Introduction

These Terms of Use are a contract (the “Terms”) between you and/or your company (collectively, “you”) and Optimus GPS Tracking (“Optimus,” “Company,” “us,” “we,” or “our”) that applies to your access to or use of our website, mobile app, services, and products (collectively, the “Service(s)”). If you don’t agree to these Terms, then you must not use the Services. These Terms incorporate by reference our our Privacy Policy  and Return Policy 

Our Services

Our Services include sale of GPS tracking-related devices (“Product(s)”), such as for your vehicles and assets. We also provide a mobile app software-as-a-service platform (“Platform”), to exclusively support the Products, accessible to users that have an active subscription and minimum system requirements, such as an operating system version.  

You represent and warrant that you will comply with all applicable laws and these Terms in using the Services, including the Products and Platform. You must not use the Services for any unlawful or malicious purposes. You agree to be fully responsible for your legal compliance and obtaining any necessary consent. It may be illegal to place a tracking device on a person or property that is not yours. You should consult an attorney if you have questions. Optimus will not be responsible in any way for how any customer uses the Services or for any lost property or damages of any kind during the use of the Services.

While we have no obligation to monitor use of the Services, we reserve the right to disclose any information deemed necessary to satisfy any applicable law, court order, or legal process as outlined in these Terms and Privacy Policy. We also have access to GPS tracking and other data as necessary to provide the Services, including technical support.

Dispute Resolution and Mandatory Arbitration

This is an “Arbitration Agreement” waiving your right to a jury trial and class action.

What is arbitration?

Legal disputes are usually resolved in a court of law in front of a judge and, sometimes, a jury. Court cases are a matter of public record. Arbitration is a less formal and more private way of resolving disputes. Instead of going to court, the parties give their arguments and evidence to an arbitrator, and the arbitrator decides who “wins” the case by applying the law in the same way that a judge would. Instead of a courtroom, arbitrations are generally held in a private office, such as a conference room, or by videoconference.

What is our Arbitration Agreement?

Under these Terms, ANY DISPUTE OR CLAIM BETWEEN YOU AND US RELATING TO YOUR USE OF THE SERVICES, INCLUDING ANY PRODUCT OR PLATFORM, OR OUR DISCLOSURE OF INFORMATION, THESE TERMS, THE PRIVACY POLICY, OR ANY OF THE RELATED PRACTICES MUST BE RESOLVED EXCLUSIVELY THROUGH BINDING ARBITRATION, but this does not include third-party indemnification claims. This means that we all agree that we will only resolve our legal disputes through arbitration and not in a court of law. Without this Arbitration Agreement, you would have had the right to sue in court with a jury trial.

Our Services are intended for customers in the United States (“US”). This Arbitration Agreement applies to US customers and to the fullest extent permitted by applicable law. If you reside outside the US, you may have the right to initiate a dispute in your location of residence under the laws where you reside.

How will the arbitration work?

The arbitration must be filed and conducted through JAMS (www.jamsadr.com), which is a provider of arbitration services in the United States and internationally. JAMS’ Streamlined Rules will apply. All claims, remedies, and defenses that you or we have under applicable law (whether federal, state, or local) will remain available. Each of us will participate in choosing a neutral arbitrator using the process in the Streamlined Rules. Unless you waive this requirement, the final arbitration hearing (which is like a trial) will take place in person at the JAMS facility closest to your home. The arbitrator’s award will consist of a written statement explaining the arbitrator’s decision on each claim. The award will also include a concise written statement of the findings of fact and conclusions of law on which the award is based. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.

What law will the arbitrator follow?

The laws of Florida govern these Terms. The arbitrator will apply Florida law to the claims in the arbitration. This Arbitration Agreement will be governed by the Federal Arbitration Act. If you reside outside the US, the laws in your location may grant broader rights.

Who pays for the arbitration?

In most cases, the only fee you will have to pay to JAMS is $250; we will pay all other arbitration costs. However, if the arbitrator decides that you filed your claim in bad faith and without any legal basis, the arbitrator can require you to pay more of the fees for the arbitration, other than attorneys’ fees. Regardless of who wins, you will be responsible for paying your attorneys’ fees, and we will be responsible for paying ours. The only exception is if the claim is brought under a law, which the arbitrator may apply, that specifically allows a party to recover its attorneys’ fees.

When will a court will get involved?

There are things an arbitrator cannot do, like order a party to act or stop doing something—this is known as “equitable relief”—or rule upon certain small claims actions. Either one of us can go to court and seek this relief, including by filing a motion to compel the other party to honor the Arbitration Agreement. However, you and we agree that the only courts where we will seek equitable relief—or file any legal proceeding outside of arbitration—are the state and federal courts in Sheridan, Florida. This exception does not waive our Arbitration Agreement.

Can I file a class action?

No. You and we agree that we will only file claims against each other individually and not as a plaintiff or class member in a representative proceeding. THIS MEANS CLASS ACTIONS ARE NOT ALLOWED.

User Accounts, Content, and Fees

Accounts

You must create an account (your “Account”) to access certain parts of the Services. You must only provide complete and accurate information in connection with your Account. This means you cannot set up your Account in a manner that impersonates another person or business. If you violate these Terms, we may terminate your Account and delete your Content. It is up to you to ensure your username and password are secure. You agree not to share your Account login details with anyone else. If you believe your Account has been accessed without your permission, you should immediately notify us.

Content

As between Optimus and you, you own all right, title, and interest, including all intellectual property rights, in and to the individual data that you provide, upload, use, or communicate through your Account or the Services, including your tracking data. It is up to you to make sure your Content obeys these Terms and the law. You hereby grant to Optimus, and any parties acting on its behalf, a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display your Content and perform all acts with respect to Content as may be reasonable for Optimus to provide the Services to you. This notwithstanding, Optimus may collect and compile aggregated statistics regarding your use of the Services and your Content, and Optimus will own all right, title, and interest, including all intellectual property rights, in and to any aggregated statistics. 

If your Content contains any reviews or comments about the Services or Optimus, you represent that such reviews and comments are true and accurately represent your experience. You understand and agree that, pursuant to these Terms, Optimus will have the right to republish all or part of your reviews and comments on the Services or related social media accounts, advertising, and other media as Optimus deems fit.

You agree not to post or distribute any of the following types of Content with the Services: (a) infringing content, (b) illegal or obscene content, or (c) threatening or invasive content.

Interruption of Services

Tracking information is provided at different intervals and with a history, depending on your subscription; however, we do not guarantee the accuracy or timeliness of any tracking information or any data, which may contain errors from time to time.

Optimus reserves the right to interrupt the Services for planned or unplanned maintenance, system updates, or any other changes. Optimus will undertake efforts to notify you of any pre-planned outages but makes no guarantee to do so.

Subject to applicable laws, Optimus may also decide to suspend or terminate the Services altogether. If the Services are terminated, Optimus will reasonably cooperate to enable you to withdraw your Content or information in accordance with applicable laws.

Optimus will not be liable or responsible for any interruption of the Services. You are responsible for backing up your own Content and any other data.

Product and Platform Subscription Fees

You agree to pay all applicable fees, which are displayed during the purchase and checkout process, and which may include taxes, costs, charges, and service or delivery fees. All payments are independently processed through a third-party service provider.

To the fullest extent permitted by applicable law, subscriptions automatically renew for the same length term unless adequately cancelled before the next renewal deadline. The fees will be the same as the prior term, unless we have given notice of an increase, in which case the increase will be effective upon the renewal. Termination, suspension, or expiration do not impact your obligation to pay all fees owed. You may only cancel a subscription effective at the end of the given term; if you cancel before the end of the subscription term, you will be charged the entire remaining amount of subscription fees. No refunds are made if you do not cancel your subscription before the payment has been made.

Account Suspension and Termination

Optimus reserves the right, in its sole discretion, to terminate or suspend your access to or use of the Services, including any Product or the Platform, if Optimus believes that there is a violation of these Terms or any applicable law relating to you or your Account, including if we suspect you have used the Services in a wrongful, inappropriate, or fraudulent manner. The suspension or termination of your Account shall not entitle you to any claims for compensation, damages, reimbursement, or otherwise.

You can terminate your Account and stop using the Services at any time by:

• Using the tools provided for account termination within the Platform; or
• Contacting Optimus in writing at the contact details provided below.

Suspension or termination of your Account does not necessarily delete your Account data. For more information and to delete your data, please see our Privacy Policy.

Prohibited Conduct

We respect the rights of others and expect you to do the same. You are expressly prohibited from doing or attempting to do, or encouraging or assisting another in doing, any of the following in connection with the Services:

• violating any applicable law, which includes any rule, regulation, or ordinance, or industry guideline or practice;
• violating these Terms or any other applicable policy or guideline;
• using the Services to harass, stalk, defame, threaten, violate the privacy, track without consent, or otherwise violate the legal rights of others;
• accessing, altering, or interfering with another’s use or communications;
• providing false, misleading, or inaccurate information to Optimus or any other person in connection with your Account or the Services;
• impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity;
• accessing the Account of any other user without express permission;
• modifying or changing the placement and location of any content posted through the Services;
• using any engine, software, tool, agent, or other device or mechanism (such as browsers, spiders, robots, avatars, AI, or intelligent agents) to harvest or collect information from the Services for any use, including any use on another website, app, or media;
• accessing content or data not intended for you, or logging into a server or account that you are not authorized to access;
• attempting to probe, scan, or test the vulnerability of the Services, or any associated system or network, or breaching security or authentication measures;
• interfering with the use of the Services by any other user, host, or network, including by submitting malware, exploiting vulnerabilities, or through a DDoS attack;
• forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Services (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers);
• Modifying, reverse-engineering, decompiling, disassembling, or otherwise reducing to a human-perceivable form any of the source code used in the Services;
• removing the SIM card from a Product or using the SIM card in connection with any other product or service;
• creating additional Accounts, including to promote yourself or another; or
• paying or accepting payment from anyone for interactions on the Services, including paying for likes, reviews, and comments.

If you have any questions or concerns, including about another user of the Services, please contact us at the contact information outlined below.

Indemnification by You

By using the Services you agree to defend, indemnify, and hold harmless Optimus, including its owners, directors, officers, affiliates, partners, agents, employees, and contractors (who are Third-Party Beneficiaries of this provision) from any claim, liability, loss, damage, cost, or expense (including suits, judgments, litigation, settlements, costs, and attorney’s fees of every kind and nature) directly, indirectly, or consequentially arising out of or related to (in fact or allegation) the following:

• Your use of or access to the Services, including any data or content transmitted or received by you;
• Your violation of these Terms, including breach of any representations;
• Your violation of any third-party rights, including any privacy rights;
• Your violation of any law, including any rule, regulation, or ordinance;
• Your violation of any of our policies or guidelines applicable to you;
• Your Content or representations;
• Your willful misconduct; or
• Any conduct or content relating to your Account.

We shall promptly notify you by electronic mail (at your email address used for the Services) of any claim for defense or indemnification and cooperate fully (at your expense) in the defense of such claim or suit. If we do not hear from you promptly, we reserve the right to defend such claim or suit and seek full recompense from you.

Intellectual Property

Our Intellectual Property

Our names, trademarks, copyrights, logos, websites, services, including our Products and Platform, and all content and other materials available through the Services, and other than your Content (collectively, the “Optimus IP”) are the intellectual property of Optimus and/or its licensors. Nothing in these Terms grants you any right, title, license, or interest in the Optimus IP. You shall not at any time, nor shall you assist others to, challenge Optimus’s right, title, or interest in, or the validity of, the Optimus IP. Optimus reserves all rights.

Your Limited License to Use the Services

If you comply with these Terms and applicable laws, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Services for lawful purposes. This license does not allow you reproduce, modify, duplicate, copy, sell, resell, distribute, transmit, or otherwise exploit (for any commercial purpose or otherwise) any part of the Services, including any Content of other users, unless you first obtain our written permission. If you breach these Terms, your license will automatically terminate.

Our License to Your Content

You are always the owner of your Content; however, we require a license from you to legally display your Content on the Services. Without this license, we could not allow you to upload any Content. Accordingly, you grant to Optimus a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute and display (1) your Content throughout the world in any media now existing or in the future created for purposes of providing the Services, and (2) your public reviews or comments relating to us to promote the Services (aside from your public reviews or comments, we will not use your Content in advertising without first obtaining your permission).

As a service provider for customers using our Platform, Optimus uses your information to provide the Services; we will not retain, use, or disclose your personal information for other purposes and will not sell your data or share it for cross-context advertising purposes.

Copyright Infringement and Our DMCA Policy

Pursuant to the Digital Millennium Copyright Act ("DMCA"), if you believe Content on the Services violates your copyright, please immediately notify Optimus by emailing a DMCA takedown notice ("Infringement Notice") to legal@optimustracker.com. Your Infringement Notice should include all information described below:

• Identification of your copyrighted work.
• A description of the Content you believe infringes your copyright (the “Infringing Content”). Your description should include enough information about the nature and location of the Infringing Content to allow us to locate it on the Services.
• Your name, address, telephone number, and email address.
• The name, address, telephone number, email address, or other information (for example, username) of the user who posted the Infringing Content.
• A written statement by you that:
  • you believe in good faith that the use of the material you claim to infringe your copyright is not authorized by the copyright owner or by law; and
  • you declare, under penalty of perjury, that all the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
• Your signature, whether electronic or physical, as the copyright owner or a person authorized to act on behalf of the copyright owner.

You should email your Infringement Notice with the subject line “DMCA Infringement Notice.” We will respond to compliant Infringement Notices by taking any action required under the DMCA. Please note that the DMCA requires that your Infringement Notice be submitted in good faith. This means you are required to evaluate whether the use of your Content on the Services is a “fair use,” as fair uses are allowed under the law. If you are not sure if the Infringing Content infringes your copyright, you should consult with an attorney. If you submit an Infringement Notice in bad faith, the user who posted the Infringing Content could have legal claims against you. Infringement Notices are not anonymous. If we act in response to your Infringement Notice—such as by removing the Infringing Content—we will pass on your Infringement Notice to the user to provide an opportunity to respond. Counter notices should be emailed and comply with the DMCA.

Disclaimers and Limitations of Liability

No Additional Warranties

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNLESS WE EXPRESSLY WARRANT SOMETHING IN WRITING TO YOU, WE DISCLAIM ANY AND ALL WARRANTIES TO YOU, INCLUDING EACH OF THE FOLLOWING WARRANTIES: ALL WARRANTIES ARISING BY OPERATION OF LAW OR OTHERWISE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON- ENCUMBRANCE, NON-TITLE, AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICES. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. WE DO NOT WARRANT THAT YOUR ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR THAT THE SERVICES WILL FUNCTION ERROR-FREE.

If you purchase a Product from us, it may come with its own warranty and disclaimers. In such event, the Product warranty and disclaimers will apply to your use of the Product. If the Product does not have its own warranty and disclaimer, then the warranties and disclaimers in these Terms shall apply to your use of the Product.

Assumption of Risks

The use of our Services is at your own risk and should be based on your own due diligence. You should not use the Services as a replacement for supervision; the Services are not substitutes for responsible monitoring of your property or dependents. You assume all risk of potential security or privacy incidents. Mobile devices, computers, tablets, technology, and the internet may not be secure at all times. Optimus does not guarantee the security of your Content or any other data or communications. You should not rely on Optimus to store or backup your data; you are responsible for your Content and your conduct.

You hereby consent to Optimus disclosing location and related information to you or any person or entity using your username/password, or pursuant to our Privacy Policy, about the person, vehicle, or other asset that is tracked in connection with the Services.

Limitations of Liability

This section limits the types of claims you can bring against us. These limitations help us reduce the risks associated with providing the Services so that we can provide it.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OPTIMUS (INCLUDING THE THIRD-PARTY BENEFICIARIES) WILL NOT BE LIABLE TO YOU FOR ANY CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST CONTENT OR OTHER DATA, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, OR FAILURE TO MEET ANY DUTY, INCLUDING GOOD FAITH OR REASONABLE CARE. THESE LIMITATIONS APPLY REGARDLESS OF THE FORESEEABILITY OF SUCH DAMAGES. THE LOCATION INFORMATION PROVIDED WITH THE SERVICES IS AN APPROXIMATE LOCATION OF THE PRODUCT. OPTIMUS DOES NOT REPRESENT, WARRANT, OR GUARANTEE THE RELIABILITY, ACCURACY, COMPLETENESS, OR TIMELINESS OF ANY LOCATION DATA PROVIDED VIA THE SERVICES OR THAT THE SERVICES SHALL BE ERROR FREE OR UNINTERRUPTED. In no event will Optimus be liable to you, or any party related to you or your Account for any lost data, unavailability of or delay in Services, or damage, including loss of profits or other pecuniary loss, whether under a theory of contract, warranty, tort (including negligence), products liability, or otherwise, even if Optimus has had notice.

You understand that the Products and Platform use GPS (global positioning system) and other wireless services. The Services may be impacted by GPS and wireless coverage in different areas, weather, and third-party planned or unplanned outages. You are also responsible for updating any batteries or reporting Product damages.

We will not be liable for any failure to perform any of our obligations if the failure results from a cause beyond our reasonable control, including electronic or communications failure, pandemics, or unforeseeable force majeure acts beyond our control.

Interpretation

The disclaimers, exclusions, and limitations of liability under the Terms shall not apply to the extent prohibited by applicable law. Some jurisdictions do not allow certain disclaimers or limitations of liability, such as the exclusion or limitation of incidental or consequential damages; therefore, the above limitations or exclusions may not apply to you. Specific jurisdictions may grant you additional rights, depending on your location.

No Responsibility for Third Parties

Third parties are any person or business other than you or us, in other words, someone who is not a party to these Terms. We cannot control third parties, including other users of our Services or our service providers. Under the Communications Decency Act, service providers, such as Optimus, are not liable for information originating with a third-party user of the Services. The Services may also contain use of third-party platforms or services, such as to provide map services. We do not endorse any third-party or its content or conduct. Third parties are solely responsible for their own content and conduct. We do not review all third-party content and do not guarantee that it is accurate, complete, or useful. We are not responsible for your reliance on any third party or its content/conduct.

Permissions

By enabling the Platform’s GPS tracking features for your Products, you agree and consent to the collection, transmission, and use of your location data and related history by Optimus and its service providers to provide and improve the Services. You can disable the tracking features by making changes in or terminating your Account, deactivating your Product, or contacting us.

When you use the Services, you may also be given the opportunity to turn on or off certain permissions relating to your device or accounts, including to receive updates related to the Services. For example, you may grant permission to send notifications. For apps, the permissions settings is within the general device settings and is not controlled by us.

By using the Services, you consent to receive communications from us, such as text messages, emails, and push notifications. We will provide you with an opportunity to opt into such messages if an applicable. You can opt out of communications by:

• For emails, click on the “unsubscribe” link in the email and follow any directions.
• For text messages, respond STOP.
• For mobile push notifications, change your app permissions in your device settings.

For text messages, standard messaging rates will apply. Texts, calls, and prerecorded messages may be generated by automatic dialing systems. By using our Platform, you consent to receive applicable automatic software updates.

By using the Services, you consent to receive communications electronically at the email address provided in connection with the Services or linked with your Account. You agree that these electronic notices satisfy any legal requirements for notice in writing.

Other Policies and Agreements

Our Return Policy, which is a part of these Terms and incorporated by reference, outlines our 30-day return policy for Products, subject to certain requirements, and how you can initiate a return or refund. Products may also come with separate warranty and disclaimer terms. Optimus is not liable for packages lost or damaged during shipment.

Our Privacy Policy, which is a part of these Terms and incorporated by reference, outlines how we collect, use, and disclose information and how you can assert your privacy rights. In addition to the Privacy Policy, there may be additional policies, incorporated into these Terms by reference, that govern your use of the Services if provided and applicable to you.

Disclosures for Legal Requests

We may disclose your information as outlined in our Privacy Policy and as required by applicable laws. Different laws apply to government and other legal processes and requests. For example, the Fourth Amendment to the US Constitution and the Electronic Communications Privacy Act limit the government’s ability to obtain certain user information from a provider; and different laws and standards regulate international requests and emergency situations, such as to prevent death or serious physical harm. Our response depends on the type of request and data at issue. For example, a subpoena may be required to obtain user identification (name and IP address). A court order or search warrant may be required in criminal cases or if seeking tracking or other data. Note that we may be prohibited from providing notice to the affected user or prevented by emergency situations. We may also disclose your information with your consent.

Changes to Terms

Technology and the applicable laws change frequently. We may need to make changes to these Terms and related policies and agreements from time to time, including to keep up with changes in the law. If we make a change material to your use of the Services, we will notify you so you can decide whether you want to continue using the Services after the change takes effect. Your continued use of the Services after the change constitutes your consent to the updated Terms and policies/agreements. It is up to you to keep the email address associated with the Services up to date so that you don’t miss any notifications.

Miscellaneous Provisions

Eligibility

You represent and warrant that you are at least 18 years old (or the age of majority in your jurisdiction, if older than 18) and lawfully qualified to enter into legal contracts.

If you are using the Services on behalf of a company, you represent and warrant that you are authorized to act on behalf of that company, including by agreeing to these Terms.

These Terms do not create any agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other in any respect.

Assignment

You cannot assign, transfer, or sublicense these Terms without first obtaining our express consent. On the other hand, we may assign, transfer, or delegate any of our rights and obligations without consent, including if there is a sale or transfer of our business.

No Waiver

A waiver by either you or Optimus of any term or condition of these Terms, or any breach, in any one instance, will not waive that term or condition or any later breach.

Survival

The provisions of these Terms which, by their nature, should survive termination, shall survive such termination, including the sections on Dispute Resolution and Mandatory Arbitration, Prohibited Conduct, Indemnification by You, Intellectual Property (except your limited license), Disclaimers and Limitations of Liability, and Miscellaneous Provisions.

Severability

These Terms are severable. If any provision of these Terms is declared invalid, void, or unenforceable, then that provision is severable from these Terms and shall not affect the validity and enforceability of the remaining provisions.

Contact

If you have any questions or concerns, please contact us at:

legal@optimustracker.com