TERMS AND CONDITIONS

These Terms and Conditions, together with the Service Agreement (the “Agreement”) is made and entered into by and between the “agreeing Customer” and Alltrack USA, a Georgia company.

1. CERTAIN DEFINED TERMS.
1.1 Certain Defined Terms. As used in this Agreement: (a) “Tracking Device(s)” means a vehicle mounted wireless tracking device that is designed to interact with the Service, whether sold or branded by Alltrack USA or a third party, excluding all peripheral, ancillary or related accessories; (b) “Services” means Alltrack USA’s data collection and internet-based vehicle location service that uses the Global Positioning System and Tracking Devices for position location reporting and a wireless network operated by one or more third-party network providers for wireless communications, together with any other service (including third party services) offered by Alltrack USA for use in connection with the Tracking Devices, and (c) “Application” means a Alltrack USA-hosted Internet web site that allows you to receive and access data generated by the Services.

2. SERVICES.
2.1 General. In order to access account, vehicle maps and other account information on the internet, subscriber needs a minimum of a dial-up Internet Service Provider (ISP). And a computer that can access the internet. For use with hand held devices, internet access is also needed.

2.2 Travel Data. You are responsible for use of vehicle location data in a responsible manner.

2.3 Access. Alltrack USA will assign you, and you will be responsible for controlling, user name(s) and password(s) which permit you, your employees and independent contractors to access and use the Application. You must promptly notify Alltrack USA of any unauthorized use of the user name(s) or password(s), and you will be responsible for all use thereof prior to such notification. Alltrack USA shall not be liable for any loss or damage arising from any unauthorized use of a user name or password prior to your notifying us of unauthorized use. You shall not assign, transfer or otherwise permit access to the Application except as expressly set forth herein.

2.4 Service Warranty. Alltrack USA warrants that, throughout the Term, the Services (other than third-party provided Services) and the Application will be available and operate in accordance with published specifications, subject to the limitations contained in this Section 2.3 (the “Service Warranty”). The Service Warranty does not include interruption of Service as a result of Internet Unavailability, Wireless Network Interruption Factors, blocked access due to unauthorized use as described in Section 6.1, or force majeure events as described in Section 6.9. As used in this Section 2.3, (a) “Internet Unavailability” means (i) failure or unavailability of Internet access; (ii) unauthorized use, theft or operator errors relating to your telephone, cable or Internet service provider; (iii) bugs, errors, configuration problems or incompatibility of equipment or services relating to your computer or network; or (iv) failure of communications networks or data transmission facilities, and (b) “Wireless Network Interruption Factors” means any wireless network outages or constraints that may occur due to the availability of the wireless network being temporarily refused, interrupted, curtailed or Factors means any wireless network outages or constraints that may occur due to the availability of the wireless network being temporarily refused, interrupted, curtailed or otherwise limited by factors including but not limited to atmospheric, environmental or topographical conditions, physical features such as buildings, tunnels or landmass features, satellite or transponder failure, coverage loss or gaps, capacity constraints, or wireless network provider facilities changes, modifications, updates, relocations, repairs, maintenance or other similar activities necessary for the proper or improved operation of the wireless network. If the Services (other than third-party provided Services) do not perform in accordance with the specifications described herein, your sole remedy shall be to receive a credit of charges for each day during which your ability to access and use the Services or Application was materially impaired, based on the total number of impaired Tracking Devices.

2.5 Network Issues. You will be solely responsible for the choice of an Internet Service Provider necessary to access the Application and for all related fees and expenses; Alltrack USA shall have no liability for the Internet connection between your facilities and the Alltrack USA server hosting the Application. Certain features and/or functionality of some cellular-based Services may be limited in roaming areas. Over time, wireless network or satellite provider requirements may change and equipment may need to be upgraded to accommodate such changes. You may be responsible for costs related to such upgrades, and Alltrack USA provides no guarantee that Services will continue to be available if required upgrades are not made. Alltrack USA will notify you in writing as soon as reasonably practicable after receiving notice from the wireless network or satellite provider that upgrades will be required.

2.6 Data Retention. You are solely responsible for establishing any long-term data retention and retrieval requirements. Alltrack USA makes no guarantee that access to such travel data will be available after 90 days.

3. INVOICING AND PAYMENT.
3.1 Invoicing and Payment. Charges for the Services will be invoiced at 3, 6 or 12 month intervals before the active tracking period being paid for. Other than during periods of malfunction reported to and acknowledged by Alltrack USA, such equipment is deemed “active” at all times during the Term, regardless of the status of the vehicle in which it is installed.

Service cannot be temporarily suspended. This is because an AT&T 3G cellular mini-SIM (Subscriber Identification Module) card installed in the device is either On or Off; nothing inbetween. If service is stopped, to re-start service, the device needs a new mini-SIM card installed by Alltrack USA.

3.2 Credit Card Authorization. If you elect to pay by credit card, by providing credit card information (on the Order Form or otherwise), you authorize us to initiate debit entries to such card account for the charges on a monthly basis and for any other amounts due hereunder at any time. You understand that if a debit is rejected for any reason, you may be charged additional fees, and you agree to hold us harmless from any consequences of acting in accordance with this authorization. You agree that you will remain responsible for all payments due hereunder if funds cannot be charged to the account, and you agree to pay us for any expenses incurred for unsuccessful debit attempts.

4. TERM AND TERMINATION.
4.1 Term. The term of this Agreement shall commence upon the date agreed to, and shall continue in effect until the terminated by either party.

4.2 Termination. The occurrence of any of the following is a material breach of this Agreement and shall allow the non-breaching party to terminate for cause upon notice after the expiration of the applicable period of cure, if any: (i) your failure to pay all sums which you are obligated to pay after notice that the sums are due; (ii) your use of a Tracking Device, the Service or the Application in violation of the restrictions in Section 5.1 below; (iii) any event which would constitute a material breach of any other contract between you and Alltrack USA or with any third party for any lease or financing of the Tracking Device(s); or (iv) any material breach under this Agreement by either party other than those listed above, which is not cured within 30 calendar days after the breaching party receives written notice of the breach.

5. RETURN OF PRODUCT.
5.1 Condition of product being returned. Product must be complete and re-sellable or deductions will be made from refund.
5.2 Return Policy. Both the Wired & Plug-in versions of product arrive to customers ready-to-track with services in place that include: AT&T Cellular connectivity, Tracking on our website, DOT Speed Monitoring & Cellular/Email Alerts.
If you have the product for a number of months without using it, we still incur costs of having everything set up. It’s only fair that you reimburse us for these costs.
* Within 30 days = Full refund
* 31 days – 60 days = Refund less $15.00
* 61 days – 90 days = Refund less $30.00
* 91 days – 120 days = Refund less $45.00
* 121 days and over = No Refund available

– The Start Date is the day that you receive the product.
– The End Date is the day that you mail it back to Alltrack USA. Proof of this date is determined by: the date it was shipped will be on the UPS or USPS shipping label; or via the tracking #.

6. OTHER TERMS.
6.1 License; Restrictions. Alltrack USA hereby grants you, for use during the Term only, a non-exclusive, non-transferable (except as set forth herein), license to use the Application and Service, solely in conjunction with the authorized use of Tracking Devices installed on your or your independent contractors’ vehicles. You shall not attempt to reverse engineer or clone the Tracking Device or the Application, and Alltrack USA shall have the right to block your access to the Application and Service in the event your use interferes with the operation and utilization of the Service by any other party, provided Alltrack USA uses reasonable efforts to provide advance notice and opportunity to cure. Alltrack USA and/or its licensors expressly reserve and retain all right, title and interest in and to their respective proprietary information and materials, including but not limited to, all intellectual property rights not expressly granted hereunder.

6.2 Limitation of Liability; Exclusive Remedies. Alltrack USA’s entire liability and your sole and exclusive remedies for any damages arising from the performance or nonperformance under this Agreement shall be as follows:

6.2.1 For a breach of the Service Warranty, your sole remedy is to receive a credit of Service charges for each day during which your ability to access and use the Service or Application was materially impaired, based on the total number of Active Tracking Devices impacted.

6.2.2 For claims other than a breach of the Service Warranty, Alltrack USA’s total liability shall be limited to direct damages proven in an amount not to exceed the amount you paid for Service during the twelve (12) month period immediately preceding the earliest date on which the claim arose.

IN NO EVENT SHALL Alltrack USA OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, NON-COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA OR BUSINESS OPPORTUNITY OR OTHER INCIDENTAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE ANY EQUIPMENT OR SERVICE, EVEN IF Alltrack USA OR SUCH AFFILIATE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A LIMITED REMEDY SET FORTH IN THE CONTRACT FAILS OF ITS ESSENTIAL PURPOSE.

6.3 Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES SPECIFICALLY SET FORTH HEREIN OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, THE SERVICE PROVIDED UNDER THIS AGREEMENT IS PROVIDED “AS IS” AND THERE ARE NO OTHER WARRANTIES MADE BY Alltrack USA, EXPRESS, IMPLIED, OR ARISING OUT OF A COURSE OF DEALING, USAGE OR TRADE PRACTICE, INCLUDING, BUT NOT LIMITED TO, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Alltrack USA MAKES NO WARRANTY OR COMMITMENT HEREUNDER WITH RESPECT TO ANY EQUIPMENT OR HARDWARE; ANY SUCH WARRANTIES OR COMMITMENTS SHALL BE GOVERNED BY SEPARATE AGREEMENT BETWEEN YOU AND THE PROVIDER OF SUCH EQUIPMENT.

6.4 Indemnification. You shall indemnify Alltrack USA, its successors and assigns and each of their respective directors, officers, employees and agents against any and all losses, claims, damages or expenses (including attorneys’ fees) arising out of or related to any personal injury to or death of any person or persons and any loss or damage of any property or any interruption of services which are caused or claimed to have been caused directly or indirectly from your (including your employees’ or independent contractors’) negligent or intentional misuse or installation of the Tracking Devices, the Service or the Application.

6.5 Choice of Law, Venue and Attorney’s Fees. This Agreement shall be governed by and construed under the laws of the State of Georgia without reference to its conflict of laws provisions. All disputes arising under this Agreement will be heard only by a court of competent jurisdiction in Fulton County, Georgia and the parties hereby submit to the exclusive jurisdiction of such courts for the purpose of litigating such disputes. If either party commences an action arising out of or in connection with this Agreement, the prevailing party shall be entitled to recover from the losing party reasonable attorneys’ fees and costs of suit.

6.6 Assignability. Neither this Agreement, nor any rights, duties nor interest herein shall be assigned, transferred, subcontracted or sublicensed by you without Alltrack USA’s prior written consent, not to be unreasonably withheld. Any such action without consent shall be void and shall constitute a material breach entitling Alltrack USA to terminate this Agreement. Notwithstanding the foregoing, Alltrack USA may condition its provision of Service to any transferee upon Alltrack USA’s approval of transferee’s creditworthiness, the payment by transferee of a re-licensing fee and/or required upgrades of the Tracking Devices at transferee’s expense. Subject to this Section 6.6, this agreement shall be binding on and inure to the benefit of any successor or assign.

6.7 Severability; Waiver. If any of the provisions of this Agreement are determined to be unenforceable, the enforceability of the remaining provisions shall not in any way be affected or impaired, and the parties shall substitute an enforceable provision for the affected provision which approximates the intent and economic effect of the affected provision as closely as possible. The waiver by any party of a breach of any of the provisions of this Agreement shall not operate as a waiver of any subsequent breach.

6.8 Survivability. The following provisions shall survive any expiration or complete termination of this Agreement: 1.1 (Certain Defined Terms), 2.6 (Data Retention), 3 (Invoicing and Payment; Taxes), 4.3 (Effect of Termination) and 6 (Other Terms).

6.9 Force Majeure. Except for the payment of money, neither party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by acts of nature, strikes, acts of terrorism, war, riot or other civil disturbances, compliance with governmental laws or orders (including the FCC), delay or performance failure of third parties (including suppliers), or other events which are beyond the reasonable control of such party, provided that such party gives prompt written notice of such condition and resumes its performance as soon as reasonably possible.

6.10 Export Compliance Assurance. You understand that Alltrack USA is subject to regulation by agencies of the United States government, which prohibits export or diversion of certain products to certain countries. You warrant that you will comply with Alltrack USA’s guidelines relating to export compliance and will not export any Tracking Devices outside of the United States without prior approval of Alltrack USA.

6.11 Entire Contract. This Agreement (including all exhibits, addendums, and schedules hereto, which are hereby incorporated by reference) comprises the entire understanding, agreement and representations of the parties concerning the subject matter hereof, and supersedes all prior writings, discussions, representations and + understandings with respect thereto. Any additional or different terms or conditions proposed by you, contained in any purchase order or any payment instrument are rejected and shall be of no force and effect unless expressly agreed to in writing by Alltrack USA. In order to be binding, any amendment or modification of any of the provisions of this Agreement must be in writing and signed by a duly authorized representative of each party. In the event of a conflict between the above terms and conditions and any written modification, the document later in time shall prevail.

6.12 Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

6.13 Construction. The parties agree that “including” and other words or phrases of inclusion used herein shall not be construed as terms of limitation, so that references to “included” matters shall be regarded as nonexclusive, non-characterizing illustrations and equivalent to the terms “including, but not limited to,” and “including, without limitation.” The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. The captions and other headings contained in this Agreement are inserted for convenience of reference only and shall not affect the interpretation or meaning of this Agreement.

6.14 Acknowledgments. By agreeing to this Agreement: (a) you acknowledge that you have received, read, understand and agree to all of the terms and conditions hereof; (b) you have an unconditional obligation to make all payments while using the service; (c) you confirm that the person signing this Agreement has the authority to do so on your behalf; and (d) you represent that the information in any credit application, THESE TERMS AND CONDITIONS, TOGETHER WITH THE ORDER FORM AND ANY EXHIBITS, ADDENDA OR AMENDMENTS THAT ARE AGREED TO IN WRITING BY BOTH PARTIES, CONSTITUTE A SINGLE AGREEMENT, AND THE PARTIES AGREE THAT THEIR ELECTRONIC OR WRITTEN SIGNATURES ON THE ORDER FORM EVIDENCE THEIR AGREEMENT TO BE BOUND HEREBY.