This TERMS OF SERVICE Agreement (the "Agreement" or the "Terms") is entered into by and between Track Your Truck ( "TYT"), a Virginia corporation, and the customer identified in the Order Form which provides the uniform resource locator for and incorporates by reference this Agreement ( "Customer"). This Agreement and the corresponding Order Form set forth the terms and conditions under which the Customer may license and use those Products and Services set forth in either the Order Form or the purchase orders provided to and accepted by TYT from time to time. The Order Form shall reference and be governed by this Agreement
Welcome to Track Your Truck! Please read these Terms of Service carefully because they govern your use of our Products and Services. The Customer, together with Track Your Truck, are referred to individually as a “Party” and collectively as the “Parties”.
1. DEFINITIONS.
1.1 "Apps" means software applications for smartphones and tablets distributed by TYT.
1.2 "Authorized User" means Customer’s employees and/or contractors whom Customer authorizes to use the TYT Software strictly on its behalf.
1.3 “Confidential Information”, unless stated otherwise in this Agreement, means trade secrets and other information, in whatever form or media, in the possession or control of TYT, which is owned by TYT or a third party with whom TYT has a business relationship, and which is not generally known to the public, or its nature is such that it would generally be considered confidential in the industry in which TYT operates, or which TYT treats as confidential or proprietary. Confidential Information includes, without limitation, the following: the Products, Services, and confidential or proprietary facts, data, techniques, materials and other information related to the Products or the Services of TYT, including all related developmental or experimental work or research, related documentation owned or marketed by TYT and related formulas, algorithms, patents, concepts, designs, flowcharts, ideas, programming techniques, specifications and software programs (including source code and object code), methods, processes, inventions, sources, drawings, prototypes and patterns. Confidential Information does not include information that is or becomes generally available to the public without your fault or that you can establish, through written records, was in your possession prior to its disclosure to you.
1.4 “Customer” means the above person or business entity to whom the Services and/or Software is licensed and to whom the Hardware is provided.
1.5 “Customer Data” means data captured by Customer’s use of the Hardware, data submitted by Customer or by a third party on Customer's behalf into Apps and Software, and the analysis, reports, and alerts generated by the Products containing such data.
1.6 “Default” means Customer’s payment of fees are fifteen (15) days or more past due.
1.7 “Documentation” means that certain TYT proprietary documentation in the form generally made available by TYT to its Customers for use with the Software.
1.8 “Equipment" means the equipment in which the Hardware is installed such as a vehicle, truck, bulldozer, or other such equipment.
1.9 “Fees” means the applicable fees for Products, Services, Hardware and Software as set forth in the Order Form and any applicable taxes.
1.10 “Firmware” means software embedded in or otherwise running on the Hardware.
1.11 “Hardware” means the Hardware provided or included with the Software, including, but not limited to, the Tracker, antenna, and cabling.
1.12 “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide
1.13 . “License” means the license to use the Software. The License is granted pursuant to the provisions of this Agreement.
1.14 “NetTrack” means TYT Software Application and all its components.
1.15 “Order Form” also known as a “Sales Order” means the completed TYT Order Form signed by the customer and specifying certain terms of the agreement and referencing the TYT Terms of Service. Each Order Form will incorporate this Agreement and will contain, without limitation: (i) Product and/or Service description (including the Terms of Service, if applicable); (ii) Price; (iii) Exceptions and Notations.
1.16 “Product(s)” means the Software, Hardware, and Documentation (including images) made available to Customer by TYT
1.17 “Refund” means an amount refunded to the Customer pursuant Section 10.6 of this Agreement.
1.18 “Service(s)” means the TYT vehicle tracking service including but not limited to: (i) the NetTrack web-based software (including all components and documentation); and (ii) Web Services Interface/API (including all components and Documentation).
1.19 “Software” means the computer programs and other information provided to the Customer either on-line, on electronic media, or embedded firmware in the Tracker.
1.20 “Term of Service” means a period of time as defined by the Order Form.
1.21 “Tracker” means the vehicle tracking device.
1.22 “Web Services Interface” means software developed by TYT either installed on a Customer's file server(s) or accessed directly via a direct ODBC, XML, web API, or similar interface to TYT for the purpose of providing vehicle tracking information for integration into the Customer's third-party software or programs
1.23 “Web User” means a single login/password access to the TYT application that can be used or controlled by only one person at a time.
2. AGREEMENT TO TERMS.
By executing an Order Form or other contract that references these Terms, by purchasing Products or otherwise entering into an Order Form or other contract with TYT, a TYT reseller, or any other entity or individual for the purchase of Products or under which Products are made available to you, or by otherwise accessing and/or using the Products, whichever is the earlier, you accept and agree to be bound by these Terms. If you do not agree to these Terms or you are not authorized to access and/or use the Products, you shall not access or use the Products. If you are accessing and/or using the Products on behalf of a company (such as your employer) or other legal entity that is our Customer, you agree to these Terms on behalf of such company or other legal entity, and you represent and warrant that you have the authority to bind such company or other legal entity to these Terms. If you have entered into a separate contract with TYT with respect to your purchase of Products or under which Products are made available to you, to the extent there is a conflict between such separate contract with TYT and these Terms, such separate contract with TYT shall prevail. References to “you” and “your” in these Terms refer to that company or other legal entity, our Customer.
3. CHANGES TO TERMS OF SERVICE.
TYT may modify the Terms at any time, in our sole discretion. If TYT does so, TYT will inform you by posting the modified Terms on our website or through other communications with you. It’s important that you review the Terms whenever TYT modifies them because if you continue to use the Products after TYT has posted or otherwise informed you of the modified Terms, you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you must not continue to use the Products or Services.
4. USE OF PRODUCT; LICENSE.
4.1 License. Subject to these Terms or an applicable Order Form, and in consideration of Customer's payment of all Fees, TYT grants to Customer a non-sublicensable, non-exclusive, non-transferable, limited and revocable license to use the Products and Services specified in the Order Form. Customer must purchase a separate license for each Web Services Interface/API.
4.2 License Restrictions. Customer agrees not to do or attempt to do any of the following without TYT’s express prior written consent: (i) resell, white label, or reproduce the TYT Software or any individual element within the TYT Software, TYT’s name, any TYT trademark, logo or other Confidential Information, or the layout and design of any part of the TYT Software; (ii) access, tamper with, or use non-public areas of the TYT Software systems; (iii) gain unauthorized access to, interfere with, disable, or disrupt the integrity or security of the TYT Software systems; (iv) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented to protect the TYT Software systems or enforce a contractual usage limit; (v) transfer, copy, modify, sublicense, lease, lend, rent or otherwise distribute the TYT Software to any third party; (vi) decipher, decompile, disassemble or reverse engineer any aspect of the TYT Software, in whole or in part; (vii) impersonate or misrepresent an affiliation with any person or entity; (viii) use or access the TYT Software for any competitive purpose; (ix) perform benchmark testing on the TYT Software; (x) use the TYT Software to store or transmit malicious code; (xi) use the TYT Software to store or transmit infringing, libelous, defamatory, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (xii) violate any applicable law or regulation; or (xiii) authorize,permit, encourage, or enable any other individual or entity to do any of the foregoing. TYT has the right to investigate violations of this section or conduct that affects the TYT Software systems and immediately suspend or terminate any or all of Customer’s access to the TYT Software if it reasonably suspects or determines that Customer has violated this section. TYT may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. TYT retains title to the Software and Documentation and any copies thereof, including the originals provided with this Agreement. All Product and Services pricing and descriptions are set forth in the Order Form.
5. OWNERSHIP: RESTRICTED USE.
5.1 Intellectual Property Rights; Title. Customer acknowledges that all right, title and interest, including without limitation all Intellectual Property Rights in and to the Service, remain in TYT and/or its third-party licensors and suppliers, and that Customer shall not acquire any right, title, or interest in or to the Service, except as expressly set forth in this Agreement.
5.2 Restricted Use. Except as otherwise expressly provided in this Agreement, Customer has no right to transfer, sublicense or otherwise distribute the Product, in whole or in part, to any third party. Customer agrees not to, or to allow others to: (i) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer the Product or create any derivative works based on the Product, Documentation or any component thereof, including without limitation, the source code and any other underlying ideas or algorithms of the Software or graphic user interface; (ii) copy the Software or Documentation; (iii) use the Service for high risk activities as defined below; (iv) transfer, sublicense, loan, sell, lease or use for timesharing or service bureau purposes the Product or any component thereof; or (v) ship, divert, transship, transfer, export or re-export the Products or any component thereof into any country or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Department's Bureau of Export Administration, the U.S. Department of Treasury's Office of Foreign Assets Control or any other applicable government agency. For the avoidance of doubt, nothing in this Agreement grants to Customer any rights whatsoever in or relating to the source code of the Software.
6. SERVICES AND SUPPORT.
6.1 Technical Support Services ("TSS"). TYT shall provide TSS for the Product and Services during the Customer's Term of Service. All TSS shall be handled remotely by phone and email only. TYT does not provide on-site TSS. TSS shall include: (i) Hardware installation guidance, consulting and troubleshooting; (ii) Software, specifically use of NetTrack; (iii) configuration of the Web Services Interface/API. While TYT will perform best-effort TSS, Customer acknowledges that issues related to Customer's: (i) computer skills; (ii) internet connection; (iii) network; and (iv) computer systems may cause TSS to be incomplete at no fault of TYT. Customer agrees and understands that improper installation of the Hardware or maintenance of the Equipment into which Hardware is installed can lead to damage of such equipment or dangerous or life-threatening conditions, which can cause property damage, bodily injury, and/or death, and that TYT shall not be liable for any injury to property or person as a result of improper installation of the Hardware or maintenance of the Equipment.
6.2 Product Updates. TYT continuously improves the Products and Services and may from time to time (i) update the TYT Software and cause Firmware updates to be automatically installed onto Hardware; (ii) update the Apps; or (iii) upgrade Hardware equipment to newer models. TYT may change or discontinue all or any part of the Products or Services, at any time and without notice, at TYT’s sole discretion. If TYT discontinues supporting the Products or Services you have ordered from TYT in accordance with these Terms prior to the applicable license expiration date without offering to replace them with an updated version or newer model, you may request an updated Product or Service at cost. If your Product or Service ceases to work properly, TYT may offer an updated Product at cost. Receiving an updated Product or Service results in the Customer agreeing to be bound by these Terms. Updates or upgrades to Products or Services may include security or bug fixes, performance enhancements, or new functionality, and may be issued with or without prior notification to Customer. Customer hereby consents to such automatic updates.
6.3 Training. TYT will provide one (1) remote user training session for NetTrack during TYT normal business hours. The session will use a remote desktop connection service requiring the user to have a high-speed internet service in order to participate in the training session. Additional training sessions may be purchased.
6.4 In-Software Help. TYT will provide help tutorials and hints in the software which the Customer may view.
6.5 Training Videos. TYT may provide training videos which the Customer may choose to review. These videos are the property of TYT and may not be used by the Customer, without express written consent from TYT, for purposes other than the training of customer employees.
6.6 Data Retention. The data sent by the Tracker is considered property of the Customer, including messages, statuses, GPS location, speed, heading, sensor and all other transmissions as relates to the tracking and messaging of the Customer's vehicle(s) or driver(s). TYT will not share Customer Data without Customer consent, except when the release of data is compelled by law or permitted herein. TYT will store this data for use in NetTrack for 125 days. The Customer may change this data retention period, either increasing or decreasing thestorage period, by contact TYT. TYT may charge the Customer additional fees for an increase in the data retention period. When a vehicle is cancelled or deactivated, TYT will delete all data associated with this vehicle. Once Customer Data is deleted, there is no possibility of recovery of the data. The Customer should, at their own volition and expense, download and archive the data during the data retention period as needed.
6.7 Customer Data Representation and Warranty. Customer represents and warrants that: (i) Customer will obtain all rights and provide any disclosures to or obtain any consents, approvals, authorizations and/or agreements from any employee or third party that are necessary for TYT to collect, use, and share Customer Data in accordance with these Terms (ii) no Customer Data infringes upon or violates any other party’s intellectual property rights, privacy, publicity or other proprietary rights and (iii) Customer will adhere to all applicable state, federal and local laws and regulations in the conduct of its business in relation to TYT and its receipt and use of the Products. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS TYT AND, IF RELEVANT, ITS SUBPROCESSORS AGAINST ANY LIABILITIES, DAMAGES, DEMANDS, LOSSES, CLAIMS, COSTS, FEES (INCLUDING LEGAL FEES), AND EXPENSES IN CONNECTION WITH ANY THIRD-PARTY LEGAL OR REGULATORY PROCEEDING ARISING FROM ANY ACT OR OMISSION OF THE CUSTOMER IN RELATION TO CUSTOMER INSTRUCTIONS OR FROM THE CUSTOMER’S BREACH OF THIS SECTION.
7. FEES, SHIPPING, AND DELIVERY.
7.1 Fees. Customer shall remit to TYT all fees stated on the Order Form including fees associated with: (i) monthly usage; (ii) setup; (iii) shipping and handling; (iv) Hardware; (v) Web User; (vi) taxes; (vii) miscellaneous fees. 100% of the Hardware fee is due in advance. Recurring fees are billed in advance beginning at the time the hardware is shipped. Payment terms for recurring fees are net 15 days. Late charges of 18% annual interest shall be applied to all past due accounts. If Customer is in Default, TYT reserves the right to suspend service and/or bring Customer’s account current by means which include, but are not limited to, charging the credit/debit card or ACH on file. Customer agrees to pay all costs and expenses of every kind for collection of past due amounts, including court costs and attorney fees. All shipments are FOB.
7.2 GPS Overages. Tracker can operate 24 hours a day, 7 days a week and incur no overage fees so long as the Tracker is maintained and wired per TYT installation instructions. Trackers that are not wired and/or installed correctly may produce excessive data usage which will incur overage charges of $0.05 per KB.
7.3 GPS Coverage and Accuracy. The Global Positioning System is a constellation of satellites owned and operated by the United States Government. The accuracy of the location is generally accepted to be 100 meters; however, accuracy is typically better. TYT cannot guarantee the accuracy of the GPS location but uses best practices to determine and report the most accurate location available from the GPS receiver located in the Tracker. Many factors, not under direct control of TYT, may affect the accuracy of the GPS location: (i) location of the Tracker in the vehicle; (ii) signal blocking from surrounding terrain and buildings; (iii) signal disruption (jamming) from nearby government installations; (iv) interference due to a limited view of the GPS satellite constellation. Customer recognizes these factors and agrees to work with TYT to address any installation issues that might affect the performance of the Tracker.
7.4 Suspension of Service. Customer may temporarily suspend service by notifying TYT in writing. Suspensions will become effective at the beginning of the next billing month after the written notification is received by TYT but shall not exceed three (3) consecutive months. Suspension will be billed at the suspension rate. Suspension service does not count toward the fulfillment of the original contract term but rather extends the contract by one (1) month for each month of suspension. Contract terms of one (1) year or greater are not eligible for suspension until six (6) months of the contract have expired. Suspension is not allowed if the Customer is in Default. Hardware warranty is not extended due to suspension
8. ACCOUNTS.
Customer shall be solely responsible for administering and protecting accounts. Customer agrees to provide access to the TYT Software only to Authorized Users, and to require such Authorized Users to keep account login information, including usernames and passwords, strictly confidential and not provide such account login information to any unauthorized parties. Customer is solely responsible for monitoring and controlling access to the TYT Software and maintaining the confidentiality of account login information. In the event that Customer or any Authorized User becomes aware that the security of any account login information has been compromised, Customer shall immediately notify TYT and de-activate such account or change the account’s login information. Authorized Users may only use the TYT Software strictly on behalf of Customer and subject to the terms and conditions applicable to Customer herein. Customer is responsible and liable for any breach by an Authorized User of his or her obligations hereunder.
9. GOVERNMENT RESTRICTED RIGHTS.
The Product is commercial within the meaning of the applicable civilian and military Federal acquisition regulations and any supplement thereto. If the user of the Product is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Product, including technical data or manuals, is restricted by the terms, conditions and covenants contained in this Agreement. In accordance with Federal Acquisition Regulation 12.212 for civilianagencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies, the use of the Software is further restricted by this Agreement.
10. LIMITED WARRANTY AND LIABILITY.
10.1 Wireless Service. Usability. Customer shall provide TYT with vehicle travel region(s) which TYT will use to select best cellular/satellite network based on coverage and affordability. Customer agrees that the Service will only function in real-time when the vehicle is within the operating range of the selected wireless network. TYT provides no warranty as to the availability of coverage of the selected wireless network. Customer acknowledges and agrees that the functionality of the Service is dependent upon and subject to the wireless transmission interruptions and limitations. Regarding pure satellite service, the customer acknowledges that the Service will not function when not in direct line-of-sight view of the host receiving satellite.
10.2 Limited Software Warranty. TYT warrants that if the Software fails to substantially conform to the specification in the Documentation, and if the nonconformity is reported in writing to TYT within 180 days of the purchase of this license, then TYT will, at its sole discretion, either remedy the nonconformity, or refund an amount equivalent to Customer's last three (3) months of recurring monthly fees. In the event of a refund, the license shall terminate. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE PRODUCT AND SERVICE IS PROVIDED “AS IS” AND TYT MAKES NO WARRANTY OR REPRESENTATION RELATING TO THE SOFTWARE, THE DOCUMENTATION, OR THIS AGREEMENT. TYT DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TYT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE SOFTWARE IS WITHOUT DEFECTS OR ERROR.
10.3 Limited Hardware Warranty. TYT warrants the Hardware for a period of one (1) year except where stated otherwise, beginning from the date of the Order Form, provided that in the event of a Hardware failure, TYT shall repair or replace the same, per TYT's discretion. Replacement Hardware may be the same product or a different product, per TYT's discretion. Replacement Hardware may be used, new, or refurbished, per TYT's discretion. This limited Hardware warranty shall not apply to any damage to the Hardware due to misuse, abuse, tampering with said Hardware, or incorrect installation by Customer or agent/installer on behalf of or on direct contract for Customer.
10.4 Vehicle Computer Interface. Certain products may interface with the vehicle on board diagnostics port (OBDII, JPOD, J1708, J1939, et.al.) or vehicle data bus (VBUS). These devices may use these connections to read various data directly from the vehicle. In such cases, the Customer, not TYT, assumes full responsibility for connecting any TYT product to these ports. The Customer should check with the vehicle manufacturer to ensure compatibility prior to connecting any TYT products to these ports.
10.5 Limited Liability. TYT SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF TYT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TYT is not responsible for any costs incurred as a result of the use of the Software, including but not limited to, lost profits or revenue, loss of data, costs of recreating data, the cost of any substitute equipment or program, or claims by any third party. TYT AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SOFTWARE OR DOCUMENTATION IS LIMITED TO AN AMOUNT EQUIVALENT TO CUSTOMER'S LAST THREE MONTHS OF RECURRING MONTHLY FEES.
10.6 Return Policy. TYT will refund all fees (including hardware, applicable tax, activation and monthly use), excluding shipping and handling, for any system returned within thirty (30) days of the system ship date provided the system is returned in the original condition. The system ship date is the date on which a tracking unit(s) was originally shipped from TYT to Customer. The system ship date does NOT renew or reset when a replacement hardware unit is shipped for warranty replacement but ONLY applies to the shipment of the original system. The refund is limited to a maximum of ten (10) devices total.
10.7 Sole Remedy. THE PROVISIONS OF SECTION 10 OF THIS AGREEMENT DEFINE THE SOLE AND EXCLUSIVE REMEDIES OF CUSTOMER.
11. CONFIDENTIALITY.
11.1 Confidential Information. TYT Confidential Information includes any information related to the Products, including the pricing thereof, TYT Software Systems, or TYT customers or partners, and any data or information that TYT provides to Customer in the course of providing the Products to Customer. Customer Confidential Information includes Customer Data and any data or information that Customer provides to TYT for the purpose of evaluating, procuring, or configuring the Services (for example, makes and models of vehicles or equipment, address books, vehicle routes, or similar information). Confidential Information excludes information that: (i) is now or hereafter becomes generally known or available to the public, through no breach of the receiving Party’s confidentiality obligations; (ii) was known, without restriction as to use or disclosure, by the receiving Party prior to receiving such information from the disclosing Party; (iii) is acquired by the receiving Party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving Party without use or knowledge of or reference to any Confidential Information of the disclosing Party.
11.2 Confidentiality Obligations. The receiving party agrees: (i) to maintain the disclosing party’s Confidential Information in strict confidence; (ii) not to disclose such Confidential Information to any third parties (except for any agents of receiving party in performing under these Terms under reasonable confidentiality obligations); and (iii) not to use any such Confidential Information for any purpose except to perform under these Terms or as authorized by the disclosing party. Notwithstanding anything to the contrary in these Terms, the receiving party may disclose the disclosing party’s Confidential Information to the extent required by law or regulation, provided that the receiving party uses reasonable efforts to give the disclosing party advance written notice of such requirement and reasonably cooperates with the disclosing party at the disclosing party’s expense in preventing, limiting, or protecting such disclosure.
12. GENERAL PROVISIONS.
12.1 Cancellation. In the event of cancellation by Customer before the end of contract term, Customer agrees to pay a contract cancellation fee equal to the number of Tracker units under contract multiplied by the monthly service fee multiplied by months remaining on contract. Cancellation after the end of contract term shall be made in writing from the customer to TYT not less than thirty (30) days in advance of the next billing cycle which begins on the first of each month.
12.2 Limitation of Use. For any TYT interactive Hardware requiring operator interaction including email, instant messaging, statusing and other such services or products, Customer agrees not to use, or cause its use, the Hardware provided while operating the equipment in which the Product is installed. Said Hardware shall be used only when equipment is parked or in a mode not requiring the operator’s attention. Customer hereby holds harmless and shall indemnify TYT for any liability resulting from a breach of this limitation of use.
12.3 Notice. Any reference in this Agreement to “written notice” shall include notice by email, where there is reasonable certainty that such email notice originated either from the TYT email address “teamtyt@trackyourtruck.com”, or from the email address registered to your Account, and may be relied upon as valid and authentic written communication.
12.4 Limitation of Use for Public Safety. If the Customer is in the business of providing public safety (police, fire, EMS and ambulance services), the Customer agrees to use the Products and Services only as a supplement to computer aided dispatch services designed for public safety. The Customer further agrees that the Products and Services are for commercial asset tracking and not designed for critical, life-threatening, or other public safety uses. The Customer agrees NOT to rely on Products and Services for critical, life-threatening, or other highly dangerous public safety functions.
12.5 Entire Agreement. This Agreement represents the entire agreement between TYT and the Customer. No distributor, employee, or other person is authorized by TYT to modify this Agreement or to make any warranty or representation, which is different than, or in addition to, the warranties and representations of this Agreement.
12.6 Arbitration. Any dispute arising from this Agreement, or the Product generally shall be resolved by the American Arbitration Association of Lynchburg, Virginia.
12.7 Governing Law. This Agreement shall be governed by the laws of the State of Virginia and of the United States of America
