TERMS AND CONDITIONS
Last Modified: October 1, 2021
1. INTRODUCTION; DEFINED TERMS. These terms and conditions, together with any and all NexTraq authorized Order Forms submitted by you and accepted by us (each, an “Order Form” ), constitute the agreement (the “Customer Agreement”) governing your use of the Services (as defined below). If we do not accept an Order Form from you for certain Services, any terms referring to those particular Services do not apply to you.
As used in this Agreement, the terms “you” and “your” refer to the customer indicated on the Order Form; “we,” “us,” “our” “NexTraq” and similar terms refer to NEXTRAQ, LLC, a Delaware limited liability company, and its Affiliates; “Affiliates” means any existing or future legal entity which, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with NexTraq with the notion of control consisting of the power to direct the management and policies of the legal entity whether through the ownership of a fraction of the share capital or by contract or otherwise and shall be deemed to exist upon the ownership of 50% or more of the share capital or voting rights; “API” means an application programming interface provided to you for use with web-based components of the Services; “Fleet Data” means the information and data generated by NexTraq Equipment and the provision of the Services, including geolocation, telemetry and movement data, including information that comes from the vehicles, and information that incorporates or is derived from the processing of such information or data, and all other data made available by us through the Platform for the purpose of providing the Services to you; “Services” means (a) our telematics-based vehicle and asset location service that uses the Global Positioning System and Tracking Devices for position location reporting and a wireless or satellite network operated by one or more third parties for data communications, together with any and all other services and add-ons (including, but not limited to, third-party services) offered by NexTraq for use in connection with such service and purchased or used by you, (b) the Platform (as defined below), (c) the operation of one or more Tracking Devices or other Equipment, (d) if you submit and we accept an Order Form for online Services, any APIs and other items made available by NexTraq for fulfillment of those Services, and (e) any other or additional services provided to you by NexTraq; “Tracking Device” means a vehicle or asset mounted wireless tracking device provided by us to enable your authorized use of the Services in the operation of a single vehicle; “Equipment” means any Tracking Device or other hardware item provided by NexTraq for use in furtherance of the Services; and “Platform” means the NexTraq service platform by which the Customer or User may receive access and view Fleet Data generated by the telematics-based vehicle an asset tracking service, including any audio and visual devices, and through a web browser, mobile application, or any other means of access provided by NexTraq.
2. CHANGES. WE RESERVE THE RIGHT, FROM TIME TO TIME, TO MAKE CHANGES TO THIS AGREEMENT, INCLUDING THE AMOUNT OF ANY CHARGES. ANY SUCH CHANGES WILL BE MADE AVAILABLE AT HTTPS://WWW.NEXTRAQ.COM/TERMS-AND-CONDITIONS/ AND THROUGH THE PLATFORM, OR BY SUCH OTHER METHODS WE DETERMINE TO BE APPROPRIATE. SUBJECT TO THIS AGREEMENT, IF YOU CONTINUE YOUR USE OF THE SERVICES OR ANY PART THEREOF OR ANY EQUIPMENT AFTER THE EFFECTIVE DATE OF SUCH CHANGES, YOU WILL BE DEEMED TO HAVE ACCEPTED THOSE CHANGES AS AN AMENDMENT OR SUPPLEMENT TO THIS AGREEMENT. THE MOST RECENT VERSION OF THIS AGREEMENT SHALL APPLY TO ALL SERVICES AND EQUIPMENT, EVEN IF OBTAINED THROUGH MORE THAN ONE ORDER FORM ON DIFFERENT DATES.
3. SERVICES DESCRIPTION.
3.1 The Services include access to our Platform that allows you to receive access and view Fleet Data generated by our telematics-based vehicle and asset tracking service. From time to time, we may develop and provide Platform updates, upgrades, bug fixes, patches, or new features, or modify or delete in their entirety certain features and functionality. You agree that NexTraq has no obligation to provide such updates or to continue to provide or enable any particular features or functionality.
3.2 We will provide you with the Equipment set forth on each Order Form we accept and arrange for installation, if required. For purposes of this Agreement, such Equipment is considered “authorized” provided all applicable fees are paid and for so long as you continue to pay the applicable monthly Charges (defined below) thereafter. During the Term, and except as otherwise provided herein, we will repair or replace, at our option, any authorized Equipment that contains a material defect or becomes incapable of working with the Services in accordance with NexTraq’s published specifications (the “Repair or Replacement Remedy”). We may use refurbished Equipment for purposes of the Repair or Replacement Remedy. To request a repair or replacement, you must contact Customer Service. Notwithstanding the foregoing, the Repair or Replacement Remedy is limited and does not apply with respect to (i) use of the Equipment with antennas, cable connections or mounting hardware other than those furnished by NexTraq or an authorized agent; (ii) damage to the Equipment caused by use outside of normal work conditions or by physical impact, exposure to moisture, or product abuse; (iii) improper handling (including insertion or removal of OBD based Equipment while a vehicle is in motion), (iv) improper installation (other than by NexTraq or its authorized agent), (v) alteration, modification or attempted repair other than by NexTraq or its authorized agent, or (vi) damage caused by any attempt to disassemble or repair Equipment. In addition, our obligations hereunder do not extend to antennas, batteries, cables or mounting hardware, nor to any third-party GPS navigation system that we may provide. We will schedule such replacements as promptly as we determine to be commercially reasonable, but we make no guaranty as to such schedule. We may request the return of any Equipment that we replace, in which case you must return such Equipment to us within 30 days of our issuing a return authorization number or you may be charged for the new Equipment based on our then-current list prices.
3.3 We will assign you, and you will be responsible for controlling, username(s) and password(s) which permit you, your employees and independent contractors, access to the Platform and, if we have accepted an Order Form for online Services, access to and interaction with those Services and related APIs. You are responsible for ensuring that usernames and passwords are not shared or used by more than one individual. You must promptly notify NexTraq of any unauthorized use of the username(s) or password(s), and you will be responsible for all use thereof (whether authorized by you or not). Until so notified, NexTraq shall not be responsible for any such unauthorized use. NexTraq shall not be liable for any loss or damage arising from any unauthorized use of a username or password. You shall not assign, transfer, or otherwise permit access to the Platform or Services or related APIs (as applicable) except as expressly set forth herein. Any use of the Platform, Services, or applications by an independent contractor of yours must be for your business purposes, and you will remain responsible for all the acts or omissions of any such independent contractor.
4.1 You will be solely responsible for any and all personal data and information related to identifiable individuals you provide to us through the Services (“Customer Data”). By providing Customer Data to us, you (i) certify that you have obtained all necessary consents to provide such Customer Data to us and (ii) grant all rights and permissions in or relating to Customer Data to NexTraq as are necessary or useful to provide the Services, to enforce this Agreement and to exercise its rights and perform its obligations hereunder. With respect to Fleet Data (defined above), as between the parties, you acknowledge that NexTraq has the right to license or sell this data, including for monetary compensation, allowed by law, and agree that you have no proprietary rights thereto.
4.2 Notwithstanding anything to the contrary, you grant NexTraq the right to collect, analyze, use, disclose (for remuneration or otherwise), aggregate and/or anonymize Fleet Data and any other data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (which may include Customer Data and/or information collected from or about an individual user or device, as well as data about your and other users’ access and use of the Services, and data or information based on or derived from Customer Data).
4.3 You are solely responsible for establishing and maintaining long-term data retention storage and procedures in connection with your use of the Services. NexTraq does not guarantee access to such data after the expiration or termination of this Agreement. Absent a written agreement to the contrary, Customer Data shall be maintained in accordance with our retention practices and procedures after the termination of this Agreement.
4.4 You represent, covenant, and warrant the following:
(a) You have and will have all necessary consent, rights, and authorizations in and relating to all Customer Data, Fleet Data and all other non-public information or data that is collected, downloaded, or otherwise received, directly or indirectly, from you or an end user by or through the Services, including through NexTraq Equipment you cause to be installed on vehicle(s);
(b) To the extent you lose the necessary consent, right or authorization to utilize the Services with respect to an individual user, you will discontinue the use of the Services immediately and prevent that user from driving a vehicle equipped with NexTraq Equipment unless the Services have been disabled for that vehicle;
(c) To enable the provision of the Services, you have all necessary rights and authority (if required by applicable law, pursuant to notices given and consents obtained by you) to provide to NexTraq all information and data to be provided hereunder, and/or to permit NexTraq to collect such information and data, so that your use of the Services and acceptance of this Agreement and NexTraq’s sharing, collection, use, disclosure and other processing of such information and data in accordance with this Agreement do not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law or regulation;
(d) The Customer Data is free of all viruses, Trojan horses, and other elements that could interrupt or harm the systems, software used by NexTraq or its contractors, subcontractors, or service providers to provide the Services or the Software (defined below);
(e) You are solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to Customer Data and Fleet Data provided and collected hereunder, and, as a result, it is your responsibility to follow all applicable laws and regulations related to Customer Data or Fleet Data you transmit to NexTraq, provide any employees, drivers, or passengers adequate and timely notice where required including any notice that must be provided at the time of collection of personal information, and obtain any required consents;
(f) Without limiting the foregoing, you acknowledge and understand that certain Services and Equipment needed for rendering the Services (including Services and equipment offered by or originating from third parties) may involve audio and/or video recording, and it is your obligation to know and abide by any laws regarding (i) whether or how consent must be obtained, to include whether your jurisdiction is a two-party consent state when it comes to recording data, (ii) placement and mounting of Equipment, and (iii) notice of audio and/or video recording to drivers and passengers; and
(g) NexTraq may exercise the rights in Customer Data and Fleet Data granted under this Agreement without liability or cost to any third party, provided that in the event you notify NexTraq that legally required consents have been revoked by a user, NexTraq will discontinue any additional use or disclosure of that data.
4.5 HIPAA. You agree and acknowledge that NexTraq does not knowingly accept, collect, access, use or maintain protected health information or other information (“PHI”) that is subject to the Health Insurance Portability and Accountability Act (“HIPAA”). You may not, and you represent and warrant that you will not, provide, or allow any end user to provide, PHI in the Platform or otherwise input or allow PHI to be collected by NexTraq. You agree and acknowledge that you are solely responsible to assure that you and any end users do not include PHI in the Platform, and you shall provide and maintain any reasonable policies, procedures, and training necessary to protect against any disclosure to NexTraq of PHI. In the event that you discover the presence of PHI on the Platform, you must immediately notify NexTraq of such information, remove such PHI to the extent you are able within the terms of this Agreement, and be responsible for any mitigation, notifications or other obligations under applicable law or contract. You hereby agree to indemnify and hold harmless NexTraq from and against any losses incurred or suffered as a result of any PHI being input into the Platform or provided to us, whether by you or any of your authorized users, or any other violation of this Section 4.5. In the event that we discover PHI on the Platform, we may take any actions necessary to return or destroy such information and will not be liable for any loss or destruction of such PHI or related data.
5. INVOICING AND PAYMENT; TAXES.
5.1. Monthly charges (“Charges”) for all Services, in the amount shown on the applicable Order Form, will be due once per month during the Term based on pieces of Equipment and other Services associated with your account. Charges will be accrued and be payable with respect to all authorized Equipment, regardless of vehicle status, for the duration of the Term, unless a malfunction is reported to and acknowledged by NexTraq. For clarity and avoidance of doubt, unless you terminate this Agreement pursuant to the terms of this Agreement, Charges will be accrued and be payable for the entire Term even if you fully or partially discontinue the use of the Services. Any additional services provided by NexTraq or an authorized third party will be invoiced following the provision of such services. In the case of online Services, those Services and APIs set forth on the Order Form will be activated at the time that your access to the online account is configured and enabled by NexTraq. All invoices are stated in U.S. dollars and due within 25 days from the invoice date. If any amounts due hereunder are not paid by the applicable due date, a one-time late fee may be assessed on each late amount in an amount not to exceed the lesser of 10.0% of such late amount or the maximum amount permitted by law. All prices, fees and rates under this Agreement exclude sales, use, excise, or any other taxes assessed at any time. Except for taxes imposed upon NexTraq’s income and FCC license fees, you must pay all applicable taxes and/or assessments, whether invoiced separately or with the Services. All reasonable costs and expenses, including but not limited to attorneys’ fees, court costs and service charges, incurred by NexTraq in collecting payment shall be payable by you. Credit terms are at NexTraq’s discretion and are subject to change.
5.2 If you have provided a credit card, Charges will be billed to such credit card each month throughout the Term unless you provide notice that you wish to suspend automatic billing. Until such time, you hereby authorize NexTraq to charge such card for amounts due. If a charge is rejected for any reason, you will remain responsible for all payments due hereunder, as well as any expenses incurred in connection with such rejection. Payments, including automatic billing, may be set up online at billpay.nextraq.com. To cancel automatic billing, you can cancel online at billpay.nextraq.com, contact your account representative, or call (800) 358-6178.
5.3 You will be solely responsible for the choice of an Internet service provider necessary to access the Platform and Services (if applicable) and for all related fees and expenses. NexTraq is not responsible or liable for any failure, disruption or loss caused by your connection to the Platform and Services.
6. TERM AND TERMINATION.
6.1 You agree to pay the Charges for the entire term set forth on the applicable Order Form (the “Initial Subscription”). Unless you notify us at least 30 days prior to the end of the Initial Subscription stating that you want to discontinue use of the Equipment, such subscription will automatically renew on a month-to-month basis (each, a “Renewal Subscription”) based upon the terms and conditions then in effect. For clarity and avoidance of doubt, this 30 day notice period is required even if you want to discontinue use of part of the Equipment. Services offered during any such Renewal Subscription may be subject to higher Charges than those offered pursuant to a longer-term subscription. Automatic Renewal Subscriptions will continue to renew for all Equipment and Services until either party provides the other with notice of its intention to cease such automatic renewals. Any Equipment on a Renewal Subscription will not be eligible for our Repair or Replacement Remedy described in this Agreement.
As used in this Agreement, “Term” means the period beginning at the start of your first Initial Subscription and ending with the termination or expiration of the last subscription pursuant to any Order Form or this Agreement or upon termination by either party in accordance with this Agreement.
6.2 Notwithstanding the foregoing, we may terminate this Agreement by written notice to you if you (i) fail to pay any amounts owed hereunder within 10 calendar days of the applicable due date; or (ii) become insolvent, dissolve, make an assignment for the benefit of creditors, or commence (voluntarily or involuntarily) a bankruptcy or other reorganization proceeding. Either party may terminate this Agreement or any applicable Order Form and Service upon written notice if the other breaches any material obligation hereunder (other than payment obligations) and such breach remains uncured 30 days after notice thereof by the non-breaching party. In addition, if we notify you of any change to these terms and conditions that either (a) materially increases the Charges payable by you or (b) materially and adversely effects your use of the Services (each a “Material Change”), then you may terminate this Agreement or any applicable Order Form and Service, by giving 30 days’ prior written notice specifying the reason therefor, unless we notify you during such 30-day period that the Material Change shall not apply to you. Upon termination for any reason, the license set forth in Section 8 shall immediately terminate and you shall immediately return or destroy (at our written request and expense) any and all proprietary materials of NexTraq in your possession and all copies (including electronic copies) thereof.
6.3 In the event of a termination of this Agreement for any reason other than an uncured breach by NexTraq or pursuant to the above provisions of Section 6.2 addressing Material Changes, you shall promptly pay us, as compensation for loss of our bargain and not as a penalty, an amount equal to the aggregate Charges otherwise payable for the remainder of each active subscription at the effective time of termination. You agree that our damages for such a termination would be difficult or impossible to estimate accurately, and you further agree that this amount is a reasonable pre-estimate of our minimum probable loss. You also agree to pay any other amounts then owed and that we may exercise any other right at law or in equity, including seeking damages beyond the amounts set forth herein.
6.4 Notwithstanding anything to the contrary herein, Sections 1, 2, 4, 5, 6.3 and 10 through 14, as well as your obligation to pay any outstanding amounts due hereunder, shall survive any expiration or termination of this Agreement.
7. RELATIONSHIP WITH WIRELESS CARRIER. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN NEXTRAQ AND THE UNDERLYING CARRIER. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT THE UNDERLYING CARRIER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU, WHETHER FOR BREACH OF CONTRACT, WARRANY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR. YOU FURTHER ACKNOWLEDGE THAT MESSAGES OR DATA TRANSMISSIONS MAY BE DELAYED, DELETED OR NOT DELIVERED, AND 911 CALLS (IF APPLICABLE) MAY NOT BE COMPLETED, AND THAT THE UNDERLYING CARRIER AND NEXTRAQ CANNOT GUARANTEE THE SECURITY OF THE WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATED TO THE USE OF THE SERVICES. YOU FURTHER ACKNOWLEDGE THAT REPRESENTATIVES OF THE UNDERLYING WIRELESS SERVICE PROVIDER MAY HAVE MET WITH YOU INDIVIDUALLY OR TOGETHER WITH NEXTRAQ TO DISCUSS AND REVIEW PRINTED MATERIALS THAT EXPLAINED THE UNDERLYING WIRELESS SERVICE PROVIDER’S UNDERSTANDING OF NEXTRAQ’S SERVICES. YOU ACKNOWLEDGE THAT YOU HAVE HAD THE OPPORTUNITY TO FULLY INVESTIGATE THE CAPABILITIES, QUALITY AND RELIABILITY OF THE NEXTRAQ SERVICES AND HAVE SATISFIED YOURSELF THAT THE SERVICES SATISFACTORILY MEET YOUR BUSINESS NEEDS. YOU AGREE THAT THE UNDERLYING WIRELESS SERVICE PROVIDER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU ARISING FROM OR RELATED TO ANY MEETINGS, DISCUSSIONS OR EXPLANATIONS REGARDING THE NEXTRAQ SERVICES AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS YOU MAY HAVE AGAINST THE UNDERLYING WIRELESS SERVICE PROVIDER AND ITS AFFILIATES AND CONTRACTORS THEREFOR. YOU FURTHER ACKNOWLEDGE AND AGREE THAT, IF EQUIPMENT IS NO LONGER ACTIVE, OR IF THE SERVICE HAS BEEN MODIFIED TO USE A DIFFERENT WIRELESS CARRIER, THEN, DURING THE TERM OF THIS AGREEMENT OR ANY TIME THEREAFTER, THE INITIAL UNDERLYING WIRELESS SERVICE PROVIDER MAY ACCESS SUCH EQUIPMENT USING OVER THE AIR PARAMETER ADMINISTRATION OR OTHER MEANS IN ORDER TO DOWNLOAD SOFTWARE OR OTHER INFORMATION INTENDED TO PREVENT SUCH EQUIPMENT FROM ATTEMPTING TO CONTACT SUCH CARRIER’S WIRELESS NETWORK.
8. LIMITED LICENSE. We hereby grant you, for use during the Term only, a non-exclusive, non-transferable, revocable, limited license to (a) access and use the Services and (b) use the software integrated into or stored on any authorized Equipment or the Platform (“Software”) solely in conjunction with the authorized use of the Services during the Term. You represent, warrant and covenant that you shall only use the Services for the permitted uses set forth in this section. Any purpose or use not specifically authorized herein is expressly prohibited. Without limiting the foregoing, and except as otherwise expressly set forth in this Agreement, you shall not at any time, directly or indirectly: (a) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Software; (b) reverse engineer, decompile, disassemble, decode, adapt, or otherwise attempt to derive or gain access to any component of the Services or Software, including, without limitation, the source code of the Software, or gather, extract, reproduce and/or display, any material on or from the Software, whether or not by the use of spiders or other ‘screen scraping’ software or system used to extract data; (c) copy, modify, translate, or create derivative works based on the Services or Software; (d) remove any proprietary notices included within the Services or Software; (e) publish, enhance, or display any compilation or directory based upon information derived from the Services; (f) use the Services or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity, or that violates any applicable law or regulation or (g) use the Services for the benefit of a third party or other than as expressly permitted in this section. You will ensure that your end users comply with these restrictions as well as any and all other restrictions applicable to end users in this Agreement.
We may block your access to the Platform and Services (and Software integrated into or stored on any authorized Equipment or the Platform) in the event you attempt to make unauthorized use thereof, or if your use (authorized or not) interferes with the operation and utilization of the Services by any other party, provided in the case of an otherwise authorized use, we use reasonable efforts under the circumstances to provide advance notice and opportunity to cure. We and our licensors expressly reserve and retain all right, title and interest in and to our respective proprietary information and materials and all intellectual property rights and other proprietary rights not expressly granted hereunder.
We both acknowledge that all transactions in furtherance of this Agreement, and the terms of this and any other agreements with NexTraq, including pricing, specifications, and any other competitive commercial, technical, or business data or information, are confidential and proprietary. You agree to take all reasonable steps necessary to prevent disclosure to any third party, and further agree to notify NexTraq in writing via certified mail within ten (10) business days of the receipt of any request from a third party to disclose said confidential information. In NexTraq’s sole discretion, NexTraq may request Customer to enter into a separate confidentiality and non-use agreement.
9. LIMITED WARRANTY. We warrant that, throughout the Term, other than as set forth below, the Services will be available and operate in accordance with our published specifications. If Services do not perform in accordance with such specifications, for Services other than online Services, you may request, and if applicable we will issue, a credit (based on the Charges for the total number of affected Equipment) for each day during which your ability to access and use the Service was materially impaired. We will also offer our limited Repair or Replacement Remedy for Equipment, subject to the terms of this Agreement. The foregoing represents our entire liability, and your sole and exclusive remedy, for any breach of the Limited Warranty described in this Section 9. This limited warranty does not cover interruption of Service as a result of scheduled maintenance and downtime, the proper exercise of our remedies hereunder, or Internet Unavailability, Network Interruption Factors or any event or occurrence beyond our reasonable control. You acknowledge that the data available through the Services generally and online Services is limited to data generated by your use of Equipment and NexTraq’s related application processes and is subject to omissions or inaccuracies due to Network Interruption Factors or any event or occurrence beyond NexTraq’s control. As used herein, (i) “Internet Unavailability” means (a) failure or unavailability of Internet access; (b) unauthorized use, theft or operator errors relating to your telephone, cable or Internet service provider; (c) bugs, errors, configuration problems or incompatibility of equipment or services relating to your computer or network; or (d) failure of communications networks or data transmission facilities, and (ii) “Network Interruption Factors” means any wireless or satellite network outages or constraints that may occur due to the availability of such network being temporarily refused, interrupted, curtailed or otherwise limited by factors including but not limited to atmospheric, environmental or topographical conditions, physical features such as buildings, tunnels or landmass features, satellite or transponder failure, coverage loss or gaps, capacity constraints, or network provider facilities changes, modifications, updates, relocations, repairs, maintenance or other similar activities necessary for the proper or improved operation of the applicable network.
10. DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH IN SECTION 9 ABOVE, THE EQUIPMENT AND SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS,” “WHERE IS” AND “AS AVAILABLE” AND THERE ARE NO OTHER WARRANTIES MADE BY NEXTRAQ, EXPRESS, IMPLIED, OR ARISING OUT OF A COURSE OF DEALING, USAGE OR TRADE PRACTICE, INCLUDING, BUT NOT LIMITED TO, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEXTRAQ MAKES NO WARRANTY OR COMMITMENT HEREUNDER WITH RESPECT TO ANY EQUIPMENT OR HARDWARE; ANY SUCH WARRANTIES OR COMMITMENTS SHALL BE GOVERNED BY SEPARATE AGREEMENT BETWEEN YOU AND THE PROVIDER OF SUCH EQUIPMENT. NEXTRAQ DOES NOT WARRANT THAT THE SERVICES (OR ANY DATA OR INFORMATION MADE AVAILABLE THROUGH THE SERVICES) OR SOFTWARE WILL BE UNINTERRUPTED, SECURE, ACCURATE, COMPLETE, ERROR FREE, FREE OF VIRUSES OR HARMFUL CODE OR COMPATIBLE WITH OR WORK WITH OTHER SYSTEMS, SOFTWARE OR SERVICES; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR EQUIPMENT.
11. LIMITATION OF LIABILITY. NEXTRAQ’S TOTAL LIABILITY FOR ANY DAMAGES ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES PROVEN IN AN AMOUNT NOT TO EXCEED THE AMOUNT YOU PAID UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EARLIEST DATE ON WHICH THE CLAIM AROSE. IN NO EVENT SHALL NEXTRAQ OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, NON-COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, TREBLE OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA OR BUSINESS OPPORTUNITY OR OTHER INCIDENTAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR ANY EQUIPMENT OR SOFTWARE PROVIDED UNDER THIS AGREEMENT, EVEN IF NEXTRAQ OR SUCH AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A LIMITED REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. NEXTRAQ SHALL NOT BE RESPONSIBLE IN ANY WAY FOR ANY DAMAGES CAUSED BY ANY ABNORMAL OR IMPROPER USE OF THE SERVICES.
NEXTRAQ shall not be liable for any claim or action brought more than 12 months from the date on which you had initial knowledge or should have known the facts at the origin of the claim/action.
12. INDEMNIFICATION. You agree to indemnify and hold harmless NexTraq and its Affiliates, their successors and assigns and each of their respective directors, officers, employees and agents (the “Indemnified Parties”) against any and all losses, claims, actions, suits, demands, judgments, settlements, liabilities, damages and expenses (including attorneys’ fees and costs) arising out of or claimed to have been caused directly or indirectly by (a) your (including your employees’ or independent contractors’) negligent or intentional misuse of the Services or (b) your actual or alleged breach of this Agreement.
13. EXPORT COMPLIANCE ASSURANCE. You certify that you will be the final end-user of the Services, and any Related Products (any commodity provided to you as part of the Services) or Related Accessories (hardware components necessary for the delivery of the Services) which are made available to you as a necessary element of the Services. You will only use the Services and any Related Products and Related Accessories until the earliest of either their end of life, physical or otherwise, or the end of this Agreement.
You commit to use and/or consume the Services and Related Products and Related Accessories as declared to NexTraq and commit not to make them available (either free or for a price) to any other third party (individual or organization), whatever the country.
You certify that you shall comply with all applicable laws and regulations with regard to the supply, sale, transfer, export, re-transfer, or re-export of the Services, any Related Products, any Related Accessories, and any related data, including but not limited to those relating to: trade sanctions (including but not limited to comprehensive or sectoral embargoes and restricted parties) and export controls (including but not limited to military or dual usage products), altogether defined hereafter as “Trade Restrictions.”
A Restricted Person shall mean any individual, entity or body either: (i) specifically designated or listed under Trade Restrictions; (ii) owned or controlled by any person specifically designated or listed under Trade Restrictions; or (iii) acting for or on behalf of any person specifically designated or listed under Trade Restrictions. You certify that, as of the date hereof, neither you, nor any of your related entities, nor any of your or their respective directors or officers is a Restricted Person. You shall immediately notify NexTraq if any of the abovementioned becomes a Restricted person.
You shall indemnify and hold harmless NexTraq from and against any losses, costs, claims, causes of action, damages, liabilities, and expense, including attorneys’ fees, any expense of litigation or settlement, and court costs, arising from any noncompliance with Trade Restrictions or the certifications and representations in this clause. You shall be responsible for any act or omission of your officers, employees, affiliates, agents, suppliers, or subcontractors at any tier, in the performance of any of their obligations under this clause.
14. MISCELLANEOUS. This Agreement shall be construed and governed by the laws of the State of Georgia without giving effect to the conflict of laws principles. The United Nations Convention for the International Sale of Goods is expressly excluded. Any legal action arising out of or relating to this Agreement shall be brought exclusively in a state or federal court located in Georgia and the parties’ consent to the personal jurisdiction of such courts. You acknowledge and agree that a breach or threatened breach by you of any of your obligations under Section 4 or Section 8 may cause NexTraq irreparable harm for which monetary damages would not be an adequate remedy and agree that, in the event of such breach or threatened breach, NexTraq shall be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. In the event of any delay in performance (except payment obligations) by either party due to any cause arising from or attributable to acts, events, non-happenings, omissions, accidents or other causes beyond the reasonable control of either party, including restrictions of law, regulations, orders or other governmental directives, labor disputes, cyber-attacks (including denial of service or distributed denial of service attacks), network failures, emergency maintenance, fire, explosions, storms, or other similar events (each, a “Force Majeure Event”), the party affected thereby shall be under no liability for loss or injury suffered by the other party as a result thereof and the performance of such obligation by the party affected thereby shall be suspended during such delay and upon cessation of the cause of such delay, this Agreement shall again become fully operative and such affected party shall promptly rectify such delay in performance, provided that, if such delay pertains to a material obligation of the party affected by such event of force majeure and such delay shall exceed three (3) months, either party shall be entitled to terminate this Agreement by written notice to the other. Notwithstanding the foregoing, and for the avoidance of doubt, this Force Majeure Event clause does not apply to a party’s payment obligations under this Agreement, which shall continue without suspension.
This Agreement (including all Order Forms and documents incorporate herein) constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings relating thereto. This Agreement may be amended as set forth in Section 2; no other amendment shall be binding unless set forth in a writing signed by both parties, and no waiver hereunder shall be binding unless signed in writing by the party against whom the waiver is to be enforced. In the event of any conflict between these terms and conditions and any written modification executed by the parties, the document later in time shall prevail. Other than the Indemnified Parties, there are no third party beneficiaries to this Agreement. You may not assign this Agreement without our prior written consent. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns. If any provision of this Agreement is determined to be unenforceable, the remaining provisions shall not in any way be affected. This Agreement may be executed in counterparts, the parties’ consent to the use of electronic signatures, and an electronic signature or copy thereof shall be deemed an original for all purposes. Pronouns used in this Agreement are applicable to the singular as well as the plural forms of such terms. The captions and other headings contained in this Agreement are inserted for convenience of reference only and shall not affect the interpretation or meaning of this Agreement.
15. THIRD PARTY PRODUCTS AND SERVICES. NexTraq may also offer or facilitate the purchase of products and services from third parties. You acknowledge that these products and services are provided by third parties that are independent companies. By accepting this Agreement, you also confirm that NexTraq is not responsible for these third-party products and services and accepts no liability for their use. Your use of any such third-party products and services is governed that third party’s own contracts and terms and conditions as they may be amended from time to time. NexTraq shall be afforded at least all the same rights and benefits as the third party providing those products and services, including, but not limited to, NexTraq’s right to be indemnified by you to the same extent as you are required to indemnify any such third party; but in no event shall NexTraq be liable for such products and services of a third party.
16. NOTICES. You agree that we may provide any legal notice relating to this Agreement by mail to the same address where we send invoices for the Service. Except as expressly provided herein, any notice you deliver to us must be in writing, addressed to “Legal Affairs” and delivered with confirmation of receipt to 1200 Lake Hearn Drive, Suite 500, Atlanta, GA 30319.