”) ESTABLISHES THE TERMS AND CONDITIONS THAT APPLY TO YOU WHEN YOU USE THE SERVICE (AS DEFINED BELOW). BY USING THE SERVICE, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS WELL AS ALL APPLICABLE LAWS AND REGULATIONS. YOU ARE NOT PERMITTED TO USE THE SERVICE IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT CAN BE CHANGED, MODIFIED, SUPPLEMENTED, AND/OR UPDATED BY TRAMIGO INC. (“TRAMIGO
,” OR “US
”) AT ANY TIME; PROVIDED THAT WE WILL ENDEAVOR TO PROVIDE YOU WITH PRIOR NOTICE OF ANY MATERIAL CHANGES. YOUR CONTINUED USE OF THE SERVICE AFTER THE MODIFICATION OF THIS AGREEMENT MEANS THAT YOU ACCEPT ALL SUCH CHANGES. ACCORDINGLY, YOU ARE ADVISED TO CONSULT THIS AGREEMENT EACH TIME YOU ACCESS THE SERVICE IN ORDER TO VIEW ANY CHANGES TO THIS AGREEMENT. THIS AGREEMENT WAS LAST MODIFIED AS OF THE DATE INDICATED ABOVE.Local Legal Restrictions: if You are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this agreement according to age and You are under such a jurisdiction and under such age limit, You may not enter into this Agreement and download, install or use the Tramigo Software. Furthermore, if You are residing in a jurisdiction where it is forbidden by law to offer or use software for internet communication, You may not enter into this Agreement and You may not download, install or use the Tramigo Software. By entering into this Agreement You explicitly state that You have verified in Your own jurisdiction if Your use of the Tramigo Software is allowed.
1. Use of Web Site, Mobile Applications, and our Service
” is Tramigo’s websites located at www.tramigo.com, www.tramigoy5.com and mobile applications, as each may be updated, relocated, or otherwise modified from time to time, including through networks, embeddable widgets, downloadable software, and tablet computer applications, and all intellectual property contained therein. The Service provides a GPS-GSM device allowing you to find and track the device with a network (the “Tramigo Network
”) through which Tramigo can provide locations (each, a “Location
”) to consumers. Any person who accesses and/or uses the Tramigo Network to locate a device on his or her own behalf, or on behalf of any third party, will be referred to herein as a (“Tramigo Member
Subject to the terms and conditions of this Agreement, Tramigo hereby grants you a limited revocable, non-exclusive, non-transferable license to access and use the Service, solely in the manner intended by Tramigo. Unless otherwise specified in writing, the Service is solely for your personal use and not for resale. Tramigo reserves the right at all times and without notice to: (i) restrict and/or terminate your access to the Service (or any portion thereof); and (ii) modify or discontinue providing the Service (or any portion thereof).
Tramigo will provide data connectivity services under this Agreement and mobile voice and SMS communications are not provided. We shall take all reasonable steps to make the Services available to you at all times, contingent upon our and/or our service provider's ability to maintain necessary licenses or permissions, or our and or our service provider's network capacity and connection availability. Please note that the network operator in the country of use will be responsible for network coverage, quality and availability.
We do not warrant or guarantee a fault free Service and give no warranties or guarantees as to network coverage, quality or availability. In the event of a fault, upon becoming aware of the fault or upon receipt of notice of the existence of such a fault by you, we shall use reasonable efforts topromptly correct the fault.
We reserve the right to choose our network operators and technology partners as we deem appropriate and to provide access to the Services in any manner we deem in the best interest of our business requirements.
You acknowledge that the Services are not a suitable way of contacting Emergency Services and if used where there is no wireless signal or wireless service, it is highly probable the communication will not go through. The End User must not rely solely on the Tramigo’s SIM card in an emergency situation. In an emergency, the End User must locate the nearest landline phone and call for help.
Tramigo is providing the Services to the End User under this Agreement subject to its ability to provide those Services using certain wholesale agreements and subject to the laws of the respective countries in which the Services will be provided. If the parties with whom Tramigo is contracted to enable the provision of the Services cease to provide services to Tramigo or are prohibited by law from providing services to Tramigo, Tramigo shall be unable to continue to provide the Services to End User. Tramigo shall endeavor to provide as much written notice as reasonably possible to End User in that circumstance but shall bear no liability to End User if that circumstance arises.
From time to time, we may be required to upgrade, modify or maintain the Services. On such occasions the Services may be temporarily unavailable, however, we will endeavor to keep such disruption to a minimum and notify you in advance when reasonably practicable.
We reserve the right to suspend the Services, or the Services to any End User(s), as appropriate, without giving you notice where:
- i) we have reason to believe you or an End User is in breach of the Agreement including but not limited to where we suspect fraudulent use, excessive usage or breach of any of our policies;
- ii) there are any outstanding bills or Service charges which have not been paid when they are due for payment andTramigo has provided reasonable written notice for remedying the non payment of the outstanding bills;
- iii) we are notified that the SIM card licensed to you and any End User by us is lost or stolen;
- iv) we are obliged to comply with an order, instruction or request of any government, regulatory, or emergency services organization, our contractual obligations with our Suppliers or other competent administrative authority;
- v) in order to prevent damage or degradation of our or ourcontracting party's network integrity which may be causedby you or anyone using your access;
- vi) there is an emergency or for security reasons,
- vii) we may at our discretion bar or disconnect an End User’s SIM card if we have noticed any form of fraudulent use including relating to a SIM card or Device whilst using the Service.
We may monitor the Services and disclose information gained from such monitoring in order to satisfy any law, regulation or other governmental request, to operate and administer the Services, or to protect us or our other customers.
2. Registration, Accounts, Passwords and Security
a. Tramigo Members.
In order to become a Tramigo Member, you must complete the registration process by providing Tramigo with current, complete and accurate information, as prompted by the applicable registration form.
b. Accuracy of Information.
You acknowledge that in the event you provide any information to Tramigo which is untrue, inaccurate, not current or incomplete, Tramigo may terminate this Agreement and your continued access and use of the Service.
You represent and warrant that you are at least eighteen (18) years of age, that you have not been previously suspended or removed from the Service, and that you possess the legal right and ability to enter into this Agreement. If you are using the Service on behalf of an individual, company, entity, or organization, you represent and warrant that you are an authorized representative of such party with the authority to (i) bind such party to this Agreement, and (ii) agree to be bound by the Agreement on behalf of such party. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY TRAMIGO. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. While individuals under the age of 18 may use the Tramigo services through the Service by a parent or legal guardian (who must also supervise the Tramigo device), such individuals may not use the Service themselves.
As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. You agree to notify Tramigo immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us at firstname.lastname@example.org
. You are responsible for all use of the Service occurring under your user name. You are responsible for keeping your password confidential and for notifying us if your password has been hacked or stolen. Tramigo will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You may be held liable for any losses incurred by Tramigo or another party due to someone else using your account or password.
3. Your Responsibilities
You may use the Service solely for lawful, non-commercial purposes, as intended through the provided functionality of the Service. You may not use the Service in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Service. You may not attempt to gain unauthorized access to the Service, user accounts, or computer systems or networks, through hacking, password mining or any other means. Without limiting any of the foregoing, you expressly agree that you will not (and you agree not to allow or assist any third party to):
- i. use, copy, install, transfer or distribute the Service, except as specifically permitted by this Agreement;
- ii. modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Service or its Content (as defined below);
- iii. remove or alter any copyright, trademark or other proprietary rights notices contained in or on the Service or in or on any content or other material obtained through the Service or the use of the Service;
- iv. create user accounts by automated means or under false or fraudulent pretenses;
- v. use any robot, spider, screen or database scraper, site search or retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Service;
- vi. probe, scan or test the vulnerability of any system or network or breach any security or authentication measures;
- vii. reformat, mirror, or frame any portion of the web pages that are part of the Service;
- viii. express or imply that any statements you make are endorsed by us, without our prior written consent in each instance;
- ix. transmit (A) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes on our or any third party’s intellectual property or other rights, (B) any material, non-public information about individuals or companies without the authorization to do so, (C) any trade secret of any third party, and/or (D) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;
- x. transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component; use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents;
- xi. harvest or collect information about other users without their prior written consent;
- xii. undertake, cause, permit or authorize the translation, reverse engineering, disassembling or hacking of any aspect of the Service, including Content, or attempt to do any of the foregoing, except and solely to the extent permitted by this Agreement, the Service’s authorized features, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Tramigo;
- xiii. access, tamper with, or use non-public areas of the Service, Tramigo’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Tramigo’s providers;
- xiv. harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including Tramigo employees and other users;
- xv. create a new account with Tramigo, without Tramigo’s express written consent, if Tramigo previously disabled an account of yours;
- xvi. solicit, or attempt to solicit, personal information from other users, except as permitted through the Service’s functionality;
- xvii. restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about users;
- xviii. gain unauthorized access to the Service, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
- xix. violate any applicable federal, state or local laws, regulations or this Agreement;
- xx. use the Service for any illegal, inappropriate and/or unauthorized conduct, including without limitation, using the Service in violation of Tramigo’s or any third party’s intellectual property or other proprietary or legal rights; or
- xxi. use or access the Service to build a competing service.We may take any legal action and implement any technical remedies to prevent the violation of these provisions and to enforce this Agreement.
4. Charges and payments
If your account is prepaid, you will be required to credit your account prior to the receiving the Services and charges will be deducted from your credit balance. You are required to maintain a positive balance on your account in order to continue receiving the Services.
If your account is post-paid, you shall be invoiced on a monthly basis for the Services utilized. You mustpay the full amount of all invoices issued, within the periodstipulated in the Agreement between You and Tramigo.
If you have purchased the Services on a subscription basis,the recurring monthly fees and charges shall either be charged toyour credit card (if applicable) or shall be invoiced and payable in advance of each month and the monthly usage charges incurred during a corresponding monthly period will be invoiced and paid in arrears.
In the event that any sums are overdue, Tramigo reserves the right to charge interest from the date of invoice on overdue sums at a rate of 5 percent over the prevailing standard variable rate of US dollar LIBOR rates, or to suspend the provision of the Services.
You are not entitled by reason of any set-off, counter-claim, abatement, or other similar deduction to withhold payment of any amount due to Tramigo under the Agreement. Any such deduction or withholding of any invoiced amount may result in suspension of the Services.
The rates and charges of the Services shall be exclusive of VAT and any other applicable taxes, unless indicated otherwise. All collection, remittance and payment of any taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the Services shall be for your account and the appropriate amount shall be included on your invoice.
Tramigo reserves the right to invoice up to six months after any traffic event due to delayed roaming or other charges being levied by third party operators.
In case the Service has been deactivated for more than 5 months after initial activation, Tramigo is entitled to charge a re-activation fee of 10 USD.
5. Consent to Electronic Communications
SMS Text Messages and Push Notifications. When you register with Tramigo, Tramigo may send you an SMS text message containing a 4-digit code in order to verify your phone number and may send SMS text messages and push notifications (“Messages and Notifications
”) in order to keep you informed about the Service. By using the Service, you agree to receive Messages and Notifications regarding your use of the Service. SMS text messages are for informational purposes only. While Messages and Notifications are intended to enhance your use of the Service, you may (i) disable push notifications on your device to remove yourself from our text message database.
Tramigo cannot control certain factors relating to message delivery. You acknowledge that, depending on your mobile carrier’s service, it may not be possible to transmit a text message to you successfully. We have no liability for transmission delays or message failures.
6. Content Submitted to Tramigo
By sending or transmitting to us information, opinions, creative suggestions, ideas, notes, concepts, or other materials (collectively, “Materials
”), or by posting such Materials to any area of the Service, you grant Tramigo and its designees a worldwide, non-exclusive, sublicense-able (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Materials in any media now known or hereafter developed to enhance and develop the Service, including by marketing and advertising the Service, without compensation to you; provided that we will never use your name in connection with any of your Materials that we use in our own advertising and marketing materials without obtaining your prior consent. None of the Materials will be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we will not be liable for any use or disclosure of any Materials. Tramigo may remove or alter any Materials at any time for any reason. We neither endorse nor are responsible for any opinion, advice, information, or statement made or displayed on the Service by any user. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages, or for any results obtained from the use of such information. Under no circumstances will Tramigo and/or its affiliates, suppliers, or agents be liable for any loss or damage caused by your reliance on such information obtained through the Service. We cannot and do not take responsibility for the veracity, reliability, or completeness of any opinion, advice, information, or statement available on the Service.
The opinions expressed on the Service by users reflect solely the opinions of the users who post thereon and do not reflect the opinions of Tramigo. You acknowledge and agree that we have the right (but not the obligation) to monitor the Service and Materials; to alter or remove any Materials; and to disclose Materials and the circumstances surrounding their transmission to any third party in order to operate the Service properly; to protect ourselves, our sponsors, and our members and visitors; and to comply with legal obligations or governmental requests. If you believe a message violates our member policies, please contact Tramigo immediately so that we can consider its editing or removal.
You are solely responsible for your Materials and the consequences of posting them on the Service. By posting Materials, you represent, warrant, and covenant that:(i) you are the creator and owner of the Materials or otherwise have sufficient rights and authority to grant the rights granted herein;(ii) your Materials do not and will not (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (B) slander, defame, or libel any other person;(iii) your Materials do not contain any viruses, adware, spyware, worms, or other harmful or malicious code or (iv) unless you have received prior written authorization, your Materials specifically do not contain any confidential information of any third party. We reserve all rights and remedies against any users who breach these representations and warranties.
7. Term and Termination
The term of this Agreement (the “Term
”) will commence on the date on which you first access or utilize the Service in any way (the “Effective Date
b. Effect of Termination.
The following Sections of this Agreement will survive termination or expiration of the Agreement: 1.c, 2.d, 3, 4, 8.a, 10.b, 11-22. Payments by you, which accrue or are due before termination of your contract, will continue to be payable by you, and amounts owed to Tramigo at the time of such termination or expiration will continue to be owed by you, after such expiration or termination.
a. Proprietary Information.
You acknowledge and agree that: (i) the Service, including, without limitation, any Content, modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, “Proprietary Information
”), is owned by Tramigo and its licensors, as applicable; (ii) the Proprietary Information contains valuable copyrighted and proprietary material of Tramigo; (iii) the Proprietary Information is licensed, rather than sold, to you pursuant to this Agreement; and (iv) you have no rights in the Proprietary Information, other than the rights and licenses specifically granted to you pursuant to this Agreement.
You acknowledge that Tramigo has acquired, and is the owner of, trademark rights in the name and word mark “Tramigo
”™ and in the other marks and design marks displayed on the Service. You acknowledge that this name and these marks are famous and internationally known. You will not, at any time or for any reason, challenge the validity of, or Tramigo’s ownership of, the foregoing name and marks, and you waive any rights you may have at any time to do so. All use of the foregoing name and marks by you will inure exclusively to the benefit of Tramigo. All marks shown on the Service but not owned by Tramigo are the property of their respective owners.
9. Disclaimer of Warranty.
THE SERVICE IS PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. YOU ACKNOWLEDGE THAT, BECAUSE OF THE NATURE OF THE INTERNET, MOBILE NETWORKS, AND THE DEVICES WHICH ACCESS THE INTERNET AND/OR MOBILE NETWORKS, THE SERVICE MAY NOT BE ACCESSIBLE WHEN NEEDED, AND THAT INFORMATION, DATA, AUDIO AND VIDEO TRANSMITTED OVER THE INTERNET AND/OR MOBILE NETWORKS MAY BE SUBJECT TO INTERRUPTION OR THIRD PARTY INTERCEPTION AND MODIFICATION. TRAMIGO DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, AND ABSENCE OF VIRUSES AND DAMAGING OR DISABLING CODE. NONE OF TRAMIGO, ITS AFFILIATES OR SERVICE PROVIDERS, TRAMIGO’S CONTENT PROVIDERS AND/OR THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES NOR THE EMPLOYEES, AGENTS AND/OR CONTRACTORS (COLLECTIVELY, THE “TRAMIGO PARTIES
”) WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE SERVICE. TRAMIGO CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET OR FOR YOUR MISUSE OF ANY OF CONTENT AND INFORMATION ACCESSED THROUGH THE SERVICE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE AND YOUR RELIANCE UPON ANY OF THE RESPECTIVE CONTENT IS AT YOUR SOLE RISK.
10. Limitation of Liability.
EACH USER IS SOLELY RESPONSIBLE FOR (I) HIS OR HER USE OF THE SERVICE, AND (II) ANY DAMAGES INCURRED BY HIM OR HER OR ANY THIRD PARTY THAT ARISE FROM OR ARE RELATED TO THE SERVICE. THE AGGREGATE LIABILITY OF THE TRAMIGO PARTIES FOR ANY DAMAGES, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO ACTUAL DAMAGES PROVED, AND NOT TO EXCEED THE AMOUNT PAID BY YOU TO TRAMIGO FOR THE SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, NONE OF THE TRAMIGO PARTIES WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF TRAMIGO OR ITS CONTENT PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NONE OF THE TRAMIGO PARTIES WILL HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSSES; COSTS OR DAMAGES OF ANY KIND INCURRED OR SUFFERED BY YOU AS A RESULT OF SERVICES PROVIDED BY ANY OF THE TRAMIGO PROVIDERS ACCESSED THROUGH THE SERVICE.
YOU REPRESENT THAT YOU HAVE INDEPENDENTLY INVESTIGATED THE ADVISABILITY OF USING THE LOCATION SERVICES MADE AVAILABLE TO YOU BY TRAMIGO AND THE POSSIBLE RISKS INVOLVED IN USING SUCH SERVICES. YOU AGREE TO MAINTAIN YOUR OWN INSURANCE COVERING SUCH RISKS AND WILL LOOK SOLELY TO SUCH INSURANCE FOR REIMBURSEMENT OF ANY RESULTING DAMAGES.
11. Third Party Disputes.
TRAMIGO IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, THIRD PARTY SERVICE OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE OR YOUR EMPLOYER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE TRAMIGO (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
12. Force Majeure.
Tramigo will not be liable for any delay or failure to perform any obligation herein if the delay or failure is due to unforeseen events that are beyond Tramigo’s reasonable control, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemic or governmental action, in so far as such an event prevents or delays Tramigo in fulfilling its obligations hereunder.
13. Indemnification and Release.
You will defend, indemnify and hold Tramigo, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents, harmless against any loss or damage of any kind (including, without limitation, attorneys’ fees and lost revenues) arising from: (i) any and all breaches by you of this Agreement or any representation, warranty or covenant contained herein; (ii) any and all use of the Service not specifically authorized hereunder and on the Service; and (iii) any and all claims and actions against Tramigo by other parties to whom you allow access to the Service.
You further waive, release and forever discharge the Tramigo Parties from any and all responsibility or liability for injuries or damages resulting from your Locations or any other service obtained through the use of the Service, including injuries or damages caused by the negligent act or omission of the Released Parties or in any way arising out of or connected with the Service.
We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You will not, in any event, settle any claim or matter without our written consent.
14. Additional Service Features.
The Service may contain information on products, and services provided by third parties, including its Providers, and links (including advertisements) to third party web sites. This information and these products, services, and links are provided only as a convenience to users. Tramigo does not review or control this information or these products, services, or other web sites, and Tramigo does not make any representations or warranties, express or implied, regarding this information or these products, services, or web sites. Inclusion of any of the foregoing in the Service does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Tramigo with respect to any third party or its web site or content, or any information, products, or services provided by that third party. Tramigo is under no obligation to maintain any link on the Service and may remove a link at any time in its sole discretion for any reason whatsoever.
15. Dispute Resolution.
a. Mandatory Arbitration.
Please read this carefully. It affects your rights. YOU AND TRAMIGO AND EACH OF OUR RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Please visit www.adr.org for more information about arbitration.
iv. Decision of the Arbitrator.
- i. Commencing Arbitration. A party seeking arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Tramigo, to you via any other method available to Tramigo, including via e-mail. The Notice to Tramigo should be addressed to Tramigo Ltd., Tekniikantie 14, 02150 Espoo, Finland, Attn: General Counsel (the “Address”). The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the “Demand”). If the claim is not resolved within 30 days after the Notice is received, then you or Tramigo may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE FINLAND ARBITRATION INSTITUTE (“FAI”) IN ACCORDANCE WITH ITS ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and FAI forms are available at www.arbitration.fi. If you are required to pay a filing fee to commence arbitration against Tramigo, then Tramigo will promptly reimburse you for your confirmed payment of the filing fee upon Tramigo’s receipt of Notice at the Address that you have commenced arbitration along with a receipt for the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith.
- ii. Arbitration Proceeding. The arbitration will be in English. A single independent and impartial arbitrator with his or her primary place of business in Helsinki, Finland, will be appointed pursuant to the Rules, as modified herein. You and Tramigo agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (A) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (B) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (C) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- iii. No Class Actions. YOU AND TRAMIGO AGREE THAT YOU AND TRAMIGO MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THIS ENTIRE MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
Arbitration proceedings will be closed to the public and confidential, and all related records will be permanently sealed, except as necessary to obtain court confirmation of the award. The award will be in writing and will include a statement setting forth the reasons for the claim’s disposition. The arbitrator will apply Finnish law during the arbitration. You agree that these terms and your use of the App evidences a transaction involving international commerce. The Finnish Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.
b. Equitable Relief.
The foregoing provisions of this Section 14 do not apply to any claim in which Tramigo seeks equitable relief of any kind. You acknowledge that, in the event of a breach of this Agreement by Tramigo or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Tramigo, and your only remedy will be for monetary damages, subject to the limitations of liability set forth above.
You and Tramigo agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
d. Improperly Filed Claims.
All claims you bring against Tramigo must be resolved in accordance with this Section 14. All claims filed or brought contrary to this Section 15 will be considered improperly filed. Should you file a claim contrary to this Section 15, Tramigo may recover attorneys’ fees and costs up to $5,000, provided thatTramigo has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
If Tramigo changes the Mandatory Arbitration provision (other than a change to Tramigo’s Address), then you may reject any such change by sending us written notice to Tramigo’s Address within 30 days of the change, in which case your Account and your right to use the Service will terminate immediately, and this Section 14, as in effect immediately prior to the amendments you reject, will survive termination of this Agreement.
If only Section 14.a.iii or the entirety of this Section 14 is found to be unenforceable, then the entirety of this Section 14 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to this Agreement.
16. Governing Law; Choice of Forum.
The laws of Finland, excluding its conflicts of law rules, govern this Agreement and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods will not apply to any provision of this Agreement. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the court located in Helsinki, Finland and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
While our staff continually works to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from our Users. If you send us or our employees any ideas or suggestions for products, services, features, modifications, enhancements, content, promotions, strategies, or product/feature names, or any related materials (collectively “Feedback”), then regardless of what your communication may say, the following terms apply, to avoid future misunderstandings. By sending us Feedback, you agree that:
Tramigo will own, exclusively, all known or later discovered rights to the Feedback;
Tramigo will not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Feedback; and
Tramigo will be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
If any provision of this Agreement is held invalid, illegal or unenforceable, such provisions will be modified, or if not possible, severed, to reflect the fullest valid, legal and enforceable expression of the intent of the parties and the remainder of this Agreement will not be affected thereby.
19. Relationship of Parties.
Nothing herein will be deemed to create an employer-employee relationship between Tramigo and you, nor any agency, joint venture or partnership relationship between the parties. Neither party will have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
No delay, omission, or failure to exercise any right or remedy provided herein will be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right.
Neither this Agreement nor any of the rights granted to you herein may be assigned or transferred by you, whether voluntarily or by operation of law, without the express prior written permission of Tramigo and any attempt to do so will be null and void. However, Tramigo may assign or transfer this Agreement at any time without your permission.
22. Third-Party Beneficiaries.
The provisions of this Agreement relating to the rights of Tramigo’s Content Providers are intended for the benefit of such Content Providers, and such Content Providers, as third-party beneficiaries, will be entitled to enforce such provisions in accordance with their terms, irrespective of the fact that they are not signatories to this Agreement.