TERMS OF SALE AND SERVICE Please read this document carefully! It contains very important information about your rights and obligations as well as limitations and exclusions that may apply to you. This is a legally binding agreement between you and Peak GPS, a division of Thrifty GPS, LLC. (“Vendor”).
By clicking “I Agree” below, you indicate your agreement to all of the terms and conditions set forth below.
Section 1. Your Agreement with Vendor – Peak GPS is a GPS Appliance product that utilizes a cellular telephone technology (the “Device”) to transmit GPS information to servers so that current and historical location, heading, and speed information about the vehicle can be viewed through an online browser-based application provide by Vendor (the “Website”). The terms and conditions of this agreement apply to your purchase of the Product, your use of the Website, and the services and support provided by Vendor relating to the Product and the Website. From time to time, Vendor may change the terms and conditions of this agreement with respect to use of the Website and with respect to any services provided under this agreement. Vendor will notify you of any such change when you next login to the Website, and if you do not agree to the proposed revised or replaced agreement, this agreement will not renew at the end of that month and you will not be entitled to further access to the Website after the end of that month. If you have more than one user ID, you agree that any user accessing the Website is authorized to accept such a revised or replaced agreement. VENDOR DOES NOT OFFER ANY WARRANTIES FOR THE PRODUCT, THE Website, OR ANY SERVICES OR SUPPORT PROVIDED BY VENDOR. THIS AGREEMENT LIMITS VENDOR’S LIABILITY. THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION CLAUSE.
Section 2. Term of Agreement – The term of this agreement is month-to-month. Unless sooner terminated as provided herein, this agreement will expire on the last day of each calendar month and will renew automatically for an additional calendar month unless you notify Vendor of your election not to renew at least five days prior to the last day of the month.
Section 3. Price and Payment Terms – Terms of payment are within Vendor’s sole discretion, and unless otherwise agreed to by Vendor, payment must be received by Vendor prior to Vendor’s acceptance of an order. Vendor is not responsible for pricing, typographical, or other errors in any offer by Vendor and reserves the right to cancel any orders resulting from such errors. Vendor reserves the right to reject any sale for any reason. Payment for Devices must be made by credit card (Visa, MasterCard, or American Express) through Vendor’s online order form. Orders are not binding upon Vendor until accepted by Vendor. Payment for access to and use of the Website, and payment for any other services or support provided to you by Vendor for which a separate charge is applicable, will be invoiced on a periodic basis. Invoices are due and payable within the time period noted on the invoice, measured from the date of the invoice. Payments not received by the due date thereof shall accrue interest from such due date at the rate of 1% per month or, if less, at the highest rate permitted by applicable law. Prices advertised and shown on Vendor’s online order form do not include shipping and handling or applicable sales taxes or other taxes, which will be added to the price you pay.
Section 4. Shipping and Title: Inspection of Products Upon Receipt – Vendor will arrange shipping of the Devices to your address using a carrier of Vendor’s choice. Title to the Devices passes to you when Vendor delivers them to the carrier. Vendor will not be responsible for delays in delivery due to events beyond its control, including shortage of materials, labor strikes, transportation failure, or acts of God. You must examine the Devices when you receive them. If any item is damaged or missing, you must notify Vendor at once. Vendor will not consider any claim for damaged or missing items more than seven days from the date of delivery.
Section 5: Returns – You may return the Device to Vendor for a full refund (not including shipping and handling charges) in new, unused condition and original packaging.
Section 6: Limited Warranty on Device Components – Vendor warrants to the original purchaser of the Device that the Device will be free from defects in materials and/or workmanship from the shipping date for a period of 1 Year, unless otherwise specified. During this warranty period, Vendor will, at its option, repair or replace a defective Device. This warranty does not cover damage due to external causes, including without limitation accident, abuse, misuse, problems associated with electrical power, problems caused by failure to provide a suitable environment or proper installation for the Device, or use not in accordance with Device instructions. If Vendor repairs or replaces Device, its warranty term is not extended. You must notify Vendor during the warranty period in order to be eligible to receive warranty service under this Vendor warranty.
THE ABOVE LIMITED WARRANTY IS THE ONLY WARRANTY FROM VENDOR APPLICABLE TO THE DEVICES, AND THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT. VENDOR HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE (WHETHER OR NOT VENDOR KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR OTHERWISE IS IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. THE ABOVE WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
Section 7 Website Subscription: Phone Software License – Vendor grants you a personal, revocable, non-exclusive, non-assignable license during the term of this agreement, so long as you comply with all terms and conditions of this agreement, to use the Website and to possess and use the Software on the cellular telephone to which Vendor installed it. You may not do any of the following: (a) permit any other company or any individual who is not your employee or independent contractor to use your account on the Website; (b) rent, lease, resell, assign, or otherwise transfer rights or access to the Website or the Software; (c) distribute, copy, reproduce, display, republish, or transmit any portion of the Website or the Software; (d) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based upon the Website or the Software or any software or programming related thereto; (e) “frame” or “mirror” any portion of the Website, or access the Website in any way other than by the interfaces provided by Vendor; (f) use any robot, spider, other automatic device, or manual process, to “screen scrape,” monitor, “mine,” or copy any portion of the Website; (g) use any device, software, methodology, or routine to interfere with the proper working of the Website or servers or networks connected to the Website; (h) access data of which you are not an intended recipient or log into a server or account on a network related to the Website that you are not expressly authorized to access; (i) harvest or collect information about other Website users; (j) restrict or inhibit any other person from using the Website, including without limitation by means of “hacking” or defacing any portion of the Website; (k) use any portion of the Website as a destination linked from any unsolicited bulk messages or unsolicited commercial messages; (l) in any other way interfere with or disrupt the proper operation of the Website or use the Website in a way that harms Vendor or any customer of Vendor; or (m) attempt to do, or assist anyone else with doing or attempting, any of the foregoing.
Section 8. Logon and Password – Vendor will send you a unique user ID and password to the email address designated by you when placing your order. Upon request, Vendor will provide a reasonable number of additional user IDs for additional of your personnel, but Vendor reserves the right to limit the number of such user IDs or the number of such users who may access the Website simultaneously. Each such user ID, with the correct password, permits access for the user thereof to the Website. You agree that any such user is authorized to (i) accept any revision to or replacement of this agreement as provided in Section 1, (ii) view and modify any preferences or other information specific to your account that is available through the Website, and (iii) act on your behalf with Vendor in any matter related to this Agreement, including without limitation matters of billing and payment. You are responsible for the security of your password(s) and for any use of your account. You may request revocation of a user ID by sending Vendor email to firstname.lastname@example.org. User IDs will be cancelled as soon as practicable after Vendor’s receipt of such notice.
Section 9. Your Profile; Notification by email – There may be information regarding the Website or your account that the law requires Vendor to send you or that Vendor believes you should be made aware of. Vendor may send you this information in electronic form, and you must provide a valid email address during the ordering process for this purpose. You consent to receive any notices electronically. Vendor will not use your email address for any other purpose and will not sell or rent it to any other party.
Section 10. Taxes – You are responsible for and shall pay when due (and Vendor at its discretion may collect and pay on your behalf) all taxes based on or in any way measured by articles sold and Website access granted pursuant to this Agreement or any portion thereof, or any services related thereto, excluding taxes based on the Vendor’s net income, but including without limitation sales and use taxes and personal property taxes, if any.
Section 11. Privacy – Vendor may access or disclose information about you, your account, and/or the content of your communications, in order to comply with the law or applicable legal process, to enforce and investigate potential violations of this agreement, or to protect the rights, property, or safety of Vendor, its employees, its customers, or the public. You consent to such access and disclosures. Vendor may use technology or other means to protect the Website, to protect its customers, or stop you from breaching this agreement.
Section 12. Rights in the Website and Software – The rights granted to you in this Agreement do not confer or assign to you any proprietary rights in the Website or the Software, all of which are retained by Vendor and/or its licensors.
Section 13. Modification of the Website: Termination of this Agreement – Vendor may place limits on, modify, suspend, or terminate the Website generally and may suspend or terminate your use of the Website if you fail to comply with this agreement. If Vendor terminates the Website or your use of the Website, this agreement will terminate automatically, but Sections 15 through 18 shall continue to be effective after this agreement is terminated.
Section 14. Indemnification – You agree to defend or settle any third-party claim against Vendor, and otherwise to hold Vendor and its directors, officers, employees, agents, and affiliates harmless from all losses and costs (including without limitation reasonable attorney fees and expenses), arising from or related to your use of the Website.
Section 15. Exclusion of Warranties on Website: Errors and Interruptions – VENDOR PROVIDES THE Website “AS-IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” VENDOR DOES NOT MAKE ANY EXPRESS WARRANTIES OR GUARANTEES, AND VENDOR DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY, WORKMANLIKE EFFORT, OR FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE (WHETHER OR NOT VENDOR KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR OTHERWISE IS IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. THE WEBSITE IS DEVELOPED FOR USE IN THE UNITED STATES, AND VENDOR DOES NOT MAKE ANY REPRESENTATION CONCERNING THE USE IN ANY OTHER COUNTRY. VENDOR SHALL NOT BE LIABLE FOR ANY INACCURACY IN DATA OR INFORMATION PROVIDED THROUGH THE WEBSITE OR FOR ANY LOSS OF OR FAILURE TO RETAIN ANY DATA.
You acknowledge that the operation of the Website and reports and information produced from it will not be error free in all circumstances, that all defects in the Website may not be corrected, and that the operation of the Website may be interrupted for periods of time by reason of defect therein or by reason of fault on the part of Vendor. You also acknowledge that because the Device uses cellular telephone technology to provide GPS coordinate data to the Website, there can be no assurance that all information provided through the Website as to location, speed, and heading of a vehicle will be accurate (by way of example, but without limitation, if GPS signaling is not available to Device, the phone may report coordinates for the closest cellular tower). You agree that the Website is a tool only and that you will not rely on such information for any purpose. You further acknowledge that from time to time, because of operating system updates to the Device or other causes, the cellular telephone in the Device may have to be. You also acknowledge that the cellular telephone in the Device may be damaged or may fail to operate properly in extreme conditions such as hot or cold temperatures.
Section 16. Limitations of Liability – VENDOR WILL NOT BE LIABLE TO YOU (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM YOUR RIGHTS) FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES (INCLUDING WITHOUT LIMITATION INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND), WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER VENDOR WAS ADVISED, HAD OTHER REASON TO KNOW, SHOULD HAVE ANTICIPATED, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES OR THAT DIRECT DAMAGES WOULD NOT BE A SATISFACTORY REMEDY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL VENDOR’S TOTAL LIABILITY WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT EXCEED THE MAPPING SERVICE FEES PAID BY YOU FOR THE Website. THESE LIMITATIONS APPLY EVEN IF THE REMEDY AVAILABLE TO YOU DOES NOT FULLY COMPENSATE YOU FOR YOUR LOSS OR FAILS OF ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION ARE INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.
Section 17. General Legal Provisions – This agreement is the entire agreement between you and Vendor related to the Website, replacing any prior agreements. If there is any conflict between this agreement and a signed written agreement between you and Vendor related to the Website, the signed written agreement will control. This agreement is governed by Tennessee law, excluding Tennessee’s choice-of-law rules. Nothing in this agreement limits either party’s ability to seek equitable relief. The section titles in this agreement do not limit the other terms of this agreement. Any claim related to this agreement or the Website may not be brought unless brought within the 60 day period beginning on the date when the claim first could be filed. If it is not filed, then that claim is permanently barred. This applies to you and your successors as well as to Vendor and its successors and assigns. Any notice to Vendor must be made by mail to Peak GPS Notices, 5958 Snow HIll Rd, Suite 144 #146, Ooltewah, TN 36363. Except for the purposes expressly set forth in this Agreement, Vendor does not accept email notices. Failure to enforce any provision will not constitute a waiver of that provision. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provisions essential purpose, and the rest of this agreement will not change. Nothing in this agreement creates an agency, partnership, or joint venture. There are no other third party beneficiaries to this agreement. Vendor may assign this agreement, in whole or in part, at any time with or without notice to you. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Website or any part of Website except as otherwise expressly provided in this agreement.