YOUR PURCHASE AND USE OF THINAIR TELEMATICS SOFTWARE IS EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS OF THIS SEPARATE AGREEMENT, AS MAY BE PERIODICALLY UPDATED, AND YOUR TIMELY PAYMENT OF MONTHLY AND ALL OTHER APPLICABLE SERVICE FEES . Additionally, This Android App makes use of a feature known as “SlidingMenu”. By agreeing to this End User License you are also accepting the SlidingMenu license as follows: Copyright 2012-2014 Jeremy Feinstein Licensed under the Apache License, Version 2.0 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at http://www.apache.org/licenses/LICENSE-2.0 Unless required by applicable law or agreed to in writing, software
distributed under the License is distributed on an "AS IS" BASIS,
WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and
limitations under the License. APP TERMS AND CONDITIONS: 1. DEFINITIONS In addition to the terms defined in the body of this Agreement, the following terms have the following meanings: “Confidential Information” means non-public information that a Party provides and reasonably considers to be of a confidential, proprietary or trade secret nature, including marketing, engineering and other plans, financial statements and projections, customer and supplier information, research, designs, plans, compilations, methods, techniques, processes, procedures, and know-how, whether in tangible or intangible form, and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically, or in writing. Confidential Information shall not include Non-Confidential Information. “Customer” or “You” or “Your” means the individual account holder who: 1) has full legal authority to enter into this Agreement, and has entered into this Agreement, either on behalf of himself/herself or on behalf of another individual pursuant to either a durable power of attorney, other legal authorization or as the legal guardian of such individual; and 2) purchases or otherwise uses the services in accordance with the terms and conditions set forth in this Agreement. “Device” means a mobile Device purchased from or distributed by THINAIR TELEMATICS intended to be used by Customer to track and/or monitor Monitored Users.
“Internet” means the global computer network comprised of interconnected networks using standard protocols including HTTP, UDP and TCP/IP. “Location Data” means location history and transaction activity generated by use of App. “Non-Confidential Information” means information which: (i) is, as of the time of its disclosure or thereafter becomes part of the public domain through no fault of the receiving party; (ii) can be ________________________________________________________________________________________________ demonstrated by credible evidence: (a) as rightfully known to the receiving party prior to the time of its disclosure, or (b) to have been independently developed by the receiving party; (iii) is subsequently learned from a third party not under a confidentiality obligation to the disclosing party; or, (iv) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving party has provided prompt written notice and assistance to the disclosing party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy to protect against disclosure.
“THINAIR TELEMATICS Trademarks” means any name, logo and trademark of THINAIR TELEMATICS used by THINAIR TELEMATICS to identify itself or any THINAIR TELEMATICS products or services that THINAIR TELEMATICS licenses to You under this Agreement.
“Personal Information” means any information that can be used to identify an individual and is not otherwise publicly available. Such information may include, for example, an individual’s first and last name combined with his or her email address, mobile telephone number or credit card account information.
“Server” means the server or servers as designated by THINAIR TELEMATICS from time to time through which THINAIR TELEMATICS provides the Services in accordance with this Agreement. “Services” shall mean all services associated application on THINAIR TELEMATICS or THINAIR TELEMATICS designated service provider Servers pursuant to the terms and conditions of this Agreement and any additional services or add-on options You choose. As used in this Agreement, THINAIR TELEMATICS includes THINAIR TELEMATICS and all of its designated service providers.
“Sub-Account Holder(s)” means the individual(s) properly and validly authorized by a Customer to use the Services ordered by the Customer to track or monitor a user in accordance with the terms and conditions set forth in this Agreement.
“Territory” means the United States of America, or such other designated area approved by THINAIR TELEMATICS applicable to your Services. 2. ORDERS 2.1 The terms and conditions of this Agreement will control all orders Services. Subject to the terms and conditions of this Agreement THINAIR TELEMATICS agrees to provide access to the App in accordance with the first order you submit.
3. ACCESS TO App RESTRICTIONS ON USE & LICENSES 3.1 Access to the App. During the term of this Agreement and subject to the terms and conditions herein, THINAIR TELEMATICS hereby grants You a limited, non-exclusive, non-transferable, royalty-bearing license solely to access the App. 3.2 Use by Sub-Account Holders. A Customer may authorize other individuals (“Sub-Account Holders”) to use the Devices and Services ordered by the Customer under this Agreement. In such cases, Customer shall ensure that such Sub-Account Holders use the Devices and Services in a manner that complies with all applicable laws and this Agreement. Customer is solely responsible for such Sub-Account Holders’ usage of the Devices and Services. Customer agrees to require each Sub- Account Holder using Customer’s account to comply with the obligations set forth in this Agreement, including, without limitation, the restrictions contained in Section 3.3. ________________________________________________________________________________________________ 3.3 Restrictions on Use; No Modification. You, your Sub-Account Holders and Monitored Users shall not engage in any of the following acts (individually, a “Prohibited Act”, and collectively, “Prohibited Acts”): (i) willfully tamper with the security of any THINAIR’ Devices or Services; (ii) access data not associated with your account via THINAIR’ Devices or Services; (iii) log into an unauthorized server or another non-Customer THINAIR account without authorization; (iv) attempt to probe, scan or test the vulnerability of any THINAIR’ Services or to breach THINAIR or THINAIR security or authentication measures without proper authorization; (v) willfully render any part of THINAIR’ Services unusable; (vi) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of any THINAIR’ Services; (vii) modify, translate, or create derivative works based on any THINAIR’ Services; (viii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit any THINAIR’ Services or make any THINAIR’ Services available to a third-party other than as contemplated in this Agreement; (ix) use any THINAIR’ Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (x) publish or disclose to third parties any evaluation of THINAIR’ Services without THINAIR’ prior written consent; (xi) remove, modify, obscure any copyright, trademark, patent or other proprietary notice that appears on any THINAIR’ website(s) or in association with its Services; (xii) create any link to THINAIR’ website(s) or frame or mirror any content contained or accessible from THINAIR’ website(s); or (xiii) use any data or information obtained through the use of the THINAIR’ Devices for any unlawful purpose or in violation of any applicable law (including, without limitation, data protection and privacy laws). Except as expressly provided in this Agreement, no right or license is granted hereunder, by implication, estoppel or otherwise. 3.4 Firmware License. Each Device provided by THINAIR may contain firmware developed and owned, or otherwise authorized to be used by THINAIR. For firmware developed and owned, or otherwise authorized to be used by THINAIR, THINAIR hereby grants You a limited, non-exclusive, non-transferable, royalty-free license, for the Term, to use the firmware on each Device. THINAIR shall retain all rights to the firmware contained on each Device. The license granted herein shall be deemed to be in effect upon delivery of each Device. 3.5 Ownership. You acknowledge that, as between You, your Sub-Account Holders, and THINAIR, all right, title and interest in any software, Devices, or firmware provided under this Agreement, and all modifications and enhancements thereof, including all rights under copyright and patent and other intellectual property rights, belong to THINAIR or the entity which authorized THINAIR such use. This Agreement does not provide You with title or ownership of any Services, any software, Devices, or firmware provided under this Agreement, but only the rights specified in this Agreement. 4. SERVICES 4.1 Availability of Services. Subject to the terms and conditions of this Agreement, THINAIR shall use commercially reasonable efforts to make the Services available for twenty-four (24) hours a day, seven (7) days a week. You agree that from time to time the Services may be inaccessible or inoperable for reasons beyond the control of THINAIR including, but not limited to: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which THINAIR may undertake; or, (iii) interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You shall not be entitled to any setoff, discount, refund or other credit as a result of unavailability of the Services. You agree that THINAIR has no control of availability of Services on a continuous or uninterrupted basis. THINAIR does not guarantee any ________________________________________________________________________________________________ specific response rate (bandwidth). Any unavailability of the Services will be relayed to you as soon as possible. 4.2 Security. THINAIR shall use commercially reasonable efforts to prevent unauthorized access to restricted areas of APP and any databases or other sensitive material; and, THINAIR shall notify You of any known security breaches to its systems that are reasonably likely to adversely affect You or your account, in accordance with applicable law. 4.3 THINAIR APP Support. Customer technical support for problems with the APP, as well as Billing and any other general questions, will be provided by ThinAir or ThinAir’ authorized resellers during reasonable and designated business hours Monday-Friday (excluding U.S. federal holidays). Support hours and contact numbers are listed in your product user manual. 5. CUSTOMER DATA 5.1 THINAIR’s Use of Customer Data. THINAIR collects Personal Information and non-personal information about its Customers and Sub-Account Holders (collectively, “Customer Data”) in order to: (i) provide the Services; (ii) provide customer and technical support; and, (iii) for other business- related purposes, such as billing, marketing, and new service offerings, introductions and sales. THINAIR may remove from your data any personal or location-based information and combine such anonymous data with that of others in order to create “Aggregate Information.” THINAIR may use and sell Aggregate Data, including analyzing how Customers use the Services and determining ways in which THINAIR can improve the Services. If You have provided your contact information, THINAIR may contact You for marketing purposes by various means, including but not limited to regular mail, email or telephone. When You activate a THINAIR account, You expressly consent to receive marketing communications via direct mail, email (at the email address you provided when activating your account), telephone (at the number you provided when activating your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods. You may opt out of receiving one or more of these types of marketing communications at any time by contacting customer service. 5.2 Retention of Customer Data. Customer Data will be retained as long as there exists a legitimate business need to do so. For example, THINAIR may retain Customer Data for the duration of a dispute with our company. Location Data will be retained for each Customer for a period that THINAIR will decide in its sole discretion, and shall be made available to law enforcement and other government agencies pursuant to legally valid requests for such information. 6. CUSTOMER RESPONSIBILITIES 6.1 Use of Services. You acknowledge and agree that You will not use the Services to: (i) Track and/or Monitor any individual in violation of applicable laws; (ii) send spam or otherwise unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iii) send messages to any email lists, distribution lists, newsgroups, or spam email addresses; or, (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, ________________________________________________________________________________________________ agents or programs. You agree to report immediately to THINAIR, and to use Your best efforts to stop immediately, any violation of the terms and conditions set forth in this Section or any of THINAIR’s other published policies, including but not limited to any privacy policies (collectively, “Policies”) that may be issued from time to time, all of which are incorporated herein by reference. In the event of any suspected violation of the terms, conditions and restrictions set forth in this Section or any THINAIR Policies, THINAIR may immediately disable your access to App and suspend its provision of such Services. 6.2 Access To Hosted Services. THINAIR will provide You with a user name, password and other information necessary to access hosted service for App. You are responsible for keeping the respective user names and passwords confidential and for any communications or transactions made using user name and password. You are responsible for changing the respective user names and password if it is believed that the same has been stolen or might otherwise be misused. 6.3 Consents. You be responsible for obtaining the necessary legal consent(s) from those Monitored Users who are being tracked and/or Monitored by Your use and Your Sub-Account Holders’ uses of the Device(s) and shall authorize the tracking and/or monitoring of such Device(s) by THINAIR and its subcontractors. If a Monitored User is a minor, You acknowledge that You and/or Your Sub- Account Holder have lawful guardianship over such minor and You further acknowledge that You and/or Your Sub-Account Holder have the legal right to lawfully monitor a user in the location or locations where the Device(s) is used. The service is not intended to track minor nor to collect information about minor to avoid being in violation of COPPA regulation. You agree to indemnify and hold THINAIR its agents, licensees, licensors, and subcontractors harmless from any and all costs and expenses regarding any claim(s) arising from the unauthorized tracking and/or monitoring of the Device(s) by you or your Sub-Account Holders. DISCLAIMER ThinAir may change the products and other materials mentioned at any time without notice. Mention of non-ThinAir products or services is for information purposes only and constitutes neither an endorsement nor a recommendation. ALL INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED ON THIS WEB SITE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. THINAIR DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. THINAIR SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OR INABILITY TO USE THIS WEB SITE OR ANY THINAIR PRODUCT, OR DAMAGES RESULTING FROM USE OR RELIANCE ON THE INFORMATION PRESENT, EVEN IF THINAIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.