CALAMP COMMERCIAL EQUIPMENT PURCHASE AGREEMENT TERMS AND CONDITIONS

Transcription

1 CALAMP COMMERCIAL EQUIPMENT PURCHASE AGREEMENT TERMS AND CONDITIONS This CalAmp Commercial Equipment Purchase Agreement (the Agreement ) is made between CalAmp Products, Inc. ( CalAmp ) and the customer ( You or Your ) named below, with respect to the purchase of CalAmp s Mobile Location Units (the Units ), as further described below. 1. ACCEPTANCE; CANCELLATION: This Agreement constitutes the entire agreement and understanding between You and CalAmp and supersedes all previous proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. Execution of this Agreement by You constitutes acceptance of these Terms. CalAmp is not bound by different terms and conditions in Your purchase order or elsewhere unless expressly agreed to in writing by an officer of CalAmp. This Agreement applies to any Units You may have purchased from CalAmp or CalAmp s agents, as well as those you purchase from CalAmp or CalAmp s agents on or after the date You execute this Agreement. You understand that You may be asked to reaffirm Your agreement to the terms and conditions stated herein from time to time, including in connection with the purchase of any additional Units after execution of this Agreement, but that such reaffirmation does not amend this Agreement in any way or serve as a renewal of the Agreement. Any such reaffirmation serves only as an acknowledgement that this Agreement controls Your purchase of any Units at any time after Your execution of this Agreement. 2. SHIPPING AND HANDLING: You shall be responsible for all shipping and handling charges for all orders placed under this Agreement in accordance with CalAmp s then current shipping policies and rates. 3. DELIVERY; RISK OF LOSS: All deliveries made under this Agreement are FCA/FOB CalAmp s warehouse. Shipping or delivery dates provided by CalAmp are good faith estimates only and CalAmp shall not be liable to You for delays or defaults. CalAmp reserves the right to make deliveries in installments and to bill separately for each such installment. Delivery delay or default on any shipment or installment shall not relieve You of Your obligation to accept and pay for such shipment or remaining deliveries. Claims for shipment shortage shall be deemed waived unless presented to CalAmp in writing within ten business days of delivery of each shipment. IN NO EVENT SHALL CALAMP 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 UNITS. 4. INSTALLATION AND LIMITED INSTALLATION WARRANTY: Facilitation of installation is solely your responsibility. The Unit(s) must be installed in accordance with CalAmp s specifications. Unauthorized or improper installation of the Units will automatically void CalAmp s limited warranty. Certain Units are equipped with an internal antenna. Correct placement and mounting of the Unit in accordance with the supplied installation instructions is critical to the proper operation of these Units. Improper mounting location or procedure may result in complete or partial loss of functionality of the Unit. It is solely Your responsibility to ensure that the Unit is properly installed. CalAmp shall not be liable to You or to any person for any loss or damage caused by improper installation of the Unit, and all warranties shall be void in the event the Unit is improperly installed. You agree to indemnify and hold CalAmp harmless from and against any and all claims or damages You or any person may have for any loss or damage caused by improper installation of the Unit. 5. LOCATION AND DATA COMMUNICATION SERVICES: (a) Description of Services. If properly installed, the Unit will enable You or Your customers, if applicable, to view a vehicle s whereabouts or send specific commands to the Unit by logging onto one of CalAmp s Internet websites, using standard web browsers. Specific services HC# of 7

2 ( Services ), service rates and service terms and conditions ( Service Plan ) may be included with the Purchase of the Units or may be purchased by You or Your customer by logging onto one of CalAmp s internet websites. All Services are subject to a separate service agreement that must be executed in connection with purchase of services and/or activation of the Unit. You agree to communicate to Your customer that the Units are not intended to provide access to emergency personnel or services and that Your customer must contact law enforcement agencies or emergency services personnel directly through means other than the Unit. (b) Compliance with Law. You are responsible for the use or resale of Your Units. You agree to comply with all applicable laws, ordinances, rules and regulations of applicable federal, state, local or foreign government and any agency or public authority thereof, and to hold CalAmp harmless from liability or loss by reason of any asserted or established violation of said laws, rules, or regulations by You, Your employees, agents or representatives. You agree that, to the extent You will use the Units to assist in collection of amounts owed to You by Your customers, You will provide Your customers with a written disclosure explaining the purpose and functionality of the Units and obtain Your customer s consent to installation of the Units as a condition to Your financing the customer s purchase of a vehicle from You. Exhibit A to this Agreement is a sample GPS/Starter Interrupt Device Customer Agreement and Disclosure Statement. This sample is provided for your reference only and is not a recommendation and no representation is made that the sample is adequate for Your jurisdiction. CalAmp recommends You obtain independent legal counsel to confirm the Units may be used for collection purposes and to prepare a customer agreement and disclosure statement that complies with applicable law. You will ensure that the disclosures and agreement to allow You to install the Unit in the customer s vehicle are incorporated by reference into the financing document and signed by Your customer. You acknowledge that certain GPS and/or starter disablement technology may not be permitted by law in certain states, either now or in the future. You bear sole responsibility for verifying that the Units may be used in any particular instance. CalAmp is not liable for any claims or damages that may arise out of the fact that GPS and/or starter disablement technologies are not permitted in a particular jurisdiction. 6. PAYMENT, TAXES, INDEMNITY: You shall bear full responsibility for, and shall pay CalAmp all fees and charges (together with all applicable taxes thereon) in accordance with the terms stated in this Agreement and outlined on each invoice, and at such place as CalAmp designates on its bill. Prices relating to the Units purchased pursuant to this Agreement are exclusive of taxes including, without limitation, any federal, state, local or foreign excise, sales, use, property, retailer s occupation or similar taxes, or any duties, customs or similar charges. As such, You are solely responsible for and shall pay any and all sales, excise, use, transfer or other taxes, and fees assessed or imposed by any federal, provincial, state, county, municipal or local taxing authority in connection with the use of the Units. YOU AGREE THAT TIME IS OF THE ESSENCE AND YOU AGREE TO MAKE PAYMENTS REGARDLESS OF ANY PROBLEMS YOU MAY HAVE WITH THE UNITS OR SERVICES INCLUDING THE OPERATION, CAPABILITY, INSTALLATION, OR REPAIR THEREOF, AND REGARDLESS OF ANY CLAIM, SETOFF, COUNTERCLAIM, OR DEFENSE YOU MAY HAVE AGAINST CALAMP, THE MANUFACTURER, SALESPERSON, OR ANY OTHER PARTY. You agree to pay Your account within the terms of sale as stated upon each invoice. If any amounts are not paid within the agreed period, You agree to pay interest on such outstanding amounts at the rate of one percent (1%) per month (12% per annum) or the maximum amount permitted by law. In the event You fail to pay such taxes or fees, CalAmp may, in its absolute sole discretion and without accepting any liability to do so, pay such taxes or fees on Your behalf and, in such event, You hereby authorize CalAmp to pay any such taxes or fees on Your behalf, and You agree to reimburse CalAmp promptly upon demand for the amount of any taxes, fees and charges that CalAmp pays on Your behalf. All credit terms granted to You or in Your favor by CalAmp, including any extensions or continuations thereof shall be at the sole discretion of CalAmp. CalAmp reserves the right to amend or terminate any or all credit terms in its absolute sole discretion without prior notice. To secure payment of any amounts owed by You to CalAmp pursuant to this Agreement, You hereby grant to CalAmp a security interest in the Unit(s) purchased hereunder, including all improvements, modifications or replacements and proceeds thereof. You further grant CalAmp the right and authority to HC# of 7

3 execute all documents necessary to perfect this security interest and You hereby appoint CalAmp as Your attorney-in-fact to execute and file any such financing statements, financing change statements, assignments, security agreements and other documents or otherwise, as may be required to perfect and maintain such security interest. The security interest granted hereunder is intended to attach, with respect to the Units now in existence, when You sign this Agreement and, with respect to any other equipment in which You acquire rights hereafter, on the date such rights are acquired. You are liable for all reasonable costs associated with the collection of Your delinquent account including, without limitation, reasonable legal and court costs, to the extent not prohibited by applicable law. If Your account is placed in the hands of an outside agency for collection, You agree to pay reasonable attorney fees and collection costs, even though legal proceedings may not be filed, to the extent not prohibited by applicable law. In the event legal proceedings are filed, the amounts of such reasonable attorney fees shall be fixed by the court in which the proceeding is filed, including any appeal therein. You agree that this Agreement shall be governed by and construed in accordance with the laws of the State of California. Jurisdiction and venue with respect to any claim (including any claim in arbitration pursuant to section 17) or litigation in connection with this Agreement shall reside in the County of Orange, California. Your signature hereto constitutes Your acknowledgment that You will submit yourself to the personal jurisdiction of the courts with jurisdiction within the County of Orange, California. 7. LIMITED WARRANTY: Pursuant to CalAmp s Limited Warranty, which is incorporated herein by reference and is available online for Your review and which will be provided with each Unit purchased by You, CalAmp warrants Units purchased under this Agreement against defects in materials and workmanship for a limited period of time. You should consult the separate Limited Warranty document for the terms and conditions of CalAmp s Limited Warranty. To the extent the terms and conditions of the Limited Warranty (including the limited remedy and warranty repair exclusions) as described in this Agreement (below) differ from those stated in the separate Limited Warranty document provided to You, the terms of the separate Limited Warranty document control. Your Limited Warranty provides that, subject to certain exclusions and conditions, if any Unit is found to be defective in materials or workmanship during the Limited Warranty period, CalAmp will, at its sole discretion, repair or replace the Unit at its expense. 8. LIMITED REMEDY: Your sole remedy for breach of any warranty is the right to repair or replacement of the defective Unit (at CalAmp s discretion). To obtain warranty or maintenance service, You must contact CalAmp. CalAmp will require You to (a) obtain a Returned Materials Authorization ( RMA ); (b) adequately package the products; (c) ship the products to the address provided by CalAmp; and (d) mark the RMA number prominently on the outside of the carton. Products received without an RMA number will be returned to You freight collect. CalAmp will return the repaired or replacement products, as the case may be, prepaid and fully insured. To the extent You request that CalAmp provide repair services with respect to any Unit not covered by a warranty, You agree to pay CalAmp for the repair services at CalAmp s then current repair rates. 9. WARRANTY REPAIR EXCLUSIONS: CalAmp is not obligated to provide the limited warranties or repair services set out herein if there has been any unauthorized alteration, modification or repair of the Units, if the Units have been used or combined with accessories or devices not approved by CalAmp as being compatible, or in the case of accidents, misuse, abuse, neglect, damage, tampering, improper installation, maintenance, unauthorized use, connection to an improper voltage supply, reception or transmission problems caused by inadequate or improper antenna (not provided by CalAmp), reception problems caused by an inadequate signal level in the operating area, damage due to exposure to the elements, failure to install or use the Units in accordance with HC# of 7

4 instruction manuals, or acts of God. The limited warranties do not cover accessories, batteries, casings, coverings and other non-electrical components. THE LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED, EXCEPT WHERE PROHIBITED BY LAW AND, WHERE PROHIBITED, ANY SUCH WARRANTY SHALL BE LIMITED TO THE MINIMUM WARRANTY AND PERIOD REQUIRED BY LAW. NO EMPLOYEE OR AGENT OF CALAMP HAS THE AUTHORITY TO GRANT ANY OTHER WARRANTY TO YOU, WRITTEN OR ORAL. 10. DISCLOSURE OF RELATIONSHIP WITH SERVICE PROVIDERS: You understand, and will communicate to any of Your customers, that the Units and Services furnished by CalAmp depend upon services provided by third parties ( Service Providers ) pursuant to agreements between such Service Providers and CalAmp and are subject to certain terms, conditions and limitations set out in such agreements. You expressly understand and agree that You and Your customers have no contractual relationship whatsoever with the Service Providers and that You and Your customers are not a third party beneficiary of any agreement between CalAmp and such Service Providers. In addition, You expressly agree that the agreements and terms in this section 10 shall survive the termination of this Agreement. You understand that CalAmp and Service Provider cannot guaranty the security of data transmissions, and will not be liable for any lack of security relating to the use of the Services or the transmission of data. You further acknowledge that the Service Providers disclaim all liability of any nature to You, whether direct, indirect, incidental or consequential, arising out of use of the Units, and You agree that You shall have no claims against the Service Providers of any kind with respect thereto. 11. PROPRIETARY RIGHTS: (a) Unless You have agreed otherwise in writing with CalAmp, you have no right to use any of CalAmp s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. (b) You agree that You shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Units. Unless You have been expressly authorized to do so in writing by CalAmp, You agree that in using the Units, You will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos. 12. SECURITY; PERSONAL INFORMATION AND PRIVACY: You understand that privacy cannot be guaranteed on the CalAmp system or other systems such as those used in order to provide the Services, and CalAmp shall not be liable to You or Your customers, as applicable, or any other third party for any claims, loss, damages or costs which may result from a lack of privacy. YOU ACKNOWLEDGE THAT IT IS YOUR RESPONSIBILITY TO ADVISE ALL OCCUPANTS OR USERS OF YOUR CALAMP ASSESTS EQUIPPED WITH A UNIT ABOUT HOW INFORMATION ABOUT THEM MAY BE COLLECTED, USED AND DISCLOSED BY CALAMP. 13. LIMITATION OF LIABILITY: CalAmp shall not be liable to You or to any other person for any loss or damage caused by the use of the Units, regardless of cause. In no event shall CalAmp s liability to You or Your customers arising out of use of the Units exceed the amount paid by You for the Units in question. CalAmp shall not be liable to You, Your customers or any third party for consequential, incidental, general, special or exemplary damages, including, without limitation, loss of or damage to Your vehicles or assets or loss of profits, revenues or data, even if CalAmp has been advised of the possibility of such damages. You agree to indemnify and hold CalAmp harmless from and against any and all losses or damages caused by the use of the Units. No action shall be brought for any breach of this Agreement more than one year after accrual of such cause of action except by CalAmp for money due on an open account. Certain of the above limitations may not apply in some states. To HC# of 7

5 the extent that any such limitations are precluded in a given state, such preclusion shall not affect any other limitations not so prohibited or precluded. 14. INTERRUPTION OF SERVICES; FORCE MAJEURE: CalAmp shall have no liability for a failure to provide, or for delay in providing, the Units or maintenance due directly or indirectly to the Limitations of Technology or other causes beyond the control of CalAmp or its subcontractors. If CalAmp is unable to wholly or partially perform Services because of any cause beyond its control, CalAmp may terminate this Agreement without any liability to You or your customers, other than the refund of any amounts paid for the undelivered Units. 15. LIMITATIONS OF TECHNOLOGY: You have read, understand and acknowledge the following inherent technical limitations relating to the use of the Units: (a) Wireless Network Coverage and Service. Complete coverage of the service area at all times is improbable. The existence of adverse conditions, such as short-term unpredictable meteorological effects and sky wave interference from distant stations, can interrupt the Services at times. Certain circumstances such as weather, tunnels, underground structures, terrain, high-rise buildings, enclosed or underground parking or driving areas, faulty installation, motor ignition and other electrical noises and radio signals from external sources may interfere with the Services. CalAmp utilizes wireless networks with broad coverage areas to access moving vehicles and assets. There are still areas within the service area that have not yet been included in the wireless coverage areas. Therefore, if a vehicle travels out of the available service area, communication with that vehicle is unavailable until it returns to the available service area. Also, from time to time, poor coverage areas ( holes ) occur even in fully developed areas, thereby limiting system performance. Other wireless network environmental issues may affect the communications link between the Units and the CalAmp Online System. Environmental issues may include; service interruptions, network congestion, roaming and similar access issues. (b) Global Positioning System (GPS) Drift and Urban Canyon. GPS is a satellite based positioning system providing expansive coverage throughout the world. The GPS antenna must have a direct line of sight to the satellites. If said path is impaired (e.g. underground parking lots or the shadow of tall buildings), it can affect the ability of the Services to recognize an accurate location. (c) Tampering with the Unit. If the unit is tampered with, disconnected, or the unit completely removed, the functionality of the Units and Services will be jeopardized. (d) Privacy. The Units and Services have many complex elements and are not guaranteed against eavesdroppers, hackers, denial of service attacks, viruses or interceptors. You acknowledge and agree, and undertake to inform any users of the Units and Services, that CalAmp and any of its Service Providers shall not be liable for any lack of privacy or security resulting from use of CalAmp Products or Services. In addition, to the extent You have a privacy right in the location, characteristics, performance or operation of a vehicle equipped with a Unit, You agree to voluntarily waive such right. (e) Availability of Cellular Technology/Mapping. Units and Services are based on cellular technology which may become obsolete in the future as a result of changes in wireless technology or actions by telecom regulators with respect to cellular technology in mapping applications. In such event, CalAmp shall have no obligation to issue a refund or furnish substitute equipment or services. In addition, CalAmp assumes no responsibility for the accuracy or inaccuracy of any maps upon which the Services are based. (f) Capacity Limitation. The parties recognize that unusual concentrations of usage may occur in certain locations. CalAmp shall incur no liability for its inability to provide adequate Services hereunder arising from or related to a lack of network capacity on the equipment which results from the aforesaid usage concentration, and nothing herein shall require CalAmp to expend any capital to insure capacity for Your use of the Services. 16. TERM AND TERMINATION; RENEWAL: This Agreement shall remain in full force and effect for a period of one year from the date this Agreement is executed by CalAmp and shall automatically renew for further one year periods without action by any party; provided, however, that either CalAmp or You may terminate this Agreement following the initial one year term upon not less than thirty (30) days prior written notice to the other. Notwithstanding the foregoing, this Agreement shall terminate immediately without liability if the HC# of 7

6 authorizations held by CalAmp are revoked by the FCC or other authority governing the provision of the Services. 17. ARBITRATION. This Arbitration Provision describes when and how a Claim may be arbitrated. A claim is any claim, dispute or controversy between You and CalAmp that in any way arises from or relates to this Agreement and includes: initial claims, counterclaims, cross-claims and third-party claims; disputes based on contract, tort, fraud and other intentional torts (at law or in equity, including any claim for injunctive or declaratory relief); disputes based on constitutional grounds or on laws, regulations, ordinances or similar provisions; and disputes about the validity, enforceability, arbitrability or scope of this Arbitration Provision or this Agreement. Either You or CalAmp may require any Claim to be arbitrated, except neither party is obligated to arbitrate a Claim that is brought and maintained as an individual (as opposed to a class) claim and that involves an amount in dispute or claim for damages of less than $25,000. Arbitration begins when a party gives written notice to the other party of the intent to require arbitration. This notice may be given before or after a lawsuit has been started over the Claim or with respect to other Claims brought later in the lawsuit. Arbitration of a Claim must comply with this Arbitration Provision and the applicable rules of the arbitration Administrator. The arbitration Administrator shall be the American Arbitration Association ( AAA ), 335 Madison Avenue, New York, NY 10017, (800) If the AAA is unwilling to serve as the Administrator, the parties shall attempt to agree upon a substitute Administrator. If the parties are unable to so agree, each shall select one representative, and the two representatives shall select a third party, and the two representatives and the third party shall select the Administrator. Each party shall bear its own arbitration costs, fees and expenses, unless otherwise ordered by the Administrator. You give up Your right to participate in a class action. This means that You may not be a representative or member of any class of claimants or act as a private attorney general in court or in arbitration with respect to any Claim. Notwithstanding any other part of this Arbitration Provision, the validity and effect of the Class Action Waiver must be determined only by a court and not by an arbitrator. If a court limits or voids the Class Action Waiver, then this entire Arbitration Provision (except for this paragraph) will be null and void. In addition to the parties rights to obtain discovery under the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope for discovery normally allowable under the arbitration rules of the Administrator. The Arbitrator will have discretion to grant or deny that request. Judgment upon the arbitration award may be entered in any court having jurisdiction. In response to a timely request from either party, the arbitrator must provide a brief written explanation of the basis for any award. The arbitrator s decision is final and binding, except for any right of appeal provided by the Federal Arbitration Act. However, if the amount of the award exceeds $100,000, a party can appeal the award to a three-arbitrator panel administered by the Administrator, which must reconsider any aspect of the initial award requested by the appealing party. Reference in this Arbitration Provision to the arbitrator means the panel of arbitrators if an appeal of the arbitrator s decision has been taken. Subject to applicable law, costs of any appeal will be borne by the appealing party regardless of the outcome of the appeal. This Arbitration Provision is governed by the Federal Arbitration Act and not by any state arbitration law. The arbitrator must apply applicable statutes of limitations and claims of privilege recognized at law, and applicable substantive law consistent with the Federal Arbitration Act. The arbitrator is authorized to award all remedies permitted by substantive law that would apply if the action were pending in court. HC# of 7

7 This Arbitration Provision survives the repayment of all amounts You owe CalAmp, the transfer of this Agreement, and any bankruptcy by You, to the extent not inconsistent with applicable bankruptcy law. Except as provided above, if any part of this Arbitration Provision is determined to be invalid or unenforceable, this Arbitration Provision and the Agreement will remain enforceable. In the event of a conflict or inconsistency between this Arbitration Provision and the applicable arbitration rules or the other provisions of this Agreement or any other contract between You and CalAmp, this Arbitration Provision will govern. 18. GENERAL: No amendment or modification hereof shall be binding upon CalAmp unless such amendment or modification is in writing signed by an authorized officer of CalAmp. If any term hereof is contrary to, prohibited by or deemed invalid under applicable laws or regulations, such term shall be deemed omitted to the extent prohibited or invalid but the remainder of these Terms and this Agreement shall not be invalidated and shall be given effect so far as possible. Any waiver of any right in, or breach of, this Agreement shall not be a continuing waiver and shall not prevent any claim of breach of the same term or any other term of this Agreement. This Agreement is fully assignable by CalAmp to any person or entity and shall inure to the benefit of such assignee or successor. You may not assign this Agreement without the prior written consent of CalAmp, except that You may, without CalAmp s consent, assign this Agreement (a) to Your parent company, a subsidiary, or an affiliate; (b) to any successor corporation by consolidation or merger; or (c) to any corporation with the authority to carry on a business of a nature transacted by You and to which You have sold all or substantially all of Your assets, provided that You have advised CalAmp in writing of such assignment, and You remain liable for any obligations or liabilities arising under this Agreement. CUSTOMER Company Name Company Type Corporation LLC Sole Proprietor State of Incorporation Address City, State, Zip Phone Name (Printed) Signature Date HC# of 7