END USER LICENSE AGREEMENT
BY DOWNLOADING THIS MOBILE APPLICATION, YOU ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS.
This End User License Agreement (the “Agreement”) for XTracktMe Pty Ltd (together with any updates, the “Application”) is a legal agreement between user (“You” or “Your”), and XTracktMe Pty Ltd . By accessing, downloading, copying or otherwise using the Application, You acknowledge that You have read this Agreement, understand it, and agree to be bound by its terms and conditions. If You do not agree to the terms and conditions of this Agreement, do not access, download, copy or use the Application. XTracktMe Pty Ltd will not and does not grant You access to the Application unless You agree to the terms of this Agreement.
In consideration of the promises and covenants described below, and other good and valuable consideration, You agree as follows:
2. License Restrictions. Except as specifically provided herein, You may not: (i) distribute or make the Application available over a network where it could be used by multiple devices at the same time; (ii) copy the Application; (iii) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble or make derivative works based on the Application, except as otherwise permitted by law; or (iv) use, rent, loan, sub-license, lease, distribute or attempt to grant other rights to the Application to third parties.
4. Your Warranty to XTracktMe. You represent and warrant that: (i) You have the authority to bind Yourself to this Agreement; (ii) Your use of the Application will be solely for purposes that are permitted by this Agreement; and (iii) Your use of the Application will comply with all local, state and federal laws, rules, and regulations.
6. Disclaimer of Warranties and Indemnification. XTracktMe will not be liable for losses or damages arising from or in any way related to your access or use of the Application. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, XTracktMe IS LICENSING THE APPLICATION “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” XTracktMe MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, AND ACCURACY, FOR ANY PURPOSE, OF THE APPLICATION, THE OPERATION OF THE APPLICATION ALONE OR IN CONJUNCTION WITH ANY DEVICE, OR THE CONTENT CONTAINED HEREIN. XTracktMe DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE APPLICATION AND ITS OPERATION AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL XTracktMe BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR OTHER RELATED OR SIMILAR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE CONNECTED WITH THE USE OF OR INABILITY TO USE THE APPLICATION, AND FOR ANY CAUSE OF ACTION, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF XTracktMe HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY DAMAGES ARISING UNDER THIS AGREEMENT OR THE USE OF THE APPLICATION THAT XTracktMe IS REQUIRED TO PAY FOR ANY PURPOSE WHATSOEVER, INCLUDING WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO ONE HUNDRED RAND (R100.00) or Dollar equivalent. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU UNDER THE LAWS OF THOSE STATES. No action, regardless of form, whether in court or through arbitration, arising out of any transaction under this Agreement, may be brought by You more than one month after You have knowledge of the occurrence which gives rise to the cause of such action.
8. Indemnity. You agree to indemnify and hold harmless XTracktMe and its affiliates, officers, directors, employees, consultants, agents and anyone providing information or software used in the Application from any and all claims arising from, related to, or incidental to Your use of the Application.
9. Termination. This Agreement is effective until terminated. XTracktMe may immediately terminate this Agreement at any time at its sole discretion with or without notice to you. Additionally, Your rights under this Agreement will terminate automatically if you fail to comply with any term(s) of this Agreement. Upon termination, all legal rights and licenses granted to You here under shall terminate immediately and You shall cease all use of the Application and destroy all copies of the Application. All sections that may be reasonably interpreted to or are intended to survive this Agreement will survive this Agreement.
10. Governing Law. This Agreement shall be governed by the laws of South Africa. You irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in South Africa for all disputes arising out of or relating to this Agreement. If any action is brought to enforce, or arises out of, the Agreement or any term, clause, or provision hereof, the prevailing party shall be awarded its reasonable attorney's fees together with expenses and costs incurred with such action.
11. Acknowledgment of Understanding/Entire Agreement. You acknowledge that You have read this Agreement, understand it and agree to be bound by its terms and conditions. You also agree that this Agreement is the complete and exclusive statement of the Agreement between XTracktMe and You and supersedes all proposals, representations or prior agreements, oral or written, and any other communications between XTracktMe and You relating to the subject matter of this Agreement.
12. Sever-ability. You agree that the terms and conditions stated in this Agreement are sever able. If any paragraph, provision, or clause in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction, the remainder of this Agreement shall be valid and enforceable.
13. Assignment and Transfer. XTracktMe may assign, transfer, sell, rent or lend this Agreement, in whole or in part, at any time without notice to You. You may not assign this Agreement or any part of it or any rights to use the Application, in whole or in part, either temporarily or permanently, to any other party. Any attempt to do so is void.
14. This Application is optimized for use on Android supported devices with the Android application and iPhone devises with the iPhone application. To access the Application, you must have a current account with a mobile provider that includes data internet access or access to a wireless internet service as well as sms availability. This Application may also be used on tablet devices, although the Application is not optimized for this use.
15. You will be responsible for any costs incurred with your mobile operator and/or your ISP downloading, installing and using the Application, including downloading any information that populates the Application. You are also personally responsible for any downloading charges that are incurred by anyone else using the device on which you have installed the Application.
You must have an internet-enabled cell phone or device using either the iOS or Android operating system in order to access the Services. Normal carrier charges and taxes may apply to any content you obtain from the Services. Xtracktme Pty Ltd is not responsible for any surcharges you incur from your mobile phone or internet service provider as a result of the use of the Services.
You expressly agree that, as part of the Services, you may receive communications by push notification, text message (SMS), and/or email, including promotional communications from time to time.
16. Xtracktme does not make any guarantees and does not provide any undertaking that the Application will be available at all times or that it will be error free, secure or that any defects will be corrected. You agree that you use the Application at your own risk and that Xtracktme disclaims any and all responsibility for any damage or loss that you may suffer or incur as a result of using the Application, whether they are direct or consequential (including loss of profits, loss of business revenue or loss of goodwill). This includes any loss that results from any interference, malfunction or damage that occurs to your supported devices, arising from installing, updating or using the Application.
Trademarks contained in the Application are owned by or licensed to Xtracktme and may not be used without Xtracktme express written consent.
You understand and agree that any alerts provided to you through the Service may be delayed or prevented by a variety of factors. Xtracktme does its best to provide alerts in a timely manner with accurate information. However, we neither guarantee the delivery nor the accuracy of the content of any alert. You also agree that Xtracktme shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.
17. Should any organization, school, club, business or group use the application to locate and track any of the said members, scholars, affiliates or staff. The said organization, school, club, business or group is responsible to obtain permission from the respective legal guardians or parents for such activity and retain any signed and approved documentation. Xtracktme cannot be held responsible in any manner for members tracking each other once permission has been given to the said organization, school, club, business or group.
18. RULES FOR SWEEPSTAKES, CONTESTS, RAFFLES, SURVEYS AND SIMILAR PROMOTIONS
19. Amendment of this Agreement. XTracktMe RESERVES THE RIGHT TO MODIFY OR AMEND THIS AGREEMENT FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF THE APPLICATION FOLLOWING THE POSTING OF CHANGES TO THE AGREEMENT WILL MEAN YOU ACCEPT THOSE CHANGES.
BY DOWNLOADING THIS MOBILE APPLICATION, YOU ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS.
Dated; 21th June 2017