USE AND LIMITED-LICENSE AGREEMENT
1. TERMS OF PAYMENT: The Customer agrees to purchase or license from Unblinking Infomatics, Inc. and Unblinking Infomatics agrees to sell or license, to Customer, tracking services ("the Service") as described in this Agreement. Terms of payment for parts and equipment are either paid in full to Unblinking Infomatics or financed through an Unblinking Infomatics-approved financier. All initial amounts due to Unblinking Infomatics for the parts and equipment shall be paid in full by the Customer at the time this Agreement is executed. Terms of payment for the monthly Unblinking Infomatics tracking services are found in the attached Auto Bill and Activation Sheet as applicable. The Service shall be billed in advance on a monthly basis. Bills for partial month's service will be prorated. Payments containing restrictive endorsements, terms or other statements, including satisfaction of debt, accompanying any payment shall be ineffective although payment is accepted by Unblinking Infomatics. The Customer agrees that Unblinking Infomatics may incur damages, which are difficult to calculate should, the Customer fail to pay any Customer bill by the due date ("Late Payment"). Therefore, for amounts not paid by the due date, Unblinking Infomatics may apply, and the Customer agrees to pay, as liquidated damages and not as a penalty, a Late Payment fee per month of 1.5% of the balance carried forward to the next bill .or, if less, the highest amount allowed by law. Customer agrees to pay late charges, as and when billed by Unblinking Infomatics, on any unpaid delinquent balance in an amount not to exceed the maximum late charge permitted by law. Customer agrees to pay attorney's fees and expenses Unblinking Infomatics incurs to collect any delinquent balance. Unblinking Infomatics shall have the right to change the payment terms, in writing with 30 days written notice, extended to Customer or cancel the service, in writing with 30 days written notice, if Unblinking Infomatics, in its sole discretion, determines the Customer's financial condition or previous payment record warrants such a change. All customers with declined monthly service fee(s) on the first of each month will be subjected to a $25 processing fee each month the fee(s) are declined. All prices quoted, all orders accepted, and all billings rendered are exclusive of all shipping, federal, state/province and local withholding, excise, sales, use and similar taxes, FCC charges or regulatory fees, or charges imposed by any governmental authority on this transaction. Customer will reimburse Unblinking Infomatics for any such tax, fee or charge, at the time of sale or thereafter, that Unblinking Infomatics is required to pay.
2. LICENSE: In consideration of the payment of the fees set forth herein, and unless otherwise agreed upon in a separate partnership document, Unblinking Infomatics grants to Customer a nonexclusive, nontransferable, limited license to access the Service(s) to which the Customer subscribes. Such license includes the right to access the Service(s) made available on Unblinking Infomatics website(s). The Customer may not copy, download, store, publish, transmit, transfer, sell, or otherwise use the Service(s) except as expressively permitted by these terms. The Customer may not sell, rent, lease, lend, time-share, assign, or transfer any right to use the Service(s) to any third party. The Customer may not store the results derived from their use of the Service(s) for the purpose of creating a value-added software application to resell, license, or otherwise to distribute to third parties.
3. WARRANTIES: The Customer expressly understands and agrees that: the Customer's use of the Service is at their sole risk. The Service is provided on an "as is" and "as available" basis. Unblinking Infomatics expressly disclaims all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement, with the exception of the Limited Warranty for the Unblinking Infomatics Tracking Device. Unblinking Infomatics makes no warranty that:_(i)_ The service will meet your requirements;_(ii)_ The service will be uninterrupted, timely, secure, or error-free;_(ii)_ The results that may be obtained from the use of the service will be accurate or reliable;_(iv)_ The quality of any products services, information, or other material purchased or obtained by you through the service will meet your expectations;_(v)_ and any errors in the software will be corrected.
Unblinking Infomatics warrants to the Customer only that the Unblinking Infomatics Tracking Device(s) purchased to enable Unblinking Infomatics Service will be free from defects in workmanship and materials ("Limited Warranty") according to the original manufacturer's warranty. This Limited Warranty does not apply to normal wear and tear and does not cover repair or replacement of Unblinking Infomatics Tracking Device(s) damaged by tampering, misuse, accident, abuse, neglect, inadequate installation, misapplication, alteration of any kind, disaster or defects due to repairs or modifications made by anyone other than Unblinking Infomatics or its authorized service representative. In addition, this Limited Warranty does not apply to physical damage of any nature whatsoever to the Unblinking Infomatics Tracking Device(s). The Unblinking Infomatics Tracking Device does not contain any end user serviceable parts, therefore any opening or attempted opening of the products shall constitute a breach of this Agreement by the Customer. Before returning any Unblinking Infomatics Tracking Device(s) under this Limited Warranty, the Customer must call the place of purchase or Unblinking Infomatics Customer Service at 208-639-8850. Unblinking Infomatics or authorized stocking Dealer, at its discretion, will repair or replace the Unblinking Infomatics Tracking Device(s) in accordance with the terms of this Limited Warranty. All returns not covered in Limited Warranty of the Unblinking Infomatics Tracking Device(s) and related accessories are subject to a testing fee of $15 plus shipping fees. The Company's Return Policy is defined in Section 9 of this Agreement. Repair or replacement by Unblinking Infomatics stated above is your exclusive remedy under this limited warranty. Unblinking Infomatics shall not be liable for any special, incidental, consequential or exemplary damages for breach of this limited warranty. Unblinking Infomatics disclaims all other warranties, whether express, implied, or statutory including but not limited to, all implied warranties of merchantability, fitness for a particular purpose or any warranty arising out of any proposal, specification or sample. Any software provided with the Unblinking Infomatics tracking device(s) is provided "as is" without warranty. Some states may not allow limitation of the duration of warranty, or the exclusion or limitation of special, incidental, consequential or exemplary damages, so the above limitations may not apply to you. The Company warrants, for the Customer's benefit alone, that the Internet-based application conforms in all material respects to the specifications for the current version of the application. Unblinking Infomatics has no control over Internet performance or access, the Global Positioning System (GPS) satellite network and the Wireless Data networks that Unblinking Infomatics utilizes and therefore disclaims all performance warrantees related to these services. Under some transient conditions (e.g. the mobile assets pass under bridges, through tunnels, etc.) erroneous data, such as speed, location, direction or operational status, may be transmitted. The Customer acknowledges that, as with any maps or driving directions, Customer should always recheck directions and driving conditions for accuracy and confirm that the road still exists, be aware of construction and other hazards and follow all safety precautions and law, the products and services are to be used only as an aid in planning. Unblinking Infomatics provides technical support via email between the hours of 8:00 AM MST until 5:00 PM MST Monday through Friday excluding standard American holidays. Email support questions may be submitted via the online tracking interface. Unblinking Infomatics will use its best efforts to reply via email in a timely fashion.
4. USER ACKNOWLEDGEMENTS: The Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that information presented to Customer through Unblinking Infomatics, Inc. or its' merchants ("Content") is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
5. LIMITATION OF LIABILITY & IDEMNITY: The Customer indemnifies Unblinking Infomatics against any personal injury or loss of life to any person or damage to property, whichever may occur. The Customer agrees to indemnify and hold Unblinking Infomatics and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to, or arising out of your use of the Service, your connection to the Service, your violation of the terms of Service, or your violation of any rights of another.
Unblinking Infomatics’ total liability with respect to any and all claims, regardless of the form of action, whether in contract, tort (including negligence and produce liability) or otherwise, arising out of or in connection with this use and limited-license agreement or use of any Unblinking Infomatics tracking device(s) or software shall not exceed the price paid to Unblinking Infomatics allocable to the Unblinking Infomatics tracking device(s) which give rise to the claim. In no event shall Unblinking Infomatics be liable for any special, consequential, incidental, indirect or exemplary damages, including, but not limited to, loss of profit or revenues, loss of the Unblinking Infomatics tracking devices, loss of data, cost of capital, cost of substitute goods, facilities, services or replacement power, downtime costs or claims of customers for such damages, even if Unblinking Infomatics knew of or should have known of the possibility of such damages. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. Unblinking Infomatics shall have no liability whatsoever to the customer for the claims of patent, copyright or other intellectual property right infringement and/or misappropriation of trade secrets, made against the customer in connection with the customer's purchase and/or use of the Unblinking Infomatics tracking device(s), or software. Customer's sole remedies for loss or damage, whether direct or indirect, caused by partial or total failure, inability to use or nonperformance of the Software, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, shall be as set forth in this Use and Limited License Agreement.
7. TITLE: Title (and right of possession without legal process) to Unblinking Infomatics Tracking Device(s) sold or licensed to Customer hereunder shall remain with Unblinking Infomatics or authorized stocking Dealer Customer agrees to do all acts necessary to maintain Unblinking Infomatics title and to perfect a security interest in favor of Unblinking Infomatics or authorized stocking Dealer in the Unblinking Infomatics Tracking Device(s).
8. DELIVERY AND RISK OF LOSS: Any shipping dates are approximate and are based upon prompt receipt of all necessary information. Unblinking Infomatics or authorized stocking Dealers will use reasonable efforts to meet the delivery dates requested by Customer; however, Unblinking Infomatics will have no liability whatsoever for delays in delivery for any reason. Unblinking Infomatics or authorized stocking Dealer reserves the right, in its sole discretion, to allocate hardware product shipments among all of Unblinking Infomatics or authorized stocking Dealer's Customers. Hardware products held for Customer shall be at Customer's risk and expense. Unless otherwise specified by Unblinking Infomatics, delivery will be made F.O.B. point of shipment to Customer. Risk of loss passes to Customer upon delivery to the carrier.
9. RETURN POLICY: A Unblinking Infomatics Tracking Device purchased by the Customer may be returned in good working condition to the place of purchase with valid receipt of purchase within seven (7) days from the date of purchase for a refund, in accordance with the Unblinking Infomatics Return Policy. All hardware product returns to Unblinking Infomatics are subject to a 30% restocking fee. After the initial seven (7) days from purchase, a Return Merchandise Authorization (RMA) number must be obtained before an order can be returned under any circumstances. Orders sent to Unblinking Infomatics without an RMA will be returned to sender. Please contact Unblinking Infomatics Customer Service at 1(888) 759-2411 during the following business hours, Monday – Friday 8:00 am-5:00 PM, Mountain Standard Time to obtain an RMA number. Once issued by Unblinking Infomatics Customer Service, the RMA number must be written prominently on the outside of the return shipment packaging. Failure to follow these instructions and any additional verbal directions issued by Unblinking Infomatics Alert Customer Service will result in the rejection of the shipment by Unblinking Infomatics and return of the order to you. Upon termination or expiration of this Agreement, you shall return the System to us by mailing the System to us at your expense. If you fail to return the System within thirty (30) days following the termination or expiration of this Agreement, you shall pay us, in cash, Two Hundred Dollars ($200.00) for the System. Refusal of any ordered shipment voids all warranties. Shipping is nonrefundable. All returned items must be undamaged, and able to be resold. Subscriber accounts will continue to be charged until all items are received by Unblinking Infomatics.
10. TERMINATION DEFAULT. If you materially breach this Agreement, including, without limitation, by failing to make any payment when due, we may discontinue the Monitoring Service and terminate this Agreement. If service is suspended because you have breached this Agreement, and you ask us to reactivate the System after you have cured such breach, you will pay, in advance, our then prevailing reconnection fee. You authorize us to investigate your credit record, and to report your payment performance under this Agreement to credit agencies and credit reporting services. YOU UNDERSTAND THAT THE SYSTEM MAY NOT WORK WITH EQUIPMENT USED BY OTHER ALARM COMPANIES OR MONITORING CENTERS.
11. FALSE ALARMS AND ABUSE OF SERVICE. You agree that you and others using the System will use it carefully so as to avoid causing false alarms. False alarms can be caused by forces beyond our control. If we receive too many false alarms, that will constitute a breach of contract by you, and we may cancel this Agreement and the Monitoring Service. If a false alarm fine or penalty or a response fee is charged to us or you by any governmental agency, you will pay such charge. Subscriber further acknowledges and agrees that the Monitoring Service may be suspended from time to time for excessive false alarms, improper signals and “problem accounts.”
12. TERM OF AGREEMENT: This Agreement shall have a term of one (xx) year. After one (xx) year, a Customer may cancel this Agreement with thirty (30) days written notice ("Termination Notice"). Following the receipt of the Termination Notice by Unblinking Infomatics, the Customer shall be responsible for payment of the thirty (30) days of service. Devices that are cancelled before the one (1) year term are subject to Unblinking Infomatics standard cancellation fee of $150 per device ("Cancellation Fee"). The Company may terminate this Agreement any time by giving the Customer thirty (30) day notice.
13. EXPORTS: Customer will not export the Unblinking Infomatics Tracking Device, directly or indirectly, from the United States of America.
14. ASSIGNMENT: The Company may assign in whole or in part its rights or duties under this Agreement without prior notice to the Customer and upon such assignment Unblinking Infomatics shall be released from all liability hereunder. The provisions of this Agreement are for the benefit of the parties hereto and not for any other entity. The delegation or assignment by Customer of any or all of its duties or rights hereunder without Unblinking Infomatics’ prior written consent shall terminate this Agreement and the Customer shall be subject to all Cancellation Fees and penalties outlined in Section 8 of this Agreement.
15. GENERAL: This Use and Limited License Agreement shall be governed by the laws of the State of Idaho. The invalidity, in whole or in part, of any section or paragraph of this Use and Limited License Agreement shall not affect the validity of the remainder of such section or paragraph. The failure of either party to enforce at any time any of the provisions of this Use and Limited License Agreement shall not constitute or be construed to be a waiver of such provisions or of the right of such party thereafter to enforce any such provisions. The terms and conditions of this Use and Limited License Agreement by their sense and context are intended to survive the performance by Unblinking Infomatics and/or Customer and shall survive completion of performance or termination of this Use and Limited License Agreement. Customer is solely responsible for complying with any orders, rules and regulations of the Federal Communications Commission, or any other Federal, State or local governmental authority, applicable to the purchase, installation and operation of the products and/or Services. The provisions of this Use and Limited License Agreement are for the benefit of Unblinking Infomatics and the Customer and not for any other person or entity. The delegation or assignment by Customer of any or all of its duties or rights hereunder without Unblinking Infomatics prior written consent shall be void and shall be a beach of this agreement Unblinking Infomatics shall not be deemed in default hereof for delay, failure in performance or loss or damage due to any force majeure conditions including fire, strike, embargo, explosion, power irregularities, earthquake, nuclear accident, volcanic action, flood, war, water, the elements, labor disputes, civil disturbances, government requirement, civil or military authority, acts of God or public enemy, inability to secure products or transportation facilities, acts or omissions of common carriers or other causes beyond their reasonable control whether or not similar to the foregoing. This Use and Limited License Agreement constitutes the entire understanding between Customer and Unblinking Infomatics concerning the purchase of Unblinking Infomatics Service as it relates to the Unblinking Infomatics Tracking Device(s) unless superseded by terms laid out in any Unblinking Infomatics Global Alliance Partner Agreements. Any prior or contemporaneous written or oral representation, promise, understanding, proposal, agreement, warranty, course of dealing or trade usage not expressly contained or referenced herein are superseded by the terms hereof and shall not be binding on Unblinking Infomatics unless agreed to in writing by an authorized representative of Unblinking Infomatics at Unblinking Infomatics headquarters in Eagle, Idaho. Any modification or waiver of any provision of this Use and Limited License Agreement must be in writing and signed by authorized representatives of both parties. Unblinking Infomatics does not assume and hereby expressly disclaims any obligations or liabilities in connection with the sale of products other than those expressly stated in this Use and Limited License Agreement, and does not authorize any person (including Unblinking Infomatics representatives and authorized Dealers) to assume for Unblinking Infomatics any other obligations or liabilities. Customer agrees that Unblinking Infomatics Service, as specified herein, is to be used only for the purposes of determining the speed, location, direction or operational status of the mobile assets for which the Service and the Unblinking Infomatics Tracking Device(s) was acquired.
Any use of the Service and the Unblinking Infomatics Tracking Device(s) other than for determining the speed, location, direction or operational status of the mobile assets shall be deemed a material breach of this Use and Limited License Agreement and Customer is subject to fees and penalties or cancellation of service. In the event that the Customer receives Unblinking Infomatics Service and Unblinking Infomatics Tracking Device(s) under a trial arrangement, the Customer shall be liable for all costs associated with repair or replacement of the Unblinking Infomatics Tracking Device(s) due to: loss, damage by misuse, accident, abuse, neglect, misapplication, alteration of any kind, defects due to repairs or modifications made by anyone other than Unblinking Infomatics or its authorized service representative and physical damage of any nature whatsoever to the surface of the display. Customer agrees that the Unblinking Infomatics Tracking Device(s) received under any trial arrangement shall be returned to place of purchase in the same condition as when they were provided to the Customer. This Use and Limited License Agreement shall be subject to review and acceptance by an officer of Unblinking Infomatics Inc. in its exclusive discretion.
16. INFORMATION POLICY: In order to improve Unblinking Infomatics web sites and to better tailor it to meet the Customer needs, Unblinking Infomatics gathers certain types of information about its Customers to improve marketing and promotional efforts, to statistically analyze site usage, to improve content and product offerings and to customize Unblinking Infomatics web site content, layout, and services. This may include personal information such as Email addresses, and aggregate information such as the number of "hits" Unblinking Infomatics web site receives in a day. The Company may use some of this information to deliver helpful information to its Customers, which may include new services and advertising and promotions that are targeted to its Customer's personal interests. In addition, Unblinking Infomatics may use a Customer's Email address, and phone number to contact him or her regarding administrative notices, new product offerings, and communications relevant to the use of the web site. However, a Customer may elect not to receive some of this information by notifying Unblinking Infomatics via Email or by telephone at 208-639-8860. The Company may use information learned about its Customers through the service and web site to resolve disputes, to troubleshoot problems, and to enforce Unblinking Infomatics Use and Limited License Agreement. In order to protect Unblinking Infomatics Customers, the service, and the web site, Unblinking Infomatics may evaluate Customer information for security and other purposes, such as checking for multiple User IDs or aliases. Unblinking Infomatics, Inc. may disclose personal information if such information is subpoenaed, or if Unblinking Infomatics, Inc. believes a Customer is using the service or web site to commit unlawful acts or acts that endanger the health, safety, or welfare of another user or the general public. In addition, Unblinking Infomatics may be required to disclose information to the government or third parties under certain circumstances involving illegal acts, for example, in the unlikely event that unauthorized third parties unlawfully intercept or access transmissions or private communications. Further, by signing this document contained within the Unblinking Infomatics Use and Limited License Agreement, the Customer authorizes Unblinking Infomatics to disclose any information about the Customer to law enforcement or other government officials as Unblinking Infomatics, in its sole discretion, believe necessary or appropriate, in connection with an investigation of fraud, intellectual property infringements, or Other activity that is illegal or may expose Unblinking Infomatics to legal liability. Also, by signing the Use and Limited License Agreement, the Customer authorizes Unblinking Infomatics to disclose their User ID, name, street address, city, state, zip code, country, phone number, Email, and company as Unblinking Infomatics, Inc., in its sole discretion, believes necessary or appropriate in connection with an investigation of fraud, intellectual property infringement, piracy, or other unlawful activity. The Company does not sell or rent any personally identifiable information about its Customers to any third party. The Company does aggregate personally identifiable information and may disclose such aggregate information to advertisers or other parties for marketing and promotional purposes. The Company documents not disclose to these entities any information that could be used to personally identify a Customer and the Customer's credit card number and/or bank account number. Unless specifically instructed in writing by a Customer, Unblinking Infomatics shall maintain Customer data generated by Unblinking Infomatics service for a period of time not less than six (6) months and not more than twelve (12) months.
17. ARBITRATION AGREEMENT: In the event of a dispute between the customer arising out of or relating to this Agreement, whether by virtue of contract, tort, or otherwise, including but not limited to the interpretation of the terms and conditions of this Agreement, the making of the Agreement, or breach of any provision of this Agreement, Unblinking Infomatics and the Customer hereby expressly agree to submit their dispute to binding arbitration for resolution in accordance with the rules and requirements of the American Arbitration Association and the judgment upon award may be entered in any court having jurisdiction thereof in accordance with said Rules. The seat of arbitration shall be Eagle, Idaho, USA. The procedural law of Idaho shall apply. The arbitration proceedings shall be conducted in English. Unblinking Infomatics and the Customer expressly agree that the Federal Arbitration Act (FAA), 9 U.S.C.S. 1 et. seq., controls any dispute arising out of this action. Unblinking Infomatics and the Customer acknowledge and understand that by agreeing to submit their dispute to binding arbitration they are effectively waiving their right to trial by jury as a means of resolving disputes. Furthermore, Unblinking Infomatics and the Customer acknowledge that they desire to arbitrate any dispute arising from this Agreement in an effort to resolve such dispute(s) quickly and avoid the cost of litigation. Judgment upon such arbitration award maybe entered in any court having jurisdiction. Each party shall be responsible for paying any attorney's fees, expert witness' fees and other expenses it incurs on its behalf in connection with the arbitration, plus one half the arbitrator's fee and one half of any expenses incurred by the arbitrator, unless otherwise agreed by the parties or ordered by the arbitrator, and award shall access the arbitrator's fee and expenses accordingly. Unblinking Infomatics and the Customer expressly agree and affirm that the subject matter of this contract involves a substantial impact upon interstate commerce, both in this individual transaction and in its aggregate impact.
18. ENTIRE AGREEMENT: There are no representations, warranties, collateral agreements or conditions affecting this Agreement except as expressed herein.
19. NOTICE: All communications arising from the terms of this Agreement will be made in writing and served personally, by registered mail, or by email. The Addresses for any communications to be delivered to the parties as appear on the letterhead or to such other addresses as to the parties may agree.
20. ADDITIONAL SERVICES: In addition to the aforementioned Services Unblinking Infomatics and Customer may agree upon other services from time to time. The Company will provide Customer with a cost estimate for additional engineering or other costs required implementing capabilities outside the scope of those specified herein. With regard to activating and supporting additional tracking units, such activation can be initiated by purchase order. Unblinking Infomatics will not initiate additional services without written consent of Customer.