Terms of Service
The following Standard Terms and Conditions shall apply to the Master Agreement. The Company will not be bound by any inconsistent terms or conditions that may appear on Customer’s purchase order or any place else. Customer’s acceptance of these Standard Terms and Conditions is indicated by execution of the Master Agreement, placement of a purchaser order, or receipt of delivery of any products or services described in this Agreement when promptly returning them to Company. Until signed and accepted by the Company, any order shall constitute a quote which is valid for thirty (30) days, unless sooner withdrawn by the Company in writing prior to acceptance. Terms of payment for monthly services are net thirty (30) days from the day of product invoice.
STANDARD TERMS AND CONDITIONS
Article 1: Products
- Customer agrees to purchase from Company, and the Company agrees to sell to Customer, the Products listed on the attached Service Plan Agreement and Equipment Schedule at the terms and conditions and prices stated herein. The Company may accept or reject any order in whole or in part in writing. Amounts paid toward the purchase of the Products shall be returned minus a 15% restocking fee if an order is cancelled before delivery takes place.
- The Company utilizes wireless programming to maintain and update the software in the Products. The initial software programming is included in the purchase price. Customer will pay a fee for any subsequent wireless programming requested by customer. Customer will pay any subsequent programming fee in full prior to Company commencing any such programming.
- Product Payment Terms: If Customer elects to pay cash, the Product payment terms are half prior to shipment and balance is due upon Customer’s receipt of Product. Company acknowledges that Customer may contract with a third-party financing or leasing company to finance the purchase of the Products. This is solely for the benefit of Customer and does not affect or change the duties and obligations of the Customer and Company under this Master Agreement. In that event, the full purchase price must be received by Company prior to shipment of the Products. The Company hereby reserves a security interest in Product to be satisfied upon payment in full. A late payment fee of the lesser of 1.5% per month or a fraction thereof or the highest amount permitted by law shall be assessed against amounts not received within such time period. Customer understands that there is generally a 14 week lead time for orders. Customer will be bound to all terms of this Agreement. Customer agrees to pay all reasonable costs and expenses, including, but not limited to attorney’s fees, court costs, and service charges incurred by the Company in collecting payment on any other amounts due under this Agreement.
- Shipping: Products shall be shipped F.O.B place of manufacture, freight collect, to the Shipping Address stated on this Agreement. Title passes to Customer upon full payment of Product Invoice. Risk of loss shall pass to Customer upon shipment of the Products to Customer’s representative at the F.O.B point. Company will not be liable for any delay in transportation of the products. In the event Customer is in default, we may decline to make further shipments without affecting the Company’s rights under the Agreement. Customer shall be responsible for insuring the Products and shall pay shipping, freight, insurance, warehousing and other costs of delivery and warehousing.
- Limited Product Warranty: The onboard computer and scanner, and trailer tracking devices are warranted by the Company to Customer as the original purchaser for one year from the date of shipment to the manufacturer’s published specifications. Options (such as the voice handset and keyboard) of the Product are warranted by the Company for one year from the date of shipment to conform substantially to the manufacturer’s published specifications. The Company provides no warranty for accessories (such as standard cables, mounts and antennas). The Company will replace any defective Product with the same substantially similar Product in all material respects to the original. Customer is responsible for installation services. To return any product, Customer must obtain an RMA (Return Merchandise Authorization) number from Customer Service. The Company will not accept returns that do not have an RMA number written clearly in the return packaging. Customer should be sure to have original Product packaged and insured. This is the sole remedy for any breach of warranty. The foregoing warranties will not apply if any part or all of Product (i) has been damaged through misuse, abuse, or use by Customer in any manner for which they are not designed, (ii) is not installed by the Company or an authorized installer representing the Company, or (iii) is used by any other party other than the Customer. In any of these cases, the Company will keep the non-warranted part 60 days after receipt and is available to Customer inspection. THE COMPANY HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY WILL NOT BE RESPOSIBLE FOR ANY DAMAGES TO PERSONS OR PROPERTY AND SHALL NOT BE LIABLE WHATSOEVER FOR INCIDETAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. IN THE EVENT THAT THE WARRANTY LIMITATIONS ARE HELD TO BE INVALID OR INEFFECTIVE, THE COMPANY’S LIABILITY SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE ALLEGEDLY DEFECTIVE PRODUCT.
- Product returns: The Company shall accept Product returns made within 30 days from the date of delivery provided the returned Product has not been installed and is in new condition. To return any product, Customer must obtain an RMA number from Customer Service. The Company will not accept returns that do not have an RMA number clearly written on the return packaging. Upon delivery of the Product to the Company, Company shall credit Customer’s account for the equipment costs only less a 15% restocking fee. Risk of loss for returned Products shall remain with Customer until the Product is delivered to the Company’s designated facility. Customer shall be responsible for the cost or returning the Products.
Article 2. Services
- Services, Services Areas: Customer shall be provided with those Services listed in the Company’s published Service Plan Agreement and Equipment Schedule, which is part of this Agreement. The Services shall be available to Customer when its system is properly configured and operated within the Company’s licensed services areas. The Company does not guarantee the availability of Services in areas outside or within its licensed service areas.
- Service Payment Term: The Company shall charge Customer monthly fees in accordance with the attached Service Plan Agreement and Equipment Schedule (“Service Fees”). Access Fees and other recurring fees shall be invoiced one month in advance of Services. Overages, roaming, pro-rated access fees and voice communication fees are invoiced in arrears. Invoices are due and payable upon receipt. Service Fees commence upon the earlier of installation or 60 days from Product shipment. All invoices are billed electronically, by either electronic mail or facsimile. The Customer may be billed one minute for unanswered incoming voice calls. No credit or carryover shall be given for transactions paid for but not used in a billing cycle. A late payment fee of the lesser of 1.5% per month or a fraction thereof or the highest amount permitted by law shall be assessed against amounts due and not paid within 30 days of Service Invoice.
- Suspension of Services for Non-Payment: The Company shall have the right to suspend Services for failure to pay any invoice when due. Customer shall continue to be charged for Service Fees during such suspension. If Services are resumed, Customer will be billed and must pay on the next monthly billing cycle an account re-activation fee of $250.00.
- Service Outages: The Company shall not be liable for service outages caused by (i) a service provider’s inability to retain and maintain suitable facilities, licensed or rights for the Company’s licensed service areas; (ii) any atmospheric or natural causes; (iii) system capacity limitations, equipment repairs and similar activities not within the complete control of the Company, (iv) failures of, changes, modifications, or alterations to Customer’s network facilities, equipment or software, (v) any accident involving a vehicle of Customer, or (vi) any other act omission not caused by the Company or force majeure beyond the reasonable control of the Company. Liability for Service outages over 24 hours caused solely by the Company may be in the form of a credit allowance for Services billed during such outage. No credit allowances will be given for accumulating periods on non-continuous Service outages. The liability for Service outages from whatever cause shall be limited to the amount paid by Customer under this Agreement for Services during the period such claim arose. Company is not liable for areas where wireless service does not exist or is inconsistent due to wireless provider’s limitations.
- Service Warranty: EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, CONCERNING THE SERVICES, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS OR PROPERTY AND SHALL NOT BE LIABLE WHATSOEVER FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES AS A RESULT OF CUSTOMER’S USE OF THE SERVICES.
- Limitation of Liability: We will not be liable for costs of any procurement of substitute products or services, nor for any loss of business, loss of use or of data, interruption of business, lost profits or goodwill, or other indirect, special, incidental, exemplary or consequential damages of any kind arising out of such loss, and notwithstanding any failure of essential purpose of any limited remedy. This exclusion includes any liability that may arise out of third-party claims against you. Our total liability under this Agreement shall in no event exceed the price paid by you for such product.
Article 3. Changes to Prices, Taxes and Charges
Prices for Products and Services may be changed at any time upon 30 days notice. Customer may terminate this Agreement in writing within 30 days of price change notice without early termination fee if price change exceeds 5% annually. Customer is responsible for all taxes, surcharges, or other charges imposed or levied on it, or the Company, as a result of or arising out of Customer purchasing the Products and Services, except for any income taxed attributable to the Company. All applicable taxes and surcharges will be billed monthly for all units containing cellular connections. The Company charges a $35.00 fee for each Customer check returned for insufficient funds.
Article 4. Numbers; Security; Privacy; Fraud
Customer has revocable, non-exclusive sub license to use the cellular numbers assigned to the Product. Customer shall not program, a number into a Product other than a number assigned by the Company or alter such number. Customer is solely responsible for codes or passwords that may be required for the use of the Products or Services. The Services are susceptible to interceptions by third parties and the Company does not guarantee and has no obligation to secure the privacy of Customer’s communications. The Company has the right to intercept and disclose Customer communications solely to protect its rights or property. The cellular numbers are susceptible to fraud and theft. Customer must notify Company as soon as reasonably possible upon discovery of any theft or fraudulent use of such numbers. Customers shall acquire no proprietary interest in the cellular numbers assigned by the company for its use. Customers agrees that, save and except as otherwise provided herein, the Company shall not be held liable to Customer for any damages arising through fraudulent use of such numbers.
Article 5. Intellectual Property Rights.
- Customer agrees that all right, title and interest in and to the products and services provided belongs exclusively to the Company. Customer has a revocable, nonexclusive license to use the Technology solely in connection with the use of the Products and Services on the terms and conditions contained herein. Customer agrees that it will not transfer or make available to any other party the Technology. “Technology” means (i) the technology and trade secrets necessary for the operation of the Products and the Services developed by the Company, and (ii) proprietary electronic architecture and other non-literal elements of the Products and the Services developed by the Company, and (iii) any training, reference or service manuals and updates thereto.
- Software License. We grant you (and only you) a non-transferable, non-exclusive limited license to use any software provided pursuant to this Agreement or contained in or embedded in any of the Products ( collectively, the “Software”), solely in conjunction with the Products, in obect code form only. You receive no title or ownership rights to the Software, which will remain the exclusive property of Company or our licensors. This Agreement does not give you any right to reproduce the Software or any related documentation, and you agree that you will not decompile, disassemble, compile or reverse engineer the Software or otherwise attempt to gain access to the Software source code.
- Proprietary Information. You shall not remove any patent or copyright notices or any confidential or proprietary legends on the Products or the Software. You acknowledge and agree that the Products and the Software constitute valuable proprietary products and trade secrets of Company and its licensors embodying substantial creative efforts and confidential information ideas and expressions. Accordingly, you shall observe complete confidentiality with respect to the Products and the Software and shall not disclose all or any portion of the Products or the Software to any third party or entity, except such disclosure as may be necessary or appropriate to your employees in the course of their employment. You shall advise your employees or consultants who receive access to the Products or Software of the confidential and proprietary nature of the Products or Software and obtain from each his or her Agreement to be bound by the terms of this Agreement.
Article 6. Indemnity.
You shall indemnify, defend and hold harmless Company, all parent, sibling, subsidiary or affiliated entities of Company, its shareholders, officers, directors, agents, employees, and assigns, from and against any and all claims, losses, damages, and expenses, including attorney fees, arising out of or related directly or indirectly to (i) this Agreement; (ii) any personal injury to or death of any person or persons, any loss or damage of any property or any interruption of services which are caused or claimed to have been caused directly or indirectly from your (including your employee’s or independent contractor’s) negligent operation and/or related use or misuse of the Products, including, but not limited to, use of the Products while the vehicle is in motion; (iii) any use of the Products for High Risk Activities or a Dangerous Operation; (iv) documents, data or other information transmitted over the Products; (v) any breach of your representations or warranties under this Agreement or any of the other terms and conditions of this Agreement, (vi) the actions or omissions of your employees, agents or servants.
Article 7. Term and Termination.
- The initial term of this agreement is documented in the attached Service Plan Agreement and Equipment Schedule (the “Initial Term”) and shall be automatically renewed for additional one year terms (each a “Renewal Term”) on the same terms and conditions of this Agreement unless a party gives written notice to the other party that it elects not to renew this Agreement at least 30 days prior to the expiration of the initial Term or any Renewal Term. If automatically renewed an annual rate increase of up to 5% will apply.
- Events of Default This Agreement may be earlier terminated by the Company immediately and without notice from Company immediately and without notice to Customer (i) for failure by Customer to remit payment within 30 days of receipt by Customer of written notice from Company of non-payment of invoices; (ii) if there is a sale of all substantially all of the assets of Customer, (iii) if Customer assigns this Agreement without the prior written consent of the Company, which shall not be unreasonably withheld, or (iv) if Customer intentionally uses the Services in a fraudulent manner, a manner adversely affecting the provision of Services to others or in violation of any federal or state regulations or rules.
- Remedies upon Default: Also, if an Event of Default occurs, at any time thereafter, Company shall have all the rights of a secured party under Ohio law. In addition and without limitation, Company may exercise any one or more of the following rights and remedies in addition to all other remedies set out in this Agreement or under applicable law: (i) Accelerate Indebtedness. Customer may declare all Payments hereunder immediately due and payable, without notice. (ii) Assemble Equipment. Company may require Customer to deliver to Company all or any portion of the Products. Company may require Customer to assemble the Products and make it available to Company at a place to be designated by Company. Company also shall have full power to enter upon the property of Customer to take possession of and remove the Products. (iii) Other Rights and Remedies. Company shall have all the rights and remedies of a secured creditor under the provisions of the Uniform Commercial Code, as may be amended from time to time. In addition, Company shall have and may exercise any or all other rights and remedies it may have available at law, in equity, or otherwise. (iv) Cumulative Remedies. All of Company’s rights and remedies, whether evidenced by this Agreement or by any other writing, shall be cumulative and may be exercised singularly or concurrently. Election by Company to pursue any remedy shall not exclude pursuit of any other remedy.
Article 8. Governing Law; Consent to Jurisdiction.
This Agreement and the right of the parties hereunder will be governed by, interpreted, and enforced in accordance with the laws of the State of Ohio without regard to its rules relating to conflicts of laws. Each party to this Agreement hereby submits to the jurisdiction and venue of the courts of the State of Ohio in Clinton County, Ohio, and the United States District Court, Southern District of Ohio for the purposes of all legal proceedings arising out of or relating to this Agreement. Each party hereby irrevocably waives any objection it may now or hereafter have as to the jurisdictions or venue of any such suit, action or proceedings as to the jurisdiction or venue of any such suit, action or proceeding brought in the United States District Court for the Southern District of Ohio or the court of the State of Ohio, Clinton County, Ohio, or that such court is an inconvenient forum.
Article 9. Installation
- Installation Options. The Products identified on this Agreement can be installed at Customer’s premises either by Company, by a Company Authorized Installer, or by Customer if by a trained and Certified Installer.
- Installation Services by the Company. Upon request by Customer, company will install the Products at Customer’s premises. Installation services consist of the initial set up and programming of the Products. The parties shall mutually agree upon an installation date which Company shall use reasonable efforts to meet. Travel costs to Customer’s premises to perform initial installation shall be borne by the Customer. Customer shall pay Standard Installation fee and applicable fees for additional Option installations as outlined in its Current Installation Price List. . Customer shall pay Company’s travel expenses and a per diem rate for each day Company’s installer stays to install the Products for Customer’s failure to comply with this obligation.
- Installation Services by Authorized Installer. Upon request by Customer, Company will supply Customer a list of a Authorized Installation Facilities. Customer will receive an installation certificate to be given to the Authorized Facility upon installation. Customer shall pay Standard Installation fee and applicable fees for additional Options as outlined in the Purchase Agreement.
- Installation Training by Company. Upon request by Customer, Company will provide Customer at Customer’s premises with installation training certification services for the Products on the terms and conditions contained herein. Company shall provide training, as outlined in current Installation Price List which is a part of this Agreement. Customer shall supply one classroom, and sufficient number of type vehicles for which the Product are to be used. Customer shall schedule personnel to be trained a minimum of four consecutive hours of uninterrupted time. Customer shall pay Company’s travel expenses and a per diem rate for each day Company’s installer stays to train or install the Products for Customer’s failure to comply with this obligation. Company does not warranty any installation of Products by a Customer Certified Installer.
- Installation Warranty. Company warrants to Customer for a period of one year from completion of any installation services provided by the Company that such work has been performed in a good and workmanlike manner (the “Installation Warranty”). This warranty will not apply if a Product has been damaged, misapplied or misused by the Customer. Company will within the warranty period upon proof of authorized installation services at its option reinstall any Product which has not been installed in a good, workmanlike manner or replace any Product if faulty installation is a cause of the Product’s failure at no charge. These are the Customer’s sole remedies for breach of the installation warranty. To obtain warranty service, Customer must notify Company within the warranty period and provide proof of authorized installation services. This warranty does not extended to Products installed or repaired in any way by anyone other than the Company. COMPANY HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF THE INSTALLATION.
SERVICES. In no event shall Company’s liability exceed the price paid for installation services. Request by Customer for installation services will be deemed to be consent to make certain minor modifications to Customer Vehicles necessary for Product Installation.
Article 10. Safety Stock.
It is recommended that Customer purchase an additional 6% of their installed fleet as Safety Stock. This enables Customer to add or maintain service with minimal downtime. When the Safety Stock is ready to be installed, Customer must contact Company to activate Product for use. If Safety Stock is used, as a warranty replacement replaced product must be returned to Company, as described in Article 1(f). The terms outlined in Article 1(e) apply to Safety Stock.
Article11. Additional Orders.
Additional orders for equipment and services will be governed by this Master Agreement. Additional orders need an executed Service Plan Agreement and Equipment Schedule, the terms of which are governed by this Master Agreement.
Article 12. Confidentiality.
The terms and conditions of this Agreement, including, but not limited to, the pricing contained herein, and any information obtained from examination of the Products or Software or any technical documentation furnished by Company hereunder (whether or not marked with a confidential or proprietary data legend) shall be deemed to be Company’s confidential or proprietary information. Neither party shall, except as necessary for the performance of this Agreement, duplicate, use or disclose to any third person (including any affiliated company) any such confidential or proprietary information, without the prior written approval of the disclosing party, except as to any such disclosures that are required by law or regulation. Upon the termination or earlier cancellation of this Agreement, each party shall promptly return to the other party all confidential or proprietary information received.
Article 13. Delivery Schedule.
Customer agrees pricing for contracted units is based on the following delivery schedule, which may be changed with thirty-day notice. If there is no delivery schedule noted, then customer agrees to take delivery of all Products no later than ninety days (90) from Purchase Agreement execution. Failure to take delivery of units within agreed period may result in charges.
Article 14. High Risk Activities.
The Products and any modifications, alterations, additions or changes to the Products, are not fault tolerant and are not designed, manufactured or intended for use in life support, emergency, mission critical or other ultra-hazardous activities (“High Risk Activities”). We specifically disclaim any express or implied warranty of fitness for such High Risk Activities. You represent and warrant that you will not use, or permit to be used, the Products for such High Risk Activities, and you agree to fully indemnify and hold us harmless for any damages or other losses resulting from such use.
Article 15. Dangerous Operations.
You acknowledge that use or operation of the Products while the vehicle is in motion is DANGEROUS, Accordingly, you represent and warrant that you shall instruct and prohibit all of your employees from using the Products while the vehicle is in motion.
Article 16. Unauthorized Use.
You shall not use or attempt to use the Products for any purpose not authorized under this Agreement or in violation of any local, state or federal law or regulation, or in such a manner as to interfere with the function, or use by other customer of Company.
Article 17. Notices.
All notices required by any of the terms and conditions of this Agreement shall in writing. Notices shall be deemed given when the notice is prepared, adequately addressed with proper postage, and deposited in the United States mail, postage prepaid, certified, or registered mail, return receipt requested, or by telecopier. Unless the party concerned designates another address, notices shall be mailed or delivered to the addresses of the Customer and Company indicated in this Agreement.
Article 18. Headings.
The headings used in this Agreement are for convenience only and no meaning shall be ascribed to such headings.
Article 19. Divisibility.
If any provision of this Agreement is held by any court or arbitrator to be null and void or unenforceable for any reason, such determination shall not affect the remaining portions of this Agreement, which shall remain in full force and effect in accordance with its terms and conditions.
Article 20. Entire Agreement.
This Agreement constitutes the entire agreement between Company and Customer and supersedes all previous communications, representations and agreements, whether oral or written, between us with respect to the subject matter hereof. This Agreement may not be modified, supplemented, qualified, or interpreted except in writing signed by both of us. Our failure to enforce at any time any of the provisions in this Agreement will in no way be construed as our waiver of such provisions.
Article 21. Survival of Covenants.
The covenants and agreements contained in this Agreement are and shall be binding on, and shall inure to the benefit ties hereto and their respective officers, directors, shareholder, employees, successors and assigns. Further, all obligations arising prior to the termination or expiration of the Agreement allocating responsibility or liability between the parties shall survive the completion of services performed under this Agreement and the termination or expiration of this Agreement.