The Customer (which for the purposes of this Agreement shall be deemed to mean the Business and any Co-Obligor) agrees to buy and Certified Tracking Solutions Inc. (hereinafter referred to as “CTS”), agrees to sell to the Customer telematics equipment, supply web mapping services, airtime, services associated with Department of Transportation and Transport Canada Hours of Service (E-Logs), satellite, cellular and/or subscription services and the Customer agrees to pay to CTS the total price stipulated, including any applicable taxes. In the event the Customer has purchased CTS Devices and Services from other providers, the Customer will be held to the terms of this agreement.
- TELEMATICS EQUIPMENT
- If purchasing Devices directly from CTS, Payment for the purchase of telematics equipment shall be made in full according to the agreement reached by both CTS and the Customer. CTS shall not be obliged to deliver or release to the Customer any equipment for which the Customer has not paid in full according to the agreed upon terms. Property in the equipment shall not pass to the Customer until payment has been made in full. The Customer grants to CTS a purchase money security interest in the equipment until the equipment is paid for in full.
- In the event where Devices purchased directly from CTS are subsidized and/or sold under term contracts, payment shall be made in full, in installments as stipulated in this Agreement payment shall be made in full, in installments as stipulated in this Agreement. Property in the equipment shall not pass to the Customer until each and every installment has been made in full. The Customer agrees that:
- the Customer grants to CTS a purchase money security interest in the equipment until the equipment is paid in full;
- the Customer grants to CTS a security interest in any automobile into which the hardware supplied by CTS has been installed and charges any such automobile with security for the payment of the entire balance outstanding to CTS including any accelerated unpaid balance of installments accruing due thereafter;
- in the event the Customer ceases to carry on business or effects a sale of the assets of the business, the full amount of installments then unpaid shall become immediately due and owing
- Equipment that receives or accesses the CTS System (hereinafter referred to as “the System”) is assigned a unique identification number. The Customer will not reproduce, change or tamper with the identifiers on the devices or allow anyone else to do so. For the purpose of this agreement “identifier” means the applicable electronic serial number (ESN), mobile identification number (MIN), International mobile equipment identity (IMEI) number, International mobile subscriber identity (IMSI) number and/or the Subscriber Identity module (SIM) number, as the case may be. The Customer and its end users do not own and shall have no property rights over any device identifiers or the phone numbers and/or Internet Protocol (IP) addresses assigned to the Customer and its end users in connection with the CTS Services and CTS may change such phone numbers, IP addresses and device identifiers at such time or times as CTS, in its sole discretion, considers necessary without any liability. CTS does not assume liability for any risks associated with the change of phone numbers, IP addresses or device identifiers. The Customer acknowledges and agrees that dynamic IP addresses may be used with respect to the devices which IP addresses shall change whenever a device is disconnected from and then reconnected to the Network.
- Each Device provided by CTS may contain firmware developed and owned, or otherwise authorized to be used by CTS. For firmware developed and owned, or otherwise authorized to be used by CTS, CTS hereby grants the Customer a limited, non-exclusive, non-transferable, royalty-free license, to use the firmware on each Device. CTS and shall retain all rights to the firmware contained on each Device. The license granted herein shall be deemed to be in effect upon delivery of each Device.
- The Customer agrees that the equipment may not be resold or transferred to any other individual firm or corporation, without the expressed consent of CTS. CTS may require as a condition of transfer that any amount due and owing on account of the purchase of the equipment and/or CTS Services be paid in full. If possession of the equipment is given to anyone by the Customer without the consent of CTS, CTS may require the Customer to immediately pay in full any amount outstanding on the purchase of the equipment and/or CTS Services.
- The Customer acknowledges that transmission frequencies emitted by the equipment cannot be emitted in a perforation zone. The Customer acknowledges that if the equipment has as part of its components an RF disabling device, that it is the responsibility of the Customer, its servants, agents or employs to activate the disabling device prior to entry into a perforation zone and re-activate the disabling device after departure from a perforation zone. THE CUSTOMER DOES HEREBY INDEMNIFY AND SAVE HARMLESS CTS IN RESPECT OF ANY AND ALL CLAIMS MADE AGAINST CTS BY IN RESPECT OF ANY AND ALL CLAIMS MADE AGAINST CTS BY THE FAILURE OF THE CUSTOMER OR THOSE PERSONS FOR WHOM THE CUSTOMER IS RESPONSIBLE IN LAW TO ACTIVATE THE DISABLING DEVICE.
- The Customer agrees that the products and CTS Services are not intended for use in safety critical or military applications (such as life support) where a failure of the equipment or CTS Services would reasonably be expected to cause severe personal injury or death. The Customer shall fully indemnify CTS and its representatives against any damages arising out of the unauthorized use of the equipment or CTS Services, including but not limited to any use in such safety-critical or military applications. This includes connection of an input for the purposes of such applications.
- The Customer is responsible for obtaining any operating licenses and authorizations that may be required and for the payment of any tariffs, duties, taxes, licensing fees, brokerage, customs, or any other fees that may be imposed on the equipment if it is taken or operated outside of the United States or Canada.
- Unless otherwise stated CTS offers a one year limited non-transferable warranty term on purchased hardware and installation. Additional charges may apply for warranty services provided at locations other than authorized CTS locations. CTS is not responsible for any costs related to servicing the GPS device by a third party including device inspection, removal and installation. The customer is responsible for the cost to ship devices to CTS if required. CTS is responsible for costs related to shipping the repaired/replaced GPS device back to the customer in the USA and Canada only. CTS will use commercially reasonable efforts to ensure any GPS device returned to for warranty or servicing is addressed quickly. CTS is not responsible for workmanship by third parties.
- The Customer understands that products are not returnable after initial activation and/or installation activities have been performed.
- The advanced diagnostics feature is for OBDII light duty vehicles only. Proprietary Parameter ID (PID) support varies widely between year, make and model. Certified Tracking Solutions does not guarantee support for all light duty vehicles. An Advanced Diagnostic VIN change fee is charged for each additional VIN change that is detected. Fees are not prorated.
- THIRD PARTY SOFTWARE INTEGRATION
- The Customer acknowledges that in the future there may be new optional features and enhancements to fully utilize the System in its entirety. The Customer may be required to use and/or purchase Third party software created and owned by entities other than CTS (hereinafter referred to as the “Software Provider”). The Customer will enter into and abide by the terms of any Software License Agreement required by the Software Provider; The Customer shall have total responsibility for the use of any applications, software content, and data query functions whether offered through CTS directly or indirectly by or on behalf of the Software Provider.
- CTS shall have no responsibility whatsoever to the Customer to correct or fix any problems or errors relating to or caused by installation, configuration, modification or use of any third party software and the installation and/or use of such software shall be at the sole risk of the Customer.
- Where the Customer requires additional equipment or hardware to integrate the third party software, the Customer acknowledges and agrees that it shall be the Customer’s sole responsibility to purchase, install, configure and maintain, at the Customer’s cost all required equipment and hardware, including interconnections and network configurations (the “Customer’s System”) to enable the Customer to purchase and receive the optional CTS Services and enhancements. CTS shall have no responsibility hereunder to correct or fix any problems or errors relating to or caused by the installation, configuration or modification of the Customer’s System or any components thereof.
- CTS SERVICES
- The Customer acknowledges that CTS has no liability to the Customer in respect of the purchase of CTS Services between the Customer and CTS and the Customer does hereby release, remise and discharge CTS from any claim arising from the purchase of services from CTS.
- CTS will bill the Customer for the CTS Services provided to the Customer in accordance with this agreement. Monthly and all monthly recurring costs may be prorated. CTS may bill the Customer up to one year from the date particular charges were incurred. The Customer agrees to pay CTS or related third party all amounts set forth in each invoice by the applicable due date (collectively, the “charges”) including, without limitation:
- the cost of all local and long distance calls, character and data usage charges, and charges for messages and other services made or sent from or received on the devices including any charges relating to access to the services of other telephone companies and telecommunication carriers;
- the monthly system access fees, as same may be amended from time to time;
- fees may be incurred for cellular based devices for roaming provided in those areas served by other wireless mobile operators with whom CTS has roaming arrangements. The cellular roaming rates below are set by the respective carrier and are subject to change without notice. All charges are based on the cellular data used by the device during each billing cycle. All cellular roaming rates are in addition to any regular CTS Services charges incurred. For Canadian Customers, US cellular roaming rates are $14.95 / 500KB or part thereof, billed in 1KB increments. For US Customers, no roaming rates apply. For roaming outside of the US and Canada, rates are $29.95 / 500KB or part thereof, billed in 20KB increments.
- all applicable taxes and similar charges relating to the foregoing, as same may be amended from time to time;
- additional data fees incurred for any programming or over the air updating whether the Customer is billed by CTS or directly by the Cellular or Satellite Network Provider. These charges may include additional data, SMS or similar data transfer fees. CTS is not responsible should these additional fees be incurred;
- the various monthly data plans offered are based on a forecasted number of monthly hours of travel time of the asset in conjunction with a forecasted number of stops / starts and heading Should an asset use more than the forecasted amount of data, CTS reserves the right to charge the Customer an overage fee based on the type of monthly plan they have signed up for.
- requests to downgrade airtime plans. A $25 fee will apply per device. Please note there is no fee to upgrade plans.
- The Customer agrees to pay all fees and charges specified, including but not limited to, applicable charges in advance of or on the established due dates and to pay late payment charges at the rate stipulated, as same may be amended from time to time, on any overdue amounts. CTS may at any time upon 60 days notice to the Customer, modify, alter, increase, decrease or otherwise change its stipulated rates. Acceptance of late or partial payments shall not waive any of CTS’ rights to collect the full amount due under this agreement. The Customer shall continue to be liable for the payment of fees and charges specified by CTS should the web service utilized by the System be interrupted for no longer than 72 hours for any reason whatsoever. In the event of a term contract, payment shall be made in full in installments as selected on the agreement.
- The Customer acknowledges that the CTS Services will ultimately be supplied by one or more of CTS’ suppliers including but not limited to: North American Cellular Providers, Iridium Satellite™ LLC and Globalstar USA™ Inc (hereinafter collectively referred to as the Cellular or Satellite Network Provider). Notwithstanding the foregoing, CTS may from time to time at its sole discretion, add, substitute, or delete any supplier in place before or after the time of the execution of this agreement. The Customer acknowledges and agrees that records provided to CTS concerning billing for the Customer’s use of airtime are paramount and payment will be based on those records.
- At the time of activation a refundable prepayment security deposit equal to one month’s airtime and other applicable charges will be charged by A two or three month deposit may be required if no credit card is provided and the result of a credit check. The Customer will not earn any interest on any deposits held by CTS. If this agreement is cancelled, CTS will apply the deposit against the outstanding balance on the Customer’s account.
- The Customer will only be given one overdue payment notice. CTS may cancel any Services if overdue payment reaches or exceeds 30 days. If CTS suspends or terminates the services for non-payment or excessive balance, including unbilled usage and pending charges, fees and adjustment, CTS shall have the right to charge the Customer a reactivation fee.
- The terms and conditions of this agreement assume the device airtime is to be supplied by CTS. Airtime sourced directly from the Cellular or Satellite Provider through CTS by the Customer will be subject to additional and independent provider terms and conditions. Please contact a provider representative directly for applicable terms and conditions.
- The System does not connect or respond to emergency 911, emergency 211, or other emergency or distress calling systems. Such calls cannot be made using the System.
- Historical Data will be available for a minimum of 12 months. In some cases, it is possible to request Certified Tracking Data Engineers to temporarily pull data from the archives. Depending on the request, fees range from $250 to $3000 per request.
- Certified Tracking reserves the right not to prorate the subscription and airtime fees if activated or deactivated mid-month.
- LIMITS ON AVAILABLITY OF CTS SERVICES
- The Customer acknowledges that airtime communications are subject to transmission limitations caused by atmospheric or topographical conditions or equipment failures beyond the reasonable control of CTS and may be temporarily refused, interrupted, or curtailed due to government regulations or orders, System capacity limitations or equipment modifications, upgrades, reallocations, repairs, maintenance and similar activities necessary for the proper operation of the CTS Services.
- CTS shall have the right to suspend all or part of the services or access to the services immediately if CTS reasonably suspects or determines that there is a malfunction, abuse, incorrect configuration or use of the devices on the Customer’s system.
- The Customer agrees that, to maintain or improve service or for other business reasons, CTS may at its sole discretion modify or temporarily restrict or suspend all or part of the services without notice.
- The Customer acknowledges that CTS makes no representation that it can provide uninterrupted communication services and that such services may be delayed or otherwise limited and is not available everywhere in the world.
- ELECTRONIC LOGBOOKS
- CTS agrees to provide access to the Hours of Service/DVIR tablet and Smartphone Application (hereinafter referred to as the App) in accordance with the first order submitted.
- During the term of this Agreement and subject to the terms and conditions herein, CTS hereby grants the customer a limited, non-exclusive, non-transferable, royalty-bearing license solely to access the App.
- Customer technical support for problems with the App, as well as Billing and any other general questions, will be provided by CTS during reasonable and designated business hours Monday-Friday, 8am to 5pm MST. (Excluding Canadian Federal holidays).
- The Customer acknowledges that they are responsible for ensuring compliance on applicable Hours of Service Regulations in the countries the Customer and/or other Monitored Users are travelling in. CTS will not be liable for any violations or damages due to lack of compliance.
- The Customer is responsible for all Driver Login and Vehicle setup. Once setup, the Customer acknowledges that charges may begin from the date the Driver login or Vehicle is setup and that CTS are not responsible for monitoring logins. The Customer is responsible for keeping the respective user names and passwords confidential and for any communications or transactions made using user name and password. The Customer is responsible for changing the respective user names and password if it is believed that the same has been stolen or might otherwise be misused.
- OBLIGATIONS OF THE CUSTOMER
- The Customer acknowledges and agrees that there is some content accessible through the web mapping and/or reporting services that may be offensive to the Customer or an end user, or that may not be in compliance with applicable law. CTS assumes no responsibility for and exercise no control over the content contained accessible through the CTS Services. The Customer agrees that all content that the Customer and end users access using the CTS Services are accessed and used by the Customer and end users at their own risk, and that CTS will not be liable for any claims, losses, action, damages, suits or proceedings arising out of or otherwise relating to the Customer’s and/or end user’s access to such content.
- The Customer shall not:
- use, nor permit others to use the equipment for any purpose contrary to laws applicable to the Customer or in a way that creates a nuisance or interferes with other users;
- invade another person’s privacy, unlawfully use, possess, post, transmit or disseminate obscene, profane or pornographic material; post, transmit, distribute or disseminate content that is unlawful, threatening, abusive, libelous, slanderous, defamatory or otherwise offensive or objectionable content, unlawfully promote or incite hatred; or post transmit or disseminate objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any applicable municipal, provincial, federal or international law, order or regulation;
- access any computer, software, data, or any confidential, copyright protected or patent protected material of any other person, without knowledge and consent of such person, nor use any tools designed to facilitate such access, such as “packet sniffers”;</sp
- upload, post, publish, deface, modify, transmit, reproduce, or distribute in any way, information, software or other material that is protected by copyright, or other proprietary right, or related derivative works, without obtaining permission of the copyright owner or right holders;
- interfere with computer networking or telecommunications service to or from an internet user, host or network, including but not limited to denial of service attacks, overloading a service, improper seizure or abuse of operator privileges (“hacking”) or attempting to “crash” a host;
- port scan any computer or any other person’s computer, without the knowledge and consent of such person, nor use any tools designed to facilitate such scans.
- The Customer hereby authorizes CTS to obtain information about the credit history of the Customer and acknowledges that CTS may provide information to credit bureaus about the Customer’s credit experience with CTS.
- A Customer may authorize other individuals (“Sub-Account Holders”) to use the System ordered by the Customer under this Agreement. In such cases, the Customer shall ensure that such Sub-Account Holders use the System in a manner that complies with all applicable laws and this Agreement. Customer is solely responsible for such Sub-Account Holders’ usage of the equipment and CTS Services. Customer agrees to require each Sub-Account Holder using Customer’s account to comply with the obligations set forth in this Agreement.
- The Customer is responsible for obtaining the necessary legal consent(s) from those Monitored Users who are being tracked and/or Monitored by the Customer’s use and the Customer’s Sub-Account Holders’ uses of the equipment and CTS Services. If a Monitored User is a minor, the customer acknowledges that the Customer and/or Sub-Account Holder have lawful guardianship over such minor and You further acknowledge that the Customer and/or Sub Account Holder have the legal right to lawfully monitor a user in the location or locations where the System is used. The System is not intended to track minor nor to collect information about minor to avoid being in violation of COPPA regulation. The Customer agrees to indemnify and hold CTS and its agents, licensees, licensors, and subcontractors harmless from any and all costs and expenses regarding any claim(s) arising from the unauthorized tracking and/or monitoring by the Customer or Sub-Account Holders.
- CTS grants to Reseller a limited, non-exclusive, royalty-free, transferable, sub- licensable, right and license to use the CTS Services under Reseller’s or Reseller’s Clients’ control solely in connection with Resellers’s or Reseller’s Clients’ use of the Services, anywhere throughout the world, to:
- access and use the Services, including in operation with other software, hardware, systems, networks and services, for Resellers’s or Reseller’s Client’s business purposes, including for processing Customer Works;
- generate, print, copy, upload, download, store, and otherwise process all visual, digital and other output, displays and other content as may result from any access to or use of the Services;
- access and use the Services for all such non-production uses and applications as may be necessary or useful for the effective use of the Services as permitted hereunder, including for purposes of analysis, development, configuration, integration, testing, training, maintenance, support and repair.
- Except with respect to Reseller’s resale of the Services to its Clients as provided for herein, Reseller is expressly prohibited from copying, sublicensing, reselling, renting, leasing or otherwise redistributing the Services, or permitting either direct or indirect use of the Services by any third party.
- Reseller agrees not to modify, disassemble, decompile, reverse engineer, or create derivative works of any source code of the software in the Services. In the event any modifications are made to the Services by anyone other than CTS, any and all warranties with respect to the Services shall immediately terminate.
- Reseller agrees not to post pricing online in any shape or form. Failure to comply will result in terminations of all Reseller’s and Reseller’s Client’s Services.
- CTS’ graphics, logos, page headers, button icons, scripts, and service names are property of CTS and may not be used in any way shape or form without express written consent of CTS.
- Reseller acknowledges that all code related to the GPS system and application provided by Certified Tracking Solutions Inc. is the sole and exclusive ownership of any intellectual property, including applications, source code, patents or trademarks of Certified Tracking Solutions Inc. Reseller acknowledges that all this is an non-exclusive sales agreement
- CTS grants to Reseller a limited, non-exclusive, royalty-free, transferable, sub- licensable, right and license to use the CTS Services under Reseller’s or Reseller’s Clients’ control solely in connection with Resellers’s or Reseller’s Clients’ use of the Services, anywhere throughout the world, to:
- Unless the Customer provides express consent or disclosure is pursuant to a legal power, all information regarding the Customer kept by CTS other than Customer’s name, address and listed telephone number is confidential and may not be disclosed by CTS to anyone other than:
- the Customer;
- a person who, in CTS’ reasonable judgment, is seeking the information and is operating as the Customer’s agent;
- a Company involved in supplying the Customer with cellular, satellite or mapping related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose;
- a law enforcement agency whenever CTS has reasonable grounds to believe that the Customer has knowingly supplied CTS misleading information or are otherwise involved in unlawful activities directed against CTS;
- a public authority or agent of a public authority, if in CTS’ reasonable judgment, it appears that there is imminent danger to life or property which could be avoided or minimized by disclosure of the information.
- Express consent may be taken to be given by the Customer where the Customer provides:
- Written consent;
- Oral confirmation by an independent third party;
- Electronic confirmation via the internet.
- CTS have no obligation to monitor content or the Customer’s end users’ use of the System. However, the Customer agrees that CTS have the right to monitor and investigate content and Customer’s end users’ use of the equipment from time to time and to:
- disclose any information as necessary to; satisfy any law, regulation or other governmental request or to assist in the pursuit of any legal action against the Customer’s or end users;
- ensure or enforce compliance with this agreement; or
- protect CTS.
- The Customer’s account information may, from time to time, be disclosed to other members of the CTS organization and CTS agents and authorized dealers in order to service the Customer’s account, to respond to the Customer’s and end user’s questions and to promote additional products and services offered by CTS or their related parties may interest the Customer and its end users. CTS may, unless specifically indicated in writing by the Customer not to:
- use a Customer’s units to display real-time locations for sales demonstration purposes,
- identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases, and
- to develop a brief customer profile for use by CTS for promotional purposes.
- CTS may unless specifically indicated in writing by the Customer not to, use a Customer’s units to display real-time locations for sales demonstration purposes.
- Unless the Customer provides express consent or disclosure is pursuant to a legal power, all information regarding the Customer kept by CTS other than Customer’s name, address and listed telephone number is confidential and may not be disclosed by CTS to anyone other than:
- CTS requires 30 days notice by the Customer for the cancellation of any CTS Services. Notices must be sent via email only, to firstname.lastname@example.org. It is the responsibility of the customer to receive confirmation of cancellation directly from this address.
- The Customer acknowledges that fees will apply to the cancellation of term contracts. If, for any reason, the Customer defaults in payment of any two consecutive monthly service amounts dsue or elect to no longer use CTS Services hereunder, the Customer shall pay the total monthly amount at the time the contract was signed for each remaining month which would have been payable to the end of the term of this Agreement. If the customer prepays a term contract and later elects to no longer use CTS Services, the Customer shall not be entitled to a refund or credit on account for the monthly amount and applicable fees for each remaining month to the end of the term of this agreement.
- In the event payment of the amount payable pursuant to Clause 9.2 hereof is not paid, CTS shall have the right to repossess the equipment provided to the Customer hereunder. The Customer authorizes CTS to enter any vehicle owned or controlled by the Customer to retake the equipment, and the Customer shall be responsible for all costs incurred by CTS in enforcing this part of the Agreement.
- Notwithstanding any other provision herein, the agreement may be terminated immediately and at any time by CTS:
- without any liability to the Customer whatsoever, if any charges in any applicable law, regulation, requirement, rule, ruling, guideline, policy or directive prohibits or adversely affects CTS’ ability to provide the services or to fulfill its obligations hereunder, or if a notice from a government agency or department indicates CTS is not permitted to provide any portion or all of the services to be provided;
- immediately and without notice if the Customer fails to pay any amount due that is over 60 days;
- without any liability to the Customer whatsoever, if the Customer materially breaches a term of this agreement and fails to cure such breach within ten (10) days after receipt by the Customer of written notice of such breach;
- without any liability to the Customer whatsoever, if CTS decides to cease offering the services;
- without any liability to the Customer whatsoever, if proceedings are commenced for the liquidation, dissolution, winding-up or suspension of operations of the Customer; or
- without any liability to the Customer whatsoever, if the Customer becomes bankrupt or insolvent, makes any assignment for the benefit of creditors makes any proposal under applicable bankruptcy legislation, seeks relief under any bankruptcy, insolvency or analogous law, is adjudged bankrupt, files a petition or proposal to take advantage of any act of insolvency, contacts to or acquiesces in the appointment of a trustee, receiver or other person with similar powers over itself or all or substantially all of its assets or commences any proceeding seeking reorganization or arrangement or consents to or acquiesces in such proceedings; or
- Upon sixty (60) days notice for any reason whatsoever other than the above, if CTS were to terminate the agreement within the first 365 days of the initial account signing, CTS shall accept the hardware if returned by the Customer in complete working condition, at the current sale price minus a 50% restocking fee.
- If as of the effective date of termination for any reason any installments remain unpaid for hardware for which the Customer has agreed to pay any installment, the full amount of such installment shall become immediately due and owing.
- LIMITS ON LIABILITY
- THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EQUIPMENT IS PROVIDED “AS IS AND “AS AVAILABLE” TO THE EXTENT PERMITTED BY LAW, AND IS SUBJECT TO THE MANUFACTURER’S WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT AND ANY OTHER DAMAGES SUFFERED BY THE CUSTOMER WHICH ARE CAUSED DIRECTLY OR INDIRECTLY BY ANY FAILURES OF THE EQUIPMENT.
- CTS SHALL NOT BE LIABLE FOR (a) ANY ACTS OR OMISSIONS OF CUSTOMER OR THEIR OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS INCLUDING, WITHOUT LIMITATION, DEFAMATION OR COPYRIGHT INFRINGEMENT; (b) ANY DISRUPTION OF ANY PART OF THE EQUIPMENT; (c) ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS ARISING FROM OR IN CONNECTION WITH CUSTOMERS USE OF THE EQUIPMENT; (d) ANY EVENT OF FORCE MAJEURE WITHOUT LIMITING THE GENERALITY OF THE FOREGOING. IN NO CASE SHALL CTS BE LIABLE FOR ANY LOSS, DAMAGE, CLAIM OR DEMAND OF ANY KIND ARISING (a) FROM CHANGES IN ANY FEDERAL, PROVINCIAL OR MUNICIPAL AUTHORITY WHICH LIMITS, RESTRICTS, PROHIBITS, MONITORS OR GOVERNS THE USE OF THE EQUIPMENT; (b) ANY OBSOLESCENCE IN THE EQUIPMENT DUE TO TECHNOLOGICAL ADVANCES; (c) THE INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP OF ANY SUPPLIERS ENGAGED BY CTS.
- CTS,THIER DIRECTORS, OFFICERS, CONTRACTORS OR AGENTS SHALL NOT BE LIABLE TO THE CUSTOMER, ANY END USER OR ANY OTHER PERSON FOR: a) ANY DAMAGES OR LOSSES INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGE, LOSS OF DATA, LOSSES RESULTING FROM THIRD PARTY’S UNAUTHORIZED ACCESS TO DATA, LOSS OF PROFIT, LOSS OF EARNINGS, FINANCIAL LOSS, LOSS OF BUSINESS OPPORTUNITY, PERSONAL INJURY, DEATH OR ANY OTHER DAMAGE OR LOSS HOWEVER CAUSED, RESULTING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE TERMS AND CONDITIONS HEREIN AND THE EQUIPMENT OR SOFTWARE REFERRED TO HEREIN; (b) DEFAMATION OR COPYRIGHT INFRINGEMENT THAT RESULTS FROM MATERIAL TRANSMITTED OR RECEIVED OVER THE CTS FACILITIES; (c) INFRINGEMENTS OF PATENTS ARISING FROM COMBINING OR USING CUSTOMER’S OWN FACILITIES WITH THE EQUIPMENT OR SOFTWARE; (d) ANY ACT OR OMISSION OF CTS, THEIR EMPLOYEES, OR AGENTS WHICH WOULD OTHERWISE BE A CAUSE OF ACTION IN CONTRACT, TORT OR ANY OTHER DOCTRINE OF LAW.WITHOUT LIMITING THE GENERALITY OF THE FOREGOING THE CUSTOMER SHALL BE SOLEY RESPONSIBLE FOR a) DATA TRANSFERS OCCURRING AS A RESULT OF ANY LOST OR THEFT OF EQUIPMENT IN THE CUSTOMER’S POSSESSION; (b) ANY LOSS DUE TO ANY LIMITATION ON EVENT PARAMETERS OR ANY SETTING, MODIFICATION, REVISION OR ALTERATION OF ANY EVENT PARAMETERS.
- CTS does not represent or warrant that the System will be capable of achieving any specific results in the Customer’s business. CTS will not be directly or indirectly liable to the Customer or any other user for any amounts (including those claimed by third parties) representing loss of profits, loss of business, or indirect, special, exemplary, incidental, consequential, or punitive damages, whether foreseeable or not, arising from the performance or non-performance of the equipment.
- CTS makes no representation, warranty or covenant that the Customer’s use of the System will be entirely secure and private. The Customer acknowledges that it may be possible for third parties to monitor communications while controlling access to its equipment and to the information transmitted by the Customer. In addition, the Customer acknowledges and agrees that the Customer is solely responsible for taking the necessary precautions to protect its networks and systems, and all software, data and files stored on or otherwise forming part of its network and the Customer’s system, against unauthorized access by its employees or any third party, and that such responsibility includes, without limitation, protection against unauthorized access through the services. CTS will not be liable for any claims, losses, actions, damages, suits or proceedings whatsoever resulting from, arising out of or otherwise relating to the Customer’s failure to take appropriate precautions to protect its networks and systems and all software, data and files stored on or otherwise forming part of its network and systems, against unauthorized access by its employees or any third party or any other breach of Customer’s security or privacy.
- The Customer shall defend and indemnify CTS, its parents, successors, affiliates and agents from any claims, damages, losses or excessive balance, including unbilled usages and pending charges, fees and adjustments in connection with all claims, suits, judgments, and causes of action (a) for infringement of patents or other proprietary rights arising from the Customer combining with or using any device, system or service in connection with the equipment; (b) libel, slander, defamation or infringement of copyright or other proprietary right with respect to material transmitted by the Customer over the CTS facilities; (c) injury, death or property damage arising in connections with the presence, use or non-use by the Customer of the equipment or software.
- The Customer acknowledges that CTS is not responsible for the content, availability, delivery, or accuracy of any information, email, data, files, pictures, or content accessible or made available using the System. CTS acknowledges that the delivery and accuracy of web mapping data is paramount to the Customer and will use reasonable commercial efforts to deliver the intended data.
- CTS shall not be liable for changes in services or technology used by the mapping, cellular and satellite communication providers making the system non-operational.
- CTS shall not be liable for the cellular or satellite providers’ equipment failures or modifications, act of god, strikes, government action, or other causes beyond CTS’ reasonable control.
- CTS shall not be liable for and makes no representations that their equipment or services can prevent theft for any mobile or fixed assets.
- CTS is not liable for any loss of life, commerce, opportunity or any costs incurred due to deactivation of any hardware.
- The Customer acknowledges that equipment supplied by or on behalf of Certified Tracking Solutions may be installed by a Third Party at the request of the Customer. In that event, the Customer acknowledges that it shall have no claim of any kind against Certified Tracking Solutions in respect of the install, howsoever arising, and the Customer does hereby release, discharge and remise Certified Tracking Solutions of and from any claim for loss or damage howsoever arising out of the installation by a Third Party of equipment supplied by Certified Tracking Solutions whether the cost of the installation is initially paid by Certified Tracking Solutions or otherwise.. Improper installation that causes any type of equipment malfunction will void equipment warranty.
- All notices given under this agreement shall be in writing and shall be deemed to have been duly delivered, effective upon receipt if sent electronic confirmation via the internet, faxed, or hand delivered effective three business days after being deposited, postage prepaid, return receipt requested, in the mail and sent to the appropriate address supplied by the Customer on the account application.
- Any party may at any time give notice in writing to the other party of any change of address of the party giving such notice and from and after the giving of such notice the address therein specified shall be deemed to be the address of such party for the giving of notices hereunder.
- GENERAL TERMS
- This agreement constitutes the entire understanding between the parties with such respect to the subject matter of this agreement and there are no representations, warranties, covenants, agreements or collateral understandings, oral or otherwise, expressed or implied, affecting this instrument which are not expressly set forth herein.
- This agreement shall be governed by and construed in accordance with the laws of the Province of Alberta.
- Waiver by either party of any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default.
- If a provision of this agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire agreement, but rather the entire agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions.
- The parties hereto have required that this agreement and all documents or notices resulting there from or ancillary thereto be drawn up in the English language.
- In no event shall either party have any liability for failure to comply with this agreement, if such failure results from the occurrence of any contingency beyond reasonable control of the party including, without limitation, strike, or other labour disturbance, riot, theft, flood, lightning, storm, any act of god, power failure, war national emergency, interference by any government or governmental agency, embargo, seizure, or enactment of any law, statute, ordinance, rule or regulation.
- This Agreement shall ensure to the benefit of and be binding upon the parties hereto their respective heirs, executors, successors and assigns. This agreement may be assigned by CTS without the consent, express or implied of the Customer. The Customer may not assign this agreement without the consent of CTS first being obtained, any assignment without the Consent of CTS shall entitle CTS to forthwith terminate this agreement.
- The terms and conditions of any order form, purchase order or invoice shall incorporate only the terms and conditions of this agreement and the terms and conditions contained in this agreement shall superseded any conflicting terms and conditions contained in any such order form, purchase order or invoice.
- The headings of all articles or sections herein are inserted for convenience or reference only and shall not affect the construction or interpretation hereof. Except where the context otherwise indicates, words importing the masculine gender shall include the feminine gender.
- This agreement shall be binding on the parties and their respective legal successors and permitted assignees.
- The Customer shall pay all costs incurred by CTS including, reasonable legal fees, to enforce this Agreement or any part thereof.
- Payments for Equipment or CTS Services which are returned by banks or credit card companies for insufficient funds will result in a charge to the Customer of $50.00 or such a higher amount as charged by the applicable bank(s) relating to such returned payment.
APPENDIX A – Customer Terms Mandated by Wireless Provider
- For the purposes of this Appendix, the term “End User” refers to the Customer.
- End User acknowledges that the services provided to CTS by the underlying carrier are made available only when the End User Equipment is in operating range of the facilities of the underlying carrier. In addition, the services of the underlying carrier may be temporarily refused, interrupted, or limited at any time because of:
- limitations to the underlying carrier facilities;
- transmission limitations caused by atmospheric, topographical or other factors outside of the underlying carrier’s reasonable control;or
- equipment modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of the services provided to CTS by the underlying carrier. Individual data transmissions may be involuntarily delayed for a variety of reasons, including atmospheric conditions, topography, weak batteries, system over-capacity, movement outside a geographic locations in which the services are available from time to time and gaps in coverage within said geographic locations.
- End User acknowledges that:
- it is possible for third parties to monitor data traffic over the facilities of the underlying carrier and privacy cannot be guaranteed;
- if End User desires to secure transmission of data, End User must provide for its own means of doing so; and
- End User assume full responsibility for the establishment of appropriate security measures to control access to its own respective equipment and information.
- END USER HAS NO PROPERTY RIGHT IN ANY IDENTIFIER ISSUED TO OR ASSOCIATED WITH END USER OR ANY EQUIPMENT USED BY END USER.
- END USER EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING CARRIER AND THAT END USER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN CTS AND THE UNDERLYING IN ADDITION, END USER EXPRESSLY UNDERSTANDS AND AGREES THAT THE UNDERLYING CARRIER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER AND SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO END USER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
- END USER SHALL INDEMNIFY AND HOLD HARMLESS THE UNDERLYING CARRIER SUPPLYING SERVICES TO CTS AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, INFRINGEMENT OF COPYRIGHT, OR PERSONAL INJURY OR DEATH, ARISING IN ANY WAY DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT OR THE USE, MISUSE, FAILURE TO USE, OR INABILITY TO USE THE EQUIPMENT. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
- END USER SHALL INDEMNIFY AND HOLD HARMLESS THE UNDERLYING CARRIER SUPPLYING SERVICES TO CTS ANUnless End User provides express consent or disclosure is pursuant to a legal power, all information kept by CTS regarding the End User, other than the End User’s name, address and listed telephone number, is confidential and may not be disclosed by CTS to anyone other than:
- the End User;
- a person who, in the reasonable judgement of CTS, is seeking the information as an agent of the End User
- another telephone company, provided the information is required for the efficient and cost-effective provision of telephone service and disclosure is made on a confidential basis with the information to be used only for that purpose;
- a company involved in supplying the End User with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose;
- an agent retained by the CTS in the collection of End User’s account, provided the information is required for and is to be used only for that purpose.
- Express consent may be taken to be given by an End User where the End User provides:
- written consent;
- oral confirmation verified by an independent third party; Express consent may be taken to be given by an End User where the End User provides:
- electronic confirmation via the Internet;
- oral consent, where an audio recording of the consent is retained by CTS; or
- consent through other methods, as long as an objective documented record of Customer consent is created by the Customer or by an independent third party.
- In respect of the provision of emergency services on a mandatory basis, CTS is not liable for:
- libel, slander, defamation or the infringement of copyright arising from material or messages transmitted over CTS’ network from END USER’s property or premises or recorded by END USER’s equipment or CTS’ equipment;
- damages arising out of End User’s act, default, neglect or omission in the use or operation of equipment provided by CTS;
- damages arising out of the transmission of material or messages over CTS’ network on End User’s behalf which is in any way unlawful; or
- any act, omission or negligence of other companies or telecommunications systems when their facilities are used in establishing connections to or from END USER’s facilities and equipment.
- Furthermore, except in cases where negligence on CTS’ part results in physical injury, death or damage to End User’s property or premises, CTS’ liability for negligence related to the provision of emergency services on a mandatory basis is limited to the greater of $20 and three times the amount (if any) CTS would otherwise be entitled to receive as a refund for the provision of defective service under this agreement. However, CTS’ liability is not limited by this subsection in cases of deliberate fault, gross negligence or anticompetitive conduct on CTS’ part or in cases of breach of contract where the breach results from CTS’ gross negligence.
- End User HEREBY ACKNOWLEDGES THAT CTS IS ACTING AS AGENT TO THE UNDERLYING CARRIER SUPPLYING SERVICES TO CTS FOR THE LIMITED PURPOSE OF SECURING PERFORMANCE OF THE FOREGOING PROVISIONS.
- THE UNDERLYING CARRIER’S SERVICES DO NOT INCLUDE ANY VOICE SERVICES.
- THE SIM SUPPLIED WITH THE EQUIPMENT MAY ONLY BE USED IN SUCH EQUIPMENT AND IN NO OTHER WIRELESS DEVICE.
- Roaming End Users may only roam incidentally to their use of the Services in USA and Canada.
APPENDIX B – Titan GPS Software as a Service Terms and Conditions
These TitanGPS Software as a Service Terms and Conditions (these “SaaS Terms”) are applicable to the Customer who purchases access to the TitanGPS application (the “App”). To the extent any of these SaaS Terms conflict with the terms of the Agreement, these SaaS Terms will control. Customer hereby acknowledges and agrees as follows:
- License. Subject to the terms and conditions of these SaaS Terms, CTS (a) will use commercially reasonable efforts to host, operate and maintain the App, and/or other services offered by CTS (collectively, the “Services”), (b) grants Customer a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services and (c) grants Customer a non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content (as defined herein) solely for purposes of using the Services. For clarity, unless otherwise specified by CTS in writing, any and all rights or licenses granted by CTS to Customer shall only apply to Customer and not Customer’s affiliates, including, without limitation, any parent, subsidiary, or other entity controlled by or under common control with Customer.
- Access and Account Setup. CTS will provide Customer with a unique login and password to access the Services web pages which are hosted and maintained by CTS. Customer shall be responsible for the acts or omissions of any person who accesses the Services using logins provided to or created by Customer. CTS reserves the right to modify or discontinue any part of the Services at any time by giving thirty (30) days’ prior written notice to Customer, provided that in the event such modification or discontinuance materially reduces the functionality of the Services, Customer may terminate these SaaS Terms upon at least thirty (30) days’ prior written notice to CTS, and CTS shall provide Customer with a pro-rated refund of any pre-paid fees for Services not performed by the effective date of termination. From time to time, CTS personnel may log in to the Service under Customer’s account in order to maintain or improve the Service, including providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access.
- Service Availability. CTS will use commercially reasonable efforts to maintain the Service availability to send and receive data, subject to downtimes resulting from maintenance, repairs and upgrades. CTS will attempt to notify Customer in advance of any planned downtime. Notwithstanding the foregoing, CTS will not be liable for any failures in the Service or any other problems which are related to (a) the Customer Content (as defined herein) (b) outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of CTS’s facilities or control.
- Trial or Free Services. CTS reserves the right to terminate access to Services offered on a trial or free basis in its sole discretion.
- Service Support. CTS will provide Customer with e-mail support for Customer’s use of the Service during CTS’s regular business hours. Customer agrees that CTS is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer’s systems or hardware.
- Customer Content. As used herein, the term “Content” includes, without limitation, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services, including without limitation all Customer Content (as defined below). All Content created through or submitted to the Services by Customer (collectively “Customer Content”) is the sole responsibility of Customer. Customer acknowledges and agrees that CTS will not assume any, and hereby disclaims all, responsibility and liability for Customer Content and any modifications thereto. Customer hereby grants CTS a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the Customer Content in connection with providing the Services to Customer.
- Use Restrictions. Except as expressly permitted in these SaaS Terms, Customer shall not directly or indirectly (a) use any of CTS’s Confidential Information (defined below) to create any service, software, documentation or data that is similar or competitive to any aspect of the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any arrangement for the benefit of any third party, (d) copy, harvest, scrape, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to these SaaS Terms (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (f) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services, (g) remove any copyright patent, trademark, or other intellectual property notices, information, and restrictions contained in any Content accessed through the Services, or (h) permit any third party to engage in any of the foregoing proscribed acts.
- Limitations. CTS will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Customer’s use of the Services not in accordance with these SaaS Terms or any relevant documentation provided by CTS, (b) failures in any telecommunications, network or other service or equipment outside of CTS’s or its service providers’ facilities, (c) Customer’s or any third party’s products, services, negligence, acts or omissions, (d) any force majeure or other cause beyond CTS’s reasonable control, or (e) unauthorized access, breach of firewalls or other hacking by third parties.
- PROPRIETARY RIGHTS
- Subject to the rights and licenses expressly granted hereunder, Customer shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Customer Content. Subject to the limited rights and licenses expressly granted hereunder, CTS (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Services, the App, all Content (excluding the Customer Content), all CTS trademarks, names, logos, all copies, modifications and derivative works thereof, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights therein. Additionally, all Customer (a) suggestions for correction, change or modification to the Services, (b) evaluations, and (c) other feedback, information and reports provided to CTS hereunder (collectively, “Feedback”), will be the property of CTS, and Customer shall and hereby does assign any rights in such Feedback to CTS. Customer agrees to assist CTS, at CTS’s expense, in obtaining intellectual property protection for such Feedback, as CTS may reasonably request.
- Definition. Each party agrees that the business, technical and financial information, including without limitation, the Services, the App, and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of these SaaS Terms, designated in writing as confidential or disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). For the avoidance of doubt, any and all data provided to Customer through the Services (other than Customer Content) shall be considered CTS’s Confidential Information. Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party.
- Confidentiality. Except for the specific rights granted by these SaaS Terms, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of these SaaS Terms and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as these SaaS Terms. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, these SaaS Terms without the prior consent of the other party; provided that either party may provide a copy of these SaaS Terms or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
- Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any applicable court order, law, rule or regulation; provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party (to the extent legally permitted) in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
- PAYMENTS; TAXES
- Customer shall pay to CTS [the system access fees set forth in the applicable TitanGPS Order Form] , as same may be amended from time to time. Customer agrees to pay all fees and charges specified, including but not limited to, applicable charges in advance of or on the established due dates and to pay late payment charges at the rate stipulated, as the same may be amended from time to time, on any overdue amounts. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon CTS’s net income.
- LIMITED WARRANTY AND DISCLAIMERS
- General. Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into these SaaS Terms and to perform its obligations hereunder; (b) these SaaS Terms is legally binding upon it and enforceable in accordance with its terms; (c) the execution, delivery and performance of these SaaS Terms does not and will not conflict with any agreement, instrument, judgment or understanding to which it is a party or by which it may be bound; and (d) it will perform its obligations hereunder in accordance with all applicable laws.
- Customer. Customer represents and warrants that (a) Customer has all rights to grant the licenses to CTS set forth herein, including without limitation to Customer Content, without infringement or violation of any applicable laws or third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights, and (b) Customer shall not make available through the Services any Content that is disparaging, obscene, offensive, or otherwise inappropriate or that contains any viruses or any other harmful code.
- CTS HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
- Customer. Customer agrees to defend against and hold CTS harmless from any claim by a third party that arises from or is related to (a) any Customer Content, (b) Customer’s use of the Services in violation of these SaaS Terms, and to indemnify CTS for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.
- CTS. CTS agrees to (a) defend against and hold Customer harmless from any claim by a third party that Services infringe a valid U.S. or Canadian patent, or any copyright or trade secret, of such third party and (b) indemnify Customer for settlement amounts or third party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If any part of the Services become or, in CTS’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, CTS may, at its option (1) obtain for Customer the right to continue using the Services or (2) replace or modify the Services so that such services become non-infringing. If (1) and (2) are not reasonably available to CTS, CTS may terminate these SaaS Terms upon written notice to Customer and refund to Customer a pro-rated amount of any pre-paid fees. CTS shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) any use of the Services not strictly in accordance with these SaaS Terms or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (ii) modifications, alterations, combinations or enhancements of the Services not created by or for CTS, (iii) any Customer Content, or (iv) Customer’s continuing allegedly infringing activity after being notified thereof. The foregoing states the entire liability of CTS, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.
- Procedures. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
- LIMITATION OF LIABILITY
- EXCEPT FOR ANY BREACH OF SECTION 3 (CONFIDENTIALITY) OR LIABILITIES TO THIRD PARTIES PURSUANT TO SECTION 7 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE SAAS TERMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, LOSS OF, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT (IN THE CASE OF CTS) OR PAID AND PAYABLE BY IT (IN THE CASE OF CUSTOMER) HEREUNDER DURING THE SIX (6) MONTHS PRECEDING SUCH CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE SAAS TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
- TERM AND TERMINATION
- Term. Unless otherwise specified by the parties in an order form, or unless terminated as provided herein, these SaaS Terms shall continue for one (1) year. The term shall automatically renew for successive one (1) year terms, unless either party notifies the other party of its intent not to renew at least thirty (30) days prior to the end of the then current term.
- Termination. These SaaS Terms may be earlier terminated by either party (a) if the other party materially breaches a provision of these SaaS Terms and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party (ten (10) days in the case on non-payment).
- Effects of Termination. Upon any expiration or termination of these SaaS Terms, all corresponding rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive. The provisions of Sections 2 (Proprietary Rights), 3 (Confidentiality), 6 (Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.3 shall survive.
- GENERAL PROVISIONS
- Entire Agreement. The Agreement (including these SaaS Terms) constitutes the entire agreement, and supersedes all prior negotiations or agreements (oral or written), between the parties regarding the subject matter hereof. Any inconsistent terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under these SaaS Terms.
- Publicity. Customer hereby consents to inclusion of its name and logo in client lists and marketing materials that may be published as part of CTS’s marketing and promotional efforts. From time to time upon CTS’s request, Customer agrees it will provide reasonable cooperation and assistance in connection with such efforts (such as, for example, by acting as a reference, issuing press releases and writing testimonials and case studies with statements attributed to a named employee of Customer).
- Modification and Waiver. No change, consent or waiver under these SaaS Terms will be binding on either party unless made in writing and physically signed by an authorized representative of both parties. The failure of either party to enforce its rights under these SaaS Terms at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.
- Governing Law. These SaaS Terms shall be governed by and construed under the laws of the Province of Alberta without regard to conflicts of laws provisions thereof.
- Remedies. Except as specifically provided otherwise herein, each right and remedy in these SaaS Terms is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
- Assignment. These SaaS Terms and the rights and obligations hereunder may not be assigned, in whole or in part, by Customer without CTS’s written consent. These SaaS Terms shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
- Amendments. CTS may from time to time update these SaaS Terms, which shall be effective immediately upon written or email notification to Customer. If Customer objects to such updated terms, it shall have the right to terminate these SaaS Terms and its access to the Services by notifying CTS in writing within 30 days.
- Independent Contractors. The parties shall be independent contractors under these SaaS Terms, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
SCHEDULE 1 TO APPENDIX B – Titan GPS Software Terms and Conditions
Purpose of the Software. The Software is published, owned, and operated by CTS. The Software is licensed to third-party entities (each, a “Licensee”) by CTS and may be used for:
- enhanced monitoring and compliance services for Licensee;
- monitoring the entry of employees and visitors upon the Licensee’s business premises; and
- tracking vehicles for Licensee.
Licensee may have also developed other policies on the implementation and use of the Software. It is your responsibility to read and comply with such applicable policies.
Use of the Software. CTS grants you a non-exclusive right to access and use the Software, and the content or information herein (the “Content”) solely for purposes as authorized by CTS. You agree to use the Software only for lawful purposes and comply with applicable laws in your jurisdiction. You agree to provide correct and complete information when using the Software.
User Account Responsibility. If you are given or create a password to access to the Software, you are responsible for maintaining the confidentiality of your new account and your password. You are responsible for all activities that occur under your account and you agree to notify CTS immediately of any unauthorized use of your account. CTS is not responsible for any loss that you may incur as a result of any unauthorized person using your account or your password.
Prohibited Uses. You agree that you will not:
- Provide inaccurate or incomplete responses to any Licensee or CTS inquiries issued through the Software;
- Use the Software in any manner that could damage, disable, overburden, or impair the Software or interfere with any other party’s use and enjoyment of the Software;
- Attempt to gain unauthorized access to any Software account, computer systems or networks associated with the Licensee, CTS or the Software;
- Obtain or attempt to obtain any materials or information through the Software by any means not intentionally made available or provided for by the Licensee or CTS;
- Use any robot, spider, or other automatic device, process or means to access the Software for any purpose, including monitoring or copying any of the material on the Software;
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful;
- Attack the Software via a denial-of-service attack or a distributed denial-of-service attack; or
- Impersonate or attempt to impersonate CTS, a CTS employee, the Licensee, a Licensee employee, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
Also, any of the names and logos (commonly referred to as “trademarks”) that appear on the Software are owned by CTS or the Licensee or others who have licensed such marks and their use to CTS or the Licensee. The trademarks may not be used in any manner without the prior permission of the owners. You acknowledge and agree that you are solely responsible for complying with the applicable restrictions on use of all Content and trademarks that you see, hear, and use on the Software. You understand that any unauthorized use of such intellectual property would result in irreparable injury to CTS or other owner for which money damages would be inadequate and in such event CTS or the owner will have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief to prevent any such unauthorized use.
CTS owns and retains all copyrights in the Software or Content. Except as specifically permitted by CTS, the Software or Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivatives.
Disclaimer. ALL INFORMATION OR SERVICES PROVIDED BY CTS TO YOU VIA THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY WARRANTIES OF ANY KIND. CTS, ITS LICENSEES AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, CTS AND ITS LICENSORS AND LICENSEES MAKE NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, QUALITY, SUITABILITY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY OR AVAILABILITY OF THE SOFTWARE OR ANY CONTENT POSTED ON OR OTHERWISE ACCESSIBLE VIA THE WEBSITE. YOU SPECIFICALLY ACKNOWLEDGE THAT CTS AND ITS LICENSORS ARE NOT LIABLE FOR THE DEFAMATORY, OBSCENE OR UNLAWFUL CONDUCT OF OTHER THIRD PARTIES OR USERS OF THE WEBSITE AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. NEITHER CTS NOR ITS LICENSORS OR LICENSEES REPRESENT, WARRANT OR COVENANT THAT THE SOFTWARE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. CTS FURTHER MAKES NO WARRANTY THAT THE WEBSITE WILL BE FREE OF VIRUSES, WORMS OR TROJAN HORSES OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SOFTWARE. YOU EXPRESSLY AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT CTS, ITS AFFILIATES AND LICENSORS AND LICNESEES SHALL NOT BE RESPONSIBLE FOR ANY TERMINATION, INTERRUPTION OF SERVICES, DELAYS, ERRORS, FAILURES OF PERFORMANCE, DEFECTS, LINE FAILURES, OR OMISSIONS ASSOCIATED WITH THE SOFTWARE OR YOUR USE THEREOF. YOUR SOLE REMEDY AGAINST CTS FOR DISSATISFACTION WITH THE SOFTWARE OR THE CONTENT IS TO CEASE YOUR USE OF THE SOFTWARE AND/OR THE CONTENT.
Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL CTS, ITS LICENSEES OR ITS LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF INFORMATION OR PROGRAMS ON YOUR DATA HANDLING SYSTEM, TRANSACTION LOSSES, OPPORTUNITY COSTS, INTERRUPTION OF BUSINESS OR COSTS OF PROCURING SUBSTITUTE GOODS) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATING TO THE SOFTWARE, OR THE CONTENT, DATA, OR INFORMATION ACCESSED VIA THE SOFTWARE OR ANY HYPERLINKED WEBSITE, OR ANY DISRUPTION OR DELAY IN THE PERFORMANCE OF THE SOFTWARE, REGARDLESS OF THE FORM OF THE CLAIM OR ACTION, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, STATUTE OR OTHERWISE, AND REGARDLESS OF WHETHER OR NOT SUCH DAMAGES WERE FORESEEN, UNFORESEEN OR FORESEEABLE, EVEN IF CTS OR ITS LICENSEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Indemnity. You agree to defend, indemnify and hold harmless CTS and its affiliates, Licensees, licensors and service providers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms or your use of the Software.
General. You agree that no joint venture, partnership, employment, or agency relationship exists between you and CTS as a result of these Terms or use of the Software. You may not assign these Terms without the prior written consent of CTS in all instances. CTS may assign these Terms, in whole or in part, at any time. CTS performance of this agreement is subject to existing laws and legal process, and nothing contained in these Terms is in derogation of CTS’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Software or information provided to or gathered by CTS with respect to such use.
CTS Contact Information.
Questions can be directed to CTS at:
Certified Tracking Solutions, Inc.
4320 Savaryn Drive SW
Edmonton, AB, Canada T6X 1Z9
SCHEDULE 2 to Appendix B TitanGPS Software Terms and Conditions
TitanGPS technologies (“TitanGPS” or “Software”) is published, owned, and operated by CTS. The Software is licensed to third-party entities (each, a “Licensee”) by CTS and may be used for the following purposes, amongst others:
- enhanced monitoring and compliance services;
- monitoring the entry of employees and visitors upon a business premises; and
- tracking vehicles.
This Policy describes:
- The types of information collected from you or that you may provide when you access the Software through our provided device upon entry onto our business premises or through the Software you download on your personal device.
- Our practices for collecting, using, maintaining, protecting, and disclosing that information.
Please read this Policy carefully to understand our practices regarding your information and how we will treat it. If you do not agree with our policies and practices, then please do not use the Software. By downloading and using the Software, you agree and acknowledge on your own behalf that you have read, understand and agree to be bound by this Policy. This Policy may change from time to time (see below, “Changes to this Policy”). The Licensee has also developed additional policies for the implementation and use of the Software, which are hereby incorporated by reference. Your continued use of TitanGPS after we make changes is deemed acceptance of those changes, so please check the Policy periodically for updates.
What We Collect and How We Collect It
We will store, use, and share information about you in accordance with this Policy.
Information You Provide to Us
Personal Information is any information that can individually identify you from a larger group, such as data including, but not limited to, your:
- first and last name
- email address
- telephone number
- information, comments or messages provided in free text boxes
- responses to survey questions which may include health-related information (i.e., temperature and symptoms)
You may provide us Personal Information when you:
- register yourself to use the Software;
- input information and provide responses to questionnaires;
- access facilities or vehicles; or
- download the Software
The information that you provide in each case may vary on the service you use. CTS may collect information that can be directly or indirectly identifiable in various categories including:
- individual location and activity tracking;
- vehicle location and activity tracking;
- time tracking, including log in, log out and overtime compliance;
- agricultural performance monitoring.
Automated Information Collection
In addition to the information that you provide directly to us, we may also collect information about you during your visit or use of TitanGPS through automated tools. These tools may collect information about your device, such as your internet address (IP Address), and any actions you have taken while using the Software. When using the Software, your location information can be collected through your device’s IP address, Wi-Fi, and Bluetooth. Your location can also be determined using your device’s GPS coordinates, including latitude, longitude and other telemetry data. This information can be used for a variety of purposes, including tracking vehicles or monitoring entry onto the business premises by employees and visitors and may prompt action requests.
Your Choices and Selecting Your Privacy Preferences
When possible, we will always provide you choices as to how we use your Personal Information. In those instances, we will provide you options on ways to limit or prevent the use or sharing of your Personal Information. You may always discontinue use of the Software at any time; however, such a choice may have implications, such as preventing your access to certain facilities or use of a vehicle.
Any such communications you receive from us will be administered in accordance with your preferences and this Policy.
Accuracy and Access to Your Personal Information
We strive to maintain and process your information accurately. We have processes in place to maintain all of our information in accordance with relevant data governance frameworks and legal requirements. We employ technologies designed to help us maintain information accuracy on input and processing.
To view and change the Personal Information that you have provided to us, you can contact us directly for assistance.
Information of Minors
We do not intentionally seek to gather information from individuals under the age of sixteen (16). We do not target the Software to minors, and would not expect them to be engaging with TitanGPS. If we are aware of any Personal Information that we have collected about minors without the necessary consents of parents or legal guardians, we securely remove it from our systems.
How We Use Your Information
The information we gather and that you provide is collected for:
- Assessing and monitoring employee and visitor entry into our business;
- Enforcing applicable policies for entry into our business;
- Preventing malicious activity and providing you with a secure experience.
How We Share Your Information
Except as described in this Policy, we will not share your information with third parties without your notice and consent, unless it is under one of the following circumstances:
- Responding to duly authorized information requests from law enforcement or other governmental authorities.
- Complying with any law, regulations, subpoena, or court order.
- Investigating and helping prevent security threats, fraud, or other malicious activity.
- Enforcing or protecting the rights and properties of CTS, Licensees or any subsidiaries.
- Protecting the rights or personal safety of CTS or Licensee employees.
We do not sell or lease your information to any third party. We may disclose your Personal Information to our trusted third-party business partners in accordance with this Policy. We work with a number of partners that help us process data provided by you and collected about you. We will share your Personal Information with these third parties in order to fulfill the service that they provide to us. These third-party partners are under contract to keep your Personal Information secure and not to use it for any reason other than to fulfill the service we have requested from them.
There are circumstances where CTS may decide to buy, sell, or reorganize its business in selected countries. Under these circumstances, it may be necessary to share or receive Personal Information with prospective or actual partners or affiliates. In such circumstances, CTS will ensure your information is used in accordance with this Policy.
Third-party Software or Websites
United States and Canada
TitanGPS is designed for use by individuals in the United States and Canada only. We do not warrant or represent that the Software’s use of your Personal Information complies with the laws of any other jurisdiction. Furthermore, to provide you with our services, CTS or its trusted third parties may store, process, and transmit information in the United States and other locations around the world, including countries that may not have the same privacy and security laws as yours. Regardless of the country in which such information is stored, we will process your Personal Information in accordance with this Policy.
Changes to this Policy
Safeguarding the Information We Collect
We use reasonable technical, administrative, and physical safeguards in order to protect your Personal Information against accidental loss and from unauthorized access, use, alteration, and disclosure. However, we can never promise 100% security. You have a responsibility, as well, to safeguard your information through the proper use and security of any online credentials used to access your Personal Information, such as a username and password. If you believe your credentials have been compromised, please change them. Please also notify us of any unauthorized use.
How to Contact Us
We value your opinions and welcome your feedback. To contact us about this Policy or your Personal Information, please contact us at:
Certified Tracking Solutions, Inc.
4320 Savaryn Drive SW
Edmonton, AB, Canada T6X 1Z9