ROM COMMUNICATIONS INC.
The Products and/or Services offered by ROM are available for purchase by Subscriber, subject to these terms and conditions.
Article 1- Definitions:
1.01 In this Agreement, the following terms shall have the meanings ascribed thereto:
(a) “Agreement” means the terms and conditions contained herein upon which ROM agrees to provide the Products and Services;
(b) “Products” means the terminal communication equipment used by Subscribers to access cellular or satellite communications systems.
(c) “ROM” means ROM Communications Inc;
(d) “Services” means wireless asset monitoring, tracking and remote control services, including Internet hosting and application provider services, provided by ROM using cellular or satellite communications systems, and the Internet.
(e) “Subscriber” means any purchaser of the Products and/or Services;
“Territory” means the
2.01 ROM agrees during the term of this Agreement to provide the Services to the Subscriber in the Territory subject to the terms and conditions contained herein.
2.02 Products and Services may be purchased only for end use and Subscriber agrees not to resell any Products or Services, provided however, that the Products may be resold as part of the sale of the remote assets to which such Products are affixed if, as a condition precedent to such sale, the purchaser agrees to be bound by the terms and conditions contained herein.
Article 3 - Termination/Suspension of Service
The term of this Agreement
shall commence upon the THE DATE OF the activation of the Services and shall
continue FOR AN INITIAL TERM OF 36 MONTHS THEREAFTER, provided however, that if
Subscriber does not pay amounts owing to ROM when due or Subscriber breaches an
obligation hereunder, ROM may terminate the Services without notice and without
any liability whatsoever.
THIS AGREEMENT MAY BE RENEWED BY THE PARTIES FOR SUCCESSIVE 36 MONTH
TERMS OR SUCH OTHER PERIOD OF TIME AS MAY BE AGREED TO BY
3.02 The termination of this Agreement shall not affect the obligations of the Subscriber to provide the indemnities set forth in Article 9.
4.01 Subscriber agrees to pay all fees and charges in connection with the purchase and use of Products and Services, including, but not limited to, access charges, airtime, provisioning charges for activation/deactivation, data usage, overages, service plan changes, applicable taxes, deposit(s), shipping and handling [note: consider/ edit these charges] and any other fees, charges or costs that arise out of Products and/or Services (collectively, the "Charges") in advance of or on the established due dates and to pay interest on all overdue Charges as hereinafter specified.
4.02 The entire monthly service fee will be charged for any telemetry device that is active during any portion of that month.
4.03 Subscriber may change the service plan for each device once per calendar year free of charge; changes in excess of that will incur additional fees. Service plan changes take effect upon the first day of the month following the date of the service change request.
4.04 Service prices may be changed upon 30 days written notice.
4.05 All amounts are due and payable within 30 days of the billing date. In the event any amounts due are not paid by the designated due date, the delinquent amount shall bear interest from the due date until the date paid at a monthly interest rate of 1.5%
security for the payment of Charges, ROM may at any time require Subscriber to
provide a deposit (a "Deposit") in a
reasonable amount to be held by ROM. ROM may require Subscriber to increase the
Deposit at any time to reflect Subscriber’s estimated monthly Charges based on
the actual usage of the Service or ROM’s re-evaluation of Subscriber’s ability
to pay. ROM shall have the right to apply all or a portion of the Deposit in
total or partial satisfaction of any non-performance by Subscriber under these
Terms and Conditions. Subscriber’s Deposit will not relieve Subscriber of any
obligation to pay invoices when due nor will it prevent ROM from discontinuing
or restricting delivery of Products and/or Service for non-payment of amounts
Article 5 - Product Warranty
5.01 All Products sold to Subscriber will meet applicable specifications required at the time of sale to enable the provision of the Services, and ROM agrees to correct any ROM software or firmware which Subscriber can demonstrate does not meet the applicable specifications, provided written notice is given to ROM within 1 month from the date of shipment of the Product. This warranty is void in the event of influencing deficiencies, including but not limited to, input signals of poor quality, incomplete or inaccurate process data supplied to ROM by Subscriber, and unauthorized modification by Subscriber. All products carry with them a 1 year warranty on parts against manufacturer’s defects. Subscriber is responsible for the costs associated with retrieving and reinstalling the defective equipment in the field and shipping the defective equipment to the factory. ROM at its sole discretion will repair or replace the defective equipment. ROM will bear the cost of shipping the repaired or replace equipment to the Subscriber.
Article 6 - Software License
6.01 All software programs used in connection with the Products and/or Services which are embodied in human readable source form or machine readable object form and which include, but are not limited to, programs having a series of instructions, statements and data (the “Software Programs”), and related materials provided by ROM are the property of ROM and/or others and are subject to the terms set forth in this paragraph, in which Subscriber is provided solely with a personal and non-exclusive license to use such programs solely for their internal business purposes in the Territory and for execution on the system for which it was provided. This license shall terminate automatically if Subscriber is in breach of this Agreement.
6.02 Subscriber agrees not to reverse engineer, decompile, or disassemble the Software Programs. Software Programs and related material must not be copied.
6.03 No title to intellectual property in the Software Programs or related material is transferred to Subscriber under this license. All copyrights and other intellectual property rights in the Software Programs are owned by ROM and/or its suppliers. The software is protected by Canadian copyright laws and international treaty provisions.
Article 7- Ownership of Data
7.01 All Subscriber data collected by ROM and served through the Services is, and shall always remain the property of Subscriber. ROM agrees to maintain all such data in strict confidence.
7.02 Subscriber must provide ROM with true, accurate, current and complete information for all users Subscriber wishes to authorize on the web site. Subscriber is responsible for maintaining the confidentiality of its account information including password(s) and for all activity conducted under its account(s). Subscriber must notify ROM immediately upon becoming aware of any unauthorized use of it s account(s).
7.03 Subscriber shall have no property right in any address, identification number or any other type of code assigned to Subscriber in connection with any purchased Products and/or Services.
Article 8 - Limitations and Exclusions of Liability
8.01 Subscriber acknowledges that the Services provided by ROM are dependent upon services, networks and other facilities provided to ROM by third parties. Satellite based data communication services are provided to ROM pursuant to an agreement with ORBCOMM LLC and are subject to the terms, conditions and exclusions contained therein. Cellular based communication services are provided to ROM pursuant to an agreement with Aeris Communications Inc. and are subject to the terms, conditions and exclusions contained therein, and in agreements between Aeris and one or more participating cellular carriers. (ORBCOMM, Aeris, such participating cellular carriers, and their affiliates are collectively referred to as “Third Party Service Providers”).
8.02 ROM shall provide the Services on a good faith efforts basis but ROM does not guarantee uninterrupted or error-free Service or receipt of data transmitted over or through networks of other companies or the Internet, and ROM makes no representations as to coverage or quality of service. Subscriber acknowledges that failure or interruption of Services may occur from time for reasons including, but not limited to, placing Products in locations that preclude communication with the relevant communication system, environmental conditions, technical limitations, defects or failures, or other causes beyond ROM’s control. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THIRD PARTY SERVICE PROVIDERS AND ROM: (i) DISCLAIM ALL WARRANTIES RELATING TO THE SERVICES OR ANY PORTIONS THEREOF INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY ARISING FROM COURSE OF CONDUCT OR USAGE OF TRADE, OR ANY IMPLIED WARRANTY AS TO THE ACCURACY, AVAILABILITY OR CONTENT OF THE SYSTEMS OR SERVICES, AND; (II) DISCLAIM ALL LIABILITY TO THE SUBSCRIBER, OF ANY NATURE, WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL ARISING OUT OF SUBSCRIBER’S USE OF THE SERVICES, AND SUBSCRIBER AGREES THAT SUBSCRIBER SHALL HAVE NO CLAIMS AGAINST ANY THIRD PARTY SERVICE PROVIDERS OR ROM OF ANY KIND WITH RESPECT THERETO.
8.03 Without limiting the generality of the foregoing, neither the Third Party Service Providers nor ROM shall be liable to Subscriber for any losses or damages of any kind whatsoever arising out of any failure of performance, error, omission, interruption, deletion, defect, damage, delay in transmission, communication line failure, theft or destruction or unauthorized access to, alteration of or use of the records associated with the Services or such portion thereof provided by Third Party Service Providers, whether for breach of contract, tortious behaviour, negligence or under any other cause of action. IN NO EVENT SHALL THIRD PARTY SERVICE PROVIDERS OR ROM HAVE ANY OBLIGATION OR LIABILITY TO SUBSCRIBER UNDER THIS AGREEMENT FOR THE LOSS OF USE, REVENUE, PROFIT, BUSINESS OPPORTUNITIES OR ANY OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
8.04 ROM’s goods are not designed, intended or authorized for use in life support, life sustaining, nuclear or other applications where the failure of such goods could reasonably be expected to result in personal injury, loss of life or catastrophic property damage.
8.05 In no event shall any liability of ROM exceed the total amount of Charges paid by the Subscriber during the 1 month preceding the event which gave rise to the claim, and in no event shall the liability of ORBCOMM and its affiliates exceed the amount of One Thousand U.S. Dollars (US$1,000.00).
Article 9 - Indemnity
9.01 Subscriber will indemnify ROM for all damages, expenses, losses, claims or judgements sustained by or made against ROM in connection with the Subscriber’s use or misuse of the Services or breach of this Agreement.
9.02 Subscriber will:
(a) defend, at its own expense, any suit or proceeding against ROM or any Third Party Service Provider for the infringement of any patent or copyright by any services, systems, products or parts deployed by or on behalf of Subscriber in combination or in connection with the Services or any related services provided by Third Party Service Providers, where the Services or such related services would not be infringing without such combination and/or connection, and
(b) pay all damages and costs awarded against ROM or any Third Party Service Provider because of the infringement.
Article 10 - Force Majeure
10.01 Neither party shall be considered in default of performance of obligations hereunder to the extent that such performance of such obligations, or any of them, is affected by Force Majeure.
10.02 Force Majeure shall include, but not be limited to, hostilities, restraint of rulers or peoples, revolution, civil commotion, strike, epidemic, accident, fire, flood, wind, earthquake, explosion, blockage, embargo, lack of or failure of transportation facilities or any law, proclamation, regulation or ordinance, demand or requirement of any Government of Governmental agency having or claiming to have jurisdiction over the Services or with respect to materials purchased for the Services, or over the parties hereto, or any Act of God, or other act of Government, or any cause whether of the same or different nature existing or future, which is beyond the control and without the fault or negligence of the parties hereto. Lack of funds and shall not be considered to be Majeure.
Article 11 - Notices:
11.01 All notices and other communications hereunder shall be in writing and shall be deemed given upon receipt if delivered personally, by facsimile or by any electronic means (answer back received), one business day after being sent by express mail or courier, or three business days after being sent by registered or certified mail, return receipt requested, postage prepaid, to the Subscriber at the last address provided by the Subscriber to ROM for billing purposes, or the ROM at the following address:
ROM Communications Inc.
Facsimile: (250) 860-3763
Article 12 - Miscellaneous
12.01 This Agreement shall bind ROM and Subscriber, and their respective heirs, successors and permitted assigns. Subscriber shall not assign this Agreement without ROM’s prior written consent.
Agreement is governed by the laws of
(a) irrevocably submits to the exclusive jurisdiction of the courts of Alberta, for the purpose of any suit, action or other proceeding arising out of or based on this Agreement or the subject matter hereof, and
(b) waives to the extent not prohibited by law, and agrees not to assert, by way of motion, as a defence or otherwise, in any such proceedings, any claim that it is not subject personally to the jurisdiction of the courts of Alberta, that any such proceeding brought in such courts is improper, or that this Agreement or the subject matter hereof may not be enforced in or by such court.
12.03 No delay or failure b
y either party to exercise or enforce at any time any right or provision hereof shall be considered a waiver thereof, or of such party’s right thereafter to exercise or enforce each and every right and provision of this Agreement. A waiver or amendment hereto shall be effective only if it is in writing and signed by an authorized representation of each of ROM and Subscriber. No single waiver shall constitute a continuing or subsequent waiver.
12.04 Should any part of this Agreement be held to be void by a court of competent jurisdiction, it will be severed from this Agreement without affecting the enforceability of the remainder of the Agreement.
12.05 This Agreement is the complete and exclusive statement of the agreement of ROM and Subscriber relating to the subject matter hereof and supercedes and replaces all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties.