THESE TERMS AND CONDITIONS APPLY TO ALL ORDERS WITH US AND ARE INTENDED TO SUPPLEMENT YOUR CONTRACT (IF ANY), SALES ORDER ACKNOWLEDGEMENT FROM US (IF ANY), OR PURCHASE ORDER FORM (IF IT IS A FORM PROVIDED BY US FOR YOUR USE). (“WE”, “OUR” AND “US” REFER TO GLOBAL TRACKING TECHNOLOGIES LTD, MYTRACKINGDEVICES.COM LLC and SUBSIDIARIES.
IN THE EVENT OF A CONFLICT, THE FOREGOING CONTRACT, PURCHASE ORDER FORM, OR SALES ORDER ACKNOWLEDGEMENT WILL CONTROL IN THAT ORDER OF PRECEDENCE. TO BE CLEAR, TERMS AND CONDITIONS STATED BY YOU THAT ADD TO, OR CONFLICT WITH, THESE TERMS AND CONDITIONS, ARE NOT BE BINDING ON US, AND WE HEREBY OBJECT THERETO.
TERM AND TERMINATION
Agreement may be terminated as follows: (i) if either party commits a material breach of any material term or condition of this Agreement, and the defaulting party fails to cure such breach within thirty (30) days after receiving written notice of the breach from the other party, or where the breach is incapable of remedy, the non-defaulting party shall have the right to terminate this Agreement upon written notice to the defaulting party at the end of such thirty (30) day period; and/or (ii) in the event that the Board of Directors of the other party adopts a resolution or plan concerning the liquidation, dissolution or winding up of that party; or (iii) in the event that the other party files any petition or other action under any bankruptcy, insolvency or other similar law, files a voluntary petition or other action in bankruptcy, is adjudicated bankrupt or insolvent, or if any general receiver or trustee in bankruptcy or insolvency is appointed to it, and such event is not cured within 60 days of receipt of such notice from the terminating party; and/or (iv) for any reason or no reason at all, by either party giving the other party 60 days’ written notice of termination. For the avoidance of doubt, termination by any party shall not affect confirmed orders or outstanding obligations. herein.
This Agreement may be terminated as follows: (i) if either party commits a material breach of any material term or condition of this Agreement, and the defaulting party fails to cure such breach within thirty (30) days after receiving written notice of the breach from the other party, or where the breach is incapable of remedy, the non-defaulting party shall have the right to terminate this Agreement upon written notice to the defaulting party at the end of such thirty (30) day period; and/or (ii) in the event that the Board of Directors of the other party adopts a resolution or plan concerning the liquidation, dissolution or winding up of that party; or (iii) in the event that the other party files any petition or other action under any bankruptcy, insolvency or other similar law, files a voluntary petition or other action in bankruptcy, is adjudicated bankrupt or insolvent, or if any general receiver or trustee in bankruptcy or insolvency is appointed to it, and such event is not cured within 60 days of receipt of such notice from the terminating party; and/or (iv) for any reason or no reason at all, by either party giving the other party 60 days’ written notice of termination. For the avoidance of doubt, termination by any party shall not affect confirmed orders or outstanding obligations.
SHIPPING/FREIGHT: Shipments are FOB the address specified on the reverse, with title and all risk of loss, damage, or delays passing to you at such point of shipment. You are responsible for all shipping and insurance charges, which you must pay directly to the carrier unless we are invoicing you for such charges. We offer drop shipping subject to confirmation on your company letterhead, which will be kept on file.
NON-RETURNABLE PRODUCTS: Demonstration/evaluation kits, including, but not limited to, Development Kits, Starter Kits, Integration Kits, Network Evaluation Kits, and Software Development Kits are not returnable unless defective. Special orders, stand alone software, and/or specially configured hardware are also not returnable unless defective. Defective development boards and demonstration/evaluation kits can be returned within 30 days for same model replacement only.
RETURNS: The information below is general in nature. All returns are subject to the applicable product warranty. Other terms and conditions may also apply.
• You must acquire a Return Material Authorization (RMA) number before returning any products. Contact our Returns Department at the number provided on the reverse. RMAs are valid for 10 days from the date of issue. The RMA number must appear on the return packing label or be clearly marked on the outside of the box.
• Returns must be shipped freight prepaid and insured for full replacement value FOB the specified address on the reverse. We are not liable for uninsured packages. Freight and insurance charges are non-refundable.
• Returns must be in “as new” condition in their original, unopened packaging, with all warranty cards, manuals, and unmodified accessories or be subject to a 15% restocking fee and/or return to you.
• Product returned after 30 days in lieu of full payment is subject to a 15% restocking fee. Product returned after 30 days, but for which payment has been made, is subject to a 10% restocking fee; credit remaining in your account will be applied to a future purchase.
REFUSED ORDERS: You are responsible for all shipping and handling fees for all refused orders. No additional orders will be shipped until fees are paid.
DISCREPENCIES AND DAMAGED FREIGHT: You must notify us within 3 business days of the receipt of your shipment of any shipping discrepancies or damage. Damaged shipments received via UPS, Federal Express, and/or DHL International should be noted with the carrier, then refused and returned to us for processing. Shipments via common carrier (i.e., Yellow Freight, EmeryWorldwide) must be accepted with all damage clearly noted on the bill of lading. A claim must then be placed with the carrier. Damage claims are the responsibility of the consignee.
PRICES AND SPECIFICATIONS: You will be invoiced the price prevailing at the time of order entry plus a destination and handling charge. Sales tax, where applicable, will be added to your invoice unless an acceptable resale/tax exemption certificate is provided. Where applicable you are responsible for all duties and taxes incurred when shipping internationally.
DEMONSTRATION EQUIPMENT AND USAGE: The evaluation period applicable to equipment and associated services, i.e., air time, provided for demonstration purposes or on a consignment basis is specified on the reverse. (It is typically 30 to 120 calendar days.) All demonstration equipment, including associated services, must be secured with a credit card, which will be charged if equipment is not returned in its original condition and packaging, inclusive of all warranty cards and manuals, within 10 calendar days of the expiration of the evaluation period. Other charges, i.e., charges for excess usage of services or allotted air time or charges for third party services accessed by you in connection with the use of our demonstration equipment, may apply.
PAYMENT: Payment of the invoiced amount shall be made in the amount and pursuant to the terms set forth on this invoice or as otherwise specified in your sales order acknowledgement or contract. If you fail to make a payment when due, your total outstanding balance across all invoices, including interest and costs as provided herein, will, on our demand, become immediately due and payable. Unless otherwise agreed, you must pay interest in the lesser amount of either 1.5% per month, or the highest rate permitted by law on past due amounts. You agree to pay all reasonable expenses including, without limitation, attorney’s fees incurred by us in exercising or enforcing any of our rights or remedies hereunder. Checks returned for any reason will be subject to a £40.00 service charge.
INTELLECTUAL PROPERTY. We and/or our licensors own(s) and will continue to own all title, rights, and other interests, including all intellectual property rights, in and to all products we sell (and associated data, specifications, designs, documentation, software, and firmware) and any improvements you may make, and you only have a right to resell products as authorized by us. Reverse engineering is prohibited.
INDEMNIFICATION. You agree to defend, hold harmless, and indemnify us and our affiliates from and against any and all damages, liability, costs, and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or relating to any claim for negligence, intentional misconduct, or malfeasance on your part ; any claim for personal injury, death, or property damage allegedly or impliedly caused by you or your employees, agents, or representatives ; and any claim your use or resale of our products infringes the intellectual property rights of a third party.
LIMITED WARRANTY: SUBJECT TO THE LIMITATIONS SET FORTH BELOW, AND EXCEPT AS OTHERWISE AGREED IN WRITING, WE WARRANT THAT FOR THE LESSER OF 1 YEAR FROM THE DATE OF ACTIVATION OR THE TIME PERIOD SPECIFIED IN THE APPLICABLE MANUFACTURER’S WARRANTY FOLLOWING THE DATE ON WHICH FIRST ACTIVATED (THE “WARRANTY PERIOD”), PRODUCTS THAT ARE THE SUBJECT OF THIS INVOICE WILL BE FREE OF DEFECTS IN MATERIALS AND WORKMANSHIP WHEN INSTALLED, USED, SERVICED, AND OPERATED IN STRICT ACCORDANCE WITH OUR AND THE MANUFACTURER’S REQUIREMENTS. IF A PRODUCT FAILS TO OPERATE BECAUSE OF A DEFECT IN MATERIALS OR WORKMANSHIP WITHIN THE WARRANTY PERIOD, WE WILL, AT OUR SOLE OPTION AND AT NO CHARGE TO YOU, REPAIR OR REPLACE IT OR ARRANGE FOR ITS REPAIR OR REPLACEMENT. OUR AGREEMENT TO REPAIR OR REPLACE PRODUCTS OR PARTS THEREOF FOUND TO BE DEFECTIVE IN MATERIALS OR WORKMANSHIP IS THE EXCLUSIVE REMEDY PROVIDED HEREIN; THIS REMEDY WILL NOT BE DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE SO LONG AS WE RE WILLING AND ABLE TO REPAIR OR REPLACE ANY SUCH DEFECTIVE PRODUCTS PARTS THEREOF OR, AT OUR SOLE OPTION, TO REFUND THE PURCHASE PRICE PAID. PRIOR TO RETURNING ANY PRODUCT ALLEGED TO BE DEFECTIVE, BUYER MUST REQUEST AND RECEIVE AN RMA. PRODUCT THAT IS RETURNED AND PROVES NOT TO BE DEFECTIVE WILL BE SUBJECT TO A 15% RESTOCKING FEE.
NO OTHER WARRANTY: THE FOREGOING WARRANTY IS LIMITED. WE MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE, AND ANY SUCH WARRANTIES ARE HEREBY DISCLAIMED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DO NOT WARRANT OR REPRESENT, AND SPECIFICALLY DISCLAIM, ANY WARRANTY OR REPRESENTATION, THAT THE PRODUCTS THAT ARE THE SUBJECT OF THIS INVOICE WILL MEET YOUR REQUIREMENTS OR CUSTOMER’S REQUIREMENTS OR THAT OUR PROVISION OF ASSOCIATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE WARRANTY SET FORTH ABOVE FURTHERMORE DOES NOT COVER (A) PRODUCTS THAT HAVE BEEN TAMPERED WITH IN ANY WAY OR SERVICED WITHOUT OUR AUTHORIZATION; (B) PRODUCTS WITH IDENTIFYING INFORMATION OR LABELING ALTERED OR REMOVED; OR (C) PRODUCTS SUBJECTED TO ABUSE, MISUSE, OR NEGLECT INCLUDING, WITHOUT LIMITATION, USE IN A HOSTILE OPERATING ENVIRONMENT UNLESS EXPRESSLY APPROVED BY US FOR SUCH USE.
LIMITATIONS OF LIABILITY: WE ARE NOT LIABLE FOR INTERRUPTIONS IN, OR INTERFERENCE WITH, THIRD PARTY TELECOMMUNICATIONS CARRIERS’ TRANSMISSIONS OVER WHICH WE HAVE NO CONTROL, I.E., FOR TRANSMISSION LIMITATIONS OR ERRORS CAUSED BY NETWORK CONGESTION, WEATHER, ATMOSPHERIC CONDITIONS (I.E., SPACE DEBRIS, SOLAR FLARES, AND OTHER ATMOSPHERIC ANOMALIES OR DISTURBANCES), MAGNETIC INTERFERENCE, TERRAIN, STRUCTURES, LOCALIZED “GAPS” IN TELECOMMUNICATIONS NETWORK COVERAGE, CIVIL DISTURBANCE, TERRORISM, “ACTS OF GOD”, OR OTHER NATURAL OR ARTIFICIAL CONDITIONS OVER WHICH SELLER HAS NO CONTROL. WE ARE NOT LIABLE FOR ANY ACT OR OMISSION OF YOU, YOUR CUSTOMERS, END USERS, OR ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY TELECOMMUNICATIONS CARRIER OR ENTITY FURNISHING EQUIPMENT, SOFTWARE, FIRMWARE, OR SERVICES TO US, BUYER, BUYER CUSTOMERS, OR END USERS, NOR ARE WE LIABLE FOR ANY DAMAGES ATTRIBUTABLE, IN WHOLE OR IN PART, TO THE FAILURE OF SAID EQUIPMENT, SOFTWARE, FIRMWARE, OR SERVICES. WE ARE NOT LIABLE IF
OUR NETWORK SERVICES BECOME UNAVAILABLE OR ARE INTERRUPTED BECAUSE A CARRIER TERMINATES ITS AGREEMENT WITH US OR AN AFFILIATE, SUSPENDS OR STOPS PROVIDING SERVICE TO US OR AN AFFILIATE, EXCERISES ITS RIGHT TO PREVENT YOU, YOUR CUSTOMER, OR AN END USER FROM RECEIVING OR UTILIZING OUR OR ITS NETWORK SERVICES, CHANGES ITS TECHNOLOGY, OR DOES ANYTHING THAT CAUSES OUR OR YOUR EQUIPMENT, PRODUCTS, SOLUTIONS, OR APPLICATIONS TO BECOME INCOMPATIBLE WITH ITS TECHNOLOGY. TO THE EXTENT YOU INTEGRATE, INCORPORATE, OR COMBINE OUR PRODUCTS OR SERVICES WITH PRODUCTS, SERVICES, OR APPLICATIONS OTHER THAN OUR PRODUCTS OR SERVICES, YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT ANY SUCH COMBINATION OR APPLICATION OPERATES AS INTENDED. WE ARE NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST DATA, REVENUES, OR PROFITS, REGARDLESS OF WHETHER WE WERE ADVISED OF, OR COULD HAVE REASONABLY FORESEEN, THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL OUR AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES OF ANY NATURE IN EXCEED THE AMOUNTS INVOICED TO YOU BY US DURING THE 90 CALENDAR DAYS PRECEDING THE EVENT GIVING RISE TO THE SUBJECT CLAIM.