TELEMATICS EQUIPMENT AND SERVICES AGREEMENT
The Customer (which for the purposes of this Agreement shall be deemed to mean the Business and any Co-Obligor) agrees to buy and Certified Tracking Solutions Inc. (hereinafter referred to as “CTS”), agrees to sell to the Customer telematics equipment, supply web mapping services, airtime, services associated with Department of Transportation and Transport Canada Hours of Service (E-Logs), satellite, cellular and/or subscription services and the Customer agrees to pay to CTS the total price stipulated, including any applicable taxes. In the event the Customer has purchased CTS Devices and Services from other providers, the Customer will be held to the terms of this agreement.
I TELEMATICS EQUIPMENT
1.1 If purchasing Devices directly from CTS, Payment for the purchase of telematics equipment shall be made in full according to the agreement reached by both CTS and the Customer. CTS shall not be obliged to deliver or release to the Customer any equipment for which the Customer has not paid in full according to the agreed upon terms. Property in the equipment shall not pass to the Customer until payment has been made in made in full. The Customer grants to CTS a purchase money security interest in the equipment until the equipment is paid for in full.
1.2 In the event where Devices purchased directly from CTS are subsidized and/or sold under term contracts, payment shall be made in full, in installments as stipulated in this Agreement payment shall be made in full, in installments as stipulated in this Agreement. Property in the equipment shall not pass to the Customer until each and every installment has been made in full. The Customer agrees that: a) the Customer grants to CTS a purchase money security interest in the equipment until the equipment is paid in full; b) the Customer grants to CTS a security interest in any automobile into which the hardware supplied by CTS has been installed and charges any such automobile with security for the payment of the entire balance outstanding to CTS including any accelerated unpaid balance of installments accruing due thereafter; c) in the event the Customer ceases to carry on business or effects a sale of the assets of the business, the full amount of installments then unpaid shall become immediately due and owing.
1.3 Equipment that receives or accesses the CTS System (hereinafter referred to as “the System”) is assigned a unique identification number. The Customer will not reproduce, change or tamper with the identifiers on the devices or allow anyone else to do so. For the purpose of this agreement “identifier” means the applicable electronic serial number (ESN), mobile identification number (MIN), International mobile equipment identity (IMEI) number, International mobile subscriber identity (IMSI) number and/or the Subscriber Identity module (SIM) number, as the case may be. The Customer and its end users do not own and shall have no property rights over any device identifiers or the phone numbers and/or Internet Protocol (IP) addresses assigned to the Customer and its end users in connection with the CTS Services and CTS may change such phone numbers, IP addresses and device identifiers at such time or times as CTS, in its sole discretion, considers necessary without any liability. CTS does not assume liability for any risks associated with the change of phone numbers, IP addresses or device identifiers. The Customer acknowledges and agrees that dynamic IP addresses may be used with respect to the devices which IP addresses shall change whenever a device is disconnected from and then reconnected to the Network.
1.4 Each Device provided by CTS may contain firmware developed and owned, or otherwise authorized to be used by CTS. For firmware developed and owned, or otherwise authorized to be used by CTS, CTS hereby grants the Customer a limited, non-exclusive, non-transferable, royalty-free license, to use the firmware on each Device. CTS and shall retain all rights to the firmware contained on each Device. The license granted herein shall be deemed to be in effect upon delivery of each Device.
1.5 The Customer agrees that the equipment may not be resold or transferred to any other individual firm or corporation, without the expressed consent of CTS. CTS may require as a condition of transfer that any amount due and owing on account of the purchase of the equipment and/or CTS Services be paid in full. If possession of the equipment is given to anyone by the Customer without the consent of CTS, CTS may require the Customer to immediately pay in full any amount outstanding on the purchase of the equipment and/or CTS Services.
1.6 The Customer acknowledges that transmission frequencies emitted by the equipment cannot be emitted in a perforation zone. The Customer acknowledges that if the equipment has as part of its components an RF disabling device, that it is the responsibility of the Customer, its servants, agents or employs to activate the disabling device prior to entry into a perforation zone and re-activate the disabling device after departure from a perforation zone. THE CUSTOMER DOES HEREBY INDEMNIFY AND SAVE HARMLESS CTS IN RESPECT OF ANY AND ALL CLAIMS MADE AGAINST CTS BY IN RESPECT OF ANY AND ALL CLAIMS MADE AGAINST CTS BY THE FAILURE OF THE CUSTOMER OR THOSE PERSONS FOR WHOM THE CUSTOMER IS RESPONSIBLE IN LAW TO ACTIVATE THE DISABLING DEVICE.
1.7 The Customer agrees that the products and CTS Services are not intended for use in safety critical or military applications (such as life support) where a failure of the equipment or CTS Services would reasonably be expected to cause severe personal injury or death. The Customer shall fully indemnify CTS and its representatives against any damages arising out of the unauthorized use of the equipment or CTS Services, including but not limited to any use in such safety-critical or military applications. This includes connection of an input for the purposes of such applications.
1.8 The Customer is responsible for obtaining any operating licenses and authorizations that may be required and for the payment of any tariffs, duties, taxes, licensing fees, brokerage, customs, or any other fees that may be imposed on the equipment if it is taken or operated outside of the United States or Canada.
1.9 Unless otherwise stated CTS offers a one year limited non-transferable warranty term on purchased hardware and installation. Additional charges may apply for warranty services provided at locations other than authorized CTS locations. CTS is not responsible for any costs related to servicing the GPS device by a third party including device inspection, removal and installation. The customer is responsible for the cost to ship devices to CTS if required. CTS is responsible for costs related to shipping the repaired/replaced GPS device back to the customer in the USA and Canada only. CTS will use commercially reasonable efforts to ensure any GPS device returned to for warranty or servicing is addressed quickly. CTS is not responsible for workmanship by third parties.
1.10 The Customer understands that products are not returnable after initial activation and/or installation activities have been performed.
II THIRD PARTY SOFTWARE INTEGRATION
2.1 The Customer acknowledges that in the future there may be new optional features and enhancements to fully utilize the System in its entirety. The Customer may be required to use and/or purchase Third party software created and owned by entities other than CTS (hereinafter referred to as the “Software Provider”). The Customer will enter into and abide by the terms of any Software License Agreement required by the Software Provider; The Customer shall have total responsibility for the use of any applications, software content, and data query functions whether offered through CTS directly or indirectly by or on behalf of the Software Provider.
2.2 CTS shall have no responsibility whatsoever to the Customer to correct or fix any problems or errors relating to or caused by installation, configuration, modification or use of any third party software and the installation and/or use of such software shall be at the sole risk of the Customer.
2.3 Where the Customer requires additional equipment or hardware to integrate the third party software, the Customer acknowledges and agrees that it shall be the Customer’s sole responsibility to purchase, install, configure and maintain, at the Customer’s cost all required equipment and hardware, including interconnections and network configurations (the “Customer’s System”) to enable the Customer to purchase and receive the optional CTS Services and enhancements. CTS shall have no responsibility hereunder to correct or fix any problems or errors relating to or caused by the installation, configuration or modification of the Customer’s System or any components thereof.
III CTS SERVICES
3.1 The Customer acknowledges that CTS has no liability to the Customer in respect of the purchase of CTS Services between the Customer and CTS and the Customer does hereby release, remise and discharge CTS from any claim arising from the purchase of services from CTS.
3.2 CTS will bill the Customer for the CTS Services provided to the Customer in accordance with this agreement. Monthly and all monthly recurring costs may be prorated. CTS may bill the Customer up to one year from the date particular charges were incurred. The Customer agrees to pay CTS or related third party all amounts set forth in each invoice by the applicable due date (collectively, the “charges”) including, without limitation: a) the cost of all local and long distance calls, character and data usage charges, and charges for messages and other services made or sent from or received on the devices including any charges relating to access to the services of other telephone companies and telecommunication carriers; b) the monthly system access fees, as same may be amended from time to time; c) fees may be incurred for cellular based devices for roaming provided in those areas served by other wireless mobile operators with whom CTS has roaming arrangements. The cellular roaming rates below are set by the respective carrier and are subject to change without notice. All charges are based on the cellular data used by the device during each billing cycle. All cellular roaming rates are in addition to any regular CTS Services charges incurred. For Canadian Customers, US cellular roaming rates are $14.95 / 500KB or part thereof, billed in 1KB increments. For US Customers, no roaming rates apply. For roaming outside of the US and Canada, rates are $29.95 / 500KB or part thereof, billed in 20KB increments. d) all applicable taxes and similar charges relating to the foregoing, as same may be amended from time to time; e) additional data fees incurred for any programming or over the air updating whether the Customer is billed by CTS or directly by the Cellular or Satellite Network Provider. These charges may include additional data, SMS or similar data transfer fees. CTS is not responsible should these additional fees be incurred; f) the various monthly data plans offered are based on a forecasted number of monthly hours of travel time of the asset in conjunction with a forecasted number of stops / starts and heading changes. Should an asset use more than the forecasted amount of data, CTS reserves the right to charge the Customer an overage fee based on the type of monthly plan they have signed up for.
3.3 The Customer agrees to pay all fees and charges specified, including but not limited to, applicable charges in advance of or on the established due dates and to pay late payment charges at the rate stipulated, as same may be amended from time to time, on any overdue amounts. CTS may at any time upon 60 days notice to the Customer, modify, alter, increase, decrease or otherwise change its stipulated rates. Acceptance of late or partial payments shall not waive any of CTS’ rights to collect the full amount due under this agreement. The Customer shall continue to be liable for the payment of fees and charges specified by CTS should the web service utilized by the System be interrupted for no longer than 72 hours for any reason whatsoever. In the event of a term contract, payment shall be made in full in installments as selected on the agreement.
3.4 The Customer acknowledges that the CTS Services will ultimately be supplied by one or more of CTS’ suppliers including but not limited to: North American Cellular Providers, Iridium Satellite™ LLC and Globalstar USA™ Inc (hereinafter collectively referred to as the Cellular or Satellite Network Provider). Notwithstanding the foregoing, CTS may from time to time at its sole discretion, add, substitute, or delete any supplier in place before or after the time of the execution of this agreement. The Customer acknowledges and agrees that records provided to CTS concerning billing for the Customer’s use of airtime are paramount and payment will be based on those records.
3.5 At the time of activation a refundable prepayment security deposit equal to one month’s airtime and other applicable charges will be charged by CTS. A two month deposit may be required if no credit card is provided. The Customer will not earn any interest on any deposits held by CTS. If this agreement is canceled, CTS will apply the deposit against the outstanding balance on the Customer’s account.
3.6 The Customer will only be given one overdue payment notice. CTS may cancel any Services if overdue payment reaches or exceeds 30 days. If CTS suspends or terminates the services for non-payment or excessive balance, including unbilled usage and pending charges, fees and adjustment, CTS shall have the right to charge the Customer a reactivation fee.
3.7 The terms and conditions of this agreement assume the device airtime is to be supplied by CTS. Airtime sourced directly from the Cellular or Satellite Provider through CTS by the Customer will be subject to additional and independent provider terms and conditions. Please contact a provider representative directly for applicable terms and conditions.
3.8 The System does not connect or respond to emergency 911, emergency 211, or other emergency or distress calling systems. Such calls cannot be made using the System.
3.9 Historical Data will be available for a minimum of 12 months. In some cases, it is possible to request Certified Tracking Data Engineers to temporarily pull data from the archives. Depending on the request, fees range from $250 to $3000 per request.
3.10 Certified Tracking reserves the right not to prorate the subscription and airtime fees if activated or deactivated mid-month.
3.11 The customer acknowledges that the Business One Fleet Plan updates as often as every second and no longer than 60 seconds while driving.
IV LIMITS ON AVAILABILITY OF CTS SERVICES
4.1 The Customer acknowledges that airtime communications are subject to transmission limitations caused by atmospheric or topographical conditions or equipment failures beyond the reasonable control of CTS and may be temporarily refused, interrupted, or curtailed due to government regulations or orders, System capacity limitations or equipment modifications, upgrades, reallocations, repairs, maintenance and similar activities necessary for the proper operation of the CTS Services.
4.2 CTS shall have the right to suspend all or part of the services or access to the services immediately if CTS reasonably suspects or determines that there is a malfunction, abuse, incorrect configuration or use of the devices on the Customer’s system.
4.3 The Customer agrees that, to maintain or improve service or for other business reasons, CTS may at its sole discretion modify or temporarily restrict or suspend all or part of the services without notice.
4.4 The Customer acknowledges that CTS makes no representation that it can provide uninterrupted communication services and that such services may be delayed or otherwise limited and is not available everywhere in the world.
V ELECTRONIC LOGBOOKS
5.1 CTS agrees to provide access to the Hours of Service/DVIR tablet and Smartphone Application (hereinafter referred to as the App) in accordance with the first order submitted.
5.2 During the term of this Agreement and subject to the terms and conditions herein, CTS hereby grants the customer a limited, non-exclusive, non-transferable, royalty-bearing license solely to access the App.
5.3 Customer technical support for problems with the App, as well as Billing and any other general questions, will be provided by CTS during reasonable and designated business hours Monday-Friday, 8am to 5pm MST. (Excluding Canadian Federal holidays).
5.4 The Customer acknowledges that they are responsible for ensuring compliance on applicable Hours of Service Regulations in the countries the Customer and/or other Monitored Users are travelling in. CTS will not be liable for any violations or damages due to lack of compliance.
5.5 The Customer is responsible for all Driver Login and Vehicle setup. Once setup, the Customer acknowledges that charges may begin from the date the Driver login or Vehicle is setup and that CTS are not responsible for monitoring logins. The Customer is responsible for keeping the respective user names and passwords confidential and for any communications or transactions made using user name and password. The Customer is responsible for changing the respective user names and password if it is believed that the same has been stolen or might otherwise be misused.
VI OBLIGATIONS OF THE CUSTOMER
6.1 The Customer acknowledges and agrees that there is some content accessible through the web mapping and/or reporting services that may be offensive to the Customer or an end user, or that may not be in compliance with applicable law. CTS assumes no responsibility for and exercise no control over the content contained accessible through the CTS Services. The Customer agrees that all content that the Customer and end users access using the CTS Services are accessed and used by the Customer and end users at their own risk, and that CTS will not be liable for any claims, losses, action, damages, suits or proceedings arising out of or otherwise relating to the Customer’s and/or end user’s access to such content.
6.2 The Customer shall not: a) use, nor permit others to use the equipment for any purpose contrary to laws applicable to the Customer or in a way that creates a nuisance or interferes with other users; b) invade another person’s privacy, unlawfully use, possess, post, transmit or disseminate obscene, profane or pornographic material; post, transmit, distribute or disseminate content that is unlawful, threatening, abusive, libelous, slanderous, defamatory or otherwise offensive or objectionable content, unlawfully promote or incite hatred; or post transmit or disseminate objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any applicable municipal, provincial, federal or international law, order or regulation; c) access any computer, software, data, or any confidential, copyright protected or patent protected material of any other person, without knowledge and consent of such person, nor use any tools designed to facilitate such access, such as “packet sniffers”; d) upload, post, publish, deface, modify, transmit, reproduce, or distribute in any way, information, software or other material that is protected by copyright, or other proprietary right, or related derivative works, without obtaining permission of the copyright owner or right holders; e) interfere with computer networking or telecommunications service to or from an internet user, host or network, including but not limited to denial of service attacks, overloading a service, improper seizure or abuse of operator privileges (“hacking”) or attempting to “crash” a host; f) port scan any computer or any other person’s computer, without the knowledge and consent of such person, nor use any tools designed to facilitate such scans.
6.3 The Customer hereby authorizes CTS to obtain information about the credit history of the Customer and acknowledges that CTS may provide information to credit bureaus about the Customer’s credit experience with CTS.
6.4 A Customer may authorize other individuals (“Sub-Account Holders”) to use the System ordered by the Customer under this Agreement. In such cases, the Customer shall ensure that such Sub-Account Holders use the System in a manner that complies with all applicable laws and this Agreement. Customer is solely responsible for such SubAccount Holders’ usage of the equipment and CTS Services. Customer agrees to require each Sub-Account Holder using Customer’s account to comply with the obligations set forth in this Agreement.
6.5 The Customer is responsible for obtaining the necessary legal consent(s) from those Monitored Users who are being tracked and/or Monitored by the Customer’s use and the Customer’s Sub-Account Holders’ uses of the equipment and CTS Services. If a Monitored User is a minor, the customer acknowledges that the Customer and/or Sub-Account Holder have lawful guardianship over such minor and You further acknowledge that the Customer and/or Sub Account Holder have the legal right to lawfully monitor a user in the location or locations where the System is used. The System is not intended to track minor nor to collect information about minor to avoid being in violation of COPPA regulation. The Customer agrees to indemnify and hold CTS and its agents, licensees, licensors, and subcontractors harmless from any and all costs and expenses regarding any claim(s) arising from the unauthorized tracking and/or monitoring by the Customer or Sub-Account Holders.
7.1 CTS grants to Reseller a limited, non-exclusive, royalty-free, transferable, sub- licensable, right and license to use the CTS Services under Reseller’s or Reseller’s Clients’ control solely in connection with Resellers’s or Reseller’s Clients’ use of the Services, anywhere throughout the world, to: a) access and use the Services, including in operation with other software, hardware, systems, networks and services, for Resellers’s or Reseller’s Client’s business purposes, including for processing Customer Works; b) generate, print, copy, upload, download, store, and otherwise process all visual, digital and other output, displays and other content as may result from any access to or use of the Services; c) access and use the Services for all such non-production uses and applications as may be necessary or useful for the effective use of the Services as permitted hereunder, including for purposes of analysis, development, configuration, integration, testing, training, maintenance, support and repair.
7.2 Except with respect to Reseller’s resale of the Services to its Clients as provided for herein, Reseller is expressly prohibited from copying, sublicensing, reselling, renting, leasing or otherwise redistributing the Services, or permitting either direct or indirect use of the Services by any third party.
7.3 Reseller agrees not to modify, disassemble, decompile, reverse engineer, or create derivative works of any source code of the software in the Services. In the event any modifications are made to the Services by anyone other than CTS, any and all warranties with respect to the Services shall immediately terminate.
7.4 Reseller agrees not to post pricing online in any shape or form. Failure to comply will result in terminations of all Reseller’s and Reseller’s Client’s Services.
7.5 CTS’ graphics, logos, page headers, button icons, scripts, and service names are property of CTS and may not be used in any way shape or form without express written consent of CTS.
7.6 Reseller acknowledges that all code related to the GPS system and application provided by Certified Tracking Solutions Inc. is the sole and exclusive ownership of any intellectual property, including applications, source code, patents or trademarks of Certified Tracking Solutions Inc. Reseller acknowledges that all this is an non-exclusive sales agreement.
8.1 Unless the Customer provides express consent or disclosure is pursuant to a legal power, all information regarding the Customer kept by CTS other than Customer’s name, address and listed telephone number is confidential and may not be disclosed by CTS to anyone other than: a) the Customer; b) a person who, in CTS’ reasonable judgment, is seeking the information and is operating as the Customer’s agent; c) a Company involved in supplying the Customer with cellular, satellite or mapping related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose; d) a law enforcement agency whenever CTS has reasonable grounds to believe that the Customer has knowingly supplied CTS misleading information or are otherwise involved in unlawful activities directed against CTS; e) a public authority or agent of a public authority, if in CTS’ reasonable judgment, it appears that there is imminent danger to life or property which could be avoided or minimized by disclosure of the information.
8.2 Express consent may be taken to be given by the Customer where the Customer provides: (a) Written consent; (b) Oral confirmation by an independent third party; (c) Electronic confirmation via the internet.
8.3 CTS have no obligation to monitor content or the Customer’s end users’ use of the System. However, the Customer agrees that CTS have the right to monitor and investigate content and Customer’s end users’ use of the equipment from time to time and to: (a) disclose any information as necessary to; satisfy any law, regulation or other governmental request or to assist in the pursuit of any legal action against the Customer’s or end users; (b) ensure or enforce compliance with this agreement; or (c) protect CTS.
8.4 The Customer’s account information may, from time to time, be disclosed to other members of the CTS organization and CTS agents and authorized dealers in order to service the Customer’s account, to respond to the Customer’s and end user’s questions and to promote additional products and services offered by CTS or their related parties may interest the Customer and its end users. CTS may, unless specifically indicated in writing by the Customer not to, (a) use a Customer’s units to display real-time locations for sales demonstration purposes, (b) identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases, and (c) to develop a brief customer profile for use by CTS for promotional purposes.
8.5 CTS may, unless specifically indicated in writing by the Customer not to, use a Customer’s units to display real-time locations for sales demonstration purposes.
9.1 CTS requires 30 days notice by the Customer for the cancellation of any CTS Services. Notices must be sent via email only, to email@example.com. It is the responsibility of the customer to receive confirmation of cancellation directly from this address. A deactivation fee of $10 may apply.
9.2 The Customer acknowledges that fees will apply to the cancellation of term contracts. If, for any reason, the Customer defaults in payment of any two consecutive monthly service amounts due or elect to no longer use CTS Services hereunder, the Customer shall pay the total monthly amount at the time the contract was signed for each remaining month which would have been payable to the end of the term of this Agreement. If the customer prepays a term contract and later elects to no longer use CTS Services, the Customer shall not be entitled to a refund or credit on account for the monthly amount and applicable fees for each remaining month to the end of the term of this agreement.
9.3 In the event payment of the amount payable pursuant to Clause 9.2 hereof is not paid, CTS shall have the right to repossess the equipment provided to the Customer hereunder. The Customer authorizes CTS to enter any vehicle owned or controlled by the Customer to retake the equipment, and the Customer shall be responsible for all costs incurred by CTS in enforcing this part of the Agreement.
9.4 Notwithstanding any other provision herein, the agreement may be terminated immediately and at any time by CTS: a) without any liability to the Customer whatsoever, if any charges in any applicable law, regulation, requirement, rule, ruling, guideline, policy or directive prohibits or adversely affects CTS’ ability to provide the services or to fulfill its obligations hereunder, or if a notice from a government agency or department indicates CTS is not permitted to provide any portion or all of the services to be provided; b) immediately and without notice if the Customer fails to pay any amount due that is over 60 days; c) without any liability to the Customer whatsoever, if the Customer materially breaches a term of this agreement and fails to cure such breach within ten (10) days after receipt by the Customer of written notice of such breach; d) without any liability to the Customer whatsoever, if CTS decides to cease offering the services; e) without any liability to the Customer whatsoever, if proceedings are commenced for the liquidation, dissolution, winding-up or suspension of operations of the Customer; or f) without any liability to the Customer whatsoever, if the Customer becomes bankrupt or insolvent, makes any assignment for the benefit of creditors makes any proposal under applicable bankruptcy legislation, seeks relief under any bankruptcy, insolvency or analogous law, is adjudged bankrupt, files a petition or proposal to take advantage of any act of insolvency, contacts to or acquiesces in the appointment of a trustee, receiver or other person with similar powers over itself or all or substantially all of its assets or commences any proceeding seeking reorganization or arrangement or consents to or acquiesces in such proceedings; or
9.5 Upon sixty (60) days notice for any reason whatsoever other than the above, if CTS were to terminate the agreement within the first 365 days of the initial account signing, CTS shall accept the hardware if returned by the Customer in complete working condition, at the current sale price minus a 50% restocking fee.
9.6 If as of the effective date of termination for any reason any installments remain unpaid for hardware for which the Customer has agreed to pay any installment, the full amount of such installment shall become immediately due and owing.
X LIMITS ON LIABILITY
10.1 THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EQUIPMENT IS PROVIDED “AS IS AND “AS AVAILABLE” TO THE EXTENT PERMITTED BY LAW, AND IS SUBJECT TO THE MANUFACTURER’S WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT AND ANY OTHER DAMAGES SUFFERED BY THE CUSTOMER WHICH ARE CAUSED DIRECTLY OR INDIRECTLY BY ANY FAILURES OF THE EQUIPMENT.
10.2 CTS SHALL NOT BE LIABLE FOR (a) ANY ACTS OR OMISSIONS OF CUSTOMER OR THEIR OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS INCLUDING, WITHOUT LIMITATION, DEFAMATION OR COPYRIGHT INFRINGEMENT; (b) ANY DISRUPTION OF ANY PART OF THE EQUIPMENT; (c) ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS ARISING FROM OR IN CONNECTION WITH CUSTOMERS USE OF THE EQUIPMENT; (d) ANY EVENT OF FORCE MAJEURE WITHOUT LIMITING THE GENERALITY OF THE FOREGOING. IN NO CASE SHALL CTS BE LIABLE FOR ANY LOSS, DAMAGE, CLAIM OR DEMAND OF ANY KIND ARISING (a) FROM CHANGES IN ANY FEDERAL, PROVINCIAL OR MUNICIPAL AUTHORITY WHICH LIMITS, RESTRICTS, PROHIBITS, MONITORS OR GOVERNS THE USE OF THE EQUIPMENT; (b) ANY OBSOLESCENCE IN THE EQUIPMENT DUE TO TECHNOLOGICAL ADVANCES; (c) THE INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP OF ANY SUPPLIERS ENGAGED BY CTS.
10.3 CTS,THIER DIRECTORS, OFFICERS, CONTRACTORS OR AGENTS SHALL NOT BE LIABLE TO THE CUSTOMER, ANY END USER OR ANY OTHER PERSON FOR: a) ANY DAMAGES OR LOSSES INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGE, LOSS OF DATA, LOSSES RESULTING FROM THIRD PARTY’S UNAUTHORIZED ACCESS TO DATA, LOSS OF PROFIT, LOSS OF EARNINGS, FINANCIAL LOSS, LOSS OF BUSINESS OPPORTUNITY, PERSONAL INJURY, DEATH OR ANY OTHER DAMAGE OR LOSS HOWEVER CAUSED, RESULTING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE TERMS AND CONDITIONS HEREIN AND THE EQUIPMENT OR SOFTWARE REFERRED TO HEREIN; (b) DEFAMATION OR COPYRIGHT INFRINGEMENT THAT RESULTS FROM MATERIAL TRANSMITTED OR RECEIVED OVER THE CTS FACILITIES; (c) INFRINGEMENTS OF PATENTS ARISING FROM COMBINING OR USING CUSTOMER’S OWN FACILITIES WITH THE EQUIPMENT OR SOFTWARE; (d) ANY ACT OR OMISSION OF CTS, THEIR EMPLOYEES, OR AGENTS WHICH WOULD OTHERWISE BE A CAUSE OF ACTION IN CONTRACT, TORT OR ANY OTHER DOCTRINE OF LAW.WITHOUT LIMITING THE GENERALITY OF THE FOREGOING THE CUSTOMER SHALL BE SOLEY RESPONSIBLE FOR a) DATA TRANSFERS OCCURRING AS A RESULT OF ANY LOST OR THEFT OF EQUIPMENT IN THE CUSTOMER’S POSSESSION; (b) ANY LOSS DUE TO ANY LIMITATION ON EVENT PARAMETERS OR ANY SETTING, MODIFICATION, REVISION OR ALTERATION OF ANY EVENT PARAMETERS.
10.4 CTS does not represent or warrant that the System will be capable of achieving any specific results in the Customer’s business. CTS will not be directly or indirectly liable to the Customer or any other user for any amounts (including those claimed by third parties) representing loss of profits, loss of business, or indirect, special, exemplary, incidental, consequential, or punitive damages, whether foreseeable or not, arising from the performance or non-performance of the equipment.
10.5 CTS makes no representation, warranty or covenant that the Customer’s use of the System will be entirely secure and private. The Customer acknowledges that it may be possible for third parties to monitor communications while controlling access to its equipment and to the information transmitted by the Customer. In addition, the Customer acknowledges and agrees that the Customer is solely responsible for taking the necessary precautions to protect its networks and systems, and all software, data and files stored on or otherwise forming part of its network and the Customer’s system, against unauthorized access by its employees or any third party, and that such responsibility includes, without limitation, protection against unauthorized access through the services. CTS will not be liable for any claims, losses, actions, damages, suits or proceedings whatsoever resulting from, arising out of or otherwise relating to the Customer’s failure to take appropriate precautions to protect its networks and systems and all software, data and files stored on or otherwise forming part of its network and systems, against unauthorized access by its employees or any third party or any other breach of Customer’s security or privacy.
10.6 The Customer shall defend and indemnify CTS, its parents, successors, affiliates and agents from any claims, damages, losses or excessive balance, including unbilled usages and pending charges, fees and adjustments in connection with all claims, suits, judgments, and causes of action (a) for infringement of patents or other proprietary rights arising from the Customer combining with or using any device, system or service in connection with the equipment; (b) libel, slander, defamation or infringement of copyright or other proprietary right with respect to material transmitted by the Customer over the CTS facilities; (c) injury, death or property damage arising in connections with the presence, use or non-use by the Customer of the equipment or software.
10.7 The Customer acknowledges that CTS is not responsible for the content, availability, delivery, or accuracy of any information, email, data, files, pictures, or content accessible or made available using the System. CTS acknowledges that the delivery and accuracy of web mapping data is paramount to the Customer and will use reasonable commercial efforts to deliver the intended data.
10.8 CTS shall not be liable for changes in services or technology used by the mapping, cellular and satellite communication providers making the system non-operational.
10.9 CTS shall not be liable for the cellular or satellite providers’ equipment failures or modifications, act of god, strikes, government action, or other causes beyond CTS’ reasonable control.
10.10 CTS’ shall not be liable for and makes no representations that their equipment or services can prevent theft for any mobile or fixed assets.
10.11 CTS is not liable for any loss of life, commerce, opportunity or any costs incurred due to deactivation of any hardware.
10.12 The Customer acknowledges that equipment supplied by or on behalf of Certified Tracking Solutions may be installed by a Third Party at the request of the Customer. In that event, the Customer acknowledges that it shall have no claim of any kind against Certified Tracking Solutions in respect of the install, howsoever arising, and the Customer does hereby release, discharge and remise Certified Tracking Solutions of and from any claim for loss or damage howsoever arising out of the installation by a Third Party of equipment supplied by Certified Tracking Solutions whether the cost of the installation is initially paid by Certified Tracking Solutions or otherwise.. Improper installation that causes any type of equipment malfunction will void equipment warranty.
11.1 All notices given under this agreement shall be in writing and shall be deemed to have been duly delivered, effective upon receipt if sent electronic confirmation via the internet, faxed, or hand delivered effective three business days after being deposited, postage prepaid, return receipt requested, in the mail and sent to the appropriate address supplied by the Customer on the account application.
11.2 Any party may at any time give notice in writing to the other party of any change of address of the party giving such notice and from and after the giving of such notice the address therein specified shall be deemed to be the address of such party for the giving of notices hereunder.
XII GENERAL TERMS
12.1 This agreement constitutes the entire understanding between the parties with such respect to the subject matter of this agreement and there are no representations, warranties, covenants, agreements or collateral understandings, oral or otherwise, expressed or implied, affecting this instrument which are not expressly set forth herein.
12.2 This agreement shall be governed by and construed in accordance with the laws of the Province of Alberta.
12.3 Waiver by either party of any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default.
12.4 If a provision of this agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire agreement, but rather the entire agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions.
12.5 The parties hereto have required that this agreement and all documents or notices resulting there from or ancillary thereto be drawn up in the English language.
12.6 In no event shall either party have any liability for failure to comply with this agreement, if such failure results from the occurrence of any contingency beyond reasonable control of the party including, without limitation, strike, or other labour disturbance, riot, theft, flood, lightning, storm, any act of god, power failure, war national emergency, interference by any government or governmental agency, embargo, seizure, or enactment of any law, statute, ordinance, rule or regulation.
12.7 This Agreement shall ensure to the benefit of and be binding upon the parties hereto their respective heirs, executors, successors and assigns. This agreement may be assigned by CTS without the consent, express or implied of the Customer. The Customer may not assign this agreement without the consent of CTS first being obtained, any assignment without the Consent of CTS shall entitle CTS to forthwith terminate this agreement.
12.8 The terms and conditions of any order form, purchase order or invoice shall incorporate only the terms and conditions of this agreement and the terms and conditions contained in this agreement shall superseded any conflicting terms and conditions contained in any such order form, purchase order or invoice.
12.9 The headings of all articles or sections herein are inserted for convenience or reference only and shall not affect the construction or interpretation hereof. Except where the context otherwise indicates, words importing the masculine gender shall include the feminine gender.
12.10 This agreement shall be binding on the parties and their respective legal successors and permitted assignees.
12.11 The Customer shall pay all costs incurred by CTS including, reasonable legal fees, to enforce this Agreement or any part thereof.
12.12 Payments for Equipment or CTS Services which are returned by banks or credit card companies for insufficient funds will result in a charge to the Customer of $50.00 or such a higher amount as charged by the applicable bank(s) relating to such returned payment.
APPENDIX A – Customer Terms Mandated by Wireless Provider
For the purposes of this Appendix, the term “End User” refers to the Customer. 1. End User acknowledges that the services provided to CTS by the underlying carrier are made available only when the End User Equipment is in operating range of the facilities of the underlying carrier. In addition, the services of the underlying carrier may be temporarily refused, interrupted, or limited at any time because of: (i) limitations to the underlying carrier facilities; (ii) transmission limitations caused by atmospheric, topographical or other factors outside of the underlying carrier’s reasonable control; or (iii) equipment modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of the services provided to CTS by the underlying carrier. Individual data transmissions may be involuntarily delayed for a variety of reasons, including atmospheric conditions, topography, weak batteries, system overcapacity, movement outside a geographic locations in which the services are available from time to time and gaps in coverage within said geographic locations. 2. End User acknowledges that: (i) it is possible for third parties to monitor data traffic over the facilities of the underlying carrier and privacy cannot be guaranteed; (ii) if End User desires to secure transmission of data, End User must provide for its own means of doing so; and (iii) End User assume full responsibility for the establishment of appropriate security measures to control access to its own respective equipment and information. 3. END USER HAS NO PROPERTY RIGHT IN ANY IDENTIFIER ISSUED TO OR ASSOCIATED WITH END USER OR ANY EQUIPMENT USED BY END USER. 4. END USER EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING CARRIER AND THAT END USER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN CTS AND THE UNDERLYING CARRIER. IN ADDITION, END USER EXPRESSLY UNDERSTANDS AND AGREES THAT THE UNDERLYING CARRIER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER AND SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO END USER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. 5. END USER SHALL INDEMNIFY AND HOLD HARMLESS THE UNDERLYING CARRIER SUPPLYING SERVICES TO CTS AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, INFRINGEMENT OF COPYRIGHT, OR PERSONAL INJURY OR DEATH, ARISING IN ANY WAY DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT OR THE USE, MISUSE, FAILURE TO USE, OR INABILITY TO USE THE EQUIPMENT. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 6. A) Unless End User provides express consent or disclosure is pursuant to a legal power, all information kept by CTS regarding the End User, other than the End User’s name, address and listed telephone number, is confidential and may not be disclosed by CTS to anyone other than: i. the End User; ii. a person who, in the reasonable judgement of CTS, is seeking the information as an agent of the End User; iii. another telephone company, provided the information is required for the efficient and cost-effective provision of telephone service and disclosure is made on a confidential basis with the information to be used only for that purpose; iv. a company involved in supplying the End User with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose; or v. an agent retained by the CTS in the collection of End User’s account, provided the information is required for and is to be used only for that purpose. B) Express consent may be taken to be given by an End User where the End User provides: i. written consent; ii. oral confirmation verified by an independent third party; iii. electronic confirmation via the Internet; iv. oral consent, where an audio recording of the consent is retained by CTS; or v. consent through other methods, as long as an objective documented record of Customer consent is created by the Customer or by an independent third party. 7. A) In respect of the provision of emergency services on a mandatory basis, CTS is not liable for: i. libel, slander, defamation or the infringement of copyright arising from material or messages transmitted over CTS’ network from END USER’s property or premises or recorded by END USER’s equipment or CTS’equipment; ii. damages arising out of End User’s act, default, neglect or omission in the use or operation of equipment provided by CTS; iii. damages arising out of the transmission of material or messages over CTS’ network on End User’s behalf which is in any way unlawful; or iv. any act, omission or negligence of other companies or telecommunications systems when their facilities are used in establishing connections to or from END USER’s facilities and equipment. B) Furthermore, except in cases where negligence on CTS’ part results in physical injury, death or damage to End User’s property or premises, CTS’ liability for negligence related to the provision of emergency services on a mandatory basis is limited to the greater of $20 and three times the amount (if any) CTS would otherwise be entitled to receive as a refund for the provision of defective service under this agreement. However, CTS’ liability is not limited by this subsection in cases of deliberate fault, gross negligence or anti competitive conduct on CTS’ part or in cases of breach of contract where the breach results from CTS’ gross negligence. 8. End User HEREBY ACKNOWLEDGES THAT CTS IS ACTING AS AGENT TO THE UNDERLYING CARRIER SUPPLYING SERVICES TO CTS FOR THE LIMITED PURPOSE OF SECURING PERFORMANCE OF THE FOREGOING PROVISIONS. 9. THE UNDERLYING CARRIER’S SERVICES DO NOT INCLUDE ANY VOICE SERVICES. 10. THE SIM SUPPLIED WITH THE EQUIPMENT MAY ONLY BE USED IN SUCH EQUIPMENT AND IN NO OTHER WIRELESS DEVICE. 11. Roaming End Users may only roam incidentally to their use of the Services in USA and Canada.