End User Agreement
Last updated: Jan.01, 2018
This End User License Agreement and Terms of Service (“Agreement”) is a binding agreement between Ablegrid Corp., Ablegrid® on behalf of itself and as agent for Ablegrid Corp. ( “Ablegrid®” the “Company,” “we,” “our,” or “us”), and the account holder or user of record (“End User” or “you” or “Licensee”).
This Agreement includes terms and conditions for use of the Ablegrid® GPS Tracker (the “Device”) and its features and applications (each a “Service,” and together the “Services”), including without limitation warranties, limits of liability, and other important matters; the terms and conditions of your use of the software and technology embedded in the Device (the “Software”); and pertinent provisions on our website or in our product packaging. Please visit our website https://www.ablegrid.com/ or our forum http://forum.ablegrid.com/ for more information.
Please read this Agreement carefully to ensure that you understand each provision. By using the Device, you agree to be bound by the terms and conditions of this Agreement and to our policies.
You agree that this Agreement does not need to be physically signed for it to take effect.
This Agreement requires the use of arbitration, on an individual basis, to resolve all disputes rather than legal actions such as class actions or individual actions before a judge or jury in a court or in other proceeding. You agree to waive your right to bring or file any litigation in a court or in any other proceeding, on behalf of yourself or others. Note that a different dispute resolution process may apply for services provided by another company, but the dispute resolution provisions of this Agreement shall apply to the use of the Device and our Services.
The Device complies with Part 15 of the FCC Rules. Operation is subject to the following conditions: (i) the Device may not cause harmful interference, and (ii) The Device must accept any interference received, including interference that may cause undesired operation.
(a) Subject to the terms of this Agreement, Ablegrid®, for itself and as agent for Ablegrid Corp., grants you a limited, non-exclusive and nontransferable license to use the Software in the normal operation of the Device. Title, ownership rights, and intellectual property rights in and to the Software remain in Ablegrid® and Ablegrid Corp. You acknowledge that the Software is the property of Ablegrid® and Ablegrid Corp. and is protected under the United States of America copyright laws and international copyright treaties. You further acknowledge that the structure, organization, and code of the Software are valuable trade secrets of Ablegrid® and Ablegrid Corp. and that the Software in source code form remains a valuable trade secret of Ablegrid® and Ablegrid Corp.
(b) You acknowledge and agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Ablegrid® and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
You shall not:
(a) copy the Software, except as expressly permitted by this license for your own personal use;
(b) use the Device or Services for any commercial purpose without the prior written consent of Ablegrid®;
(c) Legal use only permitted. You acknowledge and understand that it is impossible for us to provide you with legal advice as to the legal use of the Device or Services because we are neither lawyers nor familiar with the specific laws in your area. Laws vary from place to place and you must consult a local attorney regarding the legal consequences of the intended use of the Device or Services. You must not use the Device or Services in any way that violates or encourages or facilitates the violation of these laws, include but not limited to: (i) violates, exploits, or harms, or attempts to violate, exploit, or harm, the legal rights (including the rights of publicity and privacy) of any person or third party; (ii) promotes any illegal activity, or advocates, promotes or assists any unlawful act; (iii) causes annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any person or third party; (iv) stalks, harasses, intimidates, or harms any person or third party; (v) tracks any person or third party without their explicit consent; or (vi) could give rise to any civil or criminal liability under any applicable local, state, national or international laws, statutes, ordinances, rules, regulations or ethical codes governing your jurisdiction, including confidentiality, data protection, and intellectual property laws;
(d) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
(f) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Device or Software, including any copy thereof;
(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or any features or functionality of the Software, to any third party for any reason, including by making the Software available on a network where it is capable of being accessed by more than one device at any time;
(h) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Software;
(i) use the Software in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and military or aerospace applications, weapons systems or environments; or
(j) export or re-export the Device or Software to any country in violation of the export control laws of the United States.
Ablegrid Corp. may from time to time in its sole discretion develop and provide software and firmware updates, which may include updates, enhancements, changes, modifications, additional functionality, upgrades, bug fixes, patches and error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Ablegrid® and Ablegrid Corp. have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. The Device will automatically download and install all available Updates. All Updates will be deemed part of the Software and be subject to all terms and conditions of this Agreement. You hereby consent to the foregoing and release Ablegrid® and Ablegrid Corp. and their respective affiliates and partners from any and all liability arising from such action.
(a) Certain functions of the Device will only operate if an airtime agreement has been activated with the network service provider that has been contracted separately to provide network service to End Users. Network service may initially be activated by activating the SIM card and paying the SIM card plan. The SIM card plan starts from one month plan to one year plan. After the network service period expires, network service will be deactivated and the Device will not function unless End User reactivates network service by renewing the “SIM card plan.”
The following terms and conditions will apply to the network service:
The purchase of the Device does not create a contractual relationship with the underlying network service provider. You are not a third party beneficiary of any agreement between Ablegrid® and Ablegrid Corp. and any third party for network service. In any event, regardless of the form of the action, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise, your exclusive remedy for claims arising in any way in connection with this Agreement, for any cause whatsoever, including but not limited to any failure or disruption of service provided hereunder, is limited to payment of damages in an amount not to exceed the amount paid by Ablegrid® and Ablegrid Corp. for the network service during the one-month period preceding the date the claim arose.
You agree to indemnify and hold harmless Ablegrid® and Ablegrid Corp., their partners and/or affiliates, and any third party network service provider, and their respective officers, employees, and agents against any and all claims, including without limitation claims for libel, slander, or any property damage, personal injury or death, arising in any way, directly or indirectly, in connection with this Agreement or the use, failure to use, or inability to use the Device except where the claims result from gross negligence or willful misconduct. This indemnity will survive the termination of the Agreement.
You have no property right in any number or other identifier assigned to the Device and understands that any such identifier can be changed from time to time. You understand that Ablegrid® and Ablegrid Corp. cannot guaranty the security of network transmissions, and will not be liable for any lack of security relating to the use of the Services.
The Service is for your personal use only and you may not resell the Service to any other party.
You understand and agree that neither Ablegrid® or Ablegrid Corp., their respective partners and/or affiliates, nor the network service provider guarantees any end user uninterrupted service or coverage. Neither Ablegrid®, its partners and/or affiliates, nor the network service provider warrant that end users can or will be located using the Service. Ablegrid® and Ablegrid Corp., their partners and/or affiliates, and the network service provider make no warranty, express or implied, of merchantability or fitness for a particular purpose, suitability, or performance regarding any services or goods, and in no event shall Ablegrid® or Ablegrid Corp., their partners and/ or affiliates or the network service provider be liable, for any: (i) act or omission of a third party including, but not limited to, intentional or negligent acts of third parties that damage or impair the network or disrupt service; (ii) mistakes, omissions, interruptions, errors, failures to transmit, delays, or defects in the service provided by or through the underlying network service provider; (iii) damage or injury caused by suspension or termination of the Services by the network service provider; or (iv) damage or injury caused by a failure or delay in connecting a call to any entity, including 911 or any other emergency service. To the full extent allowed by law, you release, indemnify, and hold Ablegrid®, Ablegrid Corp., their partners and/ or affiliates and the network service provider each harmless from and against any and all claims of any person or entity for damages of any nature arising in any way from or relating to, directly or indirectly, services provided by the underlying network service provider or any person’s use thereof.
(b) Neither Ablegrid®, Ablegrid Corp., their partners and/or affiliates, nor the underlying network service provider, guarantees network availability. Services may be subject to certain Device and compatibility limitations, including memory, storage, network availability, coverage, accessibility and data conversion limitations. Services (including without limitation, eligibility requirements, plans, pricing, features and/or service areas) are subject to change without notice. Actual network speeds depend upon Device characteristics, network, network availability and coverage levels, tasks, file characteristics, applications and other factors. Performance may be impacted by transmission limitations, terrain, in-building/in-vehicle use and capacity constraints. In addition, Services that rely on location information, such as GPS and Device ID, depend on your Device’s ability to acquire satellite signals (which may not be available indoors) and network coverage. Network coverage and satellite signals are dependent on a number of factors not within our control including weather, topographical changes, the presence of obstructions such as tall buildings, the functionality of various satellites, cell towers, clouds, and other factors. The Device performs inconsistently in dense urban areas. In addition, some areas may be equipped with cell phone inhibitors that interfere with all cellular communications. The Device will not work, and Services will not work, under such circumstances. You understand and agree to such technical limitations and expressly agree to indemnify and hold Ablegrid®, Ablegrid Corp., their partners, and its affiliates harmless from any and all injuries that result from the Device or Services not working, malfunctioning, or failing except as specifically provided herein.
(d) The Device is intended for use as a location device. However, the Services are not a failsafe security system. The use of location tracking is not suitable for emergency situations and should not be relied upon during such times. Ablegrid®, Ablegrid Corp., their respective partners, and/or affiliates are not liable for any reliance place by you on the Device being available for emergency situations. Also, the Device is not designed to be compatible with telecommunications accessibility features or services such as TTY, audio prompts, or similar features for those with certain disabilities.
(e) Refunds and exchanges of the Device or Services are governed by Ablegrid®’s Return Policy, which may be found at: https://www.ablegrid.com/pages/contact-us.
When turned on, the Device is constantly collecting and transmitting geo-location data to Ablegrid®, Ablegrid Corp., their partners and/or affiliates. The location based nature of the Device and the Services are an integral part of the operational aspect of the Device, and we must be permitted to communicate with your Device. This requires the collection, use, and sharing, or among other things, the precise coordinate data, including real time geographic location of your Device with our affiliates, partners, manufacturers, and network service providers.
You expressly agree by turning on and using the Device that you authorize Ablegrid® and Ablegrid Corp. to collect, transmit, store, and use geo-location data to receive the benefits of the Device. You may, at any time, turn off your Device, which will cease all location tracking and transmission. If you turn off your Device, you will not be able to receive the benefit of the Device.
You acknowledge that we are legally obligated to provide information and documentation about your account pursuant to any legal process, such as a court order, a subpoena, other civil discovery, a criminal or administrative warrant. It is our policy to notify you before any data is disclosed, however, as privacy and other relevant laws vary from place to place, and you must consult a local attorney if you have any questions regarding your rights in these matters.
The Device is intended for use within the United States. You acknowledge that you may not be able to access all or some of the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you use the Device and/or Services from outside the United States, you explicitly accept that your information may be transferred to, stored, and processed in the United States where laws regarding processing of personal information may differ than the laws in your country. You are responsible for compliance with the laws of your jurisdiction. You agree not to use the Device or Services from a territory that is embargoed by the United States or from which it is illegal to receive products or services from the United States. You also agree to ensure that the Service is not accessed or used by persons on the United States Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
(a) The term of this Agreement commences when you purchase the Device and will continue in effect until terminated by you or Company as set forth in this section.
(b) You may terminate this Agreement by returning the Device pursuant to Ablegrid®’s Return Policy, https://www.ablegrid.com/pages/contact-us.
(c) Ablegrid® may interrupt or terminate this Agreement or the Services at any time, at its sole discretion, immediately and without notice, if it ceases to support the Device, Services, or Ablegrid® App, if the Device, Services, or Ablegrid® App are discontinued, or for any other reason, including but not limited to: (i) an emergency or security breach; (ii) any conduct that Ablegrid® believes violates or breaches this Agreement; (iii) any conduct that Ablegrid® believes violates any applicable local, state, national or international laws, statutes, ordinances, rules, regulations or ethical codes governing your jurisdiction, including client confidentiality, data protection, and intellectual property laws; (iv) if Ablegrid® believes that the Device is stolen or being used by any person that is not you; (v) if you exceed the data or message amount of your SIM card plan ; (vi) if you behave in an abusive, derogatory, or similarly unreasonable manner with any of our representatives; (vi) if we discover that you are under the age of eighteen; (viii) if we have reasonable cause to believe that your Device is being used for an unlawful purpose or in a way that is harmful to, interferes with, or may adversely affect our provision of the Services, interferes with the use or enjoyment of Services received by others, or infringes intellectual property rights; (ix) results in the publication of threatening or offensive material; (x) constitutes a security risk or a violation of privacy; (xi) if a Device is modified from its manufacturer specifications or altered mechanically in any way that is not intended by this Agreement; or (xii) if Ablegrid® believes that the action protects its interests or the interests of other users of the Services. Any illegal use of the Device or Services will result in an automatic termination of this Agreement.
(d) Upon termination: (i) all rights granted to you under this Agreement will also terminate; and (ii) you must cease all use of the Device, Service at Ablegrid® App and gps.ablegrid.com, and delete all copies of the Ablegrid® App from your mobile device and your account at gps.ablegrid.com.
(e) You agree that Ablegrid® will not be liable to you or to any third-party for any interruption, modification, suspension, or discontinuance of the Services. Termination of this Agreement or the Services shall not limit any of Ablegrid®’s rights or remedies at law or in equity.
The Device and Software are provided to licensee “as is” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, company, on its own behalf and on behalf of its affiliates and its partners, and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Device and Software, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. without limitation to the foregoing, company provides no warranty or undertaking, and makes no representation of any kind that the Device of Services will meet your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, be completely secure, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected, including, without limitation the content and any errors contained that are provided by third parties.
Ablegrid® and Ablegrid Corp., on their own behalf and on behalf of their affiliates and its partners, disclaim all liability for, or warranties from, the content, privacy policies, or practices of third party services or products used in connection with the Device or Services, such as your wireless carrier or app store/platform provider or device manufacturer, and further disclaim all liability for, or warranties in connection with, any loss or damage to you or your property.
To the fullest extent permitted by applicable law, in no event will Ablegrid® or Ablegrid Corp. or their affiliates or their partners, or any of its or their respective licensors or service providers, have any liability arising from or related to your use of or inability to use the Device or the content and Services for:
(a) loss of personal property, including without limitation, vehicles or other transportation tools;
(b) personal injury, property damage, lost profits, cost of substitute goods or services, loss of data, loss of goodwill, lost profits, lost data, lost opportunities, costs of cover, business interruption, computer failure or malfunction or any other consequential, incidental, indirect, exemplary, special or punitive damages; or
(c) direct damages in amounts that in the aggregate exceed the amount actually paid by you for the Device or Services. The foregoing limitations will apply whether such damages arise out of breach of contract, tort (including negligence), strict liability, or other legal or equitable theory and regardless of whether such damages were foreseeable or we were advised of the possibility of such damages. If any part of these warranty disclaimers (Section 8) or limitations of liability (Section 9) is found to be invalid or unenforceable for any reason or if we are otherwise found to be liable to you in any manner, then our aggregate liability for all claims under such circumstances for all liabilities, shall not exceed the greater of the amount paid by you to purchase the Device from an authorized seller.
You agree to indemnify, defend and hold harmless Ablegrid®, Ablegrid Corp., and their respective partners, officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to: (a) your misuse of the Device or Services; (b) your breach of this Agreement; or (c) a violation by you of any applicable law or regulation, or agreement or obligation to a third party.
The Device and Software may be subject to United States export control laws, including the United States Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Device or Software to, or make the Device or Software 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 Device and Software available outside the United States.
The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the United States Government or any contractor therefor, you receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
This Agreement is governed by and construed in accordance with the laws of the State of California without giving effect to any choice or conflict of law provision or rule. You waive any and all objections to the exercise of jurisdiction over you by forums in California. Notwithstanding the arbitration section below, Ablegrid® or Ablegrid Corp. may seek an injunction in a court of competent jurisdiction to the extent necessary to prevent any harm to any party or liability to Ablegrid® or Ablegrid Corp.
Any cause of action or claim you may have arising out of or relating to this Agreement or the Device or Software must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
To the extent allowed by law, and except as set forth in section 14 above, we each waive any right institute a lawsuit in court and to trial before a judge or jury in any lawsuit, arbitration, or other proceeding.
You hereby submit to the exclusive jurisdiction of the American Arbitration Association (“AAA”) in connection with any dispute relating to, concerning, or arising out of this Agreement, the Device, the Services (including any network service) and your usage of the Device. This includes the determination of arbitrability. The arbitration will be conducted before a single arbitrator located in California. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this paragraph. In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Ablegrid® or Ablegrid Corp. will pay as much of your filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. The arbitration before the AAA shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to claims between you and us alone. Claims may not be joined on consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If you initiate a litigation or any other proceeding against Ablegrid® or Ablegrid Corp. in violation of this paragraph, you agree to pay Ablegrid® and Ablegrid Corp. reasonable costs and attorneys’ fees incurred in connection with its enforcement of this paragraph.
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
The provisions of this Agreement may be changed at any time without prior notice. We will make such changes by posting them on www.ablegrid.com or our forum at http://forum.ablegrid.com/. You should check for such changes frequently. Your use of the Device or Services after such changes shall demonstrate your acceptance of those changes.
If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
Questions and requests regarding this Agreement may be directed to the following email address: firstname.lastname@example.org