Terms & Conditions
Tach West DataTrans welcomes you as a valued customer. By accessing logging into your personal account you have hereby entered into an agreement with Tach West DataTrans. This agreement represents the governing terms and conditions under which Tach West DataTrans makes its services available to the Customer. This Agreement also represents the complete agreement and understanding between Tach West DataTrans (hereinafter referred to as "Provider") and our Customer (hereinafter "Customer" or "You"). At any and all times during the term of this Agreement, you must also comply with the Acceptable Use Policy and any and all other policies administered by Provider (collectively "terms and conditions"). The terms and conditions are often updated so please take the time to carefully read all of the terms and conditions whenever you browse through the website or log into your account.
Provider will provide you with the services corresponding with the payment and service plan as outlined in addendum (a). Your use of any of the services are subject to your strict adherence to this Agreement, the Acceptable Use Policy and all other terms and conditions administered by Provider. The account as set up for you shall be used only for legal purposes under all applicable international, federal, state/provincial, and local laws. These services are for the exclusive use of the Customer specifically named above or for any authorized user of the account and does not extend to any other third party or entity. Customer may not resell any of the services to third parties, unless otherwise approved by Provider or both parties have entered into a reseller agreement (separate agreement). In the event that Provider acts a reseller to the Customer whereby providing Customer with hardware, software or other equipment manufactured by third parties, Customer shall not have any claims against Provider for any malfunctions, defects, alterations that may occur with this third party equipment. Instead the Customer shall seek any remedies directly from the manufacturer. Nevertheless, the Customer shall only use the Services and the third party equipment in accordance with the terms and conditions contained herein and shall not resell, transfer or export any of the third party equipment in violation of any US, Canada or foreign laws.
- Limited Liabilities.
Provider will utilize its best efforts to maintain acceptable performance of the contracted services, but Provider makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose and non-infringement of third party rights. Provider cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. Provider will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system. Provider shall not be liable to Customer or any of its customers for any claims or damages which may be suffered by Customer or its customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-deliveries, or service interruptions whether or not caused by the fault or negligence of Provider. In no event shall Provider be liable to Customer for any indirect, special or consequential damages or lost profits arising out of or related to this Agreement or the performance or breach thereof. The aggregate, total liability of Provider under this Agreement, if any, shall in no event or circumstances exceed the total amount actually paid by the Customer hereunder. This provision shall survive this Agreement.
Customer agrees that it shall defend, indemnify, save and hold harmless from any and all demands, liabilities, losses, costs, claims, including reasonable attorney's fees, ("Liabilities") against Provider, its agents, its customers, servants, officers, employees, that may arise or result from any services provided, performed or agreed to be performed or any product sold by Customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless Provider against liabilities arising out of any injury to person or property caused by any products sold or distributed in connection with Provider's services.
- Invoicing and Service Fees.
Invoicing for any of the services shall be as follows: Customer shall be billed in accordance with the terms contained in the Terms of Payment section of Customer Agreement or VAR agreement as applicable. In the event that Customer fails to make payment as required, Provider reserves the right, in its sole, absolute and unfettered discretion, to discontinue service to Customer without notice or liability for actual compensatory or consequential damages. All costs and expenses, including without limitation, late fees or bank charges, that Provider may incur as a result of termination or discontinuance of service for the reasons stated herein shall be borne by the Customer. Nonpayment by Customer shall entitle Provider to unilaterally terminate this agreement, in which case the provisions of paragraph 1, 2, 4, 5, & 6 shall continue in full force and effect, and/or, at its sole discretion, Provider may discontinue or suspend service to Customer until payment is made. A Customer choosing to reconnect may incur reinstatement fees. Reinstatement and setting up a new account shall only take place once Customer has made all of its outstanding payments and has brought its delinquent account current.
- Software Terms.
Provider shall grant customer a non exclusive non transferable, limited license to use such licensed software only and solely to the extent required to use the service. If Provider is the licensor, Customer shall in no event be entitled to claim title to or any ownership interest in any of the licensed software (or derivations or improvements thereto) and Customer shall execute any documentation reasonable required by Provider. To memorialize Provider's existing and continued ownership of licensed software. If a third party is the licensor, Customer's entitlement shall be limited solely to the license offered by and such third party. Customer further agrees that is shall not copy, reverse engineer, decompile, disassemble, sell, lease, license or sublicense the licensed software; or create, write or develop any derivative software or any other software program, based on the licensed software.
All cancellation in accordance with the terms and conditions contained herein must be submitted in writing to Provider via registered mail. All Customer accounts must be paid in full before the transaction will be considered complete. All refunds for unused time shall be prorated except (i) if Customer receives free months of services, the free months of services will not be calculated in the prorated refund and (ii) down grade of services does not mean a prorated refund to Customer but rather it will be applied to the Customer account for use of future services.
- Term and Termination.
This Agreement will commence upon the sign-up date and continue for the term of 1 (one) year. The Company may, at its option, immediately terminate this Agreement upon the following conditions (i) a payment default; (ii) Customer's failure to comply with any of the terms and conditions, including this Agreement or the Acceptable Use Policy; or (iii) Customer's tampering with the services and products of Provider. Any such termination may be effected without prior written notice. Customer may terminate this agreement in the event that Provider is in material breach of its obligations under this Agreement and Provider has failed to cure within ten (10) business days from the date Notice is received from Customer indicating the breach. Upon termination, Customer shall pay any and all charges due and owing on the date thereof related to the Services, remove from Provider premises all property owned by Customer, if applicable, otherwise it will be removed, and return to Provider any property that was provided by Provider to Customer. The rights and obligations of both parties, which by their nature would continue beyond the termination of this Agreement, including without limitation those relating to confidentiality, payment of charges, limited liability and indemnification shall survive such termination. Termination of services for any of the reasons contained herein shall not entitle Customer to a refund of any of the fees paid to Provider. Provider may also terminate this Agreement at its convenience at which time Customer will only be entitled to its prorated amount of the fees which have been pre-paid (not including set-up fees or provisioning fees, where applicable). Please note: transferring data/GPS reporting away from Provider does not constitute an automatic cancellation of Customer's account. Customer must follow the cancellation procedures as indicated on the website or in this Agreement. (a) Effect of Termination. Customer shall comply with all applicable procedures related to equipment and software removal or reinstatement upon termination. If the Customer's service is disconnected prior to the end of the term of this Agreement, the Customer shall be charged an early termination fee equal to the pro-rated amount of the monthly/annual fees remaining in the term of this Agreement less the set-up fees, as per the attached Service Order Form. Early termination fee shall apply in all cases except in the following: (i) in the event the Customer terminates its services due to a material breach by Provider, or (ii) if Provider must discontinue service to Customer due to any reason other than the breach of this Agreement by the Customer.
Provider reserves the right to make changes, modifications, updates to the Terms and Conditions at any time with or without notice. Changes will be posted on the website so we encourage all Customers to review these terms and conditions each time you visit our web site to assure that you understand our existing usage policies.
- Force Majeure.
Except with respect to accrued payment obligations, neither party shall be liable, nor shall any credit allowance or other remedy be extended, for failure of performance or equipment due to causes beyond such party's reasonable control, including but not limited to: acts of God, fire, flood or other catastrophe; any law, order, regulation, direction, action or request of any governmental entity or agency or any civil or military authority; national emergencies, insurrections, riots or wars, unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages or other labor difficulties, provided however, the party to which the force majeure event has happened shall use commercially reasonable efforts to eliminate such an event.
- Entire Agreement and Severability.
This instrument constitutes the entire agreement between the parties, and represents the complete and entire understanding of the parties with respect to the subject matter contained in this agreement. This instrument supercedes any other agreement or understanding between the parties, whether written or oral. In the event that any term or provision of this instrument is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this instrument and the agreement which it evidences, shall remain in full force and effect. The parties hereto intending to be legally bound hereby, and in consideration of the covenants and agreements contained herein, do hereby execute this instrument, with each party warranting their ability to enter into this agreement for the person or entitle herein named as a party hereto. Provider's failure to enforce any provision of this Agreement shall not be construed as a waiver of any provision or right. This provision shall survive the termination of this Agreement.
Provider may assign this Agreement and/or any of its interest without Customer's prior consent. Any such assignment, however, will not change the obligations of Provider to Customer. Customer will not assign, sell or otherwise transfer its rights or obligations under this Agreement without prior written consent of Provider. Any assignment or transfer prohibited by this provision will be void.
The parties recognize that they will have access to confidential proprietary information and or trade secrets of the other party. Customer specifically acknowledges that the services constitute valuable trade secrets of the Provider. Accordingly, the parties agree that all of the terms and conditions, services and products and all other non-public information related to the foregoing shall be kept in the strictest confidence and shall not be revealed to any third parties without the prior written consent from the other party. This provision shall survive the termination of this agreement. The parties agree that they will not attempt to copy or in any way alter, re-engineer or otherwise tamper with any of the confidential information.
- Intellectual Property.
Customer represents and warrants that the Customer's use of the services shall not infringe the intellectual property or other proprietary rights of Provider or any other third party. Customer further acknowledges that all right, title and interest in any and all technology, including the software that is part of or is provided with the Services and any trademarks or service marks of Provider is vested in Provider or its licensors. Customer shall have no interest in any of the Intellectual Property of Provider. Customer shall not copy, translate, modify, distribute or disseminate the Intellectual Property or to use it in a manner other than for the Services or grant a third party to do so. Nothing contained herein shall waive a Customers right that may have already existed with a third party software licensor.
- Customer Data.
Customer shall remain responsible for its content residing on the Provider servers except as otherwise agreed upon with Provider, for the backup hereof.
Each party represents and warrants that it has the right and authority to enter into this Agreement and that by entering into this Agreement it will not violate, conflict with or cause a material default under any other Agreement. Customer represents that they are 18 years of age and have the legal capacity to enter into this Agreement or otherwise have signed up for services under parental/adult guidance supervision and approval.
- Copyright Notice: Copyright ©2008 Provider all rights reserved.
Provider as referenced herein are service marks of Provider and shall not be used without the prior written permission of Provider. Provider claims copyright interest in all original content or works provided by Provider on its web site, If any pages, information or content is copies it may only be copied for non-commercial uses and Provider shall, in any event, retain all copyright and other proprietary interests therein. Other product company names as they may appear on the Provider web site remain the trademarks of its respective owners.
Any rights not expressly granted herein are reserved.
Customer acknowledges that she/he has read and understands this Agreement (including any on line orders forms, attachments, schedules, addenda and amendments) and is not entering into this Agreement on the basis of any representation not expressly set forth in it. Customer further acknowledges and accepts that this entire Agreement and its attachments are provided in the English language only.