Terms Of Service

SmarTrackin Terms Of Service

Effective Date: September 25, 2019

This page explains our terms of service and contains important information about your legal rights – when you use SmarTrackin you are agreeing to these terms.

1. Introduction

Whenever you use any of our Services you agree to all of these Terms and our Privacy Notice, as well as any additional terms, policies, or guidelines applicable to the specific Services you use.

These Terms of Service and any Additional Terms (as defined below) (collectively, “Terms”) are a legal agreement between you, as Customer, Administrator, and/or End User, and SmarTrackin, Inc. (“SmarTrackin,” “we,” “our,” or “us”) and govern your use of and access to SmarTrackin’s services, including the SmarTrackin App Marketplace (as defined below) and any software, hardware, mobile applications, tools, features, and other products and services that are made available through our website (https://www.smartrackin.com) (“Site”) or otherwise made available by us (collectively, and together with the items set forth in the definition of SmarTrackin Services, “Services”).

By using the Services in any way, you agree to and accept these Terms, our Privacy Policy, and any other legal notices or guidelines posted on the Site. If you are using our Services for an organization, you are agreeing to these Terms on behalf of that organization. These Terms will also apply when you use the Services on a free or trial basis. By using any of our Services, you agree to these Terms and any other terms, conditions, or policies referenced herein, including any additional terms specific to particular Services you use (collectively, “Additional Terms”). These Additional Terms, such as those listed below, constitute a part of your agreement with us. You should read all of our terms (including the definitions) carefully. If you do not agree to these Terms or are under the age of 18, do not use the Services.

• Privacy Policy: https://smartrackin.com/privacy-policy/

For Customers:

If you are accepting these Terms on behalf of your employer or another entity or for use of the Services by your employer or another entity (“Customer”), you represent and warrant that (a) you have the legal authority to bind the applicable entity to these Terms, and are 18 years or older, and (b) that you agree, on behalf of the entity you represent, to these Terms. If you don’t have the authority to bind your employer or the entity you represent to these Terms, you should not click the checkbox or button or countersign these Terms. If you are accepting these Terms on your own for your own use of the Services as a Customer with an account, you agree that you have the legal authority to agree to these Terms and are 18 years or older.

For End Users:

If you are using the Services as an End User, you agree and acknowledge that the Customer and its Administrator has the ability to access, disclose, restrict, and remove information in or from an End User account, and that the Administrator may be able to monitor, restrict, or terminate access to an End User account.

For Customers who are also End Users:

If you are using the Services as both a Customer and an End User, you are accepting these Terms as both a Customer with a SmarTrackin account and as the related End User for such account.

FOR CUSTOMERS AND END USERS RESIDING IN THE UNITED STATES, PLEASE BE AWARE THAT THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE AND CLASS ACTION WAIVER LOCATED IN SECTION 13 OF THESE TERMS, AS IT REQUIRES ARBITRATION TO RESOLVE DISPUTES, IN MOST CASES, ON AN INDIVIDUAL BASIS. BY ACCEPTING THESE TERMS, CUSTOMER OR END USER, AS APPLICABLE, AGREES TO BE BOUND BY THE AGREEMENT TO ARBITRATE AND THE CLASS ACTION WAIVER.

2. Description of our Services

2.1 Provision of Services

You may only use our Services in accordance with these Terms, which we may change from time to time.
Customer and End Users may access and use the Services solely in accordance with these Terms and the Documentation.

2.2 Downloadable Apps

The Services allow Customer and End Users to download Apps that may update automatically.

2.3 Modifications

SmarTrackin may, at its discretion, change or update the Services and/or these Terms from time to time.

2.4 Customer Support

If you need assistance with the Services, please contact SmarTrackin by emailing SmarTrackin at support@smartrackin.com

2.5 Free Services

SmarTrackin reserves the right to terminate access to Services offered on a free or free trial basis in its sole discretion.

3. Customer Use of the Services

3.1 Customer Responsibilities

By using our Services here are some of the promises that you make to us:
Customer is responsible for any use of the Services through its account, including all use of the Services by Customer’s End Users and Administrators. Customer is responsible for obtaining consents and complying with any laws necessary to allow the operation of the Services, collection of Customer Data, and permission for SmarTrackin to process, store, and transfer Customer Data.

3.2 Compliance with Laws and Regulations

By using our Services here are some of the promises that you make to us:
Customer and End User assume sole responsibility for their compliance with all applicable laws and regulations.

3.3 End User Accounts

You will keep your account credentials confidential and not allow any third parties to use your account to access our Services.
Customer may provision accounts for End Users to access Customer’s Services account. Customer is responsible for maintaining the confidentiality of account credentials used by End Users to access the Services and preventing unauthorized use of the Services. Customer may not permit sharing of End User accounts or passwords. Customer agrees to (a) prevent any unauthorized access, sharing, or use by End Users and terminate any unauthorized use of or access to the Services and (b) provide SmarTrackin with notice of such unauthorized access or use.

3.4 Customer Administration

You are responsible for the internal management and administration of your Services accounts.
Customer is responsible for designating Administrators for its Services account, maintaining updated Administrator contact information, and managing access to Administrator accounts. Administrators may have the ability to access, disclose, restrict or remove Customer Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts. SmarTrackin’s responsibilities do not extend to a Customer’s internal management or administration of the Services.

3.5 Compliance

You must be 18 or over to use our Services.
Customer and End Users must only access and use the Services in accordance with these Terms, the Documentation, the Additional Terms, and all applicable laws. Customer will ensure that no person under the age of 18 is allowed to become an End User.

3.6 SmarTrackin Rights

We have the right to disable access to Customer Data if we believe it to be violating these Terms or infringing any third party’s rights.
You promise not to infringe our intellectual property rights or to use our Services to compete with SmarTrackin.
Although SmarTrackin is not obligated to monitor access to or use of the Services or to review Customer Data, SmarTrackin has the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. SmarTrackin responds to notices of alleged copyright infringement if they comply with the law and are reported using our Copyright Dispute Policy. SmarTrackin reserves the right, but is not obligated, to remove or disable access to any Customer Data, at any time and without notice, including if SmarTrackin believes Customer Data to be in violation of these Terms or the Acceptable Use Policy or is alleged to infringe any third party’s rights. Under no circumstances will we be liable for the content you or any third party makes available through our Services, including, but not limited to, for any errors or omissions in content or Customer Data, or for any loss or damage of any kind incurred as a result of the use of any content or Customer Data posted, transmitted or otherwise made available via the Service.
You acknowledge that we do not screen Customer Data or any content that you or any third party make available through the Service, but that we shall have the right (but not the obligation) to refuse, move or delete any such content that is made available via the Service. We shall also have the right to remove any content that you or any third party make available through our Services that violates these Terms or is otherwise objectionable in our sole discretion.

3.7 Restrictions

We may suspend your access to and use of the Services.
Customer will not (and will not allow any End Users or third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, (b) modify or create derivative works based on the Services, (c) sell, resell, license, copy, rent, lease, distribute, time-share the Services or otherwise use the Services for the benefit of a third party, (d) remove or alter proprietary notices from the Service, (e) use the Services to create any competitive or other product or service or (f) use, sell, copy, modify, create derivative works based on, publicly perform, publicly display, or distribute the SmarTrackin Output outside of the Services, except for regulatory compliance purposes or otherwise with SmarTrackin express consent.

3.8 Suspension

We are not responsible or liable for your use of any Non- SmarTrackin Product.
SmarTrackin, in its sole discretion, may suspend Customer’s or End User’s right to use the Services if (a) Customer’s or End User’s use of the Services poses a security risk to the Services, may violate the Acceptable Use Policy or any Additional Terms, or may adversely affect the Services, SmarTrackin’s systems and infrastructure, SmarTrackin’s reputation, or a third party, (b) Customer or End User’s use of the Services could subject SmarTrackin to liability, (c) Customer is in breach of these Terms, or (d) any default on Customer’s payment obligations. SmarTrackin will use commercially reasonable efforts to provide prompt notice of a suspension.

3.9 Non-SmarTrackin Product

If Customer or End User uses any Non- SmarTrackin Product (including any Non- SmarTrackin Product made available by us, the SmarTrackin App Marketplace, or through our Site), (a) SmarTrackin will not be liable for any act or omission of such Non- SmarTrackin Product, including the Non- SmarTrackin Product’s access to or use of Customer Data or other information or reports and (b) SmarTrackin does not warrant or support any Non- SmarTrackin Product. Customer and/or End User are solely responsible for complying with licenses for Non- SmarTrackin Products and paying fees for Non- SmarTrackin Products. Customer and/or End User may authorize SmarTrackin to allow a Non- SmarTrackin Product to access or use Customer Data or other information or reports via the Services, email, phone, or other form of consent.
If SmarTrackin has an agreement with a Non- SmarTrackin Product, SmarTrackin may rely on a representation from that Non- SmarTrackin Product that Customer or End User has authorized access or use of Customer Data or other information or reports. SmarTrackin does not endorse any Non- SmarTrackin Product, or any opinions, recommendations, or advice therein.

3.10 SmarTrackin App Marketplace

You acknowledge that the SmarTrackin App Marketplace includes listings for Apps that are created, offered, supported and maintained by third parties (“Third Party Developers”) unaffiliated with SmarTrackin or its affiliates (“Third Party Apps”). Notwithstanding anything to the contrary in these Terms, you acknowledge and agree that: (a) you must use your own discretion when you access or deploy Third Party Applications through the SmarTrackin Marketplace and access Third Party Developer services; (b) you should read the terms and conditions and privacy policies associated with any Third Party Applications as provided by the applicable Third Party Developer as they will govern your use of the Third Party Apps; and (c) SmarTrackin does not own or control any of these Third Party Developers or the Third Party Apps, and you will not hold SmarTrackin responsible or liable for any such Third Party Apps or acts or omissions of Third Party Developers, under any circumstances.
SmarTrackin does not in any way warrant the accuracy, reliability, security, completeness, usefulness, non-infringement, or quality of any Third Party Apps (including without limitation the content contained therein), even if a Third Party App complies with these Terms. You agree that you bear all risks associated with using or relying on Third Party Apps. If You have any questions about Third Party Apps or the terms that govern the use of the Third Party Apps, you should contact Third Party Developer of the Third Party App directly. In the event that SmarTrackin is the publisher of an App available through the SmarTrackin App Marketplace, then use of such App will be governed by these Terms.
Any support and maintenance of the Third Party Apps shall be provided by Third Party Developer, and only to the extent described in the related Third Party App’s terms of service or as otherwise communicated to You. You agree and acknowledge that SmarTrackin has no responsibility for providing such support and maintenance. Failure of a Third Party Developer to provide support and maintenance will not entitle you to any refund of fees paid, if any, for the App or the Service.

4. Intellectual Property Rights

4.1 Reservation of Rights

We are providing you notice about our intellectual property rights.
Except for the limited licenses granted to Customer and End User in these Terms, SmarTrackin and its licensors own and reserve all right, title, and interest in and to the SmarTrackin Technology (including the rights to any text, graphics, images, music, software, audio, video, documents, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available by us through the Services).

4.2 SmarTrackin License

You own all of your Customer Data and any feedback or personal information you provide to us, but you also grant us a non-exclusive license to it.
SmarTrackin grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license for Customer and its End Users to access and use the Software for personal and internal business purposes during the Services Term.

4.3 Customer License

As between SmarTrackin and Customer, Customer shall own and reserve all right, title, and interest in and to the Customer Data. Customer and End User grant SmarTrackin, its affiliates, and its contractors a worldwide, irrevocable, perpetual, non-exclusive, right to: (i) use, copy, distribute, create derivative works based on, display, and perform Customer Data to provide, analyze, support, operate, and improve the Services, and its affiliates’ services, and to develop new products and services, (ii) share the Customer Data with third parties (such as our partners and vendors) necessary in order to provide the Services, and (iii) as well as for any other lawful purpose authorized by Customer. Please read our Privacy Policy to understand how SmarTrackin collects, shares, and uses Customer Data.

4.4 SmarTrackin Data

SmarTrackin may use and distribute the SmarTrackin Data (i) to provide, analyze, operate, and improve the Services and develop new products and services, (ii) to create and distribute reports and materials about the Services, and (iii) for any other lawful purpose. SmarTrackin owns and reserves all right, title, and interest in and to the SmarTrackin Data. SmarTrackin will not indicate to any third party that any Smartrackin Data was provided by, obtained from, or associated with the Customer or Customer’s End Users, without Customer’s consent.

4.5 Suggestions

While Customer or End User retains ownership in any feedback and suggestions, Customer and End User agree that by submitting suggestions or other feedback regarding our Services or SmarTrackin, SmarTrackin may use such feedback for any purpose without compensation to Customer or End User. SmarTrackin appreciates all of your feedback and suggestions, and you can submit feedback by emailing SmarTrackin at support@smatrackin.com.

4.6 Publicity

Customer grants SmarTrackin the right to use Customer’s name, trademark, and logo on SmarTrackin’s website and in marketing materials.

5. Privacy and Security

5.1 Privacy

Our Privacy Policy describes how we collect, share, and use your Customer Data.
SmarTrackin takes the privacy of its Customers and End Users very seriously. SmarTrackin will process Customer Data in accordance with its Privacy Policy.

5.2 Security

SmarTrackin uses commercially reasonable efforts to ensure that all facilities used to store and process Customer Data meet industry-standards for security.

5.3 Driver Connections and Data

The Services enable commercial motor vehicle driver Customers or End Users (“Driver”) to connect directly with a motor carrier customer of SmarTrackin (“Motor Carrier”), allowing Drivers automatically share their Customer Data with the Motor Carrier.When Drivers connect with a Motor Carrier through the Services, the Motor Carrier’s administrators (“Fleet Administrators”) and its end users (“Fleet Users”) may access Driver Data for the Driver. When Drivers connect with a Motor Carrier through the Services, the Driver consents to automatically and continuously sharing Driver Data with the Motor Carrier and acknowledges that the Fleet Users and Fleet Administrators may send information to Driver. Motor Carriers and their Fleet Administrators will be able to disclose and share Driver Data with third parties. SmarTrackin will not be liable for any act or omission of a Motor Carrier, including access to or use of Driver Data or other information or reports.

5.4 Compelled Disclosure

SmarTrackin may disclose Customer Data and other information when required by law or regulation, so long as SmarTrackin gives the Customer prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Customer’s cost to contest or limit the disclosure.

6. Service-Specific Terms & Conditions

6.1 Terms for Apple Apps

These Terms apply to your use of all the Software, including the iPhone and iPad applications available via the Apple, Inc. (“Apple”) App Store (each an “Apple Store App”), but the following additional terms in this Section 6.5 also apply to Apple Store Apps:

6.1.1

Both Customer and SmarTrackin acknowledge that these Terms are concluded between Customer and SmarTrackin only, and not with Apple, and that Apple is not responsible for Apple Store Apps or the content;

6.1.2

The Apple Store Apps are licensed to Customer on a limited, non-exclusive, non-transferable, non-sublicensable basis, solely to be used in connection with the Services for private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;

6.1.3

Customer will only use the Apple Store Apps in connection with an Apple device that Customer owns or controls;

6.1.4

Customer acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Store Apps;

6.1.5

In the event of any failure of the Apple Store Apps to conform to any applicable warranty, including those implied by law, Customer may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to Customer will be to refund to Customer the purchase price, if any, of the Apple Store App;

6.1.6

Customer acknowledges and agrees that SmarTrackin, and not Apple, is responsible for addressing any claims Customer or any third party may have in relation to the Apple Store App;

6.1.7

Customer acknowledges and agrees that, in the event of any third-party claim that the Apple Store App or Customer’s possession and use of the Apple Store App infringes that third party’s intellectual property rights, SmarTrackin, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;

6.1.8

Customer represents and warrants that Customer is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties;

6.1.9

Both Customer and SmarTrackin acknowledge and agree that, in use of the Apple Store App, Customer will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and;

6.1.10

Both Customer and SmarTrackin acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer as the third-party beneficiary hereof.

7. Fees & Payment

7.1 Subscription Plan

The prices, features, and options of the SmarTrackin Services depend on the Subscription Plan selected as well as any changes instigated by Customer. SmarTrackin does not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without prior notice.

7.2 No Refunds

Customer will timely pay SmarTrackin all fees associated with its Subscription Plan, Account, or use of the SmarTrackin Services, including, but without limitation, by Authorized Users. CUSTOMER’S PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS. Charges for pre-paid Subscription Plans will be billed to Customer in advance.

7.3 Recurring Charges

When you purchase a Subscription Plan, you must provide accurate and complete information for a valid payment method that you are authorized to use. You will be billed for your Subscription Plan either through the payment method you provide, such as a credit card, or through an intermediary provider such as PayPal. Customer must promptly notify SmarTrackin of any change in its invoicing address and must update its Account with any changes related to its payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION PLAN, CUSTOMER AUTHORIZES SMARTRACKIN OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING (E.G. MONTHLY OR YEARLY) BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION PLAN CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE SMARTRACKIN SERVICES. The Authorization continues through the applicable Subscription Term and any Renewal Term (as defined in Section 9.3, below) until Customer cancels as set forth in Section 9 of these Terms.

7.4 Late Fees & Collection Costs

If SmarTrackin does not receive payment from Customer’s payment method, Customer agrees to pay all amounts due upon demand. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by SmarTrackin to collect any amount that is not paid when due. SmarTrackin may accept payment in any amount without prejudice to SmarTrackin’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to SmarTrackin may not be withheld or offset by Customer for any reason against amounts due or asserted to be due from SmarTrackin.

7.5 Invoices

SmarTrackin will provide billing and usage information in a format we choose, which may change from time to time. SmarTrackin reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment. Customer agrees to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice. If Customer does not bring such problems/discrepancies to our attention within thirty (30) days, it agrees to waive its right to dispute such problems or discrepancies.

7.6 Invoices

Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations. Customer agrees that we may (at our option) accumulate charges incurred during a billing cycle and submit them as one or more aggregate charges during or at the end of a cycle, and that we may delay obtaining authorization or payment from Customer’s payment card issuer until submission of the accumulated charge(s).

7.7 Benefit Programs

You may receive or be eligible for certain pricing structures, discounts, features, promotions, and other benefits (collectively, “Benefits”) through a business agreement with us (“Business Terms”). Any and all such Benefits are provided solely as a result of the corresponding Business Terms and such Benefits may be modified or terminated without notice. If you use the SmarTrackin Services and a business entity pays your charges or is otherwise liable for the charges, you authorize us to share your account information with that entity and/or its authorized agents. If you are enrolled in a Subscription Plan or receive certain Benefits tied to Business Terms with us, but you are liable for your own charges, then you authorize us to share enough account information to verify your continuing eligibility for those Benefits and the Subscription Plan.

7.7 Taxes

Customer is responsible for all taxes, except those directly relating to SmarTrackin ‘s net income, gross receipts, or capital stock. SmarTrackin will invoice Customer for sales tax when required to do so and Customer will pay the tax unless Customer provides SmarTrackin with a valid tax exemption certificate authorized by the appropriate taxing authority.

7.8 Intermediary Provider Billing

If your Subscription Plan is based on intermediary provider billing, your intermediary provider will automatically charge your PayPal account monthly for the cost of the Subscription Plan and any applicable taxes. If you are not current with your Subscription Plan payments, we reserve the right to terminate your account, suspend your access to your Subscription Plan, or convert your Subscription Plan subscription to a non-subscription account. You will be responsible for paying all past due amounts.

8. Customer Warranties

Customer hereby represents and warrants to SmarTrackin that: (a) it has all requisite rights and authority to use the SmarTrackin Services under these Terms and to grant all applicable rights herein; (b) it is responsible for all use of the SmarTrackin Services associated with its Account; (c) it is solely responsible for maintaining the confidentiality of its Account names and password(s); (d) it agrees to immediately notify SmarTrackin of any unauthorized use of Customer’s Account of which it becomes aware; (e) it agrees that SmarTrackin will not be liable for any losses incurred as a result of a third party’s use of its Account, regardless of whether such use is with or without its knowledge and consent; (f) it will use the SmarTrackin Services for lawful purposes only and subject to these Terms; (g) any information it submits to SmarTrackin is true, accurate, and correct; and (h) it will not attempt to gain unauthorized access to the System or the SmarTrackin Services, other accounts, computer systems, or networks under the control or responsibility of SmarTrackin through hacking, cracking, password mining, or any other unauthorized means.

9. Term and Termination

9.1 Suspension of Access to SmarTrackin Services

SmarTrackin may suspend any use of the SmarTrackin Services, remove any content or disable or terminate any Account or Authorized User that SmarTrackin reasonably and in good faith believes violates these Terms. SmarTrackin will use commercially reasonable efforts to notify you prior to any such suspension or disablement, unless SmarTrackin reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or (b) it is necessary to delay notice in order to prevent imminent harm to the SmarTrackin Services or a third party. Under circumstances where notice is delayed, SmarTrackin will provide the notice if and when the related restrictions in the previous sentence no longer apply.

9.2 Term

The period of effectiveness of these Terms (“Term”), with respect to SmarTrackin Services, begins on the date the Customer accepts it and continues until the Customer’s Subscription Plan expires or its use of the SmarTrackin Services ceases (including as a result of termination in accordance with this Section 9), whichever is later.

9.3 Subscription Term and Automatic Renewals

SmarTrackin’s Subscription Plans automatically renew unless otherwise noted. If you purchase a Subscription Plan you agree to pay the then-current applicable fee associated with the Subscription Plan and further agree and acknowledge that it will automatically renew, unless, prior to the end of the current period of effectiveness of the Subscription Plan (“Subscription Term”): (a) you terminate your Account; (b) you set your Account not to auto-renew by logging in to SmarTrackin Services or contacting us; (c) SmarTrackin declines to renew your Subscription Plan; or (d) these Terms are otherwise properly terminated as expressly permitted herein. The Subscription Plan will automatically renew on a monthly or annual basis, depending on the method you choose (“Renewal Term”).
We reserve the right to modify, terminate, or otherwise amend the fees and features associated with your Subscription Plan. We may also recommend that you purchase a new Subscription Plan that is comparable to your previous Subscription Plan that is ending. Before we change the fees and charges in effect, or add new fees and charges, we will give you advance notice of at least thirty (30) days. If we provide you such advance notice, your continued use of the SmarTrackin Services after the changes have been made will constitute your acceptance of the changes. If you do not wish to continue subscribing with the new fees or features, you may terminate your Subscription Plan as described in Section 9.4. If you accept the new Subscription Plan, its terms and conditions with these Terms will apply in the Renewal Term and thereafter.

9.4 Termination by Customer

You may terminate your Account at any time upon ten (10) days’ advance written notice to SmarTrackin. If you wish to terminate, you must provide notice by contacting us. Section 7.2 notwithstanding, if a Customer terminates its annual Subscription Plan within the first thirty (30) days of the initial Subscription Term, it may submit a written request to SmarTrackin for a refund of the fees paid to SmarTrackin for the initial Subscription Term, which SmarTrackin will consider, without obligation, in good faith. SmarTrackin has no obligation to consider refund requests related to a termination of a Subscription Plan if the termination does not occur in the first thirty (30) days of the initial Subscription Term, or if there has been a violation of other Terms herein, or if records indicate substantial productive use took place during that period.

9.5 Default; Termination by SmarTrackin

A Customer will be in default of these Terms if: (a) it fails to timely pay any amount owed to us or an Affiliate of ours; (b) it or an Authorized User associated with its Account breaches any provision of these Terms or violates any published policy applicable to the SmarTrackin Services; (c) it is or becomes subject to any proceeding under the Bankruptcy Code or similar laws; or (d) if, in our sole discretion, we believe that continued use of the SmarTrackin Services by the Customer (or its Authorized Users) creates legal risk for SmarTrackin or presents a threat to the security of the SmarTrackin Services or SmarTrackin’s customers. If a Customer is in default, we may, without notice: (i) suspend its Account and use of the SmarTrackin Services; (ii) terminate its Account; (iii) charge reactivation fees in order to reactivate its Account; and (iv) pursue any other remedy available to us. A SmarTrackin “Affiliate” means any legal entity that SmarTrackin, LLC. owns, that owns SmarTrackin, Inc. or that is under common control with SmarTrackin, LLC. A Customer “Affiliate” means any legal entity that Customer owns, that owns Customer or that is under common control with Customer. “Control” and “own” mean possessing greater than 50% interest in an entity or the right to direct the management of the entity.

9.6 Effect of Termination

If these Terms expires or are terminated for any reason , then (a) the rights granted by one party to the other will cease immediately except as otherwise set forth in this section, (b) SmarTrackin will have no obligation to maintain Customer Data and may delete any copies of Customer Data, and (c) the following sections will survive: 4 (Intellectual Property Rights), 5.4 (Compelled Disclosure), 7 (Fees & Payment), 9.6 (Effect of Termination), 10 (Warranties and Disclaimers), 11 (Indemnity), 12 (Limitation of Liability), 13 (Arbitration Agreement), 14 (General), 15 (Definitions).

10. Warranties and Disclaimers

THE SMARTRACKIN SERVICES, DOCUMENTATION, AND SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOUR USE OF THE SMARTRACKIN SERVICES, DOCUMENTATION, AND SITE SHALL BE AT YOUR SOLE RISK. SMARTRACKIN AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, AGENTS, AFFILIATES, SUBSIDIARIES, AND LICENSORS (“SMARTRACKIN PARTIES”): (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DOES NOT WARRANT THAT THE SMARTRACKIN SERVICES, DOCUMENTATION, OR SITE ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM USE OF THE SMARTRACKIN SERVICES, DOCUMENTATION, OR SITE.
THE SMARTRACKIN PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS THAT SMARTRACKIN SERVICES, DOCUMENTATION, AND SITE HAVE BEEN AND WILL BE PROVIDED WITH DUE SKILL, CARE AND DILIGENCE OR ABOUT THE ACCURACY OR COMPLETENESS OF THE SMARTRACKIN SERVICES, DOCUMENTATION, AND SITE CONTENT AND ASSUMES NO RESPONSIBILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (ii) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF SMARTRACKIN SERVICES, DOCUMENTATION, AND SITE; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE THROUGH THE ACTIONS OF ANY THIRD PARTY; (vi) ANY LOSS OF YOUR DATA OR CONTENT FROM THE SITE; AND/OR (vii) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA SMARTRACKIN SERVICES, DOCUMENTATION, AND SITE. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF SMARTRACKIN TO ANY THIRD PARTY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY AND FOR THE MINIMUM WARRANTY PERIOD ALLOWED BY THE MANDATORY APPLICABLE LAW.
THE SMARTRACKIN PARTIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, AND THE SMARTRACKIN PARTIES WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as in this Section 9 or below in Section 11. Accordingly, some of these limitations may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in Section 9 and Section 11 specifically do apply to you.
CUSTOMER AND END USER(S) ACKNOWLEDGE AND AGREE THAT THE SMARTRACKIN SERVICES ARE NOT A SUBSTITUTE FOR A SAFE, CONSCIENTIOUS DRIVER. THEY CANNOT COMPENSATE FOR A DRIVER THAT IS DISTRACTED, INATTENTIVE, OR IMPAIRED BY FATIGUE, DRUGS, ALCOHOL, OR OTHERWISE. THE DRIVER IS RESPONSIBLE TO AVOID AN ACCIDENT. CUSTOMER’S DRIVERS AND END USERS SHOULD NEVER WAIT FOR ANY OF THE SMARTRACKIN SERVICES TO PROVIDE A WARNING BEFORE TAKING MEASURES TO AVOID AN ACCIDENT OR ANY VIOLATIONS.
FAILURE OF A DRIVER TO TAKE FULL RESPONSIBILITY FOR THE OPERATION OF A VEHICLE AT ALL TIMES CAN RESULT IN SERIOUS PERSONAL INJURY OR PROPERTY DAMAGE.
CUSTOMER AND END USER(S) ACKNOWLEDGE THAT USE OF THE SOFTWARE, INCLUDING THE APPS, WHILE DRIVING IS STRICTLY FORBIDDEN. DISTRACTED DRIVING IS DANGEROUS AND ILLEGAL IN MANY JURISDICTIONS.

11. Indemnity

11.1 Customer and End User Indemnity

Customer and End User(s) will indemnify, defend, and hold harmless SmarTrackin and its affiliates, officers, directors, employees, agents, licensors, and distributors from and against all liabilities, damages, losses, and costs and expenses, including settlement costs and reasonable attorneys’ fees, arising out of a third-party claim regarding (i) Customer’s or End Users’ access to or use of the Services; (ii) Customer Data; (iii) Customer’s or End Users’ breach of these Terms, (iv) Customer’s or End User’s interactions with an Other Party, or (v) negligent acts or omissions of Customer or End Users.

11.2 Customer and End User Release

Because SmarTrackin is not party to any agreements between Customer or End User and any third parties, in the event that Customer or End User has a dispute with End Users, Fleet Users, Fleet Administrators, Motor Carriers, operators of Non- SmarTrackin Products, or other third parties, as applicable (each, an “Other Party”), Customer and/or End User agree to address such disputes directly with the Other Party in question and Customer and End User(s) release SmarTrackin (and our officers, directors, employees, agents, investors, licensors, distributors, and affiliates from any and all claims, demands, or damages (actual, exemplary, special, punitive, or consequential)) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
In consideration of the covenants under these Terms, Customer, on behalf of itself and its End Users (“Releasors”) hereby irrevocably and forever waives, releases, and discharges SmarTrackin and its affiliates, officers, directors, employees, agents, successors and assigns (“Releasees”) from any claims, suits, damages, losses, and liabilities of any kind that the Releasors had, now have, or may ever have against the Releasees in connection with disputes arising from, relating to, or in connection with an Other Party, during and after the Services Term. The Releasors have been made aware of and understand all rights they may have arising under California Civil Code Section 1542 (or any analogous state, federal, or international statute or principle) against SmarTrackin, which California Civil Code Section 1542 provides that:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
The Releasors expressly, knowingly, and intentionally waive any and all rights, benefits, and protections of California Civil Code 1542 (or any analogous state, federal, or international statute or principle). Customer and End User(s) acknowledge they have had an opportunity to be advised by counsel concerning the effect and import of these Terms under California Civil Code 1542 and other legal requirements. The parties acknowledge and agree that this waiver is an essential and material term of these Terms.

12. Limitation of Liability

12.1 Disclaimer of Consequential Damages

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, SMARTRACKIN WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THESE TERMS, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS, OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES, AND WHETHER SUCH CLAIMS ARE MADE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SMARTRACKIN PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY: (a) USE OF THE SITE, DOCUMENTATION, OR SMARTRACKIN SERVICES; (b) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (c) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, DOCUMENTATION, OR SMARTRACKIN SERVICES; (d) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (e) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVERS; (f) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE, DOCUMENTATION, OR SMARTRACKIN SERVICES BY ANY THIRD PARTY; (g) ANY LOSS OF YOUR DATA OR CONTENT FROM THE SITE, DOCUMENTATION, OR SMARTRACKIN SERVICES; (h) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE, DOCUMENTATION, OR SMARTRACKIN SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE SMARTRACKIN PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND/OR (i) THE DISCLOSURE OF INFORMATION PURSUANT TO THESE TERMS OR OUR PRIVACY POLICY.
Some countries and jurisdictions do not allow the limitation or exclusion of consequential, direct, indirect, or other damages in contracts with consumers and to the extent you are a consumer the limitations or exclusions in this Section 12.1 may not apply to you.

12.2 Cap on Damages

OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR TO YOUR USE OF THE SITE (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO SMARTRACKIN FOR THE SMARTRACKIN SERVICE(S) GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICEVER IS GREATER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.

12.3 Independent Allocations of Risk

Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of these Terms between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these Terms, and each of these provisions will apply even if the warranties in these Terms have failed of their essential purpose.

12.4 Jurisdictional Limitations

Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to you. In that event, such exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law (and our liability shall be limited or excluded as permitted under mandatory applicable law). If you are a New Jersey resident, the limitations in Section 12 specifically do apply to you.

13. Arbitration Agreement

13.1 Agreement to Arbitrate

Unless otherwise agreed to by both parties in writing or set forth in the “Exceptions to the Agreement to Arbitrate”, you and SmarTrackin agree that, in order to expedite and control the cost of any disputes, any legal or equitable claim arising out of or relating in any way to the Services, these Terms, and this Arbitration Agreement (“Claim”) will be determined by binding arbitration or in small claims court as further described below.

13.2 Informal Dispute Resolution

Except with respect to Claims listed in “Exceptions to the Agreement to Arbitrate” below, you and SmarTrackin agree to attempt to resolve any disputes informally. You and SmarTrackin agree to provide notice to the other party and attempt to resolve the dispute through discussion (“Informal Negotiation Period”). After 30 days, either party may bring a formal proceeding.

13.3 Arbitration Notice

If either you or SmarTrackin chooses to start an arbitration proceeding, the party initiating the proceeding will send a notice of its Claim (“Arbitration Notice”) to the other party. You will send the Arbitration Notice by email to legal@smartrackin.com.

13.4 Arbitration Procedures

Any arbitration proceedings between you and SmarTrackin will be conducted under the commercial rules then in effect for the American Arbitration Association (“AAA”), except with respect to the provision of this agreement which bars class actions in Section 13.8 and any specific rules and procedures explicitly discussed in this Section 13.4.
The award rendered by the arbitrator(s) shall include costs of arbitration, reasonable costs of expert and other witness and reasonable attorneys’ fees. For claims less than $10,000, SmarTrackin will advance to you AAA’s filing fees; provided, however, that such fees must be repaid to SmarTrackin if SmarTrackin prevails in the arbitration. Please see this link for the AAA’s current rules and procedures or contact the AAA at 1-800-778-7879.

13.5 Non-Appearance-Based Arbitration Option

Except with respect to the Exceptions to the Agreement to Arbitrate in Section 13.6, for Claims where the total amount of the award sought in arbitration is less than $10,000, the party seeking the award may choose non-appearance-based arbitration. If non-appearance-based arbitration is elected, the arbitration will be conducted online, by telephone, and/or solely based on written submissions to the arbitrator. The specific manner shall be chosen by the party initiating arbitration. Non-appearance-based arbitration involves no personal appearances by parties or witnesses unless otherwise mutually agreed to by the parties.

13.6 Exceptions to the Agreement to Arbitrate

13.6.1

Notwithstanding the foregoing, the Arbitration Notice requirement and the Informal Negotiation Period do not apply to either law suits solely for injunctive relief to stop unauthorized use of the Services or lawsuits concerning copyrights, trademarks, moral rights, patents, trade secrets, claims of piracy or unauthorized use of the Services.

13.6.2

Either you or SmarTrackin may assert Claims which qualify for small claims court in Chicago, IL or in any United States county in which you either live or work.

13.6.3

If the Agreement to Arbitrate is found not to apply to your Claim, the parties consent and agree to both venue and personal jurisdiction in the federal and state courts located in Chicago, IL.

13.7 Opting Out of the Agreement to Arbitrate

You have the right to opt-out and not be bound by the binding agreement to arbitrate provided in these Terms by sending written notice of your decision to opt-out to legal@smartrackin.com. In order for your opt-out to be valid, the notice must be sent within 30 days of first using the Services.

13.8 No Class Actions

UNLESS YOU AND SMARTRACKIN AGREE OTHERWISE, YOU MAY ONLY RESOLVE DISPUTES WITH SMARTRACKIN ON AN INDIVIDUAL BASIS. CLASS ACTIONS, CLASS ARBITRATIONS, PRIVATE ATTORNEY GENERAL ACTIONS AND CONSOLIDATIONS WITH OTHER CLAIMS ARE NOT ALLOWED. NEITHER YOU NOR SMARTRACKIN MAY CONSOLIDATE A CLAIM OR CLAIMS AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS ACTION, A CONSOLIDATED ACTION OR A REPRESENTATIVE ACTION. If this specific section is found to be unenforceable, then the entirety of Section 13 (Arbitration Agreement) will be deemed void.

14. General

14.1 Integration

All attachments to the Terms and any Order Forms executed by the parties are hereby incorporated into the Terms by reference. The Terms, including the attachments, constitute the entire and exclusive understanding and agreement between SmarTrackin and you regarding the Services, and supersede and replace any and all prior or contemporaneous oral or written agreements between SmarTrackin and you regarding the Services, including any non-disclosure agreements.
If there is a conflict between the documents that make up these Terms, the documents will control in the following order: Additional Terms, Terms, and the Documentation.

14.2 Severability

If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

14.3 Modification

SmarTrackin may modify these Terms periodically. If an update will materially affect your use of the Services, SmarTrackin will notify you prior to the update’s effective date (except for changes due to legal or regulatory reasons which may be effective immediately). Otherwise, updates will be effective as of the date posted on this website and it is your responsibility to monitor the Site for updates to these Terms.
By continuing to use the Services or executing additional Order Forms after the changes become effective, you agree to be bound by the modified Terms. If you do not agree to the modified Terms for the Services, you may terminate the Services within 30 days of receiving notice of the change.

14.4 Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without SmarTrackin ‘s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. SmarTrackin may assign these Terms in their entirety, without notice, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

14.5 Governing Law

The Terms and the relationship between you and SmarTrackin shall be governed by the laws of the State of Illinois except for its conflict of laws principles.

14.6 Causes of Action

Any cause of action related to the Services or the Terms must commence within one (1) year after the cause of action arises. Otherwise, such cause of action is barred permanently.

14.7 Confidentiality

These Terms and the SmarTrackin Technology will be the “Confidential Information” of SmarTrackin. You will not (a) use the Confidential Information except as expressly permitted by these Terms and (b) disclose Confidential Information to third parties.

14.8 Notices

Any notices provided by SmarTrackin under these Terms, including those regarding modifications to these Terms, will be given by SmarTrackin: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Notices to SmarTrackin must be sent to legal@smartrackin.com.

14.9 Force Majeure

SmarTrackin will not be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, labor disputes, governmental action, utilities failures, third-party software or hardware, and Internet disturbance) that was beyond its reasonable control. If such event continues for more than twenty (20) days, SmarTrackin may cancel unperformed Services upon written notice.

14.10 Relationship of the Parties

The parties are independent contractors. These Terms do not create a partnership, joint venture, or agency relationship between the parties.

14.11 Waiver

SmarTrackin ‘s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of SmarTrackin. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

14.12 Construction

Any ambiguity in the Terms will be interpreted equitably without regard to which party drafted the Terms. “Including” and “include” will be construed to mean “including without limitation.”

14.13 Export Compliance

The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer and/or End User is responsible for compliance regarding Customer’s and its End Users’ use of the Services. Customer will not permit End Users to use the Services from a U.S. embargoed country.

14.14 Third-Party Beneficiaries

There are no third-party beneficiaries under these Terms.

14.15 Counterparts

The Terms may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.

14.16 Contact Information

If you have any questions about these Terms or the Services please contact SmarTrackin at support@smartrackin.com

15. Definitions

15.1

“Acceptable Use Policy” means the acceptable use policy for the Services available at https://smartrackin.com/acceptable-use-policy or otherwise provided by SmarTrackin.

15.2

“Administrator” means a Customer-designated End User who administers the Services account and has access to permissions and other sensitive settings.

15.3

“Apps” means downloadable software, including the mobile device software.

15.4

“End Users” means users of Customer’s Services account. End Users may include Customer, Customer’s and its affiliate’s employees, agents, and contractors.

15.5

“Customer Information” means any data and information Customer or its End Users upload, transmits, or submits to the SmarTrackin Software, including data and information from Non- SmarTrackin Products.

15.6

“Customer Data” means Customer Information and Hardware Data.

15.7

“Documentation” means any SmarTrackin -provided written documentation and policies.

15.8

“SmarTrackin App Marketplace” means SmarTrackin ‘s online marketplace for web or other software services or applications that utilize or interact with the API and integrate with the Service.

15.9

“SmarTrackin Data” means (a) usage data, statistics, aggregate data, and de-identified data derived from Customer Data and Hardware Data so that such data does not identify a person or (b) data and information used to generate the Hardware Data.

15.10

“SmarTrackin Output” means the Hardware Data and other information and reports made available to Customer through the Services.

15.11

“SmarTrackin Service(s)” means the (a) Software offered as a service, (b) the SmarTrackin App Marketplace, (c) support or other services described in an exhibit, attachment, or the Terms, and (d) the Software, in each case that are ordered by Customer or otherwise provided by SmarTrackin and used by a Customer, End User, or Administrator under these Terms.

15.12

“SmarTrackin Technology” means the Services, Documentation, SmarTrackin Data, and SmarTrackin ‘s trademarks, logos, and other brand features.

15.13

“Non-SmarTrackin Product” means any Customer-provided or third-party services, products, websites, or applications, such as a service that interoperates with the Services, a website linked from the Services, and any application or service available through the SmarTrackin App Marketplace.

15.14

“Software” means the Site, and fleet management and other software, including the Apps, that are ordered by Customer or otherwise provided by SmarTrackin and used by Customer under these Terms.

15.15

“Services Term” means the term of these Terms, which begins on the Effective Date and continues until the earlier of the expiration of Subscription Term or these Terms are otherwise terminated.

15.16

“Subscription Term” means the initial subscription term and all renewal terms for the Services.