USE OF WEBSITE TO PLACE ORDERS
Geoforce, Inc. on behalf of itself, its affiliates, and its applicable suppliers, licensors, and unrelated third-party vendors (collectively referred to as “Geoforce”, “We”, “Us”, or “Our”) owns and operates this Website. This document governs your relationship with Geoforce. Access to and use of this Website and the products and services available through this Website (collectively, the “Services”) are subject to the following terms, conditions and notices (the “Service Terms”). BY ORDERING OR USING THE SERVICES, YOU ARE AGREEING TO ALL OF THE TERMS OF SERVICE, AS MAY BE UPDATED BY US FROM TIME TO TIME.
INTELLECTUAL PROPERTY AND CONTENT USE
You may store, print and display the content supplied solely for your own use. You are not permitted to use any such content in connection with any business or commercial enterprise including but not limited to using it for resale or competition.
You must not misuse this Website. You will not: commit or encourage a tort or criminal offense; transmit or distribute a virus, trojan, worm, logic bomb or any other material which is malicious, technologically harmful, in breach of confidence or in any way offensive or obscene; hack into any aspect of the Service; corrupt data; cause annoyance to other users; infringe upon the rights of any person’s proprietary rights; use this information for any purpose adverse to Us, or attempt to affect the performance or functionality of any computer facilities of or accessed through this Website. Breaching this provision would constitute a civil and/or criminal offense and Geoforce will report any such breach to the relevant law enforcement authorities and disclose your identity to them.
NO LIABILITY FOR LOSSES CAUSED BY TECHNOLOGY ATTACKS
We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of this Website or to your downloading of any material posted on it, or on any website linked to it.
PRODUCT SPECIFIC TERMS
1. Purchaser Representations
By attempting to place an order through this Website you represent that you are over 18 years of age, are an authorized representative of Purchaser and that the Purchaser possesses a valid credit or debit card issued by a bank acceptable to us. You further represent you will take all commercially reasonable efforts to ensure your end users comply with the applicable terms and conditions. You further represent that all details you provide to us are true, accurate, and complete; that you are an authorized user of the credit or debit card used to place your order; and that there are sufficient funds to cover the cost of the goods.
2. Rejection of Orders
You will receive a confirmation of any attempted order. NOTWITHSTANDING SUCH CONFIRMATION, WE MAY REJECT OR CANCEL ANY ORDER AT ANY TIME FOR ANY REASON BEFORE THE SERVICE START DATE. ANY ACCEPTANCE OF AN ORDER IS SUBJECT TO YOUR AGREEMENT THAT ANY ADDITIONAL OR CONFLICTING TERMS AND CONDITIONS CONTAINED IN ANY CORRESPONDENCE, SALES-RELATED LITERATURE OR VENDOR POLICIES ETC. (SUCH AS, BUT NOT LIMITED TO, A PO) SHALL NOT APPLY. ANY ATTEMPT TO ENFORCE SUCH ADDITIONAL OR CONFLICTING TERMS AND CONDITIONS SHALL RESULT IN THIS ACCEPTANCE BEING VOIDABLE IN OUR DISCRETION.
3. Amendment of Terms
We have the right in Our absolute discretion at any time and without notice to amend, remove or vary the Services, any of these terms (including, but not limited to, prices) and/or any page of this Website solely by updating this Website. We each agree that no oral modifications or modifications by custom and practice may be made to these Service Terms nor may either of us waive our rights orally or by custom or practice with regard to terms addressing exclusion of conflicting or additional terms or terms addressing price, payment, delivery or warranty issues.
4. Parties Bound
By submitting an order hereunder Purchaser agrees it is binding itself to any currently signed Global Purchase Agreement or, if none, these Service Terms, as they may be amended, as of the date of the receipt of a confirmation from US. Effective upon the Service Start Date, We are binding Ourselves to the Service Terms, as they may be amended.
5. Services Purchased
You hereby offer to purchase the Services on a month to month basis as set forth on the application pursuant to these Service Terms and then current Prices. The Services combine web based software and maps with GPS and/or other wireless devices to allow customers to locate, track, and manage assets within fixed facilities or around the world. We will provide you with access to the Services via the World Wide Web. The Services do not include monitoring of performance, verification that devices are reporting, or data feeds, all of which are your responsibility.
We charge the following non-refundable amounts: (a) a one-time device activation and provisioning fee per unit, (b) a one-time purchase price for each device and accessory, and (c) recurring subscription fees covering the Software and the Service, all of which are due in US dollars or the local currency of “Supplier” (the Geoforce entity supplying Services to you) in Our discretion, for each asset subscribed to the Service (each fee is exclusive of sales and/or VAT tax, shipping charges, duties, and import costs and any other fees/charges beyond delivery ex works (i.e. make ready for pick up) which additional amounts are also payable by you) (“Price”). The Price may be amended at any time in Our discretion. We reserve the right to increase prices upon 30 days’ prior written notice. Payments are due pursuant to the terms of the relevant invoice and will be calculated based on the exchange rate in effect as of the date of invoice as determined in Our sole discretion. Further, you shall either be charged a storage fee equal to costs incurred plus reasonable interest, (beginning 6 months after delivery to a carrier of the delivered Hardware) or such Hardware will be deemed rejected and forfeited (without reducing amounts owed hereunder), in Our sole discretion, if delivery is not accepted and devices removed from any temporary delivery storage site (such as a dock) that causes Us to incur ongoing storage or other charges or hardship.
7. Hardware Warranty
Subject to the limitations set forth in these Service Terms, We warrant that for one year from that date that title passes to Customer for Hardware (the “Warranty Period”), the Hardware will be free of defects in materials and workmanship when installed, operated, and serviced in strict accordance with Our and the manufacturer’s requirements. If: (a) We are timely notified that the Hardware fails to operate because of a defect in materials or workmanship within the Warranty Period; (b) the failed Hardware is actively subscribed to the Service; and (c) your account is in good standing, We will, in Our sole option and at no charge to you, repair or send a replacement for the Hardware or arrange for the Hardware’s repair or sending of a replacement or, in Our discretion, refund any monies paid for such. You are responsible for removal and replacement of any failed Hardware to the location of initial export from a Supplier’s Jurisdiction noting you as the importer/exporter of record (if outside the US) at your own cost and shall return failed Hardware to Us at your own cost within 30 days of Our determination to repair or send a replacement of such failed Hardware or We will charge you the full price of the replacement. THIS PARAGRAPH DOES NOT COVER: (a) HARDWARE THAT HAS BEEN TAMPERED WITH OR SERVICED WITHOUT OUR AUTHORIZATION; (b) HARDWARE THAT HAS BEEN LOST OR STOLEN THROUGH NO FAULT OF OURS; (c) HARDWARE THAT IS DESIGNED TO BE CONSUMABLE, INCLUDING, BUT NOT LIMITED TO, BATTERIES OR NON-SERVICABLE ACTIVE RFID TAGS; OR (d) HARDWARE SUBJECTED TO ABUSE, MISUSE, NEGLECT, OR HOSTILE OPERATING ENVIRONMENTS AS OPPOSED TO HARSH ENVIRONMENTS. EXCEPT AS SET FORTH HEREIN, THE HARDWARE IS OFFERED “AS IS”. WE DO NOT WARRANT THAT THE HARDWARE WILL MEET YOUR NEEDS OR EXPECTATIONS OR THAT ANY PIECE OF HARDWARE WILL WORK ON ANY PARTICULAR NETWORKS. REPLACEMENTS OF HARDWARE OUTSIDE THE WARRANTY PERIOD FOR ANY REASON, INCLUDING BUT NOT LIMITED TO FOR CUSTOMER INITIATED DAMAGE, SHALL BE PROVIDED AT THE THEN CURRENT LIST PRICE.
8. Field Services
We may provide professional services in the field to assist you with installation or deployment of Hardware (“Field Services”) in Our discretion and at mutually agreed costs. Such Field Services are contingent upon your ability to provide: (a) access during established time frames to all your assets that will be affixed with Hardware, (b) assurance that all your assets that will be affixed with Hardware are in proper working condition, (c) suitable and safe work spaces for Our personnel that are shielded from the elements (preferably indoors or under cover), and (d) suitable temporary storage for Hardware and accessories and equipment brought on site by Our personnel. You acknowledge that: (i) Field Services may include drilling, taping, welding, the use of chemical adhesives, or other methods that may have an adverse effect on your assets, (ii) We are not able to ascertain the effect the Field Services may have on your assets, and (iii) you are responsible for providing direction to, and overseeing, Our personnel at your site(s) to ensure there is no damage to your assets.
9. Title and Risk of Loss on Hardware
Title to and risk of loss on all Hardware sold by Us to you under this Agreement shall pass to you upon delivery of Hardware ex-works (i.e. making ready for pick up), if not installed by Us We will coordinate, at your cost, delivery to a destination inside the jurisdiction of the Supplier if Hardware is shipped. If We are installing the Hardware, title is transferred upon the date that the installation of Hardware is complete (or the date offered to be completed by Us, if earlier). We anticipate delivery of devices within four weeks of a completed order and payment in good funds. However, such date is an estimate only and is subject to change.
10. Exporting Hardware
You shall be responsible for exporting the Hardware outside of the jurisdiction of the Supplier, if desired.
11. Term is Month to Month
The Term for any order is month to month. Upon termination of any order all rights granted to any Authorized User thereunder shall immediately cease. Such will: (a) discontinue all use of the relevant Services; (b) if the relevant Services were delivered in any part on a tangible medium, return to Us the originals; (c) if requested, purge all copies or any portion thereof from all computer storage device or mediums on which the Authorized User has placed or permitted others to place the information; and (d) if requested, give Us a written certification that you have complied with all of obligations hereunder.
12. Service Start Date
The Service Start Date is determined by the date that Hardware is provided to you. Unless otherwise agreed in writing, the Service Start Date means the date that Hardware is shipped to you Supplier ex works. In the event that We do not provide Hardware to you, the Service Start Date for each asset shall be the date that each asset is made capable of being activated on the Geoforce system by Us.
13. No Consolidation of Orders
If you place consecutive or separate orders, We cannot consolidate your orders. Separate delivery fees will apply.
14. Hardware, Software, and Data Transmission
A. Hardware. The Services may require certain hardware components and ancillary accessories necessary to connect to and communicate with Our systems provided by Our (“Hardware”) that may include, but shall not be limited to, the following: devices or tags (such as RFID tags or GPS devices that may be attached to your assets) and equipment (such as tag readers and communication systems that may be installed within your facilities or other locations). The Hardware will be sold and title to it is transferred to your organization.
B. Software. The Services may also require certain software components (“Software” or “Application”) that may include, but shall not be limited to, the following: web-native software, application software, database software, device firmware, device middleware, browser based software, etc. Software provided to you for use in connection with the Services is licensed to you and not sold subject to compliance with these Service Terms and payment of all applicable fees. We grant to you a non-transferable, non-sublicenseable, non-exclusive, royalty free license to use the Software in a fully assembled state, display, and to print from the Software during the Term solely for your own internal business use. Unless otherwise agreed in writing, you may provide access to Software to your end-users solely for use in connection with the Services only for purposes relating to your business and not for redistribution, remarketing, or any other use. You acknowledge that We may modify the Software at any time for any reason. Notwithstanding the foregoing, you shall not be obligated to use the Software with the Hardware (although this will not affect the Price), and you may use your own or Third-Party Software with the Hardware. Unless otherwise agreed, We do not charge Software license and maintenance fees. All Software license and maintenance fees are included in the service subscription portion of the Price.
C. Data Transmission. You acknowledge that some or all Hardware will transmit data in proprietary device message protocol formats (“Proprietary Formats”), and that such transmission of data, including the underlying satellite network communications, must be provided by Us, with any fees associated with such transmission to be included in the service subscription portion of the Price. Nevertheless, you acknowledge that We retain all rights to the Proprietary Formats, We will not disclose any Proprietary Formats to you or any third party, and you agree that you will not attempt to access, obtain or otherwise make any unauthorized use of any Proprietary Formats. Any attempt by you to access, obtain or make unauthorized use of any Proprietary Formats (other than as specifically contemplated herein) shall be a material breach of these Service Terms and shall entitle Us to immediately terminate this Agreement and pursue all remedies available to Us, including, but not limited to, injunctive and other equitable relief. If you accidentally receive any Proprietary Formats, you will immediately notify Us of such receipt and immediately return any such Proprietary Formats to Us.
15. Authorized Use
The Services may only be used during the Term by authorized persons within your internal operations and only in compliance with this Agreement and all applicable laws (collectively, the “Authorized Use”). You may only access the Services and print limited copies of the materials from the Services for the Authorized Use. You agree not to: (a) make the Services or any data or content therein available to, or use any Service or data for the benefit of, anyone other than yourself except as may be agreed in a separate writing, (b) use the Services to store or transmit infringing material in violation of Third-Party privacy rights, (c) use the Services to store or transmit malicious code, or (d) interfere with or disrupt the integrity or performance of the Services or data or content contained therein. You agree to remove promptly on Our request any content or data from the Services that a Third-Party licensor requires Us to remove or which may violate Third Party rights or applicable laws, and you agree that We may disable the Services if you fail to do so.
16. Proprietary Rights and Licenses
You agree that all rights, title and interest in and to the Services (including but not limited to Hardware, Software, and all modifications, customizations, and derivative works), including any content therein and all worldwide trademarks, patent rights, copyrights, trade secrets, and all other intellectual property rights, belong to Us and/or Our suppliers or licensors. You agree that, subject to the limited rights expressly granted in this Agreement, We reserve all rights, title and interest in and to the Services, including all intellectual property rights. The trademarks, service marks and trade names, including, but not limited to, page headers, custom graphics, button icons, and scripts (collectively, the “Trademarks”) used and displayed on the Services are registered and unregistered trademarks, service marks and/or trade dress of Ours and you may not copy, imitate or use the Trademarks, in whole or in part, for any purpose. No rights are granted to you hereunder other than as expressly set forth in this Agreement. You agree not to remove or alter any copyright or other proprietary notices and shall reproduce all such notices on aerial or satellite images produced, exported, copied, or created using the Services, all materials embodying such images, and upon tangible copies. Other than the license granted hereunder you are not acquiring any right, title, or interest of any nature whatsoever in any intellectual property or derivative works thereof. Any rights not expressly granted herein are reserved to Us. You grant to Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or any users relating to the operation of the Services. Comments or feedback that you submit to Us about, through or in connection with the Services shall become Our property and by sending Us such feedback, you agree to a no-charge assignment to Us of all right, title and interest in copyrights and other intellectual property rights on a worldwide basis in and to such feedback. Whether or not such assignments are effective, you agree that We are free to use any ideas, concepts, know-how or techniques that you send to Us for any purpose on an unrestricted basis and at no charge. Further you grant to Us a non-exclusive, royalty free right to your information and intellectual property solely as necessary to be used to perform under this Agreement, and to internally analyze and improve performance hereunder.
The Service is a “commercial item” as that term is defined at FAR 2.101. If Customer is a US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Geoforce provides the Service, including any related software, technology, technical data, and/or professional services in accordance with the following: (a) if acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement; or (b) if acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative Agency or Federal Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as set forth in this Agreement. If any Federal Executive Agency, Federal Legislative Agency, or Federal Judicial Agency has a need for rights not conveyed under the terms described in this section, it must negotiate with Geoforce to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreement to be effective. This section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses government rights in computer software or technical data under this Agreement.
18. No Reverse-Engineer / Non-Compete
You shall not: (a) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software or Proprietary Formats or any portion thereof, or otherwise derive its source code or Proprietary Formats; (b) modify, port, translate, localize, or create derivative works of the Software or Proprietary Formats; (c) disclose the results of any performance tests or qualitative analysis on the Software to any Third Party without Our prior written consent, (d) provide access to Software or Proprietary Formats to parties that could reasonably be considered to be direct competitors of Ours, or (e) while in possession of any part of the Services directly or indirectly attempt to develop or market a product that is similar to the Service in terms of features, functions, navigation, or general design.
19. Service Levels
Web and data services provided by US will generally be available 99.5% of the time as measured by Us on a monthly basis (the “Service Level”). We will use commercially reasonable efforts to maintain the Service Level. In the event that We are unable to provide the Service Level for a period of two consecutive months, you may cancel the affected Service, without penalty, provided that We are notified in writing one month in advance of the cancellation and that We have been provided the opportunity to provide a reasonable remedy. The Service Level only covers Software and web based systems and excludes downtime caused by the following: routine scheduled maintenance, Hardware related failures outside of the conditions covered under any Hardware warranty or maintenance service, communication and satellite and/or cellular networking issues as set forth in the section “Communications and Networks”, and “Force Majeure Events”.
20. Customer Data
We do not own any data, information, or material that you submit, or a Third-Party submits on behalf of you, to the Service in the course of using the Service (“Customer Provided Data”). Geoforce further does not own the data related to Customer’s operations or Customer’s customers operations or any third party’s operations obtained as a result of the use of the Hardware, Software, or services (“Customer Operational Data”) (altogether the Customer Provided Data and Customer Operational Data are together referred to herein as the “Customer Data”). You own the Customer Data and have the exclusive (including with respect to Geoforce), irrevocable, perpetual, fully paid, worldwide, royalty-free right to use, reproduce, modify, create derivative works from the Customer Data without any royalty or duty of accounting to Geoforce. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data and the means by which you acquired any Customer Provided Data, and We shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data. You agree not to give or make available your usernames or passwords or other means to access your account to any unauthorized individuals. You remain responsible for all access to the Services via your username and password, even if not authorized. If you believe that any of your passwords or other means to access your account have been lost or stolen or that an unauthorized person has or may attempt to use the Services, you must immediately notify Us at IT@GEOFORCE.COM. We will not disclose, distribute, sell, share, rent, or otherwise transfer any Customer Data to any Third Party, except as approved in writing by you or otherwise compelled to do so under applicable law. One data archive is available per year free of charge upon your request. In the event that Service is terminated, We will make available to you a file of the Customer Data within 30 days of termination upon your written request.
Confidential Information means all information of either you or Us existing or thereafter developed in which there is a proprietary interest and for which there is a legitimate business reason for guarding against unauthorized use or disclosure, whether communicated orally or in writing. Confidential Information also includes all information received from Third-Parties that either Party is obligated to treat as confidential. We and you acknowledge that irreparable injury and damage will result from disclosure of Confidential Information to third Parties, or utilization for purposes other than those connected with this Agreement. You and We agree, during the Term and continuing after termination of this Agreement, to use all reasonable care not to: (a) make each other’s Confidential Information available in any form to any third Party or (b) use each other’s Confidential Information for any purpose other than in the performance of this Agreement and promptly upon termination of this Agreement, to turn over the originals of such information to the other. Each agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of this Agreement. Each acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this section and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement. Neither you nor We, however, shall have any liability to the other under this Agreement with respect to the disclosure and/or use of any such Confidential Information that one can establish: (a) is or becomes a part of the public domain through no act or omission of the other; (b) was in the other’s lawful possession prior to the disclosure and had not been obtained by a party from the other either directly or indirectly; (c) is lawfully disclosed to the other by a third Party without restriction on disclosure; or, (d) is independently developed by the other without use of or reference to the other party’s Confidential Information. Notwithstanding the foregoing, this section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required to be disclosed by law or valid order of a court or other governmental authorities so long as reasonable prior notice is given to the other party.
22. No Liability for Third Party Content
As part of the Services, We may provide hypertext links to sites on the Internet that are operated by unrelated third parties and contain certain Third-Party content. By clicking on or otherwise selecting any such external hypertext link, you acknowledge that you will be leaving Our Application. You are responsible for independently confirming the accuracy of all Third-Party content. You acknowledge and agree that We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with, the use of or reliance on any Third Party content.
23. WARRANTY DISCLAIMER
THE SERVICE, INCLUDING ALL CONTENT THEREIN, IS PROVIDED “AS IS,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED EXCEPT AS SET FORTH HEREIN. WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND DATA ACCURACY. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE OPERATION OF THE SERVICES, THE USE, VALIDITY, ACCURACY OR RELIABILITY OF, OR THE RESULTS OF THE USE OF THE MATERIALS IN THE SERVICES, OR ANY OTHER WEBSITE LINKED TO THE SERVICES. WE DO NOT WARRANT THAT THE SERVICES WILL BE FREE FROM INFECTION, VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE OR THAT ANY DEFECTS WILL BE CORRECTED. SOME STATES, TERRITORIES, AND COUNTRIES DO NOT ALLOW CERTAIN WARRANTY EXCLUSIONS, SO, TO THAT EXTENT, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
24. LIMITATION OF LIABILITY
IN NO EVENT WILL WE, OUR SUPPLIERS OR OUR LICENSORS (AND THEIR LICENSORS AND SUPPLIERS) (INCLUDING, WITHOUT LIMITATION, ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, SUCCESSORS, OR ASSIGNS), BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, DAMAGES RESULTING FROM LOST PROFITS, SAVINGS, LOST DATA OR BUSINESS INTERRUPTION ARISING OUT OF RELATING TO THE USE OR INABILITY TO USE THE SERVICES, ANY WEBSITES LINKED TO THE ONLINE SERVICES, THE CONTENT OR OTHER INFORMATION CONTAINED IN THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. WHILE YOUR USE OF THE WEB BASED SERVICE IS AT YOUR OWN RISK, IF WE SHOULD HAVE ANY LIABILITY FOR ANY LOSS, HARM OR DAMAGE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE WEB BASED SERVICE, OUR TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS SHALL NOT EXCEED THE AMOUNT OF THE PRICE PAID TO US BY YOU FOR THE APPLICABLE PORTION OF THE SERVICES IN THE PRECEDING SIX (6) MONTHS. YOU ACKNOWLEDGE THAT ABSENT YOU’S AGREEMENT TO THIS LIMITATION, WE AND OUR LICENSORS WOULD NOT PROVIDE THE WEB BASED SERVICES OR THE MATERIALS ACCESSIBLE THEREIN.
25. Map Data Disclaimer
The Map Data may contain inaccurate or incomplete information due to the passage of time, changing circumstances, sources used and the nature of collecting comprehensive geographic data, any of which may lead to incorrect results. This Map Data is provided to you “as is,” and you agree to use it at your own risk. We (including Our licensors and suppliers) make no guarantees, representations or warranties of any kind, express or implied, arising by law or otherwise, including but not limited to, content, quality, accuracy, completeness, effectiveness, reliability, fitness for a particular purpose, usefulness, use or results to be obtained from this Map Data, or that the Map Data or server will be uninterrupted or error-free except as set forth in this Agreement.
26. Variability of Battery Life
Certain Hardware is battery powered. In some cases, those devices are not able to be reused when the batteries are depleted. We routinely provide operational guidance as to how long the batteries will last or how long the device will operate (“Battery Life”) via Our marketing materials, product user manuals, and other documents. This ‘Battery Life estimate is only an estimate and not a guarantee. Actual battery life may vary based on a variety of factors. Many factors may cause the battery life to be less than the guidance provided. Examples include: if a device does not have a view of the sky (e.g. it is located within a metal building) the estimated battery life can be reduced and if the device is operating outside of the rated temperature band the battery life will be reduced.
27. Mutual Indemnification
We shall indemnify, defend, and hold harmless you and your directors, officers, agents, and employees (the “Customer Indemnified Parties”) for, from, and against any and all claims, demands, suits, costs of defense, attorneys’ fees, losses, damages, expenses, and liabilities brought or asserted by a Third-Party against the Indemnified Parties for injury to or death of any person or persons, including but not limited to your employees or Our employees or its subcontractors, or damage to Third-Party property, including, but not limited to, property of subcontractors, to the extent arising from any gross negligence or willful misconduct on the part of Us, any of Our subcontractors, or any of Our directors, officers, partners, agents, or employees. Our indemnification obligations shall extend only to the extent of Our gross negligence, and no further, and shall be reduced by the percentage of fault attributable to any Third-Party, or to the Indemnified Parties. The term “Third Parties” shall include agents, employees, and representatives of Customer, Us or any subcontractor of either. You shall indemnify, defend, and hold Us and our affiliates and licensors, and any of their directors, officers, subcontractors, agents, successors, assigns, and employees (the “Geoforce Indemnified Parties”) for, from, and against any and all claims, demands, suits, costs of defense, attorneys’ fees, losses, damages, fines, penalties, expenses (including reasonable legal and accounting fees), and liabilities arising out of or resulting from (a) your use of the Services; (b) your violation of this Agreement or any applicable laws including, without limitation, export laws; (c) incomplete or inaccurate information or data provided by you; (d) unauthorized use of any content or materials available on or through the Services; or (e) any content You upload or post to the Services. We reserve the right, at Our discretion, to assume or participate, at your expense, in the investigation, settlement and defense of any action or claim to which it We are entitled to indemnification. No such claim shall be settled without Our prior written consent unless such settlement includes a complete release of Us from all liability and does not contain or contemplate any payment by Us or contain any injunctive or other equitable relief binding upon Us brought or asserted by a Third-Party against the Geoforce Indemnified Parties for injury to or death of any person or persons.
28. Export Restrictions
ANY MATERIALS WE MAKE AVAILABLE ARE SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU AGREE TO COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE SERVICES OBTAINED FROM US. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE. YOU REPRESENTS THAT YOU ARE NOT NAMED ON ANY U.S. GOVERNMENT DENIED-PARTY LIST. YOU SHALL NOT PERMIT USERS TO ACCESS OR USE THE SERVICES IN ANY E.U. – OR U.S.-EMBARGOED COUNTRY OR IN VIOLATION OF ANY APPLICABLE EXPORT LAW OR REGULATION. THIS REQUIREMENT SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
29. Communications & Networks
We shall not be liable for interruptions in, or interference with, Third-Party telecommunications carriers’ cellular, satellite, terrestrial, or other transmissions over which We have no control, including, but not limited to, transmission limitations errors caused by network congestions, weather, atmospheric conditions (such as space debris, solar flares, and other atmospheric anomalies or disturbances), magnetic interference, terrain, structures, localized ’gaps’ in telecommunications network coverage, civil disturbances, Force Majeure Events, or other natural or manmade conditions over which We have no control. We are not responsible for issues related to the condition of your computers, equipment, communications networks, the World Wide Web, or other public networks.
30. Method of Performance
Our performance hereunder shall be provided by Us and Our assignees, agents, and/or subcontractors (in the ordinary course of business), in Our sole discretion.
31. Force Majeure
Neither you nor We shall be liable for failure to perform Our obligations hereunder if such non-performance is attributable to an act of God, war, terrorism, power outage, supply shortages, fire, or other casualty, acts of any governmental body, or other conditions outside our reasonable control including but not limited to the need to comply with applicable laws (collectively, “Force Majeure Events”), but only for the time and to the extent such non-performance is occasioned by such an event.
32. Compliance with Laws
You agree to comply with all applicable statutes, regulations, and legal obligations, including those
relating to the privacy of individuals, regarding your use of the Services and information obtained from the Services. You understand and agree that We may, in Our sole discretion, report suspected violations to the appropriate authorities or parties.
You acknowledge awareness of the Foreign Corrupt Practices Act and UK Bribery Act and represent that, if applicable, you will comply with those statutes and any other applicable corruption laws. You represent that you have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify Us.
34. Severability and Waiver
If any provision(s) of this Agreement is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Any failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing by Us.
This Agreement may be assigned in whole or in part by Us among its affiliates at any time. This Agreement may not be assigned in any manner by you without Our prior written permission.
This Agreement will be governed by the substantive laws of the State of Texas, excluding its choice of law provisions. Any litigation shall be solely and exclusively in the State of Texas, and each Party irrevocably submits to the exclusive jurisdiction of the United States District Court located in Dallas County, Texas. In connection with any dispute arising from or relating to this Agreement, the prevailing party will be entitled to its reasonable attorneys’ fees and costs, including expert witness fees. To the extent you are a government entity, you hereby acknowledge this Agreement is commercial in nature and hereby waive sovereign immunity as to this transaction and relationship. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Commercial Code shall not apply.
37. Audit Rights
Upon request, you will provide assurance that you are using the Services consistent with the terms of this Agreement and applicable laws, as determined by Us. Upon notice, We may inspect your records, accounts, and books relating to use of the Services to ensure the Services are being used in accordance with this Agreement.
38. Entire Agreement / Prioritization of Documents
These Service Terms constitute the entire agreement between you and Us pertaining to the subject matter addressed herein and supersede in its entirety any and all written or oral agreements previously existing between the two with respect to such subject matter. In the event of conflict between a Quote and this Agreement, the terms contained in the Quote control.
39. Temporary Cessation of Services. We reserve the right to suspend all Services hereunder (without further notice) until payment in full of any late amounts on any outstanding order. Any such termination shall not reduce your obligations hereunder.
You acknowledge that any actual or threatened breach of sections 14C, 16-18, and 21 will constitute immediate, irreparable harm to Us for which monetary damages would be an inadequate remedy, and t.hat injunctive relief is an appropriate remedy for such breach. Accordingly, you agree and acknowledge that We shall be entitled to obtain both temporary and permanent injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of posting bond or other security (to the extent that a party is required to post bond or other security, the parties agree and stipulate that $1,000 is sufficient for such bond or other security) or proving actual damages. If any action is brought to enforce this Agreement, the prevailing party will be entitled to receive its reasonable attorney’s fees, court costs, and other collection expenses, in addition to any other relief it may receive.