This Text2Car Agreement (the "Agreement")
is made between VH Text2Car Inc. also dba ConX Wireless and the purchaser
("You or Your") of communication data services
("Services"), and of the Text2Car hardware ("Device") as
further described below.
INSTALLATION:
Improper mounting or installation procedure may
result in complete or partial loss of functionality of the Device and the
inability to utilize Services purchased under this Agreement. It is solely your
responsibility to ensure that the device is properly installed. Text2Car shall
not be liable to You or to any person for any loss or damage caused by improper
installation of the Device, including any loss of Services due to improper
installation. You agree to indemnify and hold Text2Car, and any air time or cellular provider and any hardware supplier of
Text2Car (collectively, "Third Party Providers"), harmless from any
and all claims or damages You or any person may have for any loss or damage
caused by improper installation of the Device.
LOCATION
AND DATA COMMUNICATION SERVICES:
Specific Services, service rates and service terms
and conditions ("Service Plan") may be included with the Purchase of
the Devices or may be purchased by You by logging onto one of Text2Car's
internet websites. All Services are subject to the Limitations of Technology
set out in this Agreement, proper installation, use and maintenance of the
Device, and the terms and conditions of Text2Car's Service Plans. Text2Car is
constantly innovating in order to provide the best
possible experience for its customers. You acknowledge and agree that the form
and nature of the Services may change from time to time without prior notice to
You. The Services are for vehicle location, if applicable, and communication
with the Device only, and are not intended as emergency services. The Services
have no connection to any law enforcement agency or emergency services
personnel. If needed, You or Your customer, as applicable, must contact the
appropriate law enforcement agency or emergency services personnel to obtain
assistance. If Services are purchased for commercial purposes, You agree to communicate to Your customer that the Services
are not intended to provide access to emergency personnel or services and that
Your customer must contact law enforcement agencies or emergency services
personnel directly through means other than the Services provided. Text2Car
accepts no responsibility or liability for use of the Services in emergency
situations and does not contact or communicate with law enforcement agencies on
Your or, if applicable, Your customer's behalf.
PRICING
OF SERVICES:
The Services are priced in terms of access Devices
and/or actions, with each type of location and data communication service being
assigned a specific number of actions. The Device is assigned to the Service
Plan that has been selected by You at time of purchase of the Device or Service
Plan on one of Text2Car's websites. The number of actions included
and pricing will be as described at the time of purchase. You agree that
Text2Car may terminate Your Service Plan for excessive or uncontrolled airtime
action and use due to Device malfunction or Your abuse. Text2Car may, at any
time, revise (a) the rates for Service Plans, (b) the number of actions
assigned to each location and data communication service, and (c) the cost and
features of the Services and programs. Though Text2Car may revise the rates of
Service Plans at any time, the rate you will pay for any Service Plan you
purchase will not change for the initial term of Your subscription. Exception
with possible increase to mid-term airtime rate plan may be deemed necessary if
system usage is beyond the scope of a typical 10-hour / 22 days per month
period and would then be considered excessive usage. Additional data usage fees
will be immediately required upon demand in order to
receive continued seamless service and avoid disconnection from system. No
repayment for hardware, airtime or other services will be provided in such
circumstances of service interruption/disconnection You may renew any Service
Plan or purchase additional Service Plans at the prevailing rates for those
Service Plans at the time of renewal of the Service Plan or purchase of
additional Service Plans. Following the expiration of Your Service Plan,
Text2Car's new Service Plans and Service Plan rates will be applicable to You
for continued Services. The Services are solely for the purpose of allowing You
to locate and communicate with the Device and may not be resold or otherwise
offered to or used by third parties. You agree not to access (or attempt to
access) any of the Services by any means other than through the interface that
is provided by Text2Car, unless You have been specifically allowed to do so in
a separate agreement with Text2Car. You specifically agree not to access (or
attempt to access) any of the Services through any automated means (including
the use of scripts or web crawlers). You agree that You will not engage in
activity that interferes with or disrupts the Services (or the servers and
networks which are connected to the Services).
TEXT2CAR'S
TEST OF SERVICES:
You acknowledge that Text2Car may, for its internal
test, control and illustration purposes, without
charge to You, locate or communicate with vehicles equipped with a Device.
COMPLIANCE
WITH LAW:
You are responsible for the use of the Services,
including any optional services selected. You agree to comply with all
applicable laws, ordinances, rules and regulations of
each applicable federal, provincial, local or foreign government and any agency
or public authority thereof, and to hold Text2Car and its Third-Party Providers
harmless from liability or loss by reason of any asserted or established
violation of said laws, rules, or regulations by You or anyone You authorize to
use a vehicle equipped with a Device. You acknowledge that certain GPS and/or
starter disablement technology may not be permitted by law when used for
commercial purposes in certain states/provinces, either now or in the future.
Text2Car is not liable for any claims or damages that may arise out of the fact
that GPS and/or starter disablement technologies are not permitted in a
particular jurisdiction.
PAYMENT,
TAXES, INDEMNITY:
You shall bear full responsibility for, and shall pay Text2Car all fees and charges (together
with all applicable taxes thereon) in accordance with the terms stated in this
Agreement and outlined on any invoice, and at such place as Text2Car designates
on such invoice. Airtime charges for Services commence immediately upon
activation. All amounts paid for prepaid airtime are non-refundable. Prices
relating to the Services purchased pursuant to this Agreement are exclusive of
taxes including, without limitation, any federal, state, provincial, local or foreign excise, sales, use, property, retailer's
occupation or similar taxes, or any duties, customs or similar charges.
If any payment during the course of the agreed term
is not satisfied by the agreed due date for any reason, You
will be considered in default and the outstanding moneys agreed for the balance
of the term will be immediately owed in full.
At the end of the agreed bundled hardware and
airtime paid-monthly term offer, the hardware ownership will be transferred
from Text2Car to You. You may at this time continue providing payment for just
the airtime portion based on available airtime plans at that time. You are
required to provide notice in writing to Text2Car at least 30 days prior to the
expiration of the term’s agreement date in order to
terminate future service. If no such written communication is provided by this
date by You, the agreement will auto-renew and the
annual airtime payment is considered due in full. If this payment is not
satisfied within 30 days of this date, You will be
considered in default and the outstanding moneys agreed will be immediately
owed in full.
You are solely responsible for and shall pay any and all sales, excise, use, transfer or other taxes, and
fees assessed or imposed by any federal, provincial, state, county, municipal
or local taxing authority in connection with the use of the Services. In the
event You fail to pay such taxes or fees, Text2Car may, in its absolute sole
discretion and without accepting any liability to do so, pay such taxes or fees
on Your behalf and, in such event, You hereby authorize Text2Car to pay any
such taxes or fees on Your behalf, and You agree to reimburse Text2Car promptly
upon demand for the amount of any taxes, fees and charges that Text2Car pays on
Your behalf.
You agree to indemnify and hold Text2Car harmless
against any and all losses, liabilities, claims,
damages, costs or expenses, including costs of collection, legal fees, court
costs and expenses incurred by Text2Car by reason of or arising out of or
relating to any failure by You to make any payments under this Agreement as and
when due.
Text2Car reserves the right in its absolute
discretion to suspend or terminate the Services if any charges payable by You
under this Agreement are delinquent in excess of
thirty days from the due date or You are otherwise in default under this
Agreement. You acknowledge that such suspension or termination of Services will
prevent You or, if applicable, Your customers, from
tracking or locating assets equipped with a Device. You are liable for all
reasonable costs associated with the collection of Your delinquent account
including, without limitation, reasonable legal and court costs, to the extent
not prohibited by applicable law. If Your account is placed in the hands of an
outside agency for collection, You agree to pay
reasonable attorney fees and collection costs, even though legal proceedings
may not be filed, to the extent not prohibited by applicable law. In the event
legal proceedings are filed, the amounts of such reasonable attorney fees shall
be fixed by the court in which the proceeding is filed, including any appeal
therein. You agree that this Agreement shall be governed by and construed in
accordance with the laws of the Province of Saskatchewan. Jurisdiction and
venue with respect to any claim or litigation in connection with this Agreement
shall reside in the Province of Saskatchewan. Your signature (through
electronic acceptance) hereto constitutes Your acknowledgment that You will
submit yourself to the personal jurisdiction of the courts with jurisdiction
within the Province of Saskatchewan.
DISCLOSURE
OF RELATIONSHIP WITH SERVICE PROVIDERS:
You understand that the Services furnished by
Text2Car depend upon services provided by third parties ("Service
Providers") pursuant to agreements between such Service Providers and
Text2Car and are subject to certain terms, conditions and limitations set out
in such agreements. You expressly understand and agree that You have no
contractual relationship whatsoever with the Service Providers and that You are
not a third party beneficiary of any agreement between
Text2Car and such Service Providers. In addition, You
expressly agree that the agreements and terms in this section 8 shall survive
the termination of this Agreement.
You understand that Text2Car and Service Provider
cannot guarantee the security of data transmissions, and
will not be liable for any lack of security relating to the use of the Services
or the transmission of data. You further acknowledge that the Service Providers
disclaim all liability of any nature to You, whether direct, indirect, incidental or consequential, arising out of use of the
Services, and You agree that You shall have no claims against the Service
Providers of any kind with respect thereto. You agree to indemnify Text2Car,
the Third Party Providers and the Service Providers,
and hold Text2Car, the Third Party Providers and the Service Providers harmless
for any claims made against Text2Car, the Third Party Providers or the Service
Providers, including any claims made by Your customers, if applicable, arising
out of use of the Services, to the fullest extent under the law.
PROPRIETARY
RIGHTS:
(a) You acknowledge and agree that Text2Car or
Text2Car's Service Providers own all legal right title and interest in and to
the Services, including any intellectual property rights which exist in the
Services (whether those rights happen to be registered or not, and wherever in
the world those rights may exist). You further acknowledge that the Services
may contain information which is designated confidential by Text2Car and that
You shall not disclose such information without Text2Car's prior written
consent.
(b) Unless You have agreed otherwise in writing
with Text2Car, you have no right to use any of Text2Car's trade names, trade marks, service marks, logos, domain names, and other
distinctive brand features.
(c) You agree that You shall not remove, obscure,
or alter any proprietary rights notices (including copyright and trademark
notices) which may be affixed to or contained within the Services. (d) Unless
You have been expressly authorized to do so in writing by Text2Car, You agree that in using the Services, You will not use any
trade mark, service mark, trade name, logo of any company or organization in a
way that is likely or intended to cause confusion about the owner or authorized
user of such marks, names or logos.
SOFTWARE
LICENSE FROM TEXT2CAR:
Text2Car gives You a personal, worldwide,
royalty-free, non-assignable and non-exclusive license to use the software
provided to You by Text2Car as part of the Services (referred to as the
"Software" below). This license is for the sole purpose of enabling
You to use and enjoy the benefit of the Services as provided by Text2Car, in
the manner permitted by this Agreement and your Service Plan. You may not (and
You may not permit anyone else to) copy, modify, create a derivative work of,
reverse engineer, decompile or otherwise attempt to extract the source code of
the Software or any part thereof, unless this is expressly permitted or
required by law, or unless You have been specifically told that you may do so
by Text2Car, in writing. Unless Text2Car has given You specific written
permission to do so, You may not assign (or grant a
sub-license of) Your rights to use the Software, grant a security interest in
or over your rights to use the Software, or otherwise transfer any part of Your
rights to use the Software. The Software which You use may automatically
download and install updates from time to time from Text2Car. These updates are
designed to improve, enhance and further develop the Services and may take the
form of bug fixes, enhanced functions, new software modules and complete new versions. You agree to receive such updates
(and permit Text2Car to deliver these to You) as part of Your use of the
Services.
SECURITY;
PERSONAL INFORMATION AND PRIVACY:
You agree and understand that You
are responsible for maintaining the confidentiality of passwords associated
with any account you use to access the Services. Accordingly, you agree that
you will be solely responsible to Text2Car for all activities that occur under
your account. If you become aware of any unauthorized use of Your password or
of your account, You agree to notify Text2Car
immediately at 1 (306) 979-8900. You agree that, in order to perform its
obligations under this Agreement, Text2Car may collect personal information
about You or, if applicable, Your customers, and when
the Services are used, and about Your or, if applicable, Your customers'
assets. You understand and agree that in conjunction with employee training,
quality control and the provision of the Services, Text2Car and/or its agents or
service providers may monitor the activities and location of Your or, if
applicable, Your customers' assets and the usage of the Text2Car system.
Further, You understand that privacy cannot be
guaranteed on the Text2Car system or other systems such as those used in order
to provide the Services, and Text2Car shall not be liable to You or any other
third party for any claims, loss, damages or costs which may result from a lack
of privacy. You consent to Text2Car using information about You and Your assets
to (i) administer the Services, (ii) electronically
locate Your or, if applicable, Your customers' assets equipped with a Device in
conjunction with providing the Services, (iii) provide information to third
party service providers, wireless carriers or other persons for the purpose of
providing the Services, or in response to a subpoena or other legal process,
and (iv) use and share Your information and statistics that do not include
information that identifies You or, if applicable, Your clients, personally. The USA PATRIOT ACT [Act of 2001,
Pub. L. No. 107-56, 272 Stat. 115] was introduced in the wake of the events of
September 11, 2001 as a means of increasing the U.S.
government’s ability to intercept and obstruct terrorist communications and
activities. To this end, though as an exceptionally unlikely prospect, the
Patriot Act facilitates, among other things, the ability of U.S. authorities to
conduct searches and to seize or compel the disclosure of records related to
customer-provided personal information. In
addition, You consent to Text2Car using information about You and Your assets
including contact information and the types of Services that You purchase and
use to (i) enforce the terms of this Agreement, (ii)
prevent fraud and respond to regulatory and legal requirements, or in
conjunction with a government inquiry, or in litigation or dispute resolution,
and (iii) share information with Text2Car affiliates in conjunction with the
Services and for the purpose of providing You with any promotional offers and
marketing materials. You also consent and agree to the use of Your personal
information to (i) administer Your account, including
for credit and collections purposes, and (ii) disclose such information to Your
bank or to a third party collection agency. You may
obtain a copy of the full text of the Text2Car Privacy Policy Statement by
contacting Text2Car's Privacy Officer. YOU ACKNOWLEDGE THAT IT IS YOUR
RESPONSIBILITY TO ADVISE ALL OCCUPANTS OR USERS OF YOUR OR, IF APPLICABLE, YOUR
CUSTOMERS' ASSETS EQUIPPED WITH A DEVICE ABOUT HOW INFORMATION ABOUT THEM MAY
BE COLLECTED, USED AND DISCLOSED BY TEXT2CAR.
USE OF
WEBSITE:
Text2Car maintains a website that You may access in
connection with Services You purchase from Text2Car or Text2Car's authorized agents.
You agree that You will not use or attempt to use this website for any purpose:
1) that is any way unlawful or prohibited,
2) that transmits any unauthorized or unsolicited
advertisements, solicitations, schemes, spam, flooding, or other unsolicited
e-mail or unsolicited commercial communications,
3) that transmits any viruses,
4) that interferes with Text2Car's network services;
5) that attempts to gain unauthorized access to
Text2Car's network services, or
6) that impairs or limits Text2Car's ability to
operate this website or any other person's ability to access or use the
website.
You agree that You will only access or use
information related to You in accordance with the Services You purchase, and
not for any illegal purposes. You agree that you will access this website at
your own risk. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS
WEBSITE, SERVERS AND THE INTERNET GENERALLY. You
understand that Text2Car cannot and does not ensure continuous access to the
website. Access may be interrupted due to technical limitations, such as heavy
use and server malfunctions, or other circumstances such as maintenance.
Text2Car reserves the right to modify this website at any time without Your
consent. YOU UNDERSTAND AND AGREE THAT TEXT2CAR WILL NOT BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES
RESULTING FROM, OR IN ANY WAY CONNECTED TO, YOUR ACCESS TO, USE OF, INABILITY
TO USE, OR RELIANCE ON THE WEBSITE OR ANY MATERIALS, INFORMATION, PRODUCTS OR
SERVICES OBTAINED OR ACCESSED THROUGH THE WEBSITE. FOR THOSE JURISDICTIONS THAT
EITHER DO NOT ALLOW OR PLACE RESTRICTIONS UPON THE EXCLUSION OR LIMITATION OF
DAMAGES IN CERTAIN TYPES OF AGREEMENTS, THIS LIMITATION SHALL BE CONSTRUED TO
PERMIT THE MAXIMUM EXCLUSION OR LIMITATION PERMITTED BY APPLICABLE LAW.
LIMITATION OF LIABILITY: Text2Car shall not be liable to You or to any other
person for any loss or damage caused by the use of the
Services or for any interruption of the Services, regardless of cause. In no event
shall Text2Car's liability to You exceed the amount paid by You for the
Services in question. Text2Car shall not be liable to You or any third party
for consequential, incidental, general, special or
exemplary damages, including, without limitation, loss of or damage to Your
vehicles or assets or loss of profits, revenues or data, even if Text2Car has
been advised of the possibility of such damages. You agree to indemnify and
hold Text2Car harmless from and against any and all
losses or damages caused by the use of the Services or for any interruption of
the Services. No action shall be brought for any breach of this Agreement more
than one year after accrual of such cause of action except by Text2Car for
money due on an open account. Certain of the above limitations may not apply in
some states. To the extent that any such limitations are precluded in a given state, such preclusion shall not affect any other
limitations not so prohibited or precluded. NOTWITHSTANDING ANYTHING ELSE SET
FORTH IN THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF
THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN 'AS IS' AND
'AS AVAILABLE' BASIS. TEXT2CAR EXPRESSLY DISCLAIMS ALL WARRANTIES,
REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, REPRESENTATIONS AND
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT WITH RESPECT TO THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW
THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR HOW LONG AN IMPLIED
WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY HAVE
OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. INTERRUPTION OF
SERVICES; FORCE MAJEURE: Text2Car shall have no liability for a failure to
provide, or for delay in providing the Services due directly or indirectly to
the Limitations of Technology or other causes beyond the control of Text2Car or
its subcontractors. If Text2Car is unable to wholly or
partially perform the Services because of any cause beyond its control,
Text2Car may terminate this Agreement without any liability to You, other than
the refund of any amounts paid for unused Services.
LIMITATIONS
OF TECHNOLOGY:
You have read, understand
and acknowledge the following inherent technical limitations relating to the
use of the Services: (a) Wireless Network Coverage and Service. Complete
coverage of the service area at all times is
improbable. The existence of adverse conditions, such as short-term unpredictable
meteorological effects and sky wave interference from distant stations, can
interrupt the Services at times. Certain circumstances such as weather,
tunnels, underground structures, terrain, high-rise buildings, enclosed or
underground parking or driving areas, faulty installation, motor ignition and
other electrical noises and radio signals from external sources may interfere
with the Services. Text2Car utilizes wireless networks with broad coverage
areas to access moving vehicles and assets. There are still areas within the
service area that have not yet been included in the wireless coverage areas.
Therefore, if a vehicle travels out of the available service area,
communication with that vehicle is unavailable until it returns to the available
service area. Also, from time to time, poor coverage areas ('holes') occur even
in fully developed areas, thereby limiting system performance. Other wireless
network environmental issues may affect the communications link between the
Devices and the Text2Car Online System. Environmental issues may include; service interruptions, network congestion, roaming
and similar access issues. (b) Global Positioning System (GPS) Drift and Urban
Canyon. GPS is a satellite based positioning system
providing expansive coverage throughout the world. The GPS antenna must have a
direct line of sight to the satellites. If said path is impaired (e.g. underground parking lots or the shadow of tall
buildings), it can affect the ability of the Services to recognize an accurate location.
(c) Tampering with the Device. If the Device is tampered with, disconnected, or
the Device completely removed, the functionality of the Devices and Services
will be jeopardized. (d) Privacy. The Devices and Services have many complex
elements and are not guaranteed against eavesdroppers, hackers, denial of
service attacks, viruses or interceptors. You
acknowledge and agree, and undertake to inform any
users of the Devices and Services, that Text2Car and any of its Service
Providers shall not be liable for any lack of privacy or security resulting
from use of Text2Car products or Services. In addition, to the extent You have
a privacy right in the location, characteristics, performance or operation of a
vehicle equipped with a Device, You agree to voluntarily
waive such right. (e) Availability of Cellular Technology/Mapping. Services are
based on cellular technology which may become obsolete in the future as a result of changes in wireless technology or actions by
telecom regulators with respect to cellular technology in mapping applications.
In such event, Text2Car shall have no obligation to issue a refund or furnish
substitute services. In addition, Text2Car assumes no responsibility for the
accuracy or inaccuracy of any maps upon which the Services are based. (f)
Capacity Limitation. The parties recognize that unusual concentrations of usage
may occur in certain locations. Text2Car shall incur no liability for its
inability to provide adequate Services hereunder arising from or related to a
lack of network capacity on the equipment which results from the aforesaid
usage concentration, and nothing herein shall require Text2Car to expend any
capital to insure capacity for Your use of the Services.
TERM AND
TERMINATION; RENEWAL:
This Agreement shall remain in full force and
effect for the term of the Service Plan You purchase in connection with the
purchase of any Device, and shall automatically renew.
YOU agree that all annual subscriptions renew automatically until canceled by
the user, with notification to be received in writing a minimum of 30 days
prior to the anniversary date of the Service. Cancellation of the Service will
commence on the anniversary of the last renewal date, with no refund provided
for any part of the annual Service of that year. Notwithstanding the foregoing,
this Agreement shall terminate immediately without liability if the
authorizations held by Text2Car are revoked by the FCC, Industry Canada or any
other authority governing the provision of the Services. Text2Car may terminate
this agreement, including the Services, at any time following the expiration of
Your initial Service Plan upon thirty (30) days' prior written notice to You.
GENERAL:
No amendment or modification hereof shall be
binding upon Text2Car unless such amendment or modification is in writing
signed by an authorized officer of Text2Car. If any term hereof is contrary to,
prohibited by or deemed invalid under applicable laws or regulations, such term
shall be deemed omitted to the extent prohibited or invalid
but the remainder of these Terms and this Agreement shall not be invalidated
and shall be given effect so far as possible. Any waiver of any right in, or
breach of, this Agreement shall not be a continuing waiver and shall not
prevent any claim of breach of the same term or any other term of this
Agreement. This Agreement is fully assignable by Text2Car to any person or
entity and shall inure to the benefit of such assignee or successor. You may
not assign this Agreement without the prior written consent of Text2Car.
By signing (through electronic acceptance), You
agree to all terms of this Agreement, including the arbitration provision under
Section 17.