SECTION 1: ES Track Subscription Terms
All ES Track subscriptions purchased pursuant to this Agreement include the telematics hardware (the “Telematics Device” or “Device”) necessary to connect Subscriber’s equipment to ES Track (as used herein the term “equipment” shall refer to any vehicle, construction equipment, machine or other mechanical apparatus on which a Telematics Device can be installed). A separate ES Track subscription is required for each installed Telematics Device. The initial term for ES Track subscriptions is 36 months (the “Initial Term”). At the start of the Initial Term Subscriber must select either the ES Track Monthly Billing Plan (the “Monthly Plan”) or the EZ Pay Plan (“EZ Pay Plan”) to pay for the ES Track service.
Under the Monthly Plan, Subscriber will pay a monthly service fee (“Service Fee”) for the duration of the Initial Term. Under the EZ Pay Plan, Subscriber will pay an initiation fee (“Initiation Fee”) covering the first 12 months of service. At the conclusion of the first 12 months of service, EZ Pay Plan Subscribers can continue in the EZ Plan by paying two discounted yearly fees (“Yearly Fee”) covering the remaining 24 months of service of the Initial Term with the first Yearly Fee due at the conclusion of the first 12 months of service and the final Yearly Fee due at the conclusion of the first 24 months of service. Alternatively, at the conclusion of either the first 12 months of service or at the conclusion of the first 24 months of service, EZ Pay Subscribers can choose to switch over to the Monthly Plan for the remainder of the Initial Term.
The amount of the Service Fee, Initiation Fee and Yearly Fee for an ES Track subscription will be clearly stated on the ES Track subscription purchase order (“Purchase Order”) along with the Device type and subscription start date.
SECTION 2: Subscription Cancellation And Early Termination Fee Amount
If a Subscriber enrolled in the Monthly Plan cancels a subscription prior to the expiration of the Initial Term, an early termination fee (the “Early Termination Fee”) will apply. No Early Termination Fees will apply to Subscribers enrolled in the EZ Pay Plan who choose to cancel their subscription. However, EZ Pay Plan Subscribers will not be entitled to any partial refunds for Initiation Fees and Yearly Fees already paid if they choose to cancel a subscription before the conclusion of the Initial Term. The amount of the Early Termination Fee for Subscribers enrolled in the Monthly Plan is based on the type of Device bundled with the subscription, whether the subscription included installation of the Device and the number of months remaining on the Initial Term of the subscription. The exact amount of the Early Termination Fee for a particular ES Track subscription can be calculated as follows:
SECTION 3: Billing And Late Fees
All Invoices are due upon receipt. Subscriber’s failure to timely pay the full balance of an invoice will result in the imposition of a late payment fee and possible suspension or termination of Subscriber’s ES Track subscription(s):
If an ES Track subscription is terminated due to late payment pursuant to this Section 3 and Subscriber is enrolled in the Monthly Plan, Subscriber must pay the applicable Early Termination Fee set forth in Section 2 above in addition to the outstanding invoice balance and late fees. Subscriber will be liable for costs associated with collection of amounts owed (which might include, but are not limited to, the costs of hiring a collection agency, reasonable attorney's’ fees or arbitration costs, as well as interest). Failure to receive an invoice does not release Subscriber from Subscriber’s obligation to pay.
SECTION 4: ES Track Services
ES Track is an advanced telematics platform that collects and retains information related to the operation and maintenance of your equipment and enables you to access and utilize that data through an intuitive and user friendly interface. ES Track is regularly updated to improve functionality and introduce new features. Accordingly, EquipmentShare reserves the right to change, alter or modify ES Track at any time. A detailed list of current ES Track features can be found at https://estrack.com. EquipmentShare also reserves the right to add new premium features to ES Track at any time and to charge Subscriber an additional fee for such premium features if Subscriber chooses to access them.
SECTION 5: License of Collected Data
Subscriber shall retain ownership of all right, title and interest in and to the data collected by Telematics Devices installed on Subscriber’s equipment and provided to Subscriber through ES Track (the “ES Track Data”). Subscriber hereby grants to EquipmentShare a worldwide, royalty-free, fully paid, transferable, assignable, sub-licensable (through multiple tiers), perpetual license to collect, analyze, use, and otherwise exercise control over any and all ES Track Data, including the right to share the ES Track Data with its subsidiaries, affiliates, partners and/or others authorized by EquipmentShare. EquipmentShare has no obligation under this Agreement to provide Subscriber with any data collected by the Telematics Devices except through ES Track as accessible through Subscriber’s ES Track subscription(s).
SECTION 6: Repair of Defective Device
If a Telematics Device bundled with an ES Track subscription purchased pursuant to this Agreement ceases to function properly during the Initial Term due to faulty installation of the Device by EquipmentShare or a manufacturer defect, EquipmentShare will repair or replace the Device at no cost to Subscriber. Repair or replacement of the Device will be Subscriber’s sole remedy for a Device ceasing to function properly and/or for faulty installation of a Device by EquipmentShare. EquipmentShare will have no obligation to repair or replace Devices that are lost or stolen or that become damaged or defective due to any factor other than a manufacturer defect or a faulty installation by EquipmentShare including, but not limited to, the negligent, reckless or intentional misuse of the Device and/or the equipment it is installed on by Subscriber or a third party. EquipmentShare will also have no obligation to repair or replace Devices if the Initial Term of the ES Track subscription for the Device has expired or is otherwise terminated pursuant to this Agreement.
SECTION 7: ES Track Subscription Termination Rights
EquipmentShare reserves the right to immediately suspend or discontinue ES Track at any time or to cancel this Agreement without penalty to EquipmentShare. If EquipmentShare elects to discontinue ES Track or terminate this Agreement pursuant to this Section 6 prior to the expiration of the Initial Term of any ES Track subscription purchased pursuant to this Agreement, the Subscriber may keep the Device by paying EquipmentShare the fair market value of the Device as determined by EquipmentShare or allow EquipmentShare to uninstall the Device from Subscriber’s equipment within 30 days of the discontinuation of service or Agreement termination.
Subscriber may also terminate the ES Track subscription for any Device purchased pursuant to this Agreement at any time.
However, as set forth in Section 2 above, if Subscriber is enrolled in the Monthly Plan and cancels an ES Track subscription prior to the expiration of the Initial Term, Subscriber must pay the Early Termination Fee.
SECTION 8: Acknowledgement of And Consent to EquipmentShare’s Use of ES Track Data
SUBSCRIBER ACKNOWLEDGES THAT THE TELEMATICS DEVICES BUNDLED WITH ES TRACK SUBSCRIPTIONS PURCHASED PURSUANT TO THIS AGREEMENT COLLECT, RECORD, STORE AND TRANSMIT INFORMATION ABOUT SUBSCRIBER’S EQUIPMENT AND ANY USER OF SUBSCRIBER’S 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 Telematics Devices transmit all collected User Data to a central server or servers so that the data can be accessed by Subscriber via ES Track.
EquipmentShare values the privacy of its subscribers and gives subscribers the ability to make any individually identifiable User Data private by disabling the “Customer Support User” in their ES Track settings. Subscriber understands and acknowledges that if the Customer Support User is disabled in the ES Track settings, EquipmentShare will not access User Data unless required to do so by law or to respond to an imminent safety issue. Subscriber acknowledges and agrees that if the Customer Support User is enabled on Subscriber’s account, Subscriber is giving permission to EquipmentShare, its parents, subsidiaries, affiliates, parents partners and/or others authorized by EquipmentShare, to access User Data in order to facilitate Subscriber’s use of the ES Track Services, improve the ES Track services, respond to Subscriber requests, and for other legitimate business purposes.
SUBSCRIBER FURTHER ACKNOWLEDGES AND AGREES THAT EquipmentShare MAY USE, STORE, TRANSMIT AND OTHERWISE EXERCISE CONTROL OVER ANY DATA COLLECTED, STORED, RECORDED AND/OR TRANSMITTED BY THE TELEMATICS DEVICES IN ANY MANNER WHATSOEVER, without limitation, including the right to share such data with its subsidiaries, affiliates, partners and/or others authorized by EquipmentShare.
SECTION 9: Acknowledgement of And Consent to EquipmentShare’s Ability to Remotely Access and Control Subscribers Equipment Through Telematics Devices
Subscriber acknowledges that current and contemplated features of ES Track give Subscriber the ability to remotely access and control Subscriber equipment through the use of the Telematics Devices including, but not limited to, enabling Subscriber to remotely provide or terminate access to equipment for specific users, remotely shut off equipment, perform remote diagnostics and repairs and more. Subscriber acknowledges and agrees that EquipmentShare will only use any remote control features enabled on Subscriber’s equipment if requested to do so by Subscriber, to respond to an imminent safety issue, or if required to do so by law.
SECTION 10: Limitations of The ES Track Services
The availability of ES Track and the ability of the Telematics Devices to communicate with and transmit data to the ES Track servers may be interrupted or otherwise adversely affected by the location of your equipment, weather conditions, issues with our partners’ cellular networks and GPS satellite networks, as well as numerous other factors. Certain features of ES Track may not function or be available for all types of equipment. Additionally, EquipmentShare may, from time to time, need to interrupt Subscriber’s access to ES Track to perform system maintenance, testing or for other purposes and may not always be able to give Subscriber advance notice prior to such service interruptions. Subscriber agrees and understands that EquipmentShare will not be liable for any loss or unavailability of the ES Track Services.
SECTION 11: Disclaimer of Warranty
ES TRACK AND THE TELEMATICS DEVICES ARE PROVIDED “AS IS” AND EquipmentShare EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO ES TRACK AND THE TELEMATICS DEVICES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND 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.
The Telematics Devices are manufactured by third party manufacturers. Any manufacturer provided warranties on the Telematics Devices 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.
SECTION 12: Limitations of Liability
USE OF ES TRACK SERVICES AND THE TELEMATICS DEVICES IS AT SUBSCRIBER’S SOLE RISK. EquipmentShare EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR SUBSCRIBER’S USE OF ES TRACK AND/OR THE TELEMATICS DEVICES OR FOR ANY LOSS, DAMAGE, OR INJURY TO SUBSCRIBER OR THIRD PARTIES THAT MAY RESULT FROM SUBSCRIBER’S USE OF ES TRACK AND/OR TELEMATICS DEVICES, SUBSCRIBER’S INABILITY TO ACCESS ES TRACK DUE TO TECHNICAL OR OTHER REASONS, OR THE TERMINATION OR SUSPENSION OF SUBSCRIBER’S ABILITY TO USE OR ACCESS ES TRACK 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 SUBSCRIBER HAS DIRECTLY ADVISED EquipmentShare 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.
SECTION 13: Intellectual Property
Subscriber acknowledges that ES Track Services and the Telematics Devices contain trade secrets, proprietary technologies, and other confidential know-how (the “Intellectual Property”) that belong solely to EquipmentShare. Subscriber does not own and shall not acquire any rights in the Intellectual Property. Subscriber further acknowledges, understands and agrees that certain data specific to Subscriber may reside on EquipmentShare servers and may be subject to the judicial process. Subscriber waives all claims of rights to the Intellectual Property and rights of privacy concerning such data or the maintenance of such data by EquipmentShare.
SECTION 14: No Assignment And Transfer of Telematics Devices
Subscriber agrees that this Agreement is personal to Subscriber and that neither the Agreement nor any of Subscriber’s rights under it 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. EquipmentShare, at its sole and exclusive discretion, may permit Subscriber to transfer ES Track subscriptions purchased pursuant to this Agreement if Subscriber sells or otherwise disposes of the equipment on which the Telematics Device bundled with the subscription is installed. In such circumstances the party to whom Subscriber wishes to transfer the ES Track subscription will be required to sign a Telematics Subscription Agreement with EquipmentShare before the transfer of the subscription can take effect.
If for any reason Subscriber wants to physically transfer a Telematics Device from one piece of equipment to a different piece of equipment owned by Subscriber, EquipmentShare will have a qualified technician assess whether the piece of equipment the Subscriber wishes to transfer the Telematics Device to is compatible with the Telematics Device and, if it is compatible, effect the transfer. EquipmentShare reserves the right to charge a transfer fee for such Telematics Device transfers. The transfer of Telematics Devices between different pieces of Subscriber owned equipment will not affect the status of the ES Track subscriptions for those Devices.
SECTION 15: Entire Agreement And Modification
This Agreement constitutes the entire agreement of the parties relating to the subject matter addressed in this Agreement. This Agreement supersedes all prior communications, contracts, or agreements between the parties with respect to the subject matter addressed in this Agreement, whether oral or written. Modifications or amendments to this Agreement shall be enforceable only if they are in writing and are signed by authorized representatives of both Parties.
SECTION 16: Waiver And Severability
EquipmentShare’s failure to enforce a provision of this Agreement is not a waiver of its right to do so later. If a provision of this Agreement is found to be unenforceable, the remaining provisions of the Agreement will remain in full force and effect.
SECTION 17: Legal
Subscriber agrees that this Agreement and Subscriber’s use of ES Track and the Telematics Devices and any claim or dispute that has arisen or may arise between Subscriber and EquipmentShare with respect to such use or this Agreement is governed by the laws of the State of Missouri, without regard to conflict of laws principles.
Subscriber and EquipmentShare agree that any judicial proceeding to resolve claims relating to Subscriber’s use of ES Track, the Telematics Devices or this Agreement will be brought in the federal or state courts of Callaway County, Missouri. Both Subscriber and EquipmentShare consent to venue and personal jurisdiction in such courts