This document sets out general terms and conditions for your EquipmentShare Track Subscription(s). The terms are legally binding on you, so it’s important that you read and understand them. By signing a Track sales order (“Sales Order”), you are agreeing to the terms and conditions below.
SECTION 1: SALES OF TELEMATICS DEVICES ARE FINAL
The sale of all Telematics Devices under a Track Sales Order is final, and except as otherwise stated below, Subscriber acknowledges that devices may not be returned to EquipmentShare for refund or credit. Notwithstanding the foregoing, Subscriber 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, 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.
SECTION 2: TRACK SUBSCRIPTION TERMS AND PLAN TYPE
All Track subscriptions require a Telematics Device(s) to connect Subscriber’s equipment to 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 Track subscription is required for each installed Device. At the start of the Initial Term for a subscription, Subscriber must select a plan type for each telematics subscription.Under a monthly plan, Subscriber will pay a monthly service fee (“Service Fee”) for the Track Subscription. Under a bundled plan, Subscriber will pay a monthly amount for the duration of the Initial Term that covers the products and services described in the table above. The amount of the Service Fee, Device charge, and any applicable fees for installation services will be clearly stated on the Track sales order (“Sales Order”).
SECTION 3: SUBSCRIPTION CANCELLATION AND EARLY TERMINATION FEE
If a Subscriber enrolled in a monthly plan cancels a subscription 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 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 ES Track subscription will be defined in a Sales Order.
SECTION 4: BILLING AND LATE FEES
Charges for Track Products, 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.
All charges for Telematics Devices and Installation that are not bundled with a Track subscription on Subscriber’s mobile carrier bill will be invoiced separately by and payable to EquipmentShare, and the following will apply:
● 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 Track subscription(s).
● If an invoice is not paid in full within 30 days of the date the invoice is issued a 5% late fee will be applied to the outstanding balance. An additional 5% late fee will be applied to the outstanding balance every 30 days until the outstanding balance on the invoice is paid in full (Some states may limit the size of late fees that may be charged to an amount less than the amount set forth above. If such a state has jurisdiction over this contract the late fees set forth above will default to the maximum amount permitted by such state or jurisdiction).
● If an invoice is not paid in full within 60 days of the date the invoice is issued EquipmentShare may suspend Subscriber’s access to Track until the past due balance and all late fees are paid.
● If an invoice is not paid in full within 90 days of the date the invoice is issued EquipmentShare may terminate the Subscriber’s Track subscription(s).
If a Track subscription is terminated due to late payment pursuant to this Section 4, Subscriber must pay any applicable Early Termination Fee set forth the Sales Order 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, and arbitration costs). Failure to receive an invoice does not release Subscriber from Subscriber’s obligation to pay.
SECTION 5: TRACK INSTALLATION
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. Track is regularly updated to improve functionality and introduce new features. Accordingly, EquipmentShare reserves the right to change, alter or modify Track at any time. EquipmentShare also reserves the right to add new premium features to Track at any time and to charge Subscriber an additional fee for such premium features if Subscriber chooses to add them to its plan.If Subscriber chooses to have EquipmentShare provide installation services, EquipmentShare will install the Device on Subscriber’s equipment, subject to the limitations, fees, and requirements as defined in the Sales Order. EquipmentShare may provide installation services directly to Subscriber, or through a third-party installation provider.
SECTION 6: 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 Track (the “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 Track Data, including the right to share the 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 Track as accessible through Subscriber’s Track subscription(s).
SECTION 7: WARRANTY AND REPAIR OF DEFECTIVE DEVICE
FOR A PERIOD OF ONE (1) YEAR FROM THE EFFECTIVE DATE OF A SALES ORDER, IF A TELEMATICS DEVICE PURCHASED PURSUANT TO THIS AGREEMENT CEASES TO FUNCTION PROPERLY 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 BEING INSTALLED BY SUBSCRIBER OR A THIRD PARTY. EQUIPMENTSHARE WILL ALSO HAVE NO OBLIGATION TO REPAIR OR REPLACE DEVICES IF: (1) THE WARRANTY FOR THE DEVICE HAS EXPIRED; (2) IF THE TRACK SUBSCRIPTION FOR THE ASSOCIATED TELEMATICS DEVICES IS OTHERWISE TERMINATED PURSUANT TO THIS AGREEMENT; OR (3) THE CUSTOMER HAS A TRIAL SUBSCRIPTION THAT HAS NOT CONVERTED TO A TRACK SUBSCRIPTION. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, TRACK AND THE TELEMATICS DEVICES ARE PROVIDED “AS IS” AND EQUIPMENTSHARE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO 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 8: TRACK SUBSCRIPTION TERMINATION RIGHTS
EquipmentShare reserves the right to immediately suspend or discontinue Track at any time or to cancel this Agreement without penalty to EquipmentShare. If EquipmentShare elects to discontinue Track or terminate this Agreement pursuant to this Section 8 prior to the expiration of the Initial Term of any 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 Track subscription for any Device purchased pursuant to this Agreement at any time. However, if Subscriber is enrolled in a bundled plan and cancels a Track subscription prior to the expiration of the Initial Term, Subscriber must pay the Early Termination Fee as set forth in the Sales Order.
SECTION 9: ACKNOWLEDGEMENT OF AND CONSENT TO EQUIPMENTSHARE’S USE OF TRACK DATA
SUBSCRIBER ACKNOWLEDGES THAT THE TELEMATICS DEVICES COMBINED WITH 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 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 Track settings. Subscriber understands and acknowledges that if the Customer Support User is disabled in the Track settings, Subscriber’s ability to use the Track Services may be diminished, and EquipmentShare will not access User Data unless required to do so by law or to respond to an imminent safety issue. Subscriber further 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 Track Services, improve the Track Services, respond to Subscriber requests, and for other legitimate business purposes.EquipmentShare will ask for Subscriber’s consent before using Subscriber’s information for a purpose other than those set out in this Agreement.
SECTION 10: ACKNOWLEDGMENT OF AND CONSENT TO EQUIPMENTSHARE’S ABILITY TO REMOTELY ACCESS AND CONTROL SUBSCRIBER’S EQUIPMENT THROUGH TELEMATICS DEVICES
Subscriber acknowledges that current and contemplated features of 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, at Subscriber’s sole risk, to respond to an imminent safety issue, or if required to do so by law.
SECTION 11: TRACK SERVICE INTERRUPTIONS
The availability of Track and the ability of the Telematics Devices to communicate with and transmit data to the 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 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 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 Track Services.
SECTION 12: LIMITATIONS OF LIABILITY AND INDEMNIFICATION
USE OF TRACK PRODUCTS IS AT SUBSCRIBER’S SOLE RISK. EQUIPMENTSHARE EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR SUBSCRIBER’S USE OF TRACK PRODUCTS OR FOR ANY LOSS, DAMAGE, OR INJURY TO SUBSCRIBER OR THIRD PARTIES THAT MAY RESULT FROM SUBSCRIBER’S USE OF TRACK PRODUCTS, SUBSCRIBER’S INABILITY TO ACCESS TRACK DUE TO TECHNICAL OR OTHER REASONS, OR THE TERMINATION OR SUSPENSION OF SUBSCRIBER’S ABILITY TO USE OR ACCESS 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.TO THE GREATEST EXTENT PERMITTED BY LAW, SUBSCRIBER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS EQUIPMENTSHARE AND ITS AFFILIATES, DIRECTORS, EMPLOYEES, INVESTORS, 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 ATTORNEYS’ FEES) DIRECTLY OR INDIRECTLY ARISING OUT OF SUBSCRIBER’S TRACK SUBSCRIPTION(S). THIS PROVISION SHALL SURVIVE COMPLETION OF ANY SUBSCRIPTION TERM AND SHALL CONTINUE IN EFFECT NOTWITHSTANDING THE TERMINATION OR BREACH OF ANY AGREEMENTS BETWEEN OR AMONG INDEMNITEES AND SUBSCRIBER.
SECTION 13: INTELLECTUAL PROPERTY
Subscriber acknowledges that the Track Products 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: NON-DISCLOSURE OF INFORMATION
Subscriber agrees not to use Confidential Information 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 this Agreement. Confidential Information means any and all non-public, confidential and/or proprietary information, including intellectual property rights, which EquipmentShare may furnish, disclose, or reveal to Subscriber. Confidential Information shall not include any information that (a) is or becomes generally known or available to the public; (b) was obtained by Subscriber from a third party; (c) was independently developed by Subscriber; or (d) was available to Subscriber on a non-confidential basis. Subscriber agrees that all Confidential Information is owned by EquipmentShare, and EquipmentShare is not transferring any right, title or interest in any Confidential Information to Subscriber. Subscriber agrees to take all reasonable steps necessary to protect and safeguard Confidential Information in its possession, and agrees to immediately notify EquipmentShare in the event it becomes aware that Confidential Information in its possession was disclosed in violation of this Agreement. Subscriber agrees that money damages may not be a sufficient remedy for any breach of this section of the Agreement by the Subscriber 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 15: NO ASSIGNMENT OR TRANSFER OF TELEMATICS DEVICES
Subscriber agrees that this Agreement is personal to Subscriber and that neither the Agreement, Devices, 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 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 Track subscription will be required to sign a Sales Order with EquipmentShare before the transfer of the subscription takes 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 Track subscriptions for those Devices.
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: VENUE AND CHOICE OF LAW
Subscriber agrees that this Agreement and Subscriber’s use of 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 Track, the Telematics Devices or this Agreement will be brought in the federal or state courts of Boone County, Missouri. Both Subscriber and EquipmentShare consent to venue and personal jurisdiction in such courts.