ITEMS AND SERVICES
We, (hereinafter “we,” “us,” “our” or “the Company”), will provide you (hereinafter “you,” “your” or “Customer”) with Safety Track Items and Services for the purpose of allowing you to collect diagnostic and location information from a motor vehicle using a wireless Internet device which is installed in that vehicle (hereinafter referred to as “Safety Track Service”), subject to the terms, conditions and limitations set forth herein. The Safety Track Items and Services are designed to provide you with a broad set of automotive data derived from location information. By entering into this Agreement, you are agreeing to become a Customer of the Company and to purchase Safety Track Items and Services through the Company. Without our prior written consent, you will not (a) attach to or install on any Safety Track Items any accessory, attachment, or other device that would impair the originally intended function, operation or good working order of the Safety Track Items; or (b) make any modifications to the Safety Track Items. You also acknowledge and agree, as follows:
The Safety Track Items and Services utilize wireless services data which cannot be collected through such Items and Services once a vehicle in which the related Equipment is installed travels beyond a certain range. The Items and Services are dependent upon the coverage areas of wireless networks owned and operated by third parties. Coverage areas are approximate and do not cover significant portions of North America. Actual coverage and operation of all Items and Services depend on system availability and capacity, system and equipment upgrades, repairs, maintenance, modifications, relocation, terrain, signal strength, structural conditions, governmental regulations, acts of God, and other conditions beyond the reasonable control of the Safety Track Parties or the Company.
The Items may not operate in an enclosed space, in a building, between buildings, underground or in canyons. The Items and Services are dependent upon the availability of the Internet, which is owned and operated by and accessed through third parties. Neither Safety Track or the Company warrant that the receipt of data mapping information, another content from the Items and Services will be uninterrupted, or that the transmission of data, mapping information, and other content will always be timely or complete. You acknowledge that the Items and Services do not monitor any parts or systems of your vehicle and that neither the Items nor the Services shall prevent and/or detect all vehicle problems and we do not guarantee that you will not experience vehicle breakdowns or repair costs. If location-based data or location-based services are used or attempted to be used to locate a vehicle, including any stolen vehicle, neither Safety Track nor the Company guarantees that the vehicle will be successfully located and/or recovered.
You will not remove or obscure any copyright, trademark notice or restrictive legend on any of the Safety Track Items.
Your failure to properly install or use the Equipment as described in the operating manual;
Accident, negligence, theft, vandalism, operator error or misuse, failure of the Equipment site to conform to specifications, failure or surges in electrical power, air conditioning or humidity control, water, abnormal conditions, acts of God (including lightning) or cause other than normal use;
Modifications, attachments, repairs or parts replacements performed by you or any other person not authorized by Company; or
Failure of a vehicle to be in good working condition.
During the Term, you agree to pay us the applicable monthly fees set forth above (the “Fees”). If applicable, any one-time Initial Fee will be due upon execution of this Agreement. Hardware costs, including installation, shall be due upon purchase of the Equipment. All other Fees will be invoiced to you on a monthly basis in advance. You must pay any freight and any sales and/or use taxes. Invoices are due on receipt. You must pay all amounts without offset. After the Initial Term, we reserve the right to change our Fees or implement new charges at any time upon 30 days prior written notice to you. If you do not pay any amount within sixty (60) days after it is due, we may impose a late charge on any undisputed unpaid amount equal to the greater of one and one-half percent (1.5%) per month on such unpaid amount or the highest rate/amount permitted by applicable law.
The initial term (the “Term”) of this Agreement begins on the date of this Agreement and, unless terminated earlier as provided herein, continues for the Term set forth on the first page of this Agreement (the “Initial Term”). Thereafter, the Term will be extended on a 24 month basis unless otherwise specified (the “Renewal Term”), unless terminated by either party, with or without cause, upon 30 days written notice prior to the end of the Initial or any Renewal Term the remaining hardware balance will be incurred. The Initial Term and Renewal Term are collectively referred to as the “Term.” If you terminate Services under this Agreement and later desire to reinstate Services, you may receive those Services if you sign another Agreement with us and pay our then-current, applicable fees. This Agreement and your participation in the Services as set forth herein may be terminated by us prior to the end of the Term: (a) if you do not comply with any of your obligations under this Agreement (or then applicable policies and terms with respect to the Safety Track Items or Services, which may be changed from time to time), including any failure to pay any amounts due; (b) for reasons relating to any breach of applicable state or federal law; or (c) if we are no longer permitted to make the Services available. All unpaid amounts are immediately due and payable on default.
You will comply with all then-current, applicable policies established from time to time and delivered to you with respect to the Safety Track Items and Services. You will also comply with all applicable laws and regulations, including FCC and privacy laws, relating to the Items and Services and the transactions contemplated under this Agreement. You are responsible for the compliance of your affiliates, employees, agents and consultants (collectively “Associates”) with the terms of this Agreement and any applicable policies, rules, laws or regulations.
We provide a Limited Warranty that, for a period of one (1) year following delivery of Equipment to you and any extended warranty period(s) purchased, such Equipment will not have defects in material and workmanship and, subject to the terms, conditions and limitations set forth herein, during the Term: (a) Licensed Matter will be able to perform the data processing functions described in the applicable operating manuals; and (b) Services will be provided in a workmanlike manner. You may only make claims under this Limited Warranty during the Term by promptly notifying us after you learn of the facts supporting the claim. We will either repair or replace the non-complying Item or re-perform the Services; THESE ARE OUR ONLY OBLIGATIONS AND YOUR ONLY REMEDY FOR BREACH OF WARRANTY OR GUARANTEE. We do not provide any warranty or guarantee on items acquired from others, even if acquired with our assistance. The Limited Warranties contained in this Section are void if you default. Unless otherwise agreed in writing, downtime is not a breach of this Agreement by us and will not entitle you to any refunds or credits.
Any hardware returned to Safety Track within 30 days of receipt will be accepted with a 20% restocking fee for unopened, unused hardware. Any hardware returned to Safety Track within 30 days of receipt will be accepted with a 30% restocking fee for opened, used, or installed hardware. Shipping and handling fees, activation fees and Service/Data Plan fees are not refundable. All returns must be accompanied by a Return Merchandise Authorization issued by Safety Track. POLICY ON NON-REFUNDABLE ITEMS: There will be no refund for any Equipment that is purchased as used Equipment. All used Equipment is sold as is, and all sales of used Equipment are final. There will be no refund for any new or used Equipment purchased as part of an exchange involving a previously returned item.
THE COMPANY WILL NOT BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS OR LOST DATA, EVEN IF THE COMPANY IS TOLD THOSE DAMAGES MAY OCCUR. THE COMPANY’S LIABILITY UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL THEORY SHALL NOT EXCEED THE AMOUNT PAID TO THE COMPANY UNDER THIS AGREEMENT DURING THE TWO (2) MONTH PERIOD PRIOR TO THE DATE THE LIABILITY ACCRUES FOR A CLAIM. EXCEPT AS STATED IN PARAGRAPH 6, THE COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE ITEMS OR SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF INTERRUPTED OPERATIONS WITHOUT ERROR. We are not responsible for: (a) delays in delivery, installation, damage to Equipment, or providing Services, except if caused by our gross negligence or willful misconduct; (b) acts of God or anything outside our reasonable control or resulting from your breach; or (c) the operation of Items if any item acquired from a third party is used with the Items.
Subject to the provisions of Section 4, Term and Termination, you will be in default if you breach this Agreement, including any failure to pay any amounts due. If you default, we may, without liability, terminate this Agreement and cease providing Items and Services and obtain any remedies available. All unpaid amounts are immediately due and payable on default. All our rights and remedies are cumulative.
You agree to promptly register any Safety Track Items along with any associated vehicle information using the web-based registration methods we provide to you. Upon registration of the Item and vehicle from you, we will activate any purchased Safety Track Services for the applicable vehicle. We may change the Item / Vehicle Registration process from time to time at our sole discretion.
You agree that we may share the information provided by you in this Agreement with our affiliates, for the purpose of establishment of credit or to set up or deal with your account, and with any Safety Track Parties as necessary in connection with the provision of the Items and Services hereunder or otherwise for the performance of this Agreement.
The following definitions apply: (a) Equipment – Safety Track™ device or other Equipment Items (other than Licensed Matter) as described herein; (b) herein – means this Agreement unless the context in which used expressly refers to a specific provision, section or paragraph; (c) Items – Equipment and Licensed Matter; (d) Licensed Matter – Safety Track software, including corrections and any improvement or modification that we provide to you, and anything provided by us for use with the Safety Track software or Equipment, such as books or manuals or other printed materials; (e) Other Providers – anyone other than us that provides Items or Services to you; (f) our – belonging to us; (g) person – any individual, corporation, limited liability company, partnership, joint venture, association, organization, government, governmental body or authority, or any other entity, organization or enterprise of any nature whatsoever; (h) Services – Safety Track Services (described in Section 1 above) and support services for the Equipment and Software; (i) Subscriber or Customer – any individual or fleet entity that enters into a Subscriber Agreement with us; and (j) us or we or Company.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may be assigned by the Company without prior notice to or requirement of consent of Customer. Customer may not assign this Agreement without the prior written consent of the Company. This Agreement shall be read and enforced under the laws of the Commonwealth of Michigan applicable to contracts executed and performed completely in Michigan and without reference to any conflicts of law’s provisions hereunder. Section or paragraph headings herein are for convenience only and shall not affect the meaning or interpretation of any provisions of this Agreement. If part of this Agreement is held invalid or unenforceable, the invalid part will be deleted, and the rest will remain in effect. EACH PART OF THIS AGREEMENT THAT LIMITS LIABILITY, DISCLAIMS WARRANTIES OR GUARANTEES OR EXCLUDES DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED THAT WAY. IF ANY REMEDY FAILS TO FULFILL ITS ESSENTIAL PURPOSE, THE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES REMAIN IN EFFECT. Any notice required under this Agreement shall be in writing and shall be delivered by hand, sent by fax (if the sending machine confirms in writing that the fax was received), or mailed by registered, certified mail or other receipted delivery service, return receipt requested and postage or delivery fees prepaid, to the addresses stated in this Agreement. This Agreement contains the entire Agreement between the parties about the Items and Services which are the subject of the Agreement and prevails over all prior oral and written statements, communications or Agreements between you and us about such Items and Services. No action regardless of form, related to this Agreement may be brought by you or us more than one year after the cause of action has accrued. In the event that we commence any action or legal proceeding to collect any sums payable to us hereunder or to otherwise enforce our rights under this Agreement, then in addition to any other rights or remedies to which we may be entitled, you agree that we shall also be entitled to recover our costs and expenses incurred in connection with such action or proceeding, including (without limitation) our reasonable attorneys’ fees.