Terms and Conditions
This ConxGPS Agreement (the "Agreement") is made between VH Text2Car Inc. also dba ConxGPS and the purchaser ("You or Your") of communication data services ("Services"), and of the ConxGPS 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. ConxGPS 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 ConxGPS, and any air time or cellular provider and any hardware supplier of ConxGPS (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 ConxGPS'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 ConxGPS's Service Plans. ConxGPS 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. ConxGPS 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 ConxGPS's websites. The number of actions included and pricing will be as described at the time of purchase. You agree that ConxGPS may terminate Your Service Plan for excessive or uncontrolled airtime action and use due to Device malfunction or Your abuse. ConxGPS 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 ConxGPS 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, ConxGPS'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 ConxGPS, unless You have been specifically allowed to do so in a separate agreement with ConxGPS. 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).
CONXGPS'S TEST OF SERVICES
You acknowledge that ConxGPS 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 ConxGPS 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. ConxGPS 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 ConxGPS 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 ConxGPS designates on such invoice. Airtime charges for Services commence immediately upon activation. All amounts paid for prepaid airtime are to be pre-paid quarterly and 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. GPS Tracking Devices that are not returned within 7 days, the Subscriber will be required to pay a $200 per GPS Tracking Device.
Upon Your determination to terminate the use and subscription of part or all the System Services, you must email to ConXGPS your cancellation request. You will be provided in return, by email, a Return Authorization Number (RA#) and a printable shipping label. Subscriber is to safely package GPS tracking device(s) to be returned with the attached Return-To label. Shipping costs are the responsibility of the Subscriber. Devices not received at the ConXGPS warehouse prior to the next quarterly-based subscription, will be charged for that and any future quarterly subscription dues until the device is returned to the ConXGPS warehouse.
GPS Tracking Hardware ownership will always be retained by ConxGPS. Agreement will auto-renew and the quarterly airtime payment is considered due in full at the last day of the current subscription term.
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, ConxGPS 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 ConxGPS to pay any such taxes or fees on Your behalf, and You agree to reimburse ConxGPS promptly upon demand for the amount of any taxes, fees and charges that ConxGPS pays on Your behalf.
You agree to indemnify and hold ConxGPS harmless against any and all losses, liabilities, claims, damages, costs or expenses, including costs of collection, legal fees, court costs and expenses incurred by ConxGPS 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.
ConxGPS 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 fiftenn 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 ConxGPS depend upon services provided by third parties ("Service Providers") pursuant to agreements between such Service Providers and ConxGPS 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 ConxGPS and such Service Providers. In addition, You expressly agree that the agreements and terms shall survive the termination of this Agreement.
You understand that ConxGPS 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 ConxGPS, the Third Party Providers and the Service Providers, and hold ConxGPS, the Third Party Providers and the Service Providers harmless for any claims made against ConxGPS, 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
- You acknowledge and agree that ConxGPS or ConxGPS'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 ConxGPS and that You shall not disclose such information without ConxGPS's prior written consent. You understand that all GPS Tracking Device accumulated and stored data is exclusively owned by ConXGPS.
- Unless You have agreed otherwise in writing with ConxGPS, you have no right to use any of ConxGPS's trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
- 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.
- Unless You have been expressly authorized to do so in writing by ConxGPS, 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 CONXGPS
ConxGPS gives You a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to You by ConxGPS 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 ConxGPS, 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 ConxGPS, in writing. Unless ConxGPS 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 ConxGPS. 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 ConxGPS 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 ConxGPS 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 ConxGPS immediately at 1 (306) 900-2024. You agree that, in order to perform its obligations under this Agreement, ConxGPS 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, ConxGPS 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 ConxGPS system. Further, You understand that privacy cannot be guaranteed on the ConxGPS system or other systems such as those used in order to provide the Services, and ConxGPS 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 ConxGPS 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 ConxGPS 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 ConxGPS 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 ConxGPS Privacy Policy Statement by contacting ConxGPS'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 CONXGPS.
USE OF WEBSITE
ConxGPS maintains a website that You may access in connection with Services You purchase from ConxGPS or ConxGPS's authorized agents. You agree that You will not use or attempt to use this website for any purpose:
- that is any way unlawful or prohibited,
- that transmits any unauthorized or unsolicited advertisements, solicitations, schemes, spam, flooding, or other unsolicited e-mail or unsolicited commercial communications,
- that transmits any viruses,
- that interferes with ConxGPS's network services;
- that attempts to gain unauthorized access to ConxGPS's network services, or
- that impairs or limits ConxGPS'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 ConxGPS 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. ConxGPS reserves the right to modify this website at any time without Your consent. YOU UNDERSTAND AND AGREE THAT CONXGPS 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: ConxGPS 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 ConxGPS's liability to You exceed the amount paid by You for the Services in question. ConxGPS 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 ConxGPS has been advised of the possibility of such damages. You agree to indemnify and hold ConxGPS 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 ConxGPS 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. CONXGPS 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: ConxGPS 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 ConxGPS or its subcontractors. If ConxGPS is unable to wholly or partially perform the Services because of any cause beyond its control, ConxGPS 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. ConxGPS 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 ConxGPS 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 ConxGPS and any of its Service Providers shall not be liable for any lack of privacy or security resulting from use of ConxGPS 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, ConxGPS shall have no obligation to issue a refund or furnish substitute services. In addition, ConxGPS 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. ConxGPS 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 ConxGPS 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 Subscription Service, and shall automatically renew. YOU agree that all subscriptions renew automatically until canceled by the user, with the hardware return request notification to be received in writing using the user portal and the subscription hardware has been returned and in the possession of ConXGPS by a minimum of 2 days prior to the subscription service renewal date. Cancellation of the Service will commence on the last day of the last active renewal date, with no refund provided for any part of the Service of that term. Notwithstanding the foregoing, this Agreement shall terminate immediately without liability if the authorizations held by ConxGPS are revoked by the FCC, Industry Canada or any other authority governing the provision of the Services. ConxGPS 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.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. Notwithstanding the foregoing, this Agreement shall terminate immediately without liability if the authorizations held by ConxGPS are revoked by the FCC, Industry Canada or any other authority governing the provision of the Services. ConxGPS 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 ConxGPS unless such amendment or modification is in writing signed by an authorized officer of ConxGPS. 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 ConxGPS 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 ConxGPS.
By signing (through electronic acceptance) by means of initial subscription payment, You agree to all terms of this Agreement, including the arbitration provision.