(a) Trackn Inc. dba EnfoTrace ("EnfoTrace") is not bound by different terms and conditions in Your purchase order or elsewhere unless expressly agreed to in writing by an officer of EnfoTrace.com. This Agreement and the Product Brochure available at EnfoTrace's website at www.EnfoTrace.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 location device and/or location device Services, installation and maintenance purchased under this Agreement. The Services commence as of the first day EnfoTrace receives an executed contract and initial payment therefore after the Location device are installed and activated in accordance with this Agreement. (b) You may, by written notice to EnfoTrace within fifteen days of the date this Agreement was originally executed by EnfoTrace, cancel this Agreement. If Your cancellation occurs within such fifteen-day period and is for any reason other than as a result of material default by EnfoTrace of any of the terms of the Agreement, You will pay EnfoTrace 20% of the total price and fees for all Location device listed in this Agreement as a de-installation and restocking charge.
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 EnfoTrace's then current flat rates.
Unless otherwise stated on the front of this Agreement, all deliveries are FCA/FOB EnfoTrace's warehouse. Shipping or delivery dates are good-faith estimates only. EnfoTrace 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 EnfoTrace in writing within forty-five days of delivery of each shipment. IN NO EVENT SHALL EnfoTrace 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 Location device. You hereby grant to EnfoTrace a purchase money security interest in the Location device to secure payment in full of amounts due hereunder for the Location device, and You will, upon EnfoTrace's request, sign a UCC-1 Financing Statement and any other documents needed to perfect EnfoTrace's security interest therein.
(a) Installation. The location device and back-up lithium battery must be installed in Your vehicles in strict accordance with EnfoTrace's specifications. The location device and back-up lithium battery must be installed only by You, EnfoTrace or an authorized installer. Unauthorized or improper installation voids EnfoTrace's limited warranty. Installation of the location device and back-up lithium battery shall take place at the location indicated on the front of this Agreement. If installation is performed at a location other than a EnfoTrace service center, You will provide a location which is safe and presents no known hazards. All necessary utilities (including plumbing, lighting, air conditioning, heating, electrical power and access to phone lines) shall be accessible and provided without charge. You will, at Your expense, obtain and keep in force during the period of installation a policy of general liability insurance covering any liability arising out of EnfoTrace's use or occupancy of the site. You will allow EnfoTrace, its authorized agents and subcontractors full and free access to the site during business hours and will not require that EnfoTrace waive any claim arising from its use of the site or impose any other restrictions as a requirement of access to the site. EnfoTrace will attempt to honor any request for installation during non-business hours, but may apply a surcharge for such installation. In the event that any party other than EnfoTrace provides installation services, You shall be solely responsible for the installation of the hardware device, as well as the back-up lithium battery, and any problems, claims or liabilities resulting from such installation. In connection therewith, You waive all claims against EnfoTrace, including all claims for property damage or personal injury caused by the improper installation of the location device, as well as the back-up lithium battery. (b) Limited Installation Warranty and Limited Remedy. EnfoTrace warrants the installation of the location device by EnfoTrace or an authorized installer against defects in workmanship for a period of ninety days. If the installation is defective as verified by EnfoTrace, EnfoTrace or an authorized installer will re-perform the installation at no expense to You.
(a) Description of Services. The Location devices function as GPS and cellular transceivers that can be installed and operate in a vehicle as long as the vehicle's electrical system is properly maintained. If properly installed, the Location device will enable You to view Your vehicles' whereabouts or send specific commands to the Location device by logging into EnfoTrace's website at www.EnfoTrace, 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 Location device 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 Location device is assigned to the Service Plan that has been selected by You for that location device System usage beyond the number of access units included under the selected Service Plan will be invoiced at EnfoTrace'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 Location device covered under such selected Service Plan. Unused access units may not be applied to other Location device or to another month's additional usage. (c) EnfoTrace's Test of Services. You acknowledge that EnfoTrace may, for its internal test and control purposes, without charge to You, locate or communicate with one or more of Your Location device. (d) Use of Services. The Services are solely for the purpose of allowing You to locate and communicate with your Location device, and may not be resold or otherwise offered to or used by third parties, unless You have entered into a EnfoTrace 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 EnfoTrace 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 EnfoTrace of Changes. You represent that the information contained on the front of this Agreement provided to EnfoTrace by You is complete and accurate. You will immediately notify EnfoTrace 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 Location device to other vehicles, You must notify EnfoTrace and provide the appropriate data information prior to such transfer and installation.
You shall pay EnfoTrace in accordance with the terms stated in this Agreement, at such place as EnfoTrace 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. Billing for the first and last period shall be prorated based on the number of days the Services are provided in such period. Incremental charges and other service charges, including, without limitation, activation fees and charges for additional access units, are billed in arrears. 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). ENFOTRACE MAY SUSPEND OR TERMINATE THE SERVICES (INCLUDING DISABLING YOUR ACCESS TO 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 agree to reimburse EnfoTrace for all costs of collection or enforcement of this Agreement, whether or not suit is filed, including, but not limited to, reasonable attorneys' fees, incurred by EnfoTrace.
EnfoTrace warrants the Location device against defects in materials and workmanship for a period of one year from the date of installation. If a Location device is found to be defective in materials or workmanship during the limited warranty period, EnfoTrace will repair or replace the Location device at its discretion and at its expense. EnfoTrace 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 EnfoTrace will repair or replace (at EnfoTrace's option) any verified failed Location device component, including antennas and interconnected cables.
Your sole remedy for breach of any warranty is the right to repair or replacement of the defective Location device and the right to receive a credit or refund (at EnfoTrace's discretion) on Services not provided for reasons within EnfoTrace'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 EnfoTrace office. EnfoTrace 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 EnfoTrace; and (d) mark the RMA number prominently on the outside of the carton. Products received without an RMA number will be returned freight collect. EnfoTrace will return the repaired products prepaid and fully insured. Alternatively, at EnfoTrace's option, EnfoTrace may remove and reinstall the products.
EnfoTrace is not obligated to provide the limited warranties or maintenance services if there has been any unauthorized alteration, modifications, or repair of the Location device, if there is use with the Location device of accessories or devices not approved by EnfoTrace, 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 transmission problems caused by inadequate or improper antenna (not provided by EnfoTrace), reception problems caused by an inadequate signal level in the operating area, damage due to exposure to the elements, failure to install or use the Location device 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 ENFOTRACE HAS THE AUTHORITY TO GRANT ANY OTHER WARRANTY TO YOU, WRITTEN OR ORAL. You acknowledge that the Services are based upon the Wireless Service™ furnished to EnfoTrace by cellular providers ("Cellular Providers") utilizing cellular telephone service furnished to Cellular Provider by one or more participating wireless service carriers ("Participating Carriers") pursuant to agreements between Cellular Provider and such Participating Carriers and subject to terms, conditions and limitations therein set forth. 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 THE SERVICES, 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. You have no contractual relationship with any Participating Carrier and You are not a third party beneficiary of any agreement between EnfoTrace, Cellular Provider and/or any Participating Carrier. You acknowledge and agree that the Participating Carrier shall have no legal, equitable or other liability of any kind to the You. Subject to Federal Communications Commission local number portability rules, You have no property right in any number assigned to You in connection with Your use of the Services and You acknowledge that any such number can be changed from time to time. You acknowledge that Service may be temporarily refused, interrupted, curtailed or limited because of atmospheric, terrain, other natural or artificial conditions and may be temporarily interrupted or curtailed due to usage concentrations, modifications, upgrades, relocation and repairs of transmission facilities. You further agree that neither EnfoTrace nor the Participating Carrier shall be responsible for such interruptions of Service or the inability to use the Service outside of the Coverage Map. You acknowledge that neither EnfoTrace nor the Participating Carrier guarantees the security of wireless transmissions and neither EnfoTrace nor the Participating Carrier will be liable for any lack of security relating to the use of the Service. You expressly acknowledge and agree that the liability and obligations of Participating Carrier to You under the Your agreement for services with any Cellular Provider or Participating Carrier are strictly controlled and limited by the Participating Carrier's tariff, if any, and the laws, rules and regulations of the Federal Communications Commission and other governmental authorities which from time to time have jurisdiction. In any event, 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 Provider and/or any supplier of services to Provider arising in any way in connection with the You agreement, for any cause whatsoever, including but not limited to any failure or disruption of service provided, shall be limited to payment by Provider of damages in an amount equal to the amount charged to You for Service provided under this You agreement. In no event shall Provider and/or the underlying wireless service carrier be liable for any cost, delay, failure or disruption of Service, lost profits, or incidental, special, punitive or consequential damages. In no event shall EnfoTrace and/or the Participating Carrier be liable for the failure or incompatibility of any equipment utilized by You in connection with the Service, other than equipment provided by EnfoTrace or expressly authorized by EnfoTrace hereunder. You shall use all equipment at Your own risk. You shall indemnify, defend and hold EnfoTrace, the Participating Carrier and the respective officers, employees and agents of each of them harmless from and against all claims, causes of action, losses, expenses, liability or damages (including reasonable attorneys' fees and costs), and including without limitation for any personal injury or death, arising in any way directly or indirectly in connection with this Agreement; the provision or use of the Services; or the use, failure to use or inability to use any number. This provision shall survive the termination of this Agreement. You acknowledge that this Agreement is assignable by EnfoTrace without your consent. In addition, Your Service may be temporarily suspended or permanently terminated with or without notice in the event that EnfoTrace's agreement with the Participating Carrier is terminated. You waive any and all claims against EnfoTrace and the Participating Carrier for such suspension or termination.
ENFOTRACE 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 ENFOTRACE'S LIABILITY TO YOU EXCEED THE AMOUNT PAID BY YOU FOR THE LOCATION DEVICES OR THE SERVICES IN QUESTION. ENFOTRACE 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 ENFOTRACE 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 AND, IN SUCH CASES, SUCH LIMITATIONS WILL BE ENFORCED TO THE FULLEST EXTENT PERMITTED BY LAW.
EnfoTrace shall have no liability for a failure to provide, or for delay in providing, the Location device, the Services or maintenance due directly or indirectly to causes beyond the control of EnfoTrace or its subcontractors. If EnfoTrace is unable to wholly or partially perform the Services because of any cause beyond its control, EnfoTrace may terminate this Agreement without any liability to You, other than refund of any amounts paid for the undelivered Location device or Services.
After the end of the first year following execution of this Agreement by EnfoTrace, EnfoTrace 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 EnfoTrace's execution of this Agreement.
This Agreement shall remain in full force and effect for a period of one year from the date this Agreement is executed by EnfoTrace, and shall be automatically renewed and extended without action by any party for additional periods of one year; provided, however, that either EnfoTrace 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. Exceptions to the automatic annual renewal is the twelve (12) month one-time payment renewal, this renewal is based on customer acceptance of continued billing. Notwithstanding the foregoing, this Agreement shall terminate immediately without liability if the authorizations held by EnfoTrace necessary to provide the Services hereunder are revoked by the Federal Communications Commission.
No amendment or modification hereof shall be binding upon EnfoTrace unless such amendment or modification is in writing signed by an authorized officer of EnfoTrace. 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. Neither this Agreement nor any of Your rights or obligations hereunder may be assigned by You without EnfoTrace's prior written consent; provided, that EnfoTrace shall have the right to assign any of its rights and obligations hereunder to any person or entity. Subject to the foregoing limits on assignment and delegation, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors, and assigns. This Agreement does not create, and shall not be construed as creating, any rights or claims enforceable by any person or entity not a party to this Agreement. This Agreement shall be interpreted under the laws of the State of California. Each party irrevocably (a) consents to the exclusive jurisdiction of the courts of the State of California and of the United States for any judicial district located within the State of California invoked in any action or proceeding relating to this Agreement, the breach hereof, or the transactions contemplated hereby, and (b) consents to the exclusive venue of such action in the County of Orange, California (or any judicial district of a court of the United States as shall include the same).