Purchase Agreement

PURCHASE & INSTALLATION AGREEMENT PLEASE READ THIS PURCHASE AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT INFORMATION CONCERNING YOUR RIGHTS AND OBLIGATIONS WITH REGARD TO YOUR PURCHASE OF TRAKLOC PRODUCTS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE THIS AGREEMENT is made and entered into by and between TrakLoc Australia Pty Ltd A.B.N. 62 135 858 55 and including any United States designated nominee company located at 23 Shearwater Drive Carrum Downs, Melbourne Australia (hereinafter referred to as "TrakLoc"), and The customer purchasing the product being: Name: Address: _______________________________ _______________________________ _______________________________ (hereinafter referred to as "You and Your"). Recitals 1. TrakLoc is the designer and developer of the Remote Brake Activation Unit (herein after referred to as "RBAU") with the right to sell and distribute the RBAU and its associated software; 2. You are an individual, an organization, a corporation, a government entity or a member of a joint venture who will make use of the RBAU in Your business activity; and 3. You have purchased the RBAU and TrakLoc desires to sell the RBAU to You for the sole purpose of permitting You to use the Product in Your business activity and for no other purpose whatsoever; Page 1 of 10 Agreements You hereto agree to the following terms and conditions of this Purchase and Installation Agreement: 1. 1.1 PRODUCT Product(s). These terms and conditions apply to the sale and installation of the RBAU and its associated software. (herein after called the Product) Purchase of Product. For payment received and in consideration of your agreement to these terms and conditions, TrakLoc hereby conveys to You a nonexclusive right to purchase the RBAU unit and use the Product for use consistent with these terms and conditions. TrakLoc will transfer any transferable warranties to You. 1.2 1.3 2. 2.1 USE Permitted Use. The RBAU is sold under the agreement that You may use the Product in Your business activity and for no other purpose whatsoever. Restrictions on Use. Unauthorized Use. You shall not allow access to the Product by any other person or organization by means of networks, timesharing, or multiple CPU arrangements, unless authorized in writing by TrakLoc. Copies. User shall not duplicate the Product except for the following: I. User may make one copy of the RBAU software for protection purposes as long as the User agrees not to use the backup copy for any purpose other than to replace original data if lost or damaged. II. User may translate the RBAU software into other formats and/or media. These "reformats" shall be subject to the same restrictions as the RBAU under this agreement. Reserved Rights. TrakLoc hereby retains all rights, title and interest in the RBAU and its associated software, including the right to sell the Products covered by this agreement to other users. The confidentiality of the source material and data delivered 2.2 (a) (b) Page 2 of 10 by TrakLoc shall be maintained by You. Both parties agree not to disclose the other party's confidential or proprietary information. 2.3 You acknowledge that the RBAU and its associated software contains significant proprietary intellectual property. Any breach of confidentiality by You could result in significant direct and consequential loss for which You would be directly liable and as a result could be liable for damages well in excess of the value of this Purchase Agreement. 2.4 Both TrakLoc and You agree to comply with all export and import control laws in respect of the products. 3. Products This agreement (the "Agreement") applies to your purchase of the TrakLoc RBAU and associated software also known as ("Product" or "Products") sold by TrakLoc, and its affiliates (collectively, "TrakLoc"). By accepting delivery of a Product, you accept and agree to be bound to the provisions of this Agreement. If you do not wish to be bound by this Agreement, you must notify TrakLoc and return your purchase. This Agreement shall apply and control your purchase of the Products unless (i) (ii) you have a separate purchase agreement with TrakLoc, in which case the provisions of any such separate agreement shall control; or other TrakLoc terms and conditions apply to this purchase. You are solely responsible for all Federal, State or other taxes, on orders shipped to you. If taxes are applicable and TrakLoc is required to apply them then they will be added to the final invoice amount If you wish to make a tax-exempt purchase, please visit contact TrakLoc’s sales department to make the appropriate arrangements. 4. Payment Terms; Orders; Quotes; Taxes. Terms of payment for the Products are detailed in Schedule 1. Alteration to the standard terms of payment is at TrakLoc’s sole discretion. Page 3 of 10 The agreed deposit payment must be received by TrakLoc prior to acceptance of an order. Payment for the Products will be made by electronic bank transfer to the designated TrakLoc bank account as per Schedule 1. TrakLoc retains title to the RBAU component of the product until the invoice for the Product is paid in full. The software associated with the RBAU is provided under a licensed perpetual agreement. The consideration for the perpetual license to use the Product software is included in the initial consideration for the Product. NOTE: The Product consideration does not include the option for annual software maintenance, upgrade and support, ongoing license to use mapping software 12 months after installation. The purchase Price of the product also excludes the cost of data communication charges with the RBAU and the cost of installation. Receipt of an electronic or other form of order confirmation does not signify TrakLoc acceptance of your order, nor does it constitute confirmation of TrakLoc’s offer to sell. TrakLoc reserves the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. 5. Shipping. Shipping of the Product will be handled as set forth at: All prices quotes include the cost of shipping to a single designated delivery point within the United States of America. Loss or damage that occurs during shipping by a carrier is TrakLoc’s responsibility. Shipping dates are estimates only. Because of the specialised nature of this product we do not offer the option of a refund on the TrakLoc product the only exception being where the TrakLoc product is found to be faulty and has not been repaired satisfactorily. We'll also refund the shipping cost if the return is a result of our error. If you wish to pursue a claim based upon the limited warranty you must follow the procedures set forth in clause 10. 6. 6.1 LIMITATION OF LIABILITY, DISCLAIMERS AND PRIVACY ISSUES TrakLoc shall not be liable for any activity involving the Product with respect to the following: Lost profits, lost savings or any other consequential damages. (a) Page 4 of 10 (b) (c) 6.2 (a) The fitness of the Product for a particular purpose. The installation of the Product, its use or the results obtained Limited Warranty. TrakLoc does not warrant the accuracy of the mapping data originated by the software as it is reliant on 3rd party input. Therefore, the level of accuracy is deemed adequate for regional planning purposes only. TrakLoc shall use its best efforts to ensure that the RBAU and its associated software is delivered free of physical defect. TrakLoc shall have the sole authority to determine whether the RBAU, at the time of delivery, was free of physical defect. TrakLoc disclaims any other warranties, express or implied, respecting these terms and conditions or the Product. Customer agrees to comply with all export and import control laws in respect of the products. (b) (c) (d) (e) TRAKLOC WARRANTS THAT IT HAS USED ITS BEST ENDEAVOURS TO MANUFACTURE A PRODUCT FOR THE PURPOSE FOR WHICH IT IS INTENDED USING ITS KNOWLEDGE, KNOW HOW, EXPERTISE AND SKILL. HOWEVER, TRAKLOC ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR ANY ACTIONS ON THE PART OF THE PURCHASER OR USER WHICH MAY RENDER THE EQUIPMENT INOPERATIVE DUE TO ANY FAILURE ON THE PART OF THE PURCHASER OR USER TO COMPLY WITH THE —USER‘S MANUAL“ AND STRICTLY IN ACCORDANCE WITH THE DIRECTIONS AND GUIDELINES NOTED THEREIN. FURTHER, TRAKLOC ACCEPTS NO RESPONSIBILITY FOR ANY CONSEQUENTIAL EFFECTS OR BREACHES RESULTING FROM THE PURCHASER OR USER'S FAILURE TO USE THE EQUIPMENT FOR THE PURPOSE FOR WHICH IT IS INTENDED INCLUDING ANY BREACHES OF THE PRIVACY ACT, THE CRIMES ACT 1900, THE WORKPLACE SURVEILLANCE ACT 1998 (NSW), THE INDUSTRIAL RELATIONS ACT 1996 OR LEGISLATION, THE PASSENGER TRANSPORT (TAXI CAB SERVICES) ACT 1995, THE COMMON LAW AND ANY AND ALL LEGISLATION DEALING WITH PRIVACY AND SURVEILLANCE OF PERSONS INCLUDING EMPLOYEES. IN ADDITION, TRAKLOC DISCLOSES THAT THE IMPROPER USE OF THE EQUIPMENT MAY CONTRAVENE PARTS OF THE LEGISLATION REFERRED TO IN THE PREVIOUS PARAGRAPH. ACCORDINGLY, TRAKLOC ACCEPTS ABSOLUTELY NO RESPONSIBILITY FOR USAGE WHICH MAY FALL OUTSIDE OF THE SCOPE OF THE PROPER INTENDED PURPOSE OF THE EQUIPMENT. TRAKLOC ALSO DISCLOSES THAT THE IMMOBILIZATION CAPACITY OF THE EQUIPMENT MAY RESULT IN DAMAGE, HARM AND OR PERSONAL INJURY TO THE DRIVER OF THE VEHICLE AND ITS PASSENGERS PARTICULARLY WHERE THE IMMOBILIZATION OCCURS AT A SIGNIFICANT SPEED. TRAKLOC ACCEPTS NO LIABILITY OR RESPONSIBILITY FOR ANY RESULTING DAMAGE, HARM OR Page 5 of 10 PERSONAL INJURY CAUSED OR SUSTAINED BY PERSONS IN SUCH CIRCUMSTANCES. PURCHASERS OF THE EQUIPMENT ARE CAUTIONED TO USE THE EQUIPMENT EXERCISING DILIGENCE AND CARE AT ALL TIMES. TRAKLOC ACCEPTS NO RESPONSIBILITY FOR ANY FAILURE OF THE PURCHASER OR USER'S DUTY OF CARE RESULTING FROM ANY IMPROPER OR UNAUTHORISED OR WRONGFUL USE OF THE EQUIPMENT. Nothing in these terms shall exclude, restrict or modify any conditions, warranty or liability implied into this contact by statute WHERE to do so would be unlawful or would render any provision of this contract void. Subject to that, all warranties implied by statute in respect of the goods are hereby expressly negated, and TrakLoc's liability for the goods is limited to any warranties issued in writing by TrakLoc. TrakLoc is excluded from any other liability whether under this contract or otherwise to the buyer or any third party for any loss, injury, cost or damage incurred or suffered by reason of the goods, their use, or their design. Whether direct, indirect, special, consequential or otherwise and whether or not arising from a negligent act or omission of TrakLoc. Where it is legal to do so, any remaining liability implied by statute or resulting from breach of any term, condition, warranty implied or statute is limited to TrakLoc 's sole option. Additional Limitation of Warranties and Damages. THE LIMITED WARRANTY SET FORTH IS THE COMPLETE WARRANTY FOR THE PRODUCTS, AND STATES YOUR EXCLUSIVE REMEDIES. THIS WARRANTY DOES NOT APPLY TO ANY DISCONTINUED TRAKLOC PRODUCTS THAT ARE OUTSIDE OF THE WARRANTY PERIOD AND IN NO EVENT SHALL TRAKLOC BE LIABLE UNDER ANY THEORY FOR ANY DAMAGES BASED UPON INFRINGEMENT OF THE PRODUCTS OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ENTITY. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF TRAKLOC AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE LESSER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE TRAKLOC PRODUCT OR THE ACTUAL VALUE OF DIRECT DAMAGES INCURRED.. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. CONSEQUENTIAL LOSS OR DAMAGES OF ANY SORT ARE EXPRESSLY EXCLUDED FROM ANY LIABILITY CLAIM AGAINST TRAKLOC. 6.3 Remedy. Page 6 of 10 (a) Your sole and exclusive remedy for breach of this limited warranty will be to return the Product within 60 days of receipt. TrakLoc shall, at its discretion, retain the returned RBAU and refund the fee for the RBAU, or replace the RBAU, or repair the RBAU and return it to You. The installation and removal of the RBAU is a specialist task... The warranty is voided if the unit is opened or removed by an unqualified person. (b) (c) . 7. Changed or Discontinued Product. TrakLoc may revise and discontinue Products at any time without notice to you. Parts used in repairing or servicing a Product may be new, equivalent-to-new, or reconditioned. 8. Not for Resale or Export. You agree to comply with all applicable laws and regulations of the various states and of the United States. You agree and represent that you are buying only for your own internal use only, and not for resale or export. 9. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES HEREUNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND TRAKLOC ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW. 10. Binding Arbitration. Any claim, dispute, or controversy (whether in contract, tort, or otherwise, whether preexisting, present or future, and including statutory, consumer protection, common law, intentional tort and equitable claims) between you and TrakLoc, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, "TrakLoc") arising from or relating to this Agreement SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE NATIONAL ARBITRATION FORUM ("NAF") under its Code of Procedure then in effect (available via the Internet at http://www.arb-forum.com or via telephone at 1-800-474-2371 ). In the event of any inconsistency or conflict between NAF Code of Procedure and this Agreement, this Agreement shall control. The arbitration will be limited solely to the dispute or Page 7 of 10 controversy between customer and TrakLoc. NEITHER CUSTOMER NOR TRAKLOC SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The individual (non-class) nature of this dispute provision goes to the essence of the parties' arbitration agreement, and if found unenforceable, the entire arbitration provision shall not be enforced. This transaction involves interstate commerce, and this provision shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. If any customer prevails on any claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for fees, the Arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. Otherwise, each party shall pay for its own costs and attorneys' fees, if any. 11. ASSIGNMENT AND TRANSFER You shall not disclose, lease, sell, distribute, make, transfer or assign the RBAU or engage in any other transaction which has the effect of transferring the right of use or part of the RBAU without prior written consent of TrakLoc. 12. MISCELLANEOUS 12.1 Invalidity. If any term or provision of this agreement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this agreement shall not be affected thereby, and each term and provision of this agreement shall be valid and enforced as written to the fullest extent permitted by law. Page 8 of 10 12.2 Entire Agreement. This agreement contains the entire agreement of the parties hereto with respect to the matters covered hereby, and no other agreement, statement or promise made by any party hereto, which is not contained herein, shall be binding or valid. Executed as an Agreement this day of 20 by: TrakLoc Australia Pty Limited Authorised Signatory ____________________________ Name: Witness ____________________________ Name Your business name: Authorised Signatory ____________________________ Name: Witness ____________________________ Name Page 9 of 10 SCHEDULE 1 Commercial Terms Payment Terms Description Deposit, excluding taxes, on the full purchase price of the TrakLoc product. Balance including all Taxes due 3 days after delivery of the product Percentage % % or outstanding balance Payment Method Payment Security Electronic Funds Transfer Letter of Credit to be supplied for the amount outstanding for the purchase of the Product calculated by deducting the total purchase price less the Deposit. Bank Name: Location: . BSB No: Account No: ANZ Banking Group Carrum Downs, Melbourne Australia 013 - 241 2529 64869 Calculated by deducting the total purchase price less the Deposit. Designated TrakLoc Bank Account Account Name: TrakLoc Australia Pty Ltd Please include invoice number with payment. Page 10 of 10