TRACK MY GUYS, LLC
TERMS AND CONDITIONS
1. Definitions. “Track My Guys” “us” or “we” refers to “Track My Guys, LLC” “You” or “your” refers to any individual or entity ordering or using the Services. “Your Data” refers to any data that you input or import into the Services or is derived from the Services, including, but not limited to, information regarding employees, time cards, hours worked, users, departments, or other data.
3. Rights Granted. The Services are protected by copyright, trade secret, and other intellectual property laws. You are only granted the right to use the Services and only for the purposes described by Track My Guys. Track My Guys reserves all other rights in the Services. You acknowledge and agree that the Services are provided under license, and not sold, to you. You do not acquire any ownership interest in the Services under this Agreement, or any other rights thereto other than to use the Services in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Track My Guys reserves and shall retain its entire right, title, and interest in and to the Services, including, but not limited to, all copyrights, trademarks, trade secrets and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. You have the revocable nonexclusive, non-assignable limited right to use the Services for your or your employer’s internal business operations subject to the terms of this Agreement. You are responsible for your compliance with this Agreement. Your rights to use the Services are subject to this Agreement. You agree that you do not acquire under the Agreement any license to use the Services that exceeds the scope and/or duration of the services provided to you or to your employer by Track My Guys. Upon the cancellation or termination of such services your right to access or use the Services provided therein shall terminate.
4. Ownership and Restrictions. Track My Guys retains all ownership and intellectual property rights to the Services. You may not remove or modify any program markings or any notice of Track My Guys’ proprietary rights from the Services. You may also not make the Services or any materials associated with the Services available in any manner to any third party for use in the third party’s business operations. You may also not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to the Services. You may also not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services or associated materials available to any third party other than as expressly permitted under the terms of the Agreement. No part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means. You also agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
5. Responsibility for Content and Proper Use. You are solely responsible for your conduct and for any data, text or other content or materials (collectively, “Content”) that you submit while using the Services. You understand and agree that Track My Guys cannot be responsible for the Content posted in connection with the Services and you may nonetheless be exposed to such Content. You, and not Track My Guys, are responsible and liable for any and all Content that is sent by you through the Services. Track My Guys may, but has no obligation to, review or monitor any Content. You may not use the Services for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local) applicable to your use of the Services including but not limited to, copyright laws. You are responsible for keeping your password secret and secure. You agree not to use, nor permit any third party to use, the Services to upload, post, distribute, link to, engage in, promote or transmit any of the following:
(a) illegal, defamatory, obscene, threatening, abusive, harassing, pornographic, profane, inappropriate or objectionable information or communications of any kind;
(b) content that would impersonate someone else or that may constitute a breach of any individual’s privacy; is illegally unfair or deceptive, or creates a safety or health risk to an individual or the public;
(c) virus, worm or other disruptive or harmful software or data; and
(d) any Content that you do not own or have the right to use without permission from the intellectual property rights owners thereof. You shall not, and shall not permit any users of the Services or any other party to, engage in, solicit or promote any activity that is objectionable or may be illegal, violates the rights of others, is likely to cause harm or damage to the reputation of Track My Guys.
6. Eligibility and Account Registration. If you want to use certain Services, you will have to create an account with Track My Guys (“Account”). You can create an account by completing the required registration information on the Website. You represent that all information you provide to Track My Guys upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy. You may give access to the company’s account to more than one individual by invitation, but each user is required to create his or her own Track My Guys login. Each login may only be used by one person. You are responsible for keeping your password secret and secure. You agree that you won’t disclose your Account password to anyone and you will notify us immediately of any unauthorized use of your Account. Track My Guys takes its account security obligations seriously, however, you are responsible for all activities that occur under your Account, whether or not you know about them.
7. Fees and Payment Terms. For Services that require payment, the following terms apply: When you order (“Order”) the Services you agree to pay for all services as set forth in the Order. Services ordered are billed in advance on a monthly or annual basis, depending on the pricing option selected, and is NONREFUNDABLE. There will be no refunds or credits for partial months of service, upgrade or downgrade refunds, or refunds for months unused on an open Account. If you cancel the services through your Account on the Track My Guys website or seek to modify the service plan in the middle of the billing period, no refund will be provided for any payment relating to the current billing period. No refund will be provided for any future billing periods unless agreed to in writing by you and Track My Guys at the time you enter into the service plan. Payment is due in advance, no later than the first day of each billing period. You must provide current, complete and accurate payment information in the form of a valid credit or debit card. You must promptly update all payment information to keep your account current (such as change in billing address, card number or expiration date). Unless otherwise specifically agreed to in writing by you and Track My Guys, the billing cycle for any service plan commences on the date when the plan takes effect, or, if the plan includes a free trial period, on the first day following the trial. You shall ensure that sufficient funds are available on the relevant account and acknowledge that late payment may result in the suspension of services or termination of your Account. Track My Guys may change the fees, rates and the billing cycle applicable to your service plan upon a month’s notice. If you do not agree with the respective change(s), your sole and exclusive remedy shall be to unsubscribe from that service plan. If you remain subscribed to the service plan after any such change(s) you will be deemed to consent to the respective change(s). All Accounts will be automatically renewed, and your credit card account will be charged for additional periods equal to the original price unless otherwise notified in advance by Track My Guys. We reserve the right to change the amount of, or basis for determining, any fees or charges for services we provide, and to institute new fees, charges, or terms effective upon prior notice to customers via the Track My Guys website. Track My Guys fees and rates are exclusive of all taxes, including but not limited to, value added tax and sales tax except where Track My Guys has explicitly stated. You will be responsible for all taxes, duties and burdens that may be levied on its purchase, import, or use of the services. All payments for the services are handled by a third-party payment gateway. Track My Guys is not responsible for the processing of your payments and shall not be liable for any matter in connection therewith.
8. Cancellation and Termination. Track My Guys has the right to suspend or terminate any Account and refuse any and all current or future use of the Services, or any other service, for any reason at any time, including if you fail to comply with these Terms. Such termination of the service will result in the deactivation or deletion of your Account and Content or your access to your Account and Content, and the forfeiture and relinquishment of all information and Content in your account. Services shall be provided for the period defined in the Order, as renewed by your making ongoing payments specified in the Order, unless earlier terminated in accordance with this Agreement or by your failure to pay such payments. The term of the Services and any renewals are collectively defined as the “Services Term.” At the end of the Services Term, all rights to access or use the Services, including the Application, shall end. You are responsible for canceling your Account. You can cancel your Account at any time by canceling the Services under the Customer Account settings. Track My Guys’ development or support team will never cancel an Account on behalf of a user. A support request, forum post, email, telephone call, fax or written request to cancel your Account is not considered cancellation. Upon expiration of the monthly term or initial one year service term, or any renewal term, your Account will automatically renew for successive monthly or one-year terms as applicable unless you notify Track My Guys no less than thirty (30) days prior to the expiration of the initial term or the then-current renewal term that you do not wish to renew. No refunds will be issued for any previous charges, in whole or in part. Any prepayment to Track My Guys will not be refunded
9. Retrieval of Your Data. You agree and acknowledge that Track My Guys has no obligation to retain Your Data and that Your Data may be irretrievably deleted following termination of the your Account.
10. Updates. Track My Guys may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other 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 Track My Guys has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: • the Application will automatically download and install all available Updates; or • you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Application 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 Application and be subject to all terms and conditions of this Agreement.
11. Your Data. In conjunction with your use of the Services, Your Data may be input, imported or derived from the Services to, among other things, track salaries, time, vacations, overtime, attendance, performance or other goals, provide feedback, integrate with other systems maintained by you, establish forecasts, manage employees or workforce, or for other purposes. You are solely responsible for the content of Your Data in whatever forms it is imported, exported or derived from the Services. You represent and warrant that you have rights to Your Data and have permission to use Your Data in conjunction with the Services. You should not include any “personal information” regarding any individuals in Your Data. “Personal information” includes, but is not limited to, the following information: an individual's first name or first initial and his or her last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted or redacted:
(A) Social security number;
(B) Driver's license number;
12. Security. Track My Guys is committed to maintaining the security of the Services that it provides and has in place commercially reasonable physical, administrative and technical measures designed to prevent unauthorized access to those services. However, we cannot and do not guarantee the complete security of information you provide to us through your use of the Services, including Your Data. You are solely responsible for proper back-up of Your Data and you shall take appropriate measures to protect such data. You are also responsible for any data that is input, derived from, imported to, or exported from the Services, including to or from any third party applications. Track My Guys assumes no liability or responsibility whatsoever if Your Data is lost or corrupted. You are responsible for maintaining the confidentiality and security of your password and account and for all activities that occur under your account. Track My Guys will not be liable for any loss or damage from failure to comply with this security obligation.
13. Export Regulation The Services may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, reexport, or release the Services to, or make the Services 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 Services available outside the US.
15. Indemnification You agree to indemnify, defend, and hold harmless Track My Guys and its officers, directors, managers, members, 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 and costs, arising from or relating to your use or misuse of the Services or your breach of this Agreement, including but not limited to the content you submit or make available through the Services. You shall use your best efforts to cooperate with Track My Guys in the defense of any claim. Track My Guys reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
16. Survival Provisions that survive termination or expiration of the Agreement include but are not limited to, limitation of liability, payment, indemnification, disclaimer of warranties, limitation of claims, dispute resolution and others which by their nature are intended to survive.
18. Waiver. 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.
19. Limitation of Liability. TRACK MY GUYS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS, DATA, OR DATA USE OR DAMAGES RELATED TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELCTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, OR LOSS OR THEFT OF DATA, VIRUSES, SPYWARE. TRACK MY GUYS’ MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST TRACK MY GUYS SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
20. Limitation of Time to File Claims ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
21. Choice of Law and Dispute Resolution. This Agreement is governed by the substantive and procedural laws of Connecticut without regard to its conflict of laws principles. You and Track My Guys agree to submit to the exclusive jurisdiction of the federal and state courts in Connecticut in any dispute arising out of or relating to the agreement. YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
22. Other. • Track My Guys is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. You shall obtain at your sole expense any rights and consents from third parties necessary for Track My Guys to perform the services under the agreement and for Your Data.
• If you have a dispute with Track My Guys or wish to provide other notice, please provide notice to Track My Guys, 125 Commerce Drive, Unit 2C, Brookfield, CT 06804.
• You may not assign the Agreement or give or transfer the services described therein or an interest in them to another individual or entity.
23. Force Majeure Track My Guys shall not be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage; government restrictions; or other event outside the reasonable control of Track My Guys.
24. Restrictions on Use of the Services. You agree not to use or permit use of the Services in a manner that violates applicable laws, ordinances or regulations. In addition to any other rights afforded to Track My Guys under the Agreement, Track My Guys reserves the right to remove or disable access to any material that violates the foregoing restrictions. Track My Guys shall have no liability to you in the event that Track My Guys takes such action. You agree to defend and indemnify Track My Guys against any claim arising out of a violation of your obligations under this Section.
25. Statistical Information. Track My Guys may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not identify Your Data and/or identify your confidential information or include your company’s name. Track My Guys retains all intellectual property rights in such information.
26. Third Party Web Sites. Track My Guys may enable you to add links to websites and access to content, references to products and services of third parties, including vendors, users, customers, and other third parties. Track My Guys is not responsible for any third party websites or the content related to third parties provided on or through the services and you bear all risks associated with the access to the websites and input of data into Track My Guys. 27. Severability 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. 28. Customer Reference. You agree that Track My Guys may identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases. 29. Titles and Headings. Titles and headings of sections of this Agreement are for convenience of reference only and shall not affect the construction of the provisions of this Agreement. 30. Apple Requirements. If you downloaded the Application or any part of the services from the iTunes or Mac App Store, the following terms also apply to you: i. Acknowledgement: You acknowledge that this Agreement is between you and Track My guys only, and not with Apple, and Track My Guys, not Apple, is solely responsible for the Application and the content thereof. ii. Scope of License: The license granted to you for the Application is a limited, nontransferable license to use the Application on Mac products that you own or control as permitted by the Usage Rules set forth in the terms of service applicable to the Mac App Store. iii. Maintenance and Support: Track My Guys and not Apple is solely responsible for providing any maintenance and support services, if any are provided and for which additional fees may apply, with respect to the Application and services by Track My Guys. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. iv. Warranty: Track My Guys is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Track My Guys’ sole responsibility. v. Product Claims: Track My Guys, not Apple, is responsible for addressing any user or third party claims relating to the Application or the user’s possession and/or use of the Application, including, but not limited to:
(i) product liability claims;
(ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and
(iii) claims arising under consumer protection or similar legislation.
vi. Intellectual Property Rights. You acknowledge that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Track My Guys, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
vii. Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
viii. Developer Contact Info: Direct any questions, complaints or claims to: Track My Guys, LLC, 125 Commerce Drive, Unit 2C, Brookfield, CT, 06804.
ix. Third Party Terms of Agreement: You must comply with any applicable third party terms of agreement when using the Application.
x. Third Party Beneficiary: You acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary thereof.