American GPS Tracking

AMERICAN GPS
END USER LICENSE AGREEMENT

THIS END USER LICENSE AGREEMENT, including the Customer Information (as defined below), (together, the "Agreement"), is made and entered into by and between you and American GPS, doing business as American GPS, its successors and/or assigns, whose offices are located at 101-C M Woodwinds Industrial Ct. Cary, NC 27511. ("American GPS" or "We") immediately upon acceptance of its terms and conditions by you. This Agreement is the agreement under which you will receive Services (as defined below) in connection with your purchase of the American GPS Tracking Unit(s) and the Software (as defined in Paragraph 7.1 below) included therewith ("Product").

1. Services and Charges:

1.1 Services: The term "Services" means calls to and from the Product to obtain Global Positioning Satellite services with respect to the Product, as applicable to the specific service plan choosen:

(a) request and receive its location;
(b) its heading (direction);
(c) the road on which it is traveling;
(d) the nearest address;
(e) the vehicle's speed;
(f) a calculated average speed of vehicle;
(g) a 'disconnect' notice if the American GPS Tracker Unit is disconnected from its power source.

1.2 Charges: "Charges" means the total due for Services, including any applicable early termination fee, at the rates specified on the Customer Information Page and all sales, use and other taxes, fees and charges that may be imposed by any government body relating to the Product and Services.

1.3 Billing: Billing for access to use the American GPS Services will be in advance for each month of such service and billing.

1.4 Service Overages ("Additional Charges"): Messages ("pings") transmitted to and from the Product in excess of the number included in your service plan, will be billed as per the specific service plan choosen. You agree that your credit card, ATM card or other form of payment will be billed for such Services when used. Additionally, you agree that you will be billed in advance for Services on an annual or monthly basis (whichever you choose) for the delivery of such Services.

1.5 Delinquency: Any failure to pay all Charges when due shall give American GPS the right, in addition to and without waiving any other remedies, to avail itself of any legal remedy, including, but not limited to, the right to charge you interest at the highest rate allowable by applicable law on the delinquent amount and to immediately discontinue providing Services, additional Products or technical support to you.

2. Warranty

2.1 Product Warranty: You received a ONE (1) YEAR WARRANTY with the Product, pursuant to the terms and conditions.

2.2 Service Warranty Disclaimer: AMERICAN GPS MAKES, AND ANY AMERICAN GPS SERVICE AND INFORMATION PROVIDERS (COLLECTIVELY, "PROVIDERS") MAKE, NO WARRANTY OF ANY KIND REGARDING THE SERVICES, WHICH ARE PROVIDED ON AN "AS IS" BASIS. AMERICAN GPS EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED.

2.2 Implied Warranties: AMERICAN GPS AND ITS PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THIS WARRANTY DISCLAIMER MAY BE LIMITED IN ITS APPLICABILITY TO YOU.

2.3 Risk and Damage: You assume all risk for loss or damage to your monitored vehicle or its contents and for personal injury to persons occupying or affected by your monitored vehicle.

3. Limitations, Exclusions and Disclaimers

3.1 Damage Limitation: AMERICAN GPS SHALL NOT BE LIABLE FOR ANY GENERAL, DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, AND/OR CONSEQUENTIAL DAMAGES. Some states do not allow limitations on consequential damages, so the above limitations or exclusions may not apply to you. You have specific legal rights and you may also have other rights, which may vary from state to state. You acknowledge that no affirmation of fact or statement (whether written or oral) made to American GPS or its representatives outside of this Agreement shall be deemed to create any expressed or implied warranty on the part of American GPS or its representatives.

3.2 Liability Limit: American GPS is not an insurer and you must obtain from an insurer any insurance you desire. The amount you pay is based upon the Services American GPS performs and the limited liability American GPS assumes under this Agreement and is unrelated to the value of your property or the property of others located in your monitored vehicle. In the event of any loss or injury to any property, you agree to look exclusively to your insurer to recover damages. You waive all subrogation and other rights of recovery against American GPS that any insurer or other person may have as a result of paying any claim for loss or injury to any other person. It will be extremely difficult to determine the actual damages that may result from failure to perform duties under this Agreement. You agree that American GPS and our agents, employees, subsidiaries, affiliates and parent companies are exempt from liability for any loss, damage, injury or other consequences arising directly or indirectly from the Services American GPS performs under this Agreement. If it is determined that American GPS or any of its agents, employees, subsidiaries, affiliates, or parent companies are directly or indirectly responsible for any such loss, damage, injury or other consequence, you agree that damages shall be limited to the greater of $1,000 or 20% of the annual charges you pay under this Agreement. These agreed upon damages are not a penalty. They are your sole remedy no matter how the loss, damage, injury or other consequence is caused, even if caused by negligence, gross negligence, failure to perform duties under this Agreement, strict liability, failure to comply with any applicable law, or other fault. However, at your request, American GPS may assume additional liability by attaching an amendment to this Agreement stating the extent of additional liability and any related fees we will charge you. You agree that American GPS is not an insurer even if American GPS enters into any such amendment.

3.3 Exclusive Damages Remedy: Your exclusive remedy is set forth in this Paragraph 3.

3.4 Hold Harmless: In the event any lawsuit or other claim is filed by any party against American GPS or its agents, employees, subsidiaries, affiliates, or parent companies arising out, related to, or in connection with the Services, the Product or its use, you agree to be solely responsible for, and to indemnify and hold American GPS completely harmless from such lawsuits or other claims including your payment of all damages, expenses, costs and attorney's fees and expenses. These obligations will survive the expiration or earlier termination of this Agreement. These obligations will apply even if such lawsuit or other claim arises out of negligence, gross negligence, failure to perform duties under this Agreement, strict liability, failure to comply with any applicable law, or other fault.

3.5 Other Party's Limitation: If you purchased Services or the Product through another business or person, or from American GPS through referral from another business or person, you agree that such other business or person acts solely as an independent contractor. Such business or person shall have no responsibility or liability to you for the performance or nonperformance of the Services that American GPS provides under this Agreement. Without limiting the above, you agree that the liability of such other businesses or persons is, in any event, limited in accordance with the provisions of this Agreement including, but not limited to, this Paragraph 3. You agree that such business or person and its agents, employees, affiliates, and parent companies may invoke all of rights under this Paragraph.

3.6 Time to File Lawsuit or Other Action: You agree that you shall file any lawsuit or other action you may have against American GPS or agents, employees, subsidiaries, affiliates, or parent companies within one (1) year from the date of the event that caused the loss, damage or liability.

3.7 Disclaimer & Liability Limits Related to GPS and Cellular Service: The Product receives signals from the Global Positioning Satellite ("GPS") system and transmits signals to, and receives signals from, American GPS third party Providers and (depending on the Service rate plan you choose) to a customer service center ("CSC") and/or directly over the Internet to your personal computer, PDA or cellular telephone display (the method of receiving the information will depend on your choice of technology, whether we support it and/or your particular rate plan). The Providers and CSC services may be provided by American GPS directly or through another entity chosen by American GPS. Your Product is designed to work only with our Providers and CSCs and will not work with any other such similar entities whatsoever. In addition to the GPS system, Providers and CSCs, Services are provided by the use of cellular telephone companies selected by American GPS or other entities providing equipment, facilities or services for the transmission of signals or the provision of other services. You understand that the Product installed in the monitored vehicle uses cellular telephone technology as the transmission mode of sending signals to the CSC or your computer, PDA or cellular phone. Services are only available to you in the fifty United States and Canada and only when the Product is within the operating range of a wireless carrier's cell site that is part of the American GPS service network. Services may be limited, interrupted, or discontinued, without liability to American GPS, due to many conditions, including (without limitation):

(a) wireless system transmission capacity limitations and network capacity limitations;
(b) atmospheric and geographic conditions;
(c) other natural or artificial environment conditions beyond our control;
(d) limitations of the electrical system design and architecture of your Product;
(e) the condition of your Product (i.e. for example, the Product will not function if its power supply is not available; e.g. unit is not connected to a live power source, or if essential Product components are damaged (accidentally or otherwise);
(f) government regulations or limitations;
(g) restrictions by an underlying carrier (for example, wireless carrier equipment limitations and inter-carrier roaming agreements);
(h) installation, repair or modification work to the network;
(i) actions taken to combat fraudulent use; and
(j) other legitimate business and operational reasons.

Global positioning capabilities used for some location based services are not available if satellite signals are obstructed; you must be outdoors with a clear line of sight between you and the satellites. You understand that the Product's usage of the GPS system and the cellular telephone network are fundamental to ability to provide Services.

You understand that due to the very nature of cellular telephone, network and GPS technologies, there will be times when the Product is unable to secure, maintain, or transmit signals, or that the information transmitted is not reliable, and thus, American GPS will be unable to receive such signals.

You also understand that American GPS does not receive signals when the transmission mode is or becomes non-operational and that signals from the Product cannot be received by American GPS when the Product is damaged, does not have an adequate power source or is otherwise non-operational. Accordingly, you agree that American GPS shall not, in any way, be liable for, or have responsibility with respect to, the GPS system, any of the information therein obtained, or for interruptions in service for any reason whatsoever.

You further acknowledge and agree that American GPS shall not have any liability for the interruption of services due to electrical storms, power failures, interruption or unavailability of telephone service, cellular and radio frequency or other conditions beyond our control, including without limit, due to strikes, riots, floods, fire, war or acts of God.

You acknowledge and agree that the use of radio frequencies and cellular devices are controlled by the Federal Communications Commission and changes in rules, regulations and policy may necessitate discontinuing such transmission devices by American GPS at its option.

You agree that the liability of the Service Providers and any third party is limited in accordance with, and the Service Providers may invoke, the provisions of Paragraph 3, "Limitations, Exclusions and Disclaimers."

4. Installation and Use: You are responsible for installing, activating and maintaining the Product in your vehicle. You acknowledge and agree that American GPS shall not be liable for the activation, interruption, operation or non-operation of the Product, the cellular network, the GPS system, telephone transmission wires, the cellular device or other potential mediums, since American GPS has no control of, or supervision over, any such equipment. You understand and agree that American GPS is not responsible for, shall have no obligation with respect to, and shall have no liability for the Product, its installation into the monitored vehicle, its operation or service.

5. Term: The initial term of this Agreement is for the period agreed upon when you purchase the unit. This Agreement shall automatically renew after the initial term for a subsequent one (1) year period unless terminated by you or American GPS. Either party may terminate this Agreement by sending written notice (e.g. email) to the other party at least 30 days prior to the initial or renewal term anniversary date, after which termination will be effective on such anniversary date. American GPS shall have the right to increase the rates charged for Services after the initial term. Upon your receipt of notice that an increase in the rates for Services will occur, you may terminate this Agreement without penalty, provided that you provide American GPS written notice of such termination within 30 days of the date on the notice of an increase in the rates for Services. Termination of this Agreement by you under the preceding sentence will be effective on the earlier to occur of: (i) the date on which American GPS ceases to provide Services to you under this Agreement, or (ii) 60 days from the date on the notice of price increase.

6. Termination: This Agreement may be terminated at the option of American GPS at any time upon the occurrence of any of the following events:

(a) your default under this Agreement or failure to perform as required by this Agreement;
(b) your default in payment of any monies due under this Agreement;
(c) destruction of or substantial damage to the equipment of third party vendors so as to make impractical for American GPS to continue to provide signal receiving and notification Services under this Agreement;
(d) failure of the Product, the GPS system, and/or the cellular communications networks for the transmission of signals between your Product and your PC, PDA or cellular phone to function in accordance with expectations;
(e) unavailability of, or inability of American GPS either to secure or retain, the connections or privileges necessary for the transmission of signals by means of conductors between the third party vendors, CSCs or communications carriers. American GPS shall not be liable for any damages or subject to any penalty as a result of such termination;
(f) your failure to follow any recommendations American GPS may make for the repair or replacement of a defective part of the Product;
(g) your failure to follow the operating instructions provided at the time the Product is installed into your monitored vehicle, which failure results in an undue number of false alarms or erroneous alarms, or erroneous information;
(h) if the monitored vehicle is so modified or altered after installation of the Product as to render continuation of Service impractical;
(i) in the event governmental regulations or limitations necessitate the discontinuance of the Product or Service as determined by American GPS in its sole discretion.

In the event this Agreement is terminated by American GPS under this provision, American GPS shall not be liable for damages or subject to any penalty as a result of such termination. American GPS will, however, where you are not at fault, refund to you any advance payments made for Services to be supplied subsequent to the date of such termination, less any amount still due for the period prior to such termination. This Agreement may also be terminated at the option of American GPS at any time with 30 days written notice to you.

7. License Terms:

7.1 Grant of License: Provided that you comply with all terms and conditions of this Agreement, American GPS grants you a personal, non-exclusive license to use the firmware and software (and all additions or modifications thereto) that is located on the Product (collective, the "Software").

7.2 Reservation of Rights and Ownership: American GPS reserves all rights not expressly granted to you in this Agreement. The Software is protected by copyright and other intellectual property laws and treaties. American GPS and its Providers own the title, copyright and other intellectual property rights in the Software. The Software is licensed, not sold.

7.3 You may not reverse engineer, decompile or disassemble the Software or the Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

8. Website Terms and Conditions: When accessing the website located at americangpstracking.us, you hereby agree to be bound by the Terms and Conditions located at Website Terms of Use (the "Website Terms and Conditions"). The Website Terms and Conditions are hereby incorporated by reference into this Agreement. http://www.americangpstracking.us/website_terms_of_use

9. Other Terms & Conditions:

9.1 You agree to do the following:

(a) instruct all persons who you may permit to use the Product as to its proper use and to be fully responsible for, and indemnify American GPS against, any claim, liability or expense related to such persons' use of the Product or Services;
(b) ensure that the person driving the monitored vehicle understands that you or other third parties have access to their location without their knowledge and that the person (whether they are friends, family members or minors) agrees to indemnify American GPS against any claim, liability or expense related to such person's use of the Product or Services (including those related to any privacy issues);
(c) ensure that the Product or Services are not used for fraudulent or abusive purposes or in a way that risks damage to American GPS or its business or reputation, to third parties (including, but not limited to, the wireless and other service providers and vendors), or to the general public;
(d) ensure that the monitored vehicle has complete automobile liability insurance coverage;
(e) comply with laws, codes and regulations pertaining to the Product and Services. Any attempt by you to abuse or fraudulently use the Services may result in immediate termination of the Services.

9.2 Access to Services: Access to Services may be provided by means of a ten-digit cellular telephone number (the "Equipment Number"). The Equipment Number is at all times the property of American GPS and you have no interest in or claim of right to, the Equipment Number. American GPS reserves the right to change the Equipment Number upon ten (10) days prior notice to you, except that no notice is required if American GPS suspects fraud. An Equipment Number issued to you may not be assigned or associated with another cellular telephone unless American GPS consents in writing. Unless American GPS consents, you are responsible for all charges to that telephone number. If your Product is lost, misplaced or stolen, or if your Equipment Number is used without your permission, you must notify American GPS within 48 hours of the loss and provide all information and documentation relating to the problem, including any police reports and affidavits. If American GPS determines that your Equipment Number was fraudulently used without fault or authorization on your part, and if you notified American GPS within 48 hours, American GPS will not charge you for such usage. As part of its investigation, you expressly authorize American GPS, its agents, and law enforcement agencies to investigate the use of calls to the Product that you claim were made without your permission and for which you seek credit from American GPS. If you fail to cooperate in any investigation and do not take reasonable precautions as American GPS may require from time to time, you will remain liable for all usage. If you are found responsible for any fraudulent usage, your Services may be immediately terminated. You will pay for all false calls for locations or similar fees, charges or assessments.

9.3 Authorization: You authorize American GPS to secure a non-investigative consumer report on you from a consumer reporting agency. You release American GPS from, and agree to indemnify and hold American GPS harmless from, any liability with respect to the release of such information to and/or response by you, your authorized representative, Service Provider or any other third party.

9.4 Familiarization Period: If a seven (7) day familiarization program, or longer period is required by law, and, if needed, an extension period, for you to become familiar with the Product and Services and its operation, then during this familiarization period, you agree that:

(a) in the event any use of the Service incurs usage fees, that you will pay the current rate for this usage;
(b) you will return the Product in its original shipping container, at your own expense, to our facilities located at 101-C M Woodwinds Industrial Ct. Cary, NC 27511.

9.5 Requests for Services: You authorize American GPS to make requests for information, service, orders or equipment in any respect on behalf of you to Service Providers, as American GPS determines to be necessary or desirable.

9.6 Privacy Waiver: You agree that in connection with acceptance of this Agreement, employee training, quality control and provision of Services, American GPS may monitor or record your conversations with American GPS personnel and any others directly involved in providing you Services under this Agreement. Further, you understand that privacy cannot be guaranteed on cellular telephone systems with GPS location capabilities such as those used for the Services, and that American GPS is not liable to you for any claims, losses, damages or costs resulting from any lack of privacy. You consent to American GPS using information about you, your Product or your location to provide Services, offer new products or services, or enforce terms of this Agreement. We may use or share with others your information and statistics that do not include information that identifies you personally. Except as provided above, American GPS will not monitor your Product location. You agree that American GPS may provide information about you to any governmental authority with lawful jurisdiction over the Product, Services or American GPS.

9.7 Assigns: This Agreement is not assignable by you except upon the prior written consent of American GPS. American GPS shall have the right, in whole or in part, to assign this Agreement or to subcontract any of its obligations under this Agreement without notice to you.

9.8 Entire Agreement: This Agreement, together with the Customer Information Page and the Website Terms and Conditions, constitutes the final and entire agreement between you and American GPS and supersedes any prior agreements, written or oral. There are no other agreements written or oral between American GPS and you. American GPS has made no representation, warranty, or covenant not contained in this Agreement. Further, no amendment, modification, or waiver of, or supplement to, this Agreement shall be effective, unless it is in writing and signed by each party hereto. The agreements made herein may not be modified, supplemented, or changed in whole or in part by any waiver (other than a written waiver signed by the parties hereto), oral representation, or course of dealing. The terms and conditions of this Agreement shall govern notwithstanding any inconsistent or additional terms and conditions of any other document submitted by you.

9.9 Electronic Signature: By clicking "I Agree to License Terms" on the website, you agree to be bound by the terms and conditions of this Agreement, together with the Customer Information Page and the Website Terms and Conditions, and, furthermore, understand, acknowledge, and agree that by clicking "I Agree to License Terms" you have affixed your electronic signature to this Agreement and are bound to the aforementioned terms and conditions as required under the Uniform Electronic Transactions Act ("UETA"), which establishes the legal validity of electronic signatures and contracts in the United States of America.

© Copyright 2008, American GPS ™. 101-C M Woodwinds Industrial Ct Cary, NC, USA.
Contact us by phone at: 1-888-460-5995 {Se habla en español}. Email: info@americangpstracking.us
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