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Multi-Financial Services Company, Inc. (herein
referred to as the "The Company") offers its Data File Backup Service
(herein referred to as the "Service"), as described on
Trakker Loan Servicing Software(TM) website ( www.thetrakker.com ) for monthly fees (the "Fees") which you
or your company will pay by authorized credit card or by check. The Fees applicable for the Service are available at www.thetrakker.comand as published
within the agreement. The Company reserves the right to
change the Fees or applicable charges and to institute new charges at any time,
upon thirty (30) days prior notice to you (which may be sent by e-mail).
Non-Transferable Membership.
The Company grants you a personal, non-exclusive,
non-transferable license to use the products and software contained in or made
available through the Service solely for your own internal
purposes. All rights not expressly granted by The Company to you are retained.
Restrictions.
You are permitted to store and manipulate
the Content only for your personal use. Unauthorized use of the Service, or the
resale of the Services without The Company's prior
written consent, is expressly prohibited. You shall not copy, license, sell,
transfer, transmit, make available, distribute, publish, or assign this license
or the Content in any format to any third party.
User Accounts.
To open a user account, you or your company must complete the registration
process by providing The Company with current and accurate information as prompted by the registration form. In
registering for the Service, you agree to submit accurate and complete
information about you and promptly update such information. Should The
Company suspect that such information is untrue,
inaccurate, not current or incomplete, The Company has the right to suspend or terminate
your usage of the Service. User accounts will be setup when full payment has
been received for the Service. User accounts cannot be "shared"
or used by more than one company. The data in each user's storage area will be retained for a
minimum of one month prior to automatic removal unless an alternate time frame
is agreed upon.
User Responsibilities.
You are solely responsible for any and all activities that occur under your
account and ensuring that you exit or log-off from your account at the end of
each session of use. You shall notify The Company
immediately of any unauthorized use of your password or account or any other
breach of security that is known or suspected by you. DO NOT MISUSE OR ABUSE OUR SYSTEM OR OUR SYSTEM RESOURCES (I.E.
BANDWIDTH). YOUR ACCOUNT WILL BE IMMEDIATELY TERMINATED.
Account Information and Data.
The Company does not own any data, information or
material that you submit to the Service or store in your account ("Data").
The Company will not monitor, edit, or disclose any
information regarding you or your account, including any Data, without your
prior permission except in accordance with this Agreement. The Company may access your account,
including its Data, to respond to service or technical problems or as stated in
this Agreement. You, not The Company, shall have sole
responsibility for the accuracy, quality, integrity, legality, reliability,
appropriateness and copyright of all Data and The Company shall not be responsible or liable for the deletion, correction,
destruction, damage, loss or failure to store any Data.
Payment of Fees.
The Company offers its Service, as described on Trakker Loan Servicing Software(TM) website (www.thetrakker.com ) and as published
within the Service for monthly fees (the "Fees") which you will pay to
The Company by authorized credit card, check, or ACH
payment. If you pay by credit card, your
authorized credit card will automatically be charged the Fees on the day you sign up
for the Service or the expiration of the initial trial period, if any, whichever
is later, with the amount of Fees pro rated for the number of days remaining in
that calendar month. Thereafter, the Fees will automatically be charged to your
authorized credit card, in advance, on the 1st day of the month that the Service
is provided. If you will be paying by check or other means then the
Service will be initiated on the day the check is received. In the event you cancel the Service,
The Company will not refund any Fees already paid by you.
Your The Company account will be considered
delinquent if your credit card company or bank refuses for any reason to pay the amount
billed to it and that amount remains unpaid at the beginning of the next
accounting cycle. The Service may be suspended, archived or purged from system
if account is delinquent for more than one billing cycles. The Company may impose a charge to restore archived data from
delinquent accounts.
The Company may choose to bill through an invoice,
in which case, full payment for invoices issued in any given month must be
received by The Company fifteen (15) days after the
mailing date of the invoice, or the Service may be terminated or suspended. Unpaid invoices
are subject to interest of 1.5% per month on any outstanding balance, or the
maximum permitted by law, plus all expenses of collection.
If you believe The Company has billed you
incorrectly, you must contact The Company no later
than 30 days after the closing date on the first billing statement in which the
error or problem appeared, in order to receive an adjustment or credit.
Inquiries should be directed to The Company's Customer Support department at support@thetrakker.com.
User Conduct.
You agree to abide by all applicable local, state, national and foreign laws,
treatises and regulations in connection with the Service. In addition, without
limitation, you agree not to use the Service to: (1) harvest, collect, gather or
assemble information or data regarding other users, including e-mail addresses; (2)
transmit any material that may infringe the intellectual property rights or
other rights of third parties, including trademark, copyright or right of
publicity; (3) transmit any material that contains software viruses or other
harmful or deleterious computer code, files or programs such as Trojan horses,
worms, time bombs, cancel bots; (4) interfere with or disrupt servers or networks
connected to the Service or violate the regulations, policies or procedures of
such networks; (5) attempt to gain unauthorized access to the Service, other
accounts, computer systems or networks connected to the Service, through
password mining or any other means; or (6) harass or interfere with another
user's use and enjoyment of the Service.
The Company reserves the right
at all times to monitor, review, retain and/or disclose any information as
necessary to satisfy any applicable law, regulation, legal process or
governmental request.
Termination.
The Company, in its sole discretion, may terminate
your account or use of the Service and remove and discard any Data
within the Service if you fail to comply with this Agreement. You may terminate
your user account upon notice to The Company at any
time. However, you will not receive a refund of any portion of your fees paid to
The Company. Upon termination by The Company or at your direction, you may request a file of your
Data, which The Company will make available for a
fee. You must make such request at the notification of termination to receive
such file within (30) days of termination. Upon termination of an account, your
right to use such account and the Service immediately ceases. The Company shall have no obligation to maintain any Data stored in
your account or to forward any Data to you or any third party.
Indemnification.
You shall indemnify and hold The Company and its
parents, subsidiaries, affiliates, officers, directors, employees, attorneys,
and agents, harmless from and against any and all claims, costs, damages,
losses, liabilities, and expenses (including attorneys' fees and costs) arising
out of or in connection with your use of the Service (including the Content) or
breach of this Agreement.
Disclaimer of Warranties.
The Company does not represent or warrant that: (1) The user of the
Service will be timely, uninterrupted or error-free, (2) will operate in
combination with any other software or system; (3) The Service will meet
your requirements or expectations; (4) Errors or defects will be corrected.
All conditions, representations and warranties, whether expressed, implied, or
otherwise, including, and without limitation, are hereby disclaimed to the
maximum extent permitted by applicable law by The Company
Limitation of Liability.
In no event shall The Company's aggregate liability
exceed the amount actually paid by you in the six (6) month period immediately
preceding the event giving rise to such claim. In no event shall The
Company be liable to anyone or any company for
any indirect, punitive, special, exemplary, incidental, consequential, or other
damages of any type or kind. This includes the loss of data, revenue, or
profits arising out of, or in any way connected with this service, including by
not limited to your companies use of inability to use the service or content
retained within your storage area.
Additional Rights.
Certain states and/or jurisdictions do not allow the exclusion of implied
warranties or limitation of liability for incidental or consequential damages,
so the exclusions set forth above may not apply to you.
Modification to Terms.
The Company reserves the right to change the terms
and conditions of this Agreement or its policies relating to the Service at any
time and shall notify you by posting an updated version of this Agreement on the
Service and/or by sending you an email message. You are responsible for
regularly reviewing this Agreement. Continued use of the Service after any such
changes shall constitute your consent to such changes.
General.
This Agreement will be governed by Florida law and controlling United States
federal law, without regard to the choice or conflicts of law provisions of any
jurisdiction. You shall bring all disputes, actions, claims, or causes of action
related to this Agreement or in connection with the Service only in the federal
and state courts located in Tallahassee, Florida. No text or information set
forth on any other purchase order, preprinted form or document shall add to or
vary the terms and conditions of this Agreement. If any provision of this
Agreement is held by a court of competent jurisdiction to be invalid or
unenforceable, then such provision(s) shall be construed, as nearly as possible,
to reflect the intentions of the invalid or unenforceable provision(s), with all
other provisions remaining in full force and effect. No joint venture,
partnership, employment, or agency relationship exists between you and
The Company as a result of this agreement or use of
the Service. The failure of The Company to enforce
any right or provision in this Agreement shall not constitute a waiver of such
right or provision unless acknowledged and agreed to by The Company in writing.
The Company has the right
to assign any or all of its rights and obligations under this Agreement at any
time. This Agreement comprises the entire agreement between you and
The Company and supersedes all prior or
contemporaneous negotiations, discussions or agreements, whether written or
oral, between the parties regarding the subject matter contained herein.
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