End User License Agreement
ON TRACK TECHNOLOGIES INCORPORATED
End User License Agreement
THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEEMENT BETWEEN ON TRACK TECHNOLOGIES INCORPORATED AND YOU THE USER. THIS EULA APPLIES TO YOUR USE OF THE MOBILE APPLICATON (“APP”) PROVIDED BY COMPANY. PLEASE REVIEW THESE TERMS CAREFULLY BEFORE USING THE APP. DOWNLOADING OR USING THE APP INDICATES THAT YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED THIS EULA AND AGREE TO BE BOUND TO THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT DOWNLOAD OR USE THE APP.
As used in this EULA, “Company,” “and “the Company” or “we” or “us” refer to On Track Technologies Incorporated, a Delaware corporation. “Client” refers to the organization or other company that has executed a separate customer agreement for use of the Company’s On Track Service, including use by its authorized users. The App is authorized for use by you only as an authorized user of a Client.
Subject of this Agreement – ON TRACK SERVICE
The On Track Service allows our Clients to collect, process and exchange data from Client’s disparate databases, devices and applications, including devices or applications that may be used by its authorized users. The On Track Service enables our Clients to monitor use of its devices by authorized users and to push alerts, notifications and other information to its users through the On Track Service. By using the App, you consent to receiving electronic communications, including email and text messages, from us or our Client in relation to the App, On Track Service or Client services.
You may only use the App as authorized by a Client and for the purposes of performing services for or utilizing products of such Client. By downloading and using the App you represent and warrant that you are an authorized user of the Client. In order to use the App, you will need a User ID and Password or other login credentials (“Log-In Credentials”) that have been validly issued by us or the Client. You are responsible for maintaining the confidentiality of your Log-In Credentials and all use of the App using your Log-In Credentials. You will immediately notify Company and the applicable Client of any unauthorized use or disclosure of your Log-In Credentials, unauthorized use of the App or any other breach of security of which you become aware.
All user information provided by you to Company or through the App shall be current, accurate, and complete. If Company at any time discovers any error or omission in the information you have provided, Company may, in its discretion, terminate your right to access and use the App.
Patient Data and Legal Compliance
If the App is enabled to allow users to transmit, store, manage, or receive confidential patient information (“Patient Information”), state and federal laws, including but not limited to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and the Privacy Rule and Security Rule enacted pursuant to HIPAA, may govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of the Patient Information (“Privacy Laws”). You represent and warrant that you will comply with all applicable Privacy Laws and other laws, rules and regulations relating to your use of the App and Service. You agree that Company shall have the right to monitor, retrieve, store and use Patient Information in connection with the operation of the App and On Track Service and that Company’s use of the Patient Information shall be governed by that separate agreement between Company and Client and any applicable Business Associate Agreement.
Intellectual Property, License; Use Restrictions
All intellectual property rights, including copyright, patent rights and trade secret rights, associated with the App and On Track Service and any other Company products, including their overall look and feel, content and underlying technology, are the sole and exclusive property of Company. You shall have the limited license to use the App solely in connection with your performance of services for the Client or use of a Client product or service. Except for this limited license, use of the App does not create any licenses or other rights in our intellectual property. Except as stated herein, the App may not be reproduced, modified, sublicensed, distributed, republished, or transmitted in any form or by any means without the prior written permission of Company. You may not access or attempt to access the source code or software underlying the App or On Track Service or use the App or On Track Service for benchmarking or other competitive purposes.
The On Track trademark and logo and any other trademarks, service marks or product or service names, marks or logos used by us on the App or otherwise in connection with our products (the “Trademarks”) are the trademarks of Company. Nothing in these terms should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark of Company without the written permission of Company.
Availability; Disclaimer of Warranty
We may from time to time update the App to correct errors or bugs, improve the performance or functionality of the App or On Track Service or for other reasons. Such updates may change or modify the features or functionality or interface of the App, and you hereby accept all such updates. Nothing in this EULA will obligate Company to provide any maintenance of support or updates to you. You understand and agree that Company shall have no liability to you for any unavailability of or modifications to the App and that any availability commitments or support and maintenance requirements shall be governed by the customer agreement between Company and its Client or the separate agreement between you and the Client.
COMPANY MAKES NO WARRANTIES REGARDING THE APP OR ON TRACK SERVICE, AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE APP AND ON TRACK SERVICE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COMPATIBILITY OR SECURITY. COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF THE APPLICATION AND ON TRACK SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE APPLICATION OR ON TRACK SERVICE WILL BE CORRECTED, OR THAT THE APP AND ON TRACK SERVICE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. COMPANY DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION
PROVIDED BY THIRD PARTIES.
THE APP IS NOT DESIGNED FOR EMERGENCY USE. IF YOU ARE EXPERIENCING AN EMERGENCY, HEALTH CRISIS OR OTHER IMMEDIATE SAFETY HAZARD, YOU SHOULD CALL 911 OR OTHER EMERGENCY SERVICES.
Limitation of Liability
Your sole remedy for any failure of any part of the App or dissatisfaction with or error on the App is to cease using the App. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL COMPANY BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO USE, THE APP OR SERVICE, EVEN IF COMPANY OR AN COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. YOU UNDERSTAND AND AGREE THAT DAMAGES IF ANY WILL BE GOVERNED BY THE CUSTOMER AGREEMENT BETWEEN THE CLIENT AND COMPANY, or by the separate agreement between you and the Client.
If you are using this App as an authorized employee of a Client, you agree that the applicable customer agreement between the Company and Client governs use of the On Track Service. If you are using this App in connection with a device or other product provided to you by a Client, you agree that your use of the App and device is subject to the agreement between you and the Client and that the Company shall have no liability to you for use of such Client device or product or Client’s provision of any services or products to you.
The term of this EULA shall begin with your download of the App and shall continue for so long as you are authorized to use the App under the customer agreement between Company and the Client. You understand and agree that Company may terminate your use and access of the App upon any breach by you of the terms of this EULA or as set forth in the applicable customer agreement.
This EULA shall be governed by the laws of the United States of America and state of North Carolina. The parties agree that any dispute involving Company related to this EULA, the App or the On Track Service that cannot be settled by good faith negotiation shall be submitted to arbitration in accordance with the rules of the American Arbitration Association. The location of the arbitration shall be Raleigh, NC. The decision of the arbitrator shall be legally binding and shall be enforceable in any court of competent jurisdiction.
You shall not have the right to assign this EULA or your rights to use the App.
If you are accessing the App on a device provided by a third party application store or an application obtained through a third party application market (such as the App Store or Play Store), the following shall apply: (a) Both you and Company acknowledge that this EULA are concluded between you and Company only, and not with such third party application market provider (“App Market”), and that such third party App Market is not responsible for the App or the content therein; (b) The App is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the On Track Service, subject to all the terms and conditions of this EULA, as they are applicable to the App; (c) You will only use the App in connection with such third party device that you own or control and as permitted by this EULA and any applicable third party agreement; (d) Both you and Company acknowledge and agree that the App Market has no obligation whatsoever to furnish any maintenance and support services with respect to the App; (e) In the event of any failure of the App to conform to any applicable warranty, including those implied by law, you may notify such App Market of such failure, and such third party will refund the purchase price for the App to you; and to the maximum extent permitted by applicable law, such App Market will have no other warranty obligation whatsoever with respect to the App; (f) Both you and Company acknowledge that, as between Company and the App Market, Company, or the Client, not such App Market, is responsible for addressing your claims or the claims of any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; (g) Both you and Company acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Company, and not the App Market, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim; (h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties; (i) Both you and Company acknowledge and agree that, in your use of the App, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and (j) Both you and Company acknowledge and agree that the App Market and its subsidiaries are third party beneficiaries of these terms, and that upon your acceptance of these terms, such App Market will have the right (and will be deemed to have accepted the right) to enforce these terms against you as the third party beneficiary hereof. Additionally, the App Market’s trade and service marks, logos, including Apple, the Apple Logo, iPhone, iPad, Android and Google are property of the applicable third party and not Company.
Version No. 1
Last Updated: February 12, 2021