uLocate Communications, Inc.
SUBSCRIPTION AGREEMENT
Last Updated on March 01, 2005
THIS SUBSCRIPTION AGREEMENT GOVERNS ALL USE OF THE ULOCATE SERVICE. PLEASE READ THIS CAREFULLY.
You agree to this Subscription Agreement and the uLocate Terms of Use set forth on the uLocate Website in consideration of, and as a condition to, being allowed to use the uLocate Service (defined below), and your use of the uLocate Service is subject to this Subscription Agreement and the uLocate Terms of Use and constitutes your acceptance of such terms.
The following definitions apply to this Subscription Agreement in addition to those terms defined elsewhere in this Subscription Agreement: Provider means uLocate Communications, Inc., and any successor thereto. uLocate Service means, collectively and severally, the uLocate Website, the Wireless Service and all other services provided on, available through or offered for use on or in connection with either of the foregoing, including all Information and Software. uLocate Website means the website currently located at www.uLocate.com (including any successor thereto) and any other websites owned or operated by Provider, and all of their respective constituent web pages. Wireless Service means the service provided by Provider which permits Users to access Information and to use other functionalities of the uLocate Website through a wireless device such as a telephone. Such service may include the MapQuest Find Me application. Information means all information provided by, available through, or offered for use on or in connection with the uLocate Service, including without limitation all information provided on, available through, or offered for use on or in connection with the uLocate Website and the Wireless Service. Software means Provider's client software, in whatever form, which enables a User to access the uLocate Service or to enable a device to be tracked through the uLocate Service. Suppliers means any third parties that supply goods or services to Provider in connection with the uLocate Service, including independent contractors and freelancers. User means any person(s) using the uLocate Service, whether or not such person has subscribed to the uLocate Service. References to "you" and "your" mean the holder of a Master Account (as defined below) and any other User, as the context so requires. Account means the Master Account and any sub-account for any Account Participant, collectively. Account Participant means a person authorized by the Master Account holder to have a specified scope of access to the Information or any user of a telephone or other device to be tracked by the uLocate Service for whom the Master Account holder receives Information through the uLocate Service.
In order to use the uLocate Service you will be required to register and to create a master account ("Master Account") and may be required to download the Software onto your wireless telephone or other device. As the Master Account holder you will have the right to designate Account Participant(s) and such Account Participants must download the Software onto their telephone(s) or other device(s). You must be at least 18 years old to establish and maintain a Master Account. As part of the registration process, you will select a user name (your "User Name") and password. You agree to provide Provider with accurate, complete and updated registration information. Failure to do so will constitute a breach of this Subscription Agreement and may result in termination of your rights to use the uLocate Service. You are responsible for maintaining the confidentiality of your User Name and password and will be responsible for all uses of your User Name and password, whether or not authorized by you. You are responsible for ensuring that any other person who uses the Account is aware of and complies with this Subscription Agreement. In addition, you are entirely liable for all activities conducted through your Account, including all activities of any Account Participant. Each person who uses the Account agrees to be bound by the terms of this Agreement, whether or not such person has subscribed to the uLocate Service. You will notify Provider at legal@uLocate.com of any known or suspected unauthorized use(s) of your Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your User Name and/or password. Provider will have no liability for any circumstances arising from the unauthorized use of a User Name, password or your Account. Provider may report any activity on your Account suspected to be fraudulent, abusive, or otherwise illegal to appropriate law-enforcement agencies. You are solely responsible for providing all computer hardware, telephone and other equipment necessary to access the uLocate Service, including without limitation telephone hardware and connection service, and Internet access software and modems.
If you have reason to believe that your Account is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of your User Name, password, or any credit, debit, or charge card number stored on the uLocate Service), you must promptly change your password and notify Provider of the problem by email to legal@uLocate.com.
Without limiting the foregoing, you may not provide, grant access or otherwise make available to any third party the uLocate Service, except to those Account Participants designated as part of the Master Account. You may not use the uLocate Service for any purpose that is unlawful or prohibited by this Subscription Agreement. You acknowledge and agree that the uLocate Service is not a navigational aid, and you agree and warrant that the uLocate Service will not be relied upon in connection with navigation. You are solely responsible for your conduct with respect to any Information and the Software, including without limitation your conduct in creating, storing, transmitting, disseminating, accessing, receiving, or using any Information. The uLocate Service is not intended to replace or eliminate the need for any safety equipment. You agree to have and maintain all safety equipment or other precautions that may be required or advisable with respect to any person or asset being tracked using the uLocate Service.
Different types of Users have different access levels to the uLocate Service. For example, the Master Account holder has rights to review and edit information regarding all Account Participants and has access to all Information regarding the Account and the Account Participants. As the Master Account holder you will have the ability to authorize various Account Participants to have specified levels of access to the Information provided by the uLocate Service. Account Participants will have access limited in scope and nature as designated by the Master Account holder from time to time.
Provider reserves the right to change, modify, suspend, or discontinue any aspect of the uLocate Service at any time, without notice or liability, including, without limitation, access policies, the availability of any feature, hours of availability, content, data, or software or equipment needed to access the uLocate Service. Provider may also impose limits on certain features or restrict your access to parts or all of the uLocate Service without notice or liability.
Provider reserves the right to change prospectively the amount of, or basis for determining, any fees or charges for the uLocate Service, and to institute new fees or charges for access to portions of the uLocate Service. Any modifications or other changes to the uLocate Service which relate to charges or fees will be effective upon notice given to Master Account holders by any means permitted by Section 20, at Provider's sole discretion. You hereby agree to pay all charges to your Account, including applicable taxes, in accordance with billing terms in effect at the time the fee or charge becomes payable.
Provider may, from time to time, have special events, software or content available on the uLocate Service, which will be subject to additional terms and conditions that will be made available for your review. You agree that if you or any User uses or accesses such special events, software or other content, such additional terms and conditions will be binding.
Your right to use the uLocate Service is subject to any limits which may be established by Provider or by your credit card issuer from time to time. If payment cannot be charged to your credit card or your charge is returned to Provider for any reason, Provider reserves the right to either suspend or terminate your access and Account, thereby terminating this Subscription Agreement and all of Provider's obligations hereunder. If you have a balance due on your Account, you agree that Provider can charge these unpaid fees to your credit card. Your account may be suspended for non-payment, and you may be responsible for any and all bank or service charges incurred in connection with payment of charges to your Account, and for any costs of collection, including reasonable attorneys' fees. uLocate may terminate this Subscription Agreement and your subscription at any time by providing written notice of termination to User. uLocate may assign this Subscription Agreement to any party.
If any future changes to the uLocate Service, including fees, limitations on use or otherwise, are unacceptable to you or cause you to no longer be in compliance with this Subscription Agreement, you must cease to use your Account and, in the case of the Master Account holder, terminate your Account. Your continued use of the uLocate Service following posting or delivery of notice constitutes your binding acceptance of any and all such modifications.
Provider reserves the right to modify, amend, change, delete or make additions to this Subscription Agreement from time to time effective upon notice given to Users by any means permitted by Section 20, at Provider's sole discretion. If any future changes to this Subscription Agreement are unacceptable to you or cause you to no longer be in compliance with this Subscription Agreement, you must cease to use your Account and, in the case of the Master Account holder, terminate your Account. Your continued use of the uLocate Service following posting or delivery of notice constitutes your binding acceptance of any and all such modifications.
As the Master Account holder, you agree to pay all charges relating to your Account, including applicable taxes, in accordance with billing terms set forth below. You must provide us with valid credit card information (Visa, MasterCard or American Express) throughout the time that the Account is open. Provider will charge the Master Account holder's credit card for the first calendar month's fee (or portion thereof) either after any applicable trial period expires, or on the date the Master Account holder subscribes to the uLocate Service if no trial period is offered. Thereafter, Provider will automatically renew and charge the Master Account each calendar month on the last day of the month for the following month's service.
A Master Account holder may notify Provider that you wish to cancel your Account at any time. Provider will terminate the Account effective at the end of the calendar month in which Provider receives email notification from the Master Account holder to Provider at accounting@uLocate.com. No refunds, credits or other adjustments are provided in connection with termination of any Account.
You represent, warrant and covenant that (a) your use of uLocate Service will comply with all applicable federal, state and local laws and, and that neither you nor any other person who uses your Account will use your Account to perform, suggest or encourage any fraudulent, illegal or inappropriate activity; (b) that you have sufficient rights to and/or authorization to include any telephone or other device you designate as an Account Participant or that you equip with the Software or for which you receive Information through use of the uLocate Service; (c) that you are at least 18 years old, have the authority to enter into this Subscription Agreement and to incur charges on the credit card designated in the registration process; and (d) that you and all other Users of your Account will fully comply with this Subscription Agreement.
ALL USE OF THE ULOCATE SERVICE IS AT YOUR OWN RISK. THE ULOCATE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, PROVIDER DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THE ABSENCE OF INACCURACIES IN THE INFORMATION.
Without limiting the foregoing, Provider does not warrant that the uLocate Service or its operation will be accurate, reliable, uninterrupted, error-free or free of viruses or other harmful agents, nor does Provider warrant that any Information or the Software will be accurate, reliable, complete, or timely or that the access rules will operate as intended. You acknowledge that Information and Software may be transmitted via satellite and over local exchange, inter-exchange and Internet backbone carrier lines and through routers, switches and other devices owned, maintained and serviced by local and long distance carriers, utilities, satellite companies, communications companies, Internet service providers and other third parties, all of which are beyond Provider's control. You accept all risk arising out or relating to the delay, failure, interruption, corruption, or interception of any Information or the Software. You understand and agree that any Information, Software or other material downloaded to your computer, telephone or other device from the uLocate Service or which you otherwise obtain through the uLocate Service will be at your own risk and that you will be solely responsible for any damage to your property, injury, loss of data or otherwise that may result.
No agent or representative has the authority to create any warranty regarding the uLocate Service, or any element thereof, on behalf of Provider.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION AS A RESULT OF NEGLIGENCE) (INCLUDING, WITHOUT LIMITATION, LOST OR IMPUTED PROFITS, BUSINESS INTERRUPTION, LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR PERSONAL INJURY OR DEATH) THAT RESULT FROM THE USE OF OR INABILITY TO USE, THE ULOCATE SERVICE. THE FOREGOING LIMITATION WILL APPLY EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE.
WITHOUT LIMITING THE FOREGOING, PROVIDER SHALL NOT BE LIABLE FOR, AND YOU PROSPECTIVELY WAIVE AND RELEASE PROVIDER FROM, ANY CLAIMS ARISING OUT OF OR RELATING TO YOUR USE OF THE ULOCATE SERVICE, INCLUDING WITHOUT LIMITATION YOUR ACCESS TO OR USE OF THE INFORMATION, THE SOFTWARE OR ANY OTHER SERVICES AVAILABLE THROUGH OR USED IN CONJUNCTION WITH THE ULOCATE SERVICE; ANY CLAIMS ARISING OUT OF OR RELATING TO THE CREATION, CONTENT, STORAGE, TRANSMITTAL, DISSEMINATION, ACCESSING, RECEIPT, USE, DELAY, FAILURE, INTERRUPTION, CORRUPTION, OR INTERCEPTION OF ANY INFORMATION; AND ANY CLAIMS ARISING OUT OF OR RELATING TO ANY DELAY, FAILURE, INTERRUPTION OR LOSS OF SERVICE.
IF, DESPITE THE FOREGOING, PROVIDER IS FOUND TO BE LIABLE TO YOU, THEN THE ENTIRE AGGREGATE LIABILITY OF PROVIDER FOR ALL CLAIMS AND CAUSES OF ACTION OF ANY TYPE WHATSOEVER RELATING TO THE ULOCATE SERVICE, WHETHER BASED ON CONTRACT, NEGLIGENCE, RECKLESSNESS, STRICT LIABILITY OR OTHERWISE, FOR ANY PERSONAL INJURY OR ILLNESS OR DEATH, DAMAGE TO OR LOSS OF ANY REAL OR PERSONAL PROPERTY, LOSS OF DATA, LOST PROFITS, BUSINESS INTERRUPTION, DESTRUCTION OF BUSINESS OR OTHER BUSINESS INJURY, AND ANY OTHER INJURIES OR DAMAGES OF ANY KIND SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE SERVICE FEES ACTUALLY PAID BY YOU HERE IN THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
For purposes of any disclaimers of warranty, any exclusions or limitations of liability or damages, any indemnity provisions, any and all references to "Provider" shall mean Provider, its Suppliers, and their respective affiliated entities, officers, directors, agents, shareholders, owners, employees, trustees, administrators, receivers, sureties, insurers, attorneys, successors and predecessors in interest, communications providers, partners, licensors, attorneys, assigns and receivers of each of the foregoing, past, present and future.
The uLocate Service may include links to sites operated by third parties ("Linked Sites") not under the control of Provider. Without limiting any other disclaimers contained in this Subscription Agreement, Provider is not responsible for the contents of any Linked Sites or any link contained in any Linked Sites, or the manner of use of any information that you may provide to any Linked Site. Provider is not responsible for, and you hereby waive any claim against Provider in connection with any Linked Sites Sites. Provider is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Provider of any Linked Sites or of any information, product or services.
You agree to indemnify, defend and hold Provider, its Suppliers, and their respective affiliated entities, officers, directors, agents, shareholders, owners, employees, trustees, administrators, receivers, sureties, insurers, attorneys, successors and predecessors in interest, communications providers, partners, licensors and suppliers, attorneys, assigns and receivers of each of the foregoing, past, present and future (collectively, the "Indemnified Parties"), harmless from and against any claims, actions or demands, liabilities and settlements, including without limitation reasonable legal and accounting fees, incurred by any Indemnified Party arising from or relating to or alleged to arise from or relate to your Account, any provision of this Subscription Agreement or otherwise in connection with your use (and any Account Participant's use) of the uLocate Service. You will, and will cause all other Users of your Account to, cooperate with the Indemnified Parties in the defense of any claim. Provider reserves the right, at its own expense, to assume the exclusive defense and control of any matter that may be subject to indemnification hereunder.
Provider or its Suppliers shall retain all right, title and interest, including without limitation all copyright, patent, trade secret, trademark and other proprietary rights, in any and all intellectual property embodied in the ULOCATE Service, including without limitation all source code, object code, databases, user interface screens, algorithms, development frameworks, repositories, system designs, system flow, processing techniques and procedures related thereto, online and/or printed documentation, copies, and derivatives of any of the foregoing, in whole or in part.
You should assume that all tangible items of Information and all Software are copyrighted and protected under treaty provisions and worldwide copyright laws, unless otherwise noted. Except as otherwise expressly provided in this section, you may not copy, distribute, transmit, display, perform, reproduce, publish, modify, rewrite, reverse-engineer, disassemble, decompile, transcribe, store in a retrieval system, translate into any language or computer language, retransmit in any form or by any means (electronic, mechanical, photo reproduction, recordation or otherwise), create derivative works from, license, sublicense, transfer, or sell any Information or Software without the prior written consent of the copyright owner. You agree to comply with all provisions of any license applicable to any software included in the Information, including the Software. If you violate any of the terms of this section, your rights to use the uLocate Service will automatically terminate. In addition, violation of the provisions of this section may subject you to severe civil and criminal penalties.
You agree that Provider will suffer irreparable injury in the event you fail to comply with any of this Subscription Agreement, and that monetary damages may be inadequate to compensate Provider for such breach. Accordingly, you agree that Provider will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief, without posting a bond, to enforce this Subscription Agreement.
All terms, conditions and warranties contained in this Subscription Agreement which by their sense and context are intended to survive the performance hereof by the parties hereunder shall survive the completion of the performance, cancellation or termination of the Agreement. Without limiting the foregoing, Sections 1, 2, 8 through 12, 14 through 21, together with any accrued payment obligations, shall survive termination or expiration of this Subscription Agreement and your subscription.
Exclusive jurisdiction and venue for any dispute with Provider, or which in any way relates to your use of the uLocate Service, resides in the state or federal courts located at Boston, MA, and you consent to the exercise by those courts of personal jurisdiction over you. For purposes of the preceding sentence, "Provider" shall include Provider and all other entities identified in the paragraph entitled "Other Protected Entities." If any provision of this Subscription Agreement is found to be invalid or unenforceable by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity or enforceability of any of the remaining provisions of this Subscription Agreement and the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Subscription Agreement shall continue in effect. No waiver of this Subscription Agreement shall be deemed a further or continuing waiver of such term or condition or any other term or condition. Provider's failure to exercise or enforce any right or provision of this Subscription Agreement shall not constitute a waiver of such right or provision. You agree that regardless of any law to the contrary, any claim or cause of action you may have with respect to Provider or relating to use of the uLocate Service must be commenced within six (6) months after the claim or cause of action arises, or such claim or cause of action is forever barred.
This Subscription Agreement and the uLocate Terms of Use set forth on the uLocate Website and any information provided as part of the registration process constitutes the entire agreement and understanding between Provider and you with respect to your use of the uLocate Service, superseding all prior or contemporaneous communications and/or understandings. This Subscription Agreement may not be modified except (a) by Provider as described herein, or (b) by a subsequent writing signed by Provider and you. You may modify your registration information as described herein from time to time. If there is any inconsistency between the terms and conditions of this Subscription Agreement and the uLocate Terms of Use set forth on the uLocate Website, the terms and conditions of this Subscription Agreement shall govern.
Provider may deliver notice to you hereunder or as otherwise may be required by applicable law. You hereby acknowledge and agree that notices to all Users will be effective upon Provider (a) posting a notice on the uLocate Website, or (b) delivery of notice by electronic mail to the Master Account holder's e-mail address on record, via means of a pop-up, text message sent to the Master Account holder's telephone on record, or by written communication sent by postal mail to the Master Account holder's address on record. All notices to a Master Account holder will constitute notice to all Users of such Account. As the Master Account holder, you must submit to a correct e-mail address, and agree to update Provider of any changes in your e- mail address and other Account information. Any notices to Provider should be sent by email to legal@uLocate.com.
uLocate is concerned about the privacy of its Users' personally identifiable information. uLocate's privacy policy is available at Privacy and is incorporated herein.