END USER LICENSE AGREEMENT
Updated October 2024
THESE TERMS OF USE GOVERN YOUR USE OF THE TAG-N-TRAC HARDWARE, THE TAG-N-TRAC PROVIDED CONNECTIVITY SERVICES, PROFESSIONAL SERVICES, ACCESS TO THE SOFTWARE SERVICE, THE SUPPORT SERVICES, THE DASHBOARD AND/OR THE CLOUD SERVICES, AS APPLICABLE (COLLECTIVELY, THE “PRODUCTS”) AND IS A BINDING AGREEMENT BETWEEN YOU (“YOU”, OR “YOUR”) AND FERRET SYSTEMS INC., DBA TAG-N-TRAC (“TAG-N-TRAC”, “US”, OR “OUR”), INDIVIDUALLY, A “PARTY” OR COLLECTIVELY, THE “PARTIES”. PLEASE READ THIS AGREEMENT BEFORE USING OUR PRODUCTS. BY ACCESSING OR USING OUR PRODUCTS, YOU SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE OUR PRODUCTS. IF THE PARTIES HAVE AN EXISTING, FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ORDERS, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.
License Grant and Restrictions
Subject to the terms of this Agreement, and any applicable documentation provided by us, Tag-N-Trac agrees to grant you a personal, nonexclusive, non-transferable, non-assignable, non-sublicensable, terminable license, to access the Products, solely for your own use.
You may not, nor permit, facilitate or authorize any third party to: (i) use any Product other than as permitted under this Agreement and in accordance with the applicable Specifications; (ii) remove or destroy any copyright notices or other proprietary markings or identifications contained on or in any Product, specifications, or related Tag-N-Trac materials; (iii) access or use any Product in any manner that could damage, disable, overburden, or otherwise interfere with or disrupt such Product, any networks, platforms, software or systems; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code from any Product, except to the extent that this restriction is expressly prohibited by applicable law; (v) copy, modify or create derivative works of any Product; (vi) assign, pledge, lease, or otherwise transfer the Products, or directly or indirectly permit any unauthorized third party to use or copy the Products; (vii) extract portions of the Products for use in other applications; (viii) register or remotely manage Product through any management portal other than as authorized by Tag-N-Trac; or (ix) access any Product for the purpose of competing with Tag-N-Trac. Any unauthorized use of the Products will not be supported by Tag-N-Trac, and all warranties, if any, will be void if the Products are modified in any way or used in a manner for which the Products are not intended.
Tag-N-Trac shall solely own and have exclusive worldwide right, title and interest in and to all United States and foreign Intellectual Property Rights in any way related to the Products or any other intellectual property of Tag-N-Trac, and to the Tag-N-Trac proprietary rights and trade secrets embodied therein (collectively, “Tag-N-Trac Intellectual Property”). You shall not challenge, contest or otherwise impair Tag-N-Trac’s ownership of the Tag-N-Trac Intellectual Property, or the validity or enforceability of Tag-N-Trac’s Intellectual Property Rights therein.
Collection and Use of Data
By accessing and/or using the Products, you hereby grant Tag-N-Trac, our affiliates, subsidiaries, and service providers, a non-exclusive, irrevocable, royalty free, worldwide right and license to collect, compile, retain, use, reproduce, and create derivative works of, your non-personal, non-confidential information and data, which includes without limitation, all data, materials, reports, text, sound, video, image files, software or any other information (“Service Data”) that is provided by, or on behalf of you, or collected or compiled by Tag-N-Trac, its affiliates, subsidiaries, or service providers through the Products. Tag-N-Trac, its affiliates, subsidiaries, and service providers may collect, compile, retain, use, reproduce, and create derivative works of Service Data: (i) to provide services, support, and maintenance in connection with the Products; (ii) to develop and improve the Products; and (iii) for business purposes, to perform and ensure compliance with this Agreement, for technical research and marketing purposes. The Service Data will be aggregated with other information, materials, or data collected or compiled by, or provided to, Tag-N-Trac, its affiliates, subsidiaries, or service providers and anonymized, such that the Service Data will not intentionally reveal your identity. In accordance with applicable law, Service Data may be transferred, transmitted, or distributed to, stored, and processed in, cloud computing environments in the United States or any other country in which Tag-N-Trac, its affiliates, subsidiaries, or service providers maintain operations. By purchasing and/or using the Products, you agree to such use, transfer, transmission, distribution, storage, and processing of the Service Data. Tag-N-Trac, its affiliates, subsidiaries, and service providers will retain Service Data for as long as is necessary for Tag-N-Trac and its affiliates and subsidiaries business purposes in accordance with applicable law.
Exclusive Remedy
Your exclusive remedy and the entire liability of Tag-N-Trac under this Agreement as it relates to the Hardware will be, at the option of Tag-N-Trac, either to repair, replace, or refund of a portion of the amount paid by you for such Hardware. Any such obligation shall be prorated based on the Hardware’s remaining useful lifespan, which shall be determined at the discretion of Tag-N-Trac (the “Hardware Warranty Service”), and in no instance shall Tag-N-Trac have any warranty obligation if your request for a Hardware Warranty Service occurs more than twelve (12) months after the date you purchased the Hardware. In order to obtain the Hardware Warranty Service, you must return the Hardware to Tag-N-Trac along with a detailed description of the problem. Any cost associated with your return of the Hardware shall be your responsibility. Any requests by you for on-site corrections to the Hardware may be made at an additional cost to you, which shall be charged at Tag-N-Trac’s then-existing rates. Warranty services differ from any maintenance and support service that may be provided by Tag-N-Trac under a separate Purchase Order, and whether or not your requested services will be categorized as being brought under the Hardware Warranty Services or otherwise is determined by Tag-N-Trac upon the nature and timing of your request. As it relates to the Software Service, unless otherwise provided under a separate Purchase Order, your sole and exclusive remedy for any unavailability, non-performance or other failure by Tag-N-Trac to provide you with the Software Service is receipt of a credit towards the subscription fee paid by you in connection with the Software Service. A determination of such credit shall be made at the sole discretion of Tag-N-Trac, and may be withheld by Tag-N-Trac if determined that such credit request is outside the scope of your exclusive remedy provided under this Agreement.
Warranty Disclaimer
Except as explicitly provided otherwise in this Agreement, the Products are provided “as-is” and, to the maximum extent permitted under applicable law, Tag-N-Trac does not make any warranties, and expressly disclaims all warranties, express, implied, or otherwise, concerning the Products, including, but not limited to, any implied warranty arising by statute or otherwise in law or from a course of dealing or usage of trade, warranties of merchantability, or of merchantable quality, or of fitness for any purpose, particularly, specific, or otherwise. Without limitation to the foregoing, Tag-N-Trac provides no warranty or undertaking, and makes no representation of any kind that the Products will meet your requirements, achieve any intended results, be compatible or work with any other software, products, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
Limitation of Liability
To the maximum extent permitted by applicable law, in no event will Tag-N-Trac, its affiliates, subsidiaries, or service providers have any liability arising from or related to your use of or inability to use the Products for: (i) personal injury, property damage, lost profits, cost of substitute goods or services, loss of data, loss of goodwill, business interruption, computer failure or malfunction or any other consequential, incidental, indirect, exemplary, special or punitive damages; (ii) direct damages in amounts that in the aggregate exceed the amount actually paid by you for the Products.
The foregoing limitations will apply whether such damages arise out of breach of contract, tort (including negligence) or otherwise and regardless of whether such damages were foreseeable or company was advised of the possibility of such damages.
Indemnification
You agree to indemnify, defend and hold harmless Tag-N-Trac and its officers, directors, employees, agents, licensors, 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 your use or misuse of the Products or your breach of this Agreement.
Import and Export Restrictions
All Products shall be imported, exported, re-exported, or transferred in-country under and in accordance with all required government import or export licenses, permits or authorizations. You shall not, directly or indirectly, export, re-export or release the Products to, or make the Products 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 Products available outside the US.
Third Party Software Licenses
The Products may contain or be provided with components which are licensed from third parties (“Third Party Code”), including components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). To the extent required by such license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification, or reverse engineering. To the extent that any components incorporated into the Products are licensed under “third party end user licenses” or “shrink-wrap licenses”, the terms of such licenses shall apply in lieu of the terms of this Agreement with respect to usage rights.
Other Terms
Severability. If any provision, or part thereof, of this Agreement is judicially declared invalid, void or unenforceable, each and every other provision, or part thereof, nevertheless shall continue in full force and effect, and the unenforceable provision shall be changed or interpreted so as best to accomplish the objectives and intent of such provision within the limits of applicable law.
Governing Law. This Agreement shall be interpreted and enforced according to the laws of the State of California, without application of its conflicts or choice of law rules. This Agreement shall be deemed to be performed in San Diego, California. Both parties irrevocably submit to the jurisdiction of the state or federal courts located in San Diego, California, for any action or proceeding regarding this Agreement, and both parties waive any right to object to the jurisdiction or venue of the courts in San Diego, California.
Entire Agreement. Except where you or the entity you represent, has entered into an agreement with Tag-N-Trac specifically for use of any a particular Product, this Agreement constitutes the entire agreement between you and Tag-N-Trac with respect to the Products and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Products.