A. GENERAL TERMS AND CONDITIONS
The Terms and Conditions (the “Terms”) of this Agreement (the “Agreement’) together with each Service Order Form govern all contracts for the sale of services (the “Services”) by Locus Group (which for purposes herein shall include its affiliates) to the buyer or other acquiring party of such Services (the “Customer). All other terms, or variations to these printed Terms, conditions, term sheets, order forms, purchase orders or other agreements between Customer and Locus Group, regardless of the subject matter thereof, if in writing and delivered by any means to Customer, are expressly included unless excluded in writing by Locus Group. Execution of the Service Order Form by the Customer, whether in writing, on the Internet, or by e-mail, or by actual receipt of Services shall mean acceptance that these Terms are deemed incorporated in any purchase order or order form and shall form a valid and binding agreement between the Customer and Locus Group.
These Terms are the entire Agreement for the sale of Services, and they shall supersede all prior terms, understandings or agreements between the Customer and Locus Group to the extent they are contradictory or otherwise create any ambiguities herewith. If any part of the Terms should be found to be invalid or unenforceable by a court or other competent authority, then the rest shall not be voided.
Any notice to be given in respect of these Terms by either of the parties shall be in writing, and delivered to the registered office or principal place of business of the other.
B. OWNERSHIP RIGHTS
Ownership. Customer acknowledges that Locus Group and its suppliers own all rights, title, and interest in the Services, including but not limited to all worldwide copyrights, trade secrets, trademark, patents, confidential information, and proprietary and intellectual property rights subsisting therein. Customer does not acquire any rights, express or implied, in the Services other than those specified in this Agreement.
Third Party Software. Customer acknowledges that the Equipment (as defined in Section D. below) and the Services may contain certain third party applications licensed to Locus Group. Customer’s right to access and use the Equipment and Services granted hereunder shall be subject to any underlying license to Locus Group from a third party of any or all component(s) of the Equipment or Services, and all terms and conditions of said licenses or agreements between Locus Group and such third party(ies)
C. ACCESS AND USE
Subject to the terms and conditions of this Agreement, Locus Group hereby grants Customer a non-exclusive, non-transferable limited right in the territory where the Customer is located as follows: a. To access and use the Services until the last day of the Service Term, consistent with any Locus Group policies and additional use limitations specified or referenced in the order form and solely for the Customer’s use; and b. To download, print, copy and use any documentation as reasonably necessary for it’s internal, in-house use related to the rights granted under subsection (a) above.
Locus Group reserves all rights not expressly granted herein. Except as otherwise permitted herein, Customer may not copy, modify, adapt, or create derivative works of the Services. Except as otherwise permitted herein, in no event shall Customer (i) use, or permit any third party to use, the Services for time-sharing, rental, or service bureau purposes, or (ii) decompile, disassemble, reverse assemble, or otherwise reverse engineer the Equipment or Services, or permit any third party to decompile, reverse assemble, or reverse engineer the Equipment or Services. Customer will use the Equipment and Services only as directed by Locus Group and in compliance with applicable law. Failure of Customer to comply with any Locus Group policies or instructions as to the furnished Equipment and/or Services shall void any warranties or causes of action Customer my otherwise have as against Locus Group whether hereunder or under applicable laws.
D. DELIVERY OF LOCUS EQUIPEMNT
The provision of Services as contemplated herein requires the installation of certain Locus Group owned apparatus, instruments and/or equipment (the “Equipment”) into Customer vehicles. All Equipment delivery times and dates are approximate, but Locus Group shall use its reasonable efforts to respect them. The parties shall each make commercially reasonable efforts to schedule and complete the installation of the Equipment within fourteen (14) days from the date this Agreement is executed, unless an alternate schedule is agreed upon in advance by both parties.
Locus Group shall not be liable for any loss or damage resulting from late delivery or installation. Should Customer not make reasonable efforts to make vehicles available to Locus Group or our designee for installation of Equipment on the dates of planned installation, Locus Group’s obligation to install such Equipment shall expire, and any installation thereafter shall be subjected to an incremental installation fee of $125 per vehicle, in addition to all other fees. Locus Group’s inability to install such Equipment in Customer vehicles due to unavailability of Customer vehicles shall not relieve Customer of its service fees pertaining to such vehicle(s).
Locus Group, its employees or sub-contractors shall normally carry out installations. In the event that installation is carried out by the Customer, the Customer’s employees, agents, representatives or nominated sub-contractors (“Self-install”), Locus Group shall not be liable for any loss or damage whatsoever, arising directly or indirectly, as a result of any negligence or failure to follow Locus Group’s written instructions in installing the Equipment. Should Customer Self-install, the Service Term (as defined in Section I below) shall commence upon delivery of Equipment to Customer as evidenced by shipping carrier documented delivery date.
E. EQUIPMENT DEFECTS & REPRESENTATIONS
Subject to the limitations contained herein, Locus Group represents that for the Service Term of this Agreement, the Equipment will be free from defects in materials and workmanship and will substantially conform to the specifications for such Equipment. WITH THE EXCEPTION OF THE REPRESENTATION IN THE FOREGOING SENTENCE, LOCUS GROUP MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE SUBJECT MATTER HEREOF AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. If during the Service Term any Equipment is found to be defective, Locus Group will at its option repair or replace the defective Equipment within a reasonable time using components or replacements that are new or used. The foregoing remedy is the sole and exclusive remedy of Customer regarding defective equipment and is in lieu of any other remedy available to the Customer at law or in equity. Customer will provide Locus Group reasonable access to the vehicle to effect such repairs or replacements. In no event will Locus Group be liable for loss of use of the vehicle when the Equipment is being repaired or replaced. This representation shall be void and of no effect if failure of the Equipment or any part thereof is due to accident, modification or misuse by the Customer or any third party.
Locus Group’s repair or replacement of defective Equipment does not apply, and Customer may incur additional charges, for defects resulting from: (i) damage caused by incorrect installation, use, modification or repair by any unauthorized hird party or by the Customer or its representative, (ii) misuse or abuse to any element of the system or component thereof, (iii) damage caused by any party or other external force, or (iv) damage caused by the connection of the Equipment to any third-party products or software provided by the Customer.
Locus Group may herewith provide written materials, including without limitation, reference guides and user guides in conjunction with its Equipment and Services, as well as formal and/or informal training. As to the foregoing, LOCUS GROUP MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE CONTENT THEREOF AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
F. USE OF THE LOCUS SERVICE
The Customer is responsible for all use of the Services made using any usernames and passwords registered by or allocated to it, whether or not the use is made by the Customer or someone else using its username and password. The customer is responsible for protecting and securing its username and password from unauthorized use. The Customer must notify Locus Group immediately in the event that it is aware of the possibility of a breach of security.
Locus Group may provide hypertext links to sites on the Internet, which are operated by unrelated third parties. Using an external hypertext link means that the Customer may be leaving a Locus Group site and Locus Group therefore takes no responsibility for and gives no warranties, guarantees or representations in respect of linked sites. Customer acknowledges and agrees that although Locus Group’s Service contains maps, routing instructions and driving directions Locus Group assumes no responsibility for the accuracy of this information. Customer is responsible for checking directions for accuracy, confirming that the designated routes still exist, responding appropriately to construction and other road hazards and adhering to all traffic laws.
The Equipment and Services are designed to collect certain data and information from Customer’s vehicles, including, without limitation, data regarding the location of the vehicles, rate of travel, ignition on/off, idle time, number of stops and other similar information (collectively, “Vehicle Information”). Customer acknowledges and agrees that as between Customer and Locus Group, Locus Group owns all Vehicle Information, including all rights in and to such Vehicle Information. Without limiting the generality of the foregoing, Customer acknowledges and agrees that, as the owner of the Vehicle Information, Locus Group may review, analyze, manipulate, copy and modify the Vehicle Information. Locus Group may also distribute reports, analyses and data based upon the Vehicle Information, provided, however that Locus Group agrees that it shall not disclose to any third parties any Vehicle Information that identifies specifically Customer or any of the drivers of Customer’s vehicles. It being understood, however, that the foregoing restriction shall not apply to disclosures of Vehicle Information that are (i) required by law or in response to a request from law enforcement authorities, (ii) made in connection with a subpoena or other similar demand, (iii) made in connection with a contemplated merger, acquisition or similar transaction, (iv) made to Locus Group’s affiliates or related companies, and/or (v) made to Locus Group’s service providers.
G. AVAILABILITY OF SERVICES
Locus Group does not warrant any connection, communication, transmission, security of or results from the use of any information provided (or omitted to be provided) in connection with the Services. Availability of, or accuracy of information provided by the Services may become disrupted or degraded from time to time as a result of events such as, but not limited to; disruption to satellite system operation, unavailability of wireless data carrier services or signals, disruptions to the Internet or Locus Group’s server(s), computer failures and viruses, and hardware failures. Locus Group shall use commercially reasonable efforts to minimize the effects of any such disruption or degradation to the Customer, but shall not be liable to the Customer for any loss or damage, whether resulting directly or indirectly from the unavailability of any of the Services, degradation of the accuracy of the information or the failure of the Products. Locus Group accepts no responsibility whatsoever for any Vehicle Information lost as a result of any failure of the Equipment or disruption to or degradation of any of the Services. Locus Group’s total liability to the Customer shall not exceed the fees received by Locus Group from the Customer for the Services relating to the period during which any disruption or degradation of the Services continued.
Neither Locus Group nor its wireless network partners make any warranties with respect to the Service or the performance of any wireless network. To the extent Locus Group provides access to information provided by other sources, Locus Group accepts no liability for and makes no warranties, express or implied, with respect to the content thereof. Customer has not relied on and will not make claim that it is entitled to the benefit of any representations, promises, description of services or other statement not specifically set forth in this Agreement.
H. PRICING AND PAYMENT TERMS
Prices, which are expressed in US Dollars, are only valid if expressed in writing by Locus Group and only for the period stated in the quotation or contract. If not stated, the validity period is 30 days. Billing and the Service Term (as described in Section I) shall commence on installation of Equipment or thirty (30) days from the execution of the applicable Service Order Form, whichever is earlier.
Unless otherwise stated, payment of all amounts shall be made within 15 days of the date on the invoice or before any due date for payment shown on the invoice. If any payment is not made by the Customer by the due date, Locus Group reserves the right to charge a late payment charge of one and one-half percent (1.5%) per month of the outstanding past due balance.
In the event Customer has a valid dispute with any invoice or amount due, such dispute must be communicated in writing to Locus Group within 30 days of the billing date, describing the amount, issue and the reason for any dispute. Any amounts not disputed within this time frame will be deemed to be valid. Locus Group and Customer agree to work expeditiously to resolve any dispute.
Customer agrees to notify Locus Group within 30 days of any change in Customer’s trade name, address, or phone number. By executing this Agreement, Customer authorizes Locus Group to periodically request Customer’s credit reports and bank and trade references. Upon Customer’s request, Locus Group will inform Customer of the name and address of the reporting agency from which the reports were obtained. .
All payments to Locus Group exclude taxes unless specifically stated. The Customer is responsible for payment of all applicable taxes, however designated or incurred in connection with the transactions under this Agreement, and agrees to reimburse Locus Group for any taxes paid on Customer’s behalf.
I. TERM AND TERMINTATION
The initial term of this Agreement shall begin on the earlier of installation of the Equipment or forty five (45) days from the date the Service Order Form is executed, and continue for the period indicated on the Service Order Form (the “Service Term”). The Service Term for renewal Services shall commence on the date of execution of the applicable Service Order Form for the renewal or, if later, the date specified on the Service Order Form as the start date for the applicable renewal Service. Unless otherwise specified in the Service Order Form, add-on features will run for the same term as the base vehicle tracking units to which the add-on features apply. This Agreement and/or the Service Order Form may not be terminated by Customer or Locus Group during the Service Term other than for breach and then only by the non-breaching party. This Agreement may be terminated by either party at the end of the applicable Service Term by providing written notice at least sixty (60) days prior thereto, but in the absence of such notice, the applicable Service Term shall automatically renew under the same terms and conditions for successive twelve (12) month periods (such renewal periods(s) shall also be referred to herein as a ‘Service Term’).
The provisions of the Confidentiality clause of these Terms shall survive termination by two years. Upon the termination of this Agreement, for whatever reason, all rights granted by Locus Group to Customer hereunder shall immediately cease and Customer shall immediately return to Locus Group all Locus Group property, including, but not limited to, the Equipment, Confidential Information and all copies thereof. Upon the termination of this Agreement, Locus Group shall immediately return to Customer all Customer property, including, but not limited to, Customer’s Confidential Information and all copies thereof. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief. Termination of this Agreement, other than as a result of Locus Group breach, shall not relieve Customer of its obligation to pay all fees and other amounts due by Customer under this Agreement and such amounts shall be accelerated and paid by Customer in a lump sum payment due immediately upon termination.
J. INTELLECTUAL PROPERTY RIGHTS
Locus Group will, provided Customer gives Locus Group notice of any such claim within three (3) days of its receipt thereof, indemnify the Customer from all costs and expenses actually incurred by Customer arising from any claim that the use of the Equipment or Services as delivered by Locus Group, and not in conjunction with any third-party or customer-provided equipment or software or other Customer modifications or adjustments of said Equipment, infringes any third party intellectual property rights. If the Equipment or Service becomes the subject of a claim that the Equipment or Service infringes the intellectual property rights of a third party and as a result of such claim, or the settlement thereof, the use of the Equipment or Service is prohibited or enjoined, Locus Group shall, at its sole expense, use its commercially reasonable efforts to do one or more of the following: (i) obtain for Customer the right to use the infringing Equipment or Service without any additional cost to Customer; (ii) modify the infringing Equipment or Service so that it becomes non-infringing; or (iii) replace the infringing Equipment or Service with a non-infringing item. If, after using commercially reasonable efforts, none of the foregoing alternatives is reasonably possible, then Locus Group may require that Customer return the infringing Equipment to Locus Group and/or discontinue use of the Service and upon such return or discontinuation of use, Locus Group shall refund to Customer a pro-rated portion of the Service fees already paid for in advance. No credit or refund shall be made for Services already provided to the Customer. Locus Group retains all Locus Group owned Intellectual Property in the Equipment and Services. It is herewith understood that Locus Group shall have the right, in its sole discretion, to take over the defense of such claim. In such case, Customer shall cooperate fully and completely with Locus Group throughout the defense process. Notwithstanding whomsoever handles the defense, if Customer settles or otherwise resolves said claim without prior written consent of Locus Group, this indemnity shall not apply to Customer and Locus Group shall bear no liability hereunder.
Copyright and all other intellectual property rights’ subsisting in the Service is owned by Locus Group and/or the providers of such information. The Customer may use information retrieved from the Services only for its own use which means that the Customer may not sell, resell, retransmit or otherwise make the information retrieved from the Services available in any manner or on any medium to any third party unless the Customer has obtained Locus Group’s prior written consent.
K. Customer hereby agrees to defend, hold harmless and expeditiously indemnify Locus Group from, against and with respect to any and all liability, claim, loss, damage, obligation, cost or expense arising out of Customer’s improper use of the Equipment or Services or breach or violation of any representation, provision, warranty or covenant contained in this Agreement, including reasonable attorneys’ fees and expert witness fees and other reasonable costs incurred in the defense of any legal proceeding asserting such a claim. Upon receipt of a claim or demand for which Locus Group is entitled to indemnification, Locus Group shall promptly notify Customer in writing of the nature of the indemnifiable claim, and the names and addresses of the persons involved in or having an interest in such claim; and Customer shall furnish Locus Group with all documents and information within the possession, custody or control of Customer relating to such claim; and cooperate with Locus Group and its counsel including but not limited to appearing as a witness as may be reasonably required and responding to all reasonable requests for documents and answering interrogatories. Customer shall be solely responsible for all costs and expenses of Locus Group’s defense in a manner and utilizing attorneys selected by Locus Group. Customer shall not enter any negotiation or settlements with the person or entity asserting the claim without receiving the prior express written consent of the Locus Group. CONFIDENTIALITY
Both Locus Group and the Customer will treat all information received from the other party that is marked ‘Confidential’ or which otherwise reasonably qualifies as confidential pursuant to general business standards (“Confidential Information”) . In no event shall either party employ less than a reasonable degree of care in protecting the Confidential Information. Confidential Information includes, but shall not be limited to: pricing, business plans, customer lists, operational and technical data and product plans.
Locus Group does not represent or warrant that Customer will achieve any certain results by use of the Service. Locus Group does not warrant that the functions contained in the Equipment or Service will meet Customer’s requirements or that the operation of the Equipment or Services will be uninterrupted or error free. With the exception of the indemnity obligations set forth in section H, Locus Group’s maximum liability for all claims under this Agreement (whether in tort, contract, negligence or otherwise) shall not exceed one years’ Services fee or the total fees received by Locus Group from the Customer for the Services, whichever is less.
Neither the Customer nor Locus Group shall be liable to the other for any economic (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings), special, indirect, incidental, exemplary, punitive or consequential losses or damages or loss of goodwill in any way whether such liability is based on tort, contract, negligence, strict liability, product liability or otherwise arising from or relating to this Agreement or resulting from the use or the inability to use the Service or Equipment or the performance or non-performance of the Services or Equipment. It is the responsibility of the Customer to secure and maintain insurance for its own benefit in this regard if it so desires.
M. FORCE MAJEURE
Locus Group shall not be liable to the Customer for non-performance or delay in performance of any of its obligations under these Terms or loss or damage of any of Cusomer’s products due to acts of God, failure of the Internet or another network, war, riot, civil commotion, embargo, strikes, fire, theft, delay in delivery of services of sub-contractors or sub-suppliers, shortage of labor or materials, confiscation or any other unforeseen event (whether or not similar in nature to those specified) outside the reasonable control of Locus Group.
Locus Group reserves the right to assign this Agreement to a third party at any time during the term of this Agreement. This Agreement is personal to the Customer, and Customer may not assign its rights or obligations, in whole or in part, to any third party without Locus Group’s written approval.
O. GOVERNING LAW AND JURISDICTION
This Agreement and these Terms shall be controlled construed under the laws of the State of Georgia, United States notwithstanding any conflicts of law provisions; and the courts of the Cobb County, Georgia and the higher courts of the State of Georgia shall have exclusive jurisdiction over any claim arising under the Agreement or Warranties. This Agreement has been written in the English language, and the parties agree that this English version will govern.