Eagle Tracks - Terms and Conditions of Use
Last Updated: June 27, 2017
All customers agree to the
following terms and conditions. PLEASE READ CAREFULLY. BY INDICATING YOUR
ACCEPTANCE, YOU ARE AGREEING THAT YOU OR YOUR COMPANY OR OTHER ENTITY YOU
REPRESENT WILL BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH
THESE TERMS, YOU ARE NOT PERMITTED TO USE THE SERVICES.
Customer Service Agreement
This Terms and Conditions Agreement
(this "Agreement") is by and between Maplehurst Productions, Inc. (DBA Eagle Tracks), a Virginia corporation ("EagleTracks.com") and you or the company or
other entity you represent acknowledging this Agreement ("Customer").
1. Provision of Service.
(a) EagleTracks.com will
provide Customer access to EagleTracks.com's Internet-based service (the
"Service") which will permit the processing, retrieval, and transmission of data
submitted by Customer (the "Customer Data") pursuant to the terms of this
Agreement. EagleTracks.com reserves the right at any time and in its sole
discretion to change Service features and functionality of the service, as well
as the terms and conditions of this Agreement. Such modification of the Service
and amended terms and conditions of this Agreement will be effective immediately
and incorporated into this Agreement. Your continued use of the Service
thereafter will be deemed acceptance of such changes.
(b) Customer is responsible for
its own compliance with this Agreement, including without limitation the
compliance of its employees, officers, agents, and any third party Customer
invites to participate in the Service.
2. Fees, Payments & Refunds.
Customer’s use of this service
will be at no charge at this time. EagleTracks.com reserves the right to initiate a fee for the use
of the website at any time. Continued
use after the initiation of a fee may result in fees as set forth at the time.
3. Limitations on Use of
Service and Service Software.
(a) As used herein, "Software"
refers to any software incorporated into the Service. Customer will not, and
will not permit, assist, or allow others to, reverse engineer, decompile,
disassemble, re-engineer, or otherwise discover, recreate, or attempt to
discover or recreate the Software or its source code. Customer will not modify
or attempt to modify the Software or sublicense or charge others to use or
access the Software or the Service. Customer will not use the Software or the
Service in any way not expressly authorized by this Agreement. Customer shall
have no right, title or interest in and to the Software which rights of
ownership will always be held by EagleTracks.com.
(b) Customer acknowledges that
the Services is not intended for permanent storage and agrees not to use the
Service for archiving or back-up purposes. Customer will not store "mission
critical" data on the Service, including without limitation data pertaining to
power generation, military or national security, or any function to sustain or
rescue the health or well-being of any person.
(c) From time to time,
EagleTracks.com may add new features to the Service that are described as
"beta" ("Beta Features"). Customer acknowledges that Beta Features may be
untested, non-functional, and/or partly functional features of the Service. If
Customer elects to use a Beta Feature, it does so at its own risk.
Notwithstanding the provisions of the first sentence of Section 5(a),
EagleTracks.com does not warrant that the Beta Features will be provided with
due care. Customer will back-up all data it adds to the Beta Features and will
not rely upon the functionality of the Beta Features for any purpose whatsoever.
Except as specifically provided in this Section 3(c), the Beta Features will be
considered part of the Service and all provisions of this Agreement relating to
the Service will apply to the Beta Features.
(d) Customer may not use the
Service (i) in violation of this Agreement; (ii) to infringe on, violate, dilute
or misappropriate the intellectual property rights of any third party or any
rights of publicity or privacy; (iii) to violate any law, statute, ordinance or
regulation; (iv) to store or post defamatory, inflammatory, trade libelous,
threatening, or harassing data; (v) to store or post obscene, pornographic or
indecent content or data; or (vi) to introduce or propagate any unauthorized
data, malware, viruses, worms, Trojan horses, spyware, worms, other malicious or
harmful code. Customer may not use the Service in any application that may
involve risks of death, personal injury, property damage or environmental
damage. Customer may not interfere with or attempt to interfere with or disrupt
the integrity, security, functionality or proper working of the Service.
Customer may access the Service only through the interfaces and protocols
provided or authorized by EagleTracks.com. Customer may not compile or use the
EagleTracks.com provided materials or any other information obtained through
the Service or the EagleTracks.com website for the purpose of unsolicited
direct marketing, spamming, unsolicited contacting of customers, or other
impermissible advertising, marketing or other activities, including, without
limitation, any activities that violate anti-spamming laws and regulations.
4. Security, Privacy, and
Access.
(a) Each party will promptly
notify the other of any unauthorized access to or use of Customer Data or
passwords. The parties will use reasonable efforts to take remedial measures to
address any such unauthorized access.
(1) Pursuant to the terms of
Section 5 below, EagleTracks.com will not be liable for any damages (direct,
incidental or consequential of any kind) incurred by Customer arising out of or
related to use of the Service, including without limitation in connection with
any unauthorized access to or disclosure of Customer Data, resulting from the
actions of Customer, any third party, or from the failure of electronic or other
security measures.
(2) Customer acknowledges and
agrees that notwithstanding the foregoing provisions of this Section 4(a),
EagleTracks.com may transfer Customer Data to any successor in interest of
EagleTracks.com under this Agreement.
(b) EagleTracks.com has no
obligation to monitor the Service. EagleTracks.com has the right to monitor
the Service and to disclose any information arising out of it, including without
limitation Customer Data, as necessary to satisfy any law, regulation, or demand
of government or of internal auditors or to protect EagleTracks.com or its
customers. EagleTracks.com may remove or refuse to post any materials that it
finds, at its sole discretion, to be offensive, undesirable, in violation of
this Agreement, or otherwise unacceptable. However, EagleTracks.com has no
obligation to remove any such materials.
(c) Customer will not use the
Service to transmit or store any data that may be considered obscene or
pornographic, that contains defamatory material, or that violates federal,
state, or local law.
(d) Customer will not disclose
any account passwords to any third party not authorized to use the Service.
(e) EagleTracks.com will
collect, use, and share your information in accordance with its privacy policy. Your acceptance of these terms
and conditions means that you have read and agree with the terms of the privacy
policy.
5. General Representations
and Warranties.
(a) Each party hereto represents
and warrants that (i) it has the full right, power and authority (including
corporate right, power and authority, as applicable) to enter into this
Agreement, (ii) the acceptance of this Agreement and the performance of its
obligations and duties hereunder do not and will not violate any agreement to
which it is a party or by which it is bound, and (iii) when accepted this
Agreement will constitute the legal, valid and binding obligation of such party,
in accordance with its terms.
(b) In connection with the
subject matter of this Agreement, Customer agrees to comply with all applicable
federal and state laws and regulations.
(c) Customer represents,
warrants and covenants: (i) that Customer is solely responsible for its Customer
Data, including without limitation, the security of such Customer Data; (ii)
that Customer has the necessary rights and licenses, consents, permissions,
waivers and releases to use its Customer Data.
(d) Customer represents and
warrants that: (i) the information Customer provides in connection with
registering for the Service is accurate, complete and in compliance with the
requirements hereunder; (ii) if Customer is registering for the Service as an
individual, that Customer is at least eighteen (18) years of age and has the
legal capacity to enter into this Agreement; and (iii) if registering for the
Service as an entity or organization, (1) such entity or organization is duly
authorized to do business in the country or countries where it operates, (2) the
individual accepting this Agreement and completing the registration for the
Service on behalf of the Customer meets the requirements of clause (d)(ii) above
and is an authorized representative of such entity or organization , and (3) the
employees, officers, representatives and other agents of such entity or
organization accessing the Service are duly authorized to access the Service and
to legally bind such entity or organization to this Agreement.
6. No Warranty; Limitation of
Liability.
(a) EAGLETRACKS.COM MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE SERVICE AND PERFORMANCE THEREOF,
AND WITH RESPECT TO THE SERVICE AND EAGLETRACKS.COM'S PERFORMANCE UNDER THIS
AGREEMENT, SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. EAGLETRACKS.COM DOES NOT WARRANT THAT THE SERVICE WILL
MEET YOUR REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR BE ERROR
FREE.
(b) With respect to Defense
Contract Audit Agency (DCAA) compliance issues, due to the evolving nature of
federal regulations, EagleTracks.com cannot make, and DOES NOT MAKE, any
warranty, express or implied, including but not limited to, the implied
warranties of merchantability and fitness for a particular purpose, that the
Service will be DCAA compliant and Customer is encouraged to seek advice and
proper counsel from persons specializing in DCAA audit and compliance matters to
insure Customer compliance with DCAA requirements.
(c) Furthermore, UNDER NO
CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION EAGLE TRACK'S NEGLIGENCE, WILL
EAGLETRACKS.COM BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOST
PROFITS, LOST SAVINGS, OR OTHER INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE
USE OR INABILITY TO USE THE SERVICE.
(d) IN NO EVENT WILL
EAGLETRACKS.COM'S TOTAL LIABILITY FOR ANY DAMAGES, LOSSES, CAUSES OF ACTION,
AND RELATED ATTORNEY FEES, WHETHER ARISING IN CONTRACT, TORT, OR EQUITY,
INCLUDING WITHOUT LIMITATION NEGLIGENCE, EITHER JOINTLY OR SEVERALLY, EXCEED THE
AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER TO EAGLETRACKS.COM IN THE TWELVE (12)
MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE.
(e) EagleTracks.com is not
liable for the accuracy, truthfulness, or validity of any data entered by
Customer or provided through the Service. EagleTracks.com is not liable for
the loss of any Customer Data.
(f) Customer's sole and
exclusive remedy, if it is dissatisfied with the Service or with any terms,
conditions, rules, policies, guidelines, or practices of EagleTracks.com is to
discontinue using the Service.
7. Indemnification.
Customer will indemnify and hold
harmless EagleTracks.com and its affiliates, employees, officers, directors,
agents, licensors, successors and assigns from all damages and liability,
including without limitation reasonable attorneys' fees, incurred as a result
of:
(a) Customer's violation of its
obligations under this Agreement,
(b) the negligent or willful
acts of Customer, or
(c) the violation by Customer of
EagleTracks.com's or any third party's rights, including without limitation
privacy rights, other property rights, trade secret, proprietary information,
trademark, copyright, or patent rights, and claims for libel, slander, or unfair
trade practices in connection with the use or operation of the Service.
Customer's obligation to indemnify will survive the expiration or termination of
this Agreement by either party for any reason.
8. Termination and Cessation
of Service.
(a) Either party may terminate
this agreement at any time. The following obligations will survive the
termination of the Agreement for any reason: (i) indemnification obligations set
forth in Section 7 above; (ii) obligations to make payments of amounts that
become due under this Agreement before termination; and (iii) any other
provision hereof where the context of such provision indicates an intent that it
will survive the term or termination of this Agreement.
(b) EagleTracks.com may deny
or may temporarily suspend Customer access to all or part of the Service without
notice if EagleTracks.com believes, in its sole discretion, that Customer may
have violated any of the terms of this Agreement.
(c) Upon termination of this
Agreement, EagleTracks.com will store and retain Customer Data for any period
that may be necessary under the terms of this Agreement and may, in its
discretion, store and retain such data for any longer period as may be allowed
by applicable law. While such data is stored post-termination of this Agreement,
EagleTracks.com will not willingly disclose the data to any third-party unless
authorized by Customer, or as may be permitted by this Agreement.
9. Interruption of Service.
(a) EAGLETRACKS.COM WILL NOT
BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO INTERRUPTION OF, OR
DEFECTS IN TRANSMISSION OF, THE SERVICE, including without limitation
interruptions or defects due to inability to access the Internet or any part
thereof, equipment modifications, upgrades, relocations, or repairs. No
reduction of payments will be made in the case of temporary interruption of or
defects in transmission of the Service.
(b) EagleTracks.com will not
be liable for interruption of or delays in transmission of the Service caused by
acts of God, fire, water, riots, acts of Government, acts or omissions of
Internet backbone providers, or any other causes beyond EagleTracks.com's
control.
10. Miscellaneous.
(a) This Agreement constitutes
the entire Agreement between EagleTracks.com and Customer regarding the
subject matter hereof and expressly supersedes any prior or contemporaneous
written or oral agreements between the parties regarding the subject matter
hereof, including without limitation any offer, purchase order, or other similar
instrument in writing. This Agreement may not be amended, altered, or changed
except by a written agreement signed by the duly authorized representatives of
both parties.
(b) In the event that any
provision of this Agreement is held to be unenforceable, such provision will be
construed as nearly as possible to reflect it original intent and the remainder
of this Agreement will remain in full force and effect.
(c) Customer's rights in this
Agreement are personal and are not assignable. EagleTracks.com may assign its
rights and obligations under this Agreement to third parties.
(d) EagleTracks.com is
controlled, operated and administered by EagleTracks.com primarily from its
offices within the USA. EagleTracks.com makes no representation that materials
at EagleTracks.com are appropriate or available for use at other locations
outside of USA and access to them from territories where their contents are
illegal is prohibited. Customer may not use EagleTracks.com or export the
Materials in violation of USA export laws and regulations. If Customer accesses
EagleTracks.com from locations outside of USA, Customer is responsible for
compliance with all local laws.
(e) These Terms and Conditions
of use shall be governed by the laws of the Commonwealth of Virginia, USA,
without giving effect to its conflict of laws provisions.
(f) If for any reason an
arbitration panel or a court of competent jurisdiction finds any provision of
the Agreement or portion thereof, to be unenforceable, that provision shall be
enforced to the maximum extent permissible so as to effectuate the intent of the
Agreement, and the remainder of this Agreement shall continue in full force and
effect.
(g) The parties agree that any
claim, controversy, or dispute arising out of or relating to this Agreement will
be settled by binding arbitration in Franklin County, USA, before a panel of
three arbitrators, with EagleTracks.com selecting one arbitrator, the Customer
selecting one arbitrator, and the two chosen arbitrators each agreeing to select
a third arbitrator. The terms and conditions of the arbitration shall be as
agreed to by the parties and arbitrators, and if they cannot so agree, then the
rules of the American Arbitration Association then existing shall apply;
however, the cost of the arbitrator's fees shall be equally borne by the
parties. Any decision rendered by the arbitration panel can be entered by any
party as a judgment on the arbitration award in the state and federal courts of
Franklin County, Virginia, and Customer agrees to submit to the subject matter
and personal jurisdiction of such courts. The arbitration panel and the court
entering any judgment on an arbitration award may award the prevailing party its
reasonable attorney's and expert witness fees. The decision of the arbitrators
will be binding; provided, however, that EagleTracks.com may bring an action
in a court of competent jurisdiction for injunctive or other equitable or
extraordinary relief as may be necessary to enforce the terms of this Agreement
before arbitration may occur.
(h) The remedies provided in
this Agreement and at law or in equity are cumulative and not exclusive. The
failure by either party to exercise any right or remedy under this Agreement or
otherwise available at law or in equity will not be deemed a waiver of any
subsequent right or remedy.
(i) No person or entity who is
not a party to this Agreement will derive any rights whatsoever hereunder as a
third party beneficiary of this Agreement.
11. Acceptance.
The parties acknowledge that
they have read the terms and conditions of this Agreement and hereby agree to be
bound thereby. This Agreement will become effective upon Customer's acceptance
by electronic acknowledgment on EagleTracks.com.