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Terms & Conditions – Ecotrac® Services
This agreement ("Agreement") describes the terms and conditions regarding
all "Activation Plans," "Command Packages," hardware and any
other services purchased by you (hereinafter referred to as "Subscriber")
from Ecotrac® a division of MOC Products Company, Inc. (hereinafter
referred to as "Ecotrac"). These terms and conditions also apply to additional
services and any updates and improvements to services selected by Subscriber at
this time or hereafter (all of the above collectively referred to as the "Services").
Subscriber’s purchase, activation and/or receipt of Ecotrac Services shall
constitute Subscriber’s agreement to be bound by these terms and conditions.
1. Availability & Interruption of Services. Services
are available to Subscriber only: (a) within the 48 contiguous United States, Alaska,
Hawaii, Puerto Rico and Mexico; (b) if hardware enabling the Services ("Hardware")
is installed correctly according to the instruction manual, (c) when the Ecotrac
equipped vehicle ("Vehicle") is within the operation range of the wireless
service provider; and (d) during the period for which Subscriber paid for Services.
Subscriber acknowledges and agrees that no form of communication
is error-free and that Services are subject to wireless transmission capacity and
equipment limitations, atmospheric and topographic conditions, configuration of
the Vehicle and other conditions Ecotrac does not control. Signals from the Vehicle
are transmitted to Ecotrac over wireless networks and, if signal transmissions or
Services are interrupted at any time or for any reason, such events are wholly beyond
Ecotrac’s control. Global-positioning capabilities used to deliver Services
will not be available if satellite signals are obstructed. Thus, certain Services
will not be available in all areas at all times. Ecotrac will use reasonable efforts
to contact the appropriate third-party service provider and request assistance,
but cannot promise they will respond in a timely manner, or at all. Ecotrac will
not be liable if the Services are interrupted by strike, riot, flood, storms, earthquakes,
fires, power failures, insurrection, interruption or unavailability of telephone
service, faulty telephone lines, faulty or unavailable cellular/radio transmitters
and/or receivers, any damage to Ecotrac’s equipment or facilities, acts of
God, or any other cause beyond the control of Ecotrac. Ecotrac is not required to
provide the Services while any such interruption continues.
2. Subscriber Responsibilities. It is the Subscriber’s responsibility
to ensure that the Hardware is properly installed and maintained. The Hardware must
be installed in Subscriber’s vehicle in accordance with Ecotrac’s installation
instructions. Correct placement and mounting of the Hardware in accordance with
the supplied installation instructions is critical to its proper operation. Improper
mounting location or procedure may result in complete or partial loss of functionality
of the Hardware. Ecotrac shall not be liable to Subscriber or to any person for
any loss or damage caused by improper installation of the Hardware, and all warranties
provided for herein shall be void in the event the Hardware is improperly installed.
The Hardware may not function if the vehicle’s battery is discharged or disconnected
for more than 3 hours. Ecotrac may change the Hardware’s software or programming
over the air without notice. Subscriber’s Hardware may also contain software
that prevents it from being used with any other company’s wireless service.
Subscriber will promptly notify Ecotrac if the Hardware, Services, features or signal
is not working properly. Subscriber acknowledges and agrees that the use of any
information, including, without limitation, financial transaction activity, financial
account information, and other information or features available through the use
of the Services is at subscriber’s sole risk and responsibility. Subscriber
is solely responsible for any features or commands that are activated or modified,
and the use of data or services obtained using Subscriber’s Account Identification
Number ("Account ID") or other Security data, including, but not limited
to Subscriber’s password. None of the third-party service providers shall be
under a duty to inquire as to the authority or propriety of any instructions given
through the Services by Subscriber, or via Subscriber’s Account ID, or other
security data. Subscriber acknowledges and agrees that Ecotrac and any third-party
service providers shall not be liable for any loss, cost, expense or other liability
arising out of any such instructions. Services made available by, or in conjunction
with, third parties are subject to the terms and conditions set forth by such third
party in applicable user or other agreements.
If Subscriber determines that Subscriber’s vehicle has been moved or is "missing",
Ecotrac has no way of determining whether Subscriber’s vehicle was stolen,
borrowed, towed or moved for any other reason. Therefore, Subscriber acknowledges
and agrees that Ecotrac’s sole obligation in such an event is to attempt to
locate or "track" Subscriber’s vehicle in accordance with the terms
and conditions of this Agreement. If Subscriber believes that Subscriber’s
vehicle has been stolen, it is Subscriber’s sole responsibility to contact
the appropriate law enforcement authority, file required reports and initiate the
stolen-vehicle recovery process. The Services are for vehicle location and communication
with the Hardware only, and are not intended as emergency services. The Services
have no connection to any law enforcement agency or emergency services personnel.
Ecotrac accepts no responsibility or liability for use of the Hardware or Services
in emergency situations and does not contact or communicate with law enforcement
agencies on Subscriber’s behalf. If needed, Subscriber must contact the appropriate
law enforcement agency or emergency services personnel yourself to obtain assistance.
Compliance with Law. Subscriber is responsible for the use of the Hardware and the
Services, including any optional services selected. Subscriber agrees to comply
with all applicable laws, ordinances, rules and regulations of applicable federal,
state, local or foreign government and any agency or public authority thereof, and
to hold Ecotrac harmless from liability or loss by reason of any asserted or established
violation of said laws, rules, or regulations by Subscriber, subscriber’s employees,
agents or representatives.
Subscriber is responsible for notifying Ecotrac of any change in ownership of the
vehicle within 60 days after the sale. Further, Subscriber is responsible for ensuring
that Vehicle is "activated" for Services. Subscriber agrees not to use
the Services for any fraudulent, unlawful or abusive purpose or in a way that interferes
with, creates or risks damage to Ecotrac’s business, reputation, employees,
facilities, third parties, including, but not limited to, the wireless carriers.
A breach of this covenant may result in termination of this Agreement, forfeiture
of any refunds and/or discontinuation of Services by Ecotrac. Subscriber will be
responsible for payment of all expenses incurred by Ecotrac as a result of such
fraudulent, unlawful or abusive use.
If Ecotrac determines that Subscriber’s usage of any
Services is so excessive that it interferes, or could interfere, with Ecotrac’s
ability to provide Services to other customers, or if Ecotrac determines that Subscriber’s
usage constitutes a nuisance, or is otherwise not consistent with the terms of this
Agreement, then Ecotrac may, in its discretion, suspend, modify or terminate the
Services provided to Subscriber without advance notice.
3. Ecotrac’s Obligation. Subscriber and Ecotrac
agree that Ecotrac’s only obligation under this agreement is to send and receive
tracking information for Subscriber’s vehicle and make a reasonable effort
to notify the appropriate party, including those whose names and telephone numbers
or e-mail address are listed in the Notification section of the Subscriber’s
Unit/Vehicle Information webpage. Because contact information found in the Notification
Section is entered and modified solely by Subscriber, Ecotrac shall have no duty
to investigate whether the information found in the Notification Section, or any
other section of Subscriber’s Account, Unit, and Vehicle Information webpage
is accurate or has been changed. Ecotrac shall have no duty to inspect and test
the vehicle or any vehicle systems.
4. Payments. Charges for Activation plans and "Command"
packages are payable in advance upon execution of this Agreement, and before the
Activation plan expiration date for any renewal thereof. If Subscriber has authorized
charges to be made against a credit card account, Ecotrac will charge amounts due,
including any additional administrative or other fees due according to these terms,
to the credit card account prior to the due date. No additional notice or authorization
shall be required for such charges. Subscriber may view details for such charges
in the Subscriber’s web page. Inquiries about, or objections to, charges must
be in writing and must be received by Ecotrac no later than ninety (90) days after
the charge is incurred; provided, however, all amounts due Ecotrac, including disputed
amounts, must be paid to Ecotrac when due. Ecotrac will make good faith efforts
to resolve disputes in accordance with Ecotrac procedures. In addition to the costs
of Services provided under this Agreement, Subscriber shall pay any applicable federal,
state, and local taxes, fees, surcharges and other similar charges that are assessed
based on provision of Services to Subscriber.
5. Activation, Transfer and Termination of Service. Ecotrac is not obligated
to begin providing the Services or "activate" until: (1) it has received
payment from Subscriber of all required charges and (2) Subscriber has accepted
the terms and conditions of this Agreement during the online activation process.
Ecotrac will accept requests to reactivate, transfer or terminate Services for Subscriber’s
vehicle only from Subscriber or Subscriber’s agent. Upon notification to Ecotrac
of change of ownership, Subscriber has two options related to transfer or termination
of Services and Hardware. The first option is to remove Hardware and reinstall it
in another vehicle owned by Subscriber, leaving Services and Subscriber’s account
unaffected. The second option is to leave Hardware in the vehicle being sold and
request a transfer of Hardware and the remaining balance of the Activation Plan
to a new account ("Buyer"). The Buyer shall then be required to contact
Ecotrac to "activate" Services. A transfer fee of $25.00 will be charged
to the Buyer at the time of activation. This Agreement shall remain effective until
termination as provided in the following paragraph.
Subscriber may terminate this Agreement upon delivery of written notice at any time,
and for any reason. Upon termination, Services will be disabled. Ecotrac has the
right to discontinue Services and/or terminate this Agreement at any time without
notice if Subscriber’s Activation Plan expires and is not renewed, or if Subscriber
defaults in the payment of any sum hereunder, breaches any obligation or representation
herein, or fails to perform any of the Subscriber’s obligations at the time
and in the manner specified herein. This Agreement shall terminate immediately without
liability if the authorizations held by Ecotrac or the Service Providers are revoked
by the FCC or other authority governing the provision of the Services. Upon termination,
Services will be disabled. In such event, Subscriber agrees that Ecotrac may stop
monitoring or processing any signals that may be associated herewith, which will
include the providing and availability of all emergency services.
The remedies in this Section are not exclusive, but are in addition to all other
remedies provided by law or in equity. Ecotrac’s failure at any time to require
strict performance by Subscriber of any of Subscriber’s obligations shall not
waive Ecotrac’s right to demand strict compliance with any provision of this
Agreement. In the event of termination by Subscriber or Ecotrac pursuant to this
Section, Subscriber will be responsible for payment of all outstanding balances
accrued under this Agreement through the date of termination, and such charges shall
be immediately due and payable. Subscriber is not entitled to a refund for the cost
of hardware, or the unused portion of an "Activation Plan" or "Command"
package.
6. Changes to Service and Terms & Conditions. Ecotrac reserves the
right to modify any and all terms, including but not limited to, rates, charges,
scope of Services, Activation Plans, "Command" packages promotions and
other such programs at any time during the term of this Agreement upon notice to
Subscriber (see Section 7 "Notice"). Subscriber has the right to terminate
this Agreement if Subscriber does not accept any such changed terms. If Subscriber
does not terminate this Agreement within fifteen (15) days after receiving our notice
of a change, it will be conclusively deemed that Subscriber accepts the changed
terms and, accordingly, they will be binding on Subscriber and Ecotrac.
7. Notice. Notices to Subscriber shall be deemed
given if deposited in the U.S. Mail, addressed to the address existing in the Subscriber’s
webpage at the time of mailing. Notice to Ecotrac shall be deemed given when received
by Ecotrac at the following address, or when Subscriber calls Ecotrac pursuant to
the terms herein: 12280 Montague Street, Pacoima CA, 91331.
8. No Warranties. HARDWARE IS COVERED BY A LIMITED
WARRANTY SPECIFIED IN THE ECOTRAC INSTALLATION MANUAL; HOWEVER, ECOTRAC, ITS DISTRIBUTORS,
AGENTS, REPRESENTATIVES, VEHICLE DEALERS, WIRELESS SERVICE PROVIDERS, THIRD-PARTY
SERVICE PROVIDERS MAKE NO WARRANTIES, EXPRESSED OR IMPLIED, REGARDING SERVICES,
INCLUDING, WITHOUT LIMITATION, THE ACCESS, SPEED OR AVAILABILITY THEREOF, ACCURACY
OF INFORMATION, CONTENT, OR OTHER MATERIAL PROVIDED OR MADE AVAILABLE HEREUNDER,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
OR THAT THE SERVICES WILL IN ALL CASES PROVIDE THE PROTECTION, NOTIFICATION OR INFORMATION
FOR WHICH IT WAS INTENDED. ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED.
9. Limitation of Liability & Indemnification.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN, NONPERFORMANCE HEREUNDER BY ECOTRAC AND
ITS THIRD-PARTY SERVICE PROVIDERS ("SERVICE PROVIDER") SHALL BE EXCUSED
IF CAUSED BY ACT OR OMISSION OF A SERVICE PROVIDER. EQUIPMENT FAILURE, ACTS OF GOD,
STRIKES, EQUIPMENT OR FACILITY SHORTAGE, OR OTHER CAUSES BEYOND SERVICE PROVIDERS’
CONTROL. NEITHER ECOTRAC NOR ANY OTHER SERVICE PROVIDER IS LIABLE TO SUBSCRIBER
FOR INTERRUPTED SERVICES OR PROBLEMS CAUSED BY, OR CONTRIBUTED TO BY, SUBSCRIBER,
BY ANY THIRD PARTY, BY BUILDINGS, HILL, TUNNELS, NETWORK CONGESTION, ATMOSPHERIC
CONDITIONS OR OTHER THINGS SERVICE PROVIDER DOES NOT CONTROL, OR BY ANY ACT OF GOD
OR NATURAL DISASTER.
IN ADDITION, THE LIABILITY OF ECOTRAC FOR ANY MISTAKE, OMISSION, INTERRUPTION, DELAY,
ERROR, DEFECT, UNAUTHORIZED ACCESS, THEFT, OR OTHER FAILURE IN THE SERVICES FURNISHED
SHALL IN NO EVENT EXCEED THE AMOUNT OF THE PRORATED ACTIVATION PLAN CHARGES TO SUBSCRIBER
FOR SAID SERVICE DURING THE PERIOD SO AFFECTED, PROVIDED THAT NO LIABILITY SHALL
RESULT FROM OUTAGES OF 48 HOURS OR LESS.TO RECEIVE CREDIT, SUBSCRIBER MUST NOTIFY
ECOTRAC WITHIN 30 DAYS AFTER THE TIME WHEN THE INTERUPTION STARTED. BY ENTERING
THIS AGREEMENT SUBSCRIBER AND ECOTRAC ARE WAIVING INPORTANT RIGHTS. SUBSCRIBER AGREES
THAT ECOTRAC’S MAXIMUM LIABILITY TO SUBSCRIBER UNDER ANY THEORY (INCLDING,
BUT NOT LIMITED TO FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY,
OR PRODUCT LIABILITY) IS LIMITED TO AN AMOUNT EQUAL TO THE PORTION OF THE CHARGES
TO SUBSCRIBER FOR THE SERVICES RELATING TO THE PERIOD OF SERVICE DURING WHICH SUCH
DAMAGES OCCUR. IN NO EVENT SHALL ECOTRAC BE LIABLE TO SUBSCRIBER FOR: (1) ANY COST,
DELAY OR INCIDENTAL, GENERAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE SERVICES
PROVIDED UNDER THIS AGREEMENT; OR (2) INJURIES TO PERSONS OR PROPERTY ARISING FROM
THE SUBSCRIBER’S USE OF THE HARDWARE OR THE SERVICE OR THE INSTALLATION, REPAIR
OR MAINTAINENCE OF THE HARDWARE BY OTHER THAN AN AUTHORIZED ECOTRAC DEALER. SUBSCRIBER’S
MAXIMUM LIABILITY TO ECOTRAC HEREUNDER UNDER ANY THEORY (INCLDING BUT NOT LIMITED
TO FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, OR PRODUCT LIABILITY)
IS LIMITED TO CHARGES DUE AND OWING TO ECOTRAC BY SUBSCRIBER. NEITHER SUBSCRIBER
NOR ECOTRAC CAN RECOVER: (A) PUNITIVE DAMAGES; (B) TREBLE, CONSEQUENTIAL, INDIRECT
OR SPECIAL DAMAGES; OR (C) ATTORNEY’S FEES.
THE SERVICE MAY INCLUDE OR REFLECT DATA OR SERVICES OF THIRD-PARTY PROVIDERS. SUCH
DATA IS LICENSED ON AN "AS IS" BASIS AND SERVICE PROVIDERS SHALL NOT BE
LIABLE IN ANY RESPECT TO SUBSCRIBER FOR SUBSCRIBER’S USE OF SUCH DATA OR SERVICES.
SERVICES PROVIDERS: (1) MAKE NO GUARRANTEES, REPRESENTATIONS OR WARRANTIES RESPECTING
SUCH DATA, EITHER EXPRESSED OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT
NOT LIMITED TO, EFFECTIVENESS, COMPLETENESS, ACCURACY, TIMELINESS, OR FITNESS FOR
A PARTICULAR PURPOSE; (2) SHALL NOT BE LIABLE IN RESPECT OF ANY CLAIM, DEMAND OR
ACTION, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND OR ACTION ALLEGING
ANY LOSS, INJURY OR DAMAGES, DIRECT OR INDIRECT, WHICH MAY RESULT FROM THE USE OR
POSSESSION OF THE DATA OR SERVICES; (3) SHALL NOT BE LIABLE IN ANY WAY FOR LOSS
OF REVENUES OR CONTRACTS, OR ANY OTHER CONSEQUENTIAL LOSS OF ANY KIND RESULTING
FROM ANY DEFECT IN THE DATA.
SUBSCRIBER SHALL INDEMNIFY AND HOLD HARMLESS THE SERVICE PROVIDERS, THEIR OFFICERS,
EMPLOYEES, AFFILIATES AND AGENTS FROM AND AGAINST ANY CLAIMS, IRRESPECTIVE OF THE
NATURE OF THE CAUSE OR THE CLAIMS, ALLEGING LOSS, COSTS, EXPENSES, DAMAGES OR INJURIES
(INCLUDING INJURIES RESULTING IN DEATH) ARISING OUT OF OR IN CONNECTION WITH: (1)
THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT, WHETHER BROUGHT BY SUBSCRIBER, SUBSCRIBER’S
EMPLOYEES OR THIRD PARTIES, EVEN IF OCCASIONED BY THE SOLE NEGLIGENCE OF ANY OF
THE SERVICE PROVIDERS; (2) THE USE OR POSSESSION OF THE DATA PROVIDED IN CONNECTION
WITH THE SERVICES; (3) CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE OR PERSONAL
INJURY, ARISING IN ANY WAY DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT;
(4) THE USE, FAILURE TO USE, OR INABILITY TO USE THE SERVICES, EXCEPT WHERE THE
CLAIMS RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY OF THE SERVICE
PROVIDERS. SUBSCRIBER FURTHER AGREES THAT IT WILL NOT SUBROGATE ITS RIGHTS WITH
RESPECT TO ANY SUCH CLAIM. SUBSCRIBER AGREES TO INDEMNIFY ECOTRAC AGAINST, DEFEND,
AND HOLD ECOTRAC HARMLESS FROM ANY ACTION FOR SUBROGATION WHICH MAY BE BROUGHT AGAINST
ECOTRAC BY ANY INSURER OR INSURANCE COMPANY OR ITS AGENTS OR ASSIGNS, INCLUDING
THE PAYMENT OF ALL DAMAGES, EXPENSES, COSTS AND ATTORNEYS’ FEES. SUBSCRIBER
SHALL NOTIFY ITS INSURANCE CARRIER OF THE TERMS OF THIS PROVISION. IN THE EVENT
THAT SUBSCRIBER HAS AUTHORIZED ECOTRAC TO CHARGE AMOUNTS DUE AGAINST SUBSCRIBER’S
CREDIT CARD ACCOUNT, THE INDEMNIFICATION AND HOLD-HARMLESS AGREEMENT CONTAINED IN
THIS PARAGRAPH SHALL EXTEND TO CLAIMS, EXPENSES, LIABILITIES OR DAMAGES ARISING
IN CONNECTION WITH USE OR OWNERSHIP OF THE CREDIT CARD ACCOUNT OR FROM ISSUER’S
REFUSAL TO PAY AMOUNTS CHARGED TO SUCH CREDIT CARD ACCOUNT.
SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT SUBSCRIBER HAS NO CONTRACTUAL RELATIONSHIP
WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER(S) AND THAT SUBSCRIBER
IS NOT A THIRD-PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN ECOTRAC AND THE UNDERLYING
WIRELESS SERVICE PROVIDER(S). IN ADDITION, SUBSCRIBER EXPRESSLY UNDERSTANDS AND
AGREES THAT THE UNDERLYING WIRELESS SERVICE PROVIDER SHALL HAVE NO LEGAL, EQUITABLE,
OR OTHER LIABILITY OF ANY KIND TO SUBSCRIBER, AND SUBSCRIBER HEREBY WAIVES ANY AND
ALL CLAIMS OR DEMANDS THEREFORE.
Subscriber understands and agrees that Ecotrac is providing Services as a convenience;
that the payments Subscriber provides are based solely on the value of the Services
and are unrelated to the value of the Vehicle or other assets utilizing the Hardware,
any property therein, or the cost of any injury to or damages suffered by Subscriber;
that Ecotrac is not an insurer and that Subscriber should obtain and maintain insurance
covering personal injury and/or loss of property. SUBSCRIBER HEREBY, FOR YOURSELF
AND OTHER PARTIES CLAIMING UNDER SUBSCRIBER, RELEASE AND DISCHARGE SERVICE PROVIDERS
AND THEIR RESPECTIVE OFFICERS, EMPLOYEES AND AFFILIATES FROM AND AGAINST ALL HAZARDS
COVERED BY SUBSCRIBER’S INSURANCE, IT BEING EXPRESSLY AGREED AND UNDERSTOOD
THAT NO INSURANCE COMPANY OR INSURER WILL HAVE ANY RIGHT OF SUBROGATION AGAINST
SERVICE PROVIDERS. SUBSCRIBER AND ECOTRAC AGREE NOT TO MAKE, AND TO WAIVE TO THE
FULLEST EXTENT ALLOWED BY LAW, ANY CLAIMS FOR DAMAGES OTHER THAN DIRECT COMPENSATORY
DAMAGES AS LISTED ABOVE. Some states do not allow the exclusion or limitation of
incidental or consequential damages, so some of the above limitations may not apply.
If any limitations do not apply, the balance of this Agreement shall be unaffected
and shall remain enforceable.
THE LIMITATIONS OF LIABILITY AND INDEMNITIES IN THIS SECTION APPLY TO CLAIMS MADE
BY SUBSCRIBER, SUBSCRIBER’S EMPLOYEES, SUBSCRIBER’S CUSTOMERS, AND ANY
THIRD PARTIES MAKING CLAIMS HEREUNDER, AND SURVIVE TERMINATION OF THIS AGREEMENT.
10. Assignment. Ecotrac may assign in whole or in
part, its rights or duties under this Agreement without Subscriber’s consent.
However, Subscriber cannot assign this agreement without the prior written consent
of Ecotrac. Subject to this restriction, this Agreement shall apply to, inure to
the benefit of, and be binding upon the heirs, successors, subcontractors and assignees
of the respective parties. This includes, without limitation, the limitation of
liability provisions contained herein. Ecotrac is not responsible, however, for
any work performed negligently by any third party.
11. Entire Agreement & Waiver. This Agreement
represents the final and entire agreement between Ecotrac and Subscriber. This Agreement
can not be amended, altered or modified except by a writing signed by Ecotrac and
Subscriber. This Agreement replaces and supersedes all prior agreements, representations
or contracts, written or oral. If any provision of this Agreement is determined
to be invalid by a court of competent jurisdiction, the balance of the provisions
shall remain enforceable and in full force and effect. No waiver of any provision
of this Agreement shall be deemed a waiver of any other provision hereof, or of
any subsequent breach of the same or any other provision.
12. Governing Law. The parties agree that this agreement,
including all matters related to validity, construction, performance and enforcement
hereof, shall be interpreted in accordance with, and be governed by, the laws of
the State of California, without reference to its conflict-of-laws provisions, applicable
federal law.
13. No Agency. Nothing contained in this agreement
shall be construed as creating a partnership, joint venture, or an appointment of
Subscriber as an agent or employee of Ecotrac or a third-party service provider.
Under no circumstance shall Subscriber hold him or herself out to be an agent of
Ecotrac or any third-party service provider.
14. Third Party Beneficiary. Service providers are
intended to be third-party beneficiaries under this Agreement. Subscriber agrees
that he or she is not a third-party beneficiary of any agreement entered into by
Ecotrac with any third party.
15. Dispute Resolution & Arbitration. Ecotrac
and Subscriber hereto agree to mediate any dispute or claim between them arising
out of this Agreement or any resulting transaction before resorting to arbitration/litigation.
Mediation is a process in which the parties attempt to resolve a dispute by submitting
it to an impartial, neutral mediator who is authorized to facilitate the resolution
of the dispute, but who is not empowered to impose a settlement upon the parties.
The mediation fee, if any, shall be divided equally between the parties involved.
Before the mediation begins, the parties agree to sign a document limiting the admissibility
in arbitration/litigation of anything said, any admission made, and any documents
prepared, in the course of the mediation, consistent with CALIFORNIA
EVIDENCE CODE §1119 et.seq. IF ANY PARTY COMMENCES AN ARBITRATION AND/OR LITIGATION
BASED ON A DISPUTE OR CLAIM TO WHICH THIS PARAGRAPH APPLIES WITHOUT FIRST ATTEMPTING
TO RESOLVE THE MATTER THROUGH MEDIATION, THAT PARTY SHALL NOT BE ENTITLED TO RECOVER
ATTORNEYS’ FEES EVEN IF THEY WOULD OTHERWISE BE AVAILABLE TO THAT PARTY IN
ANY SUCH ARBITRATION/LITIGATION. Except as provided in the preceding
sentence, in the event of any litigation or arbitration arising in any manner out
of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs. The venue for any mediation/arbitration/litigation arising
out of this Agreement shall be Los Angeles, California.
Any dispute or claim at law or in equity between the parties to this Agreement which
arises out of this Agreement or any resulting transaction which is not resolved
through the mediation process shall be settled by neutral, binding arbitration and
not by court action, except as provided by California law for judicial review of
arbitration proceedings. The arbitration shall take place in Los Angeles, California,
and shall be conducted by the American Arbitration Association ("AAA")
under Wireless Industry Arbitration ("WIA") rules by a neutral arbitrator.
The rules of arbitration differ from the rules of court; even if applicable laws
permit class actions or class arbitration, Subscriber waives any rights to pursue
on a class basis any such claim or controversy against Ecotrac, third-party providers,
or any of their affiliates or predecessors in interest. Ecotrac waives any right
to pursue on a class basis any controversy or claim against Subscriber. No arbitrator
has authority to award relief in excess of what this Agreement provides, or to order
consolidation or class arbitration. In the event that foregoing arbitration requirements
do not apply, Subscriber and Ecotrac each waive, to the fullest extent allowed by
law, any trial by jury, and a judge will decide any and all disputes. All parties
agree that no suit, claim or action arising out of this Agreement, whether based
upon contract, negligence or otherwise, shall be brought against the other more
than one (1) year after the date on which the event giving rise to the cause of
action occurred.
16. Personal, Vehicle Information & Privacy.
Subscriber agrees that to provide Services, Ecotrac may collect personal information
about Subscriber, or Subscriber’s use of the Services. Subscriber understands
and agrees that in conjunction with employee training, quality control and the provision
of Service, Ecotrac or third-party providers may monitor and/or electronically record
Subscriber’s conversations. Subscriber understands that privacy cannot be guaranteed
on the systems used to provide the Services. Further, Subscriber understands and
agrees that Ecotrac or third-party providers may access Subscriber’s online
account to activate features or "commands" at Subscriber’s request,
or perform customer support and administrative activities. Subscriber consents to
Ecotrac: (i) using information about Subscriber, Subscriber’s vehicle(s) or
vehicle’s location to administer Services, offer new products or services,
enforce the terms of this agreement, prevent fraud and respond to regulatory and
legal requirements, (ii) electronically locating Subscriber’s vehicle(s) in
conjunction with providing Services, if Subscriber is in default of this agreement
or any finance, lease or rental agreement where the finance, lease or rental company
is authorized to repossess the vehicle or provide vehicle(s) location to the creditor,
lessor or rental company; (iii) providing speed alert, "geofence" and
vehicle location information from Subscriber’s vehicle to Subscriber’s
vehicle insurance provider, if providing such information is a condition of Subscriber’s
vehicle insurance policy; (iv) sharing Information with the vehicle manufacturer
and dealer in conjunction with the Services; (v) providing Information to a third-party
provider and/or law-enforcement personnel for the purposes of providing Services
hereunder or in response to a subpoena or other such legal process; and (vi) using
and sharing aggregate customer information and statistics that do not include information
that identifies Subscriber personally. SUBSCRIBER ACKNOWLEDGES THAT IT IS THEIR
RESPONSIBILITY TO ADVISE ALL OCCUPANTS OR USERS OF THE HARDWARE AND SERVICES ABOUT
HOW INFORMATION ABOUT THEM MAY BE COLLECTED, USED AND DISCLOSED.
17. Proprietary Right to Content. Subscriber acknowledges
that content and features found on Subscriber’s personal web page provided
as part of the Services by Ecotrac and content transmitted through the Services
("Content") is the proprietary content of Ecotrac and/or its third-party
providers. The Content is protected by Copyright, trademark, service mark, patent
or other proprietary rights and laws. Subscriber may only use the Content as expressly
authorized by Ecotrac, and may not use the Content for commercial purposes unless
otherwise authorized. Subscriber may not copy, reproduce, store, distribute, modify,
publish, transmit, perform broadcast, or create derivative works from the Content.
REV: 4,022909
© MOC Products Company, Inc., 2009
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