1. General Terms and Conditions: THE GENERAL TERMS AND CONDITIONS SET FORTH ON THIS FORM (“Terms”) TOGETHER WITH THE SALES ORDER FORM, WHICH REFERENCES AND INCORPORATES THESE TERMS, INCLUDING ANY ADDENDA TO SUCH SALES ORDER FORM SHALL COMPRISE THE ENTIRE CONTRACT (“Contract”) BETWEEN SATRACK USA CORP (“SATRACK”) AND THE CUSTOMER IDENTIFIED ON THE SALES ORDER FORM (“CUSTOMER”) FOR THE PURCHASE OF THE SATRACK SERVICES (“Services”) AND PRODUCTS (“Products”) SPECIFIED ON THE SALES ORDER FORM OR ADDENDA. SATRACK WILL NOT BE BOUND BY ANY TERMS OF CUSTOMER’S ORDER FORM THAT ARE INCONSISTENT WITH THE CONTRACT. All other terms, conditions, variations to these printed Terms, term sheets, order forms or purchase orders are excluded unless SATRACK and CUSTOMER agree in a writing signed by the parties’ authorized representatives to incorporate such additional terms into this Contract. If the terms and conditions in this Contract conflict with any terms and conditions in CUSTOMER’s order form or in any other document, the terms and conditions of this Contract shall govern. Unless otherwise, expressly agreed by the parties in writing, additional purchases of Services are subject to the Terms expressly incorporated by reference into the Sales Order Forms governing such additional purchases. The terms of this Contract shall supersede all prior terms, understandings or contracts between CUSTOMER and SATRACK. If any part of this Contract should be found to be invalid or unenforceable by a court or other competent authority, then the rest shall not be affected. CUSTOMER acknowledges and agrees that any document, contract or arrangement between SATRACK and CUSTOMER may validly be signed electronically by either party. Any notice to be given pursuant to this Contract by either of the parties shall be in writing and delivered to the address identified on the Sales Order Form. In the case of CUSTOMER, that address shall be the “Billing Address”. CUSTOMER agrees to notify SATRACK within 30 days of any change in CUSTOMER’s trade name, address, or phone number.
2. Contract Term: One Year. The Contract Term shall commence upon the execution of the Sales Order Form by CUSTOMER. That date shall be the “Effective Date” of the Contract. Addenda to the Sales Order Form, which add or modify GPS Devices or other Products or Services between SATRACK and CUSTOMER, shall not affect the Effective Date of the Contract.
3. Acceptance of Products: CUSTOMER shall have ten days after delivery to inspect and to test each GPS device shipped by SATRACK. During such period, if CUSTOMER determines that any such GPS device fails to meet the specifications set forth in SATRACK’s documentation, the CUSTOMER may reject such GPS device by notifying SATRACK in writing of such rejection. Any GPS device not rejected by the CUSTOMER within this acceptance period under this Section shall be deemed accepted by the CUSTOMER.
4. Prices, Taxes, Payment: Any written price quotation, either pursuant to this Contract or any other form, shall become void unless accepted by CUSTOMER within thirty (30) days of the date thereof, unless sooner revoked or rejected by SATRACK. All payments to SATRACK exclude taxes unless specifically stated. CUSTOMER is responsible for payment of all applicable taxes, however designated or incurred in connection with the transactions under this Contract, and agrees to reimburse SATRACK for any taxes paid on its behalf. In cases where the GPS Device (or “Device”) is purchased, payment for parts and the GPS Device, which amounts appear on the Sales Order Form, are due at signing of this Contract. In the case of a lease arrangement, a deposit (which appears on the Sales Order Form) will be collected at the signing of the Contract. At the end of the Contract Term, if the GPS Device is returned in good working order, the deposit will be returned to the CUSTOMER.
SATRACK Monthly Fees, which amounts appear on the Sales Order Form, will be charged monthly in advance. Terms of payment for the monthly SATRACK Services are first and last month (as an early termination deposit), which are due at the signing of this Contract. Monthly invoices are to be paid net five (5) days from the date of the invoice. In the event that payment is not received within such five-day period, service may be suspended by SATRACK, at its sole discretion. Any failure by CUSTOMER to make timely payment of any obligation under this Contract shall be deemed a material breach and SATRACK may immediately suspend or terminate service to CUSTOMER, without liability. If CUSTOMER promptly cures any such breach (i.e. within 10 days), SATRACK shall reactivate service upon payment by CUSTOMER of SATRACK’s most current restoration fee then in effect, which shall be no less than $50.00 per device. Additionally, if any proceeding is brought by or against CUSTOMER under bankruptcy or insolvency laws, SATRACK shall be entitled to cancel any order by CUSTOMER then outstanding and SATRACK may suspend or terminate service to CUSTOMER, without liability. The right to terminate and suspend service in the event of breach shall be in addition to all other remedies available to SATRACK.
Any unpaid balance shall bear interest at the rate of 1 1/2 % per month, or the maximum amount allowed by law, if lower. A late charge of $10 shall be assessed for every month a balance remains unpaid and shall be prorated on a daily basis for each day the payment is overdue. The service billing cycle will begin ten (10) days after the Products are shipped to CUSTOMER regardless of whether the Products have been installed in CUSTOMER’s vehicles or assets. SATRACK may perform a credit verification of CUSTOMER, as SATRACK deems necessary in its discretion. The amount of credit available to the CUSTOMER may be changed or withdrawn completely by SATRACK at any time. On any order for which credit is not extended by SATRACK, shipment or delivery shall require, at SATRACK’s election, cash with order (in whole or part), or C.O.D. or sight draft attached to the bill of lading or other shipping documents, and all costs of collection shall be paid by CUSTOMER.
5. Title, Delivery, and Risk of Loss: SATRACK shall deliver the GPS device to a common carrier for shipment within fifteen (15) days of the date the applicable Sales Order Form or Addendum is executed by CUSTOMER. Risk of loss shall pass to CUSTOMER at the time the GPS Device is delivered to such common carrier. SATRACK shall not be liable for any delay in the transportation of the GPS Device or any other Product. SATRACK will not be charged with any liability for delay or non-delivery of the GPS Device, when caused by any cause beyond the reasonable control of SATRACK. In case of a lease plan, title to the GPS Device shall at all times remain with SATRACK. SATRACK may enter the CUSTOMERs property to repossess the GPS Device if payments are not received in full by their due dates.
6. Self-installation: In the event that installation is carried out by CUSTOMER, CUSTOMER’s employees, agents, representatives, designated sub-contractors or anyone else acting on behalf of under the control of CUSTOMER (“Self-install”), SATRACK shall not be liable for any loss or damage whatsoever, arising directly or indirectly, as a result of any negligence or failure to follow SATRACK’s written instructions in installing the GPS Device.
7. Express Warranty: Unless otherwise set forth herein, SATRACK warrants that the GPS Device will perform substantially in accordance with its documentation during the 1 year period from the date the Sales Order Form or Addendum adding the GPS Device is executed by CUSTOMER. Warranty coverage is not available if CUSTOMER is in breach of this Agreement or if the GPS Device failure is due to any of the following reasons: (i) physical damage caused by negligent/improper handling and treatment of the Device; (ii) damage caused by water or any other liquid; (iii) tampering with the Device or associated peripherals or the vehicle itself e.g. intentionally denying power to the device; (iv) improper installation; (v) cutting or otherwise impairing the Device connector harness; (vi) cutting or otherwise impairing the antenna and/or antenna cables; (vii) defects or damage caused by the use of non-SATRACK branded or approved products, accessories or other peripheral equipment; (viii) SATRACK serial number has been removed or defaced; or (ix) any other circumstance that SATRACK deems to constitute intent on the part of the CUSTOMER, vehicle driver or any other party to purposefully impair the functionality of the Device.
If Warranty coverage applies, SATRACK will first attempt to repair the Device and/or replace the defective part. If it is unable to do so, SATRACK will provide the CUSTOMER with a replacement Device and/or peripherals. The replacement Device may be a refurbished product. Refurbished Devices are previously used, reconditioned and tested Devices, which must pass SATRACK’S quality control standards. Replacement Devices are covered under warranty for the greater of (i) the balance of the remaining warranty period of the original Device or (ii) ninety (90) days from date of activation of the replacement Device. The scope of warranty coverage on the replacement Device will match the scope of warranty coverage of the original Device. CUSTOMER will provide SATRACK reasonable access to the vehicle to perform such repairs or replacements. In no event will SATRACK be liable for loss of use of the vehicle when the GPS Device is being repaired or replaced.
All materials replaced by SATRACK under this warranty coverage become the property of SATRACK. CUSTOMER isrequired to return the defective Device to SATRACK before receiving the Replacement Device.
The above warranty provisons are CUSTOMER’S sole and exclusive remedy for any breach of the Device Warranty. SATRACK EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. Nothing herein shall be construed as providing or intending to provide a manufacturer’s warranty to CUSTOMER nor to any clients, customers, or agents of CUSTOMER.
8. Intellectual Property Rights: SATRACK retains all SATRACK owned Intellectual Property rights in the GPS Device and Services. Copyright and all other intellectual property rights subsisting in SATRACK’s Services is owned by SATRACK or the providers of such information. CUSTOMER may use information retrieved from the Services only for its own use which means that CUSTOMER may not sell, resell, retransmit or otherwise make the information retrieved from the Services available in any manner or on any medium to any third party unless CUSTOMER has obtained SATRACK’s prior written consent.
9. Coverage and Data Transmission: The GPS Device and SATRACK’s Services are dependent on the coverage and calling areas of cellular networks owned and operated by third parties. Actual coverage and operation of the GPS Device depends on system availability and capacity, system and GPS Device upgrades, repairs, maintenance, modifications and relocation, CUSTOMER’s ‘s GPS Device, terrain, signal strength, structural conditions, weather and atmospheric conditions, governmental regulations, suspected fraudulent activities, acts of God and other conditions beyond SATRACK’s reasonable control. The GPS Device and SATRACK’s Services are dependent upon the availability of the Internet, which is owned and operated by and accessed through third parties. SATRACK shall use commercially reasonable efforts to minimize the effects of any disruption or degradation to the CUSTOMER, but shall not be liable to the CUSTOMER for any loss or damage, whether resulting directly or indirectly from the unavailability of any of the services, degradation of the accuracy of the information or the failure of the products.
10. Limitation of Liability: SATRACK does not warrant that the functions contained in the GPS Device or its Services will meet CUSTOMER’s requirements or that the operation of the GPS Device or its Services will be uninterrupted or error free. SATRACK shall not be responsible for and shall have no liability for lost profits, loss of revenue, or any special, punitive, exemplary, indirect, incidental or consequential damages. SATRACK’s maximum liability for all claims relating to or arising under this Contract or its relationship with CUSTOMER (whether in tort, contract, negligence or otherwise) shall not exceed one year’s Services fee or the total fees received by SATRACK from the CUSTOMER for the Services, whichever is less.
11. Force Majeure: Notwithstanding anything else in this Contract, no default, delay or failure to perform on the part of SATRACK shall be considered a breach of this Contract if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of SATRACK, including without limitation, failure of a GSM/GPRS or cellular network or the Internet network, strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.
12. Termination: Without prejudice to any other rights or remedies to which either party may be entitled, either party may terminate this Contract without liability to the other party if that other party commits a material breach of any of the terms of this Contract, and (if such a breach is remediable) fails to remedy that breach within ten (10) days of being notified in writing of the breach, or if either party becomes the subject of a petition in insolvency or any other proceeding relating to insolvency, receivership, examinership or liquidation (each an “Insolvency Event”). In the event of termination by SATRACK for CUSTOMER’s material breach or an Insolvency Event concerning CUSTOMER, CUSTOMER shall pay allService Fees and other fees covering the remainder of the Contract Term under each Sales Order Form or Addenda then in effect and such amounts shall be accelerated and paid by CUSTOMER in a lump sum payment due within 10 days of the effective date of termination. Upon the termination or expiration of this Contract, for whatever reason, CUSTOMER shall immediately return to SATRACK all SATRACK property.
13. Renewal: At the end of the Contract Term, this Contract will renew automatically for another one year term unless either party provides notice of cancellation to the other in writing at least 30 days before the end of the Contract Term. The Contract will continue to automatically renew for additional one year terms unless cancelled by either party 30 days before the end of each new contract term.
14. Assignment: CUSTOMER shall not assign its order, this Contract or any interest therein or any rights hereunder without the prior written consent of SATRACK.
15. Acknowledgement: CUSTOMER acknowledges that, as with any maps or driving directions, CUSTOMER should always recheck directions and driving conditions for accuracy and confirm that the road still exists, be aware of construction and other hazards and follow all safety precautions and law. The Products and the SATRACK Services are to be used only as an aid in planning.
16. Security Interest: SATRACK reserves, until full payment has been received, a purchase money security interest in the GPS Device and Products. CUSTOMER agrees to execute any document appropriate or necessary to perfect the security interest of SATRACK, or in the alternative, SATRACK may file this Contract as a financing statement and/or chattel mortgage.
17. Entire Contract: This Contract between CUSTOMER and SATRACK in connection with the Products or parts thereof and Services constitutes the entire Contract between SATRACK and CUSTOMER and supersedes all previous communications, representations and Contracts, whether oral or written, between the CUSTOMER and SATRACK with respect to the subject matter hereof. This Contract may not be modified, supplemented, qualified, or interpreted except in writing signed by CUSTOMER and SATRACK. The failure by SATRACK to enforce at any time any of the provisions in this Contract will in no way be construed as a waiver of such provisions.
It is SATRACK’s policy to retain Vehicle Information and CUSTOMER Data for a period of 6 months following the termination or expiration of the Contract. SATRACK has no responsibility to retain such information for longer than this 6 month period and shall not be liable to CUSTOMER or anyone else for its failure to retain such information for a longer period.
19. Confidentiality: Both SATRACK and CUSTOMER shall treat all information received from the other party that is marked ‘Confidential’ or which is reasonably obvious to be confidential (“Confidential Information”) as it would treat its own confidential information, but in no event shall either party employ less than a reasonable degree of care in protecting the Confidential Information. Neither party shall publish or make available the Confidential Information of the other party to any third parties. Confidential Information includes, but shall not be limited to, pricing, business plans, CUSTOMER lists, operational and technical data and product plans. This Section shall survive termination of this Contract.
20. Governing Law and Venue: This Contract shall be governed by and construed in accordance with the laws of the State of Florida without regard to its conflict of laws principles. The parties hereto also agree to submit to the exclusive jurisdiction of the courts of the State of Florida to resolve any action arising out of or in any way connected to this Contract or its subject matter and to waive any defense that such Florida courts do not have personal jurisdiction over them.
21. Attorney’s Fees and Costs: CUSTOMER agrees to reimburse SATRACK for all charges, costs, expenses and attorney’s fees incurred to enforce or collect the amounts due under this Contract or for any other action or proceeding relating to or arising out of CUSTOMER’s breach of this Contract.