End User License Agreement Subscription Service Agreement and Terms of Purchase
THIS SUBSCRIPTION SERVICE AGREEMENT AND TERMS OF PURCHASE (“AGREEMENT”) IS MADE AND ENTERED INTO IMMEDIATELY UPON ACCEPTANCE OF ITS TERMS AND CONDITIONS BY YOU AND IS BETWEEN YOU AND COMPANY, AS IDENTIFIED IN THE LAST PARAGRAPH OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS THE TERMS AND CONDITIONS WHICH APPLY TO THE GPS PRODUCT(S) YOU HAVE PURCHASED OR ARE PURCHASING, WHETHER PURCHASED FROM COMPANY, A DISTRIBUTOR, AGENT OR FROM ANY ENTITY ACQUIRED BY COMPANY (COLLECTIVELY THE “PRODUCT”) AND UPON WHICH COMPANY WILL PROVIDE OR HAS PROVIDED TO YOU THE SERVICES (AS DEFINED BELOW) RESPECTING SUCH PRODUCT. YOU SPECIFICALLY AGREE THAT THIS AGREEMENT SUPERCEDES ANY PRIOR OR CONTEMPORANEOUS AGREEMENT BETWEEN YOU AND ANY PERSON OR ENTITY, WHETHER WRITTEN OR ORAL, WITH RESPECT TO ANY PRODUCT AND/OR SERVICES, AS DEFINED HEREIN. NOTWITHSTANDING THE FOREGOING, IF YOU ARE A DISTRIBUTOR, SALES REPRESENTATIVE OR OTHER PERSON OR ENTITY WHO HAS PURCHASED A PRODUCT FOR THE PURPOSE OF RESALE, THEN THE TERMS OF THIS AGREEMENT WILL ONLY SUPERCEDE ANY PRIOR OR CONTEMPORANEOUS AGREEMENT BETWEEN YOU AND COMPANY TO THE EXTENT THE PROVISIONS OF SUCH PRIOR OR CONTEMPORANEOUS AGREEMENT CONFLICT WITH THE TERMS HEREIN, IT BEING THE INTENT OF ALL PARTIES THAT THE TERMS OF THIS AGREEMENT SHALL GOVERN.
FROM TIME TO TIME COMPANY WILL UPDATE THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU MAY ACCEPT THE NEW TERMS AND CONDITIONS TO CONTINUE PURCHASING PRODUCTS FROM COMPANY AND USING THE SERVICES. IF YOU ELECT NOT TO ACCEPT THE NEW TERMS AND CONDITIONS, THEN COMPANY MAY, IN ITS SOLE DISCRETION, IMMEDIATELY TERMINATE THIS AGREEMENT, DISCONTINUE PROVIDING THE SERVICES, AND REFUND TO YOU THE AMOUNT OF MONEY THAT YOU HAVE PREPAID FOR SERVICES THAT YOU HAVE NOT RECEIVED ON THE DATE YOU ELECT NOT TO ACCEPT THE NEW TERMS AND CONDITIONS
1. SERVICES AND CHARGES – In consideration of payment of the Charges (as defined below), Company will provide the Services (as defined below). The term “Services” means, collectively, (a) the provision to you of location, operation and other information (including, without limitation, the location of the Mounted Vehicle, notifications of when the Mounted Vehicle goes into motion and such other information concerning the location and/or operation of the Mounted Vehicle as Company may elect to provide from time to time), (b) if you purchased such option, the provision to you of start, stop and idle times, fuel consumption, top speeds of the Monitored Vehicle, driving performance (e.g. harsh braking, hard acceleration, crash detection), top speeds of the Mounted Vehicle, (c) if you purchased such option, the ability to monitor the health of the vehicle through the use of vehicle diagnostic trouble codes (DTC) and (d) such other services as Company may elect to provide to you in its sole and absolute discretion from time to time. With respect to all Services, Services will only be available for a vehicle on which the Product is properly installed and is properly registered (the “Monitored Vehicle”) and will only be provided through a Company website providing Services (“Website”) a Company mobile application (“App”) or by using such other means as Company may elect from time to time. There are no other services provided under this Agreement. The term “Charges” means the total amount due for the Product and Services, including without limit any applicable late charges, penalties or interest, purchased by you from time to time and all sales, use and other taxes, fees and charges that may be imposed by any governmental body relating to the sale of Products and provision of Services.
2. PAYMENT TERMS – You will receive an invoice with the shipment of the Product setting forth the purchase price and other Charges applicable to the Product and the Services provided hereunder as agreed upon in License and Service Agreement. Unless such charges have been paid prior to shipment, you will pay all Charges set forth in the invoices C.O.D. provided however, Company in its sole and absolute discretion may provide payment terms in the invoice. At Company’s request, prior to the shipment of any Products to you, you will provide to Company a valid credit card number, the expiration date and other information requested by Company pertaining thereto, and you hereby authorize Company to charge to this credit card all Charges applicable to your purchase of the Product and Services provided hereunder which are not paid prior to their shipment or upon delivery. Upon cancellation or expiration of such credit card, you will immediately provide a new credit card number, expiration date and other information requested by Company pertaining thereto. If you have not paid all sums due Company in accordance with the terms hereof, a monthly finance charge equal to the greater of (a) 1.5% per month, or (b) the highest amount permitted by law, shall accrue and be payable each month until paid in full. Furthermore, upon your failure to make payment in accordance with the terms hereof, a late fee of ten percent (10%) of the amount past due shall be due and payable by you with respect to each such late payment. The waiver of a finance charge, late fee or any portion thereof shall not be deemed to be a waiver of any future finance charges or late fees. You shall be liable to Company for any and all costs and expenses incurred by Company, including without limitation attorneys’ fees and expenses, in collection of any past due amounts hereunder. You hereby grant to Company a continuing lien in the Product to secure your timely payment to Company for such Product in accordance with the terms and conditions hereof.
3. LIMITED SOFTWARE LICENSE – In consideration of the payment of the Charges, Company grants to you a nonexclusive, nontransferable license to use the software loaded on the Product solely for the purpose of enabling Company to provide the Services described herein with respect to the Product. This limited software license will automatically terminate upon termination of the Services. You shall not modify, reverse engineer, decompile, or disassemble any licensed software.
4. LIMITED DATA LICENSE – In consideration of the payment of the Charges, Company grants to you a nonexclusive, nontransferable license to use the data collected by the Product (“Usage Data”) in conjunction with receiving the Services described herein with respect to the Product. Usage Data is collected and owned solely by Company, and may be used by Company in an anonymous, aggregated form to provide marketing or statistical information to third parties, and to provide you with additional features or services. Company may use Usage Data to provide you with additional features or services, such as vehicle service alerts, and maintenance reminders. Certain Usage Data may be shared with our third-party partners, including but not limited to vehicle mileage and engine fault codes used to offer custom maintenance reminders and service scheduling notices to you.
5. DATA COLLECTION/PRIVACY – Company collects, uses and shares information from and about You and your vehicle. The Companies Privacy Statement describes what the Company does with that information. You consent to the collection, use, and sharing of information described in the Privacy Statement and in any revisions to the Privacy Statement, which may be modified as described in that document.
6. LIMITED PRODUCT WARRANTY – Company hereby warrants (“Limited Warranty”) only to the purchaser that first activates the Product, that the Product will be free from defects in workmanship and materials for a period (“Limited Warranty Period”) of one (1) calendar year after the date that you purchased the Product. The Limited Warranty does not apply to normal wear and tear and does not cover repair or replacement if the Product is damaged by tampering, misuse, accident, abuse, neglect, improper installation, misapplication, alteration of any kind, disaster, defects due to repairs or modifications made by anyone other than Company or an authorized service representative of Company, or reception problems caused by signal conditions or cable or antenna systems outside the Product. Further, the Limited Warranty does not apply to physical damage of any nature whatsoever to the Product, including any opening or attempted opening of the Product, and any such opening or attempted opening of the Product shall render the Limited Warranty invalid. REPAIR OR REPLACEMENT OF A DEFECTIVE PRODUCT IS YOUR SOLE AND EXCLUSIVE REMEDY UNDER THE LIMITED WARRANTY. SOFTWARE LOADED ON THE PRODUCT IS PROVIDED “AS IS” WITHOUT WARRANTY. COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES FOR BREACH OF THE LIMITED WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS, AND YOU EXPRESSLY WAIVE, ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTY ARISING OUT OF ANY PROPOSAL, SPECIFICATION, OR SAMPLE. THE TERM OF ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW SHALL BE LIMITED TO THE DURATION OF THE FOREGOING EXPRESS WARRANTY PERIOD. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND/OR DO NOT ALLOW LIMITATIONS ON THE AMOUNT OF TIME AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. You agree that neither Company nor any other party has made any representations or warranties, nor have you relied on any representations or warranties, express or implied, including any implied warranty of merchantability or fitness for any particular purpose with respect to the Products. You acknowledge that no affirmation of fact or statement (whether written or oral) made by Company, its representatives, or any other party outside of this Agreement with respect to the Products shall be deemed to create any express or implied warranty on the part of Company or its representatives. To obtain warranty service Contact the Customer Service Department using the support number located on the website you were provided when you purchased the product. Provide them with the IMEI (International Mobile Equipment Identity) for each product for warranty coverage verification. Upon verification of coverage, an RA# will be issued and provided to you by fax, email, or over the phone. Package product(s) and send to Company with the RA# clearly written on the outside of each package (returns without an RA# will be rejected) and ship to: Procon Analytics, Attn: Your Local Fleet Returns, 17361 Armstrong Avenue Irvine, CA (Note: You are responsible for shipping charges to the returns department.) Company will test all properly returned products to determine if they are defective. If the product is defective Company will provide replacement of the defective product(s) and Company is responsible for shipping charges back to you. If the product is not defective, then you will be charged $9.95 to cover the cost of testing the product and you are responsible for the shipping charges back to you.
7. NO SERVICE WARRANTY – There is no warranty with respect to Services, and Company makes no warranty under this Agreement except as specifically stated herein. ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY SPECIFICALLY DISCLAIMED. You affirm by purchase of the Services that you are the registered owner of the Monitored Vehicle, you assume all risk for loss of or damage to the Monitored Vehicle and its contents and for personal injury to persons occupying or affected by your Monitored Vehicle, and Company shall have no liability of any kind or nature to you therefor. You agree that neither Company nor any other party has made any representations or warranties, nor have you relied on any representations or warranties, express or implied, including any implied warranty of merchantability or fitness for any particular purpose with respect to the Services. You acknowledge that no affirmation of fact or statement (whether written or oral) made by Company, its representatives, or any other party outside of this Agreement with respect to the Services shall be deemed to create any express or implied warranty on the part of Company or its representatives.
8. INSTALLATION – The Product must be installed strictly as provided in the installation guide supplied with the Product. You are responsible for obtaining the proper installation of the Product in the Monitored Vehicle in accordance with this Section. YOU UNDERSTAND AND AGREE THAT COMPANY IS NOT RESPONSIBLE FOR, SHALL HAVE NO OBLIGATIONS WITH RESPECT TO, AND SHALL HAVE NO LIABILITY FOR, A PRODUCT NOT INSTALLED IN ACCORDANCE WITH THIS SECTION.
9. LIMITATIONS, EXCLUSIONS & DISCLAIMERS – You agree that the liability of Company, the Wireless Carrier (as defined below) and any third-party CSC (as defined below) is limited in accordance with, and Company, the Wireless Carrier and any third party CSC may invoke, the provisions of this Section 7.
a. LIMITATION OF LIABILITY – COMPANY SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY GENERAL, DIRECT, SPECIAL, INCIDENTAL, LOST PROFITS, AND EXEMPLARY, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT OR REVENUES, LOSS OF USE, LOSS OF DATA, INCORRECT OR CORRUPTED DATA, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME COST, OR CLAIMS OF YOU FOR SUCH DAMAGES, EVEN IF COMPANY KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING OR ANY OTHER LIMITATION OF LIABILITY HEREIN, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, YOUR EXCLUSIVE REMEDY AND THE TOTAL LIABILITY OF COMPANY AND/OR ANY SUPPLIER OF SERVICES TO COMPANY ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF THE SERVICES, SHALL BE LIMITED TO PAYMENT BY COMPANY OF DAMAGES IN AN AMOUNT EQUAL TO THE AMOUNT CHARGED TO YOU FOR THE PRODUCT AND SERVICES PROVIDED UNDER THIS AGREEMENT.
b. Company Not An Insurer – Company is not an insurer and you must obtain from an insurer any insurance you desire. The amount you pay Company is based upon the Services Company performs and the limited liability Company assumes under this Agreement and is unrelated to the value of your property, any vehicle in which a Product is installed or any property located in any vehicle in which a Product is installed. In the event of any loss or injury to any person or property, you agree to look exclusively to your insurer to recover damages. You waive all subrogation and other rights of recovery against Company that any insurer or other person may have as a result of paying any claim for loss or injury to any other person.
c. State Laws Differ – Some states may not allow limitations of special, incidental, consequential, or exemplary damages, and the limitations specified herein may not apply to you.
d. Other Party’s Limitation – If you purchased Services or the Product through another business or person, or from Company through a referral from another business or person, you agree that such other business or person acts solely as an independent contractor. Such business or person shall have no responsibility or liability to you for the performance or nonperformance of the Services Company provides under this Agreement. Without limiting the above, you agree that the liability of such other business or person is, in any event, limited in accordance with the provisions of this Agreement. You agree that such business or person and its agents, employees, subsidiaries, affiliates and parent companies may invoke all of Company’s rights under this Section.
e. Time To File Lawsuit Or Other Action – You agree to file any lawsuit or other action you may have against Company or Company’s agents, employees, subsidiaries, affiliates or parent companies within one (1) year from the date of the event that caused the loss, damage or liability.
f. DISCLAIMER & LIMITATION OF LIABILITY RELATED TO GPS AND CELLULAR SERVICE – The Product receives signals from the Global Positioning Satellite (“GPS”) system and transmits signals to, and receives signals from, a Company or a third party Customer Service Center (“CSC”). Your Services are provided either by a Company CSC or an independent CSC which Company selects. You understand that the Product installed in the Monitored Vehicle uses cellular telephone technology as the transmission mode for sending signals to the CSC. Services are available to you only within the United States only when the Product is within the operating range of the Wireless Carrier (as defined below). Services may be temporarily refused, interrupted, curtailed, limited or discontinued, without liability to Company or the Wireless Carrier, due to many conditions, including: (a) wireless transmission capacity limitations and cellular telephone network capacity limitations, (b) atmospheric, terrain and geographic conditions, (c) other natural or artificial environment conditions beyond Company’s control, (d) limitations of the electrical system design and architecture of your Product, (e) the condition of the Product (for example, the Product will not function if its power supply is not available as when, for example, the unit is not connected to a live power source, or if essential Product components are damaged (accidentally or otherwise), (f) government regulations or limitations, (g) restrictions by the Wireless Carrier (for example, wireless carrier equipment limitations and inter-carrier roaming agreements), (h) usage concentrations, modifications, upgrades, relocation and repairs of transmission facilities for the cellular telephone network, (i) Company’s efforts to combat fraudulent use, and (j) other legitimate business and operational reasons. Global positioning capabilities used for some location-based services are not available if satellite signals are obstructed; you must be outside with a clear line of sight between you and the satellites. You understand that the Product’s usage of the GPS system and the cellular telephone network are fundamental to Company’s ability to provide Services. You understand that due to the very nature of cellular telephone, network and GPS technologies, there will be times when the Product is unable to secure, maintain, or transmit signals, or that the information transmitted is not reliable, and thus, Company will be unable to receive such signals. You also understand that Company does not receive signals when the transmission mode is or becomes non-operational and that signals from the Product cannot be received by Company when the Product is damaged, does not have an adequate power source or is otherwise non-operational. Accordingly, you agree that Company shall not, in any way, be liable for, or have responsibility with respect to, the GPS system, the cellular telephone network, any of the information obtained therefrom, or for interruptions in service for any reason whatsoever. You further acknowledge and agree that Company shall not have any liability for the interruption of services due to electrical storms, power failures, interruption or unavailability of telephone service, cellular and radio frequency or other conditions beyond Company’s control, including, without limit, due to strikes, riots, floods, fires or acts of God. You acknowledge that the use of radio frequencies and cellular devices that the liability and obligations of Company to you under this Agreement for Services are strictly controlled and limited by the Federal Communications Commission (“FCC”) and other governmental authorities which from time to time have jurisdiction and that changes in rules, regulations and policies may necessitate discontinuing such transmission devices by Company or the Wireless Carrier at Company’s or the Wireless Carrier’s option. In no event shall Company and/or the Wireless Carrier be liable for any cost, delay, failure or disruption of the Wireless Service (as defined below), lost profits, or incidental, special, punitive or consequential damages.
g. DISCLAIMER & LIMITATION OF LIABILITY RELATED TO PSAP or 911 SERVICE AND ANY THIRD-PARTY CSC – In no event shall Company be liable for losses, damages, or claims arising out of your use or attempted use of a public service answering point (“PSAP”) or 911 services or for your inability to access PSAP or 911 services. You understand and agree that you have no contractual relationship with any third-party CSC and that you are not a third party beneficiary of any agreement between Company and any third party CSC. In addition, you expressly understand and agree that any third-party CSC shall have no legal, equitable, or other liability of any kind to you, and you hereby waive any and all such claims or demands.
10. PRIVACY DISCLOSURES AND COMPLIANCE WITH LAWS – YOU AGREE TO PROVIDE ANY AND ALL DISCLOSURES TO EACH OWNER OR OPERATOR OF A MONITORED VEHICLE AND TO TAKE ANY AND ALL SUCH OTHER ACTIONS AS MAY BE NECESSARY TO COMPLY WITH ALL LAWS (WHETHER STATUTORY, UNDER COMMON LAW OR OTHERWISE), RULES OR REGULATIONS APPLICABLE TO USE OF THE PRODUCT AND THE SERVICES AND THE INSTALLATION OF THE PRODUCT IN THE MONITORED VEHICLE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE TO PROVIDE FULL AND ADEQUATE ADVANCE WRITTEN DISCLOSURE TO EACH OWNER OR OPERATOR OF A MONITORED VEHICLE THAT THE PRODUCT IS INSTALLED IN SUCH VEHICLE. FURTHER, IF APPLICABLE YOU AGREE TO PROVIDE FULL AND ADEQUATE ADVANCE WRITTEN DISCLOSURE (A) THAT COMPANY WILL BE PROVIDING THE SERVICES TO YOU RESPECTING SUCH PRODUCT, AND (B) THE NATURE AND EXTENT OF THE SERVICES BEING PROVIDED BY COMPANY TO YOU RESPECTING SUCH PRODUCT (e.g., THAT YOU ARE ABLE TO DETERMINE THE PRECISE LOCATION OF THE MONITORED VEHICLE AT ANY TIME). NEITHER YOU NOR ANY OF YOUR EMPLOYEES, AGENTS, OR REPRESENTATIVES, DIRECTLY OR INDIRECTLY, WILL USE THE PRODUCT OR SERVICES FOR UNLAWFUL OR OTHERWISE IMPROPER PURPOSES, INCLUDING, WITHOUT LIMITATION, MONITORING THE LOCATION OF THE MONITORED VEHICLE OR AFFECTING THE MONITORED VEHICLE FUNCTIONS FOR ANY PURPOSE OTHER THAN FOR A LEGITIMATE BUSINESS PURPOSE.
11. AGREEMENT TO TERMS – The term of this Agreement shall begin immediately upon your acceptance of the Agreement. You accept terms upon sign-up process or when You access or use the Services, You are indicating You have read, understand, and agree to be bound by the terms and other terms, policies, guidelines, and processes they refer to as “Agreement”. Agreement shall continue until the expiration of the initial service term purchased by you or for you for such Product, unless such term is renewed by you pursuant to renewal procedures which are established by Company and which may be in effect from time to time.
12. TERMINATION OR DISCONTINUANCE OF SERVICES – This Agreement or the Services may be terminated at the option of Company at any time upon the occurrence of any of the following events: (a) your default under or failure to perform as required by this Agreement; (b) your default in payment of any monies due under this Agreement; (c) IF YOU PURCHASED PRODUCT OR SERVICES THROUGH ANOTHER BUSINESS OR PERSON, THE DEFAULT IN PAYMENT OF ANY MONIES DUE TO COMPANY FROM SUCH BUSINESS OR PERSON; (d) destruction of or substantial damage to the CSC’s so as to make it impractical for Company to continue to provide signal receiving and notification services under this Agreement; (e) failure of the Product, the GPS system and/or the cellular telephone networks for the transmission of signals between the Product and the CSC’s to function in accordance with Company’s expectations, (f) unavailability of, or inability of Company either to secure or retain the connections or privileges necessary for the transmission of signals by means of conductors between the CSC’s, the Wireless Carrier and the PSAP’s, police agencies or other service providers; (g) your failure to follow the operating instructions provided at the time the Product is installed into a Monitored Vehicle; (h) your failure to follow any recommendations Company may make for the repair or replacement of a defective part of a Product; (i) if a Monitored Vehicle is so modified or altered after installation of the Product as to render continuation of any Service impractical; (j) in the event any governmental regulations or limitations necessitate the discontinuance of the Product or Services as determined by Company in its sole discretion; or (k) your default, failure to pay any monies due or perform any obligation under any other agreement between you and Company, including, without limitation, any other Subscription Service Agreement between you and Company. In the event this Agreement is terminated by Company under this provision, Company shall not be liable for any damages or subject to any penalty as a result of such termination. Company will, however, where you are not at fault, refund to you any advance payments made for Services to be supplied subsequent to the date of such termination, less any amount still due for the period prior to such termination. This Agreement may also be terminated at the option of Company at any time with thirty (30) days written notice to you. In addition to Company having the option to terminate this Agreement, upon the occurrence of any of the events set forth in this Section, Company shall also have the option to discontinue the Services to the Product until the event resulting in such discontinuance is cured by you or otherwise remedied in Company’s sole and absolute opinion, and other than discontinuances which are not the result of any act or omission by you, you shall remain liable for any and all Charges applicable to the Product and Services for such period of discontinuance.
13. WIRELESS CARRIER – Company has contracted with, and will contract from time to time with, one or more wireless carriers (individually and collectively, “Wireless Carrier”) to provide wireless data transmission service (“Wireless Service”) for the Product over a cellular telephone network. You acknowledge and agree that you have no contractual relationship with the Wireless Carrier, and you are not a third-party beneficiary of any agreement between Company and the Wireless Carrier. You understand and agree that the Wireless Carrier shall have no legal, equitable or other liability of any kind to you, and you hereby waive any and all such claims or demands. You acknowledge and agree that your Service may be temporarily suspended or permanently terminated upon little or no notice in the event that Company’s agreement with the Wireless Carrier is terminated. You waive any and all claims against the Wireless Carrier for such suspension or termination. You understand that the Wireless Carrier cannot guarantee the security of wireless transmissions and will not be liable for any lack of security relating to the use of the Wireless Service. Subject to FCC number portability rules, you have no property right in any telephone number assigned to you or the Product (“Number”), and you understand and agree that any such Number can be changed from time to time.
14. INDEMNIFICATION – You agree to indemnify, defend and hold Company, the Wireless Carrier, and the officers, directors, employees, agents, contractors, subsidiaries, affiliates, or parent companies of each of them (each an “Indemnified Person”) harmless from any loss, cost, expense (including attorney’s fees, expert’s fees, and expenses), demand, claim, liability, damages or cause of action of any kind or character (collectively referred to as “claim”), including without limitation, for any personal injury or death, in any manner arising out of or relating to your, or your officers, directors, employees, agents, assigns, invitees, or other users using your Product, whether authorized or not (i) violate or otherwise breach of any provision of this Agreement, (ii) acts or omissions in the conduct of your business, including, without limitation, the marketing and sale of the Products and Services; (iii) statements, representations, warranties or other conduct in connection with any transaction involving the Products and/or Services, other than as expressly provided to you by Company or otherwise expressly authorized by Company in writing; (iv) negligence, recklessness or intentional misconduct; (v) the provision, failure, or use of the Products and/or the Services, including, without limitation, the compliance with any and all laws (whether statutory, under common law or otherwise), rules or regulations applicable to the use of the Products or Services; (vi) inability to use the Services or the Product;
(vii) the use, failure to use, or inability to use the Number; (viii) the installation of the Product in the Monitored Vehicle; and (ix) Company’s refusal to provide Services because you or any other Service user has (A) not paid monies due to Company for Products or Services or (B) violated any provision of this Agreement. These obligations will apply even if such lawsuit or other claim arises out of an Indemnified Person’s negligence, gross negligence, failure to perform duties under this agreement, strict liability, failure to comply with any applicable law, or other fault. This provision shall survive the termination of this Agreement.
16. USER ID AND PASSWORD – During the registration process for your Product you created a user id and password that allows you to have access to the Services through the Website. You will not provide your user name or password to access Services to any other person or entity or allow any other person or entity to access Services provided to you under your user name and password. You agree that you are solely responsible for any actions that occur under your user name and password. In the event that your user name and password becomes known by a third party you agree to notify Company immediately.
17. ASSIGNMENT – This Agreement is not assignable by you except upon the prior written consent of Company. Company shall have the right to assign this Agreement, in whole or in part, or to subcontract its obligations under this Agreement, in whole or in part, without notice to you and upon such assignment, Company shall be released from all liability hereunder.
18. NOTICES – Except as specifically provided in this Agreement, all notices required hereunder shall be in writing and shall be given by personal delivery, overnight courier service, first class mail postage prepaid, at the parties’ addresses set forth herein or at such other address(es) as shall be specified in writing by such party to the other party in accordance with the terms and conditions of this Section. All notices shall be deemed effective upon personal delivery, or one business day following deposit with any overnight courier service, or three business days following deposit with the U.S. Postal System, first class postage attached, in accordance with this Section. Notices for you shall be sent to the address you provide to Company upon registration of the Product. Notices for Company shall be sent to the address set forth for Company in the Preamble.
19. MEDIATION AND ARBITRATION (a) In the event of any dispute under this Agreement, the parties hereto desire to avoid litigation. Accordingly, the aggrieved party will give notice of the dispute to the other party and both parties will attempt to settle the dispute during the thirty (30) day period following such notice. If such dispute remains unsettled, the parties agree to then submit such dispute to mediation. If the parties cannot agree on a mediator, each will select a mediator and the two chosen mediators will select a third mediator who shall alone hear the dispute. Such mediation will, if possible, be conducted during the sixty (60) day period following expiration of the thirty (30) day period. If such mediation fails to resolve the dispute, the parties agree such dispute will be submitted to final and binding arbitration in accordance with the rules of the American Arbitration Association. Unless otherwise directed by the arbitrator, such arbitration must be concluded within ninety
(90) days of the expiration of the sixty (60) day period previously specified for mediation. If the parties cannot agree on a single arbitrator, each will select an arbitrator, and the two chosen arbitrators will select a third arbitrator who shall alone decide the dispute. Any mediation or arbitration conducted hereunder will be conducted in Knoxville, Tennessee. The parties hereto shall equally share the costs of mediation (including the mediator’s fees and expenses and costs directly related to the conduct of the mediation, but excluding each party’s direct costs for transportation, attorneys, etc., for which each will be responsible). If any party fails to participate in mediation or arbitration after receipt of notice thereof, then each party hereto agrees that the other party shall have the right to proceed immediately to arbitration and that such other party shall be entitled to select the arbitrator in its sole discretion. Each party further agrees that, in such event, such arbitrator shall have the right to decide the dispute as if the non-participating party were participating in the arbitration and that such decision shall be final and binding upon each party hereto.
(b) Attorney Fees and Other Arbitration Expenses. If any party hereto resorts to arbitration to remedy a breach of this Agreement, the prevailing party in the arbitration, in addition to any other remedies available under this Agreement or by law, may collect all or a portion of its reasonable attorney fees and other costs and expenses of arbitration at the discretion of the arbitrator, who shall consider both the reasonableness of the attorney fees and other costs and the relative merits of each party’s position. It is the intent of all parties hereto to avoid arbitration without preventing a party from seeking redress for a valid dispute. To that end, all parties express their intent and agreement that unreasonable attorney fees and costs not be awarded, and that all or a portion of reasonable attorney fees and costs be awarded when in the arbitrator’s opinion the party against whom such fees and costs are awarded has maintained position(s) which have significantly less merit compared to the prevailing party’s position(s). Further, it is all parties intent that any party seeking redress through litigation despite the fact that arbitration is required by this Agreement, shall not be entitled to recover any attorney fees or costs for such litigation or in any subsequent arbitration, regardless of the outcome of such litigation or subsequent arbitration.
20. VENUE – It is the express intent of the parties that any dispute under this Agreement be decided in accordance with the mediation and arbitration provisions contained in Section 17 hereof. Notwithstanding the foregoing, in the event a court refuses to enforce the provisions contained in Section 17 for any dispute or, in the event a court is asked to decide a dispute concerning the provisions contained in Section 17, the parties expressly agree that jurisdiction and venue for any actions under or pursuant to this Agreement shall be solely in any state court in Knox County, Tennessee, or the Federal District Court for the Eastern District of Tennessee, Northern Division, sitting in Knoxville, Tennessee.
21. MISCELLANEOUS – The terms and conditions hereof shall be governed by and construed in accordance with the laws of the State of Tennessee without resort to its conflicts of laws. The invalidity, in whole or in part, of any term or condition hereof shall not affect the validity of the remainder hereof. The failure of either Company or you to enforce at any time any of the terms and conditions hereof shall not constitute or be construed to be a waiver of such terms and conditions or of the right of such party thereafter to enforce any such terms and conditions. You are solely responsible for complying with any orders, rules, and regulations of the Federal Communication Commission, or any other federal, state or local governmental authority, applicable to the purchase, installation, and operation of Product. Except as expressly provided herein, the terms and conditions hereof are for the benefit of Company and you and no other party. This Agreement constitutes the final and entire agreement between you and Company and supersedes any prior agreements, written or oral. There are no other agreements written or oral. Company has made no representation, warranty, or covenant not contained in this Agreement. Further, no amendment, modification, or waiver of, or supplement to, this Agreement shall be effective, unless it is in writing. Company may send you written notification of any modification, amendment or supplement to this Agreement and you will have sixty (60) days from the date of such written notification to object in writing to such modification, amendment or supplement, in which case Company will have the right to either terminate this Agreement or allow this Agreement to continue without the proposed modification, amendment or supplement. Failure to object to any modification, amendment or supplement in writing will constitute your acceptance of such modification, amendment or supplement. The agreements made herein may not be modified, supplemented, or changed in whole or in part by any waiver (other than a written waiver signed by the party to be charged), oral representation, or course of dealing. The terms and conditions of this Agreement shall govern notwithstanding any inconsistent or additional terms and conditions of any other document submitted by you.
22. COMPANY – Company, as used throughout this Agreement, means Procon Analytics, whose offices are located at 17361 Armstrong Avenue Irvine, CA, and each of their Dealers, Resellers, Agents, successors and/or assign.