These terms and conditions incorporated herein (collectively the “Agreement”), is entered into by and between ShadowTrack 24/7, LLC (“ShadowTrack 24/7”), having a principal place of business at 45 Park Ridge Drive, Fletcher, NC 28732 USA, and Company, (“Customer”) as of the date the Customer is registered with ShadowTrack 24/7. The parties agree as follows:
ShadowTrack 24/7 Services
A :: ShadowTrack 24/7 Valued Asset Tracking Program – ShadowTrack 24/7 will offer the following services (collectively, the “Services”):
1. ShadowTrack 24/7 Valued Asset Tracking Program
2. Valued Asset Tracking Program includes GPS tracking devices, related components and/or accessories (collectively, “Equipment”).
3. ST24/7Spot™ Tracking Platform
Platform Access: Equipment is tracked and monitored through the ST24/7Spot™ web-based Customer tracking and monitoring platform, which includes:
- Limited number of users with unique user ID and passwords.
- Limited use of website to track and monitor devices.
Online Map and Aerial Photo Display of Device Location: The ability to view the geographic locations of the tracking devices on a map displayed via a browser interface.
Alerts and Alert Monitoring: Provides the ability to create alert events such as ‘geo-fences’ (routes, locations, fixed position), low battery conditions, and stops or stationary conditions over a specified length of time, as well as other features available based on the Equipment model, which allows Customer to monitor these alerts. When an alert occurs, an automatic alert notification is sent to the Customer’s designated staff via SMS and/or email.
Equipment Activity Reports: Customer may define and modify reports based on requirements.
B :: Training
Training: ShadowTrack 24/7 agrees to provide, at no additional charge, except for travel and lodging expenses, a one (1) day, eight (8) hour, on-site training / technical support on the system session at one (1) Customer location as soon as practicable after the delivery date. This is available when the Customer purchases one-hundred (100) or more tracking devices. ShadowTrack 24/7 will use reasonable efforts to conduct this training within two (2) weeks following delivery. For purchases of one (1) to ninety-nine (99) devices, training sessions will be scheduled and delivered via telephone and web presentation. If further telephone training is desired that may be arranged with ShadowTrack 24/7, additional charges may apply. If additional on-site training is required or the Customer wants on-site support when purchasing less than one-hundred (100) tracking units, the Customer will be charged an hourly rate of $150/hour or $1,200.00 per day, whichever is less (not to exceed 8 hours per day), plus reimbursement for any travel and lodging expenses incurred by ShadowTrack 24/7 employees traveling to the Customer location in which the training / technical support is to be conducted (7.5% admin charge applied to reimbursable expenses).
C :: Customer Support
1 :: Telephone Support: Phone and email access to a ShadowTrack 24/7 Technical Support representative is available during normal business hours.
2 :: Customer Fees and Purchases
A :: Customer Fees and Sales Orders for ShadowTrack 24/7’s Valued Asset Tracking Program including tracking devices are for the prices are indicated in “Exhibit A”. In the event of conflict between this Agreement and the terms of any Purchase Order, the terms of this Agreement shall control.
B :: Early Termination Fee – Services (for example, rate plans and Device discounts) offered require the Customer to maintain those Services with ShadowTrack 24/7 for a minimum term (“Initial Term”). Customer will be charged a fee (“Early Termination Fee”) of $25 for each Device and/or Service terminated early (i.e., prior to satisfying the Initial Term) or for each line of Device and/or Service that ShadowTrack 24/7 terminates early for good reason (for example, violating the payment or other terms of the Agreement).
C :: Additional service is billed for each device at the end of the service period unless the service is canceled.
D :: Reactivation Fee – If Customer’s service has been suspended due to non-payment, Customer may be charged a reactivation fee of $25.
3 :: Payment
ShadowTrack 24/7 shall submit an invoice to each Customer when orders ship and periodic (e.g. monthly, quarterly or annually) invoices for services, according to instructions listed in “Exhibit B – Invoicing Instructions”, on the first of each period for the Services that are to be provided that period. Each invoice shall identify the Service being provided, the monthly fee for such Service and all sales or other taxes assessed by any taxing authorities. Other fees and reimbursable expenses shall be invoiced in arrears or as otherwise specified in a Purchase Order. Customer agrees to pay in full all amounts owing on each invoice upon receipt of the invoice. In the event there is a delay in payment for more than 30 days by the Customer to ShadowTrack 24/7, the Customer shall be liable to pay an interest of 1.5% per month (or the maximum rate permitted by law, whichever is less) on the delayed payments from the payment due date and account services may be temporary suspended.
4 :: Taxes
Customer shall be liable for all federal, state and local taxes, if any, payable in connection with or arising from the services being provided under this Agreement, all of which shall be in addition to the contract price set forth in Exhibit A. If Customer is tax exempt, a Tax Exempt Certificate must be emailed to email@example.com before the first order.
5 :: Terms and Termination
A :: Term
The initial term of this Agreement (the “Initial Term”) shall be stipulated and begin on the date of the Purchase Order. Upon expiration of the Initial term, this Agreement shall automatically renew unless either party notifies the other party of its intent to terminate, in writing, thirty (30) days prior to canceling service.
B :: Termination
If either party fails to comply with or breaches a material term or condition of this Agreement, the complying party shall give the defaulting party written notice of such failure. The defaulting party shall have thirty (30) days after the receipt of notice to cure any indicated failure. If the failure is not cured within that time, this Agreement may be terminated, without further delay, by the complying party sending written notice to the defaulting party.
Either party may immediately terminate this Agreement by sending written notice to the other if (a) a receiver is appointed to take possession of all or substantially all of the assets of the other party; (b) the other party makes a general assignment for the benefit of creditors; (c) the other party takes or suffers any action under any insolvency or bankruptcy act; or (d) the other party liquidates all or substantially all of its assets, or dissolves.
Password/Security: Only employees of Customer shall be authorized to use the Services hereunder and such use must be solely for the benefit of Customer. The Customer is responsible for the use of any password provided and must take all reasonable steps to ensure that no unauthorized person shall have access to the ST24/7Spot™ Tracking Platform. In the event Customer realizes the password has been, or could potentially have been, compromised, it is the Customer’s responsibility to inform ShadowTrack 24/7 immediately. Customer grants ShadowTrack 24/7 and any and all affiliates, employees, contractors, partners and all other persons or entities involved in the operation of the ST24/7Spot™ Tracking Platform the right to transmit, monitor, retrieve, store, and use Customer’s information solely with respect to the operation of the website. ShadowTrack 24/7 cannot and does not assume any responsibility or liability for, and Customer shall indemnify and hold ShadowTrack 24/7 (and its officers, directors, employees, agents, licensors, subcontractors and suppliers) harmless for any damages resulting from, any information Customer submits or permits to be submitted, or third parties’ use or misuse of information transmitted or received by using the ShadowTrack 24/7 Tracking Platform.
7 :: Changes in Service – ST24/7Spot™
Platform Changes: The ST24/7Spot™ Tracking Platform is subject to ShadowTrack 24/7’s business policies, practices, and procedures. ShadowTrack 24/7 will provide Customer with no less than thirty (30) days advanced written notice of any changes to ShadowTrack 24/7’s business policies, practices and procedures that will affect the ST24/7Spot™ Tracking Platform and Customer’s use.
8 :: Changes in General Terms & Conditions
ShadowTrack 24/7 may change any part of the Agreement at any time, including, but not limited to, rates, charges, how we calculate charges, or Customer’s terms of Service. ShadowTrack 24/7 will provide Customer notice of material changes, and may provide Customer notice of non-material changes, in a manner consistent with this Agreement. If a change ShadowTrack 24/7 makes to the Agreement is material and has a material adverse effect on Services under Customer’s Initial Term, Customer may terminate each line of service materially affected without incurring an Early Termination Fee only if Customer: (a) call ShadowTrack 24/7 within 30 days after the effective date of the change; and (b) specifically advises ShadowTrack 24/7 that Customer wishes to cancel Services because of a material change to the Agreement. If Customer does not cancel Service within 30 days of the change, an Early Termination Fee will apply if Customer terminates Services before the end of any applicable Initial Term.
9 :: Warranties
ShadowTrack 24/7 represents and warrants that the ST24/7Spot™ Tracking Platform and any related Services will be presented and performed in a professional and workmanlike manner. ShadowTrack 24/7 further represents and warrants that it has all necessary rights and licenses to deliver the Services in accordance with the terms of this Agreement.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SHADOWTRACK 24/7 DOES NOT WARRANT THAT ACCESS TO OR USE OF ST24/7SPOT™ WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SHADOWTRACK 24/7 MAKES NO OTHER EXPRESS WARRANTIES AND WAIVES ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING THE SERVICES PROVIDED BY SHADOWTRACK 24/7.
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE EQUIPMENT IS PROVIDED “AS IS” AND SHADOWTRACK 24/7 WARRANTS EQUIPMENT FROM MANUFACTURERS DEFECTS FOR ONE YEAR, NO OTHER WARRANTY IS EXPRESS OR IMPLIED, (INCLUDING, WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) REGARDING THE EQUIPMENT PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE CONTENT OR OTHER CUSTOMER SERVICES AND PROGRAMS PROVIDED OR MADE AVAILABLE TO CUSTOMERS HEREUNDER, ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED.
10 :: ShadowTrack 24/7 is not an Insurer and Liquidated Damages
SHADOWTRACK 24/7 DOES NOT WARRANT OR REPRESENT THAT THE EQUIPMENT OR SERVICES MAY NOT BE COMPROMISED OR CIRCUMVENTED OR THAT THEY WILL IN ALL CASES PREVENT ANY LOSS BY HOLD-UP, ROBBERY, THEFT OR OTHERWISE; OR THAT THEY WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH THEY WERE INSTALLED, PROVIDED OR INTENDED.
IT IS UNDERSTOOD THAT SHADOWTRACK 24/7 IS NOT AN INSURER OF CUSTOMER’S PROPERTY OR THE PERSONAL SAFETY OF PERSONS COMING IN CONTACT WITH CUSTOMER’S PROPERTY; THAT INSURANCE, IF ANY, ON SUCH PROPERTY AND ITS CONTENTS AND ANY LIFE, DISABILITY OR HEALTH INSURANCE FOR PERSONS WILL BE THE SOLE RESPONSIBILITY OF THE CUSTOMER. THE PAYMENTS TO BE MADE TO SHADOWTRACK 24/7 BY CUSTOMER ARE BASED SOLELY ON THE VALUE OF THE SERVICES AND/OR EQUIPMENT PROVIDED BY SHADOWTRACK 24/7, THE COST OF INSTALLING AND MAINTAINING THE CUSTOMERSHIP, AND THE SCOPE OF LIABILITY ASSUMED BY SHADOWTRACK 24/7 HEREIN. THE PAYMENTS MADE TO SHADOWTRACK 24/7 BY CUSTOMER ARE NOT RELATED TO THE VALUE OF CUSTOMER’S PROPERTY OR THE PROPERTY OF OTHERS. CUSTOMER UNDERSTANDS THAT SHADOWTRACK 24/7 DOES NOT GUARANTY OR WARRANT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, THAT THE EQUIPMENT OR SERVICES SUPPLIED WILL AVERT OR PREVENT THE OCCURRENCES OR CONSEQUENCES THEREFROM WHICH THE EQUIPMENT OR SERVICES ARE DESIGNED TO DETECT OR PREVENT AND SHADOWTRACK 24/7 WILL NOT BE LIABLE FOR ANY LOSSES INCURRED AS A CONSEQUENCE OF OR INCIDENTAL TO SUCH OCCURRENCES.
UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS ARISING FROM THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX THE ACTUAL
DAMAGES, IF ANY, WHICH MAY PROXIMATELY RESULT FROM FAILURE OF THE SERVICES OR EQUIPMENT, OR FAILURE ON THE PART OF SHADOWTRACK 24/7 TO PERFORM ANY OF ITS OBLIGATIONS HEREUNDER. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER DOES NOT DESIRE THIS AGREEMENT TO PROVIDE FOR FULL LIABILITY OF SHADOWTRACK 24/7 AND AGREES THAT CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AS THE AGREED UPON DAMAGES, AND NOT AS A PENALTY, AND SHADOWTRACK 24/7’S SOLE LIABILITY FOR LOSS, DAMAGE OR INJURY DUE DIRECTLY OR INDIRECTLY TO THE FOLLOWING SHALL BE LIMITED TO A SUM EQUAL TO THE LESSER OF THE ANNUAL SERVICE CHARGES BILLED TO CUSTOMER FOR THE YEAR IN WHICH THE LOSS OCCURRED OR $5,000: (a) FAILURE OF THE EQUIPMENT OR SERVICES TO PREVENT OR AVERT OCCURENCES THAT THEY ARE DESIGNED TO DETECT OR CONSEQUENCES THEREFROM, (b) SHADOWTRACK 24/7’S OR ITS AGENTS’, EMPLOYEES’ OR CONTRACTORS’ PERFORMANCE OR NON-PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, (c) SHADOWTRACK 24/7’S OR ITS AGENTS’, EMPLOYEES’ OR CONTRACTORS’ NEGLIGENCE, ACTIVE OR OTHERWISE, STRICT LIABILITY, VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR OTHER ALLEGED FAULT, OR (d) ANY OTHER ACT OR OMMISSION COMMITTED BY SUCH ENTITIES OR PERSONS. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST SHADOWTRACK 24/7 MORE THAN (1) YEAR AFTER THE ACCRUAL OF THE CAUSE OF ACTION THEREFOR. IT IS FURTHER AGREED THAT THE LIMITATIONS ON LIABILITY, EXPRESSED HEREIN, SHALL INURE TO THE BENEFIT OF AND APPLY TO ALL PARENTS (BOTH DIRECT AND INDIRECT), SUBSIDIARIES, AFFILIATES AGENTS AND SUBCONTRACTORS OF SHADOWTRACK 24/7.
IF CUSTOMER DESIRES THAT SHADOWTRACK 24/7 ASSUME A GREATER LIMIT OF LIABILITY OR RESPONSIBILITY THAN SET FORTH HEREIN TO EITHER CUSTOMER OR CUSTOMER’S INSURANCE CARRIER BY WAY OF SUBROGATION, AN ADDITIONAL PRICE MUST BE QUOTED TO CUSTOMER BY SHADOWTRACK 24/7 AND PAID BY CUSTOMER. CUSTOMER DOES, HEREBY, FOR ITSELF, ITS INSURANCE CARRIER, AND ALL PARTIES CLAIMING UNDER THEM, RELEASE AND DISCHARGE SHADOWTRACK 24/7 FROM AND AGAINST ALL HAZARDS COVERED BY CUSTOMER’S INSURANCE, IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT NO INSURANCE COMPANY OR INSURER WILL HAVE ANY RIGHT OF SUBROGATION AGAINST SHADOWTRACK 24/7.
11 :: Governing Law and Jurisdiction
This Agreement will be interpreted and construed in accordance with the laws of the State of North Carolina, without regard to its principles of conflict of law or choice of laws. Each party consents to the exclusive jurisdiction and venue in the federal district court in the state where, (a) in the case where ShadowTrack 24/7 is named defendant, the principal place of ShadowTrack 24/7’s business, or (b) in the case where Customer is named defendant, the principal place of Customer’s business. If no federal subject matter jurisdiction exists, then the parties consent to the exclusive jurisdiction and venue in the proper court of the county and state where the applicable business offices are located. The parties waive all defenses of lack of personal jurisdiction and forum non-conveniens.
12 :: No Agency Created
This Agreement does not in any way create the relationship of principal and agent, joint venture, partner, or employer and employee between Customer and ShadowTrack 24/7, its partners, or third-party service providers, and under no circumstance shall Customer hold itself out to be or in any way be considered an agent of ShadowTrack 24/7, its partners or any third party service providers.
13 :: Assignment
ShadowTrack 24/7 may assign in whole or in part its rights and duties under this Agreement, without notice to Customer. Customer may assign this Agreement only with prior written authorization by ShadowTrack 24/7.
14 :: Force Majeure
Neither party shall be liable for any delays or failures in performance due to circumstances beyond its control which could not be avoided by the exercise of due care and which make such parties performance illegal or impossible, provided, however, that the party so affected shall use all commercially reasonable efforts to avoid or remove such causes of non-performance and both parties shall proceed whenever such causes are removed.
15 :: Miscellaneous
This represents the final and entire Agreement between Customer and ShadowTrack 24/7 and replaces or supersedes all prior or contemporaneous Agreements, representations or contracts, verbal or written. Waiver of any breach or failure to enforce any term of this Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur. If any term or provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid, or otherwise unenforceable, such term or provision shall not affect the Agreement’s other terms or provisions, or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and the agreements of the parties. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall be deemed the same agreement. The terms of Sections 6 and 9 and other sections, which by their nature extend beyond termination, shall survive termination of this Agreement for any reason.