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1. ACCEPTANCE
Trackn is not bound by different terms and conditions in your purchase order or elsewhere unless expressly agreed to in writing by an officer of Trackn. This Agreement and the Product Brochure available at Trackn’s web site at www.trackn.com (“Product Brochure”), a copy of which has been provided to you, 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 MLU, Services, installation and maintenance purchased under this Agreement. The Services commence as of the first day Trackn receives an executed contract and initial payment there for after the MLU is installed and activated in accordance with this Agreement.
2. INSTALLATION
(a) Installation. The MLU must be installed in your vehicle (the “Vehicle”) described on the front of this Agreement in accordance with Trackn’s specifications. The MLU must be installed only by an authorized dealer identified on the front of this Agreement (“Authorized Dealer”). Unauthorized or improper installation voids Trackn’s limited warranty. (b) Limited Installation Warranty and Limited Remedy. Trackn warrants the installation of the MLU by the Authorized Dealer against defects in workmanship for a period of ninety days. If the installation is defective as verified by Trackn or the Authorized Dealer, Trackn or the Authorized Dealer will perform the installation at no expense to you.
3. LOCATION AND DATA COMMUNICATION SERVICES
(a) Description of Services. The MLU is a manufactured transceiver that can be installed and operate in the Vehicle as long as the Vehicle’s electrical system is properly maintained. If properly installed, the MLU will enable you to view the Vehicle’s whereabouts or send specific commands to the MLU by logging into Trackn’s web site at www.trackn.com, using standard web browsers. The Services selected by you are further described, including, without limitation, coverage area, service limitations and proper use thereof, in the Product Brochure. The Services are for Vehicle location and communication with Your MLU 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. All Services depend on the monthly usage plan (the “Service Plan”) selected by you. (b) Pricing of Services. The MLU is assigned to the Service Plan that has been selected by you. System usage beyond the number of access units included under the selected Service Plan will be invoiced at Trackn’s standard access unit rates. The Services are priced in terms of access units, with each type of location and data communication service being assigned a specific number of access units. The aggregate number of access units included under the selected Service Plan may be used only by the MLU covered under such Service Plan. Unused access units may not be applied to other MLUs or to another month’s additional usage. (c) Trackn’s Test of Services. You acknowledge that Trackn may, for its internal test and control purposes, without charge to you, locate or communicate with Your MLU. (d) Use of Services. The Services are solely for the purpose of allowing you to locate and communicate with Your MLU, and may not be resold or otherwise offered to or used by third parties. (e) 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 Trackn harmless from liability or loss by reason of any asserted or established violation of said laws, rules, or regulations by you or your agents. (f) Subscriber Information; Informing Trackn of Changes. You represent that the information contained on the front of this Agreement provided to Trackn by you is complete and accurate. You will immediately notify Trackn in writing if there are any changes in the information contained on the front of this Agreement. If you desire to transfer the MLU to an alternate vehicle, you must notify Trackn and provide the appropriate data information prior to such transfer and installation.
4. PAYMENT; TAXES
You agree to pay Trackn at the Subscription Service Plan rate listed on the front of this Agreement. The Subscription Service Plan rate applies to the initial period only and may be changed (increased or decreased) in subsequent periods at Trackn’s option. You agree to establish a Service Account using a credit card. (a) You authorize Trackn to debit Your credit card automatically in the a m o u n t of $15 (U.S.) to initiate Your Service Account. (b) You agree to maintain a prepaid Service Account balance. The minimum balance is equal to your average Service usage for a ten-day period as calculated by Trackn or $15, whichever is greater. (c) You authorize Trackn to replenish Your Service Account by charging $15 or the average of your monthly Service usage; whichever is greater, each time Your Service Account falls below the minimum balance. (d) You authorize Trackn to automatically debit Your Service Account at the time of subscription renewal equal to your current Service Plan or as stated on the front of This Agreement. (e) You shall pay Trackn in accordance with the terms stated in this Agreement, at such place as Trackn designates on its bill. Airtime charges for Services are billed in advance, at the beginning of each period, based on your selected Service Plan, as set forth in this Agreement. Billing for the first and last period shall be prorated based on the number of days the Services are provided in such period. Incremental charges and other service charges, including, without limitation, activation fees and charges for additional access units, are billed in arrears. 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 Brochure 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). Trackn 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 co Trackn associated with the collection process of your delinquent account.
5. LIMITED WARRANTY
Trackn warrants the MLU against defects in materials and workmanship for a period of one year from the date of this Agreement. If Your MLU is found to be defective in materials or workmanship during the limited warranty period, Trackn will repair or replace the MLU at its discretion. Trackn warrants that it will provide the Services In accordance with the applicable Service Plan selected and the Product Brochure, but does not warrant complete coverage or that the Services will be uninterrupted or error-free. On valid warranty claims, the Authorized Dealer will pay all Trackn associated with such repair or replacement, including labor.
6. MAINTENANCE
Under the provisions of certain Service Plans, You will receive maintenance services pursuant to which an Authorized Dealer or Trackn will repair or replace (at Trackn’s option) any verified failed MLU component, including antennas and interconnected cables.
7. LIMITED REMEDY
Your sole remedy for breach of any warranty is the right to repair or replacement of a defective MLU, and the right to receive a credit or refund (at Trackn’s discretion) on Services not provided for reasons under Trackn’s control. No allowance will be given for any single failure or delay that does not exceed forty-eight hours. To obtain warranty or maintenance service, you must contact an Authorized Dealer. Trackn or the Authorized Dealer may advise you to (a) obtain a Returned Materials Authorization (“RMA”); (b) adequately package the products; (c) Ship the products to the address provided by Trackn; and (d) mark the RMA number prominently on the outside of the carton. Products received without an RMA number will be returned freight collect. Trackn will return the repaired products prepaid and fully insured. Alternatively, at Trackn’s option, Trackn may remove and reinstall the products.
8. WARRANTY AND MAINTENANCE EXCLUSIONS
Trackn or the Authorized Dealer is not obligated to provide the limited warranties or maintenance services if there has been any unauthorized alteration, modifications, or repair of the MLU, if there is use with the MLU of accessories or devices not approved by Trackn, 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 transmission problems caused by inadequate or improper antenna (not provided by Trackn), 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 Trackn, Failure to install or use the MLU 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 is 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 Trackn or any Authorized Dealer has the authority to grant any other warranty to you, written Oraral. You acknowledge that the Services are based upon the Microburst Service™ furnished to Trackn by Aeris Communications, Inc. (“Aeris”) utilizing cellular telephone service furnished to Aeris by one or more participating carriers (“Participating Carriers”) pursuant to agreements between Aeris and such Participating Carriers and subject to terms, conditions and limitations therein set forth. YOU FURTHER ACKNOWLEDGE THAT PARTICIPATING CARRIERS DISCLAIM ALL LIABILITY OF ANY NATURE TO YOU, WHETHER DIRECT, INDIRECT, INCI-DENTAL OR CONSEQUENTIAL, ARISING OUT OF YOUR USE OF MICROBURST 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 Brochure) 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.
9. LIMITATION OF LIABILITY
Trackn 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 Trackn’s liability to you exceed the amount paid by you for the MLU or the Services in question. Trackn 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 the Vehicle, or loss of profits, revenues or data, even if Trackn 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.
10. INTERRUPTION OF SERVICES
Trackn shall have no liability for a failure to provide, or for delay in providing, the MLU, Services or maintenance due directly or indirectly to causes beyond the control of Trackn or its Authorized Dealers. If Trackn is unable to wholly or partially perform the Services because of any cause beyond its control, Trackn may terminate this Agreement without any liability to you, other than refund of any amounts paid for the undelivered MLU or Services.
11. TERM AND TERMINATION; RENEWAL
This Agreement shall remain in full force and effect for a period marked on the front of this Agreement, and shall be automatically renewed and extended without action by any party for additional periods at the then applicable Subscription Service Plan rate; provided, however, that (a) either Trackn 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, and (b) Trackn may, at any time, without liability to You, terminate this Agreement, effective immediately, provided that if this Agreement is not terminated by Trackn due to your breach
such as non payment of airtime services, Trackn shall reimburse you for the unused portion of any prepaid subscription fee. If you terminate this Agreement for any reason, no reimbursement for unused prepaid Services will be made. Notwithstanding the foregoing, this Agreement shall terminate immediately without liability if the authorizations held by Trackn are revoked by the FCC.
12. GENERAL
No amendment or modification hereof shall be binding upon Trackn unless such amendment or modification is in writing signed by an authorized officer of Trackn. 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 Trackn 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 Trackn.
These Terms and Conditions (these “Terms”) are a part of the Trackn.com (Trackn) Service Subscriber Agreement (this “Agreement”) between Trackn.com dba Trackn and the subscriber (“You” or “Your”) named on the front of this Agreement, with respect to Trackn Mobile Location Unit (“MLU”) and related installation and communication data services, as further described below (“Services”). |
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