JAB-TRONIX Terms of Service and purchase agreement
(Effective and Updated as of August 29, 2014, the “Effective Date”)
The following Terms of Service and Purchase Agreement (the “Agreement”) sets forth the terms and conditions of your use of certain services provided by Jab-Tronix, LLC (the “Company”) including asset tracking services, fleet tracking services, vehicle location tracking services, GPS tracking services, or any combination thereof (the “Services”) and your purchase of asset, fleet, or vehicle location tracking devices (the “Devices”) provided by the Company. The terms “you,” “you,” “User,” or “Customer” shall refer to any individual or entity who uses any of the Services or the Devices provided by the Company. If you are agreeing to the Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the Agreement, in which case the terms “you,” “you,” “User,” or “Customer” shall refer to such corporate entity.
Please review the Agreement carefully. By accessing or using the Services or the Devices, you signify acknowledgment, understanding, and compliance with the Agreement. You agree that this Agreement governs any dispute related to the Services or the Devices even if such a dispute arose prior to the Effective Date of the Agreement. If you do not agree to the Agreement, you may not access or use the Services or the Devices.
FROM TIME TO TIME THE COMPANY MAY UPDATE THE AGREEMENT AND YOU MAY ACCEPT THE NEW TERMS AND CONDITIONS OF THE AGREEMENT TO CONTINUE USING THE SERVICES OR THE DEVICES. IF YOU ELECT NOT TO ACCEPT THE NEW TERMS AND CONDITIONS OF THE AGREEMENT, THEN THE COMPANY MAY, IN ITS SOLE DISCRETION, IMMEDIATELY TERMINATE THE AGREEMENT AND DISCONTINUE PROVIDING THE SERVICES ON THE DATE THAT YOU ELECT NOT TO ACCEPT THE NEW TERMS AND CONDITIONS OF THE AGREEMENT.
YOU REPRESENT THAT THE AGREEMENT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN YOU AND THE COMPANY RELATING TO THE SUBJECT MATTER OF THE AGREEMENT.
- SUBSCRIPTION PAYMENTS. Prior to the use of the Services and the Devices, you will provide to the Company a valid form of payment including, but not limited to, a valid credit card number (the “Credit Card”), the expiration date and other information requested by the Company pertaining thereto, and you hereby authorize the Company to charge to the Credit Card the monthly or yearly amount due for use of the Services and the Devices (the “Subscription Fee”). Upon cancellation or expiration of the Credit Card, you will immediately provide a new credit card number, expiration date and other information requested by the Company pertaining thereto. If you have not paid all sums due the 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 the Company for any and all costs and expenses incurred by the Company, including without limitation attorneys’ fees and expenses, in collection of any past due amounts hereunder. You hereby grant to the Company a continuing lien in any of the Devices to secure your timely payment to the Company for the Devices in accordance with the terms and conditions hereof.
- LIMITED SOFTWARE LICENSE. In consideration of the payment of the Subscription Fee, the Company hereby grants to you a nonexclusive, nontransferable license to use the software loaded on the Devices or provided through the servers of the Company solely for the purpose of enabling the Company to provide the Services described herein with respect to the Devices. This limited software license will automatically terminate upon termination of either the Agreement or the Services. You shall not modify, reverse engineer, decompile, or disassemble any licensed software. The Company may update the software on its servers from time to time, with or without notice to you (the “Software Updates”), and the Company hereby grants to you a nonexclusive, nontransferable license to the Software Updates solely for the purpose of enabling the Company to provide the Services.
- LIMITED DEVICE WARRANTY. The Company hereby warrants only to the Customer or the User that first purchased or activated any of the Devices (the “Limited Warranty”), that the Devices will be free from defects in workmanship and materials for a period time from the date that the Customer or the User first purchased the Devices until the Customer or the User ceases payment of the Subscription Fee or violates the Agreement (the “Limited Warranty Period”). The Limited Warranty does not apply to normal wear and tear and does not cover repair or replacement if the Devices are 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 the Company or an authorized service representative of the Company, or reception problems caused by signal conditions or cable or antenna systems outside the Devices. Further, the Limited Warranty does not apply to physical damage of any nature whatsoever to the Devices, including any opening or attempted opening of the Devices, and any such opening or attempted opening of the Devices shall render the Limited Warranty invalid. THE REPAIR OR REPLACEMENT OF THE DEVICES AS PROVIDED UNDER THIS LIMITED WARRANTY IS YOUR SOLE AND EXCLUSIVE REMEDY. THE SOFTWARE LOADED ON THE DEVICES 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. However, some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE 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 LIMITED 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 the 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 Devices. You acknowledge that no affirmation of fact or statement (whether written or oral) made by the Company, its representatives or any other party outside of the Agreement with respect to the Devices shall be deemed to create any express or implied warranty on the part of the Company, its representatives.
- NO SERVICE WARRANTY. The Company makes no warranty under the Agreement with respect to the Services. ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY SPECIFICALLY DISCLAIMED. You assume all risk for loss of or damage to your vehicle and its contents and for personal injury to persons occupying or affected by your vehicle while using the Services, and the Company shall have no liability of any kind or nature to you therefore. You agree that neither the 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 the Company, its representatives, or any other party outside of the Agreement with respect to the Services shall be deemed to create any express or implied warranty on the part of the Company or its representatives.
- NO UNLAWFUL USE. You agree not to use the Services or the Devices for any unlawful or abusive purpose or in any way that interferes with the operation of the Company, the Services, or the Devices. You will comply with all applicable federal, state, or local laws while using the Services or the Devices and will not transmit any communication that would violate any federal, state, or local law, court or regulation.
- RESALE. Resale of the Services or the Devices is prohibited, except by the expressed and prior written consent of the Company.
- INSTALLATION. The Devices must be installed strictly as provided in the installation guide supplied along with the Devices by the Company. YOU UNDERSTAND AND AGREE THAT THE COMPANY IS NOT RESPONSIBLE FOR, SHALL HAVE NO OBLIGATIONS WITH RESPECT TO, AND SHALL HAVE NO LIABILITY FOR, ANY OF THE DEVICES NOT INSTALLED IN ACCORDANCE WITH THIS SECTION.
- LIMITATIONS, EXCLUSIONS & DISCLAIMERS. You agree that the liability of Company is limited in accordance with the provisions of this section. THE COMPANY SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY GENERAL, DIRECT, SPECIAL, INCIDENTAL, LOST PROFITS, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE DEVICES OR 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 THE 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 THE COMPANY FOR ANY CLAIMS ARISING IN ANY WAY IN CONNECTION WITH OR RELATED TO THE AGREEMENT, FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF THE SERVICES, SHALL NOT EXCEED THE PRICE PAID TO THE COMPANY FOR THE DEVICES OR THE SERVICES ON WHICH SUCH CLAIM IS BASED. THE COMPANY SHALL HAVE NO LIABILITY WHATSOEVER TO YOU FOR ANY CLAIMS OF PATENT, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT OR MISAPPROPRIATION OF TRADE SECRETS, MADE AGAINST YOU INCIDENT TO THE PURCHASE OR USE OF THE DEVICES OR THE SERVICES.
- 9. PRIVACY DISCLOSURES AND COMPLIANCE WITH LAWS. You agree to provide any and all disclosures to each owner or operator of a vehicle or asset monitored by you using the Devices or the Services. You agree to take any and all actions as may be necessary to comply with all applicable laws, rules, or regulations with respect to your use of the Devices and the Services and the installation of the Devices in all vehicles or assets.
- TERM. The term of the Agreement shall begin immediately upon your use of any of the Services or the Devices and shall continue until you cease to pay the Subscription Fee. The term of the Agreement may be renewed by you pursuant to renewal procedures which are established by the Company and which may be in effect from time to time.
- TERMINATION OR DISCONTINUANCE OF THE SERVICES. The Agreement or the Services may be terminated at the option of the 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 or (b) your default in payment of the Subscription Fee. The Agreement may also be terminated at the option of the Company at any time with THIRTY (30) DAYS ADVANCE WRITTEN NOTICE to you. In addition to the Company having the option to terminate the Agreement, upon the occurrence of any of the events set forth in this section of the Agreement, the Company shall also have the option to discontinue the Services until the event resulting in such discontinuance is cured by you or otherwise remedied in the 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 fees applicable to the Services or the Devices for such period of discontinuance.
- INDEMNIFICATION. You agree to indemnify, defend and hold the Company and the Company’s officers, directors, employees, agents, contractors, subsidiaries, affiliates, or parent companies (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 the “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 the Devices or the Services, whether authorized or not (i) violating or otherwise breaching of any provision of the Agreement, (ii) acts or omissions in the conduct of your business, including, without limitation, the marketing and sale of the Devices and Services; (iii) statements, representations, warranties or other conduct in connection with any transaction involving the Devices or the Services, other than as expressly provided to you by the Company or otherwise expressly authorized by the Company in writing; and (iv) negligence, recklessness or intentional misconduct. You further agree to indemnify, defend and hold each Indemnified Person harmless from any Claim, including without limitation, for any personal injury or death, in any manner arising out of or relating to (i) the provision, failure, or use of the Devices 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 Devices or Services; (ii) inability to use the Services or the Devices; (iii) the installation of the Devices in the vehicles or assets; or (v) the Company’s refusal to provide the Services because of your failure to (A) pay the Subscription Fee or (B) uphold any provision of the 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 the Agreement, strict liability, failure to comply with any applicable law, or other fault. This provision shall survive the termination of the Agreement.
- USER NAME AND PASSWORD. You acknowledge and agree that you have access to at least part of the Services through a user name and password that you created through the Company’s website. You agree that you will not provide your user name or password to any other unauthorized persons or entities or allow any other unauthorized persons or entities to access the 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 become known by an unauthorized third party you agree to notify the Company immediately.
- ASSIGNMENT. The Agreement is not assignable by you except by the expressed and prior written consent of the Company. Any unauthorized assignment of the Agreement is void. The Company shall have the right to assign the Agreement, in whole or in part, or to subcontract its obligations under the Agreement, in whole or in part, without notice to you and upon such assignment, the Company shall be released from all liability hereunder.
- NOTICES. Except as specifically provided in the Agreement, all notices required hereunder shall be in writing and shall be given by personal delivery, overnight courier service, electronic mail, or first class mail postage prepaid, at the parties’ physical or electronic 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. Electronic notices shall be deemed effective upon successful transmission of an electronic message containing the electronic notice. Notices for you shall be sent to the address you provided to the Company upon signing up for the Services or the Devices. Notices to the Company shall be sent to the address set forth on the Company’s website.
- GOVERNING LAW AND VENUE. The terms and conditions hereof shall be governed by and construed in accordance with the laws of the State of Missouri. 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 St. Charles County, Missouri or the U.S. District Court for the Eastern District of Missouri, sitting in St. Louis, Missouri.
- MISCELLANEOUS. The invalidity, in whole or in part, of any provisions, sections, words, or phrases hereof shall not affect the validity of the remainder of the Agreement. The failure of either the Company or you to enforce at any time any of the provisions, terms, and conditions hereof shall not constitute or be construed to be a waiver of such provisions, terms, or conditions or of the right of such party thereafter to enforce any such provisions, terms, or conditions. You are solely responsible for complying with any orders, rules, or regulations of all applicable federal, state, or local government authorities, pertaining to the purchase, installation, and operation of the Devices or use of the Services. Except as expressly provided herein, no amendment, modification, or waiver of, or supplement to, the Agreement shall be effective, unless it is in writing. 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 the Agreement shall govern notwithstanding any inconsistent or additional terms and conditions of any other document submitted by you.