Article I—Acceptance of Agreement
1.1 Use of the Site indicates that you have read and accept the Agreement. If you do not accept the Agreement, you are not authorized to use the Site. The Agreement governs your use of the Site, any content, including without limitation, text, data, information, magnetic translation, digital conversion, software, scripts, graphics, photographs, design, sounds, music, videos, interactive features, and the design, information, and organization thereof (“Materials”) that may be available through the Site and any services that may be provided through the Site (“Services”). (The Site, Materials, and Services collectively referred to as the “excelltelematics.com Website”).
1.2 Any Materials submitted to the excelltelematics.com Website will be considered non-confidential and non-proprietary. The excelltelematics.com Website can copy, disclose, distribute, incorporate, or use any Materials. Any Materials provided or posted in violation of any laws may be monitored, captured, recorded, or transmitted to law enforcement authorities based on the discretion of Excell Telematics, Inc.
1.3 Any business dealings with advertisers or classified advertisers (collectively “Advertisers”) found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such Advertiser. You agree that Excell Telematics, Inc. shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such Advertisers on the Site.
Advertiser is responsible for disclosing prior rental and demonstrative history, damage, salvage history, stolen-recovery history, and any material cosmetic or mechanical damage defect or irregularity of the Product. It is Advertiser’s sole responsibility to ensure that the Product meets all local state and federal emission and safety standards applicable for the model and year of the Product.
It is your responsibility to read the descriptions of the Products posted on Site (“Products”) provided by the Advertiser and to physically inspect the Product prior to completing your purchase(s). A copy of any written warranty may be requested before you complete the purchase of the Product(s). It is your responsibility to verify and understand the terms of the warranty being offered for the Product you are considering before you complete the purchase. Further, you should ask for a copy of the written return policy before you complete the purchase or lease of a Product. It is your responsibility to verify and understand the terms of the return policy being offered for the Product(s) you are considering before you complete the purchase. It is your responsibility to the know the amount and nature of any deposit you are being asked to make or fees being charged to you as part of the Product purchases(s).
Excell Telematics, Inc. does not guarantee Product prices or availability. All transactions are conducted by Advertisers. All Product descriptions and prices provided to you on, or via separate contract with Advertiser, are made by the participating Advertiser possessing the described Product and not Excell Telematics, Inc.. All Products are subject to prior sale and may not be available when your request or inquiry is processed or received by an advertiser. All prices and terms are valid on date of publication only.
Absent a specific agreement between you and the Advertiser, the Advertiser is not required to hold any Product off the market and is free to sell any Product at any time before you have executed the contract to purchase such Product. The act of submitting a purchase request through Site does not place a hold on any specific Product in an Advertiser’s inventory. A monetary deposit made by you to the Advertiser is not a guarantee that a specific Product will be available for you to purchase unless you and the Advertiser specifically agree to such term. It is your responsibility to confirm with the Advertiser that the Product will be held off the market until you can complete the purchase. Whether your deposit is refundable or not is subject to your contractual agreement with the Advertiser and/or state law. You should not assume a deposit made by you towards the purchase or lease of a Product is fully refundable.
1.4 The excelltelematics.com Website is marketed for and directed towards use and purchase by adults or with the consent of adults. Minors, defined as individuals under 18 years of age, are not authorized or permitted to use the excelltelematics.com Website without the supervision of their parent or legal guardian. Should Excell Telematics, Inc. learn that someone under 18 years of age has provided any personal information to Excell Telematics, Inc. or on the excelltelematics.com Website, Excell Telematics, Inc. will remove that information as soon as possible.
2.1 At any time, Excell Telematics, Inc. may make changes, modifications, alterations, or updates to the Agreement (“Additional Terms”). When these changes are made, an updated version of the Agreement will be posted on the Site or otherwise made available to you as provided in the Agreement.
2.2 You agree that Excell Telematics, Inc. may provide you with notices, including those regarding the Additional Terms, by email, regular mail, or postings on the Site.
2.3 You understand and agree that if you use the excelltelematics.com Website after the date on which the Agreement has been changed, Excell Telematics, Inc. will treat your use of the excelltelematics.com Website as acceptance of the Agreement and the Additional Terms. If you object to any such changes, your sole recourse shall be to cease using the excelltelematics.com Website.
2.4 You understand that you should check the Agreement regularly for changes.
Article III—intellectual property
3.1 You acknowledge and agree that Excell Telematics, Inc. (or Excell Telematics, Inc.’ licensors) owns all legal right, title and interest in and to the excelltelematics.com Website, including any intellectual property rights which subsist in the excelltelematics.com Website (whether those rights happen to be registered or not, and wherever in the world those rights may exist) and protected under United States laws.
3.2 You acknowledge and agree that all Materials are either owned or licensed to Excell Telematics, Inc. and are subject to copyright, trademark rights, and other intellectual property rights of Excell Telematics, Inc. or Excell Telematics, Inc.’ licensors. You may not copy, reproduce, publish, transmit, sell, license, modify, publicly display, publicly perform, upload, post, transform, distribute, or otherwise exploit the Materials without the prior written consent of Excell Telematics, Inc.. There is no express or implied right to you under any patents, copyrights, trademarks, or trade secret information. Other rights may be granted to you by Excell Telematics, Inc. 1) in writing or 2) through incorporation of these rights elsewhere in the Materials. Further, any Materials provided by users may be removed if they violate copyright, trademark, or other laws.
3.3 You grant Excell Telematics, Inc. a nonexclusive, royalty free, perpetual, fully transferable, worldwide license to any data, remarks, suggestions, ideas, graphics, photographs, text or other information communicated by you to Excell Telematics, Inc. through email or through using the Site. Excell Telematics, Inc. is not required to treat such communications as confidential. You acknowledge and agree that Excell Telematics, Inc. is not liable for any ideas, including without limit, product, service, or advertising ideas, communicated by you to Excell Telematics, Inc. and Excell Telematics, Inc. will not incur any liability as a result of any similarities that may appear in future products, services, or operations.
3.4 You agree not use any meta-tags, keywords or any other “hidden text” utilizing any name, trademark, product, or service name contained within the excelltelematics.com Website, including without limitation confusingly similar variations thereof, without the prior written consent of Excell Telematics, Inc. or Excell Telematics, Inc.’ licensors.
3.5 You agree that the look and feel of the excelltelematics.com Website (including all page headers, custom graphics, button icons, and scripts) is the service mark, trademark, and/or trade dress of Excell Telematics, Inc. and may not be copied, imitated, or used (in whole or in part) without the prior written consent of Excell Telematics, Inc..
3.6 You shall not create links to the excelltelematics.com Website from other websites without the express written consent of Excell Telematics, Inc..
3.7 Users providing Materials protected under copyright, trademark, or other laws may be terminated from the Site. Any claims of copyright or trademark infringement against any users may be directed to Excell Telematics, Inc. Inc., 6965 El Camino Real Carlsbad, CA 92009, or sent by email to firstname.lastname@example.org.
Article IV—third-party sites, products, services
4.1 The excelltelematics.com Website may contain links, resources, or produce search results that reference links to third party websites (“Third-Party Sites”). Excell Telematics, Inc. may have no control over, and assumes no responsibility for any websites or resources that are provided by the Third-Party Sites, or the content, privacy policies, or practices of any of these third-Party Sites.
4.2 You acknowledge and agree that Excell Telematics, Inc. is not responsible for the availability of any Third-Party Sites, and does not endorse any advertising, products or other materials on or available from the Third-Party Sites. Excell Telematics, Inc. does not endorse the content of any Third-Party Site, nor does Excell Telematics, Inc. warrant that a Third-Party Site will be free of computer viruses or other harmful code that can impact your computer.
4.3 You acknowledge and agree that Excell Telematics, Inc. is not liable for any loss or damage which may be incurred by you as a result of the availability of the Third-Party Sites, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such Third-Party Sites.
Article V—term and termination
5.1 Excell Telematics, Inc. may terminate, suspend, or modify your access to all or part of the excelltelematics.com Website, without notice, at any time and for any reason.
5.2 You may discontinue your participation in and access to the excelltelematics.com Website at any time.
5.3 Excell Telematics, Inc. reserves the right at any time to terminate or suspend your access to the excelltelematics.com Website if you engage in activities Excell Telematics, Inc. concludes, in its sole and absolute discretion, a breach of the Agreement. Your authorization to use the excelltelematics.com Website automatically terminates upon Excell Telematics, Inc.’ determination of your breach of any term of the Agreement.
Article VI—online conduct
6.1 As a condition to your use of the excelltelematics.com Website, you agree not to use the excelltelematics.com Website:
- in a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law (each a “Law”);
- to stalk, harass, threaten, or harm another individual;
- to provide libelous or defamatory Material;
- to provide obscene or pornographic Material;
- to impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
- to interfere with, disrupt, or otherwise use the excelltelematics.com Website in a manner that could disable, overburden, or impair the excelltelematics.com Website or interfere with any other user’s access to or use of the excelltelematics.com Website, servers or networks connected to the excelltelematics.com Website;
- to use any data mining, robots, or similar data gathering or extraction methods in connection with the excelltelematics.com Website;
- to attempt to gain unauthorized access to any Materials, information, or portion of the excelltelematics.com Website or any other accounts, computer systems, or networks connected to the excelltelematics.com Website that Excell Telematics, Inc. has not intentionally made available to you on the excelltelematics.com Website whether through hacking, password mining, the use of web crawlers, bots or spiders, or any other means; or,
- to transmit materials through the excelltelematics.com Website that you know or should know contain viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programs or scripts that are intended to damage, detrimentally interfere with, intercept, or extract any system, data or personal information.
6.2 In certain circumstances, registration may be required in conjunction with the use of sections of or offerings from the excelltelematics.com Website. You agree that, if registration is requested, you will provide Excell Telematics, Inc. with complete and accurate registration information. You agree to register using your legal name and accurate information and that you are responsible for preventing unauthorized use of the excelltelematics.com Website.
7.1 NOTHING IN THE AGREEMENT SHALL EXCLUDE OR LIMIT EXCELL TELEMATICS, INC.’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. NOTHING IN THE AGREEMENT SHALL AFFECT ANY STATUTORY RIGHTS WHICH YOU ARE ALWAYS ENTITLED TO AS A CONSUMER AND THAT YOU CANNOT CONTRACTUALLY AGREE TO ALTER OR WAIVE.
7.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE excelltelematics.com WEBSITE IS AT YOUR SOLE RISK AND THAT THE excelltelematics.com WEBSITE IS PROVIDED “AS IS” AND “AS AVAILABLE.”
7.3 IN PARTICULAR, EXCELL TELEMATICS, INC. DOES NOT REPRESENT OR WARRANT TO YOU THAT:
- YOUR USE OF THE excelltelematics.com WEBSITE WILL MEET YOUR REQUIREMENTS;
- YOUR USE OF THE excelltelematics.com WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR;
- YOUR USE OF THE excelltelematics.com WEBSITE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS;
- ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE excelltelematics.com WEBSITE WILL BE ACCURATE ORRE.IABLE; AND,
- THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY MATERIALS OR SERVICES PROVIDED TO YOU AS PART OF THE excelltelematics.com WEBSITE WILL BE CORRECTED.
7.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE excelltelematics.com WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
7.5 No advice or information, whether oral or written, obtained by you through the excelltelematics.com Website or from EXCELL TELEMATICS, INC. (or the officers, directors, employees, or agents thereof) (collectively, “EXCELL TELEMATICS, INC. Parties”) shall create any warranty NOT EXPRESSLY PROVIDED FOR IN THE AGREEMENT.
7.6 EXCELL TELEMATICS, INC. FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND ARISING BY COURSE OF DEALING OR TRADE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
7.7 SUBJECT TO OVERALL PROVISIONS PROVIDED IN THIS ARTICLE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT EXCELL TELEMATICS, INC. SHALL NOT BE LIABLE TO YOU FOR:
- ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY FAILURE OR UNAVAILABILITY OF SITE, ANY LOSS OF DATA SUFFERED AND LOSS OF BUSINESS OPPORTUNITIES, CORRUPTION OF STORAGE MEDIA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; AND,
- ANY LOSS OR DAMAGE THAT MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
- ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE excelltelematics.com WEBSITE; AND,
- ANY CHANGES WHICH EXCELL TELEMATICS, INC. MAY MAKE TO THE excelltelematics.com WEBSITE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE excelltelematics.com WEBSITE (OR ANY FEATURES WITHIN THE excelltelematics.com WEBSITE).
7.8 THE LIMITATIONS ON EXCELL TELEMATICS, INC.’S LIABILITY TO YOU IN SECTION 7.7 ABOVE SHALL APPLY WHETHER OR NOT EXCELL TELEMATICS, INC. HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
Article VIII—PRIVACY/use of information
9.1 You agree to indemnify, defend, and hold harmless Excell Telematics, Inc., as well as its successors, assigns, parents, subsidiaries, affiliated and related corporations, shareholders, members, officers, directors, agents, attorneys and employees, from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys’ fees) that such parties may incur as a result of or arising from your violation of the terms of this Agreement. Excell Telematics, Inc. reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Excell Telematics, Inc.’ defense of such claim.
9.2 Sometimes when you use the Site or the Services, you may (as a result of, or through your use of the Site or the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Agreement does not affect your legal relationship with these other companies or individuals.
9.3 The Agreement constitutes the whole legal agreement between you and Excell Telematics, Inc. and governs your use of the excelltelematics.com Website (but excluding any services which Excell Telematics, Inc. may provide to you under a separate written agreement), and completely replaces any prior agreements between you and Excell Telematics, Inc. in relation to the excelltelematics.com Website. This Agreement may not be amended or supplemented, and Excell Telematics, Inc. reserves the right to make changes to this Agreement at any time without advance notice. It is at all times your responsibility to read the most current form of this Agreement before using the Site to ensure that you agree to the terms and conditions of any amendments made to this Agreement. You agree that these standards for notice of amendments to this Agreement are reasonable.
9.4 Your rights granted under the Agreement, including without limit, the right to use the excelltelematics.com Website, is not transferrable or assignable.
9.5 The Agreement, and your relationship with Excell Telematics, Inc. under the Agreement, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Excell Telematics, Inc. agree to submit to the exclusive jurisdiction of the courts located within the State of California to resolve any legal matter arising from the Agreement. Notwithstanding this, you agree that Excell Telematics, Inc. shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal remedy or relief) in any jurisdiction.
9.6 The failure of Excell Telematics, Inc. to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
9.7 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.
9.8 The section titles or headings in this Agreement are for convenience only and have no legal or contractual effect.
9.9 This Agreement shall remain in full force and effect notwithstanding any termination of your use of the excelltelematics.com Website. The Agreement will be interpreted without application of any strict construction in favor of or against you or any other affiliates.
Effective date: July 1, 2017
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