General Terms and Conditions
ACCEPTANCE OF THIS AGREEMENT – Customer will have accepted and be bound by this Agreement if Customer provides Tracker Systems with a written or electronic signature or clicks the accept tab or accesses the MyTracker website or APP and logs in.
AGREEMENT TERM – The term of this Agreement shall be that which is indicated on your purchase receipt, order or invoice. The Customer may be required to commit to a fixed one or two-year term based on the Service Plan selected or other monetary considerations set forth by Tracker Systems.
IF CUSTOMER SELECTS A SERVICE PLAN OR PARTICIPATES IN A PROMOTION THAT REQUIRES A MINIMUM TERM, CUSTOMER SHALL PURCHASE SERVICE FOR THE FULL TERM AND, UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, PAY DAMAGES TO TRACKER SYSTEMS (AS DISCUSSED IN SECTION 6 BELOW) IF THE AGREEMENT IS TERMINATED BEFORE COMPLETION OF THE MINIMUM TERM. Customer will not be liable to Tracker Systems for early termination if service is terminated during any evaluation period if outlined in writing. Upon completion of the term, this Agreement shall automatically renew on a month to month basis until the Agreement is terminated by either party. Tracker Systems may, at its sole discretion, decide not to renew this Agreement at any time before the completion of the term or any renewal period.
CHANGES TO AGREEMENT – SUBJECT TO APPLICABLE LAW, TRACKER SYSTEMS MAY, AT ANY TIME IN ITS SOLE DISCRETION, MODIFY ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE RATES IT CHARGES TO CUSTOMER. TRACKER SYSTEMS WILL PROVIDE NOTICE TO CUSTOMER OF ANY MATERIAL MODIFICATION. If the modification is material and adverse to Customer and Customer does not agree to accept the modification, Customer may terminate this Agreement without incurring any liability to Tracker Systems for early termination by notifying Tracker Systems within sixty (60) calendar days after the effective date of the modification. The effective date of the modification will be set forth in the written notice provided to Customer. If Customer does not terminate the Agreement during the sixty (60) day period, Customer will have agreed to accept the modification and the modification shall have retroactive effect to its effective date.
USE OF SERVICE – Customer shall not use the service in any unlawful manner or in any manner that may be abusive, threatening, harassing, or fraudulent. Customer shall not use the service to track an individual or property not held in ownership by the Customer if this would violate any laws. Customer should not use the service in a manner that could result in damage or risk to the business, reputation, properties, services, or other customers, of Tracker Systems, third parties, or the general public. Customer may not resell or lease the service to any other person or party unless specifically agreed to in writing by Tracker Systems. Customer shall not attempt to gain unauthorized access to the Service or infringe on the service of another customer.
Change in Service – Any change in Service may require additional programming by Tracker Systems for which there will be a fee as outlined in the RATES AND CHARGES section of this Agreement.
SERVICE AVAILABILITY – CUSTOMER ACKNOWLEDGES THAT USE OF SERVICE IS DEPENDENT ON SERVICES OF OTHER PROVIDERS FOR THE TRANSMISSION OF DATA TO OUR DATABASE SERVERS. WE CANNOT GUARANTEE THE INTEGRITY OR RELIABILITY OF SUCH SERVICES. THE SERVICE UTILIZES THE INTERNET FOR STORAGE AND TRANSMISSION OF CUSTOMER LOCATION INFORMATION. DUE TO THE NATURE OF THE INTERNET, SERVICE CAN BE AFFECTED BY SUCH THINGS AS DATA TRAFFIC, SYSTEM OUTAGES, POWER FAILURES, COMPUTER VIRUSES, AND ACTS OF GOD.
RATES AND CHARGES – Customer shall pay in full all charges for Services provided under this Agreement and any Plan that becomes part of this Agreement, including monthly charges, usage charges, taxes, assessments, and any additional fees or charges imposed on Customer or on Tracker Systems and associated with the Service. Customer is responsible for all charges or purchases associated with Customer’s Service whether or not Customer was the user of the Service or authorized its use. If Customer fails to pay any amounts when due under this Agreement, Customer shall be in default and Tracker Systems shall be entitled to exercise any remedies available to it under this Agreement or at law or in equity.
Service Charges – Customer shall pay all charges for Services selected by Customer as outlined on the Tracker Systems’ Invoice. CUSTOMER’S SERVICE PLAN INFORMATION AS OUTLINED ON THE INVOICE AND PRECEEDING MONTHLY INVOICES SHALL BE CONSIDERED PART OF THIS AGREEMENT. Rates charged to Customer include monthly service charges and may include activation or set up fees. Monthly service charges shall begin once Customer’s Service is activated, which may occur before Customer begins to utilize the Service. Taxes, Fees, and Assessments – Customer shall pay all federal, state, and local taxes and fees that are imposed on transactions subject to this Agreement. Customer shall be responsible for all taxes and fees (whether imposed upon Customer or Tracker Systems) that are measured by gross receipts from sales made to Customer or imposed as a per-line or per-unit charge. Any Customer who is eligible for an exemption from any tax or fee must provide Tracker Systems with a valid and properly executed exemption certificate for the exemption to be effective.
Early Termination Component of Rate Structure – Tracker Systems incurs a significant cost in activating Service to Customer. These costs are partially recouped over the length of the Customer’s Agreement with Tracker Systems through the monthly service fees charged to Customer, which have been established in part for this purpose. If Customer beaches this Agreement or terminates Service for any reason, Customer understands and acknowledges that Tracker Systems will not receive the full benefit of this Agreement with Customer, in part because Tracker Systems will not continue to receive monthly service charges from Customer. As a result, Tracker Systems will incur damages that are difficult, if not impossible, to determine. THEREFORE, IN THE CASE OF BREACH OR EARLY TERMINATION OF THE AGREEMENT BY THE CUSTOMER, CUSTOMER SHALL PAY TO TRACKER SYSTEMS, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY (IN ADDITION TO ALL AMOUNTS THEN OWED TO TRACKER SYSTEMS), THE AMOUNT INDICATED ON CUSTOMER’S INVOICE AS THE TERM DISCOUNT OR $100, WHICHEVER IS HIGHER, FOR EACH INDIVIDUAL SERVICE ASSOCIATED TO THE CUSTOMER’S ACCOUNT AS A REASONABLE ESTIMATE OF THE DAMAGES INCURRED BY TRACKER SYSTEMS.
Failure to Pay – Customer acknowledges that time is of the essence with respect to all amounts owed to Tracker Systems. IF CUSTOMER HAS NOT PAID INVOICE IN FULL BY THE DUE DATE, A LATE PAYMENT CHARGE OF UP TO 1.5% PER MONTH, OR SUCH LESSER AMOUNT PERMITTED BY LAW, MAY BE APPLIED TO THE TOTAL UNPAID BALANCE DUE AND OUTSTANDING. THIS LATE PAYMENT CHARGE IS ASSESSED TO RECOVER COSTS FOR CUSTOMER’S FAILURE TO PAY AND SHALL NOT CONSTITUTE INTEREST. Tracker System’s acceptance of late or partial payments (even id marked “paid in full” or similar notations) shall not waive Tracker Systems’ right to collect the full amount due under this Agreement, plus any additional amounts charged under this paragraph. If Tracker Systems obtains the services of a collection agency, repossession agency, or attorney to assist in remedying any breach of this Agreement by Customer, including but not limited to, Customer’s non-payment of charge, Customer shall be liable for this expense.
Disputed Charges – Customer may dispute only those charges they believe are the result of a billing error or a problem related to Customer’s Service. To dispute any charge, Customer must pay all undisputed amounts when due and submit a written notice to Tracker Systems within ninety (90) days of the problem or before the end of the third billing cycle after the date upon which the problem occurred, whichever occurs later. CUSTOMER WAIVES THE RIGHT TO DISPUTE ANY CHARGES FOR WHICH TIMELY NOTICE IS NOT PROVIDED TO TRACKER SYSTEMS. Tracker Systems shall resolve all disputes in its sole discretion. If Tracker Systems determines that an error was made on Customer’s invoice, Tracker Systems will credit Customer’s account in the amount of the error. If Tracker Systems determines that a disputed charge was validly assessed upon the Customer, Tracker Systems will notify the Customer and Customer must furnish the amount to Tracker Systems within a reasonable period of time; or, if authorized by Customer, Tracker Systems may instead charge Customer’s credit card or debit card by any amount that was validly assessed. If Customer fails to pay any undisputed amount or, after a reasonable period of time, fails to pay any amount determined by Tracker Systems to have been validly assessed upon Customer, Tracker Systems may exercise any remedies available to Tracker Systems under this Agreement for non-payment, including termination of the Agreement. Customer hereby acknowledges that he or she has read the explanation of rates and charges set forth in this Section 7 and understands that these rates and charges may be assessed upon Customer, to the extent applicable.
Third-Party and Other Services – Customer acknowledges that the data services of other wireless telecommunications carriers are necessary for Tracker Systems to provide the Service and that there are charges for such data services. As with most wireless telecommunications services there are different types of rate plans and structures to choose from depending on the monthly volume of data anticipated by the Customer. There are overcharges for usage if monthly allotments of data are exceeded by the Customer during any given billing cycle of the wireless telecommunications carrier.
BILLING – Tracker Systems shall issue invoices for Service and for purchases of equipment. Tracker Systems’ invoicing cycle is approximately thirty (30) days for monthly invoices, ninety (90) days for quarterly invoices, and three-hundred sixty-five (365) days for annual invoices. The day of the month on which Customer receives an invoice may vary and is subject to change. Service charges will be invoiced to Customer in advance. If Customer’s Service is terminated for any reason before the end of any billing cycle, no credit or refund will be provided for any unused service and any monthly service charge will not be prorated to the date of termination. On occasion, Customer may be billed for Services in a month other than the month in which the Customer used the Services, which may result in higher-than-expected Service charges for the month in which the Services are billed. Additional Service added after a billing cycle has previously been established will be prorated in order that the new Service is placed on the same billing cycle as the original Service.
PAYMENTS – Tracker Systems accepts cash in United States currency, checks drawn on a commercial bank or credit union in the United States, credit cards, debit/check cards, and ACH debit transfers. Recurring Credit/Debit Card Payments or ACH Debits – Customer may pay any amount owed to Tracker Systems by using a credit or debit card acceptable to Tracker Systems or by ACH direct debits from their bank account. If Customer wishes to pay all amounts in this manner on a recurring basis a separate Payment Authorization Form must be completed and signed by the Authorized Contact. Customer shall promptly notify Tracker Systems of any changes to the credit or debit card (e.g., if the card is lost or stolen, terminated, or the expiration date changes) or bank account used for payment. Enrollment is for the duration of this Agreement unless cancelled earlier by Customer or Tracker Systems upon thirty (30) days advance written notice to the other party.
Specific Form of Payment – Tracker Systems may, at any time and from time to time, as it deems appropriate (e.g., following receipt of a dishonored check), demand that Customer make payment by money order, cashier’s check, or a similarly secure form of payment.
Dishonored Checks – Tracker Systems may charge Customer up to the highest amount permitted by law for any check or other instrument tendered by Customer and returned by a financial institution for any reason.
SUSPENSION, LIMITATION, OR TERMINATION OF SERVICE OR THIS AGREEMENT – Tracker Systems may limit, suspend, or terminate Customer’s Service or this Agreement at any time and without providing notice to Customer if: (1) Customer fails to pay any charges due under this Agreement, (2) Customer behaves in an abusive, derogatory, or otherwise unreasonable manner to any Tracker Systems employee, representative, or agent, (3) Tracker Systems has reason to believe that Customer’s Service is being used in a fraudulent manner or for an illegal purpose, (4) Customer’s Service is being used in such a manner to adversely affect other Customer’s Service or Tracker Systems’ business operations, (5) Customer’s use of the Service exceeds limitations or violates any restrictions placed on Customer’s account or otherwise breaches this Agreement, or (6) Tracker Systems, in its sole discretion, believes action is required to protect its interests or the interests of Customer or other customers. TRACKER SYSTEMS SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY OTHER PARTY FOR EXERCISING OR FAILING TO EXERCISE ITS RIGHTS UNDER THIS SECTION TO LIMIT, SUSPEND, OR TERMINATE SERVICE OR THE AGREEMENT. If Tracker Systems terminates Service to Customer, all amounts owed to Tracker Systems shall become immediately due.
Reactivation – Tracker Systems may, but is not required to, reactivate Service to Customer after Service has been suspended or terminated in accordance with the previous subsection. Before Service may be reactivated, Customer must pay to Tracker Systems all past due amounts plus a reconnection charge of $15 per unit of Service. Additional charges may apply if software updates or new client software is required. Tracker Systems may modify the terms of Service before reactivating Service to Customer and may require an initial deposit or additional deposit. Third-Party Service – Customer acknowledges and agrees that the Service depends on the wireless transmission of location information over the facilities of a wireless telecommunications carrier. CUSTOMER’S RESPONSIBILITY FOR THE PAYMENT OF SERVICE CHARGES DUE TO TRACKER SYSTEMS UNDER THIS AGREEMENT SHALL NOT BE WAIVED IF THE TRANSMISSION OF SUCH INFORMATION INTEGRAL TO THE SERVICE IS IN ANY WAY INTERRUPTED, SUSPENDED, DEACTIVATED, OR IMPAIRED BY A THIRD-PARTY PROVIDER OF WIRELESS TRANSMISSION SERVICE.
RELEASE OF CUSTOMER INFORMATION – Tracker Systems’ Service uses wireless radio systems and the internet to transmit, store, and forward communications that may be accidentally or intentionally intercepted. Although state and federal laws make it illegal for third parties to intercept such communications, privacy cannot be guaranteed. TRACKER SYSTEMS SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR EAVESDROPPING ON OR INTERCEPTING OF COMMUNICATION OF THE SERVICE. Customer acknowledges and agrees that Tracker Systems may access and use any information from Customer to: (1) provide customer support; (2) conduct marketing activities in accordance with applicable law; (3) list Customer’s contact information; (4) comply with applicable law; (5) respond to emergencies. Tracker Systems may access, use, monitor, record, or disclose any communication to or from Customer as well as the Service Customer is subscribing to in order to protect Tracker Systems’ rights or property or those of other customers, as permitted by law. Customer acknowledges and agrees that the Service provides the Customer with specific geographic information of the units that Customer has chosen to subscribe to the Service. Customer shall clearly, conspicuously, and regularly notify all individual users of the Service that location information may be accessed, used or disclosed in connection with the Service. CUSTOMER SHALL HOLD HARMLESS AND INDEMNIFY TRACKER SYSTEMS AGAINST ANY AND ALL CLAIMS, LOSSES, EXPENSES, DEMANDS, ACTIONS, OR CAUSES OF ACTION (INCLUDING ALL ACTIONS BY THIRD PARTIES) ARISING OUT OF BREACH OF CUSTOMER’S OBLIGATION TO NOTIFY USERS AS SET FORTH IN THIS SECTION OR CUSTOMER’S USE OF ANY GEOGRAPHIC INFORMATION SERVICE OR LOCATION INFORMATION.
EQUIPMENT – Customer acknowledges and agrees that our Service requires certain types of wireless equipment that is capable of obtaining GNSS, GPS and/or A-GPS information. Customer acknowledges that it is prohibited from accessing the internal software operating system of the equipment in order to change its function, or to copy the programming scripts, or reverse engineer the Equipment hardware or software. TRACKER SYSTEMS SHALL NOT BE LIABLE FOR ANY DAMAGES (INCLUDING DAMAGE TO THE EQUIPMENT) RESULTING FROM INSTALLATION OF THE EQUIPMENT, OR PROGRAMMING OF THE EQUIPMENT, BY CUSTOMER OR ANY THIRD PARTY. ALL RISK OF DAMAGE TO THE EQUIPMENT OR TO OTHER PROPERTY AS A RESULT OF THE EQUIPMENT SHALL BE BORNE ENTIRELY BY THE CUSTOMER. NO LOSS, DAMAGE, THEFT, OR DESTRUCTION OF THE EQUIPMENT, IN WHOLE OR IN PART, SHALL IMPAIR CUSTOMER’S OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CUSTOMER’S RESPONSIBILITY FOR THE PAYMENT OF SERVICE CHARGES DUE UNDER THIS AGREEMENT.
DISCLAIMER OF WARRANTIES – TRACKER SYSTEMS MAKES NO REPRESENTATIONS OR WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT CONCERNING CUSTOMER’S SERVICE. TRACKER SYSTEMS DOES NOT AUTHORIZE ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY ON ITS BEHALF, AND CUSTOMER SHOULD NOT RELY ON ANY SUCH STATEMENT(S). ANY STATEMENTS MADE IN PACKAGING, MANUALS OR OTHER DOCUMENTS, OR BY ANY TRACKER SYSTEMS EMPLOYEES, AGENTS, OR REPRESENTATIVES, ARE FOR INFORMATIONAL PURPOSES ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR USE OF THE SERVICE. CUSTOMER ACKNOWLEDGES THAT SERVICE MAY NOT BE ERROR-FREE AND THAT INTERRUPTIONS WILL LIKELY OCCUR FROM TIME TO TIME. THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
LIMITATION OF LIABILITY AND REMEDIES FOR BREACH – Tracker Systems shall not be liable for any deficiency in the Service; any suspension or termination of the Service by Tracker Systems or any other action taken by Tracker Systems in its sole discretion intended to protect its system and rights of property of Tracker Systems, its customers, or others; any damage or personal injury caused by the use of the Service; any other damage due directly or indirectly to causes beyond Tracker Systems’ control. WITHOUT LIMITING THE FOREGOING, TRACKER SYSTEMS’ SOLE LIABILITY FOR SERVICE DISRUPTION, WHETHER CAUSED BY THE NEGLIGENCE OF TRACKER SYSTEMS OR OTHERWISE, IS LIMITED TO A CREDIT ALLOWANCE OF NOT MORE THAN THE PROPORTIONATE CHARGE TO CUSTOMER FOR THE PERIOD OF SERVICE DISRUPTION. IF CUSTOMER IS PROVIDED WITH A CREDIT ALLOWANCE UNDER THIS SECTION, TRACKER SYSTEMS SHALL BE SUBROGATED TO ANY AND ALL RIGHTS THAT CUSTOMER MAY HAVE AGAINST ANY THIRD PARTY AS A RESULT OF CUSTOMER’S LOSS OR EXPENSE. THIS SECTION 13 SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
INDEMNIFICATION – Customer shall, indemnify, defend, and hold Tracker Systems harmless from any violation by Customer of any applicable law or regulation. Customer will further indemnify Tracker Systems for any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of Customer’s use of the Service; the connection to the Service; Customer’s violation, of this Agreement, or the rights of any third party.
DISPUTE RESOLUTION – Customer agrees to accept mandatory arbitration of any dispute arising out of this Agreement or the Service provided by Tracker Systems to the extent permitted by law. The parties agree to use the American Arbitration Association and to arbitrate according to the ADR Guides. Where mandatory arbitration is not permitted, Customer agrees to waive their right to a trial by jury.