Service Provider App Terms of Use

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OnTrac Service Providers

Terms of Use

Last Updated: September 10, 2020

PLEASE READ THIS TERMS OF USE AGREEMENT (“Agreement”) CAREFULLY. This Agreement has been prepared as a legally binding agreement between you (sometimes referred to as “you” or “your”) and Express Messenger Systems, Inc., dba, OnTrac (collectively referred to as “OnTrac”, “us”, “our”, or “we.” You and OnTrac collectively referred to as the “Parties”).

OnTrac makes the OnTrac Service Providers mobile application, (together with any Updates, as defined below, the “App”) available for your use subject to the terms and conditions in this Agreement.

By DOWNLOADING and using the APP, you agree to be bound by the terms and conditions of this Agreement. DO NOT DOWNLOAD OR USE THE APP IN ANY WAY IF YOU DO NOT AGREE TO THIS AGREEMENT.

1. Revisions to this Agreement

We may revise and update this Agreement from time to time and will post the updated Agreement to the App. Unless otherwise stated in the amended version of the Agreement, any changes to this Agreement will apply immediately upon posting. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of this App will constitute your agreement to any new provisions within the revised Agreement.

2. Your License to Use the App

A. Ownership

All written content prepared and posted by OnTrac and the App design, layout, look, appearance, and graphics on the App, as well as the trademarks, service marks, and logos contained on the App (“OnTrac Content”) are owned by or licensed to OnTrac and are subject to copyright, trademark, and other intellectual property rights under United States and foreign laws and international conventions. OnTrac reserves all rights not expressly granted in, and to, the App and the OnTrac Content.

B. License

Except as otherwise provided in this Agreement, no part of the App and no OnTrac Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use, without our prior express written consent. On the condition that you comply with all your obligations under this Agreement, OnTrac grants you a limited, revocable, non-exclusive, non-transferable license to access and use the App for your internal business purposes. Any use of the App in excess of this license is strictly prohibited and constitutes a breach of this Agreement, which may result in the termination of your right to access and use the App. Your access to the App is provided on a temporary basis with no guarantee for future availability. We reserve the right to withdraw or modify any content or services we provide on the App without notice.

C. Restrictions on Your Use of the App

You agree that when using the App, you will not:

  1. Delete, modify, or attempt to change or alter any of the OnTrac Content or notices on the App;
  2. Introduce into the App or OnTrac servers any virus, rogue program, time bomb, drop dead device, ransomware, back door, Trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the App or to otherwise harm other users, OnTrac Content, or any third parties, or perform any such actions;
  3. Use the App to commit fraud or conduct other unlawful activities;
  4. Access or attempt to access the App using another person’s phone number or activation key;
  5. Copy, modify, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the App is based;
  6. Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the App for any reason;
  7. Use any OnTrac Content made available through the App in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
  8. Submit any content or communications through or relating to the App that violates any rights of a third party, including copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
  9. Submit any content or communications through the App that is unlawful, harmful, hateful, threatening, abusive, violent, profane, discriminatory, prejudicial, disparaging, fraudulent, inaccurate, misleading, dangerous, offensive, indecent, harassing, threatening, intimidating, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, or otherwise objectionable; or
  10. Use the information in the App to create or sell a similar service. OnTrac may suspend or terminate, in whole or in part, your access to the App if you violate the terms and conditions set forth in this Section.

D. Geographic Restrictions

The App is provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the App outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the App from outside the United States, you are responsible for compliance with local laws.

3. Updates

OnTrac may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that OnTrac has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this Agreement.

4. Your Content and Suggestions

The App may include features that involve information that you upload, submit, or send through the App (“Your Content”). This section provides the terms and conditions governing your use of such features.

  1. License to Your Content. By submitting Your Content to the App, you grant OnTrac a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license to use, reproduce, distribute, create derivative works of, adapt, display, and perform Your Content. You represent and warrant that you have the necessary rights to Your Content, including the right to assign or grant a license to your rights in this Agreement.
  2. Your Responsibility for Your Content. Your Content is your sole responsibility. Under no circumstances will we be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the use of any of Your Content. We further reserve the right to monitor, delete or modify any of Your Content in our sole discretion.
  3. Your Suggestions. We welcome your comments regarding the App and OnTrac Content. In addition to the license you grant to us for Your Content, if you elect to provide or make available suggestions, comments, ideas, improvements, or other information or materials (collectively, “Suggestions”) to us in connection with or related to the App and OnTrac products and services (including any related technology), whether you send such in Suggestions to us through the App or through a separate communication channel, you grant us a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license under any and all rights in and to the Suggestions to use, reproduce, distribute, create derivative works of, adapt, display, perform, and otherwise exploit, and to make, have made, sell, offer to sell, and import any products and services incorporating or based on, Suggestions in any manner.

5. Your Privacy

Our Privacy Policy describes how we collect and use personal information about you collected through the App.

6. Disclaimer of Warranties

THE APP IS PROVIDED “AS IS”. WE DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF (i) YOUR USE OR THE RESULTS OF YOUR USE OF THE APP; (ii) ANY ADVICE YOU GLEAN FROM THE APP WHETHER PROVIDED BY US OR A THIRD PARTY; OR (iii) ANY OTHER CONTENT AVAILABLE THROUGH THE APP. WE DO NOT PROMISE THAT THE APP WILL BE UNINTERRUPTED OR WILL BE ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THERE IS NO WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADDITIONAL STATEMENTS OUTSIDE THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, IS A WARRANTY OR PROMISE BY US AND WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH STATEMENTS. WE WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY COMMUNICATION OR CONTENT.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. IN THE EVENT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS CONTAINED IN THESE TERMS OF USE SHALL BE DETERMINED BY A COURT TO BE INVALID OR UNENFORCEABLE, THEN SUCH PROVISIONS SHALL BE REFORMED TO THE MAXIMUM LIMITATION PERMITTED BY APPLICABLE LAW. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED TO 90 DAYS FROM THE DATE OF ACCESS.

7. Limitation of Liability

We are not responsible for any damages to you or anyone filing suit on your behalf for any reason.

ONTRAC AND ITS SUBSIDIARIES, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, BUSINESS PARTNERS, LICENSORS, EMPLOYEES, ASSIGNEES, AND SUCCESSORS-IN-INTEREST (COLLECTIVELY, THE “ONTRAC PARTIES”), WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, DEMANDS OR CAUSES OF ACTION, OR DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, RELATING TO THIS AGREEMENT, YOUR USE OF THE APP OR ANY INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE APP AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF ONTRAC.

YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE APP WILL BE TO STOP USING THE APP.

IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF ONTRAC, ITS SUPPLIERS, LICENSORS, PARENT, OR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND ASSIGNEES OR SUCCESSORS-IN-INTEREST, FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE LESSER OF ONE THOUSAND U.S. DOLLARS ($1000.00 USD) OR YOUR DIRECT PROVABLE DAMAGES.

IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO THE 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.” YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST ONTRAC.

8. Indemnification

To the fullest extent permitted by applicable law, you agree to hold harmless, indemnify, and defend the OnTrac Parties from and against any and all claims (including liabilities, damages, losses, costs, expenses, and reasonable attorneys’ fees): (a) alleging injury, damage, or loss resulting from your use of the App; (b) alleging that Your Content infringes a copyright, patent, or trademark, or misappropriates a trade secret of a third party; (c) relating to any act or omission by you which is a breach of your obligations under this Agreement or applicable law; or (d) otherwise relating to your use of the App. You will have the right to defend and compromise such claim at your expense for the benefit of the OnTrac Parties; provided, however, you will not have the right to obligate the OnTrac Parties in any respect in connection with any such settlement without the written consent of the indemnified party. Notwithstanding the foregoing, if you fail to assume your obligation to defend or if OnTrac elects to defend such claims itself, the OnTrac Parties may do so to protect their interests and you will reimburse all costs incurred by the OnTrac Parties in connection with such defense.

9.Governing Law; Choice of Forum

This Agreement is governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the App shall be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona in each case located in Maricopa County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

10. Export Regulation

The App may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the App to, or make the App accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the App available outside the U.S.

11. Miscellaneous Terms

  1. Complete Agreement. This Agreement constitutes the entire agreement between you and OnTrac relating to your use of, and access to, this App and supersedes any prior or contemporaneous agreements or representations. This Agreement may not be amended except as set forth in Section 1 of this Agreement.
  2. Severability. If any portion of this Agreement is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible.
  3. Headings. Descriptive headings contained in this Agreement are for convenience only and shall not control or affect the meaning or construction of any of this Agreement.
  4. No Waivers. Our failure to enforce or exercise any provision of this Agreement or related right will not constitute a waiver of that right or provision.
  5. No Assignments and Transfers. No rights or obligations under this Agreement may be assigned or transferred by you, either voluntarily or by operation of law, without our express prior written consent and in our sole discretion.
  6. Notices. You can provide any notices to us under this Agreement by e-mail or mail using the contact information provided in Section 12, below. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by e-mail or through posting notices to your account. You are responsible for providing OnTrac with up-to-date contact information, which you may do by updating your account information through the App or by sending a message to us. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may print the communications for your records.

12. Contact Us

If you have any questions or need to contact us for any reason relating to this Agreement, please e-mail vendorrelations@ontrac.com. You may also send us mail at the following address:

Attn: Vendor Relations
OnTrac
2501 S Price Rd Ste 201
Chandler AZ 85286