Terms of Service FM

THE TERMS AND CONDITIONS SET FORTH ON THIS FORM CONSTITUTES THE ENTIRE AGREEMENT (THE “AGREEMENT”) BETWEEN GLOBAL TRACKING COMMUNICATIONS, INC. (“GTC”) AND BUYER (“BUYER”). GTC WILL NOT BE BOUND BY ANY TERMS OF BUYER’S ORDER THAT ARE INCONSISTENT WITH THE TERMS HEREIN. ACCEPTANCE BY BUYER OF THESE TERMS MAY BE MADE BY: (1) WRITTEN ACCEPTANCE OF THESE TERMS, (2) PLACEMENT OF A PURCHASE ORDER WITH GTC THAT REFERS TO A VALID GTC QUOTATION OR (3) RECEIPT BY BUYER OF DELIVERY OF ANY GTC PRODUCTS OR SERVICES DESCRIBED ON THE FACE OF THIS FORM OR OTHERWISE (“PRODUCTS”) AND FAILURE BY BUYER TO RETURN THE PRODUCTS WITHIN FIVE DAYS FOLLOWING SUCH DELIVERY.

1. General: The terms and conditions of sale contained herein apply to all quotations made and purchase orders accepted by GTC. Acceptance of Buyer’s order by GTC will be made only on the express understanding and condition that insofar as the terms and conditions in this Agreement conflict with any terms and conditions in Buyer’s order, the terms and conditions of this Agreement shall govern. If a quotation or purchase order is accepted by GTC, then the date of the Agreement shall be the Effective Date set forth on the face of this form. All information gathered from Buyer in connection with the use of the Products and the GTC service will be governed by the GTC Privacy Policy, as may be modified from time to time, located at www.gpstbackup.wpengine.com/ and which policy is incorporated herein by reference and made a part of this Agreement.

2. Prices, Taxes, Payment: Any written price quotation, either pursuant to this Agreement or any other form, shall become void unless accepted by Buyer within thirty (30) days of the date thereof, unless sooner revoked or rejected by GTC. All prices quoted, all orders accepted, and all billings rendered are exclusive of all shipping, federal, state/province and local withholding, excise, sales, use and similar taxes, fees, or charges imposed by any governmental authority on this transaction. Buyer will reimburse GTC for any such tax, fee or charge, at the time of sale or thereafter, that GTC is required to pay. Terms of payment for parts and equipment are due at signing of this Agreement. GTC Monthly Fees will be invoiced monthly in advance. Terms of payment for the monthly GTC services are first and last due on signing of this Agreement and monthly invoices are to be paid net fifteen (15) days from date of invoice. In the event that payment is not received within such fifteen-day period, any unpaid balance shall bear interest at the rate of 1 1/2 % per month, or the maximum amount allowed by law, if lower. The late charge shall be assessed for every month a balance remains unpaid and shall be prorated on a daily basis for each day the payment is overdue. Service billing will begin five (5) days after product is shipped to Buyer regardless of whether the Products have been installed in Buyer’s vehicles or tractor-trailers. GTC may charge Buyer a fee of $50.00 for any check returned due to insufficient funds. GTC may perform credit verification on Buyer, as GTC deems necessary in its discretion. The amount of credit may be changed or withdrawn completely by GTC at anytime. On any order for which credit is not extended by GTC, shipment or delivery shall require, at GTC’s election, cash with order (in whole or part), or C.O.D. or sight draft attached to the bill of lading or other shipping documents, and all costs of collection shall be paid by Buyer. If any proceeding is brought by or against Buyer under bankruptcy or insolvency laws, GTC shall be entitled to cancel any order by Buyer then outstanding. GTC may suspend or terminate service to Buyer, without liability, if Buyer breaches any portion of this Agreement, including nonpayment of fees due to GTC. If Buyer promptly cures any such breach, GTC may, at its sole option, reactivate service upon payment by Buyer of GTC’s most current restoration fee then in effect, which shall be no less than $50.00 per locator purchased by Buyer.

3. Cancellation and Expiration: In the event that GTC terminates this Agreement for breach by Buyer, the parties agree that the damage suffered by GTC from such breach will be difficult to ascertain. As a result, upon such termination Buyer agrees to pay GTC, as liquidated damages and not a penalty, an Early Termination Fee equivalent to $150.00 per device. Buyer shall pay the Early Termination Fee to GTC net ten (10) days from date of final invoice and Buyer authorizes GTC to debit Buyer’s credit card for unpaid Service Fees and the Early Termination Fees per this Agreement. Upon the expiration of the Commitment Term, GTC will continue to provide service under this Agreement on a month-to-month basis unless Buyer enters into a new Commitment Term.

4. Title and Delivery: GTC shall deliver the Products to a common carrier for shipment within twenty-one (21) days of the contract Date. Risk of loss shall pass to Buyer at the time the Products are delivered to such common carrier. GTC shall not be liable for any delay in transportation of products. In the event of any default by Buyer, GTC may decline to make further shipments without in any way affecting its rights under this Agreement. GTC will not be charged with any liability for delay or non-delivery of Products, when caused by any cause beyond the reasonable control of GTC.

5. Acceptance: Buyer shall have fifteen days after delivery to inspect and to test each Product shipped by GTC to Buyer. During such fifteen (15) day period, if buyer determines that any such Product fails to meet the specifications set forth in GTC’s documentation for the GTC Product, the Buyer may reject such Product by notifying GTC in writing of such rejection. Any Product not rejected by the Buyer within the fifteen (15) day acceptance period under this Section shall be deemed accepted by the Buyer. Warranty: The Products sold hereunder shall conform to the terms of GTC’s standard warranty for such Products and which warranty is incorporated herein by reference. The warranty period is for the life of the contract. GTC MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE GTC PRODUCTS SOLD HEREUNDER. GTC EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. Nothing herein shall be construed as providing or intending to provide manufacturer’s warranty to Buyer set forth above to any customer(s) of Buyer. Limitation of Liability: GTC SHALL NOT BE LIABLE FOR COSTS OF 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 ON SEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, EVEN IF GTC HAS BEEN ADVISED OF THE POSSIBILITY 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 BUYER. GTC’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE PRICE PAID BY BUYER FOR SUCH PRODUCT.

6. Buyer Acknowledgements: Buyer acknowledges that (i) data collected by the Products while out of coverage or without calling connectivity may not be stored and retrieved by Buyer when within coverage or calling connectivity is restored; (ii) data collected by the Products are not provided in real time and delays in receipt of data are normal; (iii) data is stored and accessible on the GTC server for the life of the existing contract and any extensions thereof and accessible to be queried in 60 day increments. Once the contract has expired and is not renewed, data will be available for the next 60 days following the last day of the initial contract. (iv) Product antennae should have an unobstructed view of the sky; (v) the Products may not operate in enclosed spaces, in buildings, between tall buildings, underground or in canyons; (vi) although portions of the GTC Products (including the GTC service) are encrypted, GTC Products (including the GTC service) are capable of being intercepted without knowledge of or permission from GTC by third parties; (vii) GTC is not responsible for the terms, conditions or obligations arising from agreements between Buyer and any cellular network or airtime provider in connection with the Products or GTC service; (viii) Buyer may not be able to cancel agreements between Buyer and its cellular network or airtime provider upon commercially reasonable terms or at all (ix) GTC assumes no responsibility for improper storage of data or information or delivery of messages; and (x) Buyer assumes the entire risk in downloading or otherwise accessing any data, information, files or other materials obtained from the GTC website, even if Buyer has paid for or otherwise been provided virus protection services from GTC. (xi) GTC retains the rights to anonymous summary data analysis.

Contract Term:

7. Coverage and Data Transmission: The Products and the GTC service are dependent on the coverage and calling areas of cellular networks owned and operated by third parties. Coverage and calling areas are approximate and do not cover significant portions of North America. Actual coverage and operation of the Products depends on system availability and capacity, system and equipment upgrades, repairs, maintenance, modifications and relocation, Buyer’s equipment, terrain, signal strength, structural conditions, weather and atmospheric conditions, governmental regulations, suspected fraudulent activities, acts of God and other conditions beyond GTC’s reasonable control. GTC will not be responsible for limits in coverage or performance degradation due to any such conditions. Buyer acknowledges that coverage and calling areas may be interrupted, halted, or curtailed or the quality of the transmission may be diminished at any time. The Products and the GTC service are dependent upon the availability of the Internet, which is owned and operated by and accessed through third parties.

8. 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”). GTC specifically disclaims any express or implied warranty of fitness for such High Risk Activities. Buyer represents and warrants that it will not use, or permit to be used, the Products for such High Risk Activities, and Buyer agrees to fully indemnify and hold harmless GTC for any damages or other losses resulting from such use.

9. Force Majeure: Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of GTC shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of GTC, including without limitation, failure of a GSM/GPRS or cellular network or the Internet network, strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.

10. Technical Data: Buyer shall not without GTC’s prior written consent use, duplicate, or disclose any technical data, or any information on the construction of the Products delivered or disclosed by GTC to buyer for any purposes other than for the installation, operation or maintenance of the Products.

11. Security Interest: GTC reserves, until full payment has been received, a purchase money security interest in the Products. Buyer agrees to execute any document appropriate or necessary to perfect the security interest of GTC, or in the alternative, GTC may file this Agreement as a financing statement and/or chattel mortgage.

12. Governing Law and Venue: This Agreement and performance by the parties hereunder shall be construed in accordance with the laws of the County of Riverside in the state of California.

13. Assignment: Buyer shall not assign its order, this Agreement or an interest therein or any rights hereunder without the prior written consent of GTC.

14. Headings: The headings used in this Agreement are for convenience only and no meaning shall be ascribed to such headings.

15. Entire Agreement: This Agreement between Buyer and GTC in connection with the Products or parts thereof constitutes the entire agreement between GTC and Buyer and supersedes all previous communications, representations and agreements, whether oral or written, between the Buyer and GTC with respect to the subject matter hereof. This Agreement may not be modified, supplemented, qualified, or interpreted except in writing signed by Buyer and GTC. The failure by GTC to enforce at any time any of the provisions in this Agreement will in no way be construed as a waiver of such provisions.

16. BUYER ACKNOWLEDGES THAT, AS WITH ANY MAPS OR DRIVING DIRECTIONS, BUYER SHOULD ALWAYS RECHECK DIRECTIONS AND DRIVING CONDITIONS FOR ACCURACY AND CONFIRM THAT THE ROAD STILL EXISTS, BE AWARE OF CONSTRUCTION AND OTHER HAZARDS AND FOLLOW ALL SAFETY PRECAUTIONS AND LAW. THE PRODUCTS AND THE GTC SERVICE ARE TO BE USED ONLY AS AN AID IN PLANNING.

17. BY SIGNING THIS AGREEMENT, THE BUYER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.