These Terms and Conditions (these “Terms”) are a part of the Global Tracking Communications, Inc. (“GTC”) Commercial Equipment and Service Subscriber Agreement (this “Agreement”) between Global Tracking Communications, Inc. and the subscriber (“You” or “Your”) named on the front of this Agreement, with respect to GTC Hybrid Units (each, an “GTC”) and related installation and communication data services, as further described below (“Services”).
CANCELLATION (a) GTC is not bound by different terms and conditions in your purchase order or elsewhere unless expressly agreed to in writing by an officer of GTC. This Agreement and the Product Brochure available at GTC’s website at www.gpstbackup.wpengine.com/ (“Product Brochure”), a copy of which has been provided to You, constitute the entire agreement and understanding of the parties and supersede all proposals, oral or written, and all other communications between the parties relating to the Hybrid’s, Services, installation and maintenance purchased under this Agreement. The Services commence as of the first day GTC receives an executed contract and initial payment therefore after the Hybrid’s are installed and activated in accordance with this Agreement. (b) You may, by written notice to GTC within fifteen days of the date this Agreement was originally executed by GTC, cancel this Agreement. If You’re cancellation occurs within such fifteen-day period and is for any reason other than the default of GTC, You will pay GTC 20% of the total price and fees for all Hybrid’s listed in this Agreement as a restocking charge.
2. SHIPPING AND HANDLING
In addition to shipping and handling charges shown on the front of this Agreement, any required delivery that exceeds the cost of normal ground delivery shall be invoiced to You at GTC’s then current flat rates.
RISK OF LOSS; TITLE; SECURITY INTEREST Unless otherwise stated on the front of this Agreement, all deliveries are FCA/FOB GTC’s warehouse. Shipping or delivery dates are good-faith estimates only. GTC reserves the right to make deliveries in installments and to bill separately for each such installment. Delivery delay or default on any installment shall not relieve You of Your obligation to accept and pay for remaining deliveries. Claims for shipment shortage shall be deemed waived unless presented to GTC in writing within forty-five days of delivery of each shipment. IN NO EVENT SHALL GTC BE LIABLE FOR INCREASED COSTS, LOSS OF PROFITS OR GOODWILL OR ANY OTHER, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES DUE TO LATE OR NON-DELIVERY OF Hybrid’s. You hereby grant to GTC a purchase money security interest in the Hybrid’s to secure payment in full of amounts due hereunder for the Hybrid’s, and You will, upon GTC’s request, sign a UCC-1 Financing Statement and any other documents needed to perfect GTC’s security interest therein.
(a) Installation. The Hybrid’s must be installed in Your vehicles in accordance with GTC’s specifications. The Hybrid’s must be installed only by You, GTC or an authorized installer. Unauthorized or improper installation voids GTC’s limited warranty.
5. LOCATION AND DATA COMMUNICATION SERVICES
(a) Description of Services. The Hybrid’s can be installed and operate in a vehicle as long as the vehicle’s electrical system is properly maintained. If properly installed, the Hybrid’s will enable You to view Your vehicles’ whereabouts or send specific commands to the Hybrid’s by logging into GTC’s website at www.gpstbackup.wpengine.com/, using standard web browsers. The Services selected by You are further described, including, without limitation, coverage area, service limitations and proper use thereof, in the Product Brochure. The Services are for vehicle location and communication with Your Hybrid’s only. The Services have no connection to any law enforcement agency. We have no responsibility for contacting or communicating with law enforcement agencies on Your behalf. If needed, You must contact the appropriate law enforcement agency yourself to obtain assistance. All Services depend on the monthly usage plan (the “Service Plan”) selected by You. (b) Pricing of Services. Each Hybrid is assigned to the Service Plan that has been selected by You for that Hybrid. System usage beyond the number of access units included under the selected Service Plan will be invoiced at GTC’s standard access unit rates. The Services are priced in terms of access units, with each type of location and data communication service being assigned a specific number of access units. The aggregate number of access units included under the selected Service Plan may be used only by the selected Hybrid covered under such selected Service Plan. Unused access units may not be applied to other Hybrid’s or to another month’s additional usage. (c) GTC’s Test of Services. You acknowledge that GTC may, for its internal test and control purposes, without charge to You, locate or communicate with one or more of Your Hybrid’s. (d) Use of Services. The Services are solely for the purpose of allowing You to locate and communicate with Your Hybrid’s, and may not be resold or otherwise offered to or used by third parties, unless You have entered into a GTC Commercial Value Added Reseller Agreement. (e) Compliance with Law. You are responsible for Your use of the Services, including any optional services selected. You agree to comply with all applicable laws, ordinances, rules and regulations of the federal, state, local or foreign government and any agency or public authority thereof, and to hold GTC harmless from liability or loss by reason of any asserted or established violation of said laws, rules, or regulations by You, Your employees, agents or representatives. (f) Subscriber Information; Informing GTC of Changes. You represent that the information contained on the front of this Agreement provided to GTC by You is complete and accurate. You will immediately notify GTC in writing if there are any changes in the information contained on the front of this Agreement. If You desire to transfer any of the Hybrid’s to other vehicles, You must notify GTC and provide the appropriate data information prior to such transfer and installation.
TAXES You shall pay GTC in accordance with the terms stated in this Agreement, at such place as GTC designates on its bill. Airtime charges for Services are billed in advance, at the beginning of each period, based on Your selected Service Plan, as set forth in this Agreement. Incremental charges and other service charges, including, without limitation, activation fees and charges for additional access units may be purchased online and are billed in advance. Additional yearly service after expiration of the term on this Agreement may be purchased for $35.00 per year, per device. Installation Fees are billed separately. Except for the amount, if any, of any tax included in this Agreement, the prices set forth herein and in the Product Brochure are exclusive of any amount for federal, state, local or foreign excise, sales, use, property, retailer’s occupation or similar taxes, or any duties, customs or similar charges. Accounts delinquent in excess of fifteen days from the due date shall be subject to a late fee and interest at the rate of 1_% per month (or the highest rate permitted by law, if such rate exceeds the highest rate permitted by law). GTC may suspend or terminate the Services and maintenance if any charges payable hereunder are delinquent in excess of thirty days from the due date or You are otherwise in default under this Agreement. You are liable for all reasonable costs associated with the collection process of youâ€™re delinquent account.
7. LIMITED WARRANTY
GTC warrants the Hybrid’s against defects in materials and workmanship for a period of one year from the date of installation. If an Hybrid is found to be defective in materials or workmanship during the limited warranty period, GTC will repair or replace the Hybrid at its discretion and at its expense. GTC warrants that it will provide the Services in accordance with the applicable Service Plan selected and the Product Brochure, but does not warrant complete coverage or that the Services will be uninterrupted or error-free.
Under the provisions of certain Service Plans, You will receive maintenance services pursuant to which GTC will repair or replace (at GTC’s option) any verified failed Hybrid component, including antennas and interconnected cables.
9. LIMITED REMEDY
Your sole remedy for breach of any warranty is the right to repair or replacement of the defective Hybrid and the right to receive a credit or refund (at GTC’s discretion) on Services not provided for reasons under GTC’s control. No allowance will be given for any single failure or delay that does not exceed forty-eight hours. To obtain warranty or maintenance service, You must contact the local GTC office. GTC may instruct You to (a) obtain a Returned Materials Authorization (“RMA”); (b) adequately package the products; (c) ship the products to the address provided by GTC; and (d) mark the RMA number prominently on the outside of the carton. Products received without an RMA number will be returned freight collect. GTC will return the repaired products prepaid and fully insured. Alternatively, at GTC’s option, GTC may remove and reinstall the products.
10. WARRANTY AND MAINTENANCE EXCLUSIONS
GTC is not obligated to provide the limited warranties or maintenance services if there has been any unauthorized alteration, modifications, or repair of the Hybrid’s, if there is use with the Hybrid’s of accessories or devices not approved by GTC, as being compatible, or in the case of accidents, misuse, abuse, neglect, damage, tampering, improper installation, maintenance, unauthorized use, connection to an improper voltage supply, reception or trans-mission problems caused by inadequate or improper antenna (not provided by GTC), reception problems caused by an inadequate signal level in the operating area, damage due to exposure to the elements, use with accessories or devices not approved by GTC, failure to install or use the Hybrid’s in accordance with instruction manuals, or acts of God. The limited warranties and maintenance services do not cover accessories, batteries, casings, coverings and other non-electrical components. The limited warranties are in lieu of all other warranties, express or implied. All other express or implied warranties, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose are expressly excluded, except where prohibited by law and, where prohibited, any such warranty shall be limited to the minimum warranty and period required by law. No employee or agent of GTC has the authority to grant any other warranty to You, written or oral. You acknowledge that the Services are based upon the cellular wireless networks furnished to GTC by third party carriers. YOU FURTHER ACKNOWLEDGE THAT PARTICIPATING CARRIERS DISCLAIM ALL LIABILITY OF ANY NATURE TO YOU, WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, ARISING OUT OF YOUR USE OF WIRELESS SERVICE, AND YOU AGREE THAT YOU SHALL HAVE NO CLAIMS AGAINST PARTICIPATING CARRIERS OF ANY KIND WITH RESPECT THERETO. You also acknowledge that complete coverage of any area within the Coverage Map (as defined in the Product Brochure) at all times is improbable. The existence of adverse conditions, such as short-term unpredictable meteorological effects and sky wave interference from distant stations, can interrupt the Services at times. Certain circumstances such as weather, tunnels, underground structures, terrain, high-rise buildings, enclosed or underground parking or driving areas, faulty installation, motor ignition and other electrical noises and radio signals from external sources may interfere with the Services. The Coverage Map describes general parameters of expected coverage and is not a guarantee of coverage.
11. LIMITATION OF LIABILITY
GTC shall not be liable to You or to any other person for any loss or damage caused by any interruption of the Services, regardless of cause. In no event shall GTC’s liability to You exceed the amount paid by You for the Hybrid’s or the Services in question. GTC shall not be liable to You or any third party for consequential, incidental, general, special or exemplary damages, including, without limitation, loss of or damage to Your vehicles or loss of profits, revenues or data, even if GTC has been advised of the possibility of such damages. No action shall be brought for any breach of this Agreement more than one year after accrual of such cause of action except for money due on an open account. Certain of the above limitations may not apply in some states.
12. INTERRUPTION OF SERVICES; FORCE MAJEURE
GTC shall have no liability for a failure to provide, or for delay in providing, the Hybrid’s, the Services or maintenance due directly or indirectly to causes beyond the control of GTC or its subcontractors. If GTC is unable to wholly or partially perform the Services because of any cause beyond its control, GTC may terminate this Agreement without any liability to You, other than refund of any amounts paid for the undelivered Hybrid’s or Services.
13. REVISION OF FEES AND SERVICES
After the end of the fourth year following execution of this Agreement by GTC, GTC may, at any time, upon thirty days’ prior written notice to You, revise (a) the monthly rates for Service Plans set forth in this Agreement, (b) the number of access units assigned to each location and data communication service, and (c) the cost and features of Services and programs, as set forth in this Agreement and in the Product Brochure in effect on the date of GTC’s execution of this Agreement. Yearly fee invoiced annually $35.00 per device.
14. TERM AND TERMINATION; RENEWAL
This Agreement shall remain in full force and effect for a period of four years from the date this Agreement is executed by GTC, and shall be automatically renewed and extended without action by any party for additional periods of one year; provided, however, that either GTC or You may terminate this Agreement upon not less than thirty days’ prior notice, to be effective on the last day of the current subscription period. Notwithstanding the foregoing, this Agreement shall terminate immediately without liability if the authorizations held by GTC are revoked by the FCC.
No amendment or modification hereof shall be binding upon GTC unless such amendment or modification is in writing signed by an authorized officer of GTC. If any term hereof is contrary to, prohibited by or deemed invalid under applicable laws or regulations, such term shall be deemed omitted to the extent prohibited or invalid but the remainder of these Terms and this Agreement shall not be invalidated and shall be given effect so far as possible. Any waiver of any right in, or breach of, this Agreement shall not be a continuing waiver and shall not prevent any claim of breach of the same term or any other term of this Agreement. This Agreement is fully assignable by GTC to any person or entity and shall inure to the benefit of such assignee or successor. You may not assign this Agreement without the prior written consent of GTC, except that You may, without GTC’s consent, assign this Agreement (a) to Your parent company, a subsidiary, or an affiliate; (b) to any successor corporation by consolidation or merger; or (c) to any corporation with the authority to carry on a business of a nature transacted by You and to which You have sold all or substantially all of Your assets, provided that You have advised GTC in writing of such assignment, and You remain liable for any obligations or liabilities arising under this Agreement.