This Track Your Truck Service Agreement (the "Agreement") is made and entered into by and between Track Your Truck, Inc. ("TYT"), a Virginia corporation, and the customer identified in the Order Form which provides the uniform resource locator for and incorporates by reference this Agreement ("Customer"). This Agreement and the corresponding Order Form set forth the terms and conditions under which the Customer may license and use those Products and Services set forth either in the Order Form or in purchase orders provided to and accepted by TYT from time to time hereinafter. The Order Form shall reference and be governed by this Agreement.
WHEREAS Customer wishes to purchase Vehicle Tracking Products and Services; and
WHEREAS the parties have come to agreement on a common set of terms pursuant to which TYT will provide Customer with Vehicle Tracking Products and Services;
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS.
1.1 Customer. "Customer" means the above person or business entity to whom the Service and/or Software is licensed and to whom the Hardware is provided.
1.2 Documentation. "Documentation" means that certain TYT proprietary documentation in the form generally made available by TYT to its Customers for use with the Software.
1.3 Equipment. "Equipment" means the equipment in which the Hardware is installed such as a vehicle, truck, bulldozer, or other such equipment.
1.4 Fees. "Fees" means the applicable fees for Products, Services, Hardware and Software as set forth in the Order Form and any applicable taxes.
1.5 Hardware. . "Hardware" means the Hardware provided or included with the Software, including, but not limited to, the Vehicle Location Manager ("VLM") Unit, antenna, and cabling.
1.6 Image. . "Images" means the images contained in and produced by the TYT Services.
1.7 License. "License" means the license to use the Software. The License is granted pursuant to the provisions of this Agreement.
1.8 Order Form. "Order Form" means the completed TYT Order Form signed by the customer and specifying certain terms of the agreement. Each Order Form will incorporate this Agreement and will contain, without limitation: (i) Product and/or Service description (including the Term of Service, if applicable); (ii) Price; (iii) Exceptions and Notations.
1.9 Product. "Product" means the Software, Hardware, and Documentation made generally commercially available.
1.10 Services. "Services" means the TYT Vehicle Tracking Service including but not limited to: (i) the NetTrack web-based software (including all components and documentation); (ii) Web Services Interface (including all components and Documentation)
1.11 Software. "Software" means the computer programs and other information provided to the Customer either on-line, on electronic media, or embedded firmware in the VLM.
1.12 Term of Service. "Term of Service" shall mean a period of time as defined by the Order Form.
1.13 Vehicle. "Vehicle" means the single vehicle(s) where the Hardware is installed.
1.14 Web Services Interface. . "Web Services Interface" means software developed by TYT either installed on a Customer's File Server(s) or accessed directly via a direct ODBC, XML or similar interface to TYT for the purpose of providing Vehicle Tracking information for integration into the Customer's 3rd party software or programs.
1.15 Web User. . "Web User" means a single Login/Password access to the TYT application that can be used or controlled by only one person at a time.
1.16 Order Form. . "Order Form" refers to the completed order document signed by the customer and specifying certain terms of the agreement and referencing the TYT Service Agreement. Also known as “Sales Order”.
2. USE OF PRODUCT; LICENSE
2.1 License. Subject to the terms and conditions of this Agreement, and in consideration of Customer's payment of all Fees, TYT grants to Customer (and Customer agrees to comply with) a non-sub licensable, non-transferable, non-exclusive, terminable, limited License for the Term of Service to use the Products and Services specified in the Order Form. Customer must purchase a separate license for each Web Services Interface.
2.2 License Restrictions. In no event will Customer use or reproduce any Image via copy, screenshot, or image copy software for purposes of display on a public-facing website, brochure, or similar material without express written permission of TYT. Rights not expressly granted by this Agreement are reserved by TYT. Customer purchases a License only. TYT retains title to the Software and Documentation and any copies thereof, including the originals provided with this Agreement. All Product and Services pricing and descriptions are set forth in the Order Form.
3. OWNERSHIP: RESTRICTED USE.
3.1 Intellectual Property Rights; Title. For purposes of this Agreement, "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. Customer acknowledges that all right, title and interest, including without limitation all Intellectual Property Rights in and to the Service, remain in TYT and/or its third party licensors and suppliers, and that Customer shall not acquire any right, title, or interest in or to the Service, except as expressly set forth in this Agreement.
3.2 Restricted Use. Except as otherwise expressly provided in this Agreement, Customer has no right to transfer, sublicense or otherwise distribute the Product or Images, in whole or in part, to any third party. Customer agrees not to, or to allow others to: (i) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer the Product or create any derivative works based on the Product, Documentation or any component thereof, including without limitation, the source code and any other underlying ideas or algorithms of the Software or Graphic User Interface; (ii) copy the Software or Documentation except as provided in Sections 2.1 and 4; (iii) use the Service for High Risk Activities as defined below; (iv) transfer, sublicense, loan, sell, lease or use for timesharing or service bureau purposes the Product or any component thereof; or (v) ship, divert, transship, transfer, export or re-export the Products or any component thereof into any country or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Department's Bureau of Export Administration, the U.S. Department of Treasury's Office of Foreign Assets Control or any other applicable government agency. For the avoidance of doubt, nothing in this Agreement grants to Customer any rights whatsoever in or relating to the source code of the Software.
4. SERVICES AND SUPPORT.
4.1 Technical Support Services ("TSS"). TYT shall provide TSS for the Product and Services during the Customer's Term of Service. All TSS shall be handled remotely by phone and email only. TYT does not provide on-site TSS. TSS shall include: (i) Hardware installation guidance, consulting and troubleshooting; (ii) Software, specifically use of the NetTrack Service; (iii) configuration of the Web Services Interface. While TYT will perform best-effort TSS, Customer acknowledges that issues related to Customer's: (i) computer skills; (ii) Internet connection; (iii) network; and (iv) computer systems may cause TSS to be incomplete at no fault of TYT.
4.2 Training. TYT will provide one(1) remote user training session for the NetTrack Service during TYT normal business hours. The session will use a remote desktop connection service such as Gotomeeting.com requiring the user to have a high-speed Internet service in order to participate in the training session. Additional training sessions may be purchased.
4.3 User Manual. TYT will provide an on-line user manual which the Customer may choose to download. This manual may be distributed for training purposes to all Customer employees.
4.4 Training Videos. TYT may provide training videos which the Customer may choose to review. These videos are the property of TYT and may not be used by the Customer, without express written consent from TYT, for purposes other than the training of customer employees.
4.5 Data Retention. The data sent by the VLM is considered property of the Customer, including messages, statuses, GPS location, speed, heading, sensor and all other transmissions as relates to the tracking and messaging of the Customer's vehicle(s) or driver(s). TYT will store this data for use in NetTrack for 125 days. The Customer may change this data retention period, either increasing or decreasing the storage period, by contact TYT. TYT will charge the Customer additional fees for an increase in the data retention period. When a vehicle is cancelled or deactivated, TYT will delete all data associated with this vehicle. Once Customer data is deleted, there is no possibility of recovery of the data. The Customer should, at their own volition and expense, download and archive the data during the data retention period as needed.
5. FEES. Customer shall remit to TYT all fees stated on the Order Form including fees associated with: (i) monthly usage; (ii) setup; (iii) shipping and handling; (iv) Hardware; (v) Web User; (vi) taxes; (vii) miscellaneous fees. 100% of the Hardware fee is due in advance. Recurring fees are billed in advance beginning at the time the hardware is shipped. Payment terms for recurring fees are net 15 days. Late charges of 18% annual interest shall be applied to all past due accounts. If any fees are 15 days past due, TYT reserves the right to suspend service. Customer agrees to pay all costs and expenses of every kind for collection of past due amounts, including court costs and attorney fees.
5.1 GPS Update Explanation and Overages: Vehicle can operate 185 hrs./mo. or 9 hrs./day, 21 days/mo. Unless the plan is 24/7 or over-the-road (OTR). Any usage above this amount will be billed at $0.02 per each additional KB (20 additional updates or 40 additional minutes of data) International roaming is $0.04 per hour of usage.
5.2 GPS Coverage and Accuracy. The Global Positioning System is a constellation of satellites owned and operated by the United States Government. The accuracy of the location is generally accepted to be 100 meters; however, accuracy is typically better. TYT cannot guarantee the accuracy of the GPS location but uses best practices to determine and report the most accurate location available from the GPS receiver located in the VLM. Many factors, not under direct control of TYT, may affect the accuracy of the GPS location: (i) Location of VLM in the vehicle; (ii) signal blocking from surrounding terrain and buildings; (iii) signal disruption (jamming) from nearby government installations; (iv) interference due to a limited view of the GPS satellite constellation. Customer recognizes these factors and agrees to work with TYT to address any installation issues that might affect the performance of the VLM.
6. GOVERNMENT RESTRICTED RIGHTS. The Product is commercial within the meaning of the applicable civilian and military Federal acquisition regulations and any supplement thereto. If the user of the Product is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Product, including technical data or manuals, is restricted by the terms, conditions and covenants contained in this Agreement. In accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies, the use of the Software is further restricted by this Agreement.
7. LIMITED WARRANTY AND LIABILITY.
7.1 Wireless Service; Usability. Customer shall provide TYT with vehicle travel region(s) which TYT will use to select best cellular/satellite network based on coverage and affordability. Customer agrees that the Service will only function in real-time when the vehicle is within the operating range of the selected wireless network. TYT provides no warranty as to the availability of coverage of the selected wireless network. Customer acknowledges and agrees that the functionality of the Service is dependent upon and subject to the wireless transmission interruptions and limitations. Regarding pure satellite Service, the customer acknowledges that the Service will not function when not in direct line-of-sight view of the host receiving satellite.
7.2 Limited Software Warranty. TYT warrants that if the Software fails to substantially conform to the specification in the Documentation, and if the nonconformity is reported in writing to TYT within 180 days of the purchase of this License, then TYT will, at its sole discretion, either remedy the nonconformity, or refund an amount equivalent to Customer's last three(3) months of recurring monthly fees. In the event of a refund, the License shall terminate. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, TYT MAKES NO WARRANTY OR REPRESENTATION RELATING TO THE SOFTWARE, THE DOCUMENTATION, OR THIS AGREEMENT. TYT DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TYT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE SOFTWARE IS WITHOUT DEFECTS OR ERROR.
7.3 Limited Hardware Warranty. TYT warrants the Hardware for a period of one (1) year except where stated otherwise, beginning from the date of the Order Form, provided that in the event of a Hardware failure, TYT shall repair or replace the same, per TYT's discretion. Replacement Hardware may be the same product or a different product, per TYT's discretion. Replacement Hardware may be used, new, or refurbished, per TYT's discretion. This limited Hardware warranty shall not apply to any damage to the Hardware due to misuse, abuse, tampering with said Hardware, or incorrect installation by Customer or agent/installer on behalf of or on direct contract for Customer.
7.4 Vehicle Computer Interface. Certain products may interface with the vehicle On Board Diagnostics port (OBDII, JPOD, J1708, J1939, et.al.) or Vehicle Data Bus (VBUS). These devices may use these connections to read various data directly from the vehicle. In such cases, the customer, not TYT, assumes full responsibility for connecting any TYT product to these ports. The customer should check with the vehicle manufacturer to ensure compatibility prior to connecting any TYT products to these ports.
7.5 Limited Liability. TYT SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF TYT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TYT is not responsible for any costs incurred as a result of the use of the Software, including but not limited to, lost profits or revenue, loss of data, costs of recreating data, the cost of any substitute equipment or program, or claims by any third party. TYT AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SOFTWARE OR DOCUMENTATION IS LIMITED TO AN AMOUNT EQUIVALENT TO CUSTOMER'S LAST THREE MONTHS OF RECURRING MONTHLY FEES.
7.6 Return Policy. TYT will refund all fees (including hardware, applicable tax, activation and monthly use), excluding shipping and handling, for any system returned within thirty (30) days of the system ship date provided the system is returned in the original condition. The system ship date is the date on which a tracking unit (s) was originally shipped from TYT to Customer. The system ship date does NOT renew or reset when a replacement hardware unit is shipped for warranty replacement but ONLY applies to the shipment of the original system. The refund is limited to a maximum of ten (10) devices total.
7.7 Sole Remedy. THE PROVISIONS OF SECTION 7 OF THIS AGREEMENT DEFINE THE SOLE AND EXCLUSIVE REMEDIES OF CUSTOMER.
8. GENERAL PROVISIONS.
8.1 Cancellation. In the event of cancellation by Customer before the end of contract term, Customer agrees to pay a contract cancellation fee equal to the number of VLM units under contract multiplied by the monthly service fee multiplied by months remaining on contract. Cancellation after the end of contract term shall be made in writing from the customer to TYT not less than thirty (30) days in advance of the next billing cycle which begins on the first of each month.
8.2 Limitation of Use. For any TYT interactive Hardware requiring operator interaction including Email, Instant Messaging, Statusing and other such services or products, Customer agrees not to use, or cause its use, the Hardware provided while operating the equipment in which the Product is installed. Said Hardware shall be used only when equipment is parked or in a mode not requiring the operator’s attention. Customer hereby holds harmless and shall indemnify TYT for any liability resulting from a breach of this limitation of use.
8.2 Limitation of Use for Public Safety. If the Customer is in the business of providing Public Safety (Police, Fire, EMS and Ambulance services), the Customer agrees to use the Products and Services only as a supplement to Computer Aided Dispatch services designed for Public Safety. The Customer further agrees that the Products and Services are for commercial asset tracking and not designed for critical, life-threatening, or other Public Safety uses. The Customer agrees NOT to rely on Products and Services for critical, life-threatening, or other highly dangerous Public Safety functions.
8.3 Entire Agreement. This Agreement represents the entire agreement between TYT and the Customer. No distributor, employee, or other person is authorized by TYT to modify this Agreement or to make any warranty or representation, which is different than, or in addition to, the warranties and representations of this Agreement
8.4 Governing Law. This Agreement shall be governed by the laws of the State of Illinois and of the United States of America.
