1. TERMS OF PAYMENT: The Customer agrees to purchase or license from Rocky Mountain Tracking, Inc. ("RMT"), and RMT agrees to sell or license, to Customer, tracking services as described in the Service Quotation attached hereto ("the Service"). Terms of payment for parts and equipment are 100% down, either paid directly to RMT or financed through a RMT -approved financier. All initial amounts due to RMT for the parts and equipment shall be paid in full by the Customer at the time this Agreement is executed. Terms of payment for the monthly RMT tracking services are found in the attached Auto Bill, Activation Sheet, or Lease Agreement as applicable. The Service shall be billed in advance on a monthly basis (If Customer is leasing Equipment and/or Service, then service payments are per terms of lease agreement). Bills for partial month's service will be prorated. Payments containing restrictive endorsements, terms or other statements accompanying any payment shall be ineffective although payment is accepted by RMT. The Customer agrees that RMT shall incur damages, which are difficult to calculate, if the Customer fails to pay any Customer bill by the due date ("Late Payment"). Therefore, for amounts not paid by the due date, RMT may apply, and the Customer agrees to pay, as liquidated damages and not as a penalty, a Late Payment fee per month of 1.5% of the balance carried forward to the next bill .or, if less, the highest amount allowed by law. Customer agrees to pay late charges, as and when billed by RMT, on any unpaid delinquent balance in an amount not to exceed the maximum late charge permitted by law. Customer agrees to pay attorney's fees and expenses RMT incurs to collect any delinquent balance. RMT shall have the right to change the payment terms, in writing with 30 days written notice, extended to Customer or cancel the service, in writing with 30 days written notice, if RMT, in its sole discretion, determines the Customer's financial condition or previous payment record warrants such a change. All customers with declined monthly service fee(s) on the first of each month will be subjected to a $25 processing fee each month the fee(s) are declined. All prices quoted, all orders accepted, and all billings rendered are exclusive of all shipping, federal, state/province and local withholding, excise, sales, use and similar taxes, FCC charges or regulatory fees, or charges imposed by any governmental authority on this transaction. Customer will reimburse RMT for any such tax, fee or charge, at the time of sale or thereafter, that RMT is required to pay.
2. LICENSE: In consideration of the payment of the fees set forth in the herein, and unless otherwise agreed upon in a separate partnership document, RMT grants to Customer a nonexclusive, nontransferable, limited license to access the Service(s) to which the Customer subscribes. Such license includes the right to access the Service(s) made available on RMT's website(s). The Customer may not copy, download, store, publish, transmit, transfer, sell, or otherwise use the Service(s) except as expressively permitted by these terms. The Customer may not sell, rent, lease, lend, time-share, assign, or transfer any right to use the Service(s) to any third party. The Customer may not store the results derived from their use of the Service(s) for the purpose of creating a value-added software application to resell, license, or otherwise to distribute to third parties.
3. WARRANTIES: The Customer Expressly Understands and Agrees that: the Customer's use of the Service is at their sole risk. The service is provided on an "as is" and "as available" basis. RMT expressly disclaims all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement, with the exception of the Limited Warranty for the RMT Tracking Device. RMT makes no warranty that: The service will meet your requirements; The service will be uninterrupted, timely, secure, or error-free; The results that may be obtained from the use of the service will be accurate or reliable; The quality of any products services, information, or other material purchased or obtained by you through the service will meet your expectations; and Any errors in the software will be corrected.
RMT warrants to the Customer only that the RMT Tracking Device(s) purchased to enable RMT's Service will be free from defects in workmanship and materials ("Limited Warranty") according to the original manufacturer's warranty. This Limited Warranty does not apply to normal wear and tear and does not cover repair or replacement of RMT Tracking Device(s) damaged by tampering, misuse, accident, abuse, neglect, inadequate installation, misapplication, alteration of any kind, disaster or defects due to repairs or modifications made by anyone other than RMT or its authorized service representative. In addition, this Limited Warranty does not apply to physical damage of any nature whatsoever to the RMT Tracking Device(s). The RMT Tracking Device does not contain any end user serviceable parts, therefore any opening or attempted opening of the products shall constitute a breach of this Agreement by the Customer. Before returning any RMT Tracking Device(s) under this Limited Warranty, the Customer must call the place of purchase or RMT Customer Service at (970) 207-1023. RMT or authorized stocking Dealer, at its discretion, will repair or replace the RMT Tracking Device(s) in accordance with the terms of this Limited Warranty and send it back to the location of your choice. All returns not covered in Limited Warranty of the RMT Tracking Device(s) and related accessories are subject to a testing fee of $15 plus shipping fees. The Company's Return Policy is defined in Section 9 of this Agreement. Repair or replacement by RMT stated above is your exclusive remedy under this limited warranty. RMT shall not be liable for any special, incidental, consequential or exemplary damages for breach of this limited warranty. RMT disclaims all other warranties, whether express, implied, or. Statutory including but not limited to, all implied warranties of merchantability, fitness for a particular purpose or any warranty arising out of any proposal, specification or sample. Any software provided with the RMT tracking device(s) is provided "as is" without warranty. This limited warranty gives you specific legal rights. You may also have other rights which vary from state to state. Some states may not allow limitation of the duration of warranty, or the exclusion or limitation of special, incidental, consequential or exemplary damages, so the above limitations may not apply to you. The Company warrants, for the Customer's benefit alone, that the Internet-based application conforms in all material respects to the specifications for the current version of the application. RMT has no control over Internet performance or access, the Global Positioning System (GPS) satellite network and the Wireless Data networks that RMT utilizes and therefore disclaims all performance warrantees related to these services. Under some transient conditions (e.g. the mobile assets pass under bridges, through tunnels, etc.) erroneous data, such as speed, location, direction or operational status, may be transmitted. The 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 services are to be used only as an aid in planning. RMT provides technical support via email between the hours of 8:00 AM MST until 5:00 PM MST Monday through Friday excluding standard American holidays. Email support questions may be submitted via the online tracking interface. RMT will use its best efforts to reply via email in a timely fashion.
4. USER ACKNOWLEDGEMENTS: The Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that information presented to Customer through RMT, Inc. or its' merchants ("Content") is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
5. LIMITATION OF LIABILITY & IDEMNITY: The Customer indemnifies RMT against any personal injury or loss of life to any person or damage to property, whichever may occur. The Customer agrees to indemnify and hold RMT and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to, or arising out of your use of the Service, your connection to the Service, your violation of the terms of Service, or your violation of any rights of another.
RMT's total liability with respect to any and all claims, regardless of the form of action, whether in contract, tort (including negligence and produce liability) or otherwise, arising out of or in connection with this use and limited-license agreement or use of any RMT's tracking device(s) or software shall not exceed the price paid to RMT's allocable to the RMT's tracking device(s) which give rise to the claim. In no event shall RMT be liable for any special, consequential, incidental, indirect or exemplary damages, including, but not limited to, loss of profit or revenues, loss of the RMT's tracking devices, loss of data, cost of capital, cost of substitute goods, facilities, services or replacement power, downtime costs or claims of customers for such damages, even if RMT knew of or should have known of the possibility of such damages. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. RMT shall have no liability whatsoever to the customer for the claims of patent, copyright or other intellectual property right infringement and/or misappropriation of trade secrets, made against the customer in connection with the customer's purchase and/or use of the RMT's tracking device(s), or software. Customer's sole remedies for loss or damage, whether direct or indirect, caused by partial or total failure, inability to use or nonperformance of the Software, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, shall be as set forth in this Use and Limited License Agreement.
7. TITLE: Title (and right of possession without legal process) to the RMT Tracking Device(s) sold to Customer hereunder shall remain with RMT or authorized stocking Dealer until the total of all payments due hereunder shall have been made. Customer agrees to do all acts necessary to maintain RMT's title and to perfect a security interest in favor of RMT or authorized stocking Dealer in the RMT Tracking Device(s).
8. DELIVERY AND RISK OF LOSS: Any shipping dates are approximate and are based upon prompt receipt of all necessary information. RMT or authorized stocking Dealers will use reasonable efforts to meet the delivery dates requested by Customer; however, RMT will have no liability whatsoever for delays in delivery for any reason. RMT or authorized stocking Dealer reserves the right, in its sole discretion, to allocate hardware product shipments among all of RMT's or authorized stocking Dealer's Customers. Hardware products held for Customer shall be at Customer's risk and expense. Unless otherwise specified by RMT, delivery will be made F.O.B. point of shipment to Customer. Risk of loss passes to Customer upon delivery to the carrier.
9. RETURN POLICY: A RMT Tracking Device purchased by the Customer may be returned in good working condition to the place of purchase with valid receipt of purchase within ten (10) calendar days from the date of purchase for a refund, in accordance with the RMT Return Policy or authorized stocking Dealer Return Policy in effect at the time of purchase. All hardware product returns to RMT or authorized stocking Dealer are subject to a 30% restocking fee.
10. TERM OF AGREEMENT: This Agreement shall have a term as described noted in the attached Service Quotation or Lease Agreement as applicable. (If Customer is leasing Equipment and Service, then term of agreement is per terms of leasing agreement.). After the term agreed upon per the activation sheet, unless otherwise described in the Service Quotation, a Customer may cancel this Agreement with thirty-one (31) days written notice ("Termination Notice"). Following the receipt of the Termination Notice by RMT, the Customer shall be responsible for payment of the thirty one (31) days of service in addition to RMTâ€™s standard cancellation fee of $150 per account ("Cancellation Fee") unless otherwise noted in the attached Service Quotation or Lease Agreement as applicable. The Company may terminate this Agreement any time by giving the Customer 31 Days notice. The Customer agrees to return to RMT any property, documentation, records, or confidential information belonging to RMT upon termination of this Agreement.
11. EXPORTS: Customer will not export the RMT Tracking Device, directly or indirectly, from the United States of America.
12. ASSIGNMENT: The Company may assign in whole or in part its rights or duties under this Agreement without prior notice to the Customer and upon such assignment RMT shall be released from all liability hereunder. The provisions of this Agreement are for the benefit of the parties hereto and not for any other entity. The delegation or assignment by Customer of any or all of its duties or rights hereunder without RMT's prior written consent shall terminate this Agreement and the Customer shall be subject to all Cancellation Fees and penalties outlined in Section 8 of this Agreement.
13. GENERAL: This Use and Limited License Agreement shall be governed by the laws of the State of Colorado. The invalidity, in whole or in part, of any section or paragraph of this Use and Limited License Agreement shall not affect the validity of the remainder of such section or paragraph. The failure of either party to enforce at any time any of the provisions of this Use and Limited License Agreement shall not constitute or be construed to be a waiver of such provisions or of the right of such party thereafter to enforce any such provisions. The terms and conditions of this Use and Limited License Agreement that by their sense and context are intended to survive the performance by RMT and/or Customer shall survive completion of performance or termination of this Use and Limited License Agreement. Customer is solely responsible for complying with any orders, rules and regulations of the Federal Communications Commission, or any other Federal, State or local governmental authority, applicable to the purchase, installation and operation of the products and/or Services. The provisions of this Use and Limited License Agreement are for the benefit of RMT and the Customer and not for any other person. The delegation or assignment by Customer of any or all of its duties or rights hereunder without RMT 's prior written consent shall be void. RMT shall not be deemed in default hereof for delay, failure in performance or loss or damage due to any of the following force majeure conditions; fire, strike, embargo, explosion, power irregularities, earthquake, nuclear accident, volcanic action, flood, war, water, the elements, labor disputes, civil disturbances, government requirement, civil or military authority, acts of God or public enemy, inability to secure products or transportation facilities, acts or omissions of common carriers or other causes beyond their reasonable control whether or not similar to the foregoing. This Use and Limited License Agreement constitutes the entire understanding between Customer and RMT concerning the purchase of RMT's Service as it relates to the RMT Tracking Device(s) unless superseded by terms laid out in any RMT Global Alliance Partner Agreements. Any prior or contemporaneous written or oral representation, promise, understanding, proposal, agreement, Use and Limited License Agreement, warranty, course of dealing or trade usage not expressly contained or referenced herein are superseded by the terms hereof and shall not be binding on RMT unless agreed to in writing by an authorized representative of RMT at RMT's headquarters in Fort Collins, Colorado. Any modification or waiver of any provision of this Use and Limited License Agreement must be in writing and signed by authorized representatives of both parties.
RMT does not assume and hereby expressly disclaims any obligations or liabilities in connection with the sale of products other than those expressly stated in this Use and Limited License Agreement, and does not authorize any person (including RMT's representatives and authorized Dealers) to assume for RMT any other obligations or liabilities. Customer agrees that RMT's Service, as specified herein, is to be used only for the purposes of determining the speed, location, direction or operational status of the mobile assets for which the Service and the RMT Tracking Device(s) was acquired. Any use of the Service and the RMT Tracking Device(s) other than for determining the speed, location, direction or operational status of the mobile assets shall be deemed a material breach of this Use and Limited License Agreement and Customer is subject to fees and penalties or cancellation of service. In the event that the Customer receives RMT's Service and RMT Tracking Device(s) under a trial arrangement, the Customer shall be liable for all costs associated with repair or replacement of the RMT Tracking Device(s) due to: loss, damage by misuse, accident, abuse, neglect, misapplication, alteration of any kind, defects due to repairs or modifications made by anyone other than RMT or its authorized service representative and physical damage of any nature whatsoever to the surface of the display. Customer agrees that the RMT Tracking Device(s) received under a trial arrangement shall be returned to place of purchase in the same condition as when they were provided to the Customer. This Use and Limited License Agreement shall be subject to review and acceptance by an officer of RMT, Inc. in its exclusive discretion.
15. ARBITRATION AGREEMENT: In the event of a dispute between the customer arising out of or relating to this Agreement, whether by virtue of contract, tort, or otherwise, including but not limited to the interpretation of the terms and conditions of this Agreement, the making of the Agreement, or breach of any provision of this Agreement, RMT and the Customer hereby expressly agree to submit their dispute to binding arbitration for resolution in accordance with the rules and requirements of the American Arbitration Association and the judgment upon award may be entered in any court having jurisdiction thereof in accordance with said Rules. The seat of arbitration shall be Fort Collins, Colorado, USA. The procedural law of this place shall apply where the Rules are silent. The arbitration proceedings shall be conducted in English. RMT and the Customer expressly agree that the Federal Arbitration Act (FAA), 9 U.S.C.S. 1 et. seq., controls any dispute arising out of this action. RMT and the Customer acknowledge and understand that by agreeing to submit their dispute to binding arbitration they are effectively waiving their right to trial by jury as a means of resolving disputes. Furthermore, RMT and the Customer acknowledge that they desire to arbitrate any dispute arising from this Agreement in an effort to resolve such dispute(s) quickly and avoid the cost of litigation. Judgment upon such arbitration award maybe entered in any court having jurisdiction. Each party shall be responsible for paying any attorney's fees, expert witness' fees and other expenses it incurs on its behalf in connection with the arbitration, plus one half the arbitrator's fee and one half of any expenses incurred by the arbitrator, unless otherwise agreed by the parties or ordered by the arbitrator, and award shall access the arbitrator's fee and expenses accordingly. RMT and the Customer expressly agree and affirm that the subject matter of this contract involves a substantial impact upon interstate commerce, both in this individual transaction and in its aggregate impact.
16. ENTIRE AGREEMENT: There are no representations, warranties, collateral agreements or conditions affecting this Agreement except as expressed herein.
17. NOTICE: All communications arising from the terms of this Agreement will be made in writing and served personally, by registered mail, or by email. The Addresses for any communications to be delivered to the parties as appear on the letterhead or to such other addresses as to the parties may agree.
18. ADDITIONAL SERVICES: In addition to the aforementioned Services RMT and Customer may agree upon other services from time to time. The Company will provide Customer with a cost estimate for additional engineering or other costs required implementing capabilities outside the scope of those specified herein. With regard to activating and supporting additional tracking units, such activation can be initiated by purchase order. RMT will not initiate additional services without written consent of Customer.