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Subscription Agreement and End User License Agreement

GunTRAC & APB360 SUBSCRIPTION AGREEMENT

APB360 is a registered trademark. When subscribing to APB360 Software, you are agreeing to the services subscription agreement shown below for the product(s) you have selected.

  • APB360® Document Software Subscription Agreement
  • APB360® Time and Billing Software Subscription Agreement
  • APB360® Software License Subscription Agreement
  • APB360® Cloud End User License Agreement

APB360 DOCUMENT SOFTWARE SERVICE SUBSCRIPTION AGREEMENT (as applicable)

PLEASE CAREFULLY REVIEW THE FOLLOWING END USER LICENSE AGREEMENT OF GunTRAC LLC (HEREINAFTER “GunTRAC”) AND ANY AND ALL TERMS OF USE THAT REFERENCE THIS AGREEMENT (HEREINAFTER“”AGREEMENT”). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN SUBSCRIBER AND GunTRAC (AS DEFINED BELOW). THIS AGREEMENT EXPRESSLY INCORPORATES ANY AND ALL TERMS OF USE THAT REFERENCE THIS AGREEMENT. THIS AGREEMENT GOVERNS ALL USE OF GunTRAC’S APB360® RANGE OF SERVICES, SOFTWARE AND ANY ASSOCIATED DOCUMENTATION, BOTH ONLINE AND OFFLINE.

BY CLICKING “I AGREE” OR BY DOWNLOADING OR OTHERWISE USING THE SOFTWARE OR SERVICES, SUBSCRIBER CONSENTS TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF SUBSCRIBER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, SUBSCRIBER SHALL IMMEDIATELY STOP USING THE SERVICES AND / OR SOFTWARE.

IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND ANY TERMS OF USE, THE TERMS OF THIS AGREEMENT SHALL PREVAIL AND CONTROL.

GunTRAC may modify the terms of this Agreement from time to time and shall post the most current version at http://guntrac.com; it is Subscriber’s responsibility to monitor and stay informed of any changes that Subscriber’s continued use of the Services following modification of this Agreement shall constitute and Subscriber herewith consents to be bound by the modified Agreement. The Software is licensed and not sold. During a Subscription Period and subject to the due payment by Subscriber and receipt by GunTRAC of all due and payable Subscription Fees, GunTRAC grants Subscriber a revocable, limited, non-transferable, non-exclusive license to access the GunTRAC’s APB360 Software Services and use the Services pursuant to the terms of this Agreement.

I agree to subscribe to the services that I have selected on a monthly or annual basis commencing on the initial subscription date at the monthly subscription rate for the selected services until I provide notice of cancellation in writing to GunTRAC or discontinue payment. GunTRAC reserves the right to increase my “Subscription Price per Month” subscription rate upon written notice to me given not less than sixty (60) days prior to the effective date of such increase. Subscription Fees are non-refundable if Subscriber cancels or if the Subscription is terminated for cause. I UNDERSTAND THAT AN ACTIVE SUBSCRIPTION IS REQUIRED IN ORDER TO USE THE SOFTWARE AND TO OBTAIN TECHNICAL SUPPORT, INCLUDING, BUT NOT LIMITED TO, REGISTRATION, RE-REGISTRATION AND AUTHORIZED TRANSFER BY LICENSEE OF THE SOFTWARE TO ANOTHER COMPUTER, and that I may cancel my order for subscription services at any time in writing. Further terms and conditions are contained in the APB360 Software License Subscription Agreement below.

APB360 RECORD KEEPING AND TRAINING SOFTWARE SERVICE SUBSCRIPTION AGREEMENT (as applicable)

PLEASE CAREFULLY REVIEW THE FOLLOWING END USER LICENSE AGREEMENT OF GunTRAC LLC (HEREINAFTER “GunTRAC”) AND ANY AND ALL TERMS OF USE THAT REFERENCE THIS AGREEMENT (HEREINAFTER“”AGREEMENT”). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN SUBSCRIBER AND GunTRAC (AS DEFINED BELOW). THIS AGREEMENT EXPRESSLY INCORPORATES ANY AND ALL TERMS OF USE THAT REFERENCE THIS AGREEMENT. THIS AGREEMENT GOVERNS ALL USE OF GunTRAC’S APB360® RANGE OF SERVICES, SOFTWARE AND ANY ASSOCIATED DOCUMENTATION, BOTH ONLINE AND OFFLINE.

BY CLICKING “I AGREE” OR BY DOWNLOADING OR OTHERWISE USING THE SOFTWARE OR SERVICES, SUBSCRIBER CONSENTS TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF SUBSCRIBER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, SUBSCRIBER SHALL IMMEDIATELY STOP USING THE SERVICES AND / OR SOFTWARE.

IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND ANY TERMS OF USE, THE TERMS OF THIS AGREEMENT SHALL PREVAIL AND CONTROL.

GunTRAC may modify the terms of this Agreement from time to time and shall post the most current version at http://guntrac.com; it is Subscriber’s responsibility to monitor and stay informed of any changes that Subscriber’s continued use of the Services following modification of this Agreement shall constitute and Subscriber herewith consents to be bound by the modified Agreement. The Software is licensed and not sold. During a Subscription Period and subject to the due payment by Subscriber and receipt by GunTRAC of all due and payable Subscription Fees, GunTRAC grants Subscriber a revocable, limited, non-transferable, non-exclusive license to access the GunTRAC’s APB360 Inventory, Training and Record Keeping Service and use the Services pursuant to the terms of this Agreement.

I agree to subscribe to the services that I have selected on a monthly or annual basis commencing on the initial subscription date at the monthly subscription rate for the selected services until I provide notice of cancellation in writing to GunTRAC. GunTRAC reserves the right to increase my “Subscription Price per Month” subscription rate upon written notice to me given not less than sixty (60) days prior to the effective date of such increase. Subscription Fees are non-refundable if Subscriber cancels or if the Subscription is terminated for cause. I UNDERSTAND THAT AN ACTIVE SUBSCRIPTION IS REQUIRED IN ORDER TO USE THE SOFTWARE AND TO OBTAIN TECHNICAL SUPPORT, INCLUDING, BUT NOT LIMITED TO, ACTIVATION, RE-ACTIVATION AND AUTHORIZED TRANSFER BY LICENSEE OF THE SOFTWARE TO ANOTHER COMPUTER, and that I may cancel my order for subscription services at any time in writing. Further terms and conditions are contained in the APB360 Software License Subscription Agreement below.

APB360 SOFTWARE LICENSE SUBSCRIPTION AGREEMENT

This Agreement is a subscription contract for services setting forth the terms and conditions of the license to use APB360 CLOUD SOFTWARE and/or APB360 TRAINING, DOCUMENT, INVENTORY, VOIP, REPORTING SOFTWARE as defined below. Additional terms and restrictions as to use of the Software by Licensee are contained in the respective GunTRAC LLC (hereinafter “GunTRAC”) End-User License Subscription Agreement(s) and are incorporated herein by reference. It is understood that this Agreement shall have been executed by a person having the legal capacity to bind the firm and its partners, associates, shareholders or members. This Agreement is terminable by either Party pursuant to the terms contained herein and, unless otherwise terminated consistent herewith, shall automatically renew from month to month.

SOFTWARE: The term “Software” shall mean APB360 CLOUD SOFTWARE or APB360 TRAINING, DOCUMENT, INVENTORY, VOIP, REPORTING SOFTWARE or any or all thereof, as applicable, and any other computer software or electronic files provided by GunTRAC to Licensee under the terms of this Agreement.

LICENSEE: The term “Licensee” shall mean the individual customer or customer firm to whom is granted the License(s) under the terms of this Agreement.

CONTACT PERSON: The term “Contact Person” shall mean the person designated by the Licensee, if another, to receive all notices or other information regarding or affecting the License(s) or the Software. Licensee agrees to provide to GunTRAC with the name, address, telephone number and email address of said Contact Person and any changes thereto.

PAYMENT TERMS AND TERMINATION: This monthly or annual subscription contract for services is payable by means of a Monthly or Annual Subscription Fee, which fee shall be chargeable and accrue on or about the same business day of each month or year until termination of this Agreement by GunTRAC or until Licensee notifies GunTRAC of, and GunTRAC receives, notice of termination by Licensee in writing. Payment of Monthly Subscription Fees shall be made automatically by means of a charge by GunTRAC against Licensee’s bank debit or credit card account, and Licensee agrees to keep said account current and in good standing such that charges against same may be collected; and further, to provide GunTRAC promptly of any change in account number, date of expiration or any other information necessary to ensure uninterrupted processing of said monthly payment. GunTRAC is not obligated to prorate or to refund any accrued Monthly or Annual Subscription Fees. Monthly Subscription Fees are due and payable to GunTRAC at its offices in Phoenix, Arizona, on or about the same business day of each month in advance without demand (hereinafter “Due Date”). Any Monthly Subscription Fees that are due and payable to, and not received by, GunTRAC by the Due Date shall be considered delinquent. GunTRAC retains the right to, and shall, terminate Licensee’s access to the Software in the event that Licensee is delinquent as defined above. AN ACTIVE SUBSCRIPTION IS REQUIRED IN ORDER TO USE THE SOFTWARE OR TO OBTAIN TECHNICAL SUPPORT, INCLUDING, BUT NOT LIMITED TO, ACTIVATION, RE-ACTIVATION, REGISTRATION, RE-REGISTRATION AND AUTHORIZED TRANSFER BY LICENSEE OF THE SOFTWARE TO ANOTHER USER, AND TERMINATION OF LICENSEE’S SUBSCRIPTION FOR ANY REASON SHALL FORTHWITH SERVE TO DENY ACCESS TO THE SOFTWARE AND THESE SERVICES AS AFORESAID. Program updates are provided free of charge to all APB360 Licensees having an active technical support services account.

ADDITIONAL TERMS

UPDATES: Except as otherwise provided in this Agreement, while this Agreement is in effect, GunTRAC shall provide Licensee with all applicable updates and upgrades for the Software at no additional charge. GunTRAC reserves the right to provide updates and upgrades via Internet download or via CD-ROM or other medium to be determined at the sole discretion of GunTRAC. Current updates and upgrades shall not be made available to a Licensee who is delinquent as defined above.

ADDITIONAL SERVICES: GunTRAC provides training materials accessible within the Software and online at guntrac.com. GunTRAC offers unlimited customer support relative to the Software at no additional charge to current subscribers. GunTRAC reserves the right to change, add or remove items from the list of Additional Services, whether free or chargeable, or to charge a fee for any Additional Service prior to its delivery and to deny the Additional Service to any Licensee for any reason in the sole discretion of GunTRAC. These and other services may be offered to Licensee by mail, electronic mail, text messaging, telephone, facsimile, by means of the GunTRAC web site or by any other method, at the sole discretion of GunTRAC.

GRANT OF LICENSE: GunTRAC grants to Licensee such number of licenses to use the Software as to which Licensee shall subscribe. Licenses may be used on a computer network and/or individual stand-alone computers.

LIMITED WARRANTY: THIS SOFTWARE IS PROVIDED “AS IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GunTRAC DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST INFRINGEMENT, WITH REGARD TO THE SOFTWARE. THE ENTIRE RISK RELATED TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS ON THE LICENSEE. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. In the event GunTRAC fails to remedy material defects in the Software, Licensee’s exclusive remedy shall be, at GunTRAC’s option, either (a) to receive a refund not to exceed the license fee paid hereunder for the current term of the Agreement, or (b) to correct the Software at GunTRAC’s sole expense.

NO LIABILITY FOR DAMAGES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GunTRAC BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE, EVEN IF GunTRAC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.

GENERAL: In the event the terms of this Agreement conflict with any other representations, either express or implied, made by any person or contained within any materials supplied by GunTRAC, the provisions of this Agreement shall prevail. All prices and terms are subject to change and GunTRAC reserves the right to increase Licensee’s Monthly or Annual Subscription Fee rate upon written notice to Licensee given not less than sixty (60) days prior to the effective date thereof. Pricing will not be changed for a minimum of three (3) years from the first activation date of an annual user. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable then the provision shall be severed and the other provisions shall remain in full force and effect. Venue for any cause of action arising under or in connection with this Agreement shall be Maricopa County, Arizona, for state law matters and the District of Arizona, Phoenix, Arizona, for federal law matters. Licensee’s acceptance of this Agreement constitutes express written consent for GunTRAC to send information to Licensee or Licensee’s designee for any purpose via facsimile transmission or by text messaging to any wireless device number that Licensee or Licensee’s designee provides to GunTRAC, and constitutes express written consent for GunTRAC to contact Licensee or Licensee’s designee via telephone or electronic mail, or via any wireless telephone number that Licensee or Licensee’s designee provides to GunTRAC. Failure by GunTRAC to exercise any of its rights under this Agreement shall not be construed as to waive GunTRAC’s ability to exercise such rights thereafter.

APB360 CLOUD END USER LICENSE AGREEMENT

PLEASE CAREFULLY REVIEW THE FOLLOWING END USER LICENSE AGREEMENT OF GunTRAC LLC (HEREINAFTER “GunTRAC”) AND ANY AND ALL TERMS OF USE THAT REFERENCE THIS AGREEMENT (HEREINAFTER“”AGREEMENT”). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN SUBSCRIBER AND GunTRAC (AS DEFINED BELOW). THIS AGREEMENT EXPRESSLY INCORPORATES ANY AND ALL TERMS OF USE THAT REFERENCE THIS AGREEMENT. THIS AGREEMENT GOVERNS ALL USE OF GunTRAC’S APB360 CLOUD RANGE OF SERVICES, SOFTWARE AND ANY ASSOCIATED DOCUMENTATION, BOTH ONLINE AND OFFLINE.

BY CLICKING “I AGREE” OR BY DOWNLOADING OR OTHERWISE USING THE SOFTWARE OR SERVICES, SUBSCRIBER CONSENTS TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF SUBSCRIBER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, SUBSCRIBER SHALL IMMEDIATELY STOP USING THE SERVICES AND / OR SOFTWARE.

IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND ANY TERMS OF USE, THE TERMS OF THIS AGREEMENT SHALL PREVAIL AND CONTROL.

GunTRAC may modify the terms of this Agreement from time to time and shall post the most current version at guntrac.com; it is Subscriber’s responsibility to monitor and stay informed of any changes that Subscriber’s continued use of the Services following modification of this Agreement shall constitute and Subscriber herewith consents to be bound by the modified Agreement.

  1. DEFINITIONS:

“Account” means the account located upon the Infrastructure, created and maintained by Subscriber in order to access the Services.

“Device” means Apple®, Windows® or non- Windows servers, workstations, computers or any mobile devices upon which or through which the Services are used and/or installed.

“Infrastructure” means the technical systems, hardware and all connected devices of GunTRAC or its third Party suppliers.

“Order” means the agreement to subscribe to Services as between Subscriber and GunTRAC.

“Services” means the various services and components thereof, the Software, any documentation both on- and offline, as well as any modifications, derivatives, updates or upgrades as may be offered by GunTRAC from time to time, and which are subscribed to by the Subscriber via a Subscription. A Subscriber may choose to subscribe to one or more Services under his or her Subscription as may be offered by GunTRAC from time to time.

“Software” means any downloadable client software which is provided solely for the purpose of accessing the Services.

“Subscriber” means an individual or entity (including, but not limited to, that entity’s firm, company, partners, associates, employees, agents and servants) to which Services are provided by and as agreed to by GunTRAC.

“Subscription” means the non-exclusive, non-transferable right to use the Services as ordered by Subscriber, subject to the terms of this Agreement and the full and timely payment of the Subscription Fees.

“Subscription Fees” means the fees payable in respect of an Order.

  1. SUBSCRIPTION: Subject to the terms and conditions of this Agreement, Subscriber may use the Services only in accordance with any written communication by GunTRAC to Subscriber, including any then-current product documentation as posted on www.GunTRAC.com from time to time. GunTRAC shall make commercially reasonable efforts to provide the Services to Subscriber. This Agreement applies to the Subscriber who uses the Services or that installs, otherwise uses or permits the installation of the Software on one or more Devices as owned, operated or overseen by Subscriber to facilitate the provision of services as provided to Subscriber by GunTRAC. Throughout the Subscription Period, unless terminated in accordance with the terms herein, GunTRAC grants Subscriber the following rights only if Subscriber complies with all of the terms of this Agreement.

The Subscription begins at the time the Subscriber’s Subscription is activated by GunTRAC (other than on a trial basis) and thereafter continues in effect until the date of termination as set forth hereinafter. A Subscription may terminate in whole or in part due to (i) Subscriber’s cancellation or (ii) breach of any of terms of this Agreement including non-payment of any Fees when due or (iii) at GunTRAC’s sole discretion.

Subscription Fees are non-refundable if Subscriber cancels or if the Subscription is terminated for cause. As of the effective date of cancellation or termination Subscriber shall no longer be able and shall have no further right to access or use the particular Services which have been canceled or terminated. All licenses granted hereunder shall be month-to-month licenses and shall self-renew and self-extend from month to month unless and until Subscriber notifies GunTRAC in writing or via email actually received by GunTRAC of Subscriber’s intent to cancel.

Subscription fees shall be chargeable and accrue on or about the same business day of each month until cancellation of this Agreement by either Party. Payment of Monthly Subscription Fees shall be made automatically by means of a charge by GunTRAC against Subscriber’s bank debit or credit card account, and Subscriber agrees to keep said account current and in good standing such that charges against same may be collected; and further, to provide GunTRAC promptly of any change in account number, date of expiration or any other information necessary to ensure uninterrupted processing of said monthly payment. GunTRAC is not obligated to prorate or to refund any accrued Monthly Subscription Fees. Monthly Subscription Fees are due and payable to GunTRAC at its offices in Phoenix, Arizona, on or about the same business day of each month in advance without demand (hereinafter “Due Date”). Any Monthly Subscription Fees that are due and payable to, and not received by, GunTRAC by the Due Date shall be considered delinquent. GunTRAC retains the right to, and shall, terminate Subscriber’s access to the Software in the event that Subscriber is delinquent as defined above. AN ACTIVE SUBSCRIPTION IS REQUIRED IN ORDER TO USE THE SOFTWARE OR TO OBTAIN TECHNICAL SUPPORT, INCLUDING, BUT NOT LIMITED TO, ACTIVATION, RE-ACTIVATION, REGISTRATION OR RE-REGISTRATION AND AUTHORIZED TRANSFER BY SUBSCRIBER OF THE SOFTWARE TO ANOTHER USER, AND TERMINATION OF SUBSCRIBER’S SUBSCRIPTION FOR SERVICES FOR ANY REASON SHALL FORTHWITH SERVE TO DENY ACCESS TO THE SOFTWARE AND THESE SERVICES AS AFORESAID.

  1. GRANT OF RIGHT OF USE: The Software is licensed and not sold. During a Subscription Period and subject to the due payment by Subscriber and receipt by GunTRAC of all due and payable Subscription Fees, GunTRAC grants Subscriber a revocable, limited, non-transferable, non-exclusive license to access the GunTRAC’s “APB360 Cloud Services” and use the Service pursuant to the terms of this Agreement. This Agreement covers any updates, new releases or enhancement(s) of the Services, which GunTRAC may make available to Subscriber from time to time.
  2. ACCOUNT; SECURITY: GunTRAC respects Subscriber’s privacy and the terms of GunTRAC‘s Privacy Policy can be found at www.guntrac.com.To access and use the Services, Subscriber must create an account that is protected by a username and password (hereinafter ”Account”) and Subscriber must keep any passwords and other Account details secret. Subscriber agrees to provide GunTRAC with accurate and complete information when registering for an Account and at all times thereafter. GunTRAC must be promptly notified if changes to Subscriber’s information shall occur.

Subscriber acknowledges and agrees that Subscriber is responsible for providing the following: (i) all equipment, such as a computer and modem, that shall be necessary to access the Internet; (ii) Subscriber’s own access to the Internet; and (iii) payment of all telephone, data or other fees associated with such access.

Subscriber is solely responsible for access to, content in, or sharing and use of its Account. GunTRAC shall not be liable for any loss or damage arising from any access to, content in, or sharing and use of Subscriber’s Account. In the event that Subscriber believes or suspects there has been any unauthorized access to the Account, Subscriber must notify GunTRAC immediately.

  1. SUPPORT: During a Subscription Period, GunTRAC will provide Subscriber with the support described in this paragraph (hereinafter “Support”) on a local office’s business hours basis which shall ordinarily be from 7 AM through 6 PM AZ Time, Monday through Friday. In GunTRAC‘s sole determination, Support shall consist of: (i) telephone or electronic support to Subscriber in order to help Subscriber locate and, on Subscriber’s own, correct problems with the Services and/or (ii) supplying extensions, enhancements and other changes that GunTRAC may make to the Services from time to time and which are made publicly available, without additional charge, to other Subscribers of the Services that are entitled to Support.
  2. SUBSCRIBER’S CONDUCT; CONTENT OF DATA: Subscriber must comply at all times with any and all applicable local, state, federal and international laws and treaties.

Subscriber warrants that it has obtained sufficient consent and rights (i) to access any third Party’s or End User’s systems or networks, and (ii) to access, use and store all data and files on the Infrastructure or otherwise use via the Services such data and files. Subscriber acknowledges that GunTRAC has no knowledge of, and is in no way responsible for, any of the content of Subscriber’s data or files.

  1. DATA PROTECTION: Each Party shall comply with its respective obligations under applicable data protection laws. Neither Party shall do any act that puts the other Party in breach of its obligations as per this Section, nor shall anything in this Agreement be deemed to prevent any Party from taking any action it reasonably deems necessary to comply with data protection laws. Subscriber agrees that during the course of this Agreement: (i) with respect to data Subscriber collects, accesses or otherwise uses, Subscriber alone shall determine the purposes for which and the manner in which such data are, or will be, processed; and (ii) Subscriber is the data controller with respect to all such data Subscriber may process. GunTRAC shall at all times be in accordance with the requirements of data protection laws and Subscriber shall fully indemnify and hold GunTRAC harmless as against any loss, damages, liability and costs (including attorney’s fees) incurred by GunTRAC as a result of any breach of data protection laws by Subscriber.

GunTRAC shall comply with requests for information from legitimate judicial, legal or regulatory authorities or pursuant to any court order or subpoena, discovery request or other lawful process that GunTRAC may receive. GunTRAC may comply with these subpoenas or court orders with or without notice to Subscriber.

  1. RESTRICTIONS: Except as otherwise expressly provided under this Agreement, Subscriber shall have no right and Subscriber shall not permit any third Party to: (i) harm, disrupt or otherwise engage in activity that diminishes the GunTRAC or APB360 brand, Services, or Infrastructure; (ii) use the Services in a manner that shall result in excessive bandwidth or storage or shall exceed the Permitted Usage as solely determined by GunTRAC; (iii) transfer, assign or sublicense the limited rights granted to Subscriber in this Agreement to any other person or entity, or use the Services other than as authorized, and any such attempted transfer, assignment, sublicense or unauthorized use shall be void; (iv) make error corrections to or otherwise modify or adapt the Services or decompile, decrypt, disassemble, reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Services or of any files contained or generated using the Services by any means whatsoever or otherwise reduce the Services to human-readable form, except to the minimum extent expressly permitted under applicable law notwithstanding this restriction; or (v) attempt to alter, circumvent or provide the method or means to circumvent any disabling mechanism in the Services; or (vi) use the Services in any manner not expressly authorized herein; or (vii) alter, remove or fail to reproduce any proprietary notices from the Services; or (viii) misrepresent any person or entity’s identity, impersonate any person or attempt to gain access to any Account, the Infrastructure or the networks or property of any third person, without authorization.
  2. SERVICE UPDATES: GunTRAC agrees to provide to Subscriber from time to time such software updates as it deems necessary and appropriate in order to provide the most optimal Services to Subscriber. Such updates shall be provided to Subscriber at no additional charge.
  3. INTELLECTUAL PROPERTY RIGHTS: The Services are protected by world-wide copyright, trademark, patent and other intellectual property laws and treaties and belong to GunTRAC, its licensors and any applicable GunTRAC agent and third-Party contractor. Subscriber acknowledges (i) that rights in the Services are licensed and not sold to Subscriber; (ii) that Subscriber shall have no rights or title in or to the Services other than the right to use them in accordance with the terms of this Agreement; and (iii) that Open Source and/or third-Party software may be incorporated into the Services provided by GunTRAC. GunTRAC, its licensors and any applicable third Parties, own all title, copyright and other intellectual property rights in and to the Services. The Services, in all formats existing, are a trade secret of and proprietary to GunTRAC, its suppliers and/or licensors, including but not limited to, the specific internal code, design and structure of individual programs and software, the display and associated interface information. Subscriber shall not disclose the confidential aspects of the Services to unauthorized third Parties.
  4. THIRD PARTY COMPONENTS: Part of the Services may incorporate third Party proprietary services and/or software. If and to the extent such third Party services and/or software are an integral part of the Services, such third Parties shall be deemed GunTRAC Agents and the terms of this Agreement shall apply to such GunTRAC Agents. If and to the extent Subscriber contracts independently with independent third Parties, the terms of such third Party contract shall apply to the relationship between Subscriber and such independent contractor and GunTRAC shall have no liability with respect thereto. In addition, part of the Services may incorporate and consist of third Party open source software (hereinafter “Open Source”), which Subscriber may use under the terms and conditions of the specific license under which the Open Source software is distributed. Subscriber agrees that Subscriber will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s). Any Open Source software provided with or contained in the Services is provided AS IS and without any warranty of any kind.
  5. DISCLAIMER OF WARRANTIES: THE SERVICES ARE PROVIDED TO SUBSCRIBER ON AN AS IS AND ON AN AS IS AVAILABLE BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS WARRANTY AND THE REMEDIES HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMIEDIES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WARRANTIES FOR LATENT OR HIDDEN DEFECTS. GunTRAC DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. FURTHERMORE, GunTRAC DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES PROVIDED WITH RESPECT TO CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IF THIS EXCLUSION IS NOT PERMITTED BY LAW, GunTRAC LIMITS ANY EXPRESS, STATUTORY OR IMPLIED WARRANTIES AS TO DURATION TO THE EXTENT OF THIS LIMITED WARRANTY AND THE REPAIR OR REPLACEMENT REMEDY AS DETERMINED BY GunTRAC IN ITS SOLE DISCRETION.
  6. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GunTRAC OR GunTRAC’s AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, UNDER ANY THEORY OF LAW OR FAULT OF GunTRAC OR ANY OF GunTRAC’s AGENTS, AND EVEN IF GunTRAC OR ANY OF GunTRAC’s AGENTS shall have BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY TO DEATH OR PERSONAL INJURY CLAIMS. GunTRAC EXCLUDES ANY LIABILITY FOR FAILURE TO REPAIR ANY SERVICES. NOTWITHSTANDING THE FOREGOING, THE MAXIMUM LIABILITY THAT GunTRAC SHALL INCUR HEREUNDER SHALL BE LIMITED TO THE ACTUAL PRICE PAID BY SUBSCRIBER FOR THE RESPECTIVE SERVICE FOR THE ONE MONTH PERIOD EMBRACING THE DATE WHEN THE APPLICABLE CLAIM AROSE.
  7. INDEMNIFICATION: Subscriber agrees to indemnify, defend and hold GunTRAC and GunTRAC’s Agents harmless from and against any and all damages, fines, penalties, assessments, liabilities, losses, costs and expenses (including attorney’s fees, expert fees and out-of-pocket expenses) in connection with (i) Subscriber’s use of the Services, (ii) Subscriber’s violation of the terms of this Agreement, (iii) Subscriber’s violation of any third-Party rights, including any intellectual property rights, (iv) Subscriber’s misuse or fraudulent use of credit and debit cards, (v) any claims that the Services or any Party thereof were exported or otherwise shipped or transported by Subscriber in violation of applicable laws, rules and regulations, or (vi) any claim of misuse of the Services, including, but not limited to, any claim that Subscriber is storing illegal files or data in Subscriber’s Account.
  8. EFFECT OF TERMINATION: Without prejudice to any other rights, GunTRAC may suspend or terminate, in part or in whole, without notice, Subscriber’s use of the Services and this Agreement if Subscriber does not abide by its terms, or in GunTRAC’s sole discretion in which case Subscriber must cease all use of the Services. Sections 6, 7, 8, 10, 11, 12, 13, 14, 16, 17, 18, 19 and 20 shall survive any termination of this Agreement.
  9. ENTIRE AGREEMENT: This Agreement (as may be amended from time to time) is the entire agreement between Subscriber and GunTRAC relating to the Services and the Support Services and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or Support services. To the extent the terms of any GunTRAC Terms of Use, policies or programs conflict with the terms of this Agreement, the terms of this Agreement shall prevail and control. In addition, the terms set out in this Agreement shall prevail and control over any and all additional or conflicting terms or provisions contained in any document of Subscriber’s, whether set out in a purchase order or alternative license, and any and all such additional or conflicting terms shall be void ab initio and shall have no effect. If this License is translated into a language other than English and there are conflicts between the translations, the English version shall prevail and control.
  10. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable then the provision shall be severed and the other provisions shall remain in full force and effect. Venue for any cause of action arising under or, in connection with, this Agreement shall be Maricopa County, Arizona, for state law matters and the District of Arizona, Phoenix, Arizona, for federal law matters.
  11. TAXES: Any sales, use, value added or other taxes (including applicable withholding taxes), shall be borne by the Subscriber. Accordingly, Subscriber shall pay or, if paid by GunTRAC, shall reimburse GunTRAC for all such taxes based on this License or any fees payable hereunder (but not any taxes based upon GunTRAC’s revenues or income), together with any interest and penalties on such taxes if not due to GunTRAC’s delay.
  12. EQUITABLE RELIEF: The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof (without any requirement to post bond or guarantee), in addition to any other remedy to which they are entitled at law or in equity.
  13. MISCELLANEOUS: The delay or failure of GunTRAC to exercise any right provided in this Agreement shall not be deemed a waiver of that right. This Agreement may not be amended by Subscriber, but GunTRAC may amend this Agreement from time to time and shall post any amended Agreement on its website at guntrac.com. This Agreement constitutes the entire understanding between the Parties with respect to the subject matter of this Agreement and supersedes all written and oral prior agreements, negotiations and discussions between the Parties relating to it. This Agreement is for the sole benefit of GunTRAC and Subscriber and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. If any provision of this Agreement shall be held to be illegal, void or unenforceable by any court of competent jurisdiction or by arbitral tribunal, such provision shall be of no force and effect and shall not impair the enforceability of any other provision of this Agreement and the Parties agree that the relevant provision shall be deemed replaced by such provision which is binding and enforceable and which differs as little as possible from the non-binding and/or non-enforceable provision, taking into effect the object and purpose of this Agreement. The remedies of the Parties under this Agreement are cumulative and will not exclude any other remedies to which the respective Party may be lawfully entitled. All notices must be in writing and shall be mailed by registered or certified mail (effective on the third day following the date of mailing), or sent via email to legal@guntrac.com (with evidence of effective transmission). All notices must be addressed to GunTRAC, 23011 N 16th Ln., Phoenix, Arizona 85027. Subscriber may not assign, pledge or otherwise transfer this Agreement, or any rights or obligations hereunder in whole or in part to any other entity. Paragraph headings are for convenience and shall have no effect on interpretation. Third-Party software shall be exclusively subject to the terms and conditions between the Third-Party software provider and Third-Party software Customer. GunTRAC shall have no liability for Third-Party software.

 

 

©2017 GunTRAC LLC Version 2.3.0 July 2017

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