iTracking Asia IoT Platform
Terms of Service
Date: 08th of March 2022
These Terms of Service (this “Agreement”) create a binding agreement between iTracking Asia Co. Ltd., with an address of 120/243 Maneeya Villag, Soi A7, Soi Wachiratthammasathit 12, Sukhumvit Rd. 101/1, Bangna, Bangkok 10260, Thailand (“iTA” or “the Company”) and you (‘the User”, “End User”, “You” or “Your”). This Agreement governs your purchase of products, access and use of the iTracking Asia IoT Platform which includes iTA Hardware (the “iTA Hardware”), and iTracking Asia IoT cloud-based services platform (the “Service” or “iTA IoT Cloud”) and any related software, services and documentation as may be made be available through our website, any optimized version of our website via a wireless device or through our mobile application (collectively the “Services”).
BY PURCHASING ANY HARDWARE AND MAKE USE OF iTA IoT CLOUD, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT (1) YOU HAVE CAREFULLY READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, (2) YOU ARE 18 YEARS OF AGE OR OLDER OR OTHERWISE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT\, AND (3) IF END USER IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF END USER AND BIND THE END USER TO ITS TERMS.
IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, iTA DOES NOT INTEND TO SELL ANY OF IT’S HARDWARE TO YOU, OR GIVE YOU ACCESS TO THE iTA IOT CLOUD. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT TRYES TO GET ACCESS TO iTA IOT CLOUD OR PROPERTY SOFTWARE ON ANY PEACE OF HARDWARE (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE), AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING THE SERVICES THAT YOU DID NOT LAWFULLY ACQUIRE THE RIGHT TO ACCESS OR USE, OR THAT IS NOT A LEGITIMATE, ACCESS TO iTA IOT PLATFORM OR ANY OTHER PORTION OF THE SERVICES.
1. Account Creation; Subscriptions; Renewals and Terminations.
1.1 In order to use the Services provide by the Company, you must first agree to purchase hardware from the Company, where after an account can be created. Certain users are or may be designated as administrative users (“Admin Users”). Admin Users can create additional authorized user accounts and assign certain permissions to such additional accounts. Depending on the level of permissions assigned to your user account, you may not have access to or be able to view or use all of the functions or features of the Services.
1.2 You may need to provide certain registration details or other information on behalf of yourself for the account to be created and to otherwise access and use the Services. It is a condition of your access and use of the Services that all the information you provide is correct, current, and complete.
1.3 The Services are available under a premium (fee-based) monthly, half yearly or annual subscription plan as offered by the Company. Your agreement for purchasing a paid subscription plan becomes binding upon accepting the purchase of hardware from the Company. Each premium subscription term, will automatically renew for the agreed term (e.g. 1 month, 6 months or 12 months), unless you cancel the subscription before the current term expires with 3 month notice. The full amount for each renewal term will be charged on the first day of the renewal.
1.4 If You terminate a premium subscription plan, your account will become unusable and your access to the Services will be terminated. Users are not entitled to any refund of subscription fees. The Company are under no further obligations to you upon your termination of the subscription. The Company reserves the right to cancel paid subscriptions at any time for any reason.
2.1 The Company shall issue invoices for Hardware to be delivered to the User and for Subscription fees depending on Subscription period agreed between the User and the Company.
2.2 The User must pay the Charges to the Company within the period of 14 days following the issue date of an invoice.
2.3 The User can pay the Charges by any legal payment method, such as; cash, direct debit, bank transfer or bank check, however the User has to inform how the payment will be made and provide prof of payment no later the 7 days after payment.
2.4 If the User does not pay any amount properly due to the Company under this Agreement, the Company may:
(a) Charge the User interest on the overdue amount at the rate of 8% per annum above the Bank of Thailand base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) Claim interest and statutory compensation from the User pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
3. Access Rights.
Subject to the terms of this Agreement and Your strict compliance thereof, the Company grants You a limited, non-exclusive, nontransferable, right to (a) access and use the Services as made available by the Company and download any information related to the User, and (b) access, stream, download and/or use Documentation as well as any content made available or otherwise accessible through the Company’s websites or mobile application.
4. User Data
4.1 The User hereby grants to the Company a non-exclusive license to copy, reproduce, store, adapt, edit and translate the User Data to the extent reasonably required for the performance of the Company’s obligations and the exercise of the Company’s rights under this Agreement. The User also grants to the Company the right to sub-license these rights to its hosting service providers, subject to any express restrictions elsewhere in this Agreement.
4.2 The User warrants to the Company that the User Data when used by the Company in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
4.3 The Company shall create a back-up copy of the User Data at least one time monthly, shall ensure that each such copy is sufficient to enable the Company to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
4.4 Within the period of 3 Business Day following receipt of a written request from the User, the Company shall use all reasonable endeavors to restore to the Platform the User Data stored in any back-up copy created and stored by the Company in accordance with Clause 4.3. The User acknowledges that this process will overwrite the User Data stored on the Platform prior to the restoration.
5. No assignment of Intellectual Property Rights
Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Company to the User, or from the User to the Company.
6. The Company confidentiality obligations
6.1 The Company must:
(a) keep the User Confidential Information strictly confidential;
(b) not disclose the User Confidential Information to any person without the User prior written consent, and then only under conditions of confidentiality approved in writing by the User;
(c) use the same degree of care to protect the confidentiality of the User Confidential Information as the Company uses to protect the Company’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the User Confidential Information; and
(e) not use any of the User Confidential Information for any purpose other than needed for the Company to provide it’s agreed services to the User.
6.2 Notwithstanding the above, the Company may disclose the User Confidential Information to the User officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
6.3 This Clause 6 imposes no obligations upon the the Company with respect to Customer Confidential Information that:
(a) is known to the the Company before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Company; or
(c) is obtained by the Company from a third party in circumstances where the Company has no reason to believe that there has been a breach of an obligation of confidentiality.
6.4 The restrictions in this Clause 6 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Company on any recognized stock exchange.
6.5 The provisions of this Clause 6 shall continue in force for a period of 3 years following the termination of this Agreement, at the end of which period they will cease to have effect.
7. Acknowledgments and warranty limitations
(a) The User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
(b) The User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Hosted Services will be entirely secure.
(c) The User acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Company does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
(d) The User acknowledges that the Company will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Company does not warrant or represent that the Hosted Services or the use of the Hosted Services by the User will not give rise to any legal liability on the part of the User or any other person.
8. Limitations and exclusions of liability.
8.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
8.2 The limitations and exclusions of liability set out in this Clause and elsewhere in this Agreement:
(a) are subject to the Clause 8.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
(c) The Company shall not be liable to the User in respect of any losses arising out of a Force Majeure Event.
(d) The Company shall not be liable to the User in respect of any loss of profits or anticipated savings.
(e) The Company shall not be liable to the User in respect of any loss of revenue or income.
(f) The Company shall not be liable to the User in respect of any loss of use or production.
(g) The Company shall not be liable to the User in respect of any loss of business, contracts or opportunities.
(h) The Company shall not be liable to the User in respect of any loss or corruption of any data, database or software.
(I) The Provider shall not be liable to the User in respect of any special, indirect or consequential loss or damage.
9. Force Majeure Event.
9.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement, other than any obligation to make a payment, that obligation will be suspended for the duration of the Force Majeure Event.
9.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
10. No Obligation of Support or Updates.
10.1 You agree that, unless specified within the Users premium paid subscription plan, the Company has no obligation to provide Services support or updates, upgrades, bug fixes, patches, enhancements and other error corrections, new features, or technical support for the Services (collectively, including related documentation, “Support/Updates”), or to continue to provide or enable any particular features or functionality.
10.2 The Company may from time to time, however, in its sole discretion develop and provide Support/Updates without any notice to You on the iTA IoT Cloud. Support/Updates may also modify or delete in their entirety certain features and functionality. Support/Updates may be made automatically without any need for your interaction to devices connected to the iTA IoT Cloud, however if You receive notice of downloading and installing an Update to a device connected to the iTA IoT Cloud, You shall promptly download and install all Support/Updates, and acknowledge and hereby agree that the Services or portions thereof may not properly operate should You fail to do so.
11.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
11.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
11.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
11.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
11.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
11.6 Subject to Clause 8.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
11.7 This Agreement shall be governed by and construed in accordance with [English law].
11.8 The courts of [England] shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
12. Contact Information.
If you have questions or comments about the Services or this Agreement, please contact us by e-mail or mail at the address below:
iTracking Asia Co. Ltd.,
120/243 Maneeya Villag,
Soi Wachiratthammasathit 12,
Sukhumvit Rd. 101/1,
Bangna, Bangkok 10260