1. TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) are attached to and incorporated into the Traxxis GPS Solutions, Inc. Commercial Sales and Service Agreement (the “Agreement”) between Traxxis GPS Solutions, Inc. (“Traxxis GPS”) and the Company or entity (“Customer”) named on the COMMERCIAL SALES AND SERVICE AGREEMENT. Traxxis GPS agrees to provide, and Customer agrees to purchase and use vehicle location equipment and similar GPS enabled products, connected dash cameras, video or mobile in-vehicle equipment (“Products”) and monthly access, video plans, installation or maintenance services (“Services”), as noted on the COMMERCIAL SALES AND SERVICE AGREEMENT. Traxxis GPS retains ownership and title to all Products until all amounts due under the Agreement have been paid in full and all obligations of Customer under the Agreement have been satisfied, including any applicable early termination fees. Upon payment in full, ownership of equipment transfers to the Customer. It is the Customer’s responsibility to return equipment in good working condition at Customer’s expense within thirty (30) calendar days if the Agreement is terminated prior to completion of the Initial Term. Traxxis GPS shall not be bound by additional or different terms and conditions in Customer’s purchase order or elsewhere unless expressly agreed to in writing by an officer of Traxxis GPS. Customer may, by written notice to Traxxis GPS within thirty (30) days of the date the Agreement was originally executed and signed by Customer, cancel the Agreement. If Customer’s cancellation occurs within such thirty (30) day period and is for any reason other than the default of Traxxis GPS, Customer shall pay Traxxis GPS a restocking fee of 30% of the total purchase price or product value as detailed in the Agreement, and any fees incurred for all Products and Services listed in the Agreement. Shipping and handling fees, installation, activation fees, and pro-rated service fees will not be refunded. All Products must be returned in original condition, and in original packaging, and cannot be returned after being installed, used or damaged. Installed or used Products remain non-returnable for refund but must still be returned if required under the termination provisions of this Agreement.
1.1. DEFINITIONS
For purposes of this Agreement, the following definitions shall apply: “Products” shall include all hardware components, devices, equipment, and accessories provided by Traxxis GPS, including but not limited to GPS tracking devices, dash cameras, sensors, harnesses, and any other physical equipment. “Services” shall include all software, subscriptions, monitoring, data storage, cellular connectivity, reporting features, and any other recurring services provided by Traxxis GPS. “Effective Date” means the date this Agreement is signed by both parties. “Initial Term” means the minimum period for which Customer commits to maintain Services as indicated on the details page of the Agreement. “Renewal Term” means any subsequent renewal period following the Initial Term.
2. DELIVERY, RISK OF LOSS, TITLE AND SECURITY INTEREST
Unless otherwise stated in the Agreement, all deliveries are FCA/FOB Traxxis GPS warehouse. Shipping or delivery dates are best estimates only. Traxxis GPS reserves the right to make deliveries in installments and to bill separately for each such installment. Delivery delay or default of any installment shall not relieve Customer of its obligation to accept and pay for remaining deliveries. IN NO EVENT SHALL TRAXXIS GPS BE LIABLE FOR INCREASED COSTS, LOSS OF PROFITS OR GOODWILL OR ANY OTHER, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES DUE TO LATE OR NON-DELIVERY OF PRODUCTS OR SERVICES. Customer hereby grants to Traxxis GPS a security interest in the Products, to secure payment in full of all amounts due hereunder, and Customer shall authorize Traxxis GPS to submit a UCC-1 Financing Statement and any other documents needed to perfect such security interest. Customer assumes the risk of any loss, fire, damage, and theft upon the delivery of the Products to Customer’s facility, and Customer shall maintain insurance coverage for all such risks.
2.1. SHIPPING AND INSTALLATION PROCEDURES
Upon receipt of Products, Customer shall inspect all items within five (5) business days and notify Traxxis GPS of any damages, shortages, or discrepancies. Failure to provide such notification shall constitute acceptance of the Products as delivered. For installations performed by Traxxis GPS or its authorized representatives, Customer shall provide reasonable access to vehicles and facilities to allow for proper installation. Customer acknowledges that vehicle modifications may be necessary for proper installation of certain Products, and Customer hereby authorizes such modifications. Traxxis GPS Solutions shall not be liable for any damage to vehicles, electrical systems, or other equipment arising from the installation of Products unless such damage results from gross negligence or willful misconduct by Traxxis GPS. Installation schedules are subject to change based on weather conditions, vehicle availability, and other factors beyond Traxxis GPS’s reasonable control. Rescheduling of installations with less than 24 hours’ notice may result in additional fees as specified in the Agreement.
2.2. INSTALLATION ACCESS AND CUSTOMER COOPERATION
Customer agrees to provide Traxxis GPS Solutions, Inc. and its authorized installers with reasonable access to vehicles, equipment, facilities, and personnel necessary to complete installation and activation of Products. Customer acknowledges that delays caused by Customer scheduling conflicts, vehicle unavailability, personnel availability, or other Customer-controlled circumstances shall not constitute a breach of this Agreement by Traxxis GPS and shall not delay the commencement of the service term. If Customer prevents or delays installation of Products for more than thirty (30) days after delivery, Traxxis GPS may deem the Products accepted and the Services activated for billing purposes. Customer further acknowledges that partial installations, delayed installations, or the removal of Products by Customer shall not relieve Customer of its payment obligations under this Agreement. Installation services are provided as a convenience to Customer and are not a condition precedent to Customer’s payment obligations under this Agreement.
2.3. EQUIPMENT RECOVERY
In the event Customer fails to satisfy its payment obligations or otherwise defaults under this Agreement, Traxxis GPS reserves the right to disable Services and recover any Products provided under this Agreement that remain unpaid or subject to Traxxis GPS’s security interest. Customer agrees to provide reasonable access to vehicles, equipment, or facilities where Products are installed for purposes of recovering such equipment. Customer shall be responsible for all costs associated with recovery, removal, shipping, and restocking of equipment.
3. PAYMENT TERMS
Customer agrees to pay all invoices within thirty (30) days of the invoice date unless otherwise specified in the Agreement. Late payments shall bear interest at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less. Customer shall also pay all costs of collection, including reasonable attorneys’ fees. Traxxis GPS may, at its option, suspend or terminate Services if Customer fails to make payments when due. All payments are non-refundable except as expressly provided herein. Taxes, duties, and other governmental charges are not included in the price and shall be paid by Customer, or in lieu thereof, Customer shall provide Traxxis GPS with a tax exemption certificate acceptable to the relevant taxing authorities. Customer acknowledges that Traxxis GPS may increase monthly service fees upon sixty (60) days prior written notice to Customer. If Customer objects to such increase, Customer’s sole remedy shall be to terminate the Agreement upon thirty (30) days prior written notice to Traxxis GPS, subject to applicable early termination fees.
3.1. SUBSCRIPTION FEES AND BILLING
Service fees are billed in advance on a monthly basis unless otherwise specified in the Agreement. Partial months of service at the beginning or end of the service term will be prorated based on a 30-day month. Customer authorizes Traxxis GPS to charge the payment method provided in the Agreement for all fees when due. If Customer chooses to pay by credit card, Customer authorizes Traxxis GPS to store credit card information and process payments automatically when due. Customer is responsible for keeping payment information current and updated. Failed payments may result in immediate suspension of Services. Reactivation of suspended Services may be subject to a reconnection fee. Subscription-based services cannot be temporarily suspended during the term of the Agreement unless specifically permitted in writing by Traxxis GPS. Usage-based services, such as excess data consumption or additional livestreaming and/or video downloads, will be billed in arrears based on actual usage. Certain small fleet accounts may be subject to a Minimum Safety Platform Fee, which represents the minimum monthly subscription amount required to maintain an active Traxxis GPS account. Unless otherwise specified in the Agreement, this minimum monthly platform fee shall be $199 per month. If the total monthly subscription charges for Customer’s active devices exceed this amount, the minimum platform fee will not apply. The monthly service obligation shall be the greater of (i) the applicable per-device subscription charges or (ii) the Minimum Safety Platform Fee specified in the Agreement.
3.2. DISCOUNTS AND PROMOTIONS
Any discounts, promotions, or special pricing offered by Traxxis GPS are valid only for the specific terms stated in the Agreement. Early termination of the Agreement may result in forfeiture of promotional pricing, and Customer may be charged the difference between standard rates and promotional rates for the period Services were received. Volume discounts are contingent upon maintaining the minimum number of active subscriptions specified in the Agreement. If the number of active subscriptions falls below this minimum threshold, Traxxis GPS reserves the right to adjust pricing to the appropriate tier for the remaining subscriptions with 30 days’ notice. Customer acknowledges that any discounted equipment pricing, promotional pricing, installation incentives, or service credits offered by Traxxis GPS are provided in reliance upon Customer’s agreement to maintain Services for the full Initial Term of the Agreement. If Customer terminates Services early or defaults under this Agreement, Customer agrees that Traxxis GPS may recover the full value of such discounts, incentives, and promotional pricing as part of the early termination fees or liquidated damages.
3.3. ACCELERATION OF AMOUNTS DUE
In the event of Customer default, including but not limited to failure to make payments when due, breach of any material term of this Agreement, insolvency, or termination for cause, Traxxis GPS may declare all amounts due under this Agreement immediately due and payable, including all unpaid invoices, early termination fees, remaining monthly service fees for the balance of the Initial Term, equipment replacement charges, and all costs of collection including attorney fees.
3.4. MINIMUM SERVICE COMMITMENT
Customer acknowledges that the Services provided under this Agreement are sold as a subscription-based platform with a minimum service commitment for the Initial Term. Customer’s obligation to pay the monthly service fees during the Initial Term is non-cancelable and is not dependent upon Customer’s usage of the Products or Services, the number of active devices, or the operational status of Customer’s vehicles or equipment. Customer agrees that the monthly subscription charges represent payment for access to the Traxxis Safety and Fleet Management Platforms and related infrastructure and therefore remain due and payable for the full Initial Term of the Agreement regardless of whether Customer actively uses the Services. Customer further acknowledges that the pricing, equipment discounts, and installation incentives provided under this Agreement are conditioned upon Customer’s agreement to maintain Services for the entire Initial Term. Customer acknowledges that the Products provided under this Agreement are incidental to the subscription services and that the payment obligations under this Agreement arise from Customer’s commitment to the Traxxis platforms and services, not from Customer’s continued installation or use of the Products.
3.5. NO OFFSET OR WITHHOLDING
Customer agrees that all payments due under this Agreement shall be made in full without any setoff, counterclaim, deduction, or withholding of any kind, whether arising from disputes, claims, or otherwise, unless expressly agreed to in writing by Traxxis GPS Solutions, Inc.
4. SERVICE INTERRUPTIONS AND LIMITATIONS
Customer acknowledges that the Services may be temporarily unavailable due to scheduled maintenance, equipment modifications, or upgrades by Traxxis GPS or its third-party service providers. Additionally, services may be interrupted due to causes beyond Traxxis GPS’s reasonable control, including but not limited to acts of God, acts of third parties, topographic conditions, buildings, signal strength, governmental actions, and other conditions that may affect wireless transmissions. Traxxis GPS does not warrant uninterrupted operation of the Products or Services. GPS and cellular coverage may not be available in all areas or at all times, and coverage maps are only estimates. Customer is responsible for testing the Products and Services in Customer’s intended area of use. Traxxis GPS reserves the right to modify, suspend, or discontinue any Service without notice if necessary to comply with applicable laws or regulations or to protect Traxxis GPS’s network, operations, or customers. Customer acknowledges that Products utilizing GPS technology may be subject to U.S. export control laws and regulations.
4.1. SYSTEM MAINTENANCE AND UPGRADES
Traxxis GPS will use commercially reasonable efforts to schedule system maintenance during non-peak hours and to provide advance notice of planned maintenance whenever possible. Emergency maintenance may occur without prior notice when required to maintain system integrity or security. From time to time, firmware and software upgrades may be automatically deployed to Products to enhance functionality, security, or performance. These updates may temporarily impact the availability or performance of the Products or Services. Customer agrees to cooperate with Traxxis GPS in implementing any required updates or modifications and acknowledges that refusal to allow necessary upgrades may result in degraded performance, security vulnerabilities, or loss of feature compatibility. Customer further acknowledges that the Services rely on third-party cellular networks, which may undergo changes beyond the control of Traxxis GPS, including the sunset of older technologies. If a network provider discontinues support for the technology used by Customer’s Products, Traxxis GPS will make commercially reasonable efforts to notify Customer in advance. In such cases, Customer may be required to upgrade or replace affected Products at their own expense, unless otherwise specified in the Agreement. Traxxis GPS shall not be liable for service interruptions or terminations resulting from changes made by cellular network providers.
5. EQUIPMENT WARRANTY AND LIMITATIONS
Traxxis GPS warrants that the Products will be free from defects in materials and workmanship under normal use for a minimum period of one (1) year from the date of delivery to Customer, unless otherwise specified in the Agreement or product documentation. This warranty does not apply to: (a) cosmetic damage; (b) damage caused by accident, abuse, misuse, water, flood, fire, or other acts of nature or external causes; (c) damage caused by service performed by anyone who is not an authorized service provider of Traxxis GPS; (d) damage to a product that has been modified or altered without the written permission of Traxxis GPS; or (e) damage to a product that has been connected to power and/or data cables not supplied by Traxxis GPS. In addition, Traxxis GPS reserves the right to refuse warranty claims against products or services that are obtained and/or used in contravention of the laws of any country. THE WARRANTIES AND REMEDIES CONTAINED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY LIABILITY ARISING UNDER ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, STATUTORY OR OTHERWISE.
5.1. WARRANTY CLAIM PROCEDURES
To make a warranty claim, Customer must contact Traxxis GPS’s technical support department within the warranty period to obtain a Return Material Authorization (RMA) number. Products returned for warranty service must include the RMA number, a detailed description of the problem, and Customer’s contact information. Customer is responsible for shipping costs to return Products to Traxxis GPS. Traxxis GPS will, at its option, repair or replace any Product that it confirms is covered by this warranty and will return the repaired or replacement Product to Customer at Traxxis GPS’s expense using standard shipping methods. Expedited shipping, if requested by Customer, will be at Customer’s expense. Replacement Products may be new, refurbished, or remanufactured, at Traxxis GPS’s sole discretion. Any replacement Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
5.2. THIRD-PARTY EQUIPMENT AND SERVICES
If the Products include any third-party equipment or software, such equipment or software may be subject to warranties provided by the respective manufacturers or licensors. To the extent permitted, Traxxis GPS will pass through to Customer any such warranties. Traxxis GPS makes no independent warranty with respect to third-party equipment or software. Third-party services, including but not limited to cellular data services, satellite services, and cloud storage services, are provided subject to the terms and conditions of the respective service providers. Traxxis GPS is not responsible for interruptions, defects, or failures in third-party services, except as may be specifically provided in the Agreement.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL TRAXXIS GPS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OR INABILITY TO USE THE PRODUCTS OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF TRAXXIS GPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TRAXXIS GPS’S TOTAL LIABILITY TO CUSTOMER FOR ALL DAMAGES EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS AND SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE PRODUCTS AND SERVICES ARE NOT A SUBSTITUTE FOR PROPER VEHICLE MAINTENANCE, DRIVER TRAINING OR SAFE DRIVING PRACTICES.
6.1. DATA ACCURACY AND RELIABILITY
Traxxis GPS makes no warranty regarding the accuracy, completeness, or reliability of any data, reports, notifications, or analytics provided through the Services. Customer acknowledges that GPS location data, video recordings, and sensor readings may be affected by various factors beyond Traxxis GPS’s control, including but not limited to satellite availability, signal obstruction, atmospheric conditions, and sensor calibration. Customer further acknowledges that data transmission may be delayed or interrupted due to cellular network coverage, bandwidth limitations, or other technical factors. Customer shall not rely solely on the Products or Services for critical safety, compliance, or operational decisions, and Traxxis GPS shall not be liable for any losses or damages resulting from such reliance.
6.2. DATA OWNERSHIP
Customer retains ownership of vehicle, driver, and operational data generated through its use of the Products and Services (“Customer Data”).
Traxxis GPS Solutions retains ownership of the software platform, firmware, analytics systems, reporting tools, and any aggregated or anonymized data generated from the operation of the Services. Traxxis GPS may use anonymized and aggregated data derived from Customer Data for the purposes of improving services, analytics, benchmarking, product development, and system performance, provided that such data does not identify Customer or any individual driver.
7. INDEMNIFICATION
Customer shall indemnify, defend, and hold harmless Traxxis GPS, its affiliates, officers, directors, employees, agents, suppliers, and licensors from and against any and all claims, actions, suits, proceedings, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Customer’s use of the Products or Services; (b) Customer’s failure to comply with any applicable laws or regulations, including but not limited to those governing privacy, data protection, vehicle tracking, surveillance, or the collection, processing, or storage of biometric or personal data (such as voiceprints, facial recognition, or video/audio recordings); (c) Customer’s violation of any term of this Agreement; (d) Customer’s violation of any third-party right, including without limitation any intellectual property, publicity, or privacy right; or (e) any claim that Customer’s use of the Products or Services caused harm, injury, or damage to any third party. This indemnification includes, without limitation, any claims brought under the Illinois Biometric Information Privacy Act (BIPA), or any similar federal, state, or local law, rule, or regulation involving biometric, video, or personal data privacy. This defense and indemnification obligation will survive the termination or expiration of this Agreement and Customer’s use of the Products or Services.
7.1. DATA PRIVACY AND COMPLIANCE
Customer is solely responsible for ensuring that its use of the Products and Services complies with all applicable federal, state, and local laws and regulations, including but not limited to those relating to privacy, data protection, electronic communications, driver monitoring, vehicle tracking, and the collection, use, storage, or disclosure of biometric or personal data (including voiceprints, facial geometry, video, and audio recordings). Customer shall obtain all necessary, informed, and written consents and provide all required notices and disclosures to its employees, contractors, drivers, or any other individuals whose personal data or biometric identifiers may be collected, processed, or stored through the Products or Services. This includes, but is not limited to, compliance with laws such as the Illinois Biometric Information Privacy Act (BIPA), and any similar legislation in other jurisdictions. Customer shall implement appropriate data security and retention policies to safeguard any personal or biometric information collected via the Products or Services and shall be solely liable for any failure to comply with applicable legal or regulatory requirements. Customer acknowledges that Traxxis GPS Solutions is not a legal advisor and does not provide legal advice, including on issues relating to biometric data or privacy compliance. Any compliance resources or guidance offered by Traxxis GPS Solutions are for informational purposes only. Customer is advised to consult its own legal counsel to ensure full compliance with all applicable laws and regulations.
7.2. CYBERSECURITY AND ACCOUNT SECURITY
Customer is responsible for maintaining the confidentiality and security of all login credentials, passwords, and user access associated with its account. Customer shall ensure that only authorized personnel have access to the Services and shall promptly notify Traxxis GPS of any suspected unauthorized access or security incident. Traxxis GPS Solutions implements commercially reasonable security measures designed to protect its systems; however, Customer acknowledges that no system is completely secure and that internet-based services may be subject to unauthorized access, cyberattacks, or data breaches beyond Traxxis GPS’s reasonable control. Traxxis GPS shall not be responsible for security breaches resulting from Customer actions, including but not limited to password sharing, insecure integrations, use of compromised devices, or failure to follow recommended security practices.
8. TERM AND TERMINATION
The initial term of this Agreement shall be three (3) years, or as specified on the details of the COMMERCIAL SALES AND SERVICE AGREEMENT. Unless otherwise specified, this Agreement shall automatically renew for successive one (1) year periods unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. In the event of early termination by Customer for any reason other than a material breach by Traxxis GPS, Customer shall pay an early termination fee equal to the monthly service fees multiplied by the number of months remaining in the then-current term of the Agreement, and shall return any equipment owned by Traxxis GPS within thirty (30) days in good and working condition or pay the replacement or discounted equipment value given to Customer at the start of the term. Upon termination or expiration of this Agreement, Customer shall immediately cease all use of the Services, the provisions of Sections 2, 5, 6, 7, 8.2, and 9 shall survive termination or expiration of this Agreement. Early termination fees are intended to compensate Traxxis GPS for subsidized equipment costs, onboarding, installation labor, and customer acquisition expenses incurred in reliance on Customer’s full-term commitment.
8.1. TERMINATION FOR CAUSE
Either party may terminate this Agreement for cause upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period. In addition, Traxxis GPS may immediately suspend or terminate this Agreement or any Services if: (a) Customer fails to make any payment when due and does not cure such failure within ten (10) calendar days after written notice, at which time Traxxis GPS may suspend Services and declare all remaining obligations immediately due and payable. (b) Customer or its users use the Products or Services in violation of applicable law or in a manner that disrupts or poses a security risk to Traxxis GPS or other customers; (c) Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; or (d) Traxxis GPS determines, in its sole discretion, that continued provision of the Services could create a substantial economic or technical burden or material security risk for Traxxis GPS. Upon any termination for cause by Traxxis GPS, Customer shall pay all unpaid fees due for the entire term of the Agreement.
8.2. EFFECTS OF TERMINATION
Upon termination or expiration of this Agreement for any reason: (a) all licenses granted under this Agreement will immediately terminate; (b) Customer shall immediately discontinue all use of the Services; (c) Customer shall pay to Traxxis GPS all amounts due and payable under this Agreement; (d) Customer shall return or destroy all Traxxis GPS confidential information in Customer’s possession or control; and (e) Sections 2, 5, 6, 7, 8.2, and 9 will survive in accordance with their terms. Traxxis GPS may, but is not obligated to, delete all of Customer’s data, content, and account information stored on Traxxis GPS servers or systems thirty (30) days after termination or expiration of this Agreement. Customer is solely responsible for exporting any data it wishes to retain prior to account termination. Traxxis GPS will not be liable for any loss of data resulting from termination of this Agreement.
8.3. TRANSFER OF SERVICE
If you wish to transfer the service for any active tracking or connected camera device to another reseller or company, a $50 fee (per subscription/ connected device) will be charged before the transfer is approved. This fee is in addition to any past due balances, early termination fees (ETFs), or other applicable fees at the time of the transfer request. All assessed fees and outstanding balances must be paid in full before Traxxis GPS will release the device to another party.
8.4. LIQUIDATED DAMAGES
Customer acknowledges that the pricing, discounts, and equipment incentives provided under this Agreement are based upon Customer’s commitment to maintain Services for the full Initial Term. In the event of early termination by Customer or termination due to Customer default, the early termination fee described in this Agreement represents a reasonable estimate of the damages that Traxxis GPS Solutions, Inc. would incur as a result of such termination, including but not limited to lost service revenue, subsidized equipment costs, installation expenses, administrative costs, and sales acquisition costs. The parties agree that such damages would be difficult to determine with certainty and therefore agree that the early termination fee constitutes liquidated damages and not a penalty.
8.5. SERVICE COMMENCEMENT DATE
The service term for each Product or Service shall commence on the earliest of the following:
(i) the date the Product is delivered to Customer, (ii) the date the Product is activated within the Traxxis platform, or (iii) thirty (30) days after shipment of the Product to Customer. Customer acknowledges that installation scheduling, vehicle availability, or delays caused by Customer shall not delay the commencement of the service term or Customer’s payment obligations under this Agreement.
9. MISCELLANEOUS
This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina, without giving effect to any choice of law or conflict of law provisions. Any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of South Carolina, in each case located in York County. This Agreement constitutes the entire understanding between the parties regarding the Products and Services purchased and supersedes all prior agreements, understandings, or negotiations. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect. Neither party may assign this Agreement without the prior written consent of the other party, except that Traxxis GPS may assign this Agreement to an affiliate or in connection with a merger, reorganization, or sale of all or substantially all of its assets. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.
9.1. CONFIDENTIALITY
Each party acknowledges that it may have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and pricing of this Agreement (“Confidential Information”). Confidential Information will not include information that is: (a) or becomes publicly available through no fault of the receiving party; (b) known to the receiving party prior to its disclosure by the disclosing party; (c) independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) rightfully obtained by the receiving party from a third party without restriction on use or disclosure. Each party agrees that it will not disclose to any third party or use any Confidential Information disclosed to it by the other party except as expressly permitted in this Agreement or as required by law, and will protect the confidentiality of all Confidential Information using at least the same degree of care that it uses to protect its own confidential information of similar importance, but in no event less than reasonable care. This obligation will survive termination of this Agreement for a period of five (5) years.
9.2. NON-CIRCUMVENTION
Customer agrees that during the term of this Agreement and for a period of two (2) years following its termination, Customer shall not use Traxxis GPS confidential information, pricing structures, supplier relationships disclosed through Traxxis GPS, or proprietary deployment methods to circumvent Traxxis GPS for the purpose of avoiding Customer’s obligations under this Agreement. This restriction shall apply only to information, pricing, supplier relationships, or solution configurations that were introduced to Customer through Traxxis GPS or obtained through Traxxis GPS confidential information.
9.3. FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) where the delay or failure results from any cause beyond its reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war. In the event of a force majeure event, the affected party shall be excused from performance for the duration of the force majeure event but shall use commercially reasonable efforts to mitigate its effects and resume performance as soon as reasonably possible.
9.4. INDEPENDENT CONTRACTORS
The parties are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Neither party has the authority to make any statements, representations, or commitments of any kind on behalf of the other party or to take any action that is binding on the other party.
9.5. DISPUTE RESOLUTION
The parties agree to first attempt to resolve any dispute, claim, or controversy arising out of or relating to this Agreement through good faith negotiations. If the dispute cannot be resolved through negotiation within 30 days, either party may initiate formal proceedings (SEE PARAGRAPH 9). The parties agree that any dispute resolution proceedings will be conducted on an individual basis and not as a class, consolidated, or representative action. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property rights or confidential information without the need to initiate the negotiation process described above.
9.6. NOTICES
All notices under this Agreement must be in writing and will be deemed given: (a) upon receipt when delivered personally; (b) upon written verification of receipt from overnight courier; (c) upon verification of receipt of registered or certified mail; or (d) upon verification of receipt via email, provided that the notice is also sent by another method permitted under this section. Notices to Traxxis GPS shall be sent to the address specified below, with a copy to legal@traxxisgps.com. Notices to Customer shall be sent to the address specified on the details page of the Agreement. Either party may change its notice address by giving notice to the other party.
| Corporate Office / Shipping Address: | Remit to Address: |
| Traxxis GPS Solutions, Inc. 114 East Main Street, Suite 201 Rock Hill, SC 29730 PH: 888.447.7059 | Traxxis GPS Solutions, Inc. 1750 HWY 160 West, Suite 101-244 Fort Mill, SC 29708 Email: billing@traxxisgps.com |
