POLTE SaaS Terms and Conditions of Service
Version Date: November 25, 2019
IMPORTANT! PLEASE READ THIS POLTE SAAS TERMS AND CONDITIONS OF SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RELATIONSHIP WITH POLTE CORPORATION (“POLTE”, “US”, OR “WE”), INCLUDING MANDATORY ARBITRATION OF DISPUTES BETWEEN US, INSTEAD OF CLASS ACTION LAWSUITS OR JURY TRIALS. BY USING, ACCESSING OR PAYING FOR ANY POLTE SERVICES, INCLUDING, BOT NOT LIMITED TO, UPDATES AND UPGRADES THEREOF (COLLECTIVELY “POLTE SERVICES” OR JUST “SERVICES”), YOU WILL BE, AND AGREE TO BE, BOUND BY THIS AGREEMENT.
WHEN YOU ACCEPT THIS AGREEMENT BY DOING ANY OF THOSE THINGS (USING, ACCESSING OR PAYING FOR SERVICES), YOU ARE TELLING POLTE, AND YOU ACKNOWLEDGE AND AGREE THAT YOU ARE OF LEGAL AGE AND HAVE THE CAPACITY TO ENTER INTO THIS AGREEMENT. IF YOU ACCEPT FOR AN ORGANIZATION (FOR EXAMPLE, YOUR EMPLOYER OR AN ORGANIZATION THAT YOU REPRESENT), YOU ARE TELLING POLTE THAT YOU ARE AUTHORIZED TO BIND THAT ORGANIZATION TO THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT, REFERENCES TO “YOU” OR “YOUR” AND OTHER VARIATIONS IN THIS AGREEMENT MAY MEAN AN INDIVIDUAL OR THAT ORGANIZATION. IF YOU DO NOT ACCEPT THESE TERMS OR DO NOT WISH TO ENTER INTO THIS AGREEMENT, YOU MUST NOT USE THE POLTE SERVICES.
Generally: The POLTE SaaS
The POLTE SaaS provides the highly accurate location determination with our CLOC solution. The CLOC technology determines location from data sent by Your POLTE-enabled device to the POLTE cloud. POLTE performs certain functions on the data received from Your POLTE-enabled device, and determines a accurate location delivered to you through a cloud-based Application Programmatic Interface (“API”). The determined location may be displayed to You using a mapping application. You may store the determined locations for as long as You choose. You must pay for use of or access to the POLTE SaaS. You may obtain use of or access to the POLTE SaaS through an enterprise agreement with POLTE, or by selecting a price online at www.polte.com.
In the event that You have opted to perform a limited trial of any POLTE Service, your trial usage is subject to these Terms for the trial period.
You acknowledge and agree that during the trial period, your usage of the POLTE services may have limitations on API Request volume, velocity, and/or data access. If there is a need to increase or remove any limits during a trial period, you may send your request by e-mail to firstname.lastname@example.org.
You are not obligated to use POLTE Services or the POLTE SaaS following your trial period.
When you select a price from available prices available on www.POLTE.com, you will receive a written confirmation from POLTE about the services you will receive from POLTE (e.g. the amount and frequency of usage of the POLTE SaaS) at your electronic notification address(es).
Your Electronic Notification Address(es)
When you select a price on www.POLTE.com, you will be required to provide two electronic notification addresses, as well as a physical address. One of the electronic notification addresses must be a mobile phone number, capable of receiving text (SMS) messages. You acknowledge, consent and agree that POLTE may send you notification text messages to inform you about your usage of Services. You further acknowledge and agree that the information you provide to POLTE, including, but not limited to, your electronic notification addresses will be accurate, and that you will promptly inform POLTE at email@example.com if any of your information, including, but not limited to, your electronic notification addresses, changes.
Use of POLTE Services
Once you pay for, access or use the POLTE Services, whether through an online purchase or as part of a broader written SaaS agreement, and subject to the terms of any such written agreement and these Terms, you acknowledge and agree that:
You may install, embed a POLTE API for use and access to the POLTE SaaS;
You may use a POLTE mobile application to use and access the POLTE SaaS that comprises your online purchase or is part of a written agreement;
You may use any API provided by POLTE corresponding to your online purchase or as part of the written agreement;
You may, subject to the terms of your online purchase or written agreement, in a factually accurate way, market, promote, and otherwise make available your use of the POLTE SaaS to your end customers.
Restrictions on Your Use of the POLTE Services
In connection with any use of the POLTE Services, You agree that You will not (nor authorize any third party to):
Expose, duplicate, modify, decompile, disassemble or otherwise attempt to copy any POLTE Service (including Software or Data);
Change, modify, adapt, translate, reverse engineer, disassemble or decompile any POLTE Service (including Software or Data), or otherwise create derivative works based on the POLTE Service (including Software or Data) made available under these Terms;
Assign, rent, exchange, lend, lease or sublease any Password used to access or use the POLTE Service;
Sell or transfer or assign to another any POLTE Service (including Software or Data) made available to You under these Terms, or any copies thereof;
Conduct load, performance, scalability, concurrent usage and/or any other testing of the POLTE Service. POLTE reserves the right to limit the number and/or frequency of API Requests in its sole discretion or to block, throttle or otherwise restrict any suspected misuse, with or without notice, and You acknowledge and agree that such activities shall be without any liability to POLTE;
Use any POLTE Service (including Software or Data) made available to You under these Terms for competitive purposes such as evaluating performance or functionality without POLTE’s prior written consent.
Use any POLTE Service in violation of applicable law.
Collection, Storage and Use of Data Sent to POLTE
Fees and Payment
Payment. You must pay POLTE directly or indirectly via one our POLTE’s official channel partners within 30 days of receipt of an invoice, or in accordance with your online purchase and must pay via wire transfer, electronic ACH transfer, or check or through the official channel partners supported methods of payment. POLTE or its channel partners may, but are not required to, accept payments by credit or debit card. If POLTE accepts payment by credit or debit card, you acknowledge and agree that POLTE may bill You, and You agree to pay, an additional 4% to cover card fees. All charges are non-refundable and not subject to setoff unless expressly stated otherwise, or otherwise provided by applicable law. Customer is solely responsible for any bank fees, interest charges, finance charges, over-draft charges, or other fees resulting from charges billed by POLTE. You acknowledge and agree that POLTE may utilize the services of third parties to bill and collect payments. In certain circumstances, POLTE may deliver, or cause to be delivered, a manual bill, rather than an automated bill.
Taxes. Fees quoted do not include taxes, and You agree to pay all sales/use, gross receipts, value- added, GST, personal property or other tax (including any interest and penalties) with respect to the transactions and payments under this Agreement, other than taxes based on POLTE’s net income or profits.
Late Payments. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law.
You acknowledge and agree that POLTE may, at its sole discretion and with or without notice to you, take action if your usage of the Services or SaaS noticeably outstrips other users at your price (e.g. your use of the SaaS is in the top 5% of users at your price, or your usage is two standard deviations higher than other users at your price), or if POLTE reasonably believes you have violated this Agreement, up to, and including termination of your Services, use of and access to the POLTE SaaS.
Term. This Agreement shall commence on the Effective Date and continue in effect thereafter until the later of (i) the end of your trial period, or (ii) if there is one or more existing online purchase or written agreement(s) then in effect, upon the expiration of the last to expire of such existing online purchase or written agreement (the “Term”).
Termination. In addition to any termination rights set forth in an online purchase or written agreement, POLTE shall be entitled to immediately terminate this Agreement or suspend any rights granted hereunder upon notice to you in the event that: (i) you breach any material term of this Agreement; (ii) upon your dissolution, liquidation, or the appointment of a receiver, trustee, custodian, or similar agent for the Party’s business or property; or (iii) on 30 days notice to you. In the event that POLTE terminates this Agreement for breach, all amounts due or to become due under this Agreement shall immediately become due and payable.
Effect of Termination. Upon any expiration or termination of the Term, unless otherwise set forth in an online purchase or written agreement, Your ability to access and use the POLTE SaaS shall terminate. In addition to those provisions which by their nature are intended to survive any termination or expiration of these Terms, the following Sections will survive any expiration or termination: Use of Data; Restrictions; Fees and Payment; Term and Termination; Confidentiality; Warranty Disclaimer; Limitation of Liability; Indemnification; Choice of Law; Assignment; and Changes to these Terms.
Account Registration and Settings
You agree to provide accurate, current, and complete information during the online purchase or written contract process, account registration and ongoing use of the POLTE Service, and to update and keep all such information accurate, current and complete at all times. You are responsible for maintaining the confidentiality of your account and password and for restricting access to any computer or mobile device which may be used to access the POLTE SaaS, and You further agree that You is responsible for all activities that occur under Your account or password.
In connection with Your use of the POLTE Service (including any trial of the POLTE Service), you acknowledge and agree that the POLTE Service is and contains information proprietary to POLTE (“Confidential Information”) and agree not to disclose any such Confidential Information except to your employees, consultants and advisors who are legally bound to maintain the confidentiality of the POLTE Service and such related information. These restrictions will not apply to any information that (a) is publicly known at the time of its disclosure; (b) is lawfully received from a third party not obligated to maintain it in confidence; (c) is published or otherwise made known to the public by POLTE; (d) You generated independently before receiving it, as evidenced by pre-existing records; or (e) is required to be disclosed under any law, governmental rule or regulation or a valid court order. You acknowledge and agree that any breach or violation of this provision will cause irreparable harm to POLTE and that damages are not an adequate remedy. To the extent that You share any Confidential Information with POLTE, the same restrictions and obligations set forth above shall apply to POLTE’s receipt and use of Your Confidential Information. Notwithstanding anything contained herein, the data and information sent to POLTE by an enabled device shall not be deemed Confidential Information, nor shall any location determination sent by POLTE to You, whether through an API or otherwise.
POLTE Indemnification. Except as provided below, POLTE agrees to (a) defend You against any allegation, demand, claim, action, proceeding or suit (each, a “Claim”) by a third party that Your authorized use of the POLTE Service infringes any US patent or copyright or misappropriates any trade secret of such third party and (b) indemnify You for settlement amounts or damages, liabilities, costs and expenses, including reasonable attorneys’ fees (“Losses”) awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such Claim; provided, that (i) You promptly provides POLTE with written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) POLTE shall have sole control and authority to defend, settle or compromise such Claim. If the POLTE Service becomes or, in POLTE’s opinion, is likely to become, the subject of any injunction preventing its use as contemplated herein, POLTE may, at its option (1) obtain for You the right to continue using the POLTE Service or (2) replace or modify the POLTE Service so that they become non-infringing without substantially compromising the principal functions. If (1) and (2) are not commercially reasonably available to POLTE, then it may terminate this Agreement upon written notice to You and refund to You any unused prepaid Service Fees, pro-rated for the remainder of the Term. POLTE shall have no liability or obligation to You hereunder with respect to any Claim or Loss to the extent based upon (a) any unauthorized use of the POLTE Service, (b) any modification or combination of the POLTE Service with data, software, hardware, or systems not provided by POLTE, (c) any portion of the POLTE Service that implements Your specific requirements, (d) Your continuing allegedly infringing activity after being notified to cease use as provided for herein or (e) Your continuing use of any version of a POLTE Service after being provided modifications that would have avoided the alleged infringement. The foregoing states the sole and exclusive liability of POLTE, and Your sole and exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the POLTE Service or any part thereof or by its use or operation.
Customer Indemnification. Customer agrees to (i) defend POLTE against any Claim by a third party that results from or arises out of any violation of any third party’s privacy right from Your use of the POLTE Service; and (ii) indemnify POLTE for any Losses awarded by a court of competent jurisdiction or agreed to as part of a monetary settlement and arising out of such Claim; provided, that (i) POLTE promptly provides Customers with written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) You shall have sole control and authority to defend, settle or compromise such Claim.
Limitation of Liability
Choice of Law; Location for Resolving Disputes
The laws of the State of Texas govern these Terms and any dispute or claims for enforcement, breach or violation of duties or rights under these Terms, without reference to conflict of laws principles. Except for mandatory arbitration of disputes, both Parties hereby irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in Dallas, Texas, USA in all disputes arising out of or relating to the use of the POLTE Service or these Terms.
You may not assign this Agreement to another party without the prior, written consent of POLTE.
Waiver & Severability
No waiver of a Party’s rights shall be effective unless such waiver is in writing signed by the waiving Party. If any provision of these Terms or the application of such provision to any person or circumstance shall be held invalid, illegal, against public policy or is otherwise unenforceable, the remainder of these Terms or the application of such provision to persons or circumstances other than those to which it is held invalid shall not be affected thereby.
All notices given or required hereunder shall be in writing and sent by email, or first class mail or equivalent directed to the addresses provided by each Party. Either Party may change its notice contact information at any time by giving notice of the new contact information as provided herein.
These Terms (together with any online purchase or written agreement) constitute the complete understanding and agreement of the Parties and supersedes all prior and contemporaneous negotiations, understandings, writings and agreements with respect to the subject matter of these Terms.
Neither Party shall be responsible for any failure to perform its obligations under these Terms, if it is prevented or delayed in performing those obligations by an event of force majeure. Where there is an event of force majeure, the Party prevented from or delayed in performing its obligations under this contract must immediately notify the other Party giving full particulars of the event of force majeure and the reasons for the event of force majeure preventing that party from, or delaying that Party in performing its obligations under these Terms and that Party must use its reasonable efforts to mitigate the effect of the event of force majeure upon its or their performance of the contract and to fulfill its or their obligations under these Terms. As used herein, force majeure shall include any event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, an “act of God” (e.g., flooding, earthquake, or volcanic eruption) or a governmental action or change in law that materially impacts provision of location-based services or a POLTE Service.
Arbitration and Dispute Resolution
DISPUTE RESOLUTION AND ARBITRATION AGREEMENT. YOU AND WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THIS AGREEMENT, OUR SERVICES, OR OUR TERMS, INCLUDING ANY BILLING DISPUTES, WILL BE RESOLVED BY
BINDING ARBITRATION OR IN SMALL CLAIMS COURT. This includes any claims against other parties relating to Services provided or billed to You (such as our suppliers, dealers, authorized retailers, or third-party vendors) whenever you also assert claims against us in the same proceeding. You and We each also agree that the Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law, not state law, apply and govern the enforceability of this dispute resolution provision (despite the general choice of law provision above). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).
Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE EARLIER OF THE DATE YOU PURCHASED SERVICE FROM US OR THE DATE YOU USED OR ACCESSED THE SERVICE (the “Opt Out Deadline”). You must opt out by the Opt Out Deadline for each separate service agreement. You may opt out of these arbitration procedures by sending, at your expense, a certified letter to:
Attention: Opt Out – 15301 North Dallas Pkwy, Suite 125, Addison, TX 75001
Any opt-out received after the Opt Out Deadline will not be valid and You will be required to pursue your claim in arbitration or small claims court.
For all disputes, You acknowledge and agree that prior to pursuing a claim in arbitration or court, you must first give us an opportunity to resolve Your claim by sending a written description of Your claim to our address in your online purchase or written agreement. You and We each agree to negotiate your claim in good faith, and You agree that you may not commence any arbitration or court proceeding unless You and We are unable to resolve the claim within 60 days after We receive Your claim description. You and We each agree that if You fail to timely pay amounts due, We may terminate Your Agreement and assign your account for collection, and the collection agency may pursue, in small claims court, claims limited strictly to the collection of the past due amounts and any interest or cost of collection permitted by law or this Agreement.
If the arbitration provision applies or You choose arbitration to resolve Your disputes, then either You or We may start arbitration proceedings. You must send a letter requesting arbitration and describing Your claim to Our designated address (listed above) to begin arbitration. The arbitration of all disputes will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules in effect at the time the arbitration is commenced. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. The arbitration of all disputes will be conducted by a single arbitrator, who shall be selected using the following procedure: (a) the AAA will send the parties a list of five candidates; (b) if the parties cannot agree on an arbitrator from that list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. Upon filing of the arbitration demand, We will pay or reimburse all filing, administration and arbitrator fees. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 as to which You provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorneys’ fees and costs. Except for claims determined to be frivolous, We agree not to seek attorneys’ fees in arbitration even if permitted under applicable law.
CLASS ACTION WAIVER. YOU AND WE EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS, REPRESENTATIVE, OR CONSOLIDATED ACTION. If a court or arbitrator determines in an action between You and Us that any part of this Class Action Waiver is unenforceable with respect to any claim, the arbitration agreement and Class Action Waiver will not apply to that claim, but they will still apply to any and all other claims that You or We may assert in that or any other action. If You opt out of the arbitration provision as specified above, this Class Action Waiver provision will not apply to You. Neither You, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt out requirements above.
JURY TRIAL WAIVER. If a claim proceeds in court rather than through arbitration, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.