Terms and Conditions of Use – General
Welcome to the VisTracks, Inc. (“VisTracks”) Web site. Please review the terms and conditions (“Terms and Conditions”) governing use of this site. By visiting this site, including any accessing or downloading materials from this site, you agree to these terms and conditions. VisTracks reserves the right to change these terms and conditions at its sole discretion. These terms and conditions apply to all visits to the VisTracks Web site, both now and in the future. These terms represent the entire understanding relating to the use of the VisTracks Web site and prevail over any prior or contemporaneous, conflicting or additional, communications. Any action related to this Web site will be governed by Illinois law and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply.
Use of Software
To the extent that VisTracks provides for the download of proprietary VisTracks software (“Software”), such Software is protected by the applicable copyright, patent or other intellectual property rights of either VisTracks. Any use of the Software is subject to the terms of the applicable license agreement. In certain cases users will be required to agree to the terms of the End User License Agreement as maintained on this site under the heading End User License Agreement. All evaluation Software is provided for evaluation, personal and internal use only and may not be used for commercial, development or production purposes.
VisTracks, the VisTracks logo and design are trademarks of VisTracks, Inc. in the United States and/or other jurisdictions. You are not permitted to use VisTracks trademarks without prior written consent of VisTracks. All other marks and names mentioned herein may be trademarks of their respective companies.
Except where otherwise specified, the contents of this site are copyright (c) 2008-2011 VisTracks, Inc., 801 Warrenville Road, Suite 50, Lisle, IL 60532, USA. All rights reserved.
The contents of this site are subject to protection under U.S. and foreign copyright laws. You may not copy or distribute any portion of this site, except as necessary to view this site as allowed under these Terms and Conditions.
Links to Third Party Sites
This Web site may provide links to third-party Web sites for your convenience and information. VisTracks does not endorse or make any representations about third party Web sites, nor does the inclusion of any link imply any such endorsement. If you access those links, you will leave this Web site. VisTracks is not responsible for webcasting or any other form of transmission received from any third-party sites. VisTracks does not control those sites and VisTracks is not responsible for any content or your experience of any third-party sites.
End User License Agreement
YOUR PURCHASE AND USE OF VISTRACKS SOFTWARE IS EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS OF THIS SEPARATE AGREEMENT, AS MAY BE PERIODICALLY UPDATED, AND YOUR TIMELY PAYMENT OF MONTHLY AND ALL OTHER APPLICABLE TRACKING PLAN SERVICE FEES (if purchased directly from VisTracks).
THE TERMS AND CONDITIONS OF THIS END USER LICENSE MAY CHANGE FROM TIME TO TIME. FOR THE MOST RECENT VERSION WHICH APPLIES TO YOU, PLEASE VISIT WWW. VISTRACKS.COM , WHICH SUPERSEDES ALL PRIOR VERSIONS OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ALL PRINT VERSIONS THAT ACCOMPANIED YOUR PURCHASE.
Additionally, VisTracks makes use of Android Apps known as “SlidingMenu”. By agreeing to the VisTracks’ End User License you are also accepting the SlidingMenu license as follows:
Copyright 2012-2014 Jeremy Feinstein Licensed under the Apache License, Version 2.0 (the “License”); you may not use this file except in compliance with the License. You may obtain a copy of the License at http://www.apache.org/licenses/LICENSE-2.0 Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License.
TRACKING PLAN TERMS AND CONDITIONS:
IMPORTANT- READ CAREFULLY: NO SIGNATURE IS NECESSARY TO BE BOUND TO THIS AGREEMENT. INSTEAD, BY CLICKING “I ACCEPT” ONLINE, OR BY USING THE SERVICES AS DEFINED BELOW, OFFERED BY, PURCHASED FROM, OR DISTRIBUTED OR ADMINISTERED BY VISTRACKS OR AN AUTHORIZED VISTRACKS RESELLER, YOU (ON BEHALF OF YOURSELF OR AS AN AUTHORIZED REPRESENTATIVE ON BEHALF OF ANOTHER INDIVIDUAL) HEREBY AGREE TO ALL THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) WITH VISRACKS AND ITS AUTHORIZED RESELLERS REGARDING THE USE OF SUCH DEVICE, TRACKING PLAN, ANY FIRMWARE ON SUCH DEVICE, AND THE SERVICES.
IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT USE THE SERVICES, AND CLICK ON THE “DO NOT ACCEPT” BUTTON BELOW, OR DO NOT ACTIVATE YOUR TRACKING PLAN ACCOUNT. IF YOU DO NOT ACCEPT, PLEASE NOTE THAT YOU WILL NOT BE ABLE TO USE THE DEVICE, TRACKING PLAN ANY FIRMWARE ON THE DEVICE OR THE SERVICES.
IN THIS AGREEMENT, YOU (OR “CUSTOMER”) AND VISTRACKS AND ITS AUTHORIZED RESELLERS ARE SOMETIMES REFERRED TO INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES.” UNLESS OTHERWISE DEFINED IN THIS AGREEMENT, ALL CAPITALIZED TERMS WILL HAVE THE MEANING GIVEN TO THEM IN SECTION 1.
THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE THAT YOU ACCEPT THIS AGREEMENT BY CLICKING ON THE “I AGREE” BUTTON ONLINE, OR THE DATE THAT YOU OTHERWISE BEGIN USING SERVICES.
In addition to the terms defined in the body of this Agreement, the following terms have the following meanings:
“Confidential Information” means non-public information that a Party provides and reasonably considers to be of a confidential, proprietary or trade secret nature, including marketing, engineering and other plans, financial statements and projections, customer and supplier information, research, designs, plans, compilations, methods, techniques, processes, procedures, and know-how, whether in tangible or intangible form, and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically, or in writing. Confidential Information shall not include Non-Confidential Information.
“Customer” or “You” or “Your” means the individual account holder who: 1) has full legal authority to enter into this Agreement, and has entered into this Agreement, either on behalf of himself/herself or on behalf of another individual pursuant to either a durable power of attorney, other legal authorization or as the legal guardian of such individual; and 2) purchases or otherwise uses the services in accordance with the terms and conditions set forth in this Agreement.
“Device” means a mobile Device purchased from or distributed by VISTRACKS intended to be used by Customer to Track and/or monitor Monitored Users.
“Internet” means the global computer network comprised of interconnected networks using standard protocols including HTTP, UDP and TCP/IP.
“Location Data” means location history and transaction activity generated by use of the Device and Tracking Plan, and Services.
“Monitored Users” means an individual that is Tracked by the Customer and/or Sub-Account Holder(s) pursuant to a Consent/Release Agreement.
“Non-Confidential Information” means information which: (i) is, as of the time of its disclosure or thereafter becomes part of the public domain through no fault of the receiving party; (ii) can be demonstrated by credible evidence: (a) as rightfully known to the receiving party prior to the time of its disclosure, or (b) to have been independently developed by the receiving party; (iii) is subsequently learned from a third party not under a confidentiality obligation to the disclosing party; or, (iv) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving party has provided prompt written notice and assistance to the disclosing party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy to protect against disclosure.
“VISTRACKS Trademarks” means any name, logo and trademark of VISTRACKS used by VISTRACKS to identify itself or any VISTRACKS products or services that VISTRACKS licenses to You under this Agreement.
“Personal Information” means any information that can be used to identify an individual and is not otherwise publicly available. Such information may include, for example, an individual’s first and last name combined with his or her email address, mobile telephone number or credit card account information.
“Server” means the server or servers as designated by VISTRACKS from time to time through which VISTRACKS provides the Services in accordance with this Agreement.
“Services” shall mean all services associated with DOT Hours of Service (E-Logs), Mobile Work Orders, Tracking Plans and Devices including but not limited to the Tracking Plan itself, all hosting and maintenance of the Tracking Plan application on VISTRACKS or VISTRACKS designated service provider Servers pursuant to the terms and conditions of this Agreement and any additional services or add-on options You choose. As used in this Agreement, VISTRACKS includes VISTRACKS and all of its designated service providers.
“Sub-Account Holder(s)” means the individual(s) properly and validly authorized by a Customer to use the Services ordered by the Customer to Track or Monitor a Monitored User in accordance with the terms and conditions set forth in this Agreement.
“Territory” means the United States of America, or such other designated area approved by VISTRACKS applicable to your Services.
“Track(ed/ing)” or “Monitor(ed/ing)” shall mean the use of Tracking Plan to acquire data from each Device and to view or monitor the location of such Device(s).
“Tracking Plan” is a comprehensive location management program offered by VISTRACKS which uses a Web-based software application, powered and/or owned by VISTRACKS and/or its designated service provider. The application, together with Devices, collects and stores certain data (including Location Data) on computer servers. This data is made available to You. The Tracking Plan program provides monitoring capabilities of Devices and helps locate individuals or assets that are using the Devices as intended.
2.1 The terms and conditions of this Agreement will control all orders Services. Subject to the terms and conditions of this Agreement VISTRACKS agrees to provide access to Tracking Plans in accordance with the first order you submit to VISTRACKS on the Effective Date.
3. ACCESS TO Tracking Plans RESTRICTIONS ON USE & LICENSES
3.1 Access to Tracking Plan. During the term of this Agreement and subject to the terms and conditions herein, VISTRACKS hereby grants You a limited, non-exclusive, non-transferable, royalty-bearing license to access Tracking Plans through the Internet solely for the purpose of Tracking and Monitoring Devices.
3.2 Use by Sub-Account Holders. A Customer may authorize other individuals (“Sub-Account Holders”) to use the Devices and Services ordered by the Customer under this Agreement. In such cases, Customer shall ensure that such Sub-Account Holders use the Devices and Services in a manner that complies with all applicable laws and this Agreement. Customer is solely responsible forsuch Sub-Account Holders’ usage of the Devices and Services. Customer agrees to require each Sub-Account Holder using Customer’s account to comply with the obligations set forth in this Agreement, including, without limitation, the restrictions contained in Section 3.3.
3.3 Restrictions on Use; No Modification. You, your Sub-Account Holders and Monitored Users shall not engage in any of the following acts (individually, a “Prohibited Act”, and collectively, “Prohibited Acts”): (i) willfully tamper with the security of any VISTRACKS’ Devices or Services; (ii) access data not associated with your account via VISTRACKS’ Devices or Services; (iii) log into an unauthorized server or another non-Customer VISTRACKS account without authorization; (iv) attempt to probe, scan or test the vulnerability of any VISTRACKS’ Services or to breach VISTRACKS or VISTRACKS security or authentication measures without proper authorization; (v) willfully render any part of VISTRACKS’ Services unusable; (vi) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of any VISTRACKS’ Services; (vii) modify, translate, or create derivative works based on any VISTRACKS’ Services; (viii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit any VISTRACKS’ Services or make any VISTRACKS’ Services available to a third-party other than as contemplated in this Agreement; (ix) use any VISTRACKS’ Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (x) publish or disclose to third parties any evaluation of VISTRACKS’ Services without VISTRACKS’ prior written consent; (xi) remove, modify, obscure any copyright, trademark, patent or other proprietary notice that appears on any VISTRACKS’ website(s) or in association with its Services; (xii) create any link to VISTRACKS’ website(s) or frame or mirror any content contained or accessible from VISTRACKS’ website(s); or (xiii) use any data or information obtained through the use of the VISTRACKS’ Devices for any unlawful purpose or in violation of any applicable law (including, without limitation, data protection and privacy laws). Except as expressly provided in this Agreement, no right or license is granted hereunder, by implication, estoppel or otherwise.
3.4 Firmware License. Each Device provided by VISTRACKS may contain firmware developed and owned, or otherwise authorized to be used by VISTRACKS. For firmware developed and owned, or otherwise authorized to be used by VISTRACKS, VISTRACKS hereby grants You a limited, non-exclusive, non-transferable, royalty-free license, for the Term, to use the firmware on each Device. VISTRACKS shall retain all rights to the firmware contained on each Device. The license granted herein shall be deemed to be in effect upon delivery of each Device.
3.5 Ownership. You acknowledge that, as between You, your Sub-Account Holders, and VISTRACKS, all right, title and interest in the Tracking Plan, any software, Devices, or firmware provided under this Agreement, and all modifications and enhancements thereof, including all rights under copyright and patent and other intellectual property rights, belong to VISTRACKS or the entity which authorized VISTRACKS such use. This Agreement does not provide You with title or ownership of Tracking Plan, any Services, any software, Devices, or firmware provided under this Agreement, but only the rights specified in this Agreement.
4.1 Availability of Services. Subject to the terms and conditions of this Agreement, VISTRACKS shall use commercially reasonable efforts to make the Services available for twenty-four (24) hours a day, seven (7) days a week. You agree that from time to time the Services may be inaccessible or inoperable for reasons beyond the control of VISTRACKS including, but not limited to: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which VISTRACKS may undertake; or, (iii) interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You shall not be entitled to any setoff, discount, refund or other credit as a result of unavailability of the Services. You agree that VISTRACKS has no control of availability of Services on a continuous or uninterrupted basis. VISTRACKS does not guarantee any specific response rate (bandwidth). Any unavailability of the Services will be relayed to you as soon as possible.
4.2 Security. VISTRACKS shall use commercially reasonable efforts to prevent unauthorized access to restricted areas of Tracking Plans and any databases or other sensitive material; and, VISTRACKS shall notify You of any known security breaches to its systems that are reasonably likely to adversely affect You or your account, in accordance with applicable law.
4.3 VISTRACKS Tracking Plan Support. Customer technical support for problems with the Tracking Plan software application, as well as Billing and any other general questions, will be provided by VisTracks or VisTracks’ authorized resellers during reasonable and designated business hours Monday-Friday (excluding U.S. federal holidays). Support hours and contact numbers are listed in your product user manual
5. CUSTOMER DATA
5.1 VISTRACKS’s Use of Customer Data. VISTRACKS collects Personal Information and non-personal information about its Customers and Sub-Account Holders (collectively, “Customer Data”) in order to: (i) provide the Services; (ii) provide customer and technical support; and, (iii) for other business-related purposes, such as billing, marketing, and new service offerings, introductions and sales. VISTRACKS may remove from your data any personal or location-based information and combine such anonymous data with that of others in order to create “Aggregate Information.” VISTRACKS may use and sell Aggregate Data, including analyzing how Customers use the Services and determining ways in which VISTRACKS can improve the Services. If You have provided your contact information, VISTRACKS may contact You for marketing purposes by various means, including but not limited to regular mail, email or telephone. When You activate a VISTRACKS account, You expressly consent to receive marketing communications via direct mail, email (at the email address you provided when activating your account), telephone (at the number you provided when activating your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods. You may opt out of receiving one or more of these types of marketing communications at any time by contacting customer service.
5.2 Disclosures of Customer Data. If You purchased the Services as a result of the marketing efforts of a VISTRACKS marketing partner, You agree that VISTRACKS may disclose your Customer Data to such marketing partner.
5.3 Retention of Customer Data. Customer Data will be retained as long as there exists a legitimate business need to do so. For example, VISTRACKS may retain Customer Data for the duration of a dispute with our company. Location Data will be retained for each Customer for a period that VISTRACKS will decide in its sole discretion, and shall be made available to law enforcement and other government agencies pursuant to legally valid requests for such information.
6. CUSTOMER RESPONSIBILITIES
6.1 Use of Services. You acknowledge and agree that You will not use the Services to: (i) Track and/or Monitor any individual without such individual’s prior express and legal permission unless such individual is a minor with whom You have a lawful guardian relationship; (ii) send spam or otherwise unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iii) send messages to any email lists, distribution lists, newsgroups, or spam email addresses; or, (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You agree to report immediately to VISTRACKS, and to use Your best efforts to stop immediately, any violation of the terms and conditions set forth in this Section or any of VISTRACKS’s other published policies, including but not limited to any privacy policies (collectively, “Policies”) that may be issued from time to time, all of which are incorporated herein by reference. In the event of any suspected violation of the terms, conditions and restrictions set forth in this Section or any VISTRACKS Policies, VISTRACKS may immediately disable your access to the Services and suspend its provision of such Services.
6.2 Access To Hosted Services. VISTRACKS will provide You with a user name, password and other information necessary to access the Tracking Plan service. You are responsible for keeping the respective user names and passwords confidential and for any communications or transactions made using user name and password. You are responsible for changing the respective user names and password if it is believed that the same has been stolen or might otherwise be misused.
6.3 Equipment and Utilities. You are responsible and shall bear the costs associated with providing and maintaining Internet access and all necessary telecommunications equipment, software and other materials necessary for accessing Your Tracking Plan.
6.4 Consents. You be responsible for obtaining the necessary legal consent(s) from those Monitored Users who are being Tracked and/or Monitored by Your use and Your Sub-Account Holders’ uses of the Device(s) and shall authorize the Tracking and/or Monitoring of such Device(s) by VISTRACKS and its subcontractors. If a Monitored User is a minor, You acknowledge that You and/or Your Sub-Account Holder have lawful guardianship over such minor and You further acknowledge that You and/or Your Sub-Account Holder have the legal right to lawfully Monitor such Monitored User in the location or locations where the Device(s) is used. You agree to indemnify and hold VISTRACKS its agents, licensees, licensors, and subcontractors harmless from any and all costs and expenses regarding any claim(s) arising from the unauthorized Tracking and/or Monitoring of the Device(s) by you or your Sub-Account Holders.
6.5 Credit. You shall cooperate with the timely completion of the credit application provided by VISTRACKS for purposes of establishing a credit limit for outstanding invoices if you purchased the Services from VisTracks. You agree to notify VISTRACKS of any changes in credit status during the course of this Agreement and may request a review of the credit limit at any time. You understand that a credit limit may be established by VISTRACKS prior to shipment of Devices and/or initiation of Services.
6.6 Carrier. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS AND THAT CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN CUSTOMER AND THE UNDERLYING CARRIER. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE UNDERLYING CARRIER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO END USER AND END USER HEREBY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFOR.”
Although VisTracks has attempted to provide accurate information on this Web site, information on this Web site may contain technical inaccuracies, typographical or other errors. The contents of any documents on this Web site are believed to be current and accurate as of their publication dates. VisTracks assumes no responsibility for the accuracy of the information. VisTracks may change the products and other materials mentioned at any time without notice. Mention of non-VisTracks products or services is for information purposes only and constitutes neither an endorsement nor a recommendation.
ALL INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED ON THIS WEB SITE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. VISTRACKS DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
VISTRACKS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OR INABILITY TO USE THIS WEB SITE OR ANY VISTRACKS PRODUCT, OR DAMAGES RESULTING FROM USE OR RELIANCE ON THE INFORMATION PRESENT, EVEN IF VISTRACKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.