VEHICLE TRACKING SOLUTIONS SILENT PASSENGER SUBSCRIPTION AGREEMENT

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Version Number 2.5SPS – April 2018

Please read this agreement carefully.
ENTERING INTO THIS AGREEMENT 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; THIS AGREEMENT CONTAINS AN AUTO- RENEWAL PROVISION.

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Terms and Conditions

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1. INTRODUCTION.

In this Service 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.

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2. TERM.

2a. Initial Term/Renewal. This Agreement (and also, as applicable, for any and all subsequent Work Orders) begins upon the earlier of the date of initial Equipment activation or the first day of the month immediately following the date of Agreement execution (hereinafter the “Effective Date”) and continues for [as indicated on the Order Form] months (the “Initial Term”). AFTER THE EXPIRATION OF THE INITIAL TERM AND ANY SUBSEQUENT RENEWAL TERMS, THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL ONE YEAR TERM. (RENEWAL TERM), until terminated by either party upon no less than sixty (60) days advanced written notice (together with the Initial Term and the Renewal Term, the “Term”) or upon the execution of a renewal.

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 schedule of Fees set forth herein upon first activation and the Term for any new Equipment shall expire as per the Term set forth in Section 2a above.

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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 location at which it will complete all installations.

3b. Initial Installation Procedure. VTS shall install Equipment for each Customer-owned vehicle listed on Exhibit A of 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.

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 Exhibit A 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.

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4. VTS EQUIPMENT

4a. The AVL device provided as part of the Service shall be covered by warranty for the Term. In the event that any equipment does not function properly, all such claims must include the model number and IMEI/MEID number, and a description of the nature of the issue. VTS shall, at its option, either repair, replace or correct any such issues with the Equipment. VTS does not warrant any devices other than the AVL device.

4b. A service fee of $50 (plus tolls) will be charged if any appointment for service is not canceled at least 12 hours before its scheduled time on weekdays, and $75 (plus tolls) if appointment is not canceled at least 12 hours before its scheduled time on weekends. This fee partially covers the costs associated with our Technicians time committed to your schedule appointment.

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. A wireless deactivation and data destruction fee of $49 per vehicle shall be incurred by Customer at the end of the Term which covers our Administrative costs of concluding the service offering. 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.

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5. SERVICE

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 respects Customer’s privacy and will take all reasonable steps to ensure that Customer’s personal data will be protected and not divulged to third- parties. 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.

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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, please submit an email to support@vehicletracking.com 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 within a thirty (30) day timeframe from receipt of the email. 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.

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7. TRAINING

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.

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8. LIMITED SOFTWARE LICENSE

8a. Grant of License. This is a legal agreement between Customer and VTS. By accessing, browsing, or using this Software and/or the Silent Passenger® website, you are agreeing 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 you 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.

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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.

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10. BILLING, TAXES, AND AUTHORIZATIONS

10.a. Monthly Invoice. VTS will provide Customer with a monthly invoice and Customer will pay the monthly invoice in accordance with the Software and Service Section of this Agreement. 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.

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11. INVOICING AND PROCESSING FEE

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. A $25.00 monthly invoicing fee shall apply for paper invoicing or paper checks.

11a. 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.

11b. 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.

11c. Notice of Disputes. In the event Customer disputes any VTS invoice, Customer agrees to pay the entire amount of the invoice by the due date and then 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.

11d. 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.

11e. Collection. In the event VTS is forced to institute legal action to recover any amount owed by Customer to VTS, the parties agree that the amount to be recovered and any judgment to be entered shall include interest at the rate of one and a half percent (1.5%) per month from the date that payment was originally due. In addition, if VTS is the prevailing party in any litigation between the parties to enforce the terms of this Agreement, Customer shall pay VTS’ reasonable legal fees, costs and expenses. VTS reserves the right, based on payment history, to verify credit throughout the term of this Agreement.

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12. ACCOUNT SUSPENSION, TERMINATION FEE

12a. Account Suspension/Termination. 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 and the then present value of all future payments to become due calculated at three percent (3%) per annum; (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. Customer is liable for any service fees incurred during suspension period including the wireless data deactivation and destruction fee set forth herein in Section 4d.

12b. Account Reactivation Fee. In the event Customer’s account is suspended, VTS may, in its sole discretion, require Customer to pay a forty dollar ($40.00) per unit account reactivation fee (“Reactivation Fee”). Any Reactivation Fee imposed by VTS shall be due and payable by Customer to VTS prior to Customer’s account reactivation.

12c. Early Termination Charge. Customer agrees that the charges due under the contract are based on their Agreement to receive and to pay for services for the full initial term. In the event that Customer terminates this contract during its initial term, Customer will pay VTS an amount equal to seventy-five percent (75%) of the remaining fees in the initial term of this contract. This amount is a contract termination charge and is not a penalty, and relates to the initial costs incurred by VTS normally recovered during the contract term. In addition, Customer shall also pay the wireless data deactivation and destruction fee set forth herein in Section 4d and, all VTS Equipment must be returned in good working order, in accordance with the terms of this Agreement within 15 days of such Termination.

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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 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.

1p_t13b. 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.

1p_t13c. 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.

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14. INDEMNITY

In the event any lawsuit or other claim is filed by any other party against VTS, its agents, employees or affiliates, arising from Customer’s use of Service, negligence, breach of contract, breach of third-party software licenses, and/or failure to comply with any applicable laws, Customer agrees to defend, indemnify and hold VTS harmless from any and all claims or damages relating to this Agreement and Customer’s use of the Service, Third Party Software, or any interconnection used with the Service. The Agreement to indemnify VTS by the Customer encompasses all claims, expenses and/or losses arising ONLY from the Customer’s or its agents, employees, or affiliates negligence, breach of contract, breach of third party software licenses and/or failure to comply with any applicable laws. The terms of this section will survive any termination or cancellation of this Agreement.

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15. LIMITATION OF LIABILITY

VTS, its agents, employees, and affiliates are exempt from liability for any loss, damage, injury, or other consequence arising directly or indirectly from the Services provided in this Agreement. 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. You agree that VTS 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 you 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.

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16. ASSIGNMENT

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. 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.

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17. ENTIRE AGREEMENT

This Agreement constitutes our entire agreement. By signing it you admit that you are not relying on our advice or advertisements. You agree that you and we 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 our authorized representative. The terms and conditions of this Agreement shall govern even if you 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.

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18. NOTICES

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.

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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.

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20. CONFLICT

In the event of a conflict between these General 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.

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Version Number 2.5 SPS – April 2018