Settrax.com Terms and Conditions

Effective Date: September 21, 2016

Welcome to the Settrax.com website.  For purposes of these Terms of Use: (i) the Settrax.com website, and all content and functionality associated therewith, is collectively referred to herein as the “Site”; and (ii) Settrax’s proprietary, subscription-based “SaaS” service included as part of the Site is individually referred to herein as the “Settrax Service.”

How it Works:

The Settrax Service is a web-based service intended to increase the efficiency with which hospitals and medical facilities track and review the use of medical instruments and supplies.

Through the use of the Settrax Service, vendors and suppliers who have registered with the Settrax Service are able to use Settrax’s proprietary hardware (the “Kiosk”) installed at a hospital or medical facility (a “Customer”) to “check-in” and/or “check-out” their respective medical instruments and supplies (“Products”) with the Settrax Service.  Conversely, the use of the Settrax Service permits a Customer’s administrative staff to easily track and review which Products have been “checked-in” and/or “checked out” with the Settrax Service.

Our Terms:

Prior to using the Site, please carefully review the following Terms of Use (“Terms”), which are the legally binding terms for your use of the Site.

YOUR USE OF THE SITE CONSTITUTES YOUR AGREEMENT TO THESE TERMS.  PLEASE DO NOT USE THE SITE OR PROVIDE INFORMATION TO US IF YOU DO NOT AGREE TO THESE TERMS.

1. Who We Are. The Site is owned by Settrax, LLC, a limited liability company organized under the laws of the State of Washington, USA (“Settrax,” “we,” “us,” “our”). Our mailing address is 5727 Baker Way NW Suite 202, Gig Harbor, WA 98335 and our telephone number is 866.900.0375.
2. Site Features, Functionality and Availability. You may use the Site when and as available. Although we generally intend for the Site to be available on an uninterrupted basis, it will not always be available (e.g., during maintenance, changes, outages and for other reasons) (“Downtime”) and Settrax shall have no liability to you with respect to such Downtime. We further reserve the right to change or eliminate and restrict or block access to all or any part of the Site, including without limitation, all or any part of the Settrax Service, from time to time without notice to you, in our sole discretion.
3. Registration and Use of the Settrax Service.

Registration

(a) You may browse certain pages of the Site without first registering with the Site.  However, for complete access to and use of the Settrax Service, you must successfully register as a Settrax member (a “Member”) by providing the information requested on the Settrax Service registration page (the “Registration Page”) and by paying the corresponding Membership Fee (defined below). To register as a Member, click http://54.190.29.18/registration/. In the case of a bulk license, each employee, contractor, or agent of the registering company (the “Client”) that accesses the Site and/or utilizes Settrax Services will be incorporated into the definition of Member.  “You” refers to any Member, potential Member, Client, or their affiliates.

(b) When you register as a Member, you will be asked to choose a user name and password.  You are solely responsible for maintaining the confidentiality and security of your user name and password and you further agree not to use the account, user name, or password of any other Member or permit third parties to use your account (a “Member Account”), user name or password.  Failure to comply with these requirements may result in the immediate termination of your Member Account.  You agree to promptly notify Settrax of any unauthorized use or suspected unauthorized use of your Member Account or user name or password; however, you are solely responsible for any and all uses of your Member Account, and any transactions or fees resulting therefrom.

License; Permitted Use

 

(a) During the Membership Term (defined below), subject to the Member’s strict compliance with these Terms, Settrax hereby grants to each Member and each Client, a limited, personal, revocable, non-transferrable, non-sublicensable license to access and use the Settrax Service for the sole purpose of enabling Member(s) to “check-in” and/or “check-out” its respective Products with the Settrax Service.  Except as otherwise set forth in these Terms, no other right, title or interest in the Settrax Service, the Site, and/or the Settrax Content is granted hereunder.

(b) You acknowledge and agree that by providing the Settrax System, Settrax is not rendering health care services or engaged in the practice of medicine.  As such, you are solely responsible for your use of the Settrax Service and/or a Customer’s use of your Products registered with the Settrax System and/or “logged in” or “logged out” using the Kiosk.

(c) You agree to: (i) strictly comply with all federal, state, or local law with respect to the operation of your business and/or your manufacture, marketing, sale and/or use of Products; and (ii) be solely responsible for obtaining and maintaining any permits, approvals, licenses or certifications required under federal, state, or local law with respect to the operation of your business and/or the manufacture, marketing, sale and/or use of your Products.

(d) Members are solely responsible for their interactions with other Members and with any Customers in connection with their respective use of the Settrax Service.  If there is a dispute between Members, between a Member and a Customer, or Client and a Customer or Member with respect to the use of the Settrax Service (a “Dispute” or “Disputes”), that Dispute is solely between the respective parties to the Dispute and does not involve or implicate Settrax or the Settrax Service and Settrax shall have no liability with respect to such Dispute.  For purposes of clarity, Settrax shall have no obligation to pay for or otherwise compensate or reimburse a Member, Client, or Customer in connection with the sale or delivery of Products by any Member or Client to a Customer; rather, any claim for payment, compensation, a refund, or for other reimbursement of any kind must be made to the responsible Member, Client, or Customer and not to Settrax.  Notwithstanding the above, Settrax may report a Member or Client to a Customer and share Settrax Content (as solely determined by Settrax) if Member or Client has violated or has potentially violated an applicable law or regulation (as solely determined by Settrax).

IF YOU HAVE A DISPUTE WITH ANOTHER MEMBER OR WITH A CUSTOMER IN CONNECTION WITH YOUR USE OF THE SETTRAX SERVICE, INCLUDING WITHOUT LIMITATION, A LEGAL CLAIM OR LAWSUIT (COLLECTIVELY, “DISPUTE(S)”), YOU HEREBY RELEASE AND FOREVER DISCHARGE SETTRAX AND ITS OFFICERS, DIRECTORS, VENDORS, AGENTS, SUBSIDIARIES, JOINT VENTURERS AND EMPLOYEES (COLLECTIVELY, THE “SETTRAX PARTIES”) FOR, FROM AND AGAINST ANY AND ALL CLAIMS (ACTUAL OR ALLEGED), DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE AND HEREBY COVENANT NOT TO SUE OR OTHERWISE BRING ANY LEGAL ACTION WHATSOEVER AGAINST THE SETTRAX PARTIES ARISING FROM OR RELATED TO SUCH DISPUTE.

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE § 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

Member Term; Fees

(a) By registering as a Member, you are authorized to access and use the Settrax Service for a period of one (1) year from the date of your successful registration.  Your Settrax membership shall thereafter automatically renew for additional one (1) year periods, unless you provide written notice to Settrax of your intent that your membership not be renewed.  The initial term and any subsequent renewal term(s) shall collectively be referred to herein as the “Membership Term.”  In the case of a bulk license, the Membership Term will be set out in and in accordance to the Bulk License Agreement signed by the parties.

(b) You hereby agree to pay all fees associated with your membership with Settrax (as set forth on the Registration Page or, in the case of a bulk license, as set forth in the Bulk License Agreement signed by the parties) (“Membership Fee(s)”), and you further authorize Settrax to charge the Membership Fee(s) to your credit card using the credit card number and information held on hand by Settrax at the time such Membership Fee(s) are owed.  All Membership Fee(s) are due and payable at the time of your registration as a Member or upon renewal of your Settrax membership, and unless otherwise stated, are payable in U.S. Dollars only.  You are responsible for paying all Membership Fee(s) and applicable taxes associated with your use of the Settrax Service in a timely manner with a valid payment method.  You acknowledge and agree that the failure to timely pay your Membership Fee(s) may result in the termination of your Member Account.

(c) Settrax reserves the right to modify and/or adjust the Membership Fee(s) at any time in its sole discretion; however, such modification or adjustment will apply only during the next renewal term.  Members may obtain a full refund within ten (10) days of successful registration provided there is no activity in Member’s Member Account during such ten (10) day period; otherwise, Settrax does not offer refunds.  For purposes of clarity, a Member’s logging into its Member Account during such ten (10) day period constitutes “activity” that would preclude a refund.

Termination

The following provisions apply to individual Members not to users operating under a Bulk License Agreement:

(a) The rights provided in this Section (“Membership Rights”) shall commence as of the date you become a Member, and shall continue until the expiration of the Membership Term, unless earlier terminated as set forth in this Section.

(b) Settrax may terminate and/or cancel your Membership Rights at any time, upon notice to you effective immediately, as expressly set forth in these Terms or in the event you breach or violate these Terms.  You may terminate and/or cancel your Membership Rights at any time by providing ten (10) days written notice to us; however, we will not refund any Membership Fees except as set forth in this Section.

(c) Upon the expiration or termination of your Membership Rights, all such Membership Rights shall immediately and automatically cease and you shall have no further right to access and/or use the Settrax Service.  Notwithstanding the expiration or termination of your Membership Rights, you will still be liable for payment of any amounts due or other obligations incurred by you prior to the effective date of such termination or expiration.  All terms and provisions of these Terms that by their sense, nature or context are intended to survive the termination or expiration of your Membership Rights shall survive such termination.

4. Privacy. Our Privacy Policy describes our privacy practices. Your use of the Site constitutes your consent to our Privacy Policy. Therefore, you should review the Privacy Policy, which describes the information that we collect, how we collect it and what we do with that information.

5. Accuracy of Our Information. From time to time there may be information on the Site (including without limitation, on the Settrax Service), whether or not posted by Settrax or by Members, that is outdated or contains errors, inaccuracies, or omissions (collectively, “Inaccuracies”). You agree not to rely on the accuracy of our information and in the event of any Inaccuracies on the part of Settrax, we reserve the right to correct any such Inaccuracies at any time.  We apologize for any inconvenience this may cause you.  For any and all Inaccuracies posted or otherwise transmitted through the Site by a Member, such Inaccuracies are the sole responsibility of the posting or transmitting Member and are not the responsibility of Settrax.
6. Intellectual Property Rights and Licenses. The Site may feature, without limitation, data, text, designs, graphics, logos, slogans, interfaces, icons, software code, and other information (collectively, “Content”). Content that is posted by you in connection with your use of the Site shall be referred to as “User Content.” User Content may also include a Member’s appearance, name, likeness, and personal and biographical materials and information (collectively, “Publicity Rights”). Content that is posted by or that otherwise originates from Settrax or its affiliates or suppliers or that is otherwise generated by or through a Member’s or Client, or a Customer’s use of the Settrax Service, including without limitation, through the use of a Kiosk, shall be referred to as “Settrax Content.”

The following provisions shall apply to Content:

(a) You retain ownership of any User Content posted or transmitted to or through the Site, but you must grant certain rights to Settrax to use the User Content.  Accordingly, you hereby grant to Settrax and its designees, a royalty free, perpetual, non-revocable, worldwide, fully paid, nonexclusive, freely transferrable and freely sublicensable license and authority to: (i) use, edit, modify, prepare derivative works of, publicly perform, publicly display, post, transmit, download, transcode, playback, copy, reproduce, distribute, incorporate and otherwise fully exploit the User Content and all intellectual property rights associated therewith in connection with: (i) Settrax’s maintenance, operation, and performance of the Site (including without limitation, the Settrax Service); (ii) the operation of Settrax’s business; (iii) Settrax’s promotion, marketing and redistribution of the Site (including without limitation, the Settrax Service), or parts thereof, in any and all media formats and through any and all media channels, and (iv) the reporting of any legal and/or regulatory violations as the Company determines is appropriate and necessary (in the Company’s sole discretion).  To the extent the license rights granted in this Section do not include moral rights or rights of attribution and integrity with respect to a Member’s Publicity Rights or otherwise, each Member hereby waives such rights to the maximum extent permitted by law and further waives any rights of preapproval, if any, in connection with such Publicity Rights or otherwise.

(b) You represent and warrant to Settrax that: (i) you own the User Content which you post or transmit on or through the Site, or otherwise have the legal right to post or transmit such User Content on or through the Site; (ii) the User Content or the posting thereof to or through the Site does not violate the privacy rights, publicity rights, intellectual property rights, or any other proprietary rights of any third party; and (iii) you have the legal right and capacity to enter into these Terms in your jurisdiction.

(c) All Settrax Content is exclusively owned by Settrax or its affiliates, licensors or suppliers and is protected by U.S. and international intellectual property laws.  For the sake of clarity, Settrax may use, modify, sell, transmit Settrax Content as it sees fit and in its sole discretion. Settrax’s and its affiliates’ use of the Settrax Content shall not constitute infringement by Settrax of any Member’s or Client’s rights in or to the Settrax Content, if any.  Member and Client hereby waive and agree to never assert infringement or breach of confidentiality claims against Settrax or its affiliates relating to their use of any Settrax Content. For the avoidance of doubt, should it be alleged or determined that Settrax’s or its Affiliates’ use of Settrax Content infringes on any of Client’s or Member’s intellectual property or proprietary rights, Member and Client will grant, and do hereby grant, to Settrax and Settrax’s affiliates an exclusive, unrestricted, worldwide, perpetual, irrevocable, non-revocable, fully paid up, royalty free license, with the right to sublicense and authorize the granting of sublicenses, to make, have made, use, import, copy, modify, make derivative works of, offer to sell, sell, lease and otherwise distribute any and all such Settrax Content.

(d) No Client or Member may use, copy, distribute, republish, upload, post or transmit in any way, except pursuant to the express provisions of these Terms or with our prior written consent, any Settrax Content.  All rights not expressly granted to you are reserved.  A Client or Member’s modification or use of Settrax Content for any purpose may violate Settrax’s intellectual property rights, and no title to copies or to intellectual property rights in the Settrax Content will transfer to any Member or Client – all title and rights remain with us. Permission is granted to electronically copy and to print in hard copy portions of the Site for the sole purposes of obtaining a copy of these Terms and any other contract or disclosure that we are required to provide to you or that is part of our transaction with you.  Some Settrax Content may also be subject to further terms and conditions provided in connection with the particular Settrax Content and you agree to comply with any such further terms and conditions.  Any use of the Settrax Content other than as set forth in this Section may result in immediate termination of your Member Account or, if applicable, Bulk License.

(e) Any comments, feedback, suggestions, or ideas (“Feedback”) you provide through the Site may be used by Settrax.  While you may continue to own all such the Feedback, you hereby grant to Settrax a non-exclusive, perpetual, irrevocable, royalty free, worldwide license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit such Feedback.

7. Infringement of Our Rights or the Rights of Others; Copyright Agent. You agree to respect the intellectual property rights of Settrax and others. Anyone who believes that their work has been reproduced in a way that constitutes copyright infringement may provide a notice to our copyright agent – see Section 17. We reserve the right to terminate in appropriate circumstances any Member Account or right of access for infringement of third party intellectual property rights or other rights.

8. Links to or From Third Party Sites. The Site may link to other websites and some websites may link to the Site. These links may be provided by Settrax as a convenience to you. Additionally, some services offered on or through the Site may be provided by third party service providers.Unless Settrax specifically says so, Settrax does not endorse any third party service providers, the linked sites, or any content on the linked sites. If you deal with a linked site or use the third party’s services, your transaction is not with Settrax so you should review the linked site’s “terms of use,” other contract(s) and/or privacy policy before completing your transaction.

9. Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Settrax includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Member includes non-public data provided by Member to Settrax to enable the provision of the Services (“Member Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.  Settrax shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation of Services or support, and (c) all intellectual property rights related to any of the foregoing.  Notwithstanding anything to the contrary, Settrax shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Member Data and data derived therefrom), and Settrax will be free to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Settrax offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

10. Authorization. If you are using the Site on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and bind the entity to these Terms, and that such entity agrees to indemnify you and Settrax for violations of these Terms, pursuant to Section 16 below.

11. Member Restrictions and Responsibilities. You agree that you will not violate any law, breach this or any other contract or other legal duty owed to a third party, infringe or misappropriate any intellectual property right, or commit any tort, in connection with your use of the Site. More particularly and/or in addition to, you agree not to:

(i) access or attempt to access or tamper with any area or features of the Site that you are not authorized to access or otherwise attempt to probe, scan, or test the vulnerability of any Settrax or third party system or network;

(ii) alter information on or obtained from the Site;

(iii) use any robot, spider, scraper or other automated means or interface not provided by Settrax to access the Site or to extract data from the Site;

(iv) run Maillist, Listserv, or any form of auto-responder or “spam” on the Site or otherwise use the Site for purposes of “spamming” other Members or third parties;

(v) reverse engineer any aspect of the Site, do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Site, including without limitation, the Settrax Service;

(vi) modify, translate, or otherwise create derivative works of any part of the Site;

(vii) copy, rent, lease, distribute, or otherwise transfer any of the rights granted to you hereunder;

(viii) send to or otherwise impact Settrax, the Site or anything or anyone else with harmful, illegal, deceptive or disruptive code such as a virus, “spyware”, “adware” or other code that could adversely impact the Site or any recipient;

(ix) access or use the Site for any unlawful, unintended (by us), or harmful purpose, or other than in full compliance with applicable law and these Terms;

(x) take any action which might impose a significant burden (as determined by Settrax) on the infrastructure of the Site;

(xi) interfere with the ordinary operation or mission of the Site;

(xii) infringe or misappropriate any patent, trademark, trade secret, copyright, right of publicity or other intellectual property right or other proprietary right;

(xiii) impersonate any person or entity;

(xiv) upload, use or transmit through the Settrax Service any User Content that, in Settrax’s sole discretion, creates a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself or to any other person;

(xv) abuse or misuse a third party or other Member’s personal information; or

(xvi) “frame” the Site or otherwise make it look like you have a relationship with Settrax or that Settrax has endorsed you for any purpose;

(xvii) intentionally provide false, incorrect, or fraudulent data or information (as more particularly described in Section 12);

(xviii) jointly use or share your account information with others for the purpose of account sharing (each individual Member must have their own account login);

(xix) verbally or physically assault, abuse, threaten, or direct profanity at any Settrax employee, contractor, or agent; or

(xx) breach the terms and conditions found in this agreement.

Settrax takes the violation of any of the above terms very seriously.  If any Member violates the Terms hereunder (including without limitation those listed above), we reserve the right to immediately terminate any Member Account or right of access to the Site.  We further reserve the right, for any reason or no reason, to remove or delete any User Content as we deem fit in our sole discretion.  In addition, we will immediately notify the company the Member represents in connection with the use of our Site of Member’s violation (including sharing any details, Member Data, or related information associated with such violation) and any remedial action taken by Settrax for such violation. This section does not limit Settrax’s right to utilize any other remedy available to it under this agreement or by law.

If a Member wishes to reinstate their account after such termination, it may require the payment of the then applicable reinstatement fee, at the sole discretion of and as determined by Settrax.  Settrax makes no guarantee of reinstatement if Settrax, in its sole discretion, determines that such Member compromises the integrity, security, and functionality of the Site or Services.  If a Member wishes to contest such termination or expulsion, they may contact Settrax at abuse@settrax.com.

We ask that you report prohibited conduct of which you become aware by email to: abuse@settrax.com.

12. Accuracy of Your Information. You agree to provide only accurate, current and complete information on the Site, whether in the course of registering as a Member or otherwise. This includes not impersonating any third parties in the course of registering as a Member or in using the Site, including without limitation, the Settrax Service. You also agree to review and correct all information that is supplied about you (such as when the Site “pre-populates” information you would otherwise have to enter) or that the Site draws from (such as the payment card information you keep in your Member Account) to ensure that it is always accurate and current.  We reserve the right to purge or delete information stored by you in our discretion.

13. DISCLAIMER. YOU AGREE THAT THE SITE, THE SETTRAX SERVICE AND ALL SETTRAX CONTENT IS PROVIDED BY US OR ANY OF OUR EXISTING OR FUTURE VENDORS, AFFILIATES OR AGENTS “AS IS” AND “WITH ALL FAULTS,” AND THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. SETTRAX DOES NOT MAKE ANY REPRESENTATIONS OR EXPRESS WARRANTIES AND DISCLAIMS ALL SUCH REPRESENTATIONS, WARRANTIES, CONDITIONS AND DUTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, RESULTS, ACCURACY, COMPLETENESS, PRIVACY OR SECURITY AND ANY IMPLIED WARRANTIES CREATED BY TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WE FURTHER DISCLAIM ALL DUTIES TO YOU, IF ANY SUCH DUTIES EXIST, INCLUDING BUT NOT LIMITED TO REASONABLE CARE, WORKMANLIKE EFFORT, AND LACK OF NEGLIGENCE. IF A DUTY CANNOT BE DISCLAIMED, YOU AGREE THAT THE STANDARD USED TO MEASURE SETTRAX’S PERFORMANCE OF THAT DUTY WILL BE INTENTIONAL MISCONDUCT. ALSO, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF ANY ASPECT OF THE SITE OR AGAINST INFRINGEMENT. YOU EXPRESSLY WAIVE ALL DUTIES, CONDITIONS AND ALL WARRANTIES THAT MIGHT EXIST BUT FOR THIS PARAGRAPH. YOU ACKNOWLEDGE THAT SETTRAX HAS NO CONTROL OVER WHO USES THE SITE AND/OR THE SETTRAX SERVICE AND DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY, APPROPRIATENESS, OR THE TRUTH OR ACCURACY OF ANY USER CONTENT. ALL RISK IN CONNECTION WITH THE USE OF THE SITE AND/OR THE SETTRAX SERVICE IS WITH YOU.

ELECTRONICS COMMUNICATIONS PRIVACY ACT NOTICE (18 U.S.C. § 2701-2711): SETTRAX MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY THIRD PARTY WEBSITE LINKED TO THE SITE.  SETTRAX WILL NOT BE LIABLE FOR THE PRIVACY OF EMAIL ADDRESSES, REGISTRATION AND IDENTIFICATION INFORMATION, DISK SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADE SECRET INFORMATION, OR ANY USER CONTENT STORED ON SETTRAX’S EQUIPMENT, TRANSMITTED OVER NETWORKS ACCESSED BY THE SITE, OR OTHERWISE CONNECTED WITH YOUR USE OF THE SITE.

14. LIMITATION OF LIABILITY. TO THE FULL EXTENT ALLOWED BY LAW, YOU AGREE THAT NEITHER SETTRAX NOR ANY OF ITS EXISTING OR FUTURE AFFILIATES, SUPPLIERS OR AGENTS WILL BE LIABLE TO YOU AND/OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES, OR FOR DAMAGES FOR LOST PROFITS, FOR LOSS OR IMPAIRMENT OF PRIVACY, SECURITY OR DATA, FOR FAILURE TO MEET ANY DUTY (INCLUDING BUT NOT LIMITED TO ANY DUTY OF GOOD FAITH, WORKMANLIKE EFFORT OR OF LACK OF NEGLIGENCE), OR FOR ANY OTHER SIMILAR DAMAGES WHATSOEVER THAT ARISE OUT OF OR ARE RELATED TO ANY BREACH OR OTHER ASPECT OF THESE TERMS OR THE SITE AND/OR THE SETTRAX SERVICE, EVEN IF SETTRAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY OR MISREPRESENTATION.

15. EXCLUSIVE REMEDY. IF FOR ANY REASON SETTRAX IS FOUND LIABLE HEREUNDER, SETTRAX’S TOTAL LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF: (I) THE FEES YOU HAVE PAID TO SETTRAX IF ANY, IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY; OR (II) $100 USD. YOU AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO YOUR RELATIONSHIP WITH SETTRAX MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, YOUR CLAIM IS PERMANENTLY BARRED. THE DAMAGE EXCLUSIONS AND LIMITATION OF LIABILITY IN THESE TERMS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

16. Applicable Law and Exclusive Forum. The Site is controlled by us from our offices within the United States of America and is intended for U.S. users only. If you choose to access the Site from locations outside the U.S., you do so at your own risk and are responsible for compliance with applicable local laws. You may not use or export anything from the Site and/or the Settrax Service in violation of U.S. export laws and regulations or these Terms. You agree that these Terms, and all claims of every nature (including without limitation, contract, tort and strict liability) relating to any aspect of the Site, shall be governed by the laws of the State of Washington, U.S.A., without regard to its conflicts of laws provisions and without regard to where performance is made. You agree that any disputes shall be heard exclusively in an appropriate forum located in King County, Washington. THESE TERMS WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. You also consent to jurisdiction in a state or federal court sitting in King County, Washington and waive any claim or defense that such forum is not convenient or proper, and consent to service of process by any means authorized by Washington or U.S. federal law.

17. Indemnity. You agree to indemnify, defend and hold the Settrax Parties harmless for, from and against any and all losses, liabilities, expenses, damages, fees, penalties, claims or demands (actual or alleged), including reasonable attorneys’ fees, arising out of or related to: (i) your use of the Site, including without limitation, the Settrax Service; (ii) your breach of these Terms; (iii) your violation or infringement of any law or the rights of any third party, including any third party intellectual property rights of publicity, or the use of your Member Account by a third party; and (iv) any Disputes. Settrax reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you agree to reasonably assist and cooperate with Settrax in the defense thereof.

18. Notices, Including Our Address for Legal Notices.

 

(a) We may give you notice by any lawful method, including (without limitation) legal notices and notice of subpoenas. We may provide the notices by posting them on the Site or by giving them by email or postal mail to any address that we have for you. You agree to update your address as appropriate and to check for notices posted on the Site.

(b) You agree to send us notice by mailing it to “Our Address for Legal Notices” which is Settrax, LLC, Attn: Legal Notices, 5727 Baker Way NW Suite 202, Gig Harbor, WA 98335, or by emailing it to us at: legal@settrax.com.

19. Amendments. You agree that we may amend these Terms from time to time, including by changing anything in these Terms (“Amendments”). With respect to the text of these Terms, we will post a new version of the Terms on the Service prior to the effective date of the amended version (“Effective Date”) – we will try to do that ten (10) days before a new version becomes effective, but we reserve the right to provide lesser or subsequent notice as we think advisable (such as in an emergency or to prevent harm to us or others). We may also give notice by another method, including by email. You agree periodically to check for notice of an amended version and to review that version. The Effective Date of each version will usually be shown at the beginning of the Terms document: if you see a date that is later than the date you last reviewed the Terms, review the most recent version because it will apply as of its Effective Date and until the next version is posted (and the ten (10) day period referenced above, if applicable, has passed). No Amendments will be effective unless we post them on the Site. You agree that USING THE SITE AFTER THE EFFECTIVE DATE OF THE AMENDED VERSION OF THESE TERMS WILL CONSTITUTE YOUR AGREEMENT TO THE AMENDED VERSION. Notwithstanding the foregoing, you agree that without amending these Terms pursuant to this Section, we may change other information on the Site and/or the Settrax Service (other than the text of these Terms) in our sole discretion.

20. Agreement; Miscellaneous. These Terms, which incorporate by reference any: (i) additional terms on the Site or otherwise provided by us for particular activities; and (ii) disclosures provided by us and consents provided by you on the Site, constitute the entire agreement between us and neither party has relied on any representations made by the other that are not expressly set forth in the Terms. If any part of these Terms is found by a court of competent jurisdiction to be invalid, then that part will be deemed superseded by an enforceable provision that most closely matches the intent of the original and honors the allocation of risks in these Terms and the remainder of the Terms will continue in effect. Our failure to act with respect to a breach does not waive our right to act as to subsequent or similar breaches, and time is of the essence in connection with your performance under these Terms. There are no third party beneficiaries of any part of these Terms. These Terms are personal to you, and are not assignable, transferable, or sublicensable by you except with Settrax’s prior written consent, which Settrax may withhold for any reason or no reason. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

21. Legal Notices. Various laws require or allow us to give users of the Site certain notices and each of them is incorporated into these Terms.

22. Further Information. If you would like to receive our legal name and address by email, you need to provide us your email address by sending your request, in writing, to Our Address for Legal Notices. If you have a complaint, you may contact us at the address(es) set forth in Section 17.

23. Notice of Copyright Agent. Settrax respects the intellectual property rights of others and requests that you do the same. Anyone who believes that their work has been reproduced in the Site in a way constituting copyright infringement may provide a notice to the designated Copyright Agent for the Service containing the following: (i) an electronic or physical signature of a person authorized to act on behalf of the owner of the copyright interest; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material; (iv) the address, telephone number, and, if available, an email address at which the complaining party may be contacted; (v) a representation that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a representation that the information in the notice is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Copyright infringement claims and notices (but not other notices) should be sent to the attention of our Copyright Agent, in the following manner:

by mail: Settrax, LLC, 5727 Baker Way NW Suite 202, Gig Harbor, WA 98335, Attn: Copyright Agent

by email: copyright@settrax.com.

Please use the same procedure for any claimed infringement of any trademark rights or infringements or misappropriations of other intellectual property or third party rights.

24. Notice: No Harvesting Allowed. WE WILL NOT GIVE, SELL, OR OTHERWISE TRANSFER ADDRESSES MAINTAINED BY US TO ANY OTHER PARTY FOR THE PURPOSES OF INITIATING, OR ENABLING OTHERS TO INITIATE, ELECTRONIC MAIL MESSAGES EXCEPT AS AUTHORIZED AS APPROPRIATE BY OUR PERSONNEL OR POLICIES. EXCEPT FOR PARTIES AUTHORIZED TO HAVE ADDRESSES MAINTAINED BY US, PERSONS MAY VIOLATE FEDERAL LAW IF THEY: (I) INITIATE THE TRANSMISSION TO OUR COMPUTERS OR DEVICES OF A COMMERCIAL ELECTRONIC MAIL MESSAGE (AS DEFINED IN THE U.S. “CAN-SPAM ACT OF 2003”) THAT DOES NOT MEET THE MESSAGE TRANSMISSION REQUIREMENTS OF THAT ACT; OR (II) ASSIST IN THE ORIGINATION OF SUCH MESSAGES THROUGH THE PROVISION OF SELECTION OF ADDRESSES TO WHICH THE MESSAGES WILL BE TRANSMITTED.

 

25. Notice About Trademarks. SETTRAX™ and associated logos are trademarks of Settrax, LLC. All other trademarks and logos on the Site are the property of their respective owners.  All rights are reserved.