1) INTRODUCTION AND ACCEPTANCE OF AGREEMENT
Welcome to DogTracs.com. This website (?Site?) is owned by Positionere, Inc. (?Company?).
Please review this Terms of Use Agreement (?Agreement?). Your use of this Site and the Company?s products constitutes your agreement to abide and be bound by the terms of this Agreement. If you do not agree with any of the terms of this Agreement, then do not use the Site or the Company?s products. The Company reserves the right to revise this Agreement at any time without notice. The latest Agreement will be posted on the Site. Your use of the Site and/or the Company?s products following any such change constitutes your agreement to abide and be bound by the Agreement as changed. For this reason, we encourage you to review the Agreement whenever you use this Site.
You agree to the terms and conditions in this Agreement with respect to our Site, and use of the DogTracsTM system and device (?System?) and wireless communication plan. This Agreement constitutes the entire and only agreement between us and you, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Site, the content, products or services provided by or through the Site, and the subject matter of this Agreement. The words "we" and "us" refer to the Company and its affiliates. The word "you" refers to the account holder, account administrator, subscriber or user of the System.
BY ACCESSING AND USING THE SITE, YOU AGREE THAT YOUR ACCESS TO AND USE OF THIS SITE IS SUBJECT TO THE PROVISIONS OF THIS AGREEMENT AND APPLICABLE LAWS.
2) LIMITED LICENSES
The Company grants you a limited, revocable, non-transferable and non-exclusive license to make personal use only of the Site. Such grant does not include, without limitation: (a) any resale or commercial use of this Site or any Site materials (defined below); (b) any modification, adaptation, translation, reverse engineering, decompilation, disassembly or conversion into human readable form any of the Site materials not intended to be so read, including use of or directly viewing the underlying HTML or other code from this Site except as interpreted and displayed in a web browser; (c) copying, imitating, mirroring, reproducing, distributing, publishing, downloading, displaying, performing, posting or transmitting any Site materials (including any Company trademarks) in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise; (d) the collection and use of any product listings or descriptions; (e) making derivative uses of the Site and any Site materials; or (f) use of any data mining, bots, spiders, automated tools or similar data gathering and extraction methods, directly or indirectly, on the Site materials or to collect any information from the Site or any other user of the Site. Except as expressed above, you are not conveyed any right or license, by implication, estoppel, or otherwise, in or under a patent, trademark, copyright, or proprietary right of the Company or any third party. You may not use any meta tags or any other "hidden text" utilizing the Company?s name, trademark, or product name without our express written consent. "Site materials" mean all materials on the Site, including, without limitation, trademarks, design, product description, HTML text, graphics, other files, photographs, codes, software layout, designs forms and the selection and arrangement thereof.
The Company also grants you a limited, revocable, non-transferable and non-exclusive license to use the System and service provided you comply with this Agreement. This Agreement does not grant you the right to distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or part of the System. All rights not expressly granted herein are reserved by us.
We may terminate this license and your use of the System including the device and service, or access to this Site if you make or permit any unauthorized use of this Site or the System. Such actions by you may violate applicable law including, without limitation, copyright laws, trademark laws (including trade dress), and communications regulations and statutes. We may terminate this license including the device and service, or access to this Site if 1) you fail to provide all required information when activating your System; 2) we determine at our sole discretion that the SIM card in your device has been or will be used improperly; or 3) we determine at our sole discretion that you will use the System in a manner that will violate this Agreement. We reserve the right to have all violators prosecuted to the fullest extent of the law
3) RESTRICTIONS ON USE
You agree to only use the System for your pet dog. Use of the System for humans and personal property is strictly prohibited. The System determines and reports location information using a third-party wireless communications provider and devices provided by DogTracs. You agree not to use your device with any other service. Except as authorized by us, you agree not to export or re-export any device to any foreign country.
4) INTELLECTUAL PROPERTY RIGHTS
All Site materials are owned by us and others and are protected by United States and international copyright, trademark and other laws.
Copyright and Trademarks
Unless otherwise noted, product names, designs, logos, titles, text, images, content, design, animations, graphics, color combinations, button shapes, layout, audio, video, magnetic translation, digital conversion, and HTML code within this Site are the trademarks, service marks, trade names, copyrights or other Company property. All other trademarks, registered and unregistered, product names and company names or logos mentioned herein are the property of their respective owners.
Technology and Patents
The System is patent pending and protected by trade secret and other intellectual property laws and treaties and is the Company?s exclusive property.
5) HYPERLINKS
Links to the Site
You are granted a limited, revocable, non-exclusive right to create a hypertext link to the home page only of this Site, provided such link does not portray the Company or any of its products and services in a false, misleading, derogatory, or other defamatory manner. You may not use, frame or utilize framing techniques to remove, obscure or enclose any the Company trademark, logo or other proprietary information, including the images found at this Site, the content of any text or the layout/design of any page, or form contained on a page without the Company?s express written consent. All other linking is prohibited without the Company?s prior written consent.
Links to Third-Party Websites
This Site may contain hyperlinks to third-party websites. The linked sites are not under the Company?s control; therefore, we make no claim or representation regarding, and accepts no responsibility or liability for, the quality, content, opinions expressed, nature or reliability of websites accessible by hyperlink from this Site, or websites linking to this Site. The websites are not investigated, monitored or checked for accuracy or completeness by us. We are not responsible for and assume no liability for any mistakes, misstatements of law, defamation, omissions, falsehood, obscenity, pornography or profanity in the statements, opinions, representations or any other form of content contained in the third-party, linked websites. We are providing these links only as a convenience, and the inclusion of a link does not imply endorsement of the linked site by us. If you decide to leave our Site and access the linked third-party websites, you do so at your own risk.
6) PASSWORDS AND SECURITY
If you use a password to access this Site or any portion of it, then you are responsible for maintaining the confidentiality of the password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur on your account or with your password. As such, you are responsible for all charges incurred from System activity occurring on your account regardless of who incurs the charges. In the event that the confidentiality of your account or password is compromised in any manner, you will notify us immediately. We reserve the right to take any and all action deemed necessary or reasonable to ensure the security of the Site and your account, including without limitation terminating your account, changing your password or requesting information to authorize transactions on your account. Notwithstanding the above, we may rely on the authority of anyone accessing your account or using your password and in no event will we be liable to you for any damages resulting from or arising out of any: 1) action or inaction of us under this provision; 2) compromise of the confidentiality of your account or password; and 3) unauthorized access to your account or use of your password. If your device is lost or stolen, you are responsible for all charges incurred until you notify us of the loss. Once you inform us that your device has been lost or stolen, we will immediately suspend your account. If you choose to purchase a new device, we will apply your remaining wireless communications service plan period to your new account. If you decide to terminate your service, your unused wireless communications service plan will not be refunded.
7) CHILDREN
This website is designed for and intended for use by adults. Persons under the age of 18 may use this Site only under the supervision of a parent or guardian. If you are a parent or legal guardian, you must monitor and supervise the use of this Site by children, minors and others under your care, you agree to be responsible for their use of this Site, and it is your responsibility to exercise discretion and to observe all safety measures required by law and your own common sense.
8) CONSENT TO EMAIL COMMUNICATION
By using this Site and/or the System, and/or sending an email to us, you consent to receive communications from us electronically and agree we may communicate with you by email or by posting notices on this Site.
9) THIRD PARTY SERVICES
We may provide links and access to third-party websites and merchants that contain information, products and/or services for those interested in the information. If you choose to purchase goods or services from the third-party websites or merchants, the third-party websites and merchants are responsible for all aspects of order processing, fulfillment, billing and customer service. We are not a party to the transactions consummated between you and the third-party websites and merchants. You agree that use of or purchase from such websites or merchants is at your sole risk and is without warranties of any kind by us, expressed, implied or otherwise including warranties of title, fitness for purpose, merchantability or non-infringement. Under no circumstances are we liable for any damages arising from the transactions between you and third-party websites or merchants or for any information appearing on these sites or any other site linked to our Site. We neither monitor nor assume responsibility for the content of third parties' statements or websites. Accordingly, we do not endorse or adopt these websites or any information contained therein and makes no representations or warranties whatsoever regarding their accuracy or completeness.
10) ERRORS, MISPRINTS, CORRECTIONS AND CHANGES
We reserve the right to change the goods and services advertised or offered for sale through this Site, the prices or specifications of such goods and services, and any promotional offers and other Site materials at any time and from time to time without any notice or liability to you or anyone. We do not guarantee that goods or services advertised or offered for sale on this Site will be available when ordered or thereafter. We reserve the right to limit quantities sold or made available for sale. We may make changes to the features, functionality or content of the Site at any time and reserves the right in its sole discretion to edit or delete any documents, information or other content appearing on the Site. We do not represent or warrant that the Site will be error-free, free of viruses or other harmful components, or that defects will be corrected. We do not warrant that Site materials (including without limitation product descriptions or photographs) are accurate, complete, reliable, current or error-free. We reserve the right to cancel, terminate or not process orders (including accepted orders) where the price or other material information on this Site is inaccurate or when it recognizes abuse of its policies. If we do not process an order, we will advise you and will either not charge you or will apply credit to the payment type used in the order.
11) PRIVACY AND SECURITY POLICIES
We have a Privacy Policy and Security Policy that are part of this Agreement. You should refer to the Privacy Policy and Security Policy in order to fully understand how we collect, secure and use information. To learn about the Company?s privacy and security practices, please refer to the privacy policy and security policy sections of the Site. You acknowledge that System transmission of information from your device to our Control Center, from you to our Control Center, and from our Control Center to you may be intercepted and read by others. As such, you acknowledge that System transmission of information is not confidential.
12) REGISTRATION
If you wish to make purchases of products or services described on this Site, certain sections of, or offerings from, the Site may require you to register. If registration is required, you agree to provide us with accurate, complete registration information including but not limited to credit card or other payment information. Your registration must be done using your real name and accurate, current information. Each registration is for your personal use only. Access through a single name being made available to multiple users on a network is prohibited. You are responsible for preventing such unauthorized use. Additionally, you agree to pay all charges incurred by users of your account and credit card or other payment mechanism at the prices in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases. By using the System, you represent and warrant that all customer information you submit is truthful and accurate and that you agree to maintain the accuracy of such information.
13) SUBMISSIONS AND RESTRICTIONS
You are encouraged to communicate with this Site where applicable. You agree that any materials, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information, provided by you in the form of email or submissions to us or postings on this Site ("Submissions") are non-confidential (subject to our Privacy Policy) and that you remain solely responsible and liable for your Submissions. You hereby grant (or warrant that the owner of the Submissions has granted) to us and our assigns a perpetual, royalty-free, irrevocable, unrestricted, non-exclusive, world-wide, assignable, sub-licensable, right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and otherwise exploit the Submissions or any ideas, concepts, know-how or techniques associated with the Submissions for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing compensation to you or any other person, without any liability whatsoever, and free from any obligation of confidence or other duties on our part or of our assigns, and you hereby waive all moral rights, or agree, represent and warrant that all moral rights in the Submissions (including without limitation the rights of paternity, attribution and integrity) are irrevocably waived, in favor of us and our assigns.
You remain solely liable for the content of any messages or other information you upload or transmit to the discussion forums or interactive areas of this Site. You agree to indemnify, defend, protect, and hold harmless the Company, its affiliates, employees, agents and representatives from any claim, action, demand, loss, or damages (including attorneys' fees) made or incurred by any third party arising out of or relating to your conduct, your violation of these terms and conditions, or your violation of any rights of a third party. Indirect or attempted violations of these Site terms or any policy, and actual or attempted violations by a third party on behalf of a user of this Site will be considered violations of these Site terms by such user.
By using the Site, you agree not to: (a) upload to, distribute or otherwise publish through this Site any message, information, text or other material ("Content") that is unlawful, libelous, defamatory, obscene, pornographic, profane, indecent, lewd, harassing, threatening, scandalous, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable; (b) upload or transmit any Content that would constitute or encourage a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law; (c) upload or transmit any Content that may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party (by posting any Content, you represent and warrant that you have the lawful right to distribute and reproduce such Content); (d) impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity; (e) upload to, distribute or otherwise publish through this Site any Content such as charity requests, petitions for signatures, chain letters or letters relating to pyramid schemes, advertising or solicitations for funds, political campaigning, mass mailings, any form of unsolicited commercial email or "spam," (regardless of whether the email itself complies with the requirements of federal or state law for sending commercial email) or offering or disseminating fraudulent goods, services, schemes or promotions; or (f) disseminate any harmful content of any kind, including without limitation viruses, Trojan horses, worms, time bombs, zombies, cancel bots or any other computer programming routines that may damage, interfere with, intercept or expropriate any system, program, data or personal information.
14) UNLAWFUL ACTIVITY
You agree to not use the System or the location information provided thereby for any unlawful purpose, and to comply with all applicable laws and rules. All access to and use of this Site is governed by and subject to the Site terms. We have the right, but not the obligation, to monitor any activity and content associated with forums and interactive areas on this Site. We may access at any time and use internally for any lawful purpose information stored on our systems, including the content of any emails or other communications. We may disclose such information including but not limited to your profile, email addresses, usage history, posted materials, IP addresses and traffic information to any third-party including law enforcement agencies to protect our rights or property in response to legal process, or in a good faith belief that such disclosure is justified or required in an emergency situation. We may investigate any reported violation of our policies or complaints and take any appropriate action that we deem appropriate. We have the right, but not the obligation, to take any action we deem appropriate, including but limited to action to issue a warning, suspend or terminate your access and use of the Site and related services at any time, and block, remove or edit any communication and materials that we believe in our sole discretion may violate applicable law, the Site terms or a third party's rights. We have no responsibility and assume no liability for any content posted or uploaded by you or any third party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity that you may encounter.
15) WIRELESS COMMUNICATION NETWORK COVERAGE
The System will function only in geographic areas where our wireless communications provider offers service. Please use this link, Wireless Coverage Map, to determine if there is service in the area where you intend to use the System. If currently there is no wireless coverage in your area, we recommend that you do not purchase the System. However, wireless communication providers continue to expand their service areas; therefore, we suggest you check back periodically to determine if there is service in your area.
16) SERVICE PRICING
All Service Plans (including the Monthly Service Plan and the Prepaid Annual Service Plan) require a 12 month commitment. Your wireless communication plan will continue for the length of the initial term you select and will automatically renew at the end of the term unless you choose to modify the term (i.e., change from the Monthly Service Plan to the Prepaid Annual Plan) or cancel the plan prior to renewal. As such, your credit card will automatically be charged a recurring fee based on the Service Plan in effect at the time of renewal. In the event that your payment card company declines to process your payment, we may retry the charge on the payment card. If payment is declined a second time, we may terminate your service immediately without penalty or liability to us. Modification or cancellation of your Service Plan must be communicated to us by written notice or by email at least 10 business days prior to the end of your Service Plan term/commitment. Our Service Plan pricing is subject to change without notice; however, you will receive a notice of any changes in pricing prior to your account being charged any increased price for your Service Plan. You must notify us immediately of any change in your name, billing address, service address, email address, telephone number or credit card or other account information. You are responsible to pay your own mobile phone service provider/carrier for SMS text messages received by you from our Control Center as part of your System communications service.
17) SALES AND USE TAXES
If we are legally required to collect sales tax on merchandise you order, the tax amount will be added automatically to your purchase price. You are responsible for all taxes or other government fees and charges, if any, which are assessed based on the service address on your account.
18) SECURITIES LAWS
This Site, and any documents issued by us and available through this Site, may contain statements which constitute forward-looking statements within the meaning of the U.S. Private Securities Litigation Reform Act of 1995 and other securities law safe harbors for forward-looking statements. Forward-looking statements include all passages containing verbs such as "aims," "anticipates," "believes," "expects," "intends," "plans," "predicts," "projects," ?estimates,? ?seeks,? ?will,? or "targets" or nouns corresponding to such verbs. Forward-looking statements also include statements or other passages primarily relevant to expected future events or that can only be evaluated by events that will occur in the future. These forward-looking statements are based on the opinions and estimates of management at the time the statements are made and are subject to certain risks and uncertainties that could cause the actual results to be materially different from those anticipated in or implied by the forward-looking statements. Forward-looking or other statements speak only as to the date they were released. We undertake no obligation to update forward-looking or other statements to reflect events or circumstances that occur after the date the statements were made. In addition, please note that information contained in this Site shall not be included as part of, or incorporated by reference into (nor shall it be deemed to be a part of or incorporated by reference into), any prospectus, solicitation or offering memorandum of the Company used in connection with the offering or sale of securities.
19) PRESS RELEASES
The Site may contain press releases and information about the Company and the System. We do not make any expressed or implied representation or warranty as to the accuracy, reliability or completeness of any information in any press release. Neither the Company nor its directors, officers, shareholders, or employees have any liability to you or any other persons resulting from your use of any information in any press release. We disclaim any duty or obligation to update any press releases. Information about companies other than us in press releases can not be relied upon as being accurate or provided or endorsed by us.
20) SEVERABILITY
This Agreement constitutes the entire agreement between us and you concerning your access to and use of the System or Site and may be modified by the unilateral amendment by us at any time without notice. If any part of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that part shall be deemed to be severed from the rest of this Agreement and shall not affect the validity and enforceability of any remaining provisions.
21) WAIVERS
No waiver, express or implied, by you or us of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
22) APPLICABLE LAW, VENUE, CONTRACTUAL LIMITATION ON ACTIONS
Any dispute concerning the System, any services, or the interpretation or enforcement of the terms and conditions of this Agreement, shall be governed by and construed in accordance with the rules and regulations of the Federal Communications Commission, other applicable federal laws, and the laws of the State of California applicable to agreements made and entirely to be performed within California, without resort to its conflict of law provisions. The laws of your jurisdiction may be more or less strict than the laws that apply to this Site. If you access this Site from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. Regardless of where you access this Site, you agree that any action at law or in equity arising out of or relating to this Agreement shall be filed and adjudicated only in the federal or state courts located in Orange County, California, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction and venue of such courts over any suit, action or proceeding arising out of these terms and conditions. You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the System, the Site and the content and materials provided therein. Any cause of action by you with respect to the System and/or the Site (and/or any information, documents, products or services related thereto) shall be instituted if at all within one (1) year after the cause of action arose. Any action after that period is unenforceable.
23) LEGAL EQUIVALENCY
This electronic document and any other electronic documents, policies and guidelines incorporated herein will be: (i) deemed for all purposes to be a "writing" or "in writing," and to comply with all statutory, contractual, and other legal requirements for a writing: (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (iii) deemed an "original" when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation or administer of proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
24) TRANSFERABILITY
Your license to use the System and this Site is not transferable by you. Logon and password privileges provided to you for use of this Site are not transferable by you. We may transfer your account and any Company rights and obligations in this Agreement to any party without notice to you and without your consent for any purpose, including without limitation collection of unpaid amounts, or an acquisition, reorganization, merger, or sale of all or substantially all of the Company?s assets.
25) COMPANY DISCLAIMERS
THE SYSTEM, SERVICE AND ANY SUPPORT SERVICES RELATING TO THE SYSTEM, THIS SITE AND THE MATERIALS PROVIDED HEREIN ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY EXPRESS OR IMIPLIED WARRANTIES. THE COMPANY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE SITE AND MATERIALS, CONTENT, SERVICES AND PRODUCTS ON THIS SITE. WE MAKE NO EXPRESS OR IMPLIED WARRANTIES REGARDING YOUR SYSTEM, SERVICE OR OTHER EQUIPMENT OR THAT YOUR ACCESS TO OR YOUR USE OF THE SERVICE OR SITE WILL BE UNINTERRUPTED OR ERROR FREE. THE COMPANY DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SYSTEM OR THAT DATA SENT BY YOU OR RECEIVED BY YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME, AND THE COMPANY DOES NOT WARRANT THE ACCURACY OR RELIABILITY OF ANY DATA OBTAINED THROUGH THE SYSTEM. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT MATERIALS IN THIS SITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. THE COMPANY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT OR PHOTOGRAPHY. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THIS SITE OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, EVEN IF THE COMPANY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF. ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS DISCLAIMED. YOU EXPRESSLY AGREE THAT USE OF THIS SITE, INCLUDING ALL CONTENT, DATA OR SOFTWARE DISTRIBUTED BY, DOWNLOADED OR ACCESSED FROM OR THROUGH THIS SITE IS AT YOUR SOLE RISK.
26) NONLIABILITY OF THE COMPANY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES, SUPPLIERS, SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY DIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES CASUED BY LOSS OF USE, PROFITS, OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THIS SITE OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THIS SITE. To the maximum extent permitted by applicable law, and to the extent any of the other provisions in this Section are unenforceable, the entire liability of the Company and any of its suppliers with respect to the DogTracsTM device and any other aspects of the System or services related to either are limited to the amount actually paid by you for the System or the device.
IF YOU ARE DISSATISFIED WITH THIS WEBSITE, THE SYSTEM OR ANY TERMS AND CONDITIONS, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THIS SITE AND THE SYSTEM.
THE COMPANY EXPRESSLY ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USE OF THE SYSTEM THROUGH THE INTERNET OR OTHER COMMUNICATION SERVICES.
ACCURACY OF THE LOCATION INFORMATION PROVIDED BY THE SYSTEM IS SUBJECT TO NETWORK CAPABILITIES, ENVIRONMENTAL CONDITIONS, AND WHETHER OR NOT THE DEVICES ARE POWERED ON AND WITHIN THE WIRELESS COMMUNICATION CELLULAR CARRIER?S COVERAGE AREA. THE COMPANY DOES NOT WARRANT THE NETWORK SERVICE PROVIDED TO IT BY CELLULAR CARRIERS. SERVICE MAY BE UNAVAILABLE OR INTERRUPTED FROM TIME TO TIME FOR A VARIETY OF REASONS BEYOND THE COMPANY?S CONTROL, SUCH AS ENVIRONMENTAL OR TOPOGRAPHIC CONDITIONS. SERVICE MIGHT ALSO NOT BE AVAILABLE IN CERTAIN PLACES (E.G., IN TUNNELS, PARKING GARAGES, OR WITHIN OR NEXT TO BUILDINGS) OR NEAR OTHER TECHNOLOGIES. WE ARE NOT RESPONSIBLE FOR ANY INTERRUPTIONS OF SERVICE. THE COMPANY DOES NOT GUARANTEE THE ACCURACY, RELIABILITY, OR USEFULNESS OF LOCATION INFORMATION ACCESSED THROUGH A CELLULAR CARRIER PROVIDING NETWORK TRANSMISSION OR LOCATION SERVICES TO THE COMPANY. THE COMPANY ASSUMES NO RESPONSIBILITY FOR PETS THAT ARE NOT RECOVERED. THE COMPANY RESERVES THE RIGHT TO SET LIMITS ON THE USE OF ITS SERVICES AT ITS DISCRETION.
27) INDEMNIFICATION
As a condition of your use of the System or this Site and with respect to third-party claims, you agree to indemnify, defend, protect, and hold harmless the Company, its affiliates, subsidiaries and their respective agents, officers, directors, employees, shareholders, contractors, subcontractors, successors, third party suppliers of information and documents, product and service providers, advertisers, and assigns from and against any liabilities, losses, judgments, damages, actions, claims, costs, or expenses (including, but not limited to, reasonable attorneys' fees and legal expenses) of any kind attributable to any breach by you or your obligations in this Agreement, your use of the System or this Site, or your violation of any rights of a third party.
28) TERMINATION
Without prejudice to any other rights we may have, we reserve the right, without notice, to terminate your license to use this Site, and to block or prevent future access to and use of this Site and your access to the System if the Company determines in its sole discretion that you have violated any of these Site terms or its policies, and/or if you fail to pay amounts owing to us when due. Your access to the System and the license granted hereunder will terminate upon expiration or cancellation of your agreement with us. If your service is canceled, you will still be responsible for payment of all outstanding balances accrued through the cancellation date, including any fees described herein. Upon termination, these Site terms shall still apply.
29) ARBITRATION
Any dispute, controversy or claim arising out of or relating to this Agreement or the System shall be settled by final and binding arbitration by one arbitrator and shall be conducted by Judicial Arbitration and Mediation Service ("JAMS") in Orange County, California. In addition to final relief, JAMS is authorized to issue injunctions, control discovery and, in all matters, act as a court in the State of California. A judgment upon any award rendered in such arbitration may be entered in any court having jurisdiction over the party against whom the award is made. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. In the event of a demand for arbitration, each party shall bear its own attorney fees, and each party shall pay half of the costs of such arbitration. JAMS may award arbitration costs (but not attorney?s fees) to the prevailing party as determined by JAMS, in addition to any other relief the arbitrator orders.
30) LIMITED PRODUCT WARRANTY
We offer the following Product Warranty on the DogTracsTM Device, which warranty is incorporated into this Agreement. The Company warrants that its products are free from material defects and faulty workmanship for a period of twelve (12) months from the date of purchase. The Company will repair or replace, at its option, any product that breaches this warranty during said period. This warranty does not cover and is void with respect to products that: 1) have been improperly installed, repaired, or modified; 2) have been subjected to abuse, misuse, physical damage, exposure to fire, water or excessive moisture or dampness; 3) have been opened, repaired, modified or altered by anyone other than a Company authorized service center; 4) the serial number has been removed, altered, or rendered illegible; and/or 5) are operated outside the limits of the product?s technical specifications. For repair and/or replacement of the DogTracsTM device, contact the Company?s customer support department to obtain approval and direction for returning any product under this warranty.
31) REFUND AND RETURN POLICY
You may return your DogTracsTM device or any accessories for any reason within 30 days after purchase, subject to the provisions of this Section. If you return and we accept your equipment within this period, we will refund your equipment purchase price. You must return the original packaging intact with all components and instructions accompanied by written notice requesting the refund (including name, billing address, credit card number, etc.). All components must be in like-new condition. Additionally, all returns must be accompanied by the original customer receipt. Refunds will be made only to the purchaser whose name appears on the receipt. Equipment is not eligible to be returned if the packaging UPC code is missing. At our discretion, we may decline your return or charge you a fee for missing items or items we determine are damaged and/or require service. Returned and accepted devices purchased by credit card will be refunded by credit to the credit card account originally charged for the purchase. In order to receive a full refund for the DogTracsTM device, you must return your equipment within 30 days of purchase. Charges for the wireless communication plan that you select when purchasing the System are non-refundable once the device is activated on the DogTracsTM Control Center. Refund of the wireless communication plan selected by you during purchase and prior to device activation must be requested by written notice. Refund of the wireless communication plan fee will coincide with return of your DogTracsTM device under the conditions described above. If you return your equipment after 30 days of purchase, you are not entitled to receive a refund and your equipment will not be returned to you.
If your System malfunctions as a result of a manufacturing defect after the 30 day return period described above but prior to the expiration of the 12 month product warranty period, you must ship the device to a Company authorized service facility. If your device can not be repaired to a functional condition, then we will exchange your device for a like kind device at no cost to you. The exchanged like kind device you receive may be refurbished equipment. Once you have exchanged your device, we will not be able to return your original equipment to you. If the exchanged device is defective, we will replace it with another like kind device, which may be refurbished, subject to availability. The exchanged device will carry the remaining warranty period from the original device purchase date or a total of 30 days, whichever is greater. After the 12th month of ownership of the device, we may charge a fee for equipment replaced due to malfunction or manufacturer defect.
Devices: 1) improperly installed, repaired, or modified; 2) subjected to abuse, misuse, physical damage, exposure to fire, water or excessive moisture or dampness; 3) opened, repaired, modified or altered by anyone other than a Company authorized service center; 4) in which the serial number has been removed, altered, or rendered illegible; or 5) operated outside the limits of the product?s technical specifications or subjected to normal wear and tear and the like are not eligible for any refund, return or exchange. This refund and return policy does not cover lost or stolen devices.
Return/Exchange Procedure
Pack all equipment and components including instruction manual in the original DogTracsTM package.
Include a copy of your original customer receipt.
Include a detailed explanation of the reason for return.
Retain shipping information (tracking number) as proof of shipment.
Shipping address for returns:
Positionere, Inc.
26741 Portola Parkway Suite 1E Box 664
Foothill Ranch, CA 92610
Attention: Returns
32) NOTICES
Notices to you will be deemed given when deposited in the mail or when sent by email. Notices may be included in statements or other communications to you. We may also provide notice to you by telephone, which will be deemed given when a message is left with you, someone answering the telephone at your residence or on an answering machine or voice mail system at your phone number on record with us. Your notices to us will be deemed given when we receive them in writing.
33) GENERAL PROVISIONS
The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. If any provision of this agreement is held illegal, invalid or unenforceable in whole or party, that provision shall be enforced to the maximum extent permissible, and the other provisions of this Agreement shall remain in full force and effect. To the extent that anything in or associated with the Site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or of the right to enforce such provision. Our rights under this Agreement shall survive any termination of this Agreement. The title, headings and captions of this Agreement are provided for convenience only and shall have no effect on the construction of the terms of this Agreement.
34) CONTACT US
If you are experiencing difficulties in using the Site or have a question about the System, service, charges or bill, please contact us at info@dogtracs.com or call us at (888) 747-9771.
EFFECTIVE DATE: December 1, 2007.
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