VEHICLE TRACKING SOLUTIONS® SILENT PASSENGER® MASTER SERVICES AGREEMENT
Version Number 4.0SPS – January 2018
Please read this agreement carefully.
ENTERING INTO THIS MASTER SERVICES AGREEMENT (“MSA”) WITH VEHICLE TRACKING SOLUTIONS OR YOUR USE OF THE SERVICES PROVIDED UNDER THIS AGREEMENT, CONSTITUTES ACCEPTANCE OF THE TERMS OF THIS AGREEMENT IN THEIR ENTIRETY.
Terms and Conditions
In this Master Services Agreement (the “Agreement”), “you” and “your” refer to the customer (“Customer”) and its agents, including each person or entity listed in your account information as being associated with your account as end users, and “we”, “us” and “our” refer collectively to Vehicle Tracking Solutions, LLC and its wholly-owned subsidiaries (“Vehicle Tracking Solutions” or “VTS”). This Agreement sets forth our obligations to you, and your obligations to us in relation to the purchase of VTS’s subscription-based real-time GPS/Cellular fleet management service (the “Service” or the “Services”). In addition, this Agreement shall govern any vehicle equipment installation services (the “Installation Services”) purchased or provided to you by VTS. Subsequent orders placed for additional units or services (“Add Ons”) shall be governed by the terms and conditions of this Agreement. Upon execution of this Agreement and compliance with its terms, VTS shall be added to Customer’s list of approved vendors.
2a. TERM. This Master Services Agreement shall apply to any and all Work Orders or other agreements covering the deployment and/or use of any and all VTS Services for the length duration specified in the work order.
2b. Additional Equipment/Account Modifications. All hardware provided by VTS in connection with the Services (“Equipment” or “AVL device”) shall be, and remain, at all times, the property of VTS. Any subsequent GPS/Cellular-based units added by Customer and installed, serviced or supported by VTS after the commencement of this Agreement shall be deemed Equipment and will be covered pursuant to the terms of this Agreement at the prices and for the term as set forth in this Agreement. All fees shall be paid in the amount and on the dates set forth in the on the Customer Order form (Work Order) set forth herein upon first activation and the Term for any new Equipment shall expire as per the Term set forth in such Work Order.
3. INSTALLATION OF EQUIPMENT
In the event that VTS is providing installation services, the following additional terms and conditions shall apply:
3a. List of Vehicles/Facilities. Customer shall provide VTS with a list of vehicles to be included and covered by this Agreement. The list shall include each vehicle’s year, make, model, vehicle identification number (VIN), and license plate number. VTS reserves the right to choose the customer location at which it will complete all installations.
3b. Initial Installation Procedure. VTS shall install Equipment for each Customer-owned vehicle listed as an Exhibit to any Work Order to this Agreement at the locations agreed upon by the parties, provided that all initial vehicle installation work performed by VTS shall occur between the hours of 0800 and 1600 Tuesday through Friday. VTS shall allocate (and provide free of charge) 45 minutes per vehicle of onsite time for each installation. Any additional installation time required will be billed at the rate of $85/hour. If a vehicle is already equipped with a VTS tracking device under the terms of an earlier VTS agreement, VTS will remove the existing tracking device and take possession of the previously installed equipment. If Customer chooses to do its own installation or if VTS utilizes a subcontractor for installation and shipping is required, Customer is responsible for shipping costs. Notwithstanding the above, the initial installation, upon Agreement execution, there shall be no shipping costs charged.
3c. Follow-up Work or Work to be performed pursuant to Warranty. If any follow-up work or work to be performed pursuant to a warranty is needed, VTS shall perform such work during VTS’s normal business hours of 0800 and 1600 Tuesday through Friday at the locations designated by the Customer in any Exhibit to a fully executed Work Order or as agreed upon by the parties. If shipping is required for equipment to complete the follow-up work, Customer is responsible for shipping costs.
4. VTS EQUIPMENT
4a. The AVL device provided as part of the Service shall be covered by warranty for the Term. If any equipment does not function properly, Customer shall notify VTS and must include the model number, IMEI/MEID number, and a description of the issue. VTS shall, at its option, either repair, replace or correct any such issues with the Equipment. Notwithstanding the above, VTS shall not warranty the AVL device for any failure due to changes in wireless technology. Other than the AVL device, no other equipment warranty is provided.
4b. A service fee of $50 (plus actual tolls incurred) will be charged if any appointment for service is not canceled at least 12 hours before its scheduled time on weekdays, and $75 (plus actual tolls incurred) if appointment is not canceled at least 12 hours before its scheduled time on weekends.
4c. If any device is deemed to have failed due to any damage to hardware or related Equipment caused by accident, misuse, attempted or unauthorized repair service, modification, or improper installation by anyone other than VTS, a non-warranty replacement must be purchased by Customer at a cost of $249, which covers replacement cost of such.
4d. Customer must return all Equipment to a place and in a manner designated by VTS, including VTS tracking devices in its possession at the end of the Term unless otherwise notified by VTS. VTS will charge (and Customer agrees to pay) $249 for each Unit that, in VTS’s sole discretion, is not returned in good working condition within 30 days. (Equipment returned to VTS is tested upon receipt at VTS headquarters; testing is designed to insure unit remains functional – casing subject to normal wear and tear, but intact and unit continues to receive GPS signal and transmit via cellular network.) If Customer requests, (i) VTS will test and remove all equipment for a fee of $35/unit. As a part of this service, VTS will provide documentation of equipment in good working order at time of removal, or (ii) at no charge, VTS will verify before removal that each unit is in good working order, provided customer does not damage the unit in removal or return shipment to VTS, there will be no charge for units not returned in good working order.
5a. Availability. Service may be temporarily refused, limited or otherwise interrupted due to governmental regulations or orders, system capacity limitations, Customer’s or common carrier’s interconnection capabilities, atmospheric or topographical conditions, equipment failure, modification, repair, upgrade or relocation.
5b. Use. Customer will use the Service for lawful business purposes only and will not at any time resell, transfer, or assign the Service.
5c. Security. VTS shall treat all information supplied to it by Customer as strictly confidential and proprietary information of Customer and VTS shall not permit release of information to other parties or make any public announcement or publicity releases without Customer’s prior written authorization. This paragraph may be replaced by a mutually agreed separate Confidentiality Agreement at the discretion of Customer. Notwithstanding the foregoing, VTS cannot and will not guarantee 100% security with respect to the Service. VTS shall not be liable for any damages related to any breaches of security in any way related to Customer’s use of the Service. VTS reserves the right to intercept, disclose or otherwise use any Customer communication if it is necessary to do so to provide the Service, diagnose system troubles, protect VTS’s rights or property, or if required by law, regulation, or court order.
6. SILENT PASSENGER SERVICE LEVEL PERFORMANCE
Silent Passenger has been designed to deliver fleet management telematics services. In the event the Services do not meet the needs of Customer, an email shall be sent to firstname.lastname@example.org detailing the issues experienced and vehicles affected. While VTS strives to provide the best cellular coverage available, due to the inherent nature of cellular coverage, VTS is not responsible for any cellular conditions impeding service. VTS shall use commercially reasonable efforts to rectify any Customer issues in accordance with VTS’s Service Level Agreement which is attached and included in the terms of this Agreement. If VTS does not or cannot rectify these issues, and VTS determines such issue to be a failure of the Service to work as designed, the affected vehicle(s) shall be released from this Agreement.
VTS will provide VTS Software System training on a remote basis at no additional charge to the Customer. Such training will be offered during VTS’s normal business hours from Monday to Friday. Customer must contact VTS in advance at 1-800-671-5222 to schedule a mutually acceptable training schedule.
8. LIMITED SOFTWARE LICENSE
8a. Grant of License. By accessing, browsing, or using this Software and/or the Silent Passenger® website, Customer agrees to be bound by the terms and conditions of this Agreement. In conjunction with and for the sole purpose of providing VTS Services, VTS and its suppliers grant Customer a nonexclusive, nontransferable, revocable, limited license (hereinafter the “License”) to browse, access and make use of the services, information, data, software, files, and images contained in or generated by the software and accompanying data on the Silent Passenger website, (collectively, the “Software” or when used in conjunction with any Third Party Software as defined below, the “VTS Software System”), strictly subject to and in accordance with the terms and conditions of this Agreement. No other rights are granted.
8b. Third Party Software. All Third-Party Software is licensed to Customer in accordance with a separate license Agreement(s) included with the VTS Software System, and subject to any restrictions set forth herein. Customer agrees to abide by the terms and conditions of the Third-Party Software license agreements. VTS will have no responsibility with respect to any Third-Party Software, and Customer will look solely to the licensor(s) of the Third-Party Software for any remedy. VTS claims no right in the Third-Party Software, and the same is owned exclusively by the licensor(s) of the Third-Party Software. VTS provides no warranty, express or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, with respect to any Third-Party software.
8c. Restrictions. VTS retains all rights, title, interest and ownership of the Software (but not any Third-Party Software) including, without limitation, any express or implied rights or licenses under any patents, trademarks, copyrights, or other proprietary or intellectual property rights.
9. WORK ORDERS
If at any time during the term of this Agreement, Customer either verbally or through one or more written work orders, delivery tickets, or other instruments, requests VTS to supply or perform services, and VTS agrees to perform those services, each such request regardless of form shall be deemed a “Work Order” governed by and subject to the terms and conditions of this Agreement. Authorized Signers of this Agreement or any Work Orders shall be limited to any authorized Silent Passenger Administrative User, unless otherwise specified in writing.
10. BILLING, TAXES, AND AUTHORIZATIONS
10.a. Monthly Invoice. VTS will provide Customer with a monthly invoice and Customer will pay the monthly invoice net 30 from invoice date. Customer shall pay all invoices in full by check, credit card, or via Electronic Funds Transfer (“EFT”) on or before the due date shown on each invoice.
10.b. Taxes and Additional Charges. Any applicable taxes paid by VTS as a result of providing Services to Customer will be invoiced to and paid by Customer. If Customer is exempt from payment of any such taxes, Customer will provide VTS with documentation sufficient to verify Customer’s tax-exempt status prior to invoice.
11. INVOICING AND PROCESSING FEE
11a. Throughout the term of this Agreement Customer authorizes VTS to electronically deduct all payments and related fees incurred under this Agreement, including regular recurring payments and/or one-time payments from time to time incurred by Customer. VTS utilizes paperless invoices and automatic credit card or ACH payments are required.
11b. Late Payment Penalty. VTS reserves the right to impose a late payment penalty charge of one and a half percent (1.5%) percent per month for all invoices not paid within thirty (30) days from the invoice date.
11c. Bounced Check and Credit Card Chargebacks. Each occurrence of a bounced/dishonored check, ACH debit or Customer-initiated credit card chargeback will result in a fifty dollar ($50.00) administrative fee assessed to the Customer’s account.
11d. Notice of Disputes. Customer shall pay all properly invoiced and undisputed amounts due to VTS within 30 days after Customer’s receipt of an invoice. The Customer shall provide Notice of any dispute in writing no later than fifteen (15) days following the date of the invoice or the Customer’s right to object shall be deemed waived and the invoice shall be deemed accepted by Customer. The written Notice must include a detailed statement specifying the disputed amount and the reason for the dispute.
11e. Credit Card Disputes. In the event that Customer has notified its credit card issuing financial institution of a payment dispute, Customer agrees that proof of Service usage by Customer constitutes Customer authorization to submit payment request to credit card issuing financial institution.
11f. Collection. In the event VTS is forced to institute legal action to recover any amount owed by Customer to VTS and in addition, the prevailing party in any such litigation between the parties to enforce the terms of this Agreement shall pay the other parties reasonable legal fees, costs and expenses. VTS reserves the right, based on payment history, to verify credit throughout the term of this Agreement
12. ACCOUNT SUSPENSION, TERMINATION & REACTIVATION FEE
12a. Account Suspension/Termination. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach.
12b. In the event Customer fails to pay any amount when due hereunder or fails to perform any other of Customer’s obligations, Customer will be in default. In any such circumstances, VTS may, in its sole discretion (a) require Customer to pay all amounts then due and owing; (b) suspend Customer’s account and deny Customer’s and its users’ access to and use of the Service or Additional Services until Customer’s account is in good standing, or (c) terminate this Agreement and Customer’s and its users’ access to and the use of the Service.
12c. Unless specifically stated otherwise, Work Orders are non-cancellable for convenience.
13. CONFIDENTIAL INFORMATION
13a. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information will include the Services and Confidential Information of each Party will include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
13b. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third-party other than its affiliates and its legal counsel and accountants without the other party’s prior written consent.
13c. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
14a. Indemnity. To the fullest extent permitted by law, VTS shall indemnify and hold harmless Customer, Customer’s officers, directors, partners, and employees from and against any and all costs, losses and damages (including but not limited to reasonable attorneys’ fees and all court or other dispute resolution costs) arising from the performance of the Service, to the extent caused by the negligent acts, failure to comply with any applicable laws or errors or omissions of VTS or VTS’s officers, directors, partners, employees, agents and VTS’s or anyone employed directly or indirectly by any of them or by anyone for whose acts any of them may be liable in the performance and furnishing of VTS’s services under this Agreement.
14b. To the fullest extent permitted by law, Customer shall indemnify and hold harmless VTS, VTS’s officers, directors, partners, and employees from and against any and all costs, losses and damages (including but not limited to reasonable attorneys’ fees and all court or other dispute resolution costs) arising from Customer’s use of the Services, to the extent caused by the negligent acts, failure to comply with any applicable laws or errors or omissions of Customer or Customer’s officers, directors, partners, employees, agents and Customer’s or anyone employed directly or indirectly by any of them or by anyone for whose acts any of them may be liable in the performance and furnishing of VTS’s services under this Agreement.
14c. The terms of this section will survive any termination or cancellation of this Agreement.
15. LIMITATION OF LIABILITY
VTS is not liable for any act or omission of any common carrier or other service provider, interconnection service provider, and/or any equipment failure or modification, acts of God, strikes, fire, war, riot, government actions, or other causes. VTS is not liable for service outages or other service failures. VTS is not liable for injuries to persons or property arising from the use of Customer’s equipment or the Service. Customer agrees that VTS’s liability, and your exclusive remedy, in law, equity, or otherwise, with respect any VTS service(s) provided under this Agreement and/or for any breach of this Agreement is solely limited to the amount Customer paid for such service(s) during the term of this Agreement. In no event, will VTS be liable to the customer or any third party for any indirect, special, incidental, consequential, exemplary, or punitive loss or damage of any kind, including lost profits, loss of business or for lost or corrupted data or software (whether or not VTS has been advised of the possibility of such loss or damages) by reason of any act or omission in its performance under this Agreement. To the extent that a state does not permit the exclusion or limitation of liability as set forth herein Vehicle Tracking Solutions’ liability is limited to the extent permitted by law in such state.
The Agreement is fully assignable and transferable by VTS to any person or entity and shall inure to the benefit of such assignee or successor upon written consent of Customer, such consent shall not be unreasonably withheld. Unless assumed by an assignee in writing, all obligations of VTS hereunder shall remain the sole liability of VTS. Customer may not assign the Agreement without the prior written consent of VTS.
17. ENTIRE AGREEMENT
This Agreement constitutes our entire agreement. By signing the Order Form Customer admits that it is not relying on VTS’ advice or advertisements. Customer agrees that it and VTS are not bound by any representation, promise, condition, inducement or warranty, express or implied, that is not included in writing in this Agreement. The terms and conditions of this Agreement apply as printed without alteration or qualification, unless a change is approved in writing by authorized representatives of Customer and VTS. The terms and conditions of this Agreement, the Service Level Agreement, Order Form and VTS Certificate of Insurance shall govern even if Customer submitted a purchase order or other document with inconsistent or additional terms and conditions. If a court determines that any provision of this Agreement is invalid or unenforceable, that provision shall be deemed amended and enforced to the maximum extent permitted by state law, however, each and every other provision of this Agreement shall continue to be valid and enforceable.
The parties agree that this Agreement is governed by New York State law regardless of any conflicts and that any and all lawsuits, claims, disputes, or controversies (whether in contract, tort, or otherwise, whether preexisting, present or future, and including statutory, common law, and equitable claims) arising from or related to this Agreement, shall be brought in the Supreme Court of the State of New York, County of Suffolk. Customer waives personal service of any legal process and consents that service of process may be made by the US Postal Service by certified or registered mail.
19. GOVERNING LAW AND VENUE
The parties agree that this Agreement is governed by New York State law regardless of any conflicts and that any, and all lawsuits, claims, disputes, or controversies (whether in contract, tort, or otherwise, whether preexisting, present or future, and including statutory, common law, and equitable claims) arising from or related to this Agreement, shall be brought in the Supreme Court of the State of New York, County of Suffolk. Customer waives personal service of any legal process and consents that service of process may be made by the US Postal Service by certified or registered mail.
In the event of a conflict between these Terms and Conditions and any Additional Terms and Conditions as noted in the VTS Order Form, the Additional Terms and Conditions shall supersede and take precedence.
Version Number 4.0SPS – January 2018
Vehicle Tracking Solutions Service Level Agreement
This document represents a Service Level Agreement (“SLA” or “Agreement”) provided by Vehicle Tracking Solutions (“VTS” or “Company”) for the provisioning of IT services required to support and sustain authorized users/designated staff and of Silent Passenger®.
From time to time this Agreement may be updated. This Agreement remains valid until superseded by a revised agreement mutually endorsed by the stakeholders.
This Agreement outlines the parameters of all IT services covered as they are mutually understood by the primary stakeholders. This Agreement does not supersede current processes and procedures unless explicitly stated herein.
1. GOALS & OBJECTIVES
The purpose of this Agreement is to ensure that the proper elements and commitments are in place to provide consistent IT service support and delivery to the Client(s) by the Service Provider(s). The goal of this Agreement is to obtain mutual agreement for IT service provision between the Service Provider(s) and Client(s).
The objectives of this Agreement are to:
- Provide clear reference to service ownership, accountability, roles and/or responsibilities.
- Present a clear, concise and measurable description of service provision to the Client.
- Match perceptions of expected service provision with actual service support & delivery.
For the purpose of this SLA, the following Departments & individuals will be designated Client primary stakeholders associated with this SLA:
IT Service Provider(s): VTS. (“Provider”)
IT Client(s): Client (“Client”)
3. PERIODIC REVIEW
This Agreement is valid from the Effective Date outlined herein and is valid until further notice. This Agreement should be reviewed at a minimum once per fiscal year; however, in lieu of a review during any period specified, the current Agreement will remain in effect.
The Business Relationship Manager (“Document Owner”) is responsible for facilitating regular reviews of this document. Contents of this document may be amended as required, provided mutual agreement is obtained from the primary stakeholders and communicated to all affected parties. The Document Owner will incorporate all subsequent revisions and obtain mutual agreements / approvals as required.
Review Period: Bi-Yearly (6 months)
4. SERVICE AGREEMENT
The following detailed service parameters are the responsibility of the Service Provider in the ongoing support of this Agreement.
4.1. Service Scope
The following Services are covered by this Agreement;
- Manned telephone support
- Monitored email support
- Remote assistance using Remote Desktop and a Virtual Private Network where available
- Quarterly system health check
4.2. Client Requirements
Client responsibilities and/or requirements in support of this Agreement include:
- Payment for all support costs at the agreed interval.
- Reasonable availability of Client representative(s) when resolving a service related incident or request.
4.3. Service Provider Requirements
Service Provider responsibilities and/or requirements in support of this Agreement include:
- Meeting response times associated with service related incidents.
- Appropriate notification to Client for all scheduled maintenance.
4.4. Service Assumptions
Assumptions related to in-scope services and/or components include:
- Changes to services will be communicated and documented to all stakeholders.
5. SERVICE MANAGEMENT
Effective support of in-scope services is a result of maintaining consistent service levels. The following sections provide relevant details on service availability, monitoring of in-scope services and related components.
5.1. Service Availability
Coverage parameters specific to the service(s) covered in this Agreement are as follows:
- Telephone support: 9:00 A.M. to 5:00 P.M. Monday – Friday
– Calls received out of office hours will be forwarded to a mobile phone and best efforts will be made to answer / action the call, however there will be a backup answer phone service
- Email support: Monitored 9:00 A.M. to 5:00 P.M. Monday – Friday
– Emails received outside of office hours will be collected, however no action can be guaranteed until the next working day
- Emergency Telephone support: 24/7 for High Priority
– In the event of emergencies (High Priority only), please call 1.800.671.5222
– During normal business hours, you will be able to speak directly to a Support resource
– Outside of normal business hours, [Option #1] will forward you to the oncall team, available 24/7/365
5.2. Service Requests
In support of services outlined in this Agreement, the Service Provider will respond to service related incidents and/or requests submitted by the Client within the following time frames. Our goal is to have each call in be handled by a live VTS Client Success Representative with immediate issue remediation if possible.
- 0-8 hours (during business hours) for issues classified as High
- Within 48 hours for issues classified as Medium
- Within 5 working days for issues classified as Low
Recommendations and agreement on Low/Medium/High priority will be established during the onboarding to ensure business needs are optimally aligned with Service Levels.
Remote assistance will be provided in-line with the above timescales dependent on the priority of the support request.
5.2. VTS System Uptime
Outside of scheduled and communicated maintenance outages, VTS downtime has not disrupted client operations during the last 12 months. We calculate uptime at 99.9%, excluding scheduled downtime.