Terms of Service

Last Updated: February 12, 2016

1. Overview

These Terms of Service (“TOS”) set forth the terms and conditions on which Hunter Engineering Company (“Hunter”, “we” or “us”), a Missouri corporation, provides eligible subscribers (individually and on behalf of your dealership, servicing facility, or other subscribing entity, “you”) with remote access to and use of HunterNet, including the websites, applications, modules, interfaces, content, features, and functionality, whether standing alone or embedded in or available through other websites, applications, or equipment (collectively, the “Service”).

PLEASE READ THESE TOS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS, AND IMPORTANT DISCLAIMERS AND LIMITATIONS ON OUR LIABILITY. BY SUBSCRIBING TO, ACCESSING, OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE LEGALLY BOUND BY THESE TOS.

2. Eligibility; Account Set-Up

Access to and use of the Service is limited to eligible subscribers that have (i) purchased or received a complimentary subscription to the Service from Hunter or a Hunter authorized sales representative, authorized distributor, or service representative, and (ii) established a corresponding subscriber account. Any other access to or use of the Service without Hunter’s express, written consent is prohibited. You represent and warrant that all information that you submit to establish your account is, and shall be updated by you to remain, true, accurate and complete. Access to and use of the Service is further subject to our Privacy Policy located at http://www.hunternetwork.com/privacy.

If you are working with a Hunter authorized sales representative, authorized distributor, service representative, or other third party to install your Hunter equipment, set-up your Service account, and/or establish or renew your Service subscription, you appoint such sales representative, service representative, or other third party to act as your agent for the purpose of accepting these TOS and the Privacy Policy on your behalf. You acknowledge that you have reviewed, understand, and are legally bound by these TOS and the Privacy Policy, notwithstanding your use of any such sales representative, service representative, or other third party.

3. Account Security

You are responsible for maintaining the confidentiality of your account credentials (including login ID and password). You may not share your account credentials with any other business or organization. You agree to notify Hunter immediately upon discovering any known or suspected unauthorized access to, misuse of, or breach of security for your account, and to provide all information requested by Hunter in connection therewith. Hunter reserves the right, without obligation, to suspend access to the Service if Hunter suspects unauthorized access to or misuse of your account.

4. Your Responsibilities

You are responsible for all use of the Service by you and your end users, and for all activities occurring under your account. Without limiting the foregoing, you are solely responsible for:

· Designating your end user and overseeing their Service access levels and privileges;

· Procuring and maintaining, at your own expense, all equipment, systems, and network connectivity necessary to access and use the Service, including a compatible Internet browser;

· All Internet, telecommunications, mobile carrier, and other third party charges incurred in connection with your use of the Service;

· Testing and validating the Service for use in your business, including compatibility with your culture, policies, procedures and operations;

· Maintaining appropriate business continuity and disaster recovery procedures (as desired) in the event of unavailability of the Service for any reason; and

· Performing your other responsibilities described in these TOS

5. Permitted Use of the Service

During the term of your Service subscription, subject to your compliance with the provisions hereof, Hunter grants you a limited, non-exclusive, non-transferable and non-sublicensable license to remotely access and use the Service solely for your internal business purposes, in accordance with these TOS and all policies, rules, and instructions posted by Hunter on the Service or otherwise communicated by Hunter to you, and in compliance with all applicable laws and regulations.

Certain components of the Service may need to be installed locally on your equipment. You agree to follow Hunter’s instructions for installing such components and updates thereto, and to provide Hunter with a continuous remote connection to your equipment if and as required to provide the Service. Any components of the Service installed on your equipment are licensed to you on a non-exclusive, non-transferable and non-sublicensable basis, in object code form only, solely for use with the Service during the term of your Service subscription.

6. Content

The Service includes the ability to access a variety of videos, photos, illustrations, diagrams, charts, text, and other content that is proprietary to Hunter and its suppliers (collectively, “Content”). The Content is intended for a general audience, and may not apply to your particular situation. You should not use the Content as a substitute for your on-the-ground assessment or independent judgment. You are solely responsible for all outcomes and results obtained, in whole or in part, through your reference to or reliance on the Content. You may not reproduce, distribute, or otherwise disseminate the Content, other than as expressly intended and enabled through the Service, whether in print or electronic form, without Hunter’s express, written consent.

7. Service Data

The Service includes the ability to collect, input, process, and store a variety of measurements, vehicle service records, and other data, including automatically from interfaces to Hunter Engineering equipment and other compatible systems (collectively, “Service Data”). You are solely responsible for the accuracy, completeness, quality, integrity, reliability, legality, and suitability of your Service Data. You agree to submit Service Data in a format that is supported by and compatible for use with the Service, and to use reasonable efforts to review Service Data prior to submission to minimize typographical errors, truncation of data, out-of-date information, and other inaccuracies.

8. Use of Service Data

You authorize Hunter to collect, input, process, and store Service Data on your behalf. Additionally, and without limiting the foregoing, you hereby grant Hunter a non-exclusive, royalty-free, perpetual and irrevocable, freely assignable and sublicensable, worldwide license to reproduce, distribute, perform, transmit, display, adapt, alter, translate, prepare compilations, collected works, and derivative works based upon, and otherwise use Service Data:

· In furtherance of Hunter’s and any Hunter authorized sales representative, authorized distributor, service representative, or other Hunter strategic business partner’s relationship with you;

· To operate, maintain, and enhance the Service and our other offerings;

· To prepare Analytical Data, as defined and further provided below;

· For archival, record keeping, and regulatory compliance purposes;

· To investigate and respond to actual or threatened misuse of the Service;

· To respond to subpoenas, court orders, private causes of action, civil and criminal investigations, and governmental, regulatory, and law enforcement requests; and

· As otherwise permissible or required under applicable law.

9. Data Storage and Retention

The Service is not intended to store original records, or to serve as a substitute for your other information management systems. Hunter is not and shall not be deemed to be the original record keeper or primary custodian of your records, files, or information. We reserve the right to retain and/or delete Service Data from the Service, in our sole discretion, in accordance with our data retention and disposal practices. You acknowledge that Service Data may be temporarily or permanently damaged, lost, or corrupted as the result of user or system errors, service interruptions, or other events, and that, depending on the nature and duration of the event, Service Data may not be fully recovered or recoverable. You further acknowledge that Service Data may be retained on or off the Service in a manner that is not accessible to you, and that Hunter has no obligation to delete or provide you with a copy of such retained Service Data.

10. Analytical Data

Hunter reserves the right, without obligation, to utilize Service Data to detect issues, model trends, predict outcomes, and produce other statistics, research, analysis, business intelligence, and actionable insights (collectively, “Analytical Data”), and to act upon (or choose not to act upon) and commercialize Analytical Data for any purpose, without compensation or other obligation to you, and without proprietary, confidentiality, or other restrictions of any kind. You acknowledge and agree that Analytical Data is and shall be owned exclusively by Hunter, even if derived from the Service Data of you or other subscribers. To the extent that you are deemed to have any right, title, or interest in or to the Analytical Data, you hereby assign all such right, title, and interest to Hunter, and unconditionally and irrevocably waive any claims in connection therewith.

11. Prohibited Activities

You may not, nor shall you authorize or permit any other person or entity to:

· Access or use the Service in any manner or for any purpose for which it is not intended;

· Collect, input, process, or store any Service Data that you do not have full right to collect, input, process, and store using the Service;

· Access or use the Service in connection with equipment or through interfaces or automated means (such as test tools, screen capture technology, scripted browsers, or other programmatic methods) not supplied or expressly approved by Hunter;

· Use the Service to disseminate “spam” or other unsolicited email, text messages, or communications in violation of industry rules or applicable law;

· Deactivate, bypass, or circumvent any access controls or other security measures for the Service;

· Engage in or promote any activity, or post or transmit any material, that is illegal, obscene, abusive, offensive, harassing, or defamatory;

· Disseminate viruses, Trojan horses, spyware, adware, corrupted files, or other malicious code;

· Access or use the Service in violation of any telecommunications or Internet service provider rules or applicable federal, state or local laws or regulations;

· Infringe, misappropriate, or violate any intellectual property or proprietary rights, rights of privacy or publicity, or other rights of a third party, or violate any contractual, fiduciary, or other legal duty or obligation;

· Engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the Service’s functionality;

· Attempt to gain unauthorized access to Hunter’s or any other Service user’s network, systems, accounts, or data;

· Reproduce, distribute, sublicense, lease, rent, loan, transfer, or otherwise make available the Service to third parties, including as part of a service bureau, timesharing, or outsourcing arrangement;

· Modify, adapt, alter, translate, or create compilations, collections, or derivative works based upon the Service or the Content;

· Attempt to develop an alternative to the Service or the Content that is based on or derived from, in whole or in part, the Service, the Content, or your access to or use thereof;

· Remove or obscure any notices, warnings, or disclaimers for the Service or the Content, including any copyright, trademark, or other proprietary rights designations; or

· Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying programming, data or database structures for the Service.

We reserve the right to report to appropriate law enforcement, governmental authorities and other third parties any activities that we, in good faith, believe to be harmful or unlawful, with or without providing notice to you.

12. Copyright Policy

You may not use the Service to engage in any activity that infringes the copyrights of others. It is the policy of Hunter to terminate access to and use of the Service in appropriate circumstances for users who repeatedly infringe the copyrights of others.

13. Proprietary Rights

The Service is and shall be owned exclusively by Hunter, and we reserve all right, title, and interest therein, including without limitation all domains and sub-domains, the program architecture, database structure, and coding methodology, the design, layout, and “look and feel”, all Content and Analytical Data, all versions and derivations, all enhancements, modifications, and improvements (even if requested or paid for by you), all goodwill associated therewith, and all copyrights, patent rights, trademarks, and other intellectual property and proprietary rights of any nature throughout the world embodied therein and appurtenant thereto. All rights not expressly granted to you by Hunter under these TOS are reserved by Hunter and its suppliers. From time to time, you may provide Hunter with suggestions, ideas or other feedback concerning the Service, the Content, the Analytical Data, or Hunter’s other products or services. By providing feedback, you authorize us to act on (or choose not to act on) and commercialize such feedback without compensation or other obligation to you, and without proprietary, confidentiality, or other restrictions of any kind.

14. IMPORTANT DISCLAIMERS

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND ALL USE OF THE SERVICE IS AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, WE HEREBY disclaim any AND ALL implied OR STATUTORY warranties of MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND QUIET ENJOYMENT. NO EMPLOYEE, AGENT, SALES REPRESENTATIVE, AUTHORIZED DISTRIBUTOR, OR SERVICE REPRESENTATIVE HAS AUTHORITY TO BIND US TO ANY REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH IN THESE TOS.

WE RESERVE THE RIGHT TO MAKE CHANGES TO THE SERVICE IN OUR SOLE DISCRETION. WE DO NOT REPRESENT OR WARRANT THAT THE SERVICE SHALL OPERATE UNINTERRUPTED oR ERROR-FREE, THAT THE CONTENT SHALL BE ACCURATE, COMPLETE, UP-TO-DATE, OR FREE FROM VIRUSES, TYPOGRAPHICAL ERRORS OR ALTERATIONS BY THIRD PARTIES, or THAT THE SERVICE SHALL BE COMPATIBLE WITH YOUR NETWORK, SYSTEMS, OR EQUIPMENT, MEET YOUR particular REQUIREMENTS, OR achieve ANY PARTICULAR RESULTS. WE DO NOT VALIDATE SERVICE DATA, DO NOT GUARANTEE SERVICE DATA AGAINST DAMAGE, LOSS, OR CORRUPTION, AND MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION THEREWITH.

THE SERVICE IS NOT INTENDED AND SHOULD NOT BE USED TO INPUT, PROCESS, OR STORE INFORMATION THAT IS SENSITIVE, PRIVILEGED OR CONFIDENTIAL IN NATURE, SUCH AS BUT NOT LIMITED TO PAYMENT CARD INFORMATION. YOU AGREE NOT TO INPUT, PROCESS, OR STORE ANY SUCH INFORMATION ON THE SERVICE, AND ASSUME SOLE RESPONSIBILITY AND LIABILITY FOR ANY VIOLATION OF THE FOREGOING REQUIREMENT. WE RESERVE THE RIGHT, WITHOUT OBLIGATION, TO DELETE ANY SERVICE DATA THAT WE DEEM INAPPROPRIATE FOR OR INCOMPATIBLE WITH THE SERVICE.

THE SERVICE MAY BE SUBJECT TO TRANSMISSION ERRORS, DELIVERY FAILURES OR DELAYS, AND OTHER LIMITATIONS INHERENT IN THE USE OF THE INTERNET, COMPUTERS, AND ELECTRONIC COMMUNICATIONS. WE DO NOT GUARANTEE AVAILABILITY OF THE SERVICE AND SHALL NOT BE LIABLE FOR ANY PERIODS OF INACCESSIBILITY OR INOPERABILITY. WE DISCLAIM ANY AND ALL LIABILITY ARISING OUT OF OR IN CONNECTION WITH MALICIOUS, INTENTIONAL OR NEGLIGENT ACTS OR OMISSIONS OF THIRD PARTIES, INTERNET OR POWER OUTAGES, NETWORK OR TELECOMMUNICATIONS FAILURES, OR FORCE MAJEURE OR OTHER EVENTS BEYOND OUR REASONABLE CONTROL.

15. Links to Third Party Sites

The Service may contain links to or widgets from Internet or mobile sites not owned or operated by Hunter, including pages that Hunter or third parties maintain on YouTube, Facebook, Twitter or other social media sites. The inclusion of these links and widgets should not be construed as any sort of affiliation, sponsorship, endorsement or approval. When you access a third party Internet or mobile site or use a third party widget, you do so at your own risk and subject to the applicable terms and conditions of the Internet or mobile site provider. Hunter assumes no responsibility or liability for any information, products or services available on or through any third party Internet or mobile site, or for any actions taken by you or others in connection therewith.

16. LIMITATIONS ON LIABILITY

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL HUNTER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR SIMILAR DAMAGES OR LOSSES OF ANY KIND, OR FOR ANY LOSS OF BUSINESS, PROFITS, OR REVENUE, DAMAGE TO, LOSS, OR CORRUPTION OF SERVICE DATA, OR BUSINESS INTERRUPTION OR DOWNTIME, ARISING OUT OF OR RELATED TO THE THESE TOS, THE PRIVACY POLICY, THE SERVICE, YOUR ACCESS TO OR USE THEREOF, OR OUR PERFORMANCE OR NON-PERFORMANCE IN CONNECTION THEREWITH, EVEN IF WE HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL HUNTER’S TOTAL, CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES, LOSSES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR RELATED TO THESE TOS, THE PRIVACY POLICY, THE SERVICE, YOUR ACCESS TO AND USE THEREOF, OR OUR PERFORMANCE OR NON-PERFORMANCE IN CONNECTION THEREWITH EXCEED THE SUBSCRIPTION FEES (IF ANY) PAID BY YOU TO HUNTER FOR YOUR SERVICE SUBSCRIPTION IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE FIRST SUCH CLAIM OR FIVE U.S. DOLLARS ($5), WHICHEVER IS GREATER.

THE LIMITATIONS ON LIABILITY IN THESE TOS ARE AN ESSENTIAL PART OF THESE TOS, SHALL APPLY REGARDLESS OF THE NUMBER OF INCIDENTS OR CLAIMS, AND REGARDLESS OF THE NATURE OF THE DAMAGE, LOSS, OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR OTHERWISE), AND SHALL BE VALID AND BINDING EVEN IF ANY REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.

Some jurisdictions do not permit the disclaimer of certain warranties or exclusion of certain types of damages. To the extent that such a jurisdiction’s law applies to these TOS, you may have additional legal rights that cannot be disclaimed by contract, and in such event, the limitations on liability in these TOS shall apply only to the extent permissible under applicable law.

17. Indemnification

You agree to indemnify and hold Hunter harmless, to the maximum extent permissible under applicable law, from and against any and all claims, demands, causes of action, damages, liabilities, losses, fines, penalties, judgments, awards, settlements, costs and expenses (including reasonable attorneys’ fees and court costs) arising out of or attributable in whole or in part to: (i) your use or misuse of the Service, including all acts and omissions of your end users and activities occurring under your account; (ii) any Service Data collected, input, processed, or stored on your behalf; (iii) your violation of these TOS; (iv) your actual or alleged violation of applicable laws or the rights of another person or entity; (v) products and services provided by you to your direct and indirect customers; and/or (vi) any claim or allegation (whether or not bona fide) that Hunter is jointly, severally, contributorily or vicariously liable, or otherwise responsible, in whole or in part, in connection therewith.

18. Termination

We reserve the right to suspend your account and/or terminate your Service subscription, in whole or in part: (i) if we determine or reasonably suspect that you have violated these TOS; (ii) if you become or are declared insolvent, make a general assignment for the benefit of creditors, enter into an agreement for the composition, extension, or readjustment of all or substantially all of your obligations, file a voluntary petition in bankruptcy, or have an involuntary petition in bankruptcy filed against you; or (iii) for convenience, at any time and for any reason, or for no reason, including if we discontinue offering the Service. If terminated by us for convenience, as your sole and exclusive remedy, you shall be entitled to a partial refund from Hunter (or your Hunter authorized sales representative, authorized distributor, or service representative, if you purchased your subscription through a Hunter authorized sales representative, authorized distributor, or service representative) of the Service subscription fees (if any) prepaid by you in respect of the remaining term of your Service subscription (or $0 if you received a complimentary Service subscription with your Hunter Engineering equipment purchase).

Upon the expiration or termination of your Service subscription for any reason, you shall cease all access to and use of the Service, and all rights and licenses granted to you under these TOS shall automatically terminate. Subject to the foregoing, the provisions of these TOS shall survive the expiration or termination of your Service subscription for any reason, and shall be binding on and inure to the benefit of the parties and their respective permitted successors and assigns.

19. Changes to These TOS

We reserve the right to amend these TOS from time to time, in our sole discretion. Any amendment shall be effective when posted on the Service or otherwise made available by Hunter to you. If you do not agree to the amended terms, you must notify Hunter promptly in writing and cease all use of the Service. Your continued access to or use of the Service after Hunter has amended these TOS shall signify your acceptance of the amended terms. Any other amendment to these TOS or waiver of any obligation, right or remedy hereunder must be in writing and signed by an authorized representative of each party. Any waiver on one occasion shall not constitute a waiver on subsequent occasions.

20. Miscellaneous

(a) Governing Law. These TOS shall be governed and interpreted for all purposes by the laws of the State of Missouri, U.S.A., without reference to any conflict of laws principles that would require the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (as enacted by any jurisdiction) do not and shall not apply to these TOS, and are hereby specifically excluded.

(b) Jurisdiction; Venue. Any dispute, action or proceeding arising out of or related to these TOS, the Privacy Policy, or the Service shall be commenced in the state courts of St. Louis County, Missouri or, if proper and exclusive subject matter jurisdiction exists, the United States District Court for the Eastern District of Missouri. You hereby consent to the personal jurisdiction and exclusive venue of such courts and waive any objections thereto, including based on forum non conveniens; provided, however, the foregoing shall not prevent Hunter from obtaining injunctive or other non-monetary equitable relief or compelling your indemnification obligations under these TOS in any court of competent jurisdiction.

(c) Notices. All notices under these TOS must be in writing and in the English language. Notices to you may be delivered by email, fax or postage prepaid registered or certified mail, return receipt requested, to the most current address on file. Notices to Hunter must be delivered by postage prepaid registered or certified mail, return receipt requested, to the attention of the General Counsel at Hunter’s then-current corporate headquarters address.

(d) Assignment. You may not assign these TOS or any of your rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without Hunter’s prior, written consent. Any attempted assignment in violation of the foregoing shall be null and void from the beginning and without effect. Hunter may assign these TOS or any of its rights or obligations hereunder, in whole or in part, at any time and for any reason, including in connection with any merger, acquisition, reorganization, restructuring, liquidation, dissolution, or other transfer of all or any part all of Hunter’s business or assets.

(e) Relationship; Third Party Beneficiaries. Nothing in these TOS is intended or shall be construed to create any agency, employment, partnership, fiduciary or joint venture relationship between you and Hunter, or to give any third party any rights or remedies under or by reason of these TOS; provided, however, the disclaimers, limitations on liability and indemnification protections under these TOS shall extend to Hunter, its shareholders, directors, officers, employees, independent contractors, agents, and affiliates, including without limitation Hunter authorized sales representatives authorized distributors, and service representatives. All references to Hunter in connection with the foregoing shall be deemed to include such persons and entities as third party beneficiaries entitled to accept all benefits afforded thereby.

(f) Equitable Relief. The Service comprises the confidential and proprietary information of Hunter and its suppliers, and constitutes a valuable trade secret. You acknowledge that any breach of the permitted use, prohibited activity, license, or ownership provisions of these TOS would cause irreparable harm to Hunter, the extent of which would be difficult and impracticable to assess, and that money damages alone would not be an adequate remedy for such breach. Accordingly, in addition to all other remedies available at law and in equity, Hunter shall be entitled to obtain injunctive relief in any court of competent jurisdiction, without the necessity of posting a bond in connection therewith.

(g) Interpretation. If any provision of these TOS is determined to be unenforceable under applicable law, such provision shall be interpreted or amended by a court of competent jurisdiction to accomplish the objectives of such provision to the greatest extent possible under applicable law, or severed from these TOS if such interpretation or amendment is not possible, and the remaining provisions of these TOS shall continue in full force and effect. The captions and section headings in these TOS are for reference purposes only, and shall not affect the meaning or interpretation of these TOS. The term “including” means “including without limitation.” The terms “herein,” “hereunder,” “hereto,” “hereof,” and similar variations refer to these TOS as a whole, rather than to any particular section.

(h) Entire Agreement. These TOS set forth the entire agreement between you and Hunter with regard to the subject matter hereof, and supersede all prior and contemporaneous proposals, agreements and understandings, whether written or oral, pertaining to the subject matter hereof. Without limiting the foregoing, these TOS are intended and shall be deemed to govern all use of the Service occurring and Content, Service Data, and Analytical Data existing prior to the date of these TOS first stated above. Any conflicting or supplementary terms proposed by you in any email, attachment or other writing shall not be binding on us, and are hereby objected to and expressly rejected.

Copyright 2016 Hunter Engineering Company. “Hunter Engineering”, “HunterNet”, the Hunter Engineering logo, and the other brands featured on the Service are protected trademarks and service marks of Hunter Engineering Company, its licensors, and suppliers. All rights reserved.