Terms and Conditions
Syncwise Utility Tracker and Pinpoint is a program which provides information to track assets. Syncwise Utility Tracker consists of a software program (“Service”) and a device (collectively “System”) which attaches to an asset, motor vehicle (fuel or electric powered), trailer, container, generator or other tangible item. (collectively “Asset”), which provides Asset-location assistance, including directional heading, speed, elevation and geographical zones.
SERVICE AVAILABLE: This agreement (“Agreement”) between Syncwise, Inc. (“Syncwise”), and customer (“Customer”) or referred to individually as “Party” or collectively as “Parties”. The Service is described in this Agreement. The Syncwise website, www.syncwise.com (“Website”), contains information about the features. The Mobile Application (“App”) is the source for: (1) Customer’s subscription information, (2) modify Customer subscription, (3) manage Customer account, and (4) learn more about the Service.
CUSTOMER ACCEPTS THIS AGREEMENT BY: Agreeing in writing, email, Phone (including “telephone, mobile phone, smartphone or mobile device”), use of the App, in person or activating the System. When Customer accepts, Customer represents that Customer is at least 18 years old and legally able to accept this Agreement.
DESCRIPTION OF SERVICE: The Service consists of a collection of features (“Features”), for the Asset, or Assets Customer registered with Syncwise. Features are provided by Syncwise, affiliates or other third parties, including wireless service providers, equipment and software manufacturers, distributors, licensors, content providers, and any other person or entity who provides any service, equipment, content, feature or facilities in connection with the Service (“Service Partners”). The affiliates and Service Partners provide or assist in the delivery of Features may change over time. Syncwise may change the materials and Features available through the Service, which will be identified on the Website or App.
LOCATION FEATURES: These Features available using data collected by the device on the Asset. When installed, the device collects information about the Asset’s operation, location and use information.
By subscribing to the Service and/or using the App, Customer agrees Syncwise may collect the information described above as part of the Service. Syncwise needs certain information to provide certain Features, Customer must properly install the System and/or to download the App and enable the settings to access certain Features. IT IS CUSTOMER’S RESPONSIBILITY TO NOTIFY EVERYONE WHO USES OR OCCUPIES CUSTOMER’S ASSET THAT LOCATION AND/OR PARKING LOCATOR FEATURES ARE ACTIVE AND ALLOW CUSTOMER TO ACCESS INFORMATION ABOUT THE ASSET, INCLUDING ITS LOCATION.
Information that identifies the Asset and/or other personal information may be shared as described in the privacy policies, as well as when it is necessary to provide various features. Customer information may be used on its own or in combination with other information to determine aggregate insights about users. Customer information may be shared with third parties in a way that does not identify Customer personally. IF CUSTOMER OBTAINS THE SERVICE FROM AN EMPLOYER, THE INFORMATION SYNCWISE COLLECTS WILL BE AVAILABLE TO EMPLOYER, INCLUDING ASSET LOCATION AND INFORMATION ABOUT ASSET’S USE AND MANNER OF OPERATION.
THE SYSTEM AND MOBILE APP: The System must be compatible with the Asset and/or Phone. Do not use the System in a Asset other than the one registered with Syncwise. Syncwise assess the compatibility of the Asset with the System based on information the Customer provides. Customer agrees to provide Syncwise with true and accurate information to assess Customer Asset’s compatibility. CUSTOMER ASSUMES THE RISK ASSOCIATED WITH PROVIDING SYNCWISE ANY FALSE OR INACCURATE INFORMATION REGARDING THE ASSET, INCLUDING WITHOUT LIMITATION ANY ISSUES ARISING FROM ASSET INCOMPATIBILITY WITH SYNCWISE. If Customer wishes to install Syncwise on another Asset, Customer must first ensure compatibility of the Asset.
The Asset must have a working electrical system, with at least six volts (6V) of power, for the System to operate properly. The System will not work: without adequate electrical and battery power; if Customer attempts to modify these Systems, adds equipment or software to the Asset not expressly authorized by Syncwise or is otherwise incompatible with the System, including other aftermarket devices or products; and if the System is improperly installed. Service reception may vary depending on the electrical systems of the Asset and the version of the System. SYCNWISE IS NOT LIABLE FOR IMPROPER INSTALLATION OF THE SYSTEM WHICH CAUSES DAMAGE TO THE ASSET.
The App is available for download on the iTunes store or Google Play and may be updated from time-to-time. App features are only available with a subscription. To use the App, Customer must have a compatible Phone. Syncwise does not warrant that the App will be compatible with Customer’s Phone. In order to be able to receive the full features of the App, Customer must ensure the Phone maintains adequate battery power, internet and network connection, and Customer must enable all necessary settings on the Phone. The necessary permissions on the Phone required to receive all services may be updated from time to time. Use of the Service through the App will use power from the battery of any Phone the App is installed on.
Syncwise reserves the right to modify, terminate or otherwise amend this Agreement and its incorporated documents. Syncwise may cease to provide a Feature in whole or in part, if required by law, rule or regulation, in which case Customer may cancel Customer Service. If required by law, Syncwise will notify Customer in advance of any such changes. If Customer uses the Service after a change takes effect, then Customer accepts the change. If Customer does not agree with a change to this Agreement, the subscription or for any other reason, Customer may delete the App and/or cancel the subscription pursuant to cancellation rights described in this Agreement. If Syncwise makes any change to the dispute resolution provision of this Agreement, however, these changes will not affect the resolution of any dispute that arose before these changes.
RETURN OF EQUIPMENT: ALL RETURNS OF EQUIPMENT (1) SHALL BE GOVERNED BY THE APPLICABLE EXCHANGE/RETURN POLICY OF THE RETAILER WHERE CUSTOMER PURCHASED EQUIPMENT; AND (2) SHALL BE RETURNED TO THE RETAILER WHERE CUSTOMER PURCHASED EQUIPMENT. SYNCWISE CANNOT ACCEPT RETURN OF DEVICES PURCHASED THROUGH ANOTHER RETAILER OR A DIFFERENT SALES CHANNEL.
If (1) Customer purchases or receives Syncwise equipment through a retail sales channel other than Syncwise or Amazon and (2) Customer activates the Service, then Customer will be a subscriber of the Service. Syncwise will bill and collect payment from subscribers as set forth in this Agreement.
DEVICE WARRANTY: The device shall be free from defect for a period of 60 days. Customer may send the device to Syncwise for repair or replacement. In the event of a warranty claim, Customer must contact Syncwise for replacement of the device. Except as otherwise provided in this Agreement, there shall be no refund for loss of use of service and Syncwise shall not be liable for any damages incurred as a result of the device not functioning or during the time Syncwise is testing, servicing or replacing the device.
RESPONSIBILITY FOR CORPORATE SUBSCRIBERS: If Customer is an employer, Customer can authorize employees (“Corporate Subscribers”) to use the Service. Customer must establish Corporate Subscribers as additional users on Customer account and are liable for Corporate Subscribers and their use of all services. Customer is responsible for compliance with the Terms of Service and also for the compliance of all Corporate Subscribers and users of the Asset(s), whether or not authorized.
IT IS THE CUSTOMER’S SOLE RESPONSIBILITY TO NOTIFY CORPORATE SUBSCRIBERS AND ANY USER THAT LOCATION FEATURES ARE ACTIVE AND ALLOW CUSTOMER TO ACCESS INFORMATION ABOUT THE ASSET, INCLUDING ITS LOCATION, USE AND MANNER OF OPERATION.
Failure to establish a Corporate Subscriber account in the manner stated above may impact Customer’s ability to obtain information about Corporate Subscriber accounts, including Asset information.
BILLING FOR SERVICE:
SUBSCRIPTION FEE AND DURATION: The Service Fee (“Subscription Fee”) is billed on a yearly basis. Customer must provide a current, valid and accepted method of payment, and keep updated (“Payment Method”). Customer subscription and this Agreement will automatically continue on a year-to-year basis after the Subscription Commitment ends, unless Customer choose to cancel Subscription Commitment pursuant to the cancellation rights.
GOVERNMENT TAXES, FEES AND SURCHARGES: Customer must pay all applicable taxes, fees and surcharges. Please note that Syncwise may not always be able to notify Customer in advance of changes to these charges. Taxes will be based upon Customer billing address.
CUSTOMER AUTHORIZES SYNCWISE TO CHARGE CUSTOMER SUBSCRIPTION FEES FOR ALL SERVICES, PLUS APPLICABLE TAXES, ON A YEARLY BASIS TO THE PAYMENT METHOD PROVIDED, UNLESS CUSTOMER OR SYCWISE CANCEL IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. CUSTOMER AUTHORIZES SYNCWISE TO CHARGE ACTIVATION FEES, IF APPLICABLE, EQUIPMENT CHARGES, AND ALL APPLICABLE TAXES, TO THE PAYMENT METHOD PROVIDED.
PRICE CHANGES: Syncwise reserves the right to adjust pricing for the Service or any components thereof in any manner and at any time as Syncwise may determine in its sole and absolute discretion. Except as otherwise expressly provided for in this Agreement, any price increases to the Service will take effect following notice to Customer. Unless otherwise permitted (or required) by law, rule or regulation, Syncwise will provide Customer with notice prior to subscription of any price increase to permit Customer to cancel Customer Service. If a different period is required by law, rule, or regulation, Syncwise will provide Customer notice within such period.
DISPUTED CHARGES: If Customer believes there is a billing error by Syncwise, and request an adjustment to Customer bill, Customer must notify Syncwise within 30 days, or longer period as required by law, after the amount is charged to Customer’s Payment Method. CUSTOMER MUST CALL SYNCWISE TO DISPUTE CHARGES ON THE BILL, BUT IF CUSTOMER WISHES TO PRESERVE THE RIGHT TO BRING AN ARBITRATION OR SMALL CLAIMS CASE REGARDING SUCH DISPUTE, CUSTOMER MUST WRITE TO SYNCWISE AT SYNCWISE – LEGAL DEPARTMENT, 530 B STREET, SUITE 300, SAN DIEGO, CA 92101 WITHIN THE 30 DAY PERIOD MENTIONED ABOVE. If Customer does not contact Syncwise about the disputed charge, in writing, within this time period, Customer will waive Customer right to dispute the bill and to bring an arbitration or small claims case regarding any such dispute.
REFUND POLICY: Syncwise may, in its sole discretion, give a credit (in an amount determined by Syncwise) for continuous Service interruption of more than 24 hours on a case-by-case basis, if such interruption was reasonably within Syncwise’s control (as determined by Syncwise and in its sole discretion), and if Customer notifies Syncwise within 7 days of the continuous interruption. Any credit shall constitute Customer’s sole and exclusive remedy for such failures and Customer waive and release Syncwise, its affiliates, and Service Partners from any further liability to Customer in connection with the Service interruption. If Customer cancels the Service within a pre-paid billing period during Customer Subscription, Customer WILL NOT receive a pro-rated refund, or any refund, for the unused portion of the pre-paid amount.
CANCELLATION OF SERVICE: Customer may cancel subscription, for each device, through the App. The device can be returned to service within thirty (30) days, on either the same account or a new account. If the device is not returned to service within 30 days, it must be sent to Syncwise for repair, updates and reactivation. The fees and all shipping and handling charges to re-activate a device shall be paid by Customer. These fees may change from time to time at Syncwise’s sole discretion.
SYNCWISE RIGHTS TO LIMIT OR END SERVICE OR END THIS AGREEMENT: Syncwise can, without notice, limit, suspend or end Customer’s Service or any agreement with Customer for any good cause, including, but not limited to, (1) if Customer: (a) breaches this Agreement; (b) resells the Service; (c) uses the Service for any illegal purpose; (d) steals from or lies to Syncwise; (e) does not pay the bill on time; (f) is unable to pay or goes bankrupt; (g) adds a device to another party’s (person or business) Asset unknowingly; or (2) if Customer or any additional user: (a) threatens, harasses, or uses vulgar and/or inappropriate language toward Syncwise representatives; (b) interferes with Syncwise operations; (c) engages in abusive messaging or calling; (d) modifies the device from its manufacturer’s specifications; or (3) uses the Service in a way that negatively affects the Syncwise network or other customers. Syncwise may temporarily limit Customer Service for any operational or governmental reason. If this Agreement is cancelled pursuant to this subsection, Customer agrees to pay for all fees, charges, and other amounts incurred and owed under this Agreement beginning on the date of subscription commenced and through the date of cancellation.
ADDITIONAL CANCELLATION RIGHTS; EFFECT OF CANCELLATION: In addition to other cancellation rights provided in this Agreement, Syncwise may cancel this Agreement at any time upon 30-day prior written notice to Customer. Customer agrees that Syncwise is not liable to Customer for cancellation of this Agreement or the discontinuance of any or all of the Features, unless otherwise expressly provided in this Agreement. Upon cancellation of this Agreement, Customer must immediately stop using the Service. By continuing to use the Service after Customer Subscription Commitment has ended, Customer agree to extend this Agreement on a year to year basis unless Customer agree to a new Subscription Commitment. All provisions of this Agreement which by their nature survive cancellation, shall survive cancellation of this Agreement.
TRANSFER OF THE SYSTEM OR ASSET OR ACQUISITION OF NEW ASSET: Customer warrants and represents Customer will not sell or transfer the device or System to another user and Customer will not sell or transfer title to Customer Asset or return a leased Asset to its owner without first removing the System. This is important to help protect Customer subscription and Customer information, and to avoid being charged for the Service after Customer sale or transfer. If Customer transfers the System from an Asset to another Asset, Customer must notify Syncwise prior to such transfer to confirm whether the System will function properly with that Asset. Once Syncwise confirms compatibility with the System and agrees to the transfer, Customer may transfer the System to the new Asset. Syncwise reserves the right to reject the transfer of a device.
LIMITATIONS OF THE SERVICE:
AVAILABILITY OF CERTAIN FEATURES ARE LIMITED BY TYPE OF ASSET: The information retrieved from Customer’s Asset may be different than other Assets based on differences between manufacturers, models and model years. In such cases, Customer may not receive access to certain features that are available to other users. If Customer has such an Asset, Customer will not have access to such information through the App. If Customer is not satisfied with the Service for this or any other reason, Customer may cancel this Agreement subject to the cancellation terms.
COVERAGE AREA: The Service is available internationally on select models; other models will only have service in the United States. NOT ALL SERVICES ARE AVAILABLE EVERYWHERE, PARTICULARLY IN REMOTE OR ENCLOSED AREAS, OR ON ALL ASSETS, AT ALL TIMES.
Location of the Asset and Phone, particularly in remote or enclosed areas, may affect the availability and quality of the Service. The Service generally works using wireless communication networks from Syncwise wireless affiliates and Service Partners and the Global Positioning System (“GPS”) satellite network. The System and App receive GPS signals and communicates through use of wireless and landline communications networks. The Service cannot work unless the Asset and App are in a place where there is coverage, network capacity and reception when the Service is needed. Aspects of the Service that involve location information about the Phone and Asset cannot work unless GPS satellite signals are unobstructed, available in that location and compatible with the System. Domestic data roaming is any data usage in the U.S. carried on a carrier’s network.
FORCE MAJEURE EVENTS: Various conditions beyond Syncwise’s control may prevent or delay its affiliates, Service Partners or other third parties from providing the Service to Customer or impair the quality of Service. These conditions include, but are not limited to, atmospheric, geographic, or topographic conditions (such as buildings, hills or tunnels); improper installation of the device; incompatibility of the with Customer’s Phone and/or Asset; damage to or failure to maintain the Asset, Phone, or the System in good working order and in compliance with this Agreement or applicable laws, rules or regulations; inclement weather; failure, congestion or outages of utility or wireless networks (including interruption of wireless service); war, acts of God, natural disaster, labor strikes or other acts, forces or causes beyond Syncwise, its affiliates or Service Partners’ control. In the event any of the foregoing prevent or interfere with the Service, Syncwise may, in its sole discretion, suspend or terminate the Service (in whole or in part) or cancel Customer subscription, without notice and without any liability. Syncwise, its affiliates and Service Partners are not responsible for any Service or System failures, interruptions, delays or impairments due to these causes and Customer are not eligible for any credit or refund, in whole or in part, as a result, except to the extent otherwise set forth in this Agreement.
LIMITS ON USE OF THE SYSTEM: Customer agrees not to use the device, Service or any other service Syncwise may offer, including the App, in any way that is illegal, fraudulent or abusive, including to harass, threaten, abuse, defame, or slander, any individual or entity. Customer may not use the Service to track another person, or business, Asset without their knowledge or consent. Customer may not use the Service in a manner that interferes with any other customer’s use of the Service or our provision of the Service to our other customers. Customer agrees to not abuse or damage Syncwise, its affiliates or Service Partners’ respective business, operations, services, reputation, employees, equipment, property or facilities. Customer agrees to not harass, threaten or use vulgar and/or inappropriate language towards any customer service representatives. Syncwise, its affiliates and Service Partners provide the Service, for Customer use only and not for re-sale. Certain information Customer receive through the Service is the property of Syncwise, its affiliates, Service Partners or other third parties and it may be subject to one or more copyrights, trademarks, service marks, patents, or other legal protections. Customer may not, permit or cause any other party to, sell or resell or otherwise use anything provided to Customer, including the Service, for commercial purposes, nor may Customer reproduce, copy, modify, make derivative works from or otherwise display or distribute it.
TERMS ABOUT SPECIFIC SERVICES: The Features may change from time to time and may vary depending on Customer subscription or the laws, rules, or regulations of the state in which Customer live. For the most current description of Services, please visit the App.
IF THE ASSET LOSES BATTERY POWER, SUSTAINS DAMAGE TO CRITICAL ELECTRICAL WIRING OR SUBSYSTEMS FOR ANY REASON (INCLUDING BEFORE, DURING, OR AFTER AN ACCIDENT) THE DEVICE AND SERVICE MAY NOT OPERATE
ASSET INFORMATION ASSISTANCE: Syncwise is not always able to locate the Asset. Customer agrees Syncwise can disclose to its Service Partners and law enforcement all information about the Asset available and obtained since the date the Asset was taken, including without limitation, the latitude and longitude of the Asset, prior Asset locations, Asset speed, and direction the Asset is driving. Customer consent for this disclosure will last for approximately 30 days from the time the information was recorded, or until the Asset is found, whichever is earlier. Syncwise is not required to attempt to locate the Asset, or retain data for more than 30 days. During this time, Syncwise may share the Asset’s information with law enforcement, or pursuant to a subpoena, as needed to attempt to locate the Asset or Asset’s information. Customer consents to the disclosure of the information contained in this section. To the extent the Service provides the ability to locate the Asset, in no case should Customer attempt to locate a stolen Asset. Such investigations are for law enforcement to conduct.
LOCATION: Customer may view the location of the Asset and recent location history. It may take a significant amount of time to locate the Asset or update its location. Syncwise does not guarantee the accuracy of the travel history recorded and provided. Each time Customer uses a location feature, Customer agrees Syncwise may disclose to its Service Partners all necessary information to provide the Service, including, without limitation, the latitude and longitude of the Asset. IT IS CUSTOMER’S RESPONSIBILITY TO NOTIFY EVERYONE WHO USES THE ASSET THAT LOCATION FEATURE(S) ARE ACTIVE AND ALLOW ACCESS TO ASSET LOCATION INFORMATION.
To access all aspects of the Service, the primary account holder must set-up an account for the App. At the discretion of the primary account holder, additional users can access certain information via the App. If the primary account holder closes the account, all additional user accounts will be closed. The primary account holder can remove or alter additional user access.
If Customer is a Corporate Subscriber, the employer is the account holder. Customer cannot make any account changes. If Customer’s employer closes the account, the service will be terminated. Customer’s employer controls access to the account. Customer’s employer can view the Asset data, including its location and its use and manner of operation, via the App.
STORED DATA: The data stored by Syncwise, its affiliates, Service Partners or third parties may be deleted, without notice, or otherwise be restricted and have limited use. Data stored as part of the Service may be deleted, modified or damaged by Syncwise, it affiliates or Service Partners. Syncwise has no responsibility in connection with the storage or maintenance of any Service data or guarantee that collection of any data will be timely or error-free. Customer agrees that collection, maintenance and use of data in connection with the Service is subject to limitations and restrictions outside of Syncwise’s control, including those described in this Agreement.
OPERATE RESPONSIBLY: Customer has full responsibility and assume all risks related to the use of the Asset. Only use the Service when it is safe to do so. Failure to do so may result in serious injury or death. Customer are responsible for following all applicable laws, rules, and regulations, including requirements of relevant government regulatory bodies, applicable to the use of the Service.
COMPLIANCE WITH TERMS: Customer is responsible for compliance with this Agreement; compliance of all occupants of the Asset; additional users of Customer subscription; and users of the Asset, whether or not authorized by Customer. Customer agrees to make all other drivers, passengers or guests of the Asset aware of this Agreement and Services. Customer is solely responsible for the use of the Service for the Asset, even if Customer is not the one using the Service and even if Customer later claims another person’s use was not authorized. If Customer has Corporate Subscribers on Customer’s account, Customer is responsible for Customer own compliance with this Agreement and compliance of all Corporate Subscribers using Customer’s account.
NOT INSURANCE: The Service is not an insurance product and Syncwise is not an insurance company. The Service does not insure Customer, any property, the Asset or anyone else.
ACCOUNT INFORMATION/SECURITY MEASURES: Customer will provide Syncwise with true and accurate information which Customer must keep up to date. Customer is responsible for ensuring Syncwise has Customer current and valid Phone number and email address. Standard text data rates apply.
Customer shall immediately notify Syncwise of any breach of security or unauthorized use of Customer’s subscription. Syncwise is not liable for any losses resulting from unauthorized access or use of the Service or Customer’s subscription. Customer is liable to Syncwise and/or other parties due to unauthorized use.
Customer shall not copy, reproduce, distribute, decompile, reverse engineer, disassemble, remove, alter, circumvent or otherwise tamper with any security technology, convert to any use not authorized by Syncwise or claim ownership in the Service or any other party’s information or materials associated with the Service. Customer will not remove, modify, or obscure any copyright notices, trademarks, or other proprietary rights notices or contained in or on any portion of the Service or any information or materials on or obtained from the Service.
COMMUNICATIONS FROM SYNCWISE AND/OR SERVICE PARTNERS: Syncwise, its affiliates and Service Partners may communicate with Customer by messages through the System or App, billing address, email, Phone number or other contact information. Syncwise and its affiliates may contact Customer about products, specials and promotions, which may relate to the Service or not. Syncwise may use Customer contact information to send information about products, services or offers. With Customer consent, Syncwise may provide Customer contact information to its Service Partners who may send Customer information about products, services or offers. All emails from Syncwise for offers will provide a link to unsubscribe to all future email offers. If Customer does not want to receive emails about offers, products or from third parties, Customer may remove itself from marketing. If Customer chooses not to receive marketing emails, Customer may still receive emails regarding the Service, subscription, system status, other Service-related issues and order status updates provide Customer with the optimal user experience. Syncwise may use Customer name, postal delivery information and Phone number to contact Customer for various purposes, including marketing purposes, including autodialed calls/text messages, prerecorded or artificial voice messages in connection with Customer account, the Service provided. Customer consents to allow Syncwise, its affiliates and Service Partners to contact Customer about account status, including past due or current charges, using prerecorded calls, email and calls or messages delivered by an automatic Phone dialing system to any Phone number or email address.
**OWNERSHIP OF THE SYSTEM:** Upon ordering the device or signing up for the Service, Syncwise will send Customer the System and subscription information, if applicable. THE DEVICE WILL BELONG TO THE CUSTOMER SUBJECT TO THE TERMS OF THIS AGREEMENT, IF CUSTOMER OR SYNCWISE CANCEL THE SERVICE PRIOR TO THE END OF THE SUBSCRIPTION CUSTOMER SHALL NOT RECEIVE ANY REFUND OR PRO-RATA REFUND OF FEES PURSUANT TO THIS AGREEMENT.
OWNERSHIP/CONFIDENTIALITY: All information and software provided by the Service, including the App, is and will remain Syncwise’s sole and exclusive property. Customer will not publish, broadcast, retransmit or otherwise reproduce the information or software in any way. Any violation of this restriction is an infringement of copyright or proprietary rights in the information and software. As between Customer and Syncwise (including affiliates and applicable Service Partners) own or license all such information and software and Customer does not acquire any rights in such information and software, including any right to use or modify the software (other than in accordance with this Agreement). Syncwise may update the software contained in the System, at its sole discretion, remotely without any notification. Software updates or changes may affect or erase data or metadata stored in the Service or the App. Syncwise is not responsible for any affected or erased data due to a software update or change.
DISCLAIMER OF WARRANTIES: Syncwise makes no representations or warranties, express or implied, including to the extent permitted by applicable law, any implied warranty of merchantability or fitness for a particular purpose, about the Service, the device or App. Syncwise does not warrant that the System will work perfectly or not need occasional upgrades, modifications or not be negatively affected by network-related modifications, upgrades or similar activity. Syncwise does not warrant the information Customer receive from the App will be accurate or complete. If the System does not capture Customer location, Syncwise may report the last known location of Customer Asset instead.
Through Customer use of the Service, Customer may have the opportunity to engage in commercial transactions with Syncwise’s affiliates, Service Partners and other vendors. Customer acknowledges all transactions relating to any merchandise or services offered by any party, including, but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between the seller of such merchandise and services and Customer. SYNCWISE MAKES NO WARRANTY TO ANY TRANSACTION EXECUTED THROUGH, OR IN CONNECTION WITH THE SERVICE OR APP, AND CUSTOMER UNDERSTANDS AND AGREES THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT CUSTOMER’S OWN RISK. ANY WARRANTY PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THE APP AND/OR THE SERVICE, FROM A THIRD-PARTY IS PROVIDED SOLELY BY SUCH THIRD-PARTY, NOT SYNCWISE.
Some states and/or jurisdictions do not allow the exclusion of certain warranties, so some of the above limitations may not apply to Customer.
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THE USE OF OR ANY RELIANCE UPON ANY INFORMATION OR CONTENT AVAILABLE THROUGH THE SERVICE IS SOLELY AND COMPLETELY AT CUSTOMER’S OWN RISK AND RESPONSIBILITY, THE INFORMATION OR CONTENT MAY NOT ALWAYS BE ACCURATE. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO ENSURE CUSTOMER (AND/OR ANY USER OR OCCUPANT OF THE ASSET) EXERCISES GOOD JUDGMENT, OBEYS TRAFFIC AND ALL OTHER APPLICABLE LAWS AND REGULATIONS WHEN OPERATING THE ASSET, ACCESSING AND/OR USING THE SERVICE, PERMITTING OTHERS TO USE THE ASSET AND/OR EVALUATING WHETHER THE USE OF ANY OF THE FEATURES ARE SAFE AND LEGAL UNDER THE CIRCUMSTANCES. THE FEATURES ARE INFORMATIONAL ONLY.
TO THE FULLEST EXTEND PERMITTED BY LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE AND DEVICE ARE EACH PROVIDED “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SYNCWISE MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, USE OR FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, USAGE OF TRADE, AND NONINFRINGMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE IN RESPECT TO THE SERVICE OR THE DEVICE. SYNCWISE DOES NOT WARRANT THAT THE SERVICE OR THE DEVICE WILL BE UNINTERRUPTED, ERROR FREE, SECURE, ACCURATE, RELIABLE, OR COMPLETE. SYNCWISE SPECIFICALLY DISCLAIMS ANY LIABILITY FOR END USER RELIANCE ON THE SERVICE OR THE DEVICE OR ANY RELATED CONTENT. WITHOUT LIMITING THE FOREGOING, SYNCWISE SHALL HAVE NO LIABILITY FOR HARM TO END USERS RESULTING FROM RELIANCE ON ANY CONTENT.
LIMITATION OF LIABILITY: Other than as set forth in this Agreement, Customer and Syncwise agree to limit claims against each other for damages or other monetary relief to direct damages. This limitation and waiver will apply regardless of the theory of liability. Neither Party shall attempt to obtain any indirect, special, consequential, treble or punitive damages from the other Party. This limitation and waiver also applies if Customer brings a claim against a Syncwise affiliate, supplier or Service Partner, to the extent Syncwise would be required to indemnify the affiliate, supplier or Service Partner for the claim. Customer agree Syncwise is not responsible for problems caused by Customer, others or by any act of God.
SYNWISE SHALL NOT BE LIABILE FOR ANY LOST REVENUES OR PROFITS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY, EVEN IF SYNCWISE KNEW OR SHOULD HAVE KNOWN SUCH DAMAGES WERE POSSIBLE, EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
THE LIABILITY OF SYNCWISE FOR ANY CLAIM RELATED TO THE SERVICE OR THE DEVICE SHALL NOT EXCEED THE AMOUNT OF THE MONTHLY FEE PAID BY CUSTOMER IN THE THREE (3) MONTHS PRECEEDING THE CLAIM GIVING RISE TO THE LIABILITY.
By accepting these Terms of Service, Customer ASSUME ALL LIABILITIES ASSOCIATED WITH NOTIFYING ALL CORPORATE SUBSCRIBERS WHO WILL UTILIZE THE SERVICE.
ARBITRATION: CUSTOMER AND SYNCWISE AGREE TO RESOLVE ANY DISPUTE ONLY BY ARBITRATION, MEDIATION OR IN SMALL CLAIMS COURT. CUSTOMER IS GIVING UP THE RIGHT TO BRING A CLAIM IN COURT OR IN FRONT OF A JURY. ARBITRATOR CAN AWARD DAMAGES AND RELIEF AND MUST HONOR THE SAME TERMS IN THIS AGREEMENT AS A COURT WOULD. IF THE LAW ALLOWS FOR AN AWARD OF ATTORNEYS’ FEES, AN ARBITRATOR MAY AWARD THEM. BOTH PARTIES AGREE THAT:
(1) THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT. EXCEPT FOR SMALL CLAIMS COURT CASES THAT QUALIFY, ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND SERVICES CUSTOMER RECEIVES FROM SYNCWISE (OR ADVERTISING FOR PRODUCTS OR SERVICES), INCLUDING ANY DISPUTES CUSTOMER HAS WITH SYNCWISE EMPLOYEES OR AGENTS, WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”).
(2) UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATION WILL TAKE PLACE IN SAN DIEGO, CALIFORNIA, USA. FOR CLAIMS OVER TEN THOUSAND DOLLARS ($10,000), THE AAA’S CONSUMER ARBITRATION RULES WILL APPLY. IN SUCH CASES, THE LOSER CAN ASK FOR A PANEL OF 3 NEW ARBITRATORS TO REVIEW THE AWARD. FOR CLAIMS OF $10,000 OR LESS, THE PARTY BRINGING THE CLAIM CAN CHOOSE EITHER THE AAA’S RULES FOR CONSUMER DISPUTES OR BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT. CUSTOMER CAN GET PROCEDURES, RULES AND FEE INFORMATION FROM AAA OR LOCAL COURT. FOR CLAIMS OF $10,000 OR LESS, ARBITRATION MAY BE CARRIED OUT BASED ONLY ON DOCUMENTS SUBMITTED TO THE ARBITRATOR, OR BY A HEARING IN PERSON OR BY PHONE.
(3) THIS AGREEMENT DOESN’T ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT. ANY QUESTION REGARDING THE ENFORCEABILITY OR INTERPRETATION OF THIS PARAGRAPH SHALL BE DECIDED BY A COURT AND NOT THE ARBITRATOR.
(4) IF EITHER PARTY SEEKS ARBITRATION UNDER THIS AGREEMENT, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE SHOULD BE SENT TO SYNCWISE 530 B STREET, SUITE 300, SAN DIEGO, CA 92101. THE NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND RELIEF SOUGHT. IF THE PARTIES ARE UNABLE TO RESOLVE THE DISPUTE WITHIN 30 DAYS, EITHER PARTY MAY PROCEED TO FILE A CLAIM FOR ARBITRATION. IF CUSTOMER PROVIDES SYNCWISE A SIGNED AND WRITTEN NOTICE THAT CUSTOMER CANNOT PAY THE FILING FEE, SYNCWISE SHALL PAY THE FILING FEE DIRECTLY TO AAA FOR ARBITRATION OF THE DISPUTE. IF ARBITRATION PROCEEDS, SYNCWISE WILL PAY ADMINISTRATIVE AND ARBITRATOR FEES.
(5) SYNCWISE OFFERS CUSTOMERS THE OPTION OF PARTICIPATING IN A MEDIATION PROGRAM. CUSTOMER HAS ALL THE RIGHTS AND PROTECTIONS OF A MEDIATOR AND THE PROCESS HAS ALL THE PROTECTIONS ASSOCIATED WITH MEDIATION. SUCH AS, NOTHING SAID IN MEDIATION CAN BE USED LATER IN AN ARBITRATION OR LAWSUIT.
(6) AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CANNOT BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.
(8) IF FOR ANY REASON THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH IN SUBSECTION (3) CANNOT BE ENFORCED, THE AGREEMENT TO ARBITRATE IS VOID.
(9) IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN ARBITRATION, THE PARTIES AGREE THERE WILL NOT BE A JURY TRIAL. THE PARTIES UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT.
WAIVER/SEVERABILITY: No waiver of any part of this Agreement, or of any breach of it, in any instance waives any other instance or breach. No term or condition of this Agreement is waived and no breach is waived unless that waiver is in writing and signed by both Parties. If any section of this Agreement is declared invalid or unenforceable, including anything regarding the arbitration process (except for the prohibition on class arbitrations as explained in the arbitration section above), that section may be removed from this Agreement. All other sections of this Agreement are still valid and enforceable.
RELATIONSHIP BETWEEN PARTIES: Notwithstanding anything else herein, this Agreement does not create any fiduciary relationships between the Parties, or between Customer and any affiliate or Service Partner. This Agreement does not create any relationship of principal and agent, partnership or employer and employee between the Parties or between Customer and any affiliates or Service Partners, nor does it create a relationship between Syncwise and a secondary user on Customer account. This Agreement does not create any such relationship between Syncwise and a Corporate Subscriber.
THIRD-PARTY BENEFICIARIES: Without limitation of anything else set forth herein, Customer has no contractual relationship whatsoever with any of Syncwise’s affiliates or Service Partners and this Agreement does not give Customer any rights against any affiliate or Service Partner. Customer is not a third-party beneficiary of any agreement between Syncwise, any affiliate or Service Partner. No affiliates or Service Partners have any legal, equitable, or other liability of any kind to Customer under this Agreement. In contrast, Syncwise parent companies, affiliates subsidiaries, agents, predecessors in interest, successors in interest and Service Partners are intended beneficiaries of the protections contained in this Agreement relating to limitations regarding the Service and its use and limitations on liability.
ASSIGNMENT: Syncwise may assign this Agreement, or any debt Customer owes, in whole or part, to any individual or entity, at any time, without notice, in Syncwise’s sole discretion. Customer cannot assign this Agreement, or any portion thereof, without Syncwise’s written consent and any attempted assignment without Syncwise’s written consent is null and void.
OPEN SOURCE NOTIFICATION: This product and Service contains certain software that is covered by open source licensing requirements. All open source software contained in this product is distributed WITHOUT ANY WARRANTY. All such software is subject to the copyrights of the authors and to the terms of the applicable licenses included in the download.
ENTIRE AGREEMENT: This Agreement is the entire agreement between the Parties. It supersedes all other agreements, communications or representations, oral or written, past or present. Syncwise is not responsible for any statements, agreements, representations, warranties or covenants, oral or written, including, without limitation, any statements from third parties, anything said by Sales or customer service representatives, concerning or relating to the Device or the Service provided to Customer pursuant to this Agreement or Customer subscription, unless such statements, agreements, representations, warranties or covenants are expressly contained in this Agreement or a document incorporated by into this document. This Agreement and any disputes covered by it are governed by federal law and the laws of the State of California, excluding its conflict of law provisions.