TRACKDRIVE'S TERMS OF SERVICE

Last modified: July 11, 2017

Thank you for using RTK Media, Inc. dba TrackDrive’s website, products, and services (together, the “Services”). These Terms of Service (“Terms”) govern all use of the Services. PLEASE REVIEW THESE TERMS CAREFULLY BEFORE USING THE SERVICES. These Terms contain a mandatory arbitration provision and require you to defend and indemnify Trackdrive for any claim arising from your use of the Services.

By using the Services, you represent and warrant that you (i) have read and understood, and agree to be bound by, these Terms and (ii) are at least 18 years old and legally qualified to enter into contracts. IF YOU DO NOT UNDERSTAND THESE TERMS, DO NOT AGREE TO BE BOUND BY THEM, OR ARE NOT LEGALLY QUALIFIED TO ENTER INTO CONTRACTS, YOU MUST IMMEDIATELY CEASE USING THE SERVICES.

1. Separate Privacy and Other Policies

You represent that you have read and understood, and agree to, Trackdrive’s separate Privacy Policy. Trackdrive may collect and disclose your information as outlined in the Privacy Policy, including to (i) take action regarding suspected illegal activities; (ii) enforce or apply these Terms; (iii) comply with legal process, court order, or government inquiry; or (iv) protect the rights, reputation, or property of itself, its users, or the public. These Terms may also be supplemented by additional policies, agreements, guidelines, rules, and licenses.

2. Accounts

You may be required to set up a Trackdrive account to use the Services. You may not use the username or password of any other person, nor may you circumvent any authentication mechanism requiring the entry of usernames, passwords, or any other information to gain unauthorized access to the Services. You are responsible for the quality and integrity of the data in your account. You agree to take all reasonable precautions to prevent unauthorized access to your account and agree to immediately notify Trackdrive of any suspected or actual unauthorized access. Trackdrive shall not be liable for any loss incurred by you or any third party relating to your account, including unauthorized access or if the Services are not continuous. You are responsible for any loss incurred by Trackdrive or its agents for activity under your account. Your account may be suspended, disabled, or terminated at any time for any reason, including for violation of these Terms. If Trackdrive suspends or terminates your account, it will make reasonable efforts to notify you after doing so. There is no agency, employer, partner, or joint venturer relationship between you and Trackdrive. During the duration of your account, you are required to carry and pay for commercial general liability or other insurance with at least one million dollars ($1,000,000.00) in coverage per occurrence for advertising injury and name Trackdrive as an additional insured.

3. Compliance

You, and not Trackdrive, are responsible for all content and information that you post, send, or transmit via blog, phone call, fax, SMS/MMS message, instant messages, email, mail, or other form (“Content”), including for its legality, reliability, and appropriateness. You warrant you own or have the right to use your Content, have obtained lawful consent from all parties with whom you interface, and are not violating any privacy, proprietary, or other rights of others. You agree to abide by all applicable laws and regulations, and you are solely responsible for all acts or omissions that occur under your account. You are also responsible for filing, subscribing, and holding appropriate regulatory compliance documentation as required by competent jurisdictions and/or the purchase of access to any do-not-call lists. You agree that, to the extent you represent or act on behalf of a third party, you assume all liability for such third party and will ensure that such third party complies with these Terms and all applicable laws.

Trackdrive has a zero-tolerance policy toward violations of the law, in particular the Telephone Consumer Protection Act, 47 U.S.C. §227 et seq. and corresponding regulations, 47 C.F.R. §64.1200(a)(1) et seq., the Telemarketing Sales Rule, 16 C.F.R. §310, state telemarketing laws and regulations, the CAN-SPAM Act of 2003, and the Federal Trade Commission Act and corresponding rules, regulations, and guidelines. You represent and warrant that you will not violate any applicable local, state, federal, international, or other statutes, laws, ordinances, rules, or regulations, or industry standards. Any such violation is a material breach of these Terms.

You agree to have the prior express written consent of each recipient contacted by or on behalf of you by phone call, fax, SMS/MMS message, and instant message, and you shall maintain records evidencing such consent (“Consent Records”) for five (5) years, including (i) opt-in date and time, (ii) source, (iii) first and last name, (iv) address, (v) phone number, and (vi) any other information collected. You are required to use the following language in obtaining consumer consent, in addition to any language required to make your conduct comply with all laws: “I agree to receive offers and other communications via [calls, fax, text message, and instant message] from [you] and RTK Media, Inc. dba Trackdrive, including by automatic telephone dialing systems and pre-recorded messages. I understand consent is not a condition of purchase. I agree to binding arbitration for any disputes.” You agree to provide such Consent Records to Trackdrive within two (2) business days of any request. You warrant that anyone acting on your behalf has expressly agreed to maintain such Consent Records and shall provide them upon demand to Trackdrive. To the extent that Trackdrive provides a suppression list for phone numbers to you, you shall regularly scrub your phone number list against such suppression list no less than every three (3) business days and shall not at any time send any text messages or make calls whatsoever to any individuals on such suppression list.

Trackdrive reserves the right, but has no obligation, to review your Content and to reject, modify, and remove Content for any reason without notice or explanation, including for violation of these Terms, and to monitor the Services for non-compliant activity, including violations of the law or these Terms. You agree to allow Trackdrive to use any means of monitoring of your use of the Services. You agree to promptly provide any information requested by Trackdrive or its agents that is reasonably related to your compliance with the law or these Terms. To the extent that you become aware of any litigation or investigation concerning your marketing practices or procedures, irrespective of whether such litigation relates to Trackdrive, you shall immediately notify Trackdrive of such litigation or investigation.

4. Prohibitions

You agree that you will not do the following in relation to the Services:

  1. Violate, or encourage violation, of these Terms or any applicable law or regulation.
  2. Violate the any acceptable use policy of your chosen upstream service provider.
  3. Violate industry standards, other Trackdrive or third-party policies, carrier guidelines, or other requirements that Trackdrive may communicate, including usage requirements.
  4. Engage in any unsolicited advertising, marketing, or other activities, including unwanted phone calls, SMS/MMS messages, voice mail, or faxes, in violation of any laws or regulations, including the Telephone Consumer Protection Act, the Do-Not-Call Implementation Act, anti-spam laws and regulations, the CAN SPAM Act of 2003, or any similar telemarketing, anti-spam, data protection, or privacy legislation.
  5. Restrict or inhibit another’s use or enjoyment of the Services, including by submitting malware or exploiting software vulnerabilities.
  6. Harvest or collect information about users for unlawful purposes.
  7. Provide false, misleading, or inaccurate information, including through impersonation.
  8. Infringe upon the intellectual property rights or other rights of Trackdrive or third parties.
  9. Engage in conduct, or encourage conduct, that is libelous, defamatory, discriminatory, or otherwise malicious or harmful to any person or entity.
  10. Receive, send, or otherwise process Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 as amended, unless you have signed a Business Associate Agreement or exception with Trackdrive.
  11. Transmit viruses, Trojan horses, worms, malicious code, or destructive content.
  12. Attempt to probe, scan, test, or violate the security features of the Services or any associated system or network, or to obtain unauthorized access to any content or data.
  13. Forge, modify, or falsify any network packet or protocol header or metadata.
  14. Disable, overburden, damage, or limit Trackdrive’s ability to provide the Services, or reverse-engineer the Services to find limitations, vulnerabilities, or evade filtering.
  15. Use a robot, spider, or other application to retrieve/index any part of the Services, except via published APIs, or copy any part of the Services without Trackdrive’s consent.
  16. Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, or any server, computer, or database connected to the Services.

5. Indemnification

You, your personal representatives, and your heirs, voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify Trackdrive and its stockholders, officers, directors, employees, agents, affiliates, consultants, representatives, sublicensees, successors, and assigns from any and all claims, actions, liabilities, judgments, settlements, fees, costs, and losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, advertising injury, or other damages, harm, or loss, whether to you or any third parties, arising out of or relating to your use of the Services, including any conduct conducted under your account, your violation of any law or breach of these Terms, or any conduct by your agents.

Trackdrive shall defend, indemnify, and hold you harmless from and against any and all reasonable third-party claims against you only if arising from Trackdrive’s willful, intentional, and malicious violation of the law, if you provide immediate notice of such claim, if Trackdrive retains full control of defense and settlement, and if you fully cooperate with same.

6. Charges

Trackdrive may charge fees in accordance with the terms of either a separate agreement or the registration process you complete. Unless otherwise stated, all fees are quoted in U.S. dollars. You are responsible for paying all fees associated with using the Services and all applicable taxes. Trackdrive may give refunds on deposited amounts that are not used for the Services. You may be asked to supply certain billing information for your use of the Services, including your credit card information, billing address, and shipping information. You represent and warrant that: (i) you have the legal right to use the payment information provided, and (ii) the information you provide is true, correct, and complete. Trackdrive may use third parties for facilitating payment and purchases, and you grant Trackdrive the right to provide your information to those third parties. If your usage of the Services exceeds the amount you deposited or you fail to pay the amounts due, Trackdrive will be entitled to suspend/terminate the Services, including your account, in its sole discretion. Trackdrive will not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with respect to any suspension of the Services.

7. Communications from Trackdrive

Without limitation, by using the Services and/or by providing your email address, you expressly consent to receive communications from Trackdrive, its agents, and affiliates via email. Without limitation, by providing your phone number, you expressly consent to receive same via phone call, fax, and MMS/SMS message. Without limitation, by providing your Skype information, you expressly consent to receive same via Skype. You may opt out of communications by (a) following unsubscribe instructions in each communication; or (b) sending an email to support@trackdrive.net. Trackdrive may also display advertisements on its website.

8. Intellectual Property Rights

Trackdrive’s trademarks, including the mark TRACKDRIVE and Trackdrive’s logos, copyrighted material, patents, and the Services are the intellectual property of Trackdrive and/or its licensors. You may not copy, modify, publish, transmit, distribute, display, or sell any of Trackdrive’s propriety content without Trackdrive’s prior written permission, and you do not own any right, title, or interest in same, provided that, subject to these Terms, Trackdrive grants you a non-transferable, non-exclusive, revocable, limited license to use the Services.

You will retain any intellectual property rights in any Content provided by you in relation to the Services, including your name and logo, and you grant Trackdrive a non-exclusive, royalty-free, permanent, unlimited, and irrevocable license to use, publish, and distribute same on or in connection with Trackdrive’s Services, including any marketing and public relations materials.

Trackdrive respects the intellectual property rights of others. If you believe that material infringes one or more of your copyrights, please promptly submit a claim via email to Trackdrive at support@trackdrive.net with the subject line “Copyright Infringement” and with an identification of the copyright claimed, a description of the material you claim is infringing, your name, address, telephone number, and email address, and a signed statement by you (i) that you believe in good faith that the use of your copyrighted material is not authorized by law, or by the copyright owner or such owner’s agent and, (ii) under penalty of perjury, that all of the information contained in your notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf. See also the Digital Millennium Copyright Act.

9. Third-Party Websites and Services

The Services may contain third-party content or links to third-party websites. Trackdrive does not guarantee the accuracy, completeness, or usefulness of any third-party information or adopt, endorse, warrant, or accept responsibility for same. Trackdrive does not have control over third parties, each of which may be have its own terms and conditions and/or privacy policy. You assume all responsibility for any harm resulting from third-party content or websites. While Trackdrive uses commercially reasonable efforts to manage the Services, the loss or interruption of any one of those independent services may prevent the Services from operating for reasons including power outages or ISP or telecommunications services provider outages.

10. Disclaimer of Warranties, Assumption of Risk

TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRACKDRIVE, ON BEHALF OF ITSELF AND ITS AGENTS, DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES ARE PROVIDED “AS IS.” TRACKDRIVE DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF INFORMATION REGARDING THE SERVICES. OPERATION MAY NOT BE UNINTERRUPTED OR ERROR FREE. YOU AND YOUR AGENTS KNOWINGLY AND FREELY ASSUME ALL RISK, RESPONSIBILITY, AND LIABILITY FOR ALL CLAIMS, WHETHER TO YOU OR ANY THIRD PARTY, REGARDING THE SERVICES, INCLUDING BUT NOT LIMITED TO CLAIMS UNDER THE TELEPHONE CONSUMER PROTECTION ACT AND THE TELEMARKETING SALES RULE.

11. Limitation of Liability

NEITHER TRACKDRIVE NOR ITS AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ATTORNEY’S FEES, LOST PROFITS, REVENUES, REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA, OR LOSS OR DAMAGES RELATED TO YOUR USE OF THE SERVICES, REGARDLESS OF ANY NOTICE. YOUR SOLE REMEDY REGARDING THE SERVICES IS TO STOP USING THE SERVICES. YOU AGREE TO NOTIFY TRACKDRIVE OF ANY CLAIM AGAINST IT WITHIN TEN (10) BUSINESS DAYS OF BECOMING AWARE OF SUCH CLAIM. YOU AGREE THAT IN NO EVENT WILL TRACKDRIVE OR ITS AGENTS BE LIABLE TO YOU FOR MORE THAN ONE HUNDRED DOLLARS ($100).

12. Choice of Law, Binding Arbitration, Provisional Remedies, Fees

Choice of Law, Venue. THESE TERMS SHALL BE INTERPRETED AS THOUGH EXECUTED IN COLORADO AND SHALL BE GOVERNED BY COLORADO LAWS WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. THE PARTIES CONSENT, AND WAIVE ANY OBJECTION, TO PERSONAL JURISDICTION AND VENUE IN EL PASO COUNTY, COLORADO.

Binding Arbitration. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES AGREE TO RESOLVE ALL DISPUTES ARISING OUT OF OR RELATING TO THE SERVICES BY BINDING ARBITRATION IN EL PASO COUNTY, COLORADO BEFORE A SINGLE ARBITRATOR. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association, as modified by these Terms, available at www.adr.org or by calling 1-800-778-7879. All issues are for the arbitrator to resolve, except as provided below. Notice of any claim must be provided within one (1) year after the cause of action accrues. The arbitration may be conducted in person, by document submission or telephone, or online. The arbitrator will issue a decision in writing, but need only provide a statement of reasons if requested by a party. THE PARTIES AGREE TO WAIVE ANY RIGHT TO JOIN CLAIMS WITH OTHERS OR OTHERWISE PROCEED IN A CLASS ACTION. YOU AGREE THAT WITHOUT THIS PROVISION, YOU WOULD HAVE HAD THE RIGHT TO SUE IN COURT WITH A JURY OR PARTICIPATE IN A CLASS ACTION.

Provisional Remedies. THE ARBITRATION PROVISION DOES NOT PRECLUDE THE PARTIES FROM SEEKING PROVISIONAL REMEDIES, INCLUDING ORDERS TO STAY COURT ACTION OR COMPEL ARBITRATION, FROM APPLYING FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION TO PRESERVE INTELLECTUAL PROPERTY RIGHTS, OR FROM ENFORCING AN OBLIGATION FOR DEFENSE AND INDEMNITY, IN STATE OR FEDERAL COURTS IN EL PASO COUNTY, COLORADO. YOU AGREE THAT A BREACH OF THESE TERMS WILL LEAD TO IRREPARABLE INJURY AGAINST TRACKDRIVE AND THAT TRACKDRIVE MAY SEEK IMMEDIATE INJUNCTIVE RELIEF FOR SUCH BREACH IN ANY APPROPRIATE COURT.

Fees. Trackdrive shall be entitled to its reasonable costs and expenses, including attorney’s fees, in any action or proceeding against you arising out of these Terms. You shall be entitled to your reasonable costs and expenses, including attorney’s fees, in any action or proceeding arising out of these Terms resulting from the willful misconduct of Trackdrive.

13. Assignment

These Terms and your rights and obligations hereunder are not assignable or transferable by you. Notwithstanding, these Terms are assignable and transferable by Trackdrive and will be binding upon and inure to the benefit of your successors and assigns.

14. Termination, Modification, No Waiver

These Terms shall commence upon your acceptance and will remain in effect until terminated. Trackdrive may terminate these Terms at any time, including if Trackdrive determines you violated the law or breached these Terms. You may terminate your account upon three (3) calendar days' written notice to Trackdrive. These Terms shall terminate immediately upon the windup and dissolution or insolvency of either party, whether voluntary or not. Provisions on prohibited uses, intellectual property, disclaimers, limitations of liability, choice of law, arbitration, provisional remedies, fees, and indemnity shall survive any termination. Trackdrive may modify these Terms and may modify or discontinue the Services in its sole discretion for any reason at any time without notice. Trackdrive cannot waive any rights under these Terms except by a signed writing. You should review these Terms periodically. IF YOU FIND ANY CHANGES UNACCEPTABLE, YOU MUST IMMEDIATELY CEASE USING THE SERVICES.

15. Entire Agreement, Severability

Subject to 1 and 6, these Terms constitute the entire agreement between you and Trackdrive relating to the Services and supersede all prior and contemporaneous understandings. These Terms shall not be construed against the drafter. If any part of these Terms is held invalid or unenforceable, the remaining parts will remain in full force and effect to the maximum extent permitted by law. The headings in these Terms are for convenience only.

Last updated July 11, 2017. Please direct all questions or concerns to support@trackdrive.net.