Telematics Subscription Related Policies
POLICY UPDATED: December 21, 2022
Last updated: December 20, 2022
Telematics Terms and Conditions
SECTION 1: PURCHASE OF DEVICES
A Device is required to connect your equipment, vehicle, construction equipment, machine or other mechanical apparatus (“Equipment”) to the Telematic Services. Devices must be purchased from EquipmentShare.
The sale of all Devices under a Sales Order is final, and except as otherwise stated below, Devices may not be returned to EquipmentShare for refund or credit. Notwithstanding the foregoing, you may return Devices to EquipmentShare within thirty (30) days of signing a Sales Order for such Devices provided that the Devices have not been installed, are in a new, re-saleable condition, including being unopened and in the original packaging, and include all related accessories and peripherals. All returns within the thirty (30) day return period will be assessed a per-unit re-stocking fee as stated in the Sales Order.
All software on Devices is licensed, not sold. EquipmentShare is the owner or licensed provider of the software itself, including all intellectual property rights therein. EquipmentShare reserves all rights not expressly granted to you herein.
SECTION 2: PURCHASE OF TELEMATICS SERVICES.
EquipmentShare telematics subscriptions require a Device to connect your Equipment. A separate subscription is required for each installed Device. At the start of the Initial Term for a subscription, you must select a plan type for each subscription. Under a monthly plan, you will pay a monthly service fee (“Service Fee”) for the subscription. Under a bundled plan, you will pay a monthly amount for the duration of the Initial Term that covers the products and services described in the Sales Order. The amount of the Service Fee, Device charge, and any applicable fees for installation services will be clearly stated on the Sales Order.
SECTION 3: SUBSCRIPTION PLANS & APPS
Each installed Device requires access to the Platform through a subscription.
EquipmentShare’s Platform is composed of multiple individual software applications (individually known as an “App”). Some Apps may require a separate monthly subscription fee, that may be charged on a per-user basis. Subscription fees, if any, are stated in each Sales Order.
EquipmentShare’s Platform is regularly updated to improve functionality and introduce new features. Accordingly, EquipmentShare reserves the right to change, alter or modify the Platform at any time. EquipmentShare also reserves the right to add new premium features to the Platform at any time and to charge you an additional fee for such premium features if you choose to add them to your plan.
Telematics Services may contain links to and/or integrate with third party websites, resources, products and/or services. THESE LINKS AND INTEGRATIONS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND ONLY AS A CONVENIENCE. EquipmentShare is not responsible for the content, functionality, or availability of such third party products and/or services, and you are solely responsible for and assume all risk arising from the use of any third party websites, resources, products and/or services and any links or integrations made available thereto.
Subscriptions are generally offered as follows (collectively referred to hereafter as “Subscription(s)”):
Monthly. A subscriber is billed monthly for access to the Platform, which automatically continues until you cancel.
Bundled Plan. A subscriber is billed monthly for access to the Platform and Device(s). The term for Bundled Plans auto-renews unless you cancel, which must be at least thirty (30) days prior to the end of the then-current term. The specific term is listed in your Sales Order.
Full Bundled Plan. A subscriber is billed monthly for access to the Platform, Device(s) and installation services. The term for Full Bundled Plans automatically renews unless you cancel, which must be at least thirty (30) days prior to the end of the then-current term. The specific term is listed in your Sales Order.
SECTION 4: SUBSCRIPTION CANCELLATION AND EARLY TERMINATION FEE AMOUNT
There are no early termination fees related to the cancellation of a Monthly Plan.
If you are enrolled in a monthly plan and cancel prior to the expiration of the Initial Term, no early termination fee (“Early Termination Fee”) will apply. The amount of the Early Termination Fee for subscribers enrolled in a Bundled Plan or Full Bundled Plan is based on the number of months remaining on the Initial Term of the Subscription. If applicable, the amount of the Early Termination Fee for a particular Subscription will be defined in a Sales Order.
EquipmentShare reserves the right to immediately suspend or discontinue Telematics Services at any time or to cancel this Agreement for any reason at any time without penalty to EquipmentShare. If EquipmentShare elects to discontinue Telematics Services or terminate this Agreement for its convenience prior to the expiration of the Initial Term of any Subscription purchased pursuant to this Agreement, you may keep Device(s) by paying EquipmentShare the fair market value of the Device as determined by EquipmentShare, or, in EquipmentShare’s sole discretion, you agree that EquipmentShare may uninstall Device(s) from your Equipment within 30 days of the discontinuation of Telematics Services or Agreement termination. You will not be liable for early termination fees if EquipmentShare suspends or discontinues the Telematics Services for reasons other than your early termination of your Subscription or breach of this Agreement or others you may have with EquipmentShare.
SECTION 5: BILLING
EquipmentShare will bill you for the Subscriptions, Devices, Apps, installation services and all other applicable charges or fees (as stated in the Sales Order).
All invoices are due upon receipt.As permitted by law, all unpaid invoices over thirty (30) days are subject to a 5% late fee, or the highest amount permitted by law. Late fees will continue to accrue on a monthly basis until the balance is paid in full. If an invoice is not paid in full within 60 days EquipmentShare may suspend your Subscriptions until the past due balance and all late fees are paid. If an invoice is not paid in full within 90 days EquipmentShare may terminate the Subscriptions(s) that are the subject of the outstanding invoice(s). If a Subscription is terminated due to non-payment, Early Termination Fees will apply, and all outstanding fees are immediately due and payable.You are responsible for any and all legal fees, reasonable attorney fees, and fees associated with the collection of the outstanding debt owed by you to EquipmentShare pursuant to this Agreement.Failure to receive an invoice does not release you from your obligation to pay for your Subscription(s).
Charges for Telematics Services, including charges for service fees, Devices, installation services, and other applicable fees may be included on your mobile carrier bill. Please refer to your agreement with your mobile carrier for specific payment terms, including late payment and collection terms.
SECTION 6: INSTALLATION SERVICES
If you elect to have EquipmentShare provide installation services, EquipmentShare, or its third party installation provider, will install the Device(s) on your Equipment.
You agree to provide all necessary access to Subscriber’s Equipment to allow for the installation of the Devices. In the event that scheduled Devices are not available at the scheduled installation date, access to the installation location is not available, or installation is cancelled, additional charges will be incurred by Subscriber as stated in the Sales Order.
Improper installation of the Devices or maintenance of Equipment into which Devices are installed can lead to damage of such Equipment or dangerous or life-threatening conditions, which can cause property damage, bodily injury, and/or death. If you elect to have any party other than EquipmentShare install the Device on your Equipment, you shall indemnify and hold harmless EquipmentShare for any damage to persons or property, including but not limited to physical injury and loss of life, related to such installation.
SECTION 7: WARRANTYFor Devices purchased as part of a Bundled Plan or Full Bundled Plan, for a period of one year from the date of the Sales Order, EquipmentShare will repair or replace, at no cost to you, any Device that is deemed damaged as a result of installation by EquipmentShare or manufacturer defect. Repair or replacement of the Device shall be your sole remedy for any Device failing to function properly and/or for faulty installation of a Device by EquipmentShare or its third party installers.
EquipmentShare shall have no obligation to repair or replace Devices: (i) which are lost or stolen or that become damaged or defective for any other reason than manufacturer defect or installation by EquipmentShare or its third party installers; (ii) for which the Subscription for the associated Device has been terminated pursuant to these Terms or the Sales Order; or (iii) for which the warranty has expired, including but not limited to the negligent, reckless or intentional misuse of the Device and/or the Device(s) being installed by you or a third party selected by you.
TELEMATICS DEVICES, PLATFORM AND TELEMATICS SERVICES ARE PROVIDED “AS IS” AND EQUIPMENTSHARE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE TELEMATICS DEVICES, PLATFORM AND TELEMATICS SERVICES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, THEIR DESIGN, THEIR WORKMANSHIP, OR THAT THEY WILL MEET THE REQUIREMENTS OF ANY LAWS, RULES, REGULATIONS, SPECIFICATIONS, OR CONTRACTS WHICH PROVIDE FOR SPECIFIC APPARATUS OR SPECIAL METHODS. EQUIPMENTSHARE FURTHER DISCLAIMS ANY WARRANTY WHICH MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
For third party manufactured Devices, any manufacturer-provided warranties are solely the responsibility of the manufacturer and are not administered or fulfilled by EquipmentShare. Some states and jurisdictions do not allow the disclaimer of implied warranties so the above exclusions may not apply to you.
The availability and ability of Devices, the Platform and Telematics Services to communicate with and transmit data to online servers may be interrupted or otherwise adversely affected by the location of your Equipment, weather conditions, issues with our partners’ or your cellular networks and GPS satellite networks, as well as numerous other factors. Certain features may not function or be available for all types of Equipment. Additionally, while EquipmentShare strives to provides all updates during off-peak hours, EquipmentShare may, from time to time, need to interrupt access to Telematics Services to perform system maintenance, testing or for other purposes and may not always be able to give you advance notice prior to such service interruptions. You agree and understand that EquipmentShare will not be liable for any loss or unavailability of Telematics Services.
SECTION 8: NO ASSIGNMENT OR TRANSFER OF TELEMATICS DEVICES
EquipmentShare, at its sole and exclusive discretion, may permit you to transfer Subscriptions purchased pursuant to these Terms if you sell or otherwise disposes of the Equipment on which the Device(s) bundled with the Subscription are installed. In such circumstances the party to whom you wishes to transfer the Subscription will be required to sign a Sales Order and will be bound to these Terms in order for the Subscription to take effect.
If for any reason you wish to physically transfer a Device on Equipment you own, EquipmentShare will have a qualified technician assess whether a transfer is possible and complete the transfer. EquipmentShare reserves the right to charge a transfer fee. The transfer of Devices between different pieces of Equipment will not affect the status of the Subscriptions for those Devices.
SECTION 9: ACKNOWLEDGEMENT OF AND CONSENT TO EQUIPMENTSHARE’S USE OF DATA
YOU ACKNOWLEDGE THAT THE DEVICES AND PLATFORM PURCHASED OR USED PURSUANT TO THESE COLLECT, RECORD, STORE AND TRANSMIT INFORMATION ABOUT YOUR EQUIPMENT AND ANY USER OF YOUR EQUIPMENT INCLUDING EQUIPMENT SETTINGS, SPEED, GEOLOCATION, MAINTENANCE HISTORY AND STATUS, EQUIPMENT PERFORMANCE, INSPECTION DATA, DIAGNOSTIC DATA, ENGINE ALERTS, ERROR CODES, ACTIVITY LOGS, HOURS OF OPERATION DATA, USERNAMES AND CERTIFICATIONS, AND MORE (COLLECTIVELY “USER DATA”). THE DEVICES TRANSMIT ALL COLLECTED USER DATA TO A CENTRAL SERVER OR SERVERS SO THAT THE DATA CAN BE ACCESSED BY YOU VIA THE PLATFORM.
EquipmentShare values your privacy. You acknowledge and agree that by using the Telematics Services, you give permission to EquipmentShare, its parents, subsidiaries, affiliates, parents’ partners and/or others authorized by EquipmentShare to access User Data in order to facilitate your use of Telematics Services, improve Telematics Services, respond to your requests, and for other legitimate business purposes. You further represent and warrant that you convey these terms and obtain the same permission from any person or entity you authorize to use your Equipment. EquipmentShare will ask for your consent before using your information for a purpose other than those set out in this Agreement.
You further acknowledge that current and contemplated features of the Telematics Services may give you the ability to remotely access and control Equipment through the use of Devices including, but not limited to, enabling you to remotely provide or terminate access to Equipment for specific users, perform remote diagnostics and repairs and more. You acknowledge and agree that EquipmentShare will only use any remote control features enabled on your Equipment if you give EquipmentShare permission to do so, at Subscriber’s sole risk, to respond to an imminent safety issue, or if required to do so by law.
SECTION 10: LIMITATIONS OF LIABILITY AND INDEMNIFICATION
USE OF TELEMATICS SERVICES IS AT YOUR SOLE RISK. EQUIPMENTSHARE EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR YOUR USE OF TELEMATICS SERVICES OR FOR ANY LOSS, DAMAGE, OR INJURY TO YOU OR THIRD PARTIES THAT MAY RESULT FROM USE OF TELEMATICS SERVICES, INABILITY TO ACCESS TELEMATICS SERVICES DUE TO TECHNICAL OR OTHER REASONS, OR THE TERMINATION OR SUSPENSION OF ABILITY TO USE OR ACCESS TELEMATICS SERVICES INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES, LOSS OF BUSINESS OR PROFITS, REGARDLESS OF LEGAL THEORY, EVEN IF EQUIPMENTSHARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES, DAMAGES, OR INJURIES. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.TO THE GREATEST EXTENT PERMITTED BY LAW, YOU SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS EQUIPMENTSHARE AND ITS AFFILIATES, DIRECTORS, EMPLOYEES, INVESTORS, REPRESENTATIVES AND ASSIGNS (THE “INDEMNITEES”) FROM ALL CLAIMS, DEMANDS, LOSSES, COSTS, DAMAGES, LIABILITIES, SETTLEMENTS, JUDGMENTS, AWARDS, CAUSES OF ACTIONS, FINES, OR PENALTIES (INCLUDING WITHOUT LIMITATION, EXPERT AND REASONABLE ATTORNEYS’ FEES AND COSTS) DIRECTLY OR INDIRECTLY ARISING OUT OF YOUR PURCHASE AND USE OF TELEMATICS SERVICES. THIS PROVISION SHALL SURVIVE EXPIRATION OF ANY SUBSCRIPTION TERM AND SHALL CONTINUE IN EFFECT NOTWITHSTANDING THE TERMINATION OR BREACH OF ANY AGREEMENTS BETWEEN OR AMONG INDEMNITEES AND YOU.
SECTION 11: INTELLECTUAL PROPERTY
Telematics Services, including Devices and the Platform, contain trade secrets, proprietary technologies, and other confidential know-how (the “Intellectual Property”) that belong solely to EquipmentShare. You do not own and shall not acquire any rights in the Intellectual Property. You acknowledge, understand and agree that certain data specific to you and your users may reside on EquipmentShare servers and may be subject to the judicial process. You hereby waive all claims of rights to the Intellectual Property and rights of privacy concerning such data or the maintenance of such data by EquipmentShare.
SECTION 12: NON-DISCLOSURE OF INFORMATION
You agree not to use confidential or proprietary information (“Confidential Information”) related to, constituted by, or derived from the Telematics Services to compete with EquipmentShare or to use, disclose to any third party, reproduce, summarize, or distribute Confidential Information for any purpose other than to further of the terms of these Terms. Confidential Information includes any and all non-public, confidential and/or proprietary information, including intellectual property rights, which EquipmentShare may furnish, disclose, or reveal to you. Confidential Information shall not include any information that (a) is or becomes generally known or available to the public; (b) was rightfully obtained by you from a third party; (c) was independently developed by you as evidenced by written documentation; or (d) was otherwise available to you on a non-confidential basis. You agree that all Confidential Information is owned by EquipmentShare, and EquipmentShare is not transferring any right, title or interest in any Confidential Information to you. You agree to take all reasonable steps necessary to protect and safeguard Confidential Information in its possession, and agree to immediately notify EquipmentShare in the event you become aware that Confidential Information in your possession was disclosed or obtained in violation of these Terms. You agree that money damages may not be a sufficient remedy for any breach of this section of these Terms by you and that in addition to all other remedies it may be entitled to, EquipmentShare shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach.
SECTION 13: NO ASSIGNMENT OR TRANSFER OF TELEMATICS DEVICES
These Terms are personal to you and neither these Terms, Telematics Services, nor any of your rights hereunder may be transferred or assigned to another party without the express written consent of EquipmentShare. EquipmentShare may assign its rights under this Agreement to any of its affiliates or subsidiaries, or to any successor in interest.
SECTION 14: VENUE AND CHOICE OF LAW
These Terms and your use of Telematics Services and any claim or dispute that has arisen or may arise between you and EquipmentShare with respect to such use or these Terms shall be governed by the laws of the State of Missouri, without regard to conflict of laws principles. Any judicial proceeding to resolve claims relating to your purchase or use of the Telematics Services or these Terms shall be brought in the federal or state courts of Boone County, Missouri. You hereby consent to venue and personal jurisdiction in such courts.
SECTION 15: ENTIRE AGREEMENT AND MODIFICATION