TERMS AND CONDITIONS

 

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 “Agreement”) governing your use of the Services (as defined below) pursuant to NexTraq’s Advantage Program. This Agreement also governs your use of the Web Services (as defined below) if you submit and we accept an Order Form for Web Services. If we do not accept an Order Form for Web Services from you, the terms referring to Web 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; “API” means an application programming interface provided to you for use with the Web Services; “Fleet Data” means the information and data generated by the Tracking Devices 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 Application 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 Application Platform (as defined below), (c) the operation of one or more Tracking Devices and (d) if you submit and we accept an Order Form for Web Services, our Web Services and related APIs and other services made available 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; and “Web Service(s)” means one or more services that allow users and third-party applications to access, retrieve and push data to the Application Platform.  Certain additional terms are defined elsewhere in this Agreement.

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 WWW.NEXTRAQ.COM/ADVANTAGE/TERMS AND THROUGH THE APPLICATION PLATFORM, OR BY SUCH OTHER METHODS WE DETERMINE TO BE APPROPRIATE.  SUBJECT TO SECTION 5.2, IF YOU CONTINUE YOUR USE OF THE SERVICES OR ANY PART THEREOF OR TRACKING DEVICE 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 TRACKING DEVICES, EVEN IF OBTAINED THROUGH MORE THAN ONE ORDER FORM ON DIFFERENT DATES.

3.  SERVICE DESCRIPTION.

3.1 The Service includes access to our service platform that allows you to receive access and view fleet data generated by our telematics-based vehicle and asset tracking service through a web browser, mobile applications or other available services provided by NexTraq for fleet-tracking and related activities (the “Application Platform”).   From time to time, we may develop and provide Application Platform updates, upgrades, bug fixes, patches or new features, or modify or delete in their entirety certain features and functionality. You agree that Company 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 number of Tracking Devices set forth on each Order Form we accept and arrange for installation (if required) and authorization.  For purposes of this Agreement, such Tracking Devices are considered “authorized” during the initial subscription term set forth on the applicable Order Form (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, we will repair or replace, at our option, any authorized Tracking Device that contains a material defect or becomes incapable of working with the Services in accordance with NexTraq’s published specifications.  We may use refurbished equipment for replacement Tracking Devices.   To request a repair or replacement, you must contact Customer Service.  Notwithstanding the foregoing, our obligation to repair or replace defective Tracking Devices is limited and does not apply with respect to  (i) use of the Tracking Devices with antennas, cable connections or mounting hardware other than those furnished by NexTraq or an authorized agent; (ii) damage to the Tracking Device 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 Tracking Devices while a vehicle is in motion), (iv) improper installation (other than by NexTraq or its agent), (v) alteration, modification or attempted repair other than by NexTraq or its authorized agent, or (vi) damage caused by any attempt to open a Tracking Device (other than to change replaceable batteries, where applicable).  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 Tracking Devices that we replace, in which case you must return such Tracking Devices to us within 30 days of our issuing a return authorization number or you may be charged for the new Tracking Device 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 Application Platform and, if we have accepted an Order Form for Web Services, access to and interaction with the Web Services and related APIs.  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 Application Platform or Web Services or related APIs (as applicable) except as expressly set forth herein. Any use of the Application Platform, Web 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.

3.4 Trial-based Services (“Trial-Based Services”) may be offered with a risk-free trial evaluation period.  Such Services either will be labeled as Trial-Based Services on an Order Form or may be offered by telephone after your initial subscription.  The trial period for each Trial-Based Service begins upon authorization and ends after the period indicated on the Order Form or agreed to by phone.   No charges will be due for Trial-Based Services provided during the trial period.

4.  DATA.

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”).  You retain ownership of Customer Data, subject to the rights and permissions granted in this Section 4. By providing Customer Data to us, you grant all such 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. As between the parties, Fleet Data (defined above) is owned by NexTraq and you acknowledge and agree that you have no proprietary rights thereto.

4.2 Notwithstanding anything to the contrary, NexTraq has the right to collect and analyze 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 and information based on or derived from Customer Data), and you hereby grant NexTraq the right (during and after the Term hereof) to (a) use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of such information and data to provide and/or market the Services, to prevent and fix technical problems with the Services and for other diagnostic and corrective purposes in connection with the Services and other NexTraq offerings, to analyze, improve and enhance the Services, to create modeling and analytics, and for research and development purposes, (b) disclose such information and data, provided that NexTraq shall not disclose Customer Data or information derived from Customer Data to third parties unless such information has been aggregated, de-identified and/or anonymized such that it cannot reasonably be used to identify a specific individual or customer, and (c) disclose such information in other ways upon specific consent.

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 Your Duties.  You represent, covenant, and warrant that you (a) own or otherwise have and will have all necessary rights and authorizations in and relating to all Customer Data, Fleet Data and all other non-public information or data, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from you or an end user by or through the Services, including through Tracking Device(s) you cause to be installed on vehicle(s), to enable the provision of the Services, and have the rights and authority (if required by applicable law, pursuant to notices given and consents obtained by you) to provide such information and data to NexTraq 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; (b) 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); (c) 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 (d) NexTraq may exercise the rights in Customer Data and Fleet Data granted under this Agreement without liability or cost to any third party.

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 the number of authorized Tracking Devices associated with your account at such time.  Charges will be accrued and be payable with respect to all authorized Tracking Devices, regardless of vehicle status, unless a malfunction is reported to and acknowledged by NexTraq.  Any additional services provided by NexTraq or an authorized third party will be invoiced following the provision of such services.  In the case of the Web Services, the Web Services and APIs set forth on the Order Form will be activated at the time that your access to the Web Service 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. We reserve the right to charge a credit card payment surcharge up to 4% or the maximum permitted by a payment network, whichever is less. Until such time, you hereby authorize NexTraq to charge such card for amounts due plus the credit card surcharge amount hereunder.  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 setup on line at billpay.nextraq.com. To cancel automatic billing, either cancel on line 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 Application Platform and Web Services (if applicable) and for all related fees and expenses.

6.  TERM AND TERMINATION.

6.1 With respect to each Tracking Device, (i) you are agreeing to pay the Service Charges for the initial subscription period set forth on the applicable Order Form (the “Initial Subscription”), and (ii) unless you notify us at least 30 days prior to the end of the Initial Subscription stating that you want to discontinue use of one or more of such Tracking Devices, such Tracking Devices will automatically be renewed for successive 12-month periods (each, a “Subscription”) based upon the terms and conditions then in effect. Automatic renewals will continue for Tracking Devices until either party provides the other with notice of its intention to cease such automatic renewals at least 30 days prior to the termination date of the applicable Subscription period.

As used in this Agreement, “Term” means the period beginning at the start of your first Initial Subscription and ending with the termination of the last Subscription pursuant to any Order Form or upon termination by either party in accordance with Section 5.2. If the applicable Order Form does not specify an Initial Term, the Initial Term is the one specified in the Terms and Conditions that were in effect when the Order Form was accepted.

6.2 Notwithstanding the foregoing, we may terminate this Agreement, by written notice 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, 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 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 last sentence of Section 6.2, (i) 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 (in addition to any other amounts then owed); and (ii) we may exercise any other right at law or in equity.

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 AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR. 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 A TRACKING DEVICE 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 TRACKING DEVICE USING OVER THE AIR PARAMETER ADMINISTRATION OR OTHER MEANS IN ORDER TO DOWNLOAD SOFTWARE OR OTHER INFORMATION INTENDED TO PREVENT SUCH TRACKING DEVICE 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, limited license to (a) access and use the Services and (b) use the software integrated into or stored on any authorized Tracking Device or the Application Platform (“Software”) solely in conjunction with the authorized use of the Services.  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; (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 Application Platform and Services (and Software integrated into or stored on any authorized Tracking Device or the Application Platform) if 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 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, 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 Web Services, you may request, and if applicable we will issue, a credit (based on the Charges for the total number of affected authorized Tracking Devices) for each day during which your ability to access and use the Service was materially impaired.  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 other event or occurrence beyond our reasonable control.  You acknowledge that the data available through the Services generally and Web Services is limited to data generated by your use of Tracking Devices and NexTraq’s related application processes and is subject to omissions or inaccuracies due to Wireless Network Interruption Factors or any other 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.

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 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.

12.  INDEMNIFICATION.  You agree to indemnify and hold harmless NexTraq, its 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 understand that NexTraq is subject to regulation by agencies of the United States government, which, in some cases, prohibits export or diversion of certain products to certain countries or persons.  You warrant that you will comply with all applicable export laws and regulations with respect to the Services, including the Tracking Devices.

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 4.5 or Section 8 may cause NexTraq irreparable harm for which monetary damages would not be an adequate remedy and agrees 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. This Agreement (including all Order Forms) 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, and an electronic copy of a signature hereto 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.  NEXTRAQ DRIVER TRAINING/DRIVER’S ALERT PRODUCTS AND SERVICES. NexTraq may also offer driver training products and services that may be referred to as NexTraq Driver Training and/or “Driver’s Alert”. You acknowledge that these products and services are provided by Driver’s Alert, Inc. (“Driver’s Alert”), an independent company with a business relationship with NexTraq. By accepting this Agreement, you also confirm that your use of any such Driver’s Alert products and services is also governed by the Driver’s Alert Master Service Agreement (“MSA”), available at https://www.driversalert.com/msa/ and which may be amended from time to time. You hereby agree to be bound by the MSA, and any references in the MSA to “Driver’s Alert” are hereby amended to refer to both Driver’s Alert and NexTraq, such that NexTraq is afforded all the same rights and benefits as Driver’s Alert as to the Driver’s Alert products and services, which may also be referred to as NexTraq Driver Training. Such rights and benefits include, but are not limited to, NexTraq’s right to be indemnified by you to the same extent as Driver’s Alert. As to any products and services offered by NexTraq to you that incorporate or use in any way the Driver’s Alert products and services, the MSA is hereby incorporated by reference into this Agreement. Except as it relates to invoicing and payments (where the Order Form(s) and any NexTraq terms and conditions shall apply), in the event of any conflict between the MSA and this Agreement concerning the Driver’s Alert products and services, the MSA shall apply, but only to such Driver’s Alert products and services.

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.