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End-User Terms of Service Version 1, November 2006 Copyright (C) 2006 Ayantra, Inc. 47873 Fremont Blvd, Fremont, CA 94538, USA 1. Acceptance of Terms: Welcome to the AutoVantage GPS service provided by Ayantra Inc. ("Ayantra"). This service is provided to you subject to the following Terms and Conditions ("T&C"). Ayantra may change or update the T&C from time to time without notice to you. Ayantra is only willing to provide the service to you upon these T&C and your activation of the service will signify your agreement to be bound by these T&C. In addition, when using particular Ayantra provided services, you shall be subject to any posted guidelines or rules applicable to such services that may be posted from time to time. 2. Description of Service(s): In consideration of service use fees, the Service currently allows users to: (i) locate; (ii) control; and (ii) receive notifications about assets vehicles that have been fitted with particular service compatible devices (the "Service"). Unless explicitly stated otherwise, any new features that augment or enhance the Service, including the release of new Ayantra Services, shall be subject to the T&C. You understand and agree that the Service is provided "AS-IS" and that Ayantra assumes no responsibility for the timeliness, deletion, miss delivery or failure to store any user communications or personalization settings. Specifically delays caused by third-party text messaging service providors over which Ayantra has no control. Text messages communications provide a communications link between the vehicle and the network and may be subject to delays caused by, but limited to, message traffic volume, weather conditions, scheduled and non-scheduled maintenance and priority transmission of which Ayantra has no control. In order to use the Service, you or the third-party who sold you your Ayantra enabled device must pay Service use fees (some products include the applicable fees in their sales price) in order for you to register for the Service. Service fees are pre-paid for set terms (usually one to three years) and your cancellation prior to the end of a term will not entitle you to a refund of any pre-paid fees. The Service is not available everywhere and may be subject to signal limitations based on topography, buildings and atmospheric conditions. To the extent such limitations occur, Ayantra will not be responsible for any resulting interruption in the Service or for any damages whatsoever. You must have access to the Internet to use, or access, all of the features of the Service. You are responsible for paying any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web. A limited level of the Service is also useable by text messaging capabile cell phones. It is strongly suggested that you choose the text messaging plan from your cellular service supplier that affords you the most usage for the most economical price. 3. Your Registration Obligations: In consideration of your use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data"); (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete; and (c) if applicable, provide appropriate notification messages for any event notifications that you set-up on the Service. If you provide any information that is untrue, inaccurate, not current or incomplete, or Ayantra has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Ayantra has the right to suspend your account and refuse any and all current or future use of the Service (or any portion thereof) until such time as your Registration Data can be verified. 4. Ayantra Privacy Policy: Registration Data and certain other information about you is subject to our Privacy Policy. The Ayantra Privacy Policy covers Ayantra's treatment of personally identifiable information that Ayantra collects when you use the Ayantra services. This policy also covers Ayantra's treatment of any personally identifiable information that Ayantra's business partner's share with Ayantra. This policy does not apply to the practices of companies that Ayantra does not own or control, or to people that Ayantra does not employ or manage. 5. Information Sharing & Disclosure: Ayantra will not sell or rent your personally identifiable information to anyone without your permission. Ayantra will send personally identifiable information about you to other companies or people only when: · We have your consent to share the information; · We need to share your information to provide the product or service you have requested; · We need to send the information to companies who work on behalf of Ayantra to provide a product or service to you. · We respond to subpoenas, court orders or legal process; or · We find that your actions on the Services violate the T&C or any of our usage guidelines for specific products or services. 6. Member Account, Password & Security: You will receive a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You understand that a person or entity with knowledge of your password and account may be able to track and/or control your assets connected to the service. You agree to (a) immediately notify Ayantra of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Ayantra cannot and will not be liable for any loss or damage of any nature arising from your failure to comply with this Section 6. 7. Member Conduct: You agree to not use the Ayantra Service to: · Transmit any content, including but not limited to notification messages, that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; · Harm minors in any way; · Transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships; · Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; · Intentionally or unintentionally violate any applicable local, state, national or international law; or · Harass or 'stalk' another Ayantra user. Ayantra and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any notification messages available via the Service. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content. You acknowledge that you may not rely on any content created by Ayantra or submitted to the Service. You acknowledge and agree that Ayantra may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the T&C; (c) respond to claims that any content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Ayantra, its users and the public. You understand that the technical processing and transmission of the Service, including your notifications, commands and the location of your assetsvehicles, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. 8. Indemnity: You agree to indemnify and hold Ayantra, and its subsidiaries dealers, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: notifications you submit for transmission through the Service; your use of the Service to control your asset(s); your connection to the Service; your violation of the T&C; or your violation of any rights of another. AutoVantage GPS tracking devices and supporting and Ayantra Service may not be used to violate the privacy rights of others, or in violation of local, county, state or federal statutes. GPS tracking may be illegal in certain states. In no way will Ayantra, Inc. or its subsidiaries, dealers or partners be held responsible for inappropriate use of these products. IT IS THE SOLE RESPONSIBILITY OF THE BUYER TO CONSULT LEGAL COUNSEL FOR THE INTERPRETATION OF ANY LAWS APPLICABLE TO THE AREA OF INTENDED USE OF THESE PRODUCTS. AutoVantage GPS products and Ayantra Service are mutually exclusive in their respective functions and activities and as such do not affect the customer’s financial responsibility to make payments for AutoVantage GPS product and/or Ayantra Service. AutoVantage GPS products and/or Ayantra Services provide vehicle location features, but are no substitute for a comprehensive vehicle insurance policy. THIS SERVICE IN NO WAY IS A REPLACEMENT AUTOMOBILE INSURANCE. 9. No Resale of Service: You agree not to reproduce, duplicate, copy, sell, resell or exploit for a commercial purposes, any portion of the Service, use of the Service, or access to the Service, without the sole written consent of Ayantra. 10. General Practices Regarding Use & Storage: You acknowledge that Ayantra may establish general practices and limits concerning use of the Service, including without limitation the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that Ayantra has no responsibility or liability for the deletion or failure to store any notifications and other communications or other content maintained or transmitted by the Service. You acknowledge that Ayantra reserves the right to log off accounts for which Service use fees are not timely paid. You further acknowledge that Ayantra reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice. 11. Modifications to Service: Ayantra reserves the right at any time and from time to time to modify or temporarily suspend the Service (or any part thereof) with or without notice. You agree that Ayantra shall not be liable to you or to any third party for any modification or suspension of the Service. 12. Termination: You agree that Ayantra, at its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, and remove and discard any content within the Service, if Service use fees are not timely paid or if Ayantra believes that you have violated or acted inconsistently with the letter or spirit of the T&C. You agree that any termination of your access to the Service under any provision of this T&C may be effected without prior notice, and acknowledge and agree that Ayantra may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Ayantra shall not be liable to you or any third-party for any termination of your access to the Service according to the T&C. 13. Dealings with Advertisers: Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, 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 Ayantra 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 Service. 14. Links: The Service may provide, or third parties may provide, links to other Internet and/or mobile sites or resources. Because Ayantra has no control over such sites and resources, you acknowledge and agree that Ayantra is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Ayantra shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource. 15. Ayantra's Proprietary Rights: You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Ayantra or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or Software, in whole or in part. 16. Disclaimer of Warranties: YOU EXPRESSLY UNDERSTAND AND AGREE THAT: a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. AYANTRA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. b. AYANTRA MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. ALTHOUGH HISTORICALLY RARE, AYANTRA SYSTEMS RELY ON GPS AND CELLULAR NETWORKS, AND BECAUSE THESE NETWORKS MAY FROM TIME EXPERIENCE THE EFFECTS OF, BUT NOT LIMITED TO, SOLAR STORMS, SOLAR FLARES OR SUNSPOTS, WHICH MAY IMPACT THE TIMING OF GPS SIGNALS AND CONSEQUENTIALLY THE SUBSCRIBER’S VEHICLE LOCATION ACCURACY, THESE DISTURBANCES ARE UNUSUAL AND BEYOND THE CONTROL OF AYANTRA OR ANY OTHER AGENCY. AYANTRA CANNOT WARRANT OR BE HELD LIABLE FOR NATURAL OR UNNATURAL DISTURBANCES. SIMIALARLY, TERRESTRIAL CELLULAR SIGNALS MAY ALSO BE AFFECTED BY TERRAIN, BUILDINGS, ATMOSPHERIC ACTIVITY WHICH MAY PRODUCE ANOMULOUS PROPAGATION AND CAUSE THE INTERMITTENANT ABSENCE, DELAY OR DELETION OF TEXT MESSAGES. c. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AYANTRA OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE T&C. In the unusual event that a customer’s tracking device becomes inactive for any reason, it is the customer’s responisibility to have the unit repaired as quickly as possible. The out of service time does not constitute an extended hardware warranty in its own right nor does it absove the customer of their financial responsibility for their subscription. Due to the secure nature of the Ayantra Service all attempts will be made to repair AutoVantage GPS products as soon as possible whether in or out of warranty. 17. Limitation of Liability: YOU EXPRESSLY UNDERSTAND AND AGREE THAT AYANTRA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF AYANTRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. TO THE EXTENT POSSIBLE UNDER APPLICABLE LAW, AYANTRA'S DIRECT DAMAGES FOR ITS BREACH OF ANY OBLIGATIONS UNDER THE T&C SHALL BE ABSOLUTELY LIMITED TO THE AMOUNT OF FEES PAID BY YOU FOR THE SERVICE. 18. Exclusions & Limitations: SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 16 AND 17 MAY NOT APPLY TO YOU. 19. Trademarks: Ayantra, the Ayantra logo, service marks, and other Ayantra logos and product and service names are trademarks and service marks of Ayantra Inc. Without Ayantra's prior permission, you agree not to display or use in any manner, the Ayantra trademarks and service marks. 20. General Information: The T&C constitutes the entire agreement between you and Ayantra and governs your use of the Service, superceding any prior agreements between you and Ayantra. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The T&C and the relationship between you and Ayantra shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Ayantra agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Francisco, California. The failure of Ayantra to exercise or enforce any right or provision of the T&C shall not constitute a waiver of such right or provision. If any provision of the T&C is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the T&C remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the T&C must be filed within one (1) year after such claim or cause of action arose or be forever barred.
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