TERMS AND CONDITIONS OF SALE AGREEMENT
1. DEFINITIONS: The capitalized terms and variations thereof not otherwise defined elsewhere in this Agreement shall have the meanings as set forth below:
a. “Agreement” means the governing document stating services, warranties, standards or service and other provisions which define the legal obligations of the parties.
b. “Company” means Iler Group, Inc., d.b.a. AnythingGPS
c. “Customer” means any person or entity that has purchased products or services from the Company.
d. “Device” means any vehicle mounted wireless tracking device or messaging system manufactured for or by the Company.
g. “Manufacturer” means the entity that engineered or directed the assembly of equipment, supplies data processing services and usually develops the majority of the graphical user interface displaying GPS track data.
h. “Application Access Fee” (AAF) means monthly licensing fee for access to data from a device or service to the Customer via a web interface either provided by manufacturers, 3rd party providers or the Company.
i. “Term” means the Initial Term as well as any renewals or extensions thereof.
j. “Service” means the delivery of information, knowledge, data or consulting, which may, or may not include equipment or physical goods and services
2. TERMS AND CONDITIONS OF A PURCHASE: AnythinGPS herein known as the “Company”, retains ownership and title of all equipment until paid in full for equipment and until all terms of agreement have been fulfilled or early termination fees are paid. Upon payment in full, ownership of equipment transfers to the Customer. It is the Customer’s responsibility to return equipment in good working order at Customer’s expense within five (5) calendar days if initial service period is not completed.
3. TERMS AND CONDITIONS OF SOFTWARE AS A SERVICE (SaaS): This section only applies when Customer purchases a Service directly from the Company which includes equipment required for the service. Customer agrees to make payment in full for Services starting on the delivery date regardless of installation, configuration or other Customer delays. Customer acknowledges having sufficient time prior to the agreement to review and evaluate the Services provided. Ownership of goods, equipment, and GPS products in support of the Service remains with the Company at all times and must be returned within 15 days, at the Customer’s expense, when the service is terminated for any reason. Service fee billing ends when devices are received by the Company in good working order. Items not returned in good working order will be billed at the then current retail rate and due immediately. Fees for the current month are not refunded. Fees paid for the following month will be refunded in full after all outstanding debt is deducted. It is the Customer’s responsibility to provide proof of delivery cancellation or to verify that all equipment is working properly upon receipt. Risk of loss shall pass to Customer or Customer’s Agent upon delivery. Limitation of Liability extends for the duration of the period set forth in the agreement. Activation fees and shipping and handling is nonrefundable.
4. WAIVER: It is the Customer’s responsibility to verify that all equipment is working properly upon receipt. Customer WAIVES ALL CLAIMS TO DEFECT, DAMAGE, SHORTAGE, OR OTHERWISE UNLESS MADE IN WRITING TO COMPANY WITHIN 5 DAYS OF DELIVERY, WHETHER CUSTOMER HAS PURCHASED, LEASED OR RENTED EQUIPMENT. Customer agrees to pay all shipping, handling, duties, communication fees, unemployment, workers compensation, taxes, and customs charges that are not shown on this invoice for shipments outside the USA or to local governments as prescribed by state or federal law. Customer acknowledges need to file to pay local and state tangible property tax within 90 days or every order. Customers agree to pay all fees associated with the Company paying taxes on behalf of
the Customer, including legal fees, penalties, wages and any other expense associated with the Company dealing, paying or resolving tax issues on behalf of the Customer, regardless of account status being active or inactive for the last seven (7) years, or that required by local jurisdiction from the date of the last order. All prices are in US dollars unless otherwise indicated.
5. LIMITED RETURN POLICY: The following 5-day limited return policy applies only to sale of equipment. Equipment purchased as new and which is returned as directed by the Company within 10 calendar days of order, found to be unused (not installed), in original condition, and in original packaging, will be accepted for return with a 10% restocking fee. Shipping and handling fees, installation, activation fees and pro-rated subscription service fees will not be refunded. All returns must be accompanied with a Return Merchandise Authorization (RMA) issued in writing, eNotice (email) or by fax from the Company and written on the outside of the box which will not be accepted otherwise.
6. RETURN OF EQUIPMENT AFTER INSTALLATION: Equipment cannot be returned after being installed, used or damaged.
7. APPLICATION ACCESS FEE (AAF): This section only applies when Customer purchases equipment or subscribes to a SaaS program, from the Company or when a separate AAF is paid directly to the Company. AAF fees begin on installation or fourteen (14) days after delivery, whichever comes first except as described in paragraph 7.
a. In the event of early termination, the balance is due for the entire agreement period. Third party terms or agreements with the Customer do not affect this agreement and may carry separate termination fees.
b. After the initial subscription service agreement period, the subscription service will perpetually and automatically renew for a period equal to the initial agreement period, but not for a term greater than one year, until a written notice of termination is received a minimum of thirty (30) days prior to the end of the initial subscription service period or the last automatic renewal period end date. Subscription service fees may then automatically switch to the current month-to-month service rate. It is the Customer’s responsibility to provide notice using the Company’s service termination notification process and documentation and pay all
outstanding invoices and fees to the Company before a termination notice is deemed effective. No other form of documentation is authorized to serve as a termination notice. Proper termination notification does not negate early termination fees being due as listed in this agreement.
c. In the event of a disruption of service which is due to malfunctioning equipment that is under warranty and not due to communication network issues (internet, cellular or satellite provider outages), subscription service credits may be issued based on the number of units affected, calculated on an hourly basis provided
account is current with invoices. Subscription fees for units not affected remain due. Company will provide notice of failure to pay and provide fifteen (15) days from notice to cure defect. Failing to pay for subscription services may result in account termination, deactivation of units, suspended service, assessment of early
termination fees as described and possible legal action. It is the Customers responsibility to notify the Company within 48 hours of when issues arise and to receive a Support Case number from a Company technical support representative to verify said notification. Service credits are issued only on the creation of a Support Case and Customer providing access to the unit or equipment within five (5) business days by troubleshooting with technical support personnel. Delays due to a lack of Customer cooperation, notification or equipment accessibility are not eligible for service credit.
d. If a unit or service is transferred to another provider or cancelled by the Customer, all data may be lost, becomes the property of the Company and a $50.00 reactivation fee will apply per unit. Customer understands that some units cannot be reactivated which will result in a total loss of value. Some equipment
requires returning to the manufacturer at the Customer’s expense to reactivate. The Company provides no warranty as to which units can be reactivated for any period. Certain units require programming to be done by the Company. Changes to the initial unit configuration may require the Customer to pay to un-install, ship
and reprogram units for a $35.00 per unit programming fee plus shipping and handling fees. Customer agrees that if payment terms are extended there is a 15% APR for late payments calculated daily and a $50.00 fee per check for insufficient funds. Customers determined to be consistently late making payments will be
required to make payment by credit card kept on file or pay three months in advance for subscription service.
e. After the initial term, AAF fee rate increases will be limited to that actually imposed by data service providers, manufacturers or equal to the Consumer Price Index (http://www.bls.gov/cpi/), whichever is greater; unless initial rate is below the rate card at the time of purchase or Customer is on a month-to-month service agreement. Company shall give Customer 30 days advance written notice of any rate increase. These limitations do not apply to Customers not under a Service Agreement.
f. Service used in a manner for which not intended as determined solely by the Company share result in additional fees relative to data used over the limit. Data is calculated on a calendar month basis. Misuse of the service, improperly installed or a defective device may be deactivated by the Company to minimize
8. CUSTOMER SUPPORT AND TRAINING: The Company agrees to provide reasonable online installation, user and training support. This excludes managing, installing or maintaining software and equipment not provided by the Company. Technical support is available Monday-Friday from 0830 to 1730 EST daily, except during Company holidays.
9. TRANSFER OF SERVICE: If Customer wishes to transfer service to another company, there will be a $49.00 per GPS device or subscription service which is subject to AAF, payable to the Company prior to transfer, in additional to cancellation fees, other fees, current or past due balance.
10. WARRANTY & LIMITATION OF LIABILITY: COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY KIND. Some states do not allow limitations on warranties, so the above limitation may not apply. COMPANY IN NO CASE SHALL BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, AND INDIRECT, ATTORNEY FEES OR SIMILAR DAMAGES ARISING FROM ANY BREACH OF WARRANTY, EVEN IF COMPANY (OR ITS AGENTS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no case shall Company’s liability exceed the price paid for the goods or services included for which the Company has been paid during the previous six (6) months. COMPANY makes no expressed or implied warranty of cellular network
coverage, internet service, or performance for “real-time” tracking units, and shall not be responsible for any application access fees or other service provider’s provision of services. Equipment and services are warranted on a per device or service basis and based on the terms of the manufacturer warranty of no more than twelve (12) months from delivery unless approved in writing by the Company. Warranty covers the repair or replacement of device with a like device of equal or greater value and of equal or greater technological capability, at the Company’s discretion, excluding labor, bench testing fees, tariffs, duties, customs fees, shipping or handling. A $35.00 bench testing fee will apply if equipment is found to be working on receipt. Customer agrees to make vehicle or equipment available for
troubleshooting by the Company’s technical support personnel during technical support hours listed in paragraph (9) before returning equipment for repair or replacement with an RMA number. Customer agrees that replacement equipment will not be provided in advance of “malfunctioning” equipment being received by the Company and tested to confirm equipment is faulty and covered by warranty. Customer agrees that all expenses associated with troubleshooting and repair or replacement of equipment is the sole responsibility of the Customer unless agreed to in writing at the time of sale or as part of an extended service plan at an additional fee. Customer agrees to purchase replacement equipment at market value if equipment cannot be repaired and is not covered by warranty to continue
AAF during agreement period. The Company expressly disclaims any duty as an insurer of the equipment, not responsible to repair or replace any equipment that is damaged through accident, abuse misuse, theft, fire, water, casualty, and terrorism, negligent act of Customer or Customer’s agents, or act of God. BOTH PARTIES AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES IN NO CASE SHALL BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SIMILAR DAMAGES ARISING FROM ANY BREACH OF THIS AGREEMENT, INCLUDING LOSS OF COMPANY REVENUE OR PROFITS, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS, COST OF CAPITAL, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF GOODWILL OR ANY OTHER NON-DIRECT, PECUNIARY, COMMERCIAL OR ECONOMIC LOSS, UNLESS SAID LOSS ARISES FROM OR IS OTHERWISE CAUSED BY CUSTOMERS OTHER PARTIES GROSS NEGLIGENCE.
11. INSTALLATION AND SERVICE WORK WARRANTY: Installation and service work provided directly by the Company includes a workmanship warranty for 60 days from the date of initial installation. The warranty covers defects in workmanship. Warranty work is to be performed at the original installation location. Travel to additional locations further than the original installation location or outside identified working hours will result in additional reasonable fees based on the rates at the time. It is the Customer’s responsibility to make equipment and/or vehicle available during technical support hours listed in paragraph (4) at the Customer’s expense. The Company is not responsible for lost wages, business or other Customer expenses incurred to perform warranty work. In the event the Company subcontracts installation or service work to a third party, the Customer agrees that the Company in no situation is liable for an amount greater than the amount paid for services provided by or through the Company and the Company has been paid in full for same services. The Company does not recommend third party installation and service providers and makes no expressed or implied warranty of a third party and is not liable for their actions, business practices or performance.
12. CREDIT CARD PAYMENTS: This section only applies to Customers paying by credit card. Customer acknowledges the purchase of the goods and/or services in the amount of the total shown on the Hardware Order Form & Invoice or listed online. Customer WARRANTS [authorizes] that Customer is the cardholder or an authorized user of the card. Customer agrees to return all equipment in good working condition within 5 business days in the event of a charge back and pay for shipping, handling, unit removal, restocking fees and early termination fees as listed herein. Failing to return equipment described will knowingly violate this Agreement and subject the Customer to legal action and payment in full.
a. Customer agrees not to issue a charge-back against some or all the charges listed or for future invoices and will comply with the standard return policies as disclosed herein. Customer agrees to have credit card debited even though items ordered may not be available for an extended period as identified by the Company and real-time reporting will vary by cellular network coverage. If a charge-back is ruled in the Company’s favor, Customer agrees to pay any fee(s) imposed by merchant service providers with the credit card on file, have real-time service suspended immediately and agree to pay airtime fees not paid during charge back dispute period. On-going disputes may result in the temporary or permanent termination of all service, the imposition of the per vehicle termination fee or reactivation fee and the collection of past due subscription fees before service will be reinstated. Customer authorizes Company to institute the above actions directly with service provider(s).
13. DEFAULT: Customer agrees and acknowledges that time is of the essence with respect to payment required of the Customer hereunder. Failure to pay Company within 15 days of the due date on invoice under this Agreement shall render Customer in default unless otherwise agreed on by amendment to this agreement and signed by an officer of the Company. In the event of default, Customer is responsible for all fees and costs associated with collection, including but not limited to fees imposed by any collection agent or attorneys utilized by Company. An annual percentage rate of 18% will be charged to invoices which are sixty (60) days or more past due. If the Customer represents a sole proprietorship, or LLC, and an owner or a partner enters into or authorizes this agreement, the undersigned person
signing on behalf of the Company will immediately pay all sums due under the terms of this Agreement without requiring the Company to proceed against the Customer, any other party or equipment. The undersigned person signing on behalf of Customer consents to personal jurisdiction, venue, choice of law and jury trial waiver as stated in this agreement and agrees to pay all costs and expenses, including attorney’s fees, incurred by the Company related to this guarantee
14. CHANGES TO PRODUCTS AND SERVICES: The Company reserves the right to add, delete, modify, change, discontinue or limit services or the features, functionality, performance or other aspects of the products from time-to-time as determined in the Company’s sole discretion. The Company will use commercially reasonable efforts to advise the Customer of any such change by posting notice of same to the Company website or by email. Customer may terminate this Agreement and any subscription agreements in place by providing 30 day’s written notice to Company, if Company makes and additions, deletions, modifications, changes or discontinues or limits services in such a way that materially changes the way Customer uses the equipment or services or precludes Customer for continuing to use the equipment or services in the same manner as contemplated herein.
15. CUSTOMER CHANGES: Any Customer changes, alterations or attachments to the equipment may require a change in the charges set forth herein. The Company reserves the right to terminate this Agreement in the event that such changes, alterations, or attachments make it impractical for Company to service the equipment or to retake possession of the equipment. If Customer fails to cure the defect within 30 days written notice to the Customer, the Company reserves the right to terminate this Agreement and impose early termination fees.
16. INSOLVENCY: In the event the Company was to become insolvent for unforeseen reasons, the Company would make reasonable efforts to transition service to a 3rd party provider at normal consulting fee rates.
17. NON-COMPETE: Customer, and employees, will not enter into a distributor or reseller agreement with Company manufacturers or suppliers which are exposed as a result of the Company providing products and services even if known to the Customer prior to entering into this agreement. The non-compete will remain effective for a period of three (3) years from the data this agreement expires.
18. NON-DISPARAGEMENT: Neither Party employees, affiliates or others under influence of the Customer or Company,agree not to make public statements, do online reviews or any communications that disparage the other Party, its business, services, products, affiliates or officers, executives or employees during the Agreement, and for the three (3) year period following the Date of Termination. Doing so may bring significant harm to the other Party.
19. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS (IPIC): Customer expressly acknowledges and understands that Company is merely reselling equipment and providing certain customer service support as set forth in this Agreement. Customer further acknowledges and understands that Company does not own or have any interest in any intellectual property of any manufacturer or provider, and is therefore not selling to Customer any intellectual property rights. The Customer specifically acknowledges that each manufacturer has or may have its own intellectual property and therefore would have an independent position on IPIC. Consequently, Customer agrees to hold the Company financially and legally harmless for IPIC. If Customer customizes equipment, application or use of data outside the system or for any use of the system other than that provided as base service data use, Customer agrees to defend and hold harmless the Company, its agents, servants, employees, manufacturers, officers and consultants in the event any IPIC are brought by any entity or person not a party to this Agreement. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH HEREIN ARE INTEGRAL TO THE AGREEMENT AS A WHOLE, AND THAT, BUT FOR SUCH LIMITATIONS, EXCLUSIONS AND DISCLAIMERS, COMPANY WOULD NOT AGREE TO ENTER INTO THIS AGREEMENT WITH CUSTOMER.
20. NO WAIVER OF RIGHTS: The Parties acknowledge and agree that any delay or failure of the other to enforce its rights hereunder does not constitute a waiver of such rights, or in any way prevent a party from enforcing such rights, or any other rights hereunder, at a later time.
21. ENTIRE AGREEMENT: The Agreement constitutes the entire agreement between the parties, and any and all prior negotiations, agreements (oral or written), or understandings are hereby superseded, updated and replaced by this Agreement except for the terms listed in an awarded contract resulting from a request for proposal (RFP), Request for Quote (RFQ) or Amendment. When an RFP/RFQ has been awarded and accepted by the Company, provisions in the RFP/RFQ in conflict with the Company’s terms and conditions will supersede this agreement excluding paragraph 19, IPIC, of this agreement. Equipment and service purchased prior to this agreement will now be governed by the terms and conditions herein.
22. CHOICE OF LAW, JURISDICTION AND VENUE: This Agreement shall be governed by and enforced in accordance with the laws of the State of Florida, USA WITHOUT REGARD TO ITS CONFLICTS OF LAWS and VENUE [jurisdiction] of any dispute INVOLVING [between] the Company and Customer or End User will be in a court in HILLSBOROUGH COUNTY in the state of Florida. Collection related disputes will be resolved in court or through arbitration at the Company’s discretion. The Customer agrees to pay reasonable legal fees, court costs, interest at the annual percentage rate listed, and collection fees related to the debt collection process. Both parties agree to abide by the decision of the arbitrator. Court costs and other legal expenses shall be incurred by the Customer. The burden of proof is on the Customer.
NEITHER PARTY NOR ANY AFFILIATED COMPANY OR ASSIGNEE SHALL HAVE THE RIGHT TO OFF SET THIS AGREEMENT, OR ANY WARRANTY OR OTHER CLAIMS THAT ARISE UNDER THIS AGREEMENT OR OTHERWISE.
23. NO MODIFICATION OF TERMS: THE CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THESE TERMS AND CONDITIONS MAY NOT BE VARIED, MODIFIED, OR CHANGED EXCEPT BY WRITTEN AMENDMENT ATTACHED HERETO EXECUTED BY A CORPORATE OFFICER OF THE COMPANY.
a. Future orders placed online for products and services using the Company’s standard online ordering system will supersede by this Agreement.
ACCEPTANCE BY ELECTRONIC SIGNATURE
1. Customer agrees that completing the order constitutes an electronic signature hereto and shall legally and financially bind the Customer to this and future electronic orders provided by the Company.
2. By signing this agreement, Customer and Signor, acknowledges he/she has the authority to bind the Customer (individual, corporation or business entity) to this Agreement or is otherwise personally financially responsible for the Agreement.