Smart Traxx Product & OverSight™ Services Agreement
Welcome to Your OverSight™ Services
Provided to you by Locus Solutions, LLC.
("Locus Traxx" or "us" or "we")
By using any of the Your Oversight Services we provide directly to you via our website or by downloading, installing, or using any software we provide to you related to Your Oversight Services (such direct services and any software, collectively the "Services"), or Smart Traxx products purchased, you agree to be bound by the terms and conditions of use of this Smart Traxx Product & OverSight Services Agreement (collectively, the "Agreement"). Please read this Agreement carefully. If you do not agree to any of the terms of this Agreement, then do not download, install, or use the Services or Products.
You can contact us at any time by (a) calling us at 561-665-5560, (b) emailing us at email@example.com, or (c) writing to us at: Locus Traxx Customer Care, 14924 Corporate Rd S, Jupiter, FL 33478.
1. STARTING YOUR SERVICE; CHANGES TO AGREEMENT
You can only get and use these Services by accepting this Agreement. The Agreement may be amended by us, with notice to you, from time to time.
This Agreement shall take effect immediately and remain in effect until terminated by either party or until termination as expressly provided for under this Agreement.
You are responsible for making payment for your Product and Services. Terms are net fifteen (15) calendar days from date of receipt of Invoice. Locus Traxx shall have the right to immediately cancel your Services if you fail to timely pay us as required hereunder. Any such failure to pay shall constitute a material breach of this Agreement by you. Payment for all Products and Services rendered by Locus Traxx shall be at our then current rates. If your company is outside the United States, you will need to make your payments by either credit card, wire or electronic funds transfer; checks will not be accepted.
4. TAXES AND OTHER CHARGES
You shall also be responsible for paying all taxes, fees and surcharges set by the government, whether international, national, state, or local, and charged to you by us. Freight charges for the shipment of our product is at your cost.
5. OUR RIGHT TO CANCEL OR SUSPEND YOUR SERVICE
WITHOUT CAUSE: We may terminate your Services without cause. If we terminate your Services without cause, then we will give you 30 calendar days notice prior to the effective date of termination, after which your account will be deactivated and your Services will terminate. This means that we can decide to cease providing the Services to you at any time and for any reason, even for reasons unrelated to you or your account with us. In such a case, we will refund any amounts you have paid in advance of the termination date.
WITH CAUSE: We may terminate your Services without prior notice to you for any good cause. This means, for example, we can terminate your Services immediately if you breach any part of this Agreement, do not pay amounts that are due to us or one of our Third Party Service Providers as defined in Section 10 (Your Duties and Responsibilities), below, interfere with our efforts to provide Services, interfere with our business, or if you use the Product or Services for illegal or improper purposes. You do not have any right to have your Services reactivated, even if you cure any of these problems. We may, in our sole discretion, allow reactivation of your Services. We can suspend or terminate your Services for any reason.
Within ten (10) days after the termination or expiration of this Agreement, you must return all software and hardware provided by us for the provision of the Services. The foregoing return requirement shall not apply to deliverables for which you have paid us in full.
6. CHANGES BY YOU TO YOUR SERVICES
You are the only person who can request to change your Services. It is your responsibility to update us if you wish to change or add to the list of people who can change your Services. You can make certain changes to your Services via your online account. For all other changes, you may submit to us a change request concerning the Services to us in writing. On receiving a change request, we will evaluate the request at its then current rates and charges and provide a written response, which will include the impact such proposed changes will have on the fee for the Services and whether we agree to make such changes. These changes become part of this Agreement between you and us.
7. CHANGES BY US TO YOUR SERVICES
We may change your Services at any time. These changes become part of this Agreement between you and us. You do not have any rights to the wireless phone number or satellite number assigned to your Services. We can change either number at any time.
8. SYSTEM LIMITATIONS
Your Service works using either cellular triangulation, or by receiving Global Positioning System ("GPS") satellite signals and communicating with our data center via wireless communication networks. We use commercial mobile wireless services purchased from one or more third-party providers (the "Underlying Wireless Carrier"). NOT ALL SERVICES ARE AVAILABLE EVERYWHERE or IN EVERY COUNTRY, PARTICULARLY IN REMOTE OR ENCLOSED AREAS, OR ON ALL VEHICLES AND VESSELS, AT ALL TIMES.
Your Services have many limitations including, but not limited to, the following: a) The quality of your Services may be impaired by hills, tall buildings, tunnels, weather, electrical system design and architecture of your vehicle, damage to your vehicle or wireless phone network congestion; b) Services are not available if either cellular or GPS satellite signals or are not working or the signals are obstructed or unavailable in the area and programming limitations of our system may impair our ability to determine your vehicle or equipment's precise location; c) Services will be interrupted in areas where the Underlying Wireless Carrier we hired for that area has limited coverage; f) The location data we provide to you is based on the most current map information available to us, but may be inaccurate or incomplete, our map data may not include information about construction projects, seasonal roads or new roads; e) Services can fail or be delayed by acts of nature, or forces or causes beyond our reasonable control, including but not limited to weather conditions and the results thereof, public utility failure, acts of war, government actions, terrorism, civil disturbances, or System failures including internet, computer, telecommunication or other system failures. If the Underlying Wireless Carrier terminates or restricts service, Services will not be available, UNDER THIS CIRCUMSTANCE, SOME OR ALL OF YOUR SERVICES MAY BE SUSPENDED OR TERMINATED WITHOUT PRIOR NOTICE TO YOU OR WITHOUT ANY LIABILITY TO LOCUS TRAXX, LOCUS TRAXX'S THIRD PARTY SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER OR ANY THIRD PARTY BENEFICIARY.
9. THIRD PARTY SERVICE PROVIDERS AND BENEFICIARIES
We work with many different companies, individuals and government entities to provide you with your Services. In this Agreement "Third Party Service Provider" means any person, company or entity who provides any service, System or facilities in connection with your Services. We will use reasonable efforts to contact appropriate Third Party Service Providers for help when you ask for it or when the System signals for it, but we cannot promise prompt responses from the Third Party Service Providers.
Any Third Party Service Provider involved in delivering your Services are intended third-party beneficiaries of the protections of this Agreement. This Agreement does not give you any rights against any of the Underlying Wireless Carriers or other Third Party Service Providers.
The disclaimers, warranties, limitations of liability and other protections of this Agreement extend to these third-party beneficiaries. We do not make any warranty of any kind, whether express or implied with regard to any Services provided to you by the Third Party Service Providers. We expressly disclaim all warranties, express and implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and title/non-infringement with regard to Services provided by Third Party Service Providers. You should consult the respective Third Party Providers for warranty and performance information regarding the provision of the Services.
10. YOUR DUTIES AND RESPONSIBILITIES
It is your responsibility to make sure your Product is installed or placed properly to monitor your shipment accurately.
Your use of these Services relies upon you following the Locus Traxx Best Practices as outlined on this site and in the welcome package you receive from Locus Traxx prior to your first use of these Services. Provided you follow the Locus Traxx Best Practices, Locus Traxx will be repair or replace any Locus Traxx Hardware that is lost or damaged while in transit. You will be responsible only for hardware lost or damaged while in your control.
YOU ARE SOLELY RESPONSIBLE FOR ANY USE OF THE SERVICES, EVEN IF YOU ARE NOT THE ONE USING IT, AND EVEN IF YOU LATER CLAIM THE USE WAS NOT AUTHORIZED. YOU ARE ALSO SOLELY RESPONSIBLE FOR THE SERVICES REQUESTED BY YOU. Neither we nor any Third Party Service Provider has any obligation to inquire about the authority of anyone using your vehicle or equipment.
You are responsible for any content you add to the database that resides on the Locus Traxx servers except as otherwise agreed upon with Locus Traxx, for the backup hereof. This includes contact information, alerts settings and other inputs. You are also responsible for making, at your own expense, any changes or additions to your current system, software, and hardware that may be required to support operation of the Services. You shall comply with all applicable international and national laws that apply to the use of the Services, including the U.S. Export Administration Regulations, as well as end-user, end-use and country destination restrictions issued by the U.S. and other governments.
When you use the Services, you promise:
(1) not to use your Services for any fraudulent, unlawful, or abusive purpose, or in any way that interferes with our provision of Services to our other customers;
(2) not to abuse or do anything to damage our business operations, services, reputation, employees, facilities, or Third Party Service Providers of your Services;
(3) not to use any content you receive through the Services except as expressly authorized by us;
(4) not to resell, copy, store, reproduce, distribute, modify, display, publish, perform, transmit, broadcast, or create derivative works from any content you receive through your Services; and
(5) not to use any content you receive through your Services for commercial purposes.
If you do any of these things, you agree you will be responsible for any amount anyone else claims from us or our Third Party Service Providers, plus any expenses, resulting in whole or in part, from that use or your actions.
11. YOUR PRIVACY
Because your Services are provided through wireless networks, we cannot promise that your communications will not be intercepted by others. You agree we will not be liable for any damages for any loss of privacy occurring in communication over such networks.
12. NO WARRANTIES ON INFORMATION OR SERVICES
Warranties are special kinds of promises. Neither Locus Traxx nor any of its third-party partners makes ANY WARRANTIES, EXPRESS OR IMPLIED, about the Product or Services (including the content or other information delivered to you as part of the Services), the wireless service used in connection with your System, including any warranty of merchantability or fitness for a particular purpose. ALL PRODUCT, DATA, INFORMATION AND SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS. This means we make no warranties in connection with the content quality, accuracy, timeliness, completeness, correctness, reliability, merchantability, or fitness for a particular purpose. All warranties with respect to the Product or Services, the wireless service or any system used by a Third Party Service Provider are expressly disclaimed and excluded by this Agreement. We do not warrant that the Product or Services will meet your requirements, or that the Product or Services are compatible with any particular hardware or software platform, or that the operation of the Product or Services will be uninterrupted or error-free, or that defects in the Product or Services will be corrected. Furthermore, we do not warrant or make any representation regarding the use or the results of the use of the Product or Services in terms of their correctness, accuracy, quality, reliability, security, appropriateness for a particular task or application, or otherwise. No oral or written information or advice given by Locus Traxx, Underlying Wireless Carriers, Third Party Service Providers, or Locus Traxx's authorized representatives shall create a warranty or in any way increase the scope of this warranty.
13. LIMITATIONS OF LIABILITY
You cannot recover from us (1) punitive damages, (2) treble, consequential, indirect, or special damages, or (3) attorney's fees.
YOU WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW ANY CLAIM FOR DAMAGES, INCLUDING BUT NOT LIMITED TO ANY INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OTHER THAN DIRECT, COMPENSATORY DAMAGES AS LIMITED IN THIS AGREEMENT. IN ADDITION, IN NO EVENT DOES LOCUS TRAXX AUTHORIZE YOU TO USE THE SERVICES WHERE LOCUS TRAXX'S FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO RESULT IN A SIGNIFICANT PHYSICAL INJURY, OR IN LOSS OF LIFE. ANY SUCH USE BY YOU IS ENTIRELY AT YOUR OWN RISK, AND YOU AGREE TO HOLD LOCUS TRAXX HARMLESS FROM ANY CLAIMS OR LOSSES RELATING TO SUCH UNAUTHORIZED USE.
Neither we nor the Underlying Wireless Carrier, nor any Third Party Service Provider or beneficiary will be liable to you or any other party for consequential, indirect, incidental, special, exemplary, or punitive damages (including without limitation, loss of business, business interruption, loss of data, loss of business information, or lost profits) in connection with the Services or the System, even if we, the Underlying Wireless Carrier, or Third Party Service Provider or beneficiary is aware of the possibility of such damages. These limitations apply to all claims, including, without limitation, claims in contract and tort (such as negligence, product liability and strict liability). Some states do not allow the exclusion or limitation of incidental or consequential damages, so those particular limitations may not apply to you.
If we, the Underlying Wireless Carrier, or any Third Party Service Provider or beneficiary are found liable to you for any reason, you agree that the total, aggregate liability of all these parties to you for any claim, damages losses, or causes of action is limited to the total amount paid by you for the Product or Services giving rise to the liability. Neither us, the Underlying Wireless Carrier nor any Third Party Service Provider or beneficiary would have agreed to provide the Product or Services to you if you did not agree to this limitation. This amount is the sole and exclusive liability of us, the Underlying Wireless Carrier and the Third Party Service Provider or beneficiary to you, and is payable as liquidated damages and not as a penalty. Except where prohibited by law, you may not bring any claim against us, the Underlying Wireless Carrier or any third-party beneficiary more than one year after the claim arises. Notwithstanding the foregoing, we shall not be liable for defects in or failures of third party equipment and/or software, or for defaults by, or defects in Services rendered by third parties. This limitation of liability shall apply even if the express warranties set forth above fail of their essential purpose.
We do not have any liability for service interruptions of 24 hours or less. To receive service credit for longer interruptions, you must notify us within 60 days after the time when that service interruption started. Except for any credits provided voluntarily by us for interrupted service as described above, no one is liable to you for interrupted service, or for problems caused by or contributed to by you, by any third party, by buildings, hills, tunnels, network congestion, weather, or any other things we or our Third Party Service Providers don't control.
Limitations of Liability by You
For yourself and for anyone else claiming under you, you agree to release and discharge Locus Traxx and its Third Party Service Providers, their parents, affiliates, and subsidiaries, and the respective officers, directors, and employees, and the Underlying Wireless Carrier and each third-party beneficiary from all claims, liabilities and losses in connection with the Services, including, but not limited to claims for personal injury or property damage arising from the total or partial failure of performance of the Services, even if caused by the negligence of us or the malfunction of the Services. You agree to indemnify, protect and defend us, the Underlying Wireless Carrier and each third-party beneficiary against all such claims, damages, expenses, liabilities and losses (including but not limited to reasonable attorneys' fees and all related costs and expenses) incurred by us as a result of any claim, judgment, or adjudication against us or related to or arising from a claim that our use of any content you provide to us, as permitted under this Agreement, infringes the copyright and trade secret rights of a third party.. You further agree that this release extends to any party claiming under you and that no insurance company will have any right of subrogation.
YOU AGREE TO WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIM FOR DAMAGES OTHER THAN DIRECT, COMPENSATORY DAMAGES AS LIMITED IN THIS AGREEMENT.
You agree that you have no contractual relationship whatsoever with our Underlying Wireless Carrier(s) and that you are not a third-party beneficiary of any agreement between us and our Underlying Wireless Carrier(s). In addition, you expressly agree that none of our Underlying Wireless Carrier(s) have any legal, equitable, or other liability of any kind to you. You waive any and all claims or demands for such liability.
You agree that the limitations of liability and indemnities in this Agreement will survive even after the Agreement has ended. These limitations of liability apply not only to you, but to anyone using your Product or Services, to anyone making a claim on your behalf, and to any claims made by your family, employees, customers, or others arising out of or relating to your Product or Services.
We both recognize that we will have access to confidential proprietary information and or trade secrets of each other. You specifically acknowledge that the Product and Services constitute valuable trade secrets of Locus Traxx. Accordingly, we agree that all of the non-public information shall be kept in the strictest confidence and shall not be revealed to any third parties for any purpose other than as specified in this Agreement, without the prior written consent by you or us. Each party agrees to take all reasonable steps to ensure that confidential proprietary information of the other is not disclosed or distributed by its employees, agents or contractors in violation of the provisions of this Agreement. Each party’s confidential proprietary information shall remain the sole and exclusive property of that party. Each party acknowledges that any use or disclosure of the other party’s confidential proprietary information other than as specifically provided for in this Agreement may result in irreparable injury and damage to the non-using or non-disclosing party. Accordingly, each party hereby agrees that, in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-using or non-disclosing party may be entitled to equitable relief as granted by any appropriate judicial body. This provision shall survive the termination of this Agreement.
You may provide suggestions, comments or other feedback to us with respect to our Services. Feedback is voluntary and we are not required to hold it in confidence. Feedback may be used for any purpose without obligation of any kind. We may use any technical information we derive from providing the Services relating to problem resolution, troubleshooting, product functionality enhancements and fixes, for our knowledge base and Services generally for all our clients.
15. INTELLECTUAL PROPERTY
You represent and warrant that your use of the Services shall not infringe the intellectual property or other proprietary rights of Locus Traxx or any other third party. You further acknowledge that all right, title and interest in any and all technology, including the software that is part of or is provided with the Services and any trademarks or service marks of Locus Traxx is vested and shall remain in Locus Traxx or its licensors. You shall have no interest in any of the intellectual property of Locus Traxx. However, we agree that upon receipt of payment in full of the fees associated with the Product or Services, you may use the Product or Services (subject to the restrictions in this Agreement),you’re your own internal business purposes. In the event, by operation of law or otherwise, you are considered the owner of any intellectual property rights in the Product or Services, you hereby irrevocably and perpetually assigns, conveys, and transfers all such rights to us. You shall not copy, translate, modify, distribute, decompile, reverse engineer, reverse assemble, or disseminate the intellectual property or to use it in a manner other than for the Product or Services or grant a third party to do so.
We both represent and warrant that we have the right and authority to enter into this Agreement and that by entering into this Agreement it will not violate, conflict with or cause a material default under any other Agreement.
17. HOW WE'LL RESOLVE DISPUTES BETWEEN US
If you and we have a disagreement related to Product or Services, we will try to resolve it by talking with each other. If we cannot resolve it that way, WE BOTH AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO USE ARBITRATION, CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION, NOT LAWSUITS TO RESOLVE THE DISPUTE. Each party shall bear their own expenses.
THE LAW AND JURISDICTION THAT GOVERNS OUR RELATIONSHIP. To the fullest extent permitted by law, and except as explicitly provided otherwise, this Agreement and any disputes arising out of or relating to it will be governed by the laws of the state of Florida and each party consents to the personal jurisdiction of the federal and state courts located in Palm Beach County, Florida for any actions. Moreover, any arbitrations shall take place in Palm Beach County Florida.
FORCE MAJEURE. Neither we, nor the Underlying Wireless Carrier and Third Party Service Providers will be responsible for the failure or delays to provide Services to you if caused by any of the following: any act or omission (including interruption of cellular service) of any Third-Party Service Provider; system failures or shortages; damage to our-designated data center, any land or wireless communications networks or the GPS system; acts of nature, labor strikes or war; or any other act or event that is outside of our reasonable control. UNDER ANY OF THESE CIRCUMSTANCES, WE MAY AT OUR OPTION SUSPEND OR TERMINATE ALL OR SOME OF THE SERVICES OR TERMINATE THIS AGREEMENT WITHOUT PRIOR NOTICE TO YOU AND WITHOUT ANY LIABILITY; MOREOVER, YOU WILL NOT BE ENTITLED TO A REFUND OR CREDIT.
EXPORT/IMPORT: Buyer agrees that all applicable import and export control laws, regulation, orders and requirements, including without limitation those of the United States and the European Union, and the jurisdictions in which the Seller and Buyer are established or from which Goods and Services may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, import or export, Goods in violation of such applicable laws, regulations, orders or requirements.
HOW WE CAN COMMUNICATE WITH EACH OTHER. Any written notice from you required by this Agreement will be considered effective when we receive it at our address provided in the first paragraph of these Terms and Conditions. Any written notice from us required by this Agreement will be considered effective as of the date we send it to you by email to any email address you have provided to us in the first paragraph of these terms and conditions, or as of the date of delivery, based on the postmarked date, if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery at the most current billing address we have on file for you. Any oral notices will be considered given when we call you or when you call us at the appropriate number provided in the first paragraph of this Agreement.
OUR RELATIONSHIP WITH YOU. No matter what else it says, this Agreement does not create any fiduciary relationships between you and us, or between you and any of the Third Party Service Providers. It does not create any relationship of principal and agent, partnership, or employer and employee, either.
WE CAN ASSIGN THIS AGREEMENT. We can assign this Agreement or your obligations to pay under it in whole or in part to anyone we choose. You cannot assign this Agreement or your obligations to anyone else without our prior consent.
THIS IS THE ENTIRE AGREEMENT. This Agreement is the entire Agreement between you and us. It supersedes all other agreements or representations, oral or written, between us, past or present. If any part of this Agreement is considered invalid by a court or arbitrator, the rest of it will remain enforceable.
All rights of any kind in the Product or Services which are not expressly granted in this Agreement are entirely and exclusively reserved to and by Locus Traxx.
Even after this Agreement has ended, its provisions will govern any disputes arising out of or relating to it (unless it's been replaced by a new agreement between us). It will also be binding on your heirs and successors and on our successors. No waiver of any part of this Agreement, or of any breach of it, in any one instance will require us to waive any other instance or breach.
IN SOME CIRCUMSTANCES WE MIGHT DECIDE TO PROVIDE YOU PRODUCT OR SERVICES VOLUNTARILY EVEN IF YOU WOULD NOT OTHERWISE QUALIFY. THIS WILL NOT BE A WAIVER OR REQUIRE US TO DO SO AGAIN. YOU AGREE WE WILL NOT BE LIABLE FOR ANYTHING RESULTING FROM OUR PROVISION OF SUCH SERVICES.
You acknowledge that you have read and understand this Agreement (including any on line orders forms, attachments, schedules, addenda and amendments) and are not entering into this Agreement on the basis of any representation not expressly set forth in it. You further acknowledge and accept that this entire Agreement and its attachments are provided in the English language only.
BY CLICKING "I ACCEPT THE TERMS AND CONDITIONS" CHECKBOX BELOW, YOU AGREE TO BE BOUND BY THIS AGREEMENT REGARDING THE PRODUCTS AND SERVICES.