at any time threatening or offensive, we reserve the right to immediately terminate your access to our Service. We offer premium support options for additional cost to provide guarantees and priority response. You must execute a separate support contract with us to receive premium support.
Representation and Warranties
You hereby represent and warrant to us that: (a) you have the complete right, ability, and authority to enter into and perform under these Terms; and (b) your use of our Service will not violate any of these Terms.
IF YOU USE OUR SERVICE, YOU DO SO AT YOUR OWN AND SOLE RISK. OUR SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF EVERY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
WE DO NOT WARRANT THAT: (A) OUR SERVICE WILL MEET YOUR REQUIREMENTS; (B) OUR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) ANY Subscriber Content THAT YOU MAY OBTAIN ON OUR SERVICE WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIALS PURCHASED OR OBTAINED BY YOU THROUGH OUR SERVICE WILL MEET YOUR EXPECTATIONS; OR (E) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED. WE ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS, PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF COMMUNICATION ON ACCOUNT OF TECHNICAL PROBLEMS, OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO USERS OR TO ANY OTHER PERSON'S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE WEB OR IN CONNECTION WITH THE SERVICE. UNDER NO CIRCUMSTANCES WILL WE, OR ANY OF OUR AFFILIATES, OR DISTRIBUTION PARTNERS, BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE'S USE OF THE SITE OR THE SERVICE.
NO DATA, INFORMATION OR ADVICE OBTAINED BY YOU IN ORAL OR WRITTEN FORM FROM US OR THROUGH OR FROM OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
Limitation of Liability
YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM, RELATING TO, OR CONNECTED WITH: (A) THE USE OR INABILITY TO USE OUR SERVICE; (B) THE COST OF REPLACEMENT OF ANY Subscriber Content STORED OR MANAGED USING OUR SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR Subscriber Content; (D) STATEMENTS, CONDUCT, OR OMISSIONS OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY ON OUR SERVICE; OR (E) ANY OTHER MATTER ARISING FROM, RELATING TO, OR CONNECTED WITH OUR SERVICE OR THESE TERMS.
WE WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS WHERE SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING NATURAL CATASTROPHES, GOVERNMENTAL ACTS OR OMISSIONS, LAWS OR REGULATIONS, TERRORISM, LABOR STRIKES OR DIFFICULTIES, COMMUNICATIONS SYSTEMS BREAKDOWNS, HARDWARE OR SOFTWARE FAILURES, TRANSPORTATION STOPPAGES OR SLOWDOWNS, OR THE INABILITY TO PROCURE SUPPLIES OR MATERIALS.
IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM, RELATING TO, OR CONNECTED WITH OUR SERVICE OR THESE TERMS EXCEED THE AMOUNT, IF ANY, THAT YOU HAVE PAID TO US IN CONNECTION HEREWITH DURING THE THEN IMMEDIATELY PRECEDING 60 DAYS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS HEREIN MAY NOT APPLY TO YOU.
You agree to defend, indemnify, and hold harmless us, our subsidiaries, parents, affiliates, and each of our and their directors, officers, managers, members, partners agents, and employees from and against each and every claim, demand, action, damage, loss, cost or expense, including without limitation reasonable attorneys' fees, incurred in connection with any suit or proceeding brought against us arising out of your use of our Service or alleging facts or circumstances that could constitute a breach by you of any provision of these Terms or any of the representations and warranties set forth above. If you are obligated to indemnify us, we will have the right in our sole and unfettered discretion to control any action or proceeding and determine whether we wish to settle it, and if so, on what terms.
We agree to defend, indemnify, and hold harmless Customer and its Members from and against each and every third party claim, demand, action, damage, loss, cost or expense, including without limitation reasonable attorneys' fees, incurred in connection with any suit or proceeding brought against you arising out of any claim that the Service infringes any third party U.S. copyright.
Digital Millennium Copyright Act Compliance
If you are a copyright owner or an agent thereof, and believe that any user submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with all of the following information in writing (see 17 U.S.C512(c)(3) for further detail):
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works from us;</li>
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address;</li>
A statement that the complaining party has 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 the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
These Terms shall be interpreted in accordance with the laws of the State of Massachusetts without reference to conflict of law principles. These Terms contain the entire understanding of the parties regarding their subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding their subject matter. No failure or delay by a party in exercising any right, power or privilege under these Terms shall operate as a waiver thereof. The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect. You may not transfer any of your rights under these Terms of Service to any other person. The provisions stated above are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
All disputes arising out of or relating to these Terms or your use of our Service will be exclusively resolved in state or federal court located in Boston, Massachusetts. Each party hereby irrevocably submits to the personal jurisdiction of such courts.