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;
(f)
“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
3.01
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%
4.06
As
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
due to
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.
12.02
This
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.