These Terms and Conditions (these “Terms”) are a part of the Position Plus(“PP”) Commercial Equipment and Service Subscriber Agreement (this “Agreement”) between and the subscriber (“You” or “Your”) named as signed on this Agreement, with respect to PP Asset Protection Units (each, an “GPS DEVICE”) and related installation and communication data services, as further described below (“Services”).
1. ACCEPTANCE; CANCELLATION
(a) PP is not bound by any terms and conditions in this free trial unless expressly agreed to in writing by an officer of PP. This Agreement and the Product User Manual available at PP’s website at www.PositionPlus.com (“Product User Manual”) 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 GPS DEVICE’s, Services, installation and maintenance purchased under this Agreement. The Services commence as of shipment date of the device.
2. SHIPPING AND HANDLING
Any requested or required delivery that exceeds the cost of normal ground delivery shall be invoiced to You at PP’s then current flat rates.
3. DELIVERY; RISK OF LOSS; TITLE; SECURITY INTEREST
All deliveries are FCA/FOB PP’s warehouse. Shipping or delivery dates are good-
faith estimates only.
IN NO EVENT SHALL PP BE LIABLE FOR INCREASED COSTS, LOSS OF PROFITS OR GOODWILL OR ANY OTHER, GENERAL, SPECIAL, INCIDEN-TAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES DUE TO LATE OR NON-DELIVERY OF GPS DEVICE.
The GPS device must be installed in Your vehicles in accordance with PP’s specifications. The GPS DEVICE must be installed only by You, PP or an authorized installer. Unauthorized or improper installation voids PP’s limited warranty.
5. LOCATION AND DATA COMMUNICATION SERVICES
(a) Description of Services. The GPS DEVICE can be installed and operate in a vehicle as long as the vehicle’s electrical system is properly maintained. If properly installed, the GPS DEVICE will enable You to view Your vehicles’ whereabouts or send specific commands to the GPS DEVICE by logging into PP’s website at www.positionplus.com, using standard web browsers. The Services provided to You are further described, including, without limitation, coverage area, service limitations and proper use thereof, in the Product User Manual. The Services are for vehicle location and communication with Your GPS DEVICE’s 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.
(b) Use of Services. The Services are solely for the purpose of allowing You to locate and communicate with Your GPS device, and may not be resold or otherwise offered to or used by third parties.
(c) 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 PP 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.
(d) Subscriber Information; Informing PP of Changes. You represent that the information contained on the front of this Agreement provided to PP by You is complete and accurate. You will immediately notify PP in writing if there are anychanges in the information contained on the front of this Agreement.
6. PAYMENT; TAXES
Your first year of service is included in this promotion. Additional yearly service after expiration of the term on this Agreement may be purchased for $20.00 per year, per device. 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 User Manual 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). PP may suspend or terminate 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 are liable for all reasonable costs associated with the collection process of you’re delinquent account.
7. LIMITED WARRANTY
PP warrants the GPS DEVICE’s against defects in materials and workmanship for a period of one year from the date of installation. If a GPS DEVICE is found to be defective in materials or workmanship during the limited warranty period, PP will repair or replace the GPS DEVICE at its discretion and at its expense. PP warrants that it will provide the Services in accordance with Product User Manual, but does not warrant complete coverage or that the Services will be uninterrupted or error- free.
8. LIMITED REMEDY
Your sole remedy for breach of any warranty is the right to repair or replacement of the defective GPS device. You shall have no right to receive a credit or refund on Services not provided for reasons under PP’s control. No allowance will be given for any single failure or delay. To obtain warranty or maintenance service, You must contact the local PP office. PP 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 PP; and (d) mark the RMA number prominently on the outside of the carton. Products received without an RMA number will be returned freight collect. PP will return the repaired products prepaid and fully insured. Alternatively, at PP’s option, PP may remove and reinstall the products.
9. WARRANTY AND MAINTENANCE EXCLUSIONS
PP is not obligated to provide the limited warranties or maintenance services if there has been any unauthorized alteration, modifications, or repair of the GPS DEVICE’s, if there is use with the GPS DEVICE’s of accessories or devices not approved by PP, 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 trans-mission problems caused by inadequate or improper antenna (not provided by PP), reception problems caused by an inadequate signal level in the operating area, damage due to exposure to the elements, use with accessories or devices not approved by PP, failure to install or use the GPS DEVICE’s 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 PP has the authority to grant any other warranty to You, written or oral. You acknowledge that the Services are based upon the cellular wireless networks furnished to PP by third party carriers. 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 WIRELESS SERVICE, 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 User Manual) 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.
10. LIMITATION OF LIABILITY
PP 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 PP be liable to You. PP 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 PP 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.
11. INTERRUPTION OF SERVICES; FORCE MAJEURE
PP shall have no liability for a failure to provide, or for delay in providing, the GPS DEVICE, the Services or maintenance due directly or indirectly to causes beyond the control of PP or its subcontractors. If PP is unable to wholly or partially perform the Services because of any cause beyond its control, PP may terminate this Agreement without any liability to You.
12. REVISION OF FEES AND SERVICES
After the end of the first year following execution of this Agreement by PP, PP 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 User Manual in effect on the date of PP’s execution of this Agreement. Yearly fee invoiced annually $20.00 per device.
13. TERM AND TERMINATION; RENEWAL
This Agreement shall remain in full force and effect for a period of one (1) year from the date this Agreement is executed by PP, and shall be automatically renewed and extended without action by any party form additional periods of one year; provided, however, that either PP 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. Notwithstanding the foregoing, this Agreement shall terminate immediately without liability if the authorizations held by PP are revoked by the FCC.
No amendment or modification hereof shall be binding upon PP unless such amendment or modification is in writing signed by an authorized officer of PP. 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. This Agreement is fully assignable by PP to any person or entity and shall inure to the benefit of such assignee or successor. You may not assign this Agreement without the prior written consent of PP, except that You may, without PP’s consent, assign this Agreement (a) to Your parent company, a subsidiary, or an affiliate; (b) to any successor corporation by consolidation or merger; or (c) to any corporation with the authority to carry on a business of a nature transacted by You and to which You have sold all or substantially all of Your assets, provided that You have advised PP in writing of such assignment, and You remain liable for any obligations or liabilities arising under this Agreement.