GPS Fleet Tracking Rate Plan Section

Babaco GPS Fleet Tracking Terms and Conditions

1. PAYMENT TERMS
a. Customer agrees to pay for all equipment and accessories prior to installation unless otherwise noted in the special instructions section on the order form.
b. Service fee payments are due in full prior to the start of each service period. Customers will be billed 30 days in advance with net 30 terms and service fees are invoiced on a quarterly basis unless otherwise specified. Payments are to be sent to Babaco at 110 Commercial Avenue Moonachie, NJ 07074. A late fee of $15 will be assessed if payment is not received by the invoice due date.
c. Customer will be charged sales tax on all hardware and services unless Babaco has on file a valid tax exemption certificate and or reseller certificate.
2. LIMITED WARRANTY.
a. Babaco GPS tracking devices will be free from defects in workmanship and materials for a period of one (1) year from the date of purchase unless Customer purchases the extended warranty option and all payments are current and up to date.
b. This limited warranty does not cover the repair or replacement of devices damaged by tampering or accident. c. This limited warranty does not cover labor unless Customer accepts the appropriate extended warranty option and all payments are current and up to date. Babaco at its discretion may select not to offer the extended warranty with labor option. Labor does not include travel fees if work is to be performed at Customers location.
d. Opening the device shall constitute a breach of this End User License Agreement by the customer.
e. Before returning any device under this limited warranty, the customer must obtain an RMA number from Babaco by calling the number on this order form. Babaco after receiving the device will repair it or replace it in accordance with the terms of this limited warranty.
f. Repair or replacement is your exclusive remedy under this agreement and in no case will customer be entitled to damages exceeding $250.
g. Third party terminals and navigation devices are covered by the manufacturer’s warranty and it is the Customers responsibility to register products and follow the manufactures instructions for the return or repair of such devices.
h. This warranty does not cover other Babaco non-GPS products. Babaco locks, alarms and other components that may be purchased and installed simultaneously are either covered under a separate agreement or have a maximum warranty period not to exceed six (6) months.
3. RETURN POLICY.
a. Any uninstalled device purchased by the customer may be returned in good working condition within ten (10) calendar days from the date of purchase for a refund of the amount paid for the device less a 15% restocking fee. Customer is responsible for all shipping and associated installation charges.
4. TERMINATION OF THIS AGREEMENT.
a. This End User License Agreement shall have a three (3) year term. This agreement shall renew itself for a period of one year and for successive periods of one year thereafter under the same terms and conditions, unless either party gives written notice to the other by certified mail, return receipt requested, of their intention not to renew the contract at least 30 days prior to the expiration of any term. b. Customer is responsible for a $25 early termination fee per device if service is terminated before the end of the term.
5. USE.
a. Customer is subject to additional fees called roaming fees if the customer operates vehicles outside the United States.
b. The monthly service fee covers the vehicle being operated during a single shift. Babaco reserves the right to charge an additional fee of $4.95 per device per month if vehicles operate continuously for longer than 10 hours a day and 6 days a week.
c. Customer is solely responsible for complying with any orders, rules and regulations of the Federal Communications Commission, or any other Federal, State or local governmental authority, applicable to the purchase, installation and operation of the Device(s).
6. INSTALLATION AND SERVICE
a. If the device(s) is being installed by Babaco as part of this agreement than Customer agrees to make the vehicle(s) available during the agreed upon date and time. If vehicles are not available when the installer arrives causing the installer to either wait for the vehicle or return to the vehicle on a different date and time than additional fees will apply.
b. Babaco is authorized and permitted to subcontract any services to be provided by Babaco to third parties who may be independent of Babaco and Babaco shall not be liable for any loss or damage sustained by Customer by reason of fire, theft, burglary or any other cause whatsoever caused by the negligence of third parties.
7. GENERAL
a. LEGAL ACTION. The parties agree to waive a trial by jury in any action between them. In any action commenced by BABACO against Customer, Customer shall not be permitted to interpose any counterclaim. Any action by Customer against BABACO must be commenced within one year of the accrual of the cause of action or shall be barred. All actions or proceedings against BABACO must be based on the provisions of this agreement. Any other action that Customer may have or bring against BABACO in respect to other services rendered in connection with this agreement shall be deemed to have merged in and be restricted to the terms and conditions of this agreement. Should BABACO prevail in any litigation between the parties, Customer shall pay BABACO's legal fees. Any action or dispute between the parties, including issues of arbitrability, shall, at the option of either party, be determined by arbitration administered by the National Arbitration Association, 7600 Jericho Turnpike Suite LL3 Woodbury, New York 11746, under its Commercial Arbitration Rules.www.natarb.com.
b. FULL AGREEMENT/SEVERABILITY. This agreement constitutes the full understanding of the parties and may not be amended or modified or canceled except in writing signed by both parties. Should any provision of this agreement be deemed void, the remaining parts shall not be affected.
c. FORCE MAJEURE. Neither party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies, or any other cause beyond the control of such party ("Force Majeure") provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay.
d. ASSIGNMENTS/WAIVER OF SUBROGATION RIGHTS. Customer shall not be permitted to assign this agreement without written consent of BABACO. Any such assignment without prior approval shall be deemed a breach of this agreement. BABACO shall have the right to assign this contract and shall be relieved of any obligations created herein upon such assignment.
e. INDEMNITY. Customer agrees to and shall indemnify and hold harmless BABACO, its employees, agents and subcontractors, from and against all claims, lawsuits, including those brought by third parties or Customer, including reasonable attorneys' fees, and losses asserted against and alleged to be caused by BABACO's performance, negligent performance or failure to perform its obligations under this agreement. Parties agree that there are no third party beneficiaries of this contract.
f. ADDITIONAL PAYMENTS. Should BABACO be required by existing or hereinafter enacted law to perform any service or furnish any material not specifically covered by the terms of this agreement Customer agrees to pay BABACO for such service or material.
g. ALERTS. BABACO shall have no liability for any alerts or notifications that are failed to be delivered by the tracking system, navigation system or any terminal or device connected to any device supplied by Babaco. Devices that are powered by rechargeable batteries must be tested by the Customer on a regular basis and Babaco shall have no liability should a tracking device or any other device supplied by Babaco fail to report or function properly due to a loss of power from an improperly charged battery. Devices that are powered on an intermittent basis from an external source, such as a tractor, need to be tested after the power source has been applied to insure that the device has powered up and initialized correctly. Customers should always operate their vehicles safely. Even when using a navigation device in truck mode, it is the Customers responsibility to account for the vehicle’s height, length, weight and other restrictions while driving. Always defer to all posted road signs and road conditions when making driving decisions. BABACO shall have no liability resulting from false or non-timely traffic information provided by third parties.
h. NO WARRANTIES OR REPRESENTATIONS. BABACO does not represent nor warrant that the system will prevent any loss, damage or injury to person or property, by reason of burglary, theft, hold-up, fire or other cause, or that the system will in all cases provide the protection for which it is installed or intended. Customer acknowledges that BABACO is not an insurer, and that Customer assumes all risk for loss or damage to Customer's vehicle or its contents. BABACO has made no representation or warranties, and hereby disclaims any warranty of merchantability or fitness for any particular use. Customer's exclusive remedy for BABACO's default hereunder is to require BABACO to repair or replace, at BABACO's option, any equipment or part of the system which is non-operational.
i. EXCULPATORY CLAUSE. The parties agree that BABACO is not an insurer and no insurance coverage is offered herein.
j. LIMITATION OF LIABILITY. The parties agree that the system is not designed or guaranteed to prevent any loss by burglary, theft and other illegal acts of third parties, or loss by fire, smoke, water or any other cause. If, notwithstanding the terms of this agreement, there should arise any liability on the part of BABACO as a result of burglary, theft, hold-up, fire, smoke, equipment failure, or any other cause whatsoever, regardless of whether or not such loss, damage, or personal injury was caused by or contributed to by BABACO's negligence to any degree or failure to perform any obligation, such liability will be limited to an amount equal to six (6) times the monthly payment paid by Customer to BABACO at the time such liability is fixed, or to the sum of $250.00, whichever is greater. If Customer wishes to increase BABACO's maximum amount of such limitation of liability, Customer may, as a matter of right, at any time, by entering into a supplemental agreement, obtain from BABACO a higher limit by paying an additional amount consonant with the increase of liability. This shall not be construed as insurance coverage.
k. LIQUIDATED DAMAGES. The parties agree that in the event Customer suffers damages as a result of BABACO’s negligence to any degree or failure to perform any obligation, it would be impractical and extremely difficult to anticipate or fix actual damages. Therefore, Customer agrees that should there arise any liability on the part of BABACO, Customer agrees to accept $250.00, or the amount provided for in paragraph k, whichever is greater, as liquidated damages in complete satisfaction of such liability and BABACO is released and discharged from any further liability.
l. CONFLICTING DOCUMENTS. Should there arise any conflict between this agreement and Customer's purchase order or other document, this agreement will govern, whether such purchase order or document is prior to or subsequent to this agreement.
m. NON-SOLICITATION. Customer agrees that it will not solicit for employment for itself, or any other entity, or employ, in any capacity; any employee of Babaco assigned by Babaco to perform any service for or on behalf of Buyer for a period of two years after Babaco has completed providing service to Buyer. In the event of Buyer’s violation of this provision, in addition to injunctive relief, Babaco shall recover from Buyer an amount equal to such employee's salary based upon the average three months preceding employee's termination of employment with Babaco, times twelve, together with Babaco's counsel and expert witness fees.
n. INSTRUCTIONS. Please read each page of the EULA and return both pages along with the signed order form. No order will be considered as received or accepted by Babaco until all sections of this document have been signed or initialed as required and either faxed (201 804 8717) or mailed to Babaco at 110 W Commercial Avenue Moonachie, NJ 07074.