This Tracking Service Agreement (the "Agreement") is made and entered into by and between TrackMyKid India Private Limited ("TMK"), an Indian Company, and the customer identified in the Customer Form ("Customer").
The Customer declares and warrants that he is fully competent to enter into this Agreement. The Customer acknowledges that he has read and fully understood the terms and conditions of availing Tracking Services of TMK mentioned herein-under and is bound by the same.
However, TMK reserves its right to reject this Agreement upon noticing any non-compliance, misrepresentation, incomplete or incorrect information or unauthorized use of TMK’s Hardware or Services.
The terms and conditions herein contained shall constitute a legally valid, binding and subsisting Agreement between TMK and the Customer. No change in the information tendered by the Customer in the Customer Form shall be valid till the time such change is duly accepted in writing by TMK. Customer hereby authorizes TMK to modify the terms and conditions of provision of Service and Hardware.
The Service shall be activated only when the Customer duly signs this Agreement along with submission of KYC documents and makes the entire payment as per chosen Scheme and selected Package/s.
1.1 "Customer" means the person to whom the Service and Software is licensed for the limited purpose of this Agreement and to whom the Hardware is provided and also includes all those who access the Website of TMK or mobile application using login id and password.
1.2 “Customer ID” shall mean the unique Customer identification code issued to the Customer for purposes of accessing his/her Customer account maintained with TMK.
1.2 "Documentation" means that certain TMK proprietary documentation/s, which are generally made available by TMK to its Customers for use with the Software and Service.
1.3 "Fees" means the applicable charges payable by the Customer for availing Services and any applicable taxes thereto.
1.5 "Hardware" means the tracking device (wearable or non-wearable), its charger and sim-card along with paired and enabled Software to the avail the Services.
1.6 "Images" means the images contained in and produced by the TMK Services.
1.7 "License" means the license to use the Software. The License is granted pursuant to the provisions of this Agreement.
1.8 “Customer Form” means the TMK Customer Form completed by the Customer manually or online, along with any and all annexure/s, schedule/s, amendment/s signed by the Customer. Each Customer Form along with any and all annexure/s, schedule/s, amendment/s will incorporate the terms and conditions mentioned herein.
1.9 "Services" means the TMK tracking Services by which the Customer is able to view and monitor the location of the Hardware and includes all features such as geo-fencing, history of past movement delivered using the Hardware.
1.10 “Service Area” means the selected Service Area cautiously and voluntary chosen by the Customer under the Customer Form for the purpose of availing the Services of TMK.
1.11 "Software" means the proprietary and/or non-proprietary computer program/s used by TMK, computer or mobile Web application downloaded by Customer to avail the Service(s) and access to other information relevant information by the Customer.
1.12 "Term of Service" shall mean a period of time as defined by the Customer Form/ herein-after.
1.13 Web Application means downloadable software which is installed on Customer’s computer or mobile for availing the Service.
2. USE OF HARDWARE & SOFTWARE; LICENSE
2.1 License: Subject to the terms and conditions of this Agreement, and in consideration of Customer's payment of all Fees, TMK grants to Customer (and Customer agrees to comply with) a non-sub licensable, non-transferable, non-exclusive, terminable, limited License for the Term of Service to avail of the Service specified in the Customer Form using the Hardware provided by TMK.
2.2 License Restrictions: In no event will Customer use or reproduce any Image via copy, screenshot, or image copy Software for purposes of display on any website, brochure, or similar material without express written permission of TMK. Rights not expressly granted by this Agreement are reserved by TMK. TMK retains title to the Hardware, Software and Documentation and any copies thereof, including the originals provided with this Agreement.
3. OWNERSHIP: RESTRICTED USE.
3.1 Title: The Hardware is offered to the Customer only for the limited and specific purpose of availing Services, as per the terms and conditions of this Agreement. The possession and control of Hardware shall always remain with TMK and in no case Customer shall acquire any title, interest, absolute control/right/possession and ownership in the Hardware.
Customer acknowledges and agrees that, the Hardware is provided on entrustment, only for the purpose of availing the Services. Customer further acknowledges that the Services shall be activated on payment of the requisite activation charges, access service charges, additional access service charges and other applicable charges.
For the sake of clarity, no charges are levied on Customer by TMK, towards right to use of Hardware. In the event the Customer discontinues subscription of Services or the Customer’s subscription gets terminated due to any reason, the Customer shall be liable to return the Hardware, in working condition. Furthermore, if the Customer fails to return the Hardware then Customer agrees that he would be liable to pay the losses / damages / expenses, etc incurred by TMK in this regard and such Hardware will be made inaccessible / unusable by TMK.
The Customer shall not sell, or offer for sale, assign, mortgage, pledge, underlet, lent or otherwise deal with the Hardware or any interest in it and the Customer is obligated to take good care of the Hardware.
The Customer hereby agree and undertakes, to not to tamper, alter, modify or other-wise use the sim-card, independently, for any manner whatsoever. The Customer shall not detach, remove, substitute or change the sim-card from the Hardware. In the event, if Customer do so, the same shall amount to material breach of its obligations under this Agreement and TMK shall have the right to forthwith suspend or terminate the Services of the Customer, without prior notice to the Customer.
3.2 Restricted Use. Except as otherwise expressly provided in this Agreement, Customer has no right to transfer, sublicense or otherwise distribute the Hardware or Images, in whole or in part, to any third party. Customer agrees not to, or to allow others to: (i) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer the Hardware or create any derivative works based on the Hardware, Documentation or any component thereof, including without limitation, the source code and any other underlying ideas or algorithms of the Software or Graphic User Interface; (iii) transfer, sublicense, loan, sell, lease or use for timesharing or service bureau purposes the Product or any component thereof; or (v) ship, divert, transship, transfer, export or re-export the Hardware or any component thereof into any country or use it in any manner prohibited by any laws, restrictions, or regulations administered by any applicable government agency. For the avoidance of doubt, nothing in this Agreement grants to Customer any rights whatsoever in or relating to the source code of the Software.
4. Intellectual Property Rights
4.1 Title. For purposes of this Agreement, "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. Customer acknowledges that all right, title and interest, including without limitation all Intellectual Property Rights in and to the Service, remain in TMK and/or its third party licensors and suppliers, and that Customer shall not acquire any right, title, or interest in or to the Service, except as expressly set forth in this Agreement.
5. SERVICES AND SUPPORT.
5.1 The Customer can access the Services of TMK, only if the Hardware is in active state and in working condition. In case the Hardware is not switched on, then the Hardware device shall not be able to send or receive the signals, meaning thereby, the Customer shall not be able to view the location of the Hardware.
5.2 It is the responsibility of Customer, to keep the Hardware device in working condition and fully charged.
5.3 It is expressly clarified that, in case, if Customer experiences any issue with functioning of the Hardware device, the Customer should report the same to TMK. The Customer should not get device inspected and/or repaired by unauthorized personnel, any such act on behalf of Customer shall amount to tampering with Hardware device and will be construed as breach of terms and conditions of TMK Service Terms.
5.4 TMK shall not be liable, in any event whatsoever, for failure of delivery of Service, if the Hardware device is not in active state and in working condition.
5.5 The Customer should cautiously and with intelligent state of mind choose the Service Area, where the Customer intends to receive the Services. The Customer understands that TMK Services are available only in the Service Area, and the Customer shall not be able to track and/or receive the information about the whereabouts of the Hardware device, once the Hardware device is out of Service Area.
5.6 It shall be sole obligation of the Customer, to cautiously, appropriately and accurately define the geo-fence area with the Service Area. TMK shall be well within its right to presume the safety of Customer’s child, as long as the location of Hardware device is shown within the geo-fence area so chosen by the Customer. It shall, only in case, if the Hardware device, moves out of geo-fence area, the TMK systems shall send alerts by way of SMS, emails, and/or calls to Customer’s registered mobile number and emergency contact number to inform about Hardware device location being out of geo-fence, so to enable Customer to take appropriate corrective measures.
5.7 The Customer understands and acknowledges that, by availing TMK Services, the Customer is entitled to receive tracking and/or movement reports of Hardware device and in no manner whatsoever, TMK Services are meant to be construed as security services for anybody or anything. If, TMK systems, sends alerts to the Customer, when the Hardware device location is found to be outside geo-fence location, it shall be sole and absolute responsibility of Customer to take necessary corrective and security action, to ensure that it’s kid safety is not compromised.
6. User Manual.
The Customer may any time choose to download on-line user manual, in case if the Customer original user manual guide is lost, stolen, tampered, mutilated or defaced, for any reason whatsoever.
7. Data Retention.
The data sent by the Product is considered property of the Customer, including messages, statuses, GPS location, heading, sensor and all other transmissions as relates to the tracking and messaging of the Customer's Child. TMK will store this data for use for seven days. The Customer may change this data retention period, either increasing or decreasing the storage period, by contacting TMK. TMK will charge the Customer additional fees for an increase in the data retention period. When a Service is deactivated or unsubscribed, the Customer loses the right to access any data and TMK is under no obligation to make any such data available to Customer the access to same shall not be blocked.
Customer shall remit to TMK all fees including fees associated with: (i) monthly usage; (ii) setup; (iii) shipping and handling; (iv) activation; (v) access service; (vi) additional access service (vii) Web User; (viii) taxes; (ix) miscellaneous fees. 100% of the Fee is due in advance. Recurring fees are billed in advance. Customer acknowledges, understands and agrees that any delay, non-payment/s, partial payment/s, short payment/s, of Fee will lead to deactivation of Services, without prior notice. Any loss, damage, or consequence arising out of such deactivation of Services shall be at sole risk and expense of Customer and TMK services shall not be liable for any claims, for any reasons whatsoever, for the period during which Services was de-activated. TMK reserves the right to suspend Service. Customer agrees to pay all costs and expenses of every kind for collection of past due amounts.
9. GPS Update Explanation and Overages:
9.1 The Service is to be provided within the Service Area as defined and chosen by Customer. If the Customer uses the Hardware for Service outside the Service Area, it may lead to higher data utilization beyond the pre-fixed data limit agreed between TMK and the cellular network company.
9.2 TMK shall not be responsible if because of higher data utilization by Customer, the Service is not delivered as desired.
9.3 The Customer maybe liable to pay additional fees for higher data utilization than permitted.
9.4 GPS Coverage and Accuracy. The Global Positioning System is a constellation of satellites. The accuracy of the location of the person being monitored/tracked is highly depended on the Hardware being able to access GPS signal. TMK cannot guarantee the accuracy of the GPS location. Many factors, not under direct control of TMK, may affect the accuracy of the GPS location:
(i) Location of Hardware;
(ii) signal blocking from surrounding terrain and buildings;
(iii) signal disruption (jamming) from nearby installations including government or military installations.
(iv) interference due to a limited view of the GPS satellite constellation.
In general condition the actual position of the tracked person will be within the radius of 10 meters from the said location. Customer recognizes these factors and agrees to work with TMK to address any installation issues that might affect the performance of the Hardware.
10. LIMITED WARRANTY AND LIABILITY.
10.1 Wireless Service; Usability. Customer shall provide TMK with Child travel region(s) which TMK will use to select best cellular/satellite network based on coverage and affordability. Customer agrees that the Service will only function in real-time when the Hardware is within the operating range of the selected wireless network. TMK provides no warranty as to the availability of coverage of the selected wireless network. Customer acknowledges and agrees that the functionality of the Service is dependent upon and subject to the wireless transmission interruptions and limitations. Regarding pure satellite Service, the customer acknowledges that the Service will not function when not in direct line-of-sight view of the host receiving satellite.
10.2 Limited Software Warranty. TMK MAKES NO WARRANTY OR REPRESENTATION RELATING TO THE SOFTWARE, THE DOCUMENTATION, OR THIS AGREEMENT. TMK DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TMK DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE SOFTWARE IS WITHOUT DEFECTS OR ERROR.
10.3 Limited Hardware Warranty. TMK warrants the Hardware for a period of three (03) months except where stated otherwise. In the event of a Hardware failure, TMK shall repair or replace the same, per TMK's discretion. Replacement Hardware may be the same product or a different product, per TMK's discretion. Replacement Hardware may be used, new, or refurbished, per TMK's discretion. This limited Hardware warranty shall not apply to any damage to the Hardware due to misuse, abuse, tampering with said Hardware.
10.4 Limited Liability. TMK SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF TMK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TMK is not responsible for any costs incurred as a result of the use of the Software, including but not limited to, lost profits or revenue, loss of data, costs of recreating data, the cost of any substitute equipment or program, or claims by any third party. TMK AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SOFTWARE OR DOCUMENTATION IS LIMITED TO AN AMOUNT EQUIVALENT TO CUSTOMER'S LAST THREE MONTHS OF RECURRING MONTHLY FEES.
11. Cancellation and Return Policy.
11.1 In event if Customer, desires to cancel or deactivate the Service, they can do so provided they have used and paid for minimum 6 months of Fees.
If the Customer has paid for full year service, but terminates earlier than 12 months, then TMK shall refund the balance of Fees provided the period of subscription is more than 6 months and the Customer has returned the Hardware completely and in working condition without any damage.
If the any part of the Hardware is damage and not reusable, then the Customer will be asked to pay for the replacement cost of such Hardware.
12. Sole Remedy.
THE PROVISIONS OF SECTION 10 OF THIS AGREEMENT DEFINE THE SOLE AND EXCLUSIVE REMEDIES OF CUSTOMER.
13. GENERAL PROVISIONS.
13.1 Entire Agreement. This Customer Form (along with Service Area schedule, Document/s, amendment/s, policy(ies)) entire agreement between TMK and the Customer. No distributor, employee, or other person is authorized by TMK to modify this Agreement or to make any warranty or representation, which is different than, or in addition to, the warranties and representations of this Agreement
13.2 Governing Law. This Agreement shall be governed by the laws of INDIA and the courts of Mumbai shall have sole and exclusive jurisdiction to adjudicate any dispute arising out of this Agreement.