Last Updated Nov 28, 2018

  1. Agreement to Terms. BY USING THE SERVICES PROVIDED BY CLEARPATHGPS, INC. (“ClearPathGPS”), YOU (“Customer”) AGREE TO BE BOUND BY THESE TERMS INCLUDING ANY POLICIES OR OTHER TERMS REFERENCED IN OR INCORPORATED BY THESE TERMS. BY ACCEPTING THIS AGREEMENT, SIGNING UP FOR AN ACCOUNT OR BY EXECUTING AN ORDER FORM, OR ANY OTHER FORM OF ORDERING THE SERVICES, THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL ALSO REFER TO SUCH ENTITY AND ITS AFFILIATES COLLECTIVELY (“Customer”). IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
  2. Purpose. Customer intends to utilize the ClearPathGPS, Inc. asset visibility service (the “Service”) pursuant to this Standard Service Agreement (this “Agreement”) for lawful purposes only. The Service combines web-based software and maps with GPS tracking devices that communicate via cellular and/or satellite communications, (“Hardware”) to allow customers to locate, track, and manage important vehicles and/or equipment (the “Assets”). ClearPathGPS will provide Customer with access to the Service via the World Wide Web. The Services are intended only for routine ascertaining of location, asset status and business information and in no way are intended to be used in emergency situations or for the prevention of crime. Customer acknowledges that all data is for informational purposes only and are not guaranteed accurate when used for financial, legal, contractual, billing, government regulation compliance or any other such enforcement purposes. Customer acknowledges that ClearPathGPS may, for its internal test and quality control purposes, without charge to the Customer, locate or communicate with Hardware used by the Customer.
  3. Prices & Payment. ClearPathGPS charges a recurring subscription fee (“Subscription Fee”) for each asset subscribed to the Service and certain other components required to provide the Service. The Subscription Fee will be as agreed to by Customer and ClearPathGPS on the signed Quote. Prices as shown in ClearPathGPS quotations typically do not include any taxes on the Service. Customer shall report and pay all federal, state, and local taxes designated, levied, or based upon the Service. Unless otherwise set forth on an invoice and agreed to in advance by Customer, payments are due in advance of service on the renewal date established on the initial order. In the event Customer Subscription Fee is not paid within 10 days of the due date, ClearPathGPS may suspend and/or cancel Service without notice. The Subscription Fee in place at the beginning of the Term will not be changed for the duration of the Term (defined below).
  4. Service Start Date. The Service Start Date (the “Service Start Date”) is determined by the date that Hardware is provided to Customer. Unless otherwise agreed by the parties, the Service Start Date will be the date that Hardware is shipped to the Customer or, if Hardware is to be installed by ClearPathGPS, the Service Start Date will be the date that the installation of the Hardware is complete. In the event that ClearPathGPS does not provide Hardware to Customer, the Service Start Date for each asset shall be the date that each asset is activated on the ClearPathGPS system.
  5. Term & Cancellation. The initial term of this Agreement (the “Initial Term”) shall be as stated on the quote signed by the Customer and ClearPathGPS. Upon expiration of the Initial Term, this Agreement shall automatically renew for an unlimited number of successive 1 month renewal terms or as agreed to in writing by ClearPathGPS (each, a “Renewal Term” and any Renewal Terms together with the Initial Term, collectively the “Term”), unless either Customer or ClearPathGPS provides the other party with written notice of its intention to not renew this Agreement at least 30 days prior to the expiration of the Initial Term or the applicable Renewal Term.
  6. Installation. ClearPathGPS shall install Hardware using a qualified person or agency into Customer’s Assets at a location mutually agreed to by ClearPathGPS and Customer (the “Site”). Unless otherwise agreed to in writing by ClearPathGPS, Customer will be responsible for all Installation costs, including, but not limited to, travel costs and overtime. ClearPathGPS shall have the right to subcontract the installation in whole or part and shall notify Customer of the details of the subcontractor appointed on request. The installation of Hardware shall be completed within a reasonable period of time. ClearPathGPS may charge the Customer a surcharge for waiting time and other delays associated with installation caused by the Customer’s failure to have the Site or Assets available as agreed with ClearPathGPS. In the event all, or a portion, of Customer’s assets are not available at the previously agreed time and location of installation (“No Show”), ClearPathGPS may adjust the installation price to reflect the actual quantity available and may charge Customer additional fees and travel expenses to reschedule and return to same or alternate location to complete the installation project. All changes or cancellations to scheduled installation services must made with at least 24 hours notice or additional fees may be applied. ClearPathGPS warrants the installation of Hardware for 90 days. All warranty claims must be in writing to ClearPathGPS. Customer shall provide a Site which meets the following standards:The Site shall be safe and present no hazards; All necessary utilities (including plumbing, lighting, electrical power) shall be easily accessible and provided without charge to ClearPathGPS; ClearPathGPS stipulates that Customer, at its sole expense, currently maintains a policy of general liability insurance covering any liability arising out of ClearPathGPS’s use or occupancy of the Site and all appurtenant areas during the period of installation; Customer shall indemnify and hold harmless ClearPathGPS from and against any and all liabilities, including reasonable attorney’s fees arising from ClearPathGPS’s use of the Site or the condition of the Site; and Customer shall allow ClearPathGPS, its authorized agents, and subcontractors full and free access to the Site at agreed and scheduled installation times during Business Hours and shall not require that ClearPathGPS waive any claim arising from its use of the Site or impose any other restrictions as a requirement of access to the Site. ClearPathGPS shall attempt to honor any Customer requests for installation during non-Business hours, but may charge the Customer a surcharge for such installation.
  7. Customer Self Installation. In the event that Customer chooses to manage the installation of the Hardware without using ClearPathGPS installation services, Customer will not have the protection of the 90 day Hardware installation warranty in item 5 above. No Hardware installation warranty is implied or granted unless ClearPathGPS installs the Hardware directly or sub-contracts the Hardware installation to a designated ClearPathGPS installation partner. Certain vehicles or installation configurations may require professional installation, additional equipment or modifications to your vehicles. If you are uncertain that you have the requisite skills and understanding to install our Products, you must consult with an authorized ClearPathGPS installer. Improper installation can lead to short circuits and the risk of fire, leading to personal injury or significant damage to your vehicle. Installation or servicing may also require modifications to your vehicle. Failure to comply with procedures specified in the installation instructions for a Product, or attempting to install our Products without adequate knowledge of our Products, proper installation, configuration, servicing, repair or removal procedures, or your vehicle, may result in damage to the Product or your vehicle, which may cause malfunctions of vehicle controls or vehicular environmental systems and result in personal injury. You understand that any such activities not performed by an authorized ClearPathGPS installer will be at your sole risk. You hereby release and forever discharge, and will indemnify and hold harmless, us, our affiliates, resellers and agents and their directors, officers, employees and representatives from any and all losses, actions, causes of action, liability, claims, demands, penalties, costs, expenses (including legal fees and disbursements on a full indemnity basis), judgments and damages of any nature or kind whatsoever, whether under contract, tort, or any other theory of law or equity, which you or any other third party has or will have, arising or accruing from, as a result of, in relation to, or in connection with, same.
  8. Battery Maintenance. The Hardware is an electronic assembly that consumes electrical current. They are designed to draw low amounts of current when the Asset is not being operated and therefore there is a small drain on the Asset battery that may adversely affect Assets that are not in regular operation. ClearPathGPS is not liable for any consequences of the battery drain associated with use of Hardware and recommends that the Asset battery should be recharged periodically to ensure maximum performance.
  9. Limited Hardware Warranty. Subject to the limitations set forth in this Agreement, ClearPathGPS warrants that for one year from that date that ClearPathGPS submits an invoice for such Hardware (the “Warranty Period”), Hardware provided with the Service or purchased from ClearPathGPS will be free of defects in materials and workmanship when installed, operated, and serviced in strict accordance with ClearPathGPS’s and the manufacturer’s requirements. If: (a) Hardware fails to operate because of a defect in materials or workmanship within the Warranty Period; (b) the failed Hardware is actively subscribed to the Service; and (c) Customer’s account is in good standing, ClearPathGPS will, at its sole option and at no charge to Customer, repair or replace the Hardware or arrange for the Hardware’s repair or replacement. Customer is responsible for removal and replacement of failed Hardware and shall return failed Hardware to ClearPathGPS within 30 days. THE WARRANTY SET FORTH ABOVE DOES NOT COVER (1) HARDWARE THAT HAS BEEN TAMPERED WITH OR SERVICED WITHOUT CLEARPATHGPS’ AUTHORIZATION; (2) HARDWARE THAT HAS BEEN LOST OR STOLEN; (3) HARDWARE THAT IS DESIGNED TO BE CONSUMABLE, SUCH AS, BUT NOT LIMITED TO, BATTERIES; OR (4) HARDWARE SUBJECTED TO ABUSE, MISUSE, NEGLECT, OR HOSTILE OPERATING ENVIRONMENTS.
  10. Follow-on Orders. Customer may order additional Hardware or purchase additional Service subscriptions following the initial Service order made pursuant to this Agreement. Such follow-on orders will be subject to the terms and conditions of this Agreement with a Service Start Date for the additional subscriptions determined as set forth in Section 3 above. Such follow-on orders will not affect the Term or Service Start Date for previous orders.
  11. Software License Grant. Software provided to Customer for use in connection with the Services is licensed to Customer and not sold. ClearPathGPS grants to Customer a non-transferable, non-exclusive license to use, display, and print the Software during the Term of this Agreement. Unless otherwise agreed in writing, Customer may provide access to Software to its end-users solely for use in connection with the Services only for purposes relating to Customer’s business and not for redistribution, remarketing, or any other use. Customer acknowledges that ClearPathGPS may modify the Software at any time for any reason.
  12. Software Ownership. ClearPathGPS retains all right, title, and interest in and to the Software in all forms, including all modifications, customizations, and derivative works thereof, including all worldwide rights to patents, copyrights, trademarks, and trade secrets in or relating to the Software. Other than the license granted under Section 9, Customer is not acquiring any right, title, or interest of any nature whatsoever in any Software or derivative works thereof. Any rights not expressly granted herein are reserved to ClearPathGPS.
  13. Software License and Maintenance Fees. Unless otherwise agreed, ClearPathGPS does not charge Software license and maintenance fees. All Software license and maintenance fees are included in the Service Subscription Fees.
  14. Service Levels. Web and data services provided by ClearPathGPS will generally be available 99.5% of the time as measured by ClearPathGPS on a monthly basis (the “Service Level”). ClearPathGPS will use commercially reasonable efforts to maintain the Service Level. In the event that ClearPathGPS is unable to provide the Service Level for a period of ten consecutive days, Customer may cancel the remaining term of any contract for the affected Service, without penalty, provided that ClearPathGPS is notified in writing one month in advance and that ClearPath GPS has been provided the opportunity to provide a reasonable remedy. The Service Level described in this Section 14 only covers Software and ClearPathGPS web-based systems and excludes downtime caused by the following: routine scheduled maintenance, hardware related failures outside of the conditions covered under any hardware warranty, communication and networking issues, and Force Majeure Events (as defined in Section 20 below)
  15. Customer Data. ClearPathGPS does not own any data, information, or material that Customer submits, or a third party submits on behalf of the Customer, to the Service in the course of using the Service (“Customer Data”). Customer, not ClearPathGPS, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and ClearPathGPS shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data. ClearPathGPS will not disclose, distribute, sell, share, rent, or otherwise transfer any Customer Data to any third party, except as approved in writing by Customer or otherwise compelled to do so under applicable law. In the event that Service is terminated, ClearPathGPS will make available to Customer a file of the Customer’s raw tracking data, provided a written request is submitted prior to service being terminated. Customer hereby grants permission to ClearPathGPS to copy, anonymize, aggregate, process and display Customer Data to derive anonymous statistical and usage data, and data about the functionality of the Service, provided such data cannot be used to identify Customer or its individual users (“Anonymous Data”), for the purposes of combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so combined or incorporated, referred to as “Aggregate Data”), so as to permit ClearPathGPS to provide services including the copying, publication, distribution, display, licensing or sale of Aggregate Data and related or similar other statistics or data to third parties. ClearPathGPS retains customer data for the period specified in the subscribed Service Plan. After the data retention period has passed data is automatically purged and cannot be subsequently retrieved. ClearPathGPS, at Customer’s request, may make Customer Data available to third parties via our API (Application Programming Interface). ClearPathGPS makes no guarantees and assumes no responsibility or liability for the applicability, accuracy, availability, data security or any other use of your data through our API by third parties.
  16. Limited Liability. CLEARPATHGPS SHALL NOT HAVE ANY LIABILITY TO CUSTOMER OR TO ANY OTHER PERSON FOR CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF THIS AGREEMENT IN EXCESS OF THE SUBSCRIPTION FEES ACTUALLY RECEIVED BY CLEARPATHGPS DURING THE PRECEDING SIX MONTHS FROM CUSTOMER. IN NO EVENT SHALL CLEARPATHGPS BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFIT, REVENUE OR DATA, FINES OR BUSINESS INTERRUPTION) ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT.
  17. Communications & Networks. ClearPathGPS shall not be liable for interruptions in, or interference with, third party telecommunications carriers’ cellular, satellite, terrestrial, or other transmissions over which it has no control, including, but not limited to, transmission limitations errors caused by network congestions, weather, atmospheric conditions (such as space debris, solar flares, and other atmospheric anomalies or disturbances), magnetic interference, terrain, structures, localized “gaps” in telecommunications network coverage, civil disturbances, Force Majeure Events (as defined in Section 19 below), or other natural or manmade conditions over which ClearPathGPS has no control. ClearPathGPS is not responsible for issues related to the condition of Customer’s computers, equipment, communications networks, the internet, or other public networks. Customer expressly understands and agrees that it has no contractual relationship with the underlying wireless service provider or its affiliates or contractors and that Customer is not a third party beneficiary of any agreement between ClearPathGPS and the underlying carrier. In addition, Customer acknowledges and agrees that the underlying carrier and its affiliates and contractors shall have no legal, equitable, or other liability of any kind to Customer and Customer hereby waives any and all claims or demands thereafter.
  18. SIM Card Use. The Subscriber Identity Module Smart Card or “SIM card” that may be included with the Hardware, is to be used exclusively in the Hardware provided by ClearPathGPS for use with the Service provided by ClearPathGPS. ClearPathGPS is not liable for any Carrier charges for data, SMS or voice connectivity if the SIM card is installed in a device not provided by or authorized in writing by ClearPathGPS. Customer agrees to reimburse ClearPathGPS for any Carrier charges due to unauthorized use.
  19. Carrier Data Network Upgrades. ClearPathGPS sells Hardware that uses cellular data networks provided by third-party Carrier companies such as T-Mobile, Verizon and AT&T with currently available standards such as 2G, 3G, 4G and other networks that may become available in the future. ClearPathGPS makes no warranty as to the availability of those networks over time as new technology becomes available and Carriers make upgrades to, or decommission, old networks. In the event a Carrier discontinues a network, such as 2G or 3G, Customers may have to purchase and install new Hardware for the Service to be compatible with future technology unless their Service plan with ClearPathGPS specifically covers such upgrades. Customers should choose which Hardware to purchase with the knowledge of the Carriers stated plans for the longevity of the chosen network.
  20. Force Majeure. Neither party shall be liable for failure to perform its obligations hereunder if such non-performance is attributable to an act of God, war, terrorism, power outage, supply shortages, fire, or other casualty, acts of any governmental body, or other conditions beyond the non-performing party’s reasonable control (collectively, “Force Majeure Events”), but only for the time and to the extent such non-performance is occasioned by such an event.
  21. Governing Law; Arbitration. This Agreement shall be governed and construed by the laws of the State of California without regard to conflicts of law principles. The Parties agree that any claim or dispute between them or against any agent, employee, successor, or assign of the other, whether related to this Agreement or otherwise, and any claim or dispute related to this Agreement or the relationship or duties contemplated under this contract, including the validity of this arbitration clause, shall be resolved by binding arbitration conducted by the American Arbitration Association in Santa Barbara, California, under the Arbitration Rules then in effect. Any award of the arbitrator(s) may be entered as a judgment in any court of competent jurisdiction. Information may be obtained and claims may be filed at any office of the American Arbitration Association or on their website at www.adr.org. The provisions of the Federal Arbitration Act shall apply to the extent not in conflict with the governing law provisions set forth in this Agreement.
  22. Suspension and Reactivation of Units. Customer may elect to Suspend the Service on their Hardware at any time and for any length of time by notifying ClearPathGPS. During the period the Hardware is Suspended (“Suspension Period”) the Customer will be billed a $5.00 maintenance fee per month. During the Suspension Period the Hardware will not collect or transmit any data. Customer may end the Suspension Period by notifying ClearPathGPS and the Hardware will resume the collection and transmission of data. Normal Service charges will resume upon the end the of the Suspension Period. If Customer elects to cancel Service on any Hardware, they may Reactivate the Service at any time but will be subject to an Activation fee that will be a minimum of $45 plus any additional service charges for upgrades, installation services, shipping or travel.
  23. Delivery; Title; and Risk of Loss. Unless otherwise agreed to in writing, ClearPathGPS shall deliver all Hardware Free On Board (“FOB”) at the ClearPathGPS facility in Santa Barbara, California, and title to and risk of loss of the Hardware will pass to the Customer upon such delivery by ClearPathGPS. Any stated delivery dates are approximate. ClearPathGPS will not be liable for any losses, damages, penalties, or expenses for failure to meet any delivery date.
  24. Disclosure. Customer shall inform its drivers, or other authorized users, of Vehicles that such Vehicle has been enabled with ClearPathGPS Services and that the ClearPathGPS Services include the collection of data points associated with the Vehicle’s location and manner of operation. Any use of ClearPathGPS mobile apps or other services provided by ClearPathGPS is absolutely prohibited while driving. Customer assumes full responsibility for ensuring it’s drivers comply with this provision at all times.
  25. Transfer and Assignment. The Agreement is fully assignable and transferable by ClearPathGPS to any person or entity and shall inure to the benefit of such assignee or successor. Customer may not assign the Agreement without the prior written consent of ClearPathGPS, except that Customer may, without ClearPathGPS’ consent, assign the Agreement: (a) to Customer’s 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 Customer and to which Customer has sold all or substantially all of its assets, provided that Customer has advised ClearPathGPS in writing of such assignment and Customer remains liable for any obligations or liabilities arising under the Agreement.
  26. Electronic Driver Logs. Customer assumes sole responsibility for understanding rules and regulations regarding driving logs, accuracy of driver logs and for complying with all state and federal regulations including, but not limited to, FMCSA Hours of Service of drivers. ClearPathGPS is not responsible for any fines, penalties or restrictions of any kind placed on Customer by any government agency for violations or non-compliance with any rule or regulation. ClearPathGPS assumes no liability beyond that already stated in item 16 above.
  27. Route4Me. If Customer is purchasing Route4Me, Inc. products or services through ClearPathGPS, Customer agrees to be bound by the Route4Me Master Subscription Agreement.