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Trackion's Terms of Use
Trackion Customer Agreement

Read This Customer Agreement Carefully Before Using Our Services.

The terms and conditions of this Agreement shall govern the relationship between you ("Customer") and Trackion ("Trackion®"). Trackion provides its services, as they may exist from time to time ("Services"), to Customers who establish an account with Trackion. By establishing an account or using any software provided, developed, licensed or owned by Trackion (the "Software"), you agree to be bound by this Agreement and to use the Services in compliance with this Agreement and other Trackion policies posted on our Web site.

Subscription Requirements

Customers must be at least 18 years old. Current prices for Trackion's Services are posted on our Web site at http://www.trackion.com. Trackion reserves the right to change prices and institute new fees at any time.

Payment Obligations Of A Customer

Customers must (1) provide Trackion with accurate and complete billing information including legal name, address, telephone number and credit card/billing information, and (2) report to Trackion all changes to this information within 30 days of the change. Customers are responsible for any charges to their account.

Customers having questions regarding charges to an account should contact Trackion's Customer Service Department by email at service@trackion.com. All charges are considered valid unless disputed in writing within 60 days of the billing date. Adjustments will not be made for charges that are more than 60 days old.

Charges are billed to Customers' credit cards each month for the applicable service plan and any additional usage or services. Trackion is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by Trackion.

Delinquent accounts may be suspended or canceled at Trackion's sole discretion; however, charges will continue to accrue until the account is canceled and collection fees, late charges or other similar fees may be added. Trackion may bill an additional charge to reinstate a suspended account.

Customer's Account, Password And Security

Upon registration, you will receive a username and password. You are the only authorized Customer of your Trackion account, except if expressly specified, and you must comply with this Agreement. You should keep your password confidential so that no one else may access the Services through your account. Please notify Trackion immediately upon discovering any unauthorized use of your account.

Usernames and passwords are Trackion's property and Trackion may alter or replace them at any time.

Monitoring The Services

Trackion has no obligation to monitor the Services, but may do so and disclose information regarding use of the Services for any reason if Trackion, in its sole discretion, believes that it is reasonable to do so, including to: satisfy laws, regulations or governmental or legal requests; operate the Services properly; or protect itself and its Customers.

Software License

BY INSTALLING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND ARE CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT INSTALL OR USE THE SOFTWARE.

Trackion grants to each Customer a limited, nonexclusive, nontransferable and nonassignable license to install and use the Software, its associated documentation, and any updates thereto ("Licensed Programs") solely for personal or internal business purposes, including accessing and utilizing the Services. Trackion may modify the Licensed Programs at any time, for any reason, and without providing notice of such modification to its Customers. This license does not entitle Customer to receive hard-copy documentation, technical support, telephone assistance or enhancements or updates to the Licensed Programs.

You may not: (1) redistribute the Licensed Programs; (2) permit other individuals to use the Licensed Programs; (3) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) or create derivative works based upon the Licensed Programs; (4) copy the Licensed Programs (except for back-up or archival purposes); (5) rent, lease, transfer, encumber, sublicense or otherwise transfer rights to the Licensed Programs; or (6) remove any proprietary notices or labels on the Licensed Programs. Any such forbidden use shall immediately terminate your license to the Licensed Programs. You also agree to only use the Licensed Programs in a manner that complies with all applicable laws in the jurisdictions in which you use the Licensed Programs, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.

The Licensed Programs may automatically communicate with Trackion's servers on the Internet to check for updates to the Licensed Programs, such as bug fixes, patches, enhanced functions and new versions. Trackion will notify you when updates are available. If you decide to update, you agree that Trackion may download updates and install them as part of the Licensed Programs. All such updates to the Licensed Programs are governed by this Agreement, unless other license terms are provided with the update. Although Trackion uses encryption technology to provide security for the auto update process, Trackion is not responsible for the failure of such security measures.

Title, ownership rights and intellectual property rights in and to the Licensed Programs shall remain in and with Trackion and/or its licensors. The Licensed Programs constitute confidential and proprietary information of Trackion and Trackion's licensors and embody trade secrets and intellectual property protected under United States copyright laws, other laws and international treaty provisions. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Trackion's or its licensors' ownership of or rights with respect to the Licensed Programs. You agree, at your expense, to defend and hold Trackion and its affiliates, officers, directors and employees harmless from any and all costs, damages and reasonable attorneys' fees resulting from any claim that your use of the Licensed Programs have injured or otherwise violated any right of any third party or violates any law.

You may not download, use or otherwise export or re-export the Licensed Programs or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. By installing or downloading the Licensed Programs, you represent and warrant that you are not located in, under the control of or a national or resident of any country on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. You agree to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Licensed Programs or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Licensed Programs from the U.S.

This license will automatically terminate if you fail to comply with any term hereof. No notice shall be required from Trackion to effect such termination. You also may terminate this license at any time by notifying Trackion in writing of termination, destroying all copies of the Licensed Programs or by returning all of such copies to Trackion. Upon any termination of this license, you shall immediately discontinue use of the Licensed Programs.

Disclaimer Of Warranties And Limitation Of Liability

EXCEPT FOR CERTAIN PRODUCTS AND SERVICES SPECIFICALLY IDENTIFIED AS BEING OFFERED BY TRACKION, TRACKION DOES NOT CONTROL ANY MATERIALS, INFORMATION, PRODUCTS, OR SERVICES ON THE INTERNET. THE INTERNET CONTAINS UNEDITED MATERIALS, SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO YOU. TRACKION HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY FOR SUCH MATERIALS. YOU ASSUME FULL RESPONSIBILITY AND RISK FOR USE OF THE SERVICES AND THE INTERNET AND ARE SOLELY RESPONSIBLE FOR EVALUATING THE ACCURACY, COMPLETENESS, AND USEFULNESS OF ALL SERVICES, PRODUCTS AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE SERVICE OR THE INTERNET.

THE SERVICES AND THE LICENSED PROGRAMS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TRACKION DOES NOT WARRANT THAT EITHER THE SERVICES OR THE LICENSED PROGRAMS WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TRACKION MAKES NO EXPRESS WARRANTIES AND CUSTOMER WAIVES ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH TRACKION OR THE INTERNET GENERALLY. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THERE ARE AND ASSUMES ALL RESPONSIBILITY RELATED TO THE SECURITY, PRIVACY AND CONFIDENTIALITY RISKS INHERENT IN WIRELESS COMMUNICATIONS AND TECHNOLOGY AND TRACKION DOES NOT MAKE ANY ASSURANCES OR WARRANTIES RELATING TO SUCH RISKS. NO ADVICE OR INFORMATION GIVEN BY TRACKION OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. ANY STATEMENTS MADE IN PACKAGING, MANUALS OR OTHER DOCUMENTS, OR BY ANY OF TRACKION’S AGENTS IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS WARRANTIES BY TRACKION OF ANY KIND. TRACKION AND ITS EMPLOYEES ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICES, THE LICENSED PROGRAMS OR THE INTERNET INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, TRACKION'S CUMULATIVE LIABILITY TO ANY CUSTOMER FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES AND/OR LICENSED PROGRAMS SHALL BE TO RECOVER THE ACTUAL DAMAGES CUSTOMER INCURS BASED UPON REASONABLE RELIANCE ON THE SERVICES AND/OR LICENSED PROGRAMS UP TO FIVE U.S. DOLLARS (US $5.00).

Web Site Usage

Our Web site on the World Wide Web at the domain "http://www.trackion.com" or any other site operated by Trackion is a complimentary information service offered by Trackion at no charge to Customers. We may provide links on the Web site to other Web sites that are not under our control. These links are provided for convenience only and are not intended as an endorsement by Trackion of the organization or individual operating the Web site or a warranty of any type regarding the Web site or the information on the Web site.

Your posting of material on the Web site or providing material to Trackion to use on the Web site will be deemed to be a grant by you to Trackion of a license to the material to include the material on the Web site and to reproduce, publish, distribute, perform, display and transmit the material and to prepare derivative works as may be reasonably necessary to do so, and you waive all rights of attribution and integrity with respect to the material.

Acceptable Use Policy

All Customers of the Services and users of this Web site and/or the Software agree to and must comply with this Acceptable Use Policy (AUP). This AUP is intended to improve the use of the Internet by preventing unacceptable uses. Trackion may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong. Violation of this AUP may result in the suspension or termination of either access to the Services and/or Trackion account or other actions as detailed below.

The following constitute examples of violations of this AUP. You agree to not use the Services to:

(1) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

(2) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;

(3) resell the Services without Trackion's authorization;

Trackion requests that anyone who believes that there is a violation of this AUP direct the information to: service@trackion.com. If available, please provide the following information: (1) the IP address used to commit the alleged violation; (2) the date and time of the alleged violation, including the time zone; and (3) evidence of the alleged violation. When reporting an issue regarding unsolicited email please provide a copy of the email messages with full headers which typically provides all of the above data. Other situations will require different methods of providing the necessary information.

Trackion may take any one or more of the following actions, or other actions not listed, at Trackion's sole discretion in response to complaints: (1) issue warnings: written or verbal; (2) suspend the Customer's account; (3) terminate the Customer's account; (4) bill the Customer or user for administrative costs and/or reactivation charges, with a minimum administrative cost; or (5) bring legal action to enjoin violations and/or to collect damages, if any, caused by violations.

Term Of Agreement

Continued use of the Services constitutes acceptance of this Agreement and any future versions. If you are dissatisfied with the Services or any related terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the Services and terminate your account.

Legal Notices

All content included on this Web site, including, but not limited to, text, graphics, logos, buttons, icons, images and software, is the property of Trackion or its licensors or partners and is protected by U.S. and international copyright and trademark laws. Reproduction, duplication, modification, distribution, transmission, replication, display or performance of the content of this Web site without the express written permission of Trackion is strictly prohibited.

Termination

You may terminate your account at any time and for any reason by providing notice of intent to terminate to Trackion at least 5 business days prior to the end of your billing cycle. Notice may be provided by: registered or certified mail, return receipt requested addressed to Trackion, Customer Service, 7941 Dunbarton Ave, Westchester, CA, 90045. Your termination will only be complete upon your receipt of a cancellation confirmation number from Trackion. If a termination notice is received at least 5 business days prior to the end of your current billing cycle, termination of your account will be effective at the end of your then current billing cycle. If a termination notice is received less than 5 business days prior to the end of your current billing cycle, charges to your account may continue until the end of the following billing cycle.

Without prior notice, Trackion may terminate this Agreement, your password, your account or your use of the Services, for any reason, including, without limitation, if Trackion, in its sole discretion, believes you have violated this Agreement or any of the applicable Customer policies, or if you fail to pay any charges when due. Trackion may provide termination notice to you by: email addressed to your email account or by US Mail or courier service to the address you provided for the Services. All notices to you shall be deemed effective on the first (1st) calendar day following the date of electronic mailing or on the fourth (4th) calendar day following the date of first-class mailing or deposit with a commercial courier service.

Sections of this Agreement relating to (1) your payment obligations, (2) your account, password and security, (3) disclaimer of warranties and limitation of liability and (4) jurisdiction shall survive termination of this Agreement.

Refund and Cancelation Policy

If you are unsatisfied with Trackion for any reason, cancel within 30 days of your signup date for a full refund of any charges.

If you wish to cancel after 30 days, for any reason you can do so by providing notice of intent to terminate to Trackion at least 5 business days prior to the end of your billing cycle. Notice may be provided by: registered or certified mail, return receipt requested addressed to Trackion, Customer Service, 7941 Dunbarton Ave. Westchester, CA, 90045. Your termination will only be complete upon your receipt of a cancellation confirmation number from Trackion. If a termination notice is received at least 5 business days prior to the end of your current billing cycle, termination of your account will be effective at the end of your then current billing cycle. If a termination notice is received less than 5 business days prior to the end of your current billing cycle, charges to your account may continue until the end of the following billing cycle.

Assignment

Customer may not assign his/her rights under this Agreement without Trackion’s prior written consent.

Mandatory Arbitration

ANY CLAIM OR DISPUTE BETWEEN CUSTOMER AND TRACKION ARISING UNDER OR IN ANY WAY RELATED TO OR CONCERNING THIS AGREEMENT, AND/OR TRACKION’S PROVISION TO CUSTOMER OF SERVICES OR LICENSED PROGRAMS, SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION WITH THE AMERICAN ARBITRATION ASSOCIATION ("AAA") PURSUANT TO ITS PUBLISHED ARBITRATION RULES, INCORPORATED HEREIN BY THIS REFERENCE AND AVAILABLE BY CALLING THE AAA AT 800-778-7879 OR VISITING ITS WEB SITE AT http://www.adr.org. Notice of an arbitration commenced by Customer must be served on Trackion’s registered agent. An arbitrator may only award as much relief as a court having jurisdiction in the place of arbitration, limited to the same extent that a court would limit such relief and consistent with the provisions of this Agreement. An arbitrator may not order consolidation or arbitration on a classwide basis and may order injunctive or declaratory relief pursuant to applicable law. The arbitral award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. Each party shall bear its own costs in connection with the arbitration; the cost of the arbitrator and the administration of the arbitration shall be borne in accordance with the directive of the arbitral award. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL, OR PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN A CLASS ACTION.

Jurisdiction

Under California Civil Code Section 1789.3, Customers who are residents of California are entitled to certain consumer rights information such as contact information of the provider of service and any changes to the consumer imposed by such provider. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814 or by telephone at (916)445-1254.

This Agreement is governed by California law without regard to conflict of law provisions. The federal and state courts located in Los Angeles, California alone have jurisdiction over all disputes arising out of or related to this Agreement and the Services. You consent to the personal jurisdiction of such courts sitting in Los Angeles, California with respect to such matters or otherwise between you and Trackion, and waive your rights to removal or consent to removal. Except as otherwise provided in this Agreement, and unless prohibited by law, any controversy, claim, or dispute must be brought by Customer within one (1) year of the date Customer is entitled to assert any such claim.

Miscellaneous

This Agreement, the Privacy Policy and Trackion's other Customer policies posted on Trackion's Web site constitute the entire agreement between you and Trackion with respect to your use of the Services. Trackion may revise, amend or modify this Agreement and any other Customer policies and agreements, at any time and in any manner. Trackion’s failure at any time to require strict performance by Customer or any other licensees of any of the provisions herein shall not waive or reduce Trackion’s right to thereafter require strict compliance with any provisions of this Agreement.