This Agreement was last updated on March 02, 2012.

This agreement (hereinafter, the “Agreement”) governs the relationship between you in your capacity as an internet user (hereinafter, “you” and “your”) and Birch Grove Solutions, Inc. (hereinafter, “we,” “us,” and “our”) when you use the website located at www.activtrak.com and any and all subdomains under activtrak.com, including without limitation app.activtrak.com (hereinafter, the “Website”) and the ActivTrak service (hereinafter, the “Service”). Use of the Website and the Service is conditioned on your acceptance of the terms and conditions specified in this Agreement. If you do not accept these terms and conditions, you may not use the Website or the Service. By using the Website or Service you agree to be bound by the terms and conditions set out below which may be updated by us from time to time.

YOUR ACCESS TO AND USE OF THE SERVICE

You warrant that you shall use the Service solely for your own purposes, subject to the terms and conditions of this Agreement.

In order to use the Service, you are required to register with ActivTrak and select a password and user name (“ActivTrak User ID”). You may not (i) select or use as an ActivTrak User ID a name of another person or company with the intent to impersonate that person or company; or (ii) use as an ActivTrak User ID a name that you do not have permission to use. ActivTrak reserves the right to refuse registration of, or cancel an ActivTrak User ID in its discretion. You are responsible for maintaining the confidentiality of Your ActivTrak password and other account information. You agree that the information you provide ActivTrak will be accurate, complete, and up to date, and if we determine that the information does not meet those standards, or if you violate any of these requirements, we may immediately terminate the Agreement for Your breach and/or suspend your use of the Service.

ActivTrak provides the Service only. You are responsible for providing any and all resources that you require in order to access and use the Service, including without limitation internet access and computer hardware.

You are entirely responsible for maintaining the confidentiality of your ActivTrak password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to:

  1. notify us immediately of any unauthorized use of your account or any other breach of security, and
  2. exit from your account at the end of each session.

You agree that we shall not be liable for any loss or damage arising from your failure to comply with any provision of this section. If you provide any information that is untrue, inaccurate, not current or complete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, out of date, or complete, we have the right to suspend or terminate your access to those parts of the Service requiring registration.

FEES

All features of the Service are offered on a subscription basis. You are responsible for paying the applicable prices for each service you elect to use. The Service may be payable in advance.

All fees associated with using the Service are specified in the Fee Schedule, which is available via the internet at https://app.activtrak.com/#/app/upgrades/upgrade (pricing page located inside free ActivTrak application). We may offer alternative fee structures, discounts, coupons or incentives, at our sole discretion and for any reason, but we are under no obligation to offer such alternatives to all users. The actual price you will pay for the Service shall be the price listed in the Billing section of your account or by other agreement.

DISCLAIMER OF WARRANTIES

The Service is provided on an “as is” and “as available” basis and we make no warranties or representations, whether express or implied, in relation to the Service, including but not limited to implied warranties or conditions of merchantability, completeness, accuracy, satisfactory quality, and fitness for a particular purpose.
You acknowledge and agree that:

  1. it is technically impossible to provide the Service free of faults and that we do not undertake to do so;
  2. faults may lead to temporary unavailability of the Service;
  3. the Service may include inaccuracies or typographical errors; and
  4. the operation of the Service may be adversely affected by conditions and performances outside our control, including without limitation, transmission and telecommunications links between us and you, between different parts of our network, and between us and other systems and networks.

You further acknowledge that some of the information, for example software, is supplied to us by third parties and accordingly we offer no warranty of whatever nature in relation to such information.

LIMITATION OF LIABILITY

You agree that, except for death and personal injury arising from our negligence, we shall not be liable in contract, tort, negligence, statutory duty or otherwise, for any loss or damage whatsoever arising from or in any way connected with this contract or the use or performance of the Service or related Website, including without limitation, damage for loss of business, loss of profits, business interruption, loss of business information, or any other pecuniary loss (even where we have been advised of the possibility of such loss or damage).

USER CONDUCT

We provide the Service to you solely for your private use. You undertake not to use the Service:

  1. for any unlawful purpose;
  2. in any way so that the Service is interrupted, damaged, rendered less efficient or the functionality of the Service is in any way impaired;
  3. in any way that may damage or disrupt another user’s computer;
  4. for the transmission, uploading or posting of any computer viruses or any harmful or deleterious files or programs;
  5. to transmit, upload or post any material which is defamatory, offensive, racist, vulgar, libelous or of an obscene or menacing character, or in such a way as to cause annoyance, inconvenience or needless anxiety;
  6. as a means to threaten, stalk, harass, abuse, or otherwise insult other users or to collect or store personal data about other users;
  7. in a manner which constitutes a violation or infringement of any person, firm or company’s rights (including, but not limited to, rights of copyright or confidentiality);
  8. to transmit any material for the purposes of publicity, promotion and/or advertising without our prior written consent unless such transmission has been specifically requested by another user of the Service;
  9. to create a false identity for the purpose of misleading others as to the identity of the sender or the origin of a message, including, but not limited to impersonating an ActivTrak employee, manager, host or another user; or
  10. to transmit, upload, post or otherwise make available any solicited or unauthorized advertising, promotional materials, “junkmail”, “spam”, “chain letters”, “pyramid schemes” or any duplicative or unsolicited messages.
    However, we do not control the content posted via you or other users on the Service and as such, do not guarantee the accuracy, integrity or quality of such content. By using the Service, you acknowledge that you may be exposed to content that is offensive or objectionable.

Under no circumstances will we be liable in any way for any content or any damage incurred as a result of you accessing any content posted or otherwise transmitted via the Service.

You acknowledge that we do not monitor or pre-view any content posted via you or other users of the Service, but that we shall have the right (but not the obligation) to refuse access to or move any content made available via the Service.

PARENTAL RESPONSIBILITY

We are concerned about the safety and well-being of all our users, but in particular children. Parents who allow their children to use the Service should take care to supervise and assist their children. We remind you that the Service is designed to appeal to a wide audience. As the legal guardians, we remind parents that it is their responsibility to supervise children and to determine whether particular areas are suitable for your child. Children under the age of 13 are prohibited from registering for the Service.

INDEMNIFICATION

You further undertake that in the event that you have any right, claim or action against any other user arising from the use of the Service, you shall pursue such right, claim or action independently of, and without recourse to us.
You will fully indemnify and defend us against all claims, liability, damages, costs and expenses, including legal fees, arising out of a breach of this Contract or any use of the Service, the Information or the Website by you.

You acknowledge that we have limited control over the nature or content of information or programs transmitted or received by you or other users using the Service and that we do not examine in any way the use to which you put the Service.

You agree to fully indemnify us against any claims or legal proceedings arising in connection with your use of the Service which are brought or threatened against us by any other person.

INTELLECTUAL PROPERTY

You acknowledge and agree that all copyright, trademarks and all other intellectual property rights in the Service shall remain vested in us or our licensors.

SUSPENSION AND TERMINATION

We shall have the right to immediately terminate this Contract and/or suspend your access to the Service if you commit a breach of these terms and conditions.

USER PRIVACY

See our Privacy Policy and our treatment of the Registration Information and/or any other personal information relating to you that we collect in the course of providing the Service. Additionally, you may ask questions or raise comments about privacy issues by sending an email to support@bgrove.com

CHANGES TO THE TERMS AND CONDITIONS AND THE SERVICE

We reserve the right to change these terms and conditions from time to time by placing a note of such change in this file, and your continued use of the Service following notice of such change shall be deemed to be your acceptance of any such change. It is your responsibility to check this file regularly to determine whether this Contract has been changed. If you do not agree to any change in the terms and conditions of this Contract then you must immediately stop using the Service. We also reserve the right to change and update the Service from time to time.

SEVERABILITY

Each provision of this Agreement excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or other of those provisions is held to be inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the termination of this Agreement.

NO WAIVER

No waiver by us shall be construed as a waiver of any preceding or succeeding breach of any provision.

CHOICE OF LAW AND JURISDICTION

This Agreement shall be governed by the laws of the State of Texas (without regard to conflicts of law provisions) and the parties hereby irrecoverably submit to the exclusive jurisdiction of the courts located in the State of Texas.

This Agreement was last updated on March 02, 2012.