HomeMy WebLinkAboutAGENDA REPORT 2022 0921 CCSA REG ITEM 10GCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of September 21, 2022
ACTION APPROVED STAFF
RECOMMENDATION.
BY A. Hurtado.
G. Consider Amendment No. 6 to Fleet Tracking Services using Global Positioning
System (GPS) Units between the City of Moorpark and NexTraq, LLC. Staff
Recommendation: Authorize the City Manager to sign Amendment No. 6 to the
Agreement for Fleet Tracking services between the City of Moorpark and NexTraq
LLC., subject to final language approval by the City Manager. (Staff: Vivien
Avella, Finance Director/City Treasurer)
Item: 10.G.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Vivien Avella, Finance Director
Chris Thompson, Senior Information Systems Administrator
DATE: 09/21/2022 Regular Meeting
SUBJECT: Consider Amendment No. 6 to Fleet Tracking Services using Global
Positioning System (GPS) Units between the City of Moorpark and
NexTraq, LLC
BACKGROUND
On August 11, 2015, the City entered into an a greement with NexTraq, LLC, (Nextraq)
to provide Fleet Vehicle Tracking Services using Global Positioning System (GPS) units.
The Agreement was extended in 2017, 2018, 2019, and in 2020, Amendment No. 5
extended the agreement until August 2022 with a “not-to-exceed” (NTE) amount of
$49,436. The City’s form of agreement has expired, and the purpose of this action is to
approve an amendment to the contract. City Council consideration of the Amendment is
required, as the proposed Amendment will bring the cumulative amount of this vendor
contract over $50,000.
DISCUSSION
Since 2015, the City has been utilizing GPS fleet tracking services provided by NexTraq.
NexTraq provides a cloud-based service whereby staff can login to check vehicle status
and monitor driver activity, including movement aberrations and speed. The system
includes sensors installed in 20 City vehicles and is also utilized for additional functions,
including determining vehicle location, as well as tracking required vehicle maintenance.
Due to individual equipment installations required in each programmed vehicle, as well
as the current vendor’s competitive market pricing and quality customer service, staff
recommends the continuation of service with Nextraq. Equipment removal and re-
installation with an alternative vendor would likely result in significant incremental costs
as well as disruption in service and vehicle availability.
In 2021, Nextraq required an upgrade of the existing GPS/Cellular units placed in City
vehicles to be compatible with cellular carrier upgrades. Concurrently, successfully
negotiated a reduced rate of $19 per month, per vehicle, resulting in a 30% savings from
Item: 10.G.
450
Honorable City Council
09/21/2022 Regular Meeting
Page 2
the previous rate. These changes required a 36-month term from the vendor at the time
of the order. The purpose of this Amendment is to align the City’s contractual agreement
with NexTraq’s standard terms and conditions resulting from this order.
Amendment No. 6 will extend the agreement term to May 31, 2024. The NTE amount of
the contract will be increased by $1,907, in addition to adding a minor contingency amount
of $1,657 in case the City may need to add vehicles or accessory equipment. In sum,
this Amendment extends the contract by 21 months, and increases the contract amount
by bringing the total NTE value to $53,000.
FISCAL IMPACT
Funding for fleet tracking services is included in the FY 2022/23 budget at an annual rate
of $4,788, consistent with current vendor pricing. Therefore, the increased amount called
for by the Amendment has been previously factored into the Budget and no Amendment
or incremental funds are necessary.
COUNCIL GOAL COMPLIANCE
This action does not support a current strategic directive.
STAFF RECOMMENDATION
Authorize the City Manager to sign Amendment No. 6 to the Agreement for Fleet Tracking
services between the City of Moorpark and NexTraq LLC., subject to final language
approval by the City Manager.
Attachment 1: Amendment No. 6
Attachment 2: NexTraq City Vehicle List
Attachment 3: NexTraq Terms & Conditions
451
ATTACHMENT 1
AMENDMENT NO. 6
TO AGREEMENT BETWEEN THE CITY OF MOORPARK AND NEXTRAQ, LLC, FOR
FLEET TRACKING SERVICES USING GLOBAL POSITIONING SYSTEM UNITS
This Amendment No. 6 to the Agreement between the City of Moorpark, a
municipal corporation (“City”), and NexTraq, LLC, a Michelin Group Company, a limited
liability company (“Consultant”), for fleet tracking services using Global Positioning
System units (“Agreement”), is made and entered into on this ___ day of
____________________, 2022.
RECITALS
WHEREAS, on August 11, 2015, the City and Contractor entered into an
Agreement to have the Consultant provide fleet tracking services; and
WHEREAS, on May 11, 2016, the City and Contractor executed Amendment No.
1 to the Agreement to document name change of the consultant; and
WHEREAS, on August 10, 2017, the City and Contractor executed Amendment
No. 2 to the Agreement, which extended the term of the contract and increased the
compensation for services to be performed by Consultant; and
WHEREAS, on July 24, 2018, the City and Contractor executed Amendment No.
3 to the Agreement, which documented a name change of the consultant, extended the
term of the contract, and increased the compensation for services to be performed by
Consultant; and
WHEREAS, on July 16, 2019, the City and Contractor executed Amendment No.
4 to the Agreement, which documented a name change of the consultant, extended the
term of the contract, and increased the compensation for services to be performed by
Consultant; and
WHEREAS, on August 6, 2020, the City and Contractor executed Amendment No.
5 to the Agreement, which extended the term of the contract and increased the
compensation for services to be performed by Consultant; and
WHEREAS, the City and Contractor now desire to amend the Agreement to
increase the compensation for services to be performed by Contractor from forty-nine
thousand four hundred thirty six ($49,436.00) by a value of one thousand nine hundred
and seven dollars ($1,907.00), plus a contingency amount of one thousand six hundred
and fifty seven dollars ($1,657.00), for a total contract value of fifty three thousand dollars
($53,000.00), and extend the term of the Agreement through May 31, 2024; and
document said agreement to amend by jointly approving Amendment No. 6 to the
Agreement.
NOW, THEREFORE, it is mutually agreed by and between the parties to the
Agreement as follows:
I. Section 1, TERM, is amended by replacing this section in its entirety as follows:
452
Amendment No. 6 to Agreement between City of Moorpark and NexTraq LLC
Page 2
“The term of this Agreement shall be from the date of execution on August
11, 2015, until May 31, 2024, unless this Agreement is terminated or suspended
pursuant to this Agreement.
II. Section 2, SCOPE OF SERVICES, is amended by replacing this section in its
entirety as follows:
“"City does hereby retain Consultant, as an independent contractor,
in a contractual capacity to provide fleet tracking services, as set forth in
Exhibit B. In the event there is a conflict between the provisions of Exhibit
B and this Agreement, the language contained in this Agreement shall
take precedence.
Consultant shall retain all historical data collected by the GPS units in
accordance with all applicable laws and no less than three (3) years from
the recorded date.
Consultant shall provide to the City all collected data at the end of term of
this agreement on a media readable by most computer systems at that
time and in form readable without any special equipment or application(s).
Compensation for the services to be performed by Consultant shall be in
accordance with Exhibit B for the actual time of fleet tracking services
rendered to the City. Compensation shall not exceed the total contract
value of fifty-three thousand dollars ($53,000.00) for equipment, shipping
charges, equipment installation, equipment warranty and thirty-six months
of fleet tracking services as stated in Exhibit B without a written amendment
to the Agreement executed by both parties. Payment by City to Consultant
shall be in accordance with the provisions of this Agreement."
III. Exhibit B, SERVICE PACKAGE sect, is amended as follows:
NexTraq Manage Package Term is extended to one hundred and five (105)
months.
IV. Remaining Provisions:
Except as revised by this Amendment No. 6, all provisions of the
Agreement shall remain in full force and effect.
453
Amendment No. 6 to Agreement between City of Moorpark and NexTraq LLC
Page 3
CITY OF MOORPARK
NEXTRAQ, LLC
_______________________________ _______________________________
Troy Brown
City Manager
Gregg Betcher
Director of Government Sales
Attest:
_______________________________
Ky Spangler
City Clerk
454
805436 4675106467 65 Escape Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021 5/31/2024
5/31/2024
805436 4675106434 95 F150 Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021 5/31/2024
VT-2630M-5 SUB-0029290 00030166 6/1/2021805436467510633670 Charger Yes
805436 4675106425 110 Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021 5/31/2024
5/31/2024
805436 4675106423 60 Ranger Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021 5/31/2024
VT-2630M-5 SUB-0029290 00030166 6/1/2021805436467510646492 F250 Yes
805436 4675106427 103 F150_2 Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021 5/31/2024
5/31/2024
805436 4675106333 68 Ford Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021 5/31/2024
VT-2630M-5 SUB-0029290 00030166 6/1/20218054364675106436113Yes
805436 4675106332 29 - Pontiac Grand Am Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021 5/31/2024
5/31/2024
805436 4675106439 94 Volt Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021 5/31/2024
VT-2630M-5 SUB-0029290 00030166 6/1/20218054364675106438112Yes
805436 4675106424 93 F250 Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021 5/31/2024
5/31/2024
805436 4675106339 89 1500 Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021 5/31/2024
VT-2630M-5 SUB-0029290 00030166 6/1/20218054364675106431104 Chevy Colorado Yes
805436 4675106428 58 F250 Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021 5/31/2024
5/31/2024
805436 4675106435 111 Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021 5/31/2024
VT-2630M-5 SUB-0029290 00030166 6/1/2021805436467510647652 2500 Yes
5/31/2024
805436 4675106444 96 F150 Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021
805436 4675106426 102 F150_1 Yes VT-2630M-5 SUB-0029290 00030166 6/1/2021
5/31/2024
Start Date End Date N
o
Billable Type Subscription No Contract No
Mobiles
Acct ID Hardware Id Name
Account:City of Moorpark - Moorpark, CA #805436
City of Moorpark -
Moorpark, CA
Executive Offices
ATTACHMENT 2
455
TERMS AND CONDITIONS
Last Modified: October 1, 2021
1. INTRODUCTION; DEFINED TERMS. These terms and conditions, together with any
and all NexTraq authorized Order Forms submitted by you and accepted by us (each, an
“Order Form” ), constitute the agreement (the “Customer Agreement”) governing your
use of the Services (as defined below). If we do not accept an Order Form from you for
certain Services, any terms referring to those particular Services do not apply to you.
As used in this Agreement, the terms “you” and “your” refer to the customer indicated on
the Order Form; “we,” “us,” “our” “NexTraq” and similar terms refer to NEXTRAQ, LLC,
a Delaware limited liability company, and its Affiliates; “Affiliates” means any existing or
future legal entity which, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with NexTraq with the n otion of
control consisting of the power to direct the management and policies of the legal entity
whether through the ownership of a fraction of the share capital or by contract or otherwise
and shall be deemed to exist upon the ownership of 50% or more o f the share capital or
voting rights; “API” means an application programming interface provided to you for use
with web-based components of the Services; “Fleet Data” means the information and
data generated by NexTraq Equipment and the provision of the Se rvices, including
geolocation, telemetry and movement data, including information that comes from the
vehicles, and information that incorporates or is derived from the processing of such
information or data, and all other data made available by us through the Platform for the
purpose of providing the Services to you; “Services” means (a) our telematics-based
vehicle and asset location service that uses the Global Positioning System and Tracking
Devices for position location reporting and a wireless or satellite network operated by one
or more third parties for data communications, together with any and all other services
and add-ons (including, but not limited to, third-party services) offered by NexTraq for use
in connection with such service and purchased or used by you, (b) the Platform (as
defined below), (c) the operation of one or more Tracking Devices or other Equipment,
(d) if you submit and we accept an Order Form for online Services, any APIs and other
items made available by NexTraq for fulfillment of those Services, and (e) any other or
additional services provided to you by NexTraq; “Tracking Device” means a vehicle or
asset mounted wireless tracking device provided by us to enable your authorized use of
the Services in the operation of a single vehicle; “Equipment” means any Tracking
Device or other hardware item provided by NexTraq for use in furtherance of the Services;
and “Platform” means the NexTraq service platform by which the Customer or User may
receive access and view Fleet Data generated by the telematics-based vehicle an asset
NEXTRAQ, LLC
CORPORATE HEADQUARTERS
303 PERIMETER CENTER N
STE 800
ATLANTA, GA 30346
800-358-6178
ATTACHMENT 3
456
tracking service, including any audio and visual devices, and through a web browser,
mobile application, or any other means of access provided by NexTraq.
2. CHANGES. WE RESERVE THE RIGHT, FROM TIME TO TIME, TO MAKE
CHANGES TO THIS AGREEMENT, INCLUDING THE AMOUNT OF ANY
CHARGES. ANY SUCH CHANGES WILL BE MADE AVAILABLE AT
HTTPS://WWW.NEXTRAQ.COM/TERMS-AND-CONDITIONS/ AND THROUGH THE
PLATFORM, OR BY SUCH OTHER METHODS WE DETERMINE TO BE
APPROPRIATE. SUBJECT TO THIS AGREEMENT, IF YOU CONTINUE YOUR USE
OF THE SERVICES OR ANY PART THEREOF OR ANY EQUIPMENT AFTER THE
EFFECTIVE DATE OF SUCH CHANGES, YOU WILL BE DEEMED TO HAVE
ACCEPTED THOSE CHANGES AS AN AMENDMENT OR SUPPLEMENT TO THIS
AGREEMENT. THE MOST RECENT VERSION OF THIS AGREEMENT SHALL APPLY
TO ALL SERVICES AND EQUIPMENT, EVEN IF OBTAINED THROUGH MORE THAN
ONE ORDER FORM ON DIFFERENT DATES.
3. SERVICES DESCRIPTION.
3.1 The Services include access to our Platform that allows you to receive access and
view Fleet Data generated by our telematics-based vehicle and asset tracking
service. From time to time, we may develop and provide Platform updates, upgrades,
bug fixes, patches, or new features, or modify or delete in their entirety certain features
and functionality. You agree that NexTraq has no obligation to provide such updates or
to continue to provide or enable any particular features or functionality.
3.2 We will provide you with the Equipment set forth on each Order Form we accept and
arrange for installation, if required. For purposes of this Agreement, such Equipment is
considered “authorized” provided all applicable fees are paid and for so long as you
continue to pay the applicable monthly Charges (defined below) thereafter. During the
Term, and except as otherwise provided herein, we will repair or replace, at our option,
any authorized Equipment that contains a material defect or becomes incapable of
working with the Services in accordance with NexTraq’s published specifications (the
“Repair or Replacement Remedy”). We may use refurbished Equipment for purposes
of the Repair or Replacement Remedy. To request a repair or replacement, you must
contact Customer Service. Notwithstanding the foregoing, the Repair or Replacement
Remedy is limited and does not apply with respect to (i) use of the Equipment with
antennas, cable connections or mounting hardware other than those furnished by
NexTraq or an authorized agent; (ii) damage to the Equipment caused by use outside of
normal work conditions or by physical impact, exposure to moisture, or product abuse;
(iii) improper handling (including insertion or removal of OBD based Equipment while a
vehicle is in motion), (iv) improper installation (other than by NexTraq or its authorized
agent), (v) alteration, modification or attempted repair other than by NexTraq or its
authorized agent, or (vi) damage caused by any attempt to disassemble or repair
Equipment. In addition, our obligations hereunder do not extend to antennas, batteries,
cables or mounting hardware, nor to any third-party GPS navigation system that we may
provide. We will schedule such replacements as promptly as we determine to be
commercially reasonable, but we make no guaranty as to such schedule. We may
457
request the return of any Equipment that we replace, in which case you must return such
Equipment to us within 30 days of our issuing a return authorization number or you may
be charged for the new Equipment based on our then -current list prices.
3.3 We will assign you, and you will be resp onsible for controlling, username(s) and
password(s) which permit you, your employees and independent contractors, access to
the Platform and, if we have accepted an Order Form for online Services, access to and
interaction with those Services and related APIs. You are responsible for ensuring that
usernames and passwords are not shared or used by more than one individual. You must
promptly notify NexTraq of any unauthorized use of the username(s) or password(s), and
you will be responsible for all use thereof (whether authorized by you or not). Until so
notified, NexTraq shall not be responsible for any such unauthorized use. NexTraq shall
not be liable for any loss or damage arising from any unauthorized use of a username or
password. You shall not assign, transfer, or otherwise permit access to the Platform or
Services or related APIs (as applicable) except as expressly set forth herein. Any use of
the Platform, Services, or applications by an independent contractor of yours must be for
your business purposes, and you will remain responsible for all the acts or omissions of
any such independent contractor.
4. DATA.
4.1 You will be solely responsible for any and all personal data and information related to
identifiable individuals you provide to us through the Services (“Customer Data”). By
providing Customer Data to us, you (i) certify that you have obtained all necessary
consents to provide such Customer Data to us and (ii) grant all rights and permissions in
or relating to Customer Data to NexTraq as are necessary or useful to provide the
Services, to enforce this Agreement and to exercise its rights and perform its obligations
hereunder. With respect to Fleet Data (defined above), as between the parties, you
acknowledge that NexTraq has the right to license or sell this data, including for monetary
compensation, allowed by law, and agree that you have no proprietary rights thereto.
4.2 Notwithstanding anything to the contrary, you grant NexTraq the right to collect,
analyze, use, disclose (for remuneration or otherwise), aggregate and/or anonymize Fleet
Data and any other data and other information relating to the provision, use and
performance of various aspects of the Services and related systems and technologies
(which may include Customer Data and/or information collected from or about an
individual user or device, as well as data about your and other users’ access and use of
the Services, and data or information based on or derived from Customer Data).
You hereby grant NexTraq the right (during and after the Term hereof) to (a) use, store,
transmit, distribute, modify, copy, display, sublicense, and create derivative works of such
information and data to provide and/or market the Services, to prevent and fix technical
problems with the Services and for other diagnostic and corrective purposes in connection
with the Services and other NexTraq offerings, to analyze, improve and enhance the
Services, to create modeling and analytics, and for research and development purposes,
(b) disclose such information and data to third parties and affiliates for independent
business purposes, including marketing, and (c) disclose information in other ways upon
obtaining Customer’s specific consent. It is your responsibility to review
NexTraq’s Privacy Policy, incorporated by reference herein.
458
4.3 You are solely responsible for establishing and maintaining long -term data retention
storage and procedures in connection with your use of the Services. NexTraq does not
guarantee access to such data after the expiration or termination of this
Agreement. Absent a written agreement to the contrary, Customer Data shall be
maintained in accordance with our retention practices and procedures after the
termination of this Agreement.
4.4 You represent, covenant, and warrant the following:
(a) You have and will have all necessary consent, rights, and authorizations in and relating
to all Customer Data, Fleet Data and all other non-public information or data that is
collected, downloaded, or otherwise received, directly or indirectly, from you or an end
user by or through the Services, including through NexTraq Equipment you cause to be
installed on vehicle(s);
(b) To the extent you lose the necessary consent, right or authorization to utilize the
Services with respect to an individual user, you will discontinue the use of the Services
immediately and prevent that user from driving a vehicle e quipped with NexTraq
Equipment unless the Services have been disabled for that vehicle;
(c) To enable the provision of the Services, you have all necessary rights and authority (if
required by applicable law, pursuant to notices given and consents obtained by you) to
provide to NexTraq all information and data to be provided hereunder, and/or to permit
NexTraq to collect such information and data, so that your use of the Services and
acceptance of this Agreement and NexTraq’s sharing, collection, use, discl osure and
other processing of such information and data in accordance with this Agreement do not
and will not infringe, misappropriate or otherwise violate any intellectual property rights,
or any privacy or other rights of any third party or violate any applicable law or regulation;
(d) The Customer Data is free of all viruses, Trojan horses, and other elements that could
interrupt or harm the systems, software used by NexTraq or its contractors,
subcontractors, or service providers to provide the Services or the Software (defined
below);
(e) You are solely responsible for ensuring compliance with all privacy laws in all
jurisdictions that may apply to Customer Data and Fleet Data provided and collected
hereunder, and, as a result, it is your responsibility to follow all applicable laws and
regulations related to Customer Data or Fleet Data you transmit to NexTraq, provide any
employees, drivers, or passengers adequate and timely notice where required including
any notice that must be provided at the time o f collection of personal information, and
obtain any required consents;
(f) Without limiting the foregoing, you acknowledge and understand that certain Services
and Equipment needed for rendering the Services (including Services and equipment
offered by or originating from third parties) may involve audio and/or video recording, and
it is your obligation to know and abide by any laws regarding (i) whether or how consent
must be obtained, to include whether your jurisdiction is a two -party consent state when
it comes to recording data, (ii) placement and mounting of Equipment, and (iii) notice of
audio and/or video recording to drivers and passengers; and
459
(g) NexTraq may exercise the rights in Customer Data and Fleet Data granted under this
Agreement without liability or cost to any third party, provided that in the event you notify
NexTraq that legally required consents have been revoked by a user, NexTraq will
discontinue any additional use or disclosure of that data.
4.5 HIPAA. You agree and acknowledge that NexTraq does not knowingly accept, collect,
access, use or maintain protected health information or other information (“PHI”) that is
subject to the Health Insurance Portability and Accountability Act (“HIPAA”). You may not,
and you represent and warrant that you will not, provide, or allow any end user to provide,
PHI in the Platform or otherwise input or allow PHI to be collected by NexTraq. You agree
and acknowledge that you are solely responsible to assure that you and any end users
do not include PHI in the Platform, and you shall provide and maintain any reasonable
policies, procedures, and training necessary to protect against any disclosure to NexTraq
of PHI. In the event that you discover the presence of PHI on the Platform, you must
immediately notify NexTraq of such information, remove such PHI to the extent you are
able within the terms of this Agreement, and be responsible for any mitigation,
notifications or other obligations under applicable law or contract. You hereby agree to
indemnify and hold harmless NexTraq from and against any losses incurred or suffered
as a result of any PHI being input into the Platform or provided to us, whether by you or
any of your authorized users, or any other violation of this Section 4.5. In the event that
we discover PHI on the Platform, we may take any actions necessary to return or destroy
such information and will not be liable for any loss or destruction of such PHI or related
data.
5. INVOICING AND PAYMENT; TAXES.
5.1. Monthly charges (“Charges”) for all Services, in the amount shown on the applicable
Order Form, will be due once per month during the Term based on pieces of Equipment
and other Services associated with your account. Charges will be accrued and be
payable with respect to all authorized Eq uipment, regardless of vehicle status, for the
duration of the Term, unless a malfunction is reported to and acknowledged by
NexTraq. For clarity and avoidance of doubt, unless you terminate this Agreement
pursuant to the terms of this Agreement, Charges will be accrued and be payable for the
entire Term even if you fully or partially discontinue the use of the Services. Any additional
services provided by NexTraq or an authorized third party will be invoiced following the
provision of such services. In the case of online Services, those Services and APIs set
forth on the Order Form will be activated at the time that your access to the online account
is configured and enabled by NexTraq. All invoices are stated in U.S. dollars and due
within 25 days from the invoice date. If any amounts due hereunder are not paid by the
applicable due date, a one-time late fee may be assessed on each late amount in an
amount not to exceed the lesser of 10.0% of such late amount or the maximum amount
permitted by law. All prices, fees and rates under this Agreement exclude sales, use,
excise, or any other taxes assessed at any time. Except for taxes imposed upon
NexTraq’s income and FCC license fees, you must pay all applicable taxes and/or
assessments, whether invoiced separately or with the Services. All reasonable costs and
expenses, including but not limited to attorneys’ fees, court costs and service charges,
460
incurred by NexTraq in collecting payment shall be payable by you. Credit terms are at
NexTraq’s discretion and are subject to change.
5.2 If you have provided a credit card, Charges will be billed to such credit card each
month throughout the Term unless you provide notice that you wish to suspend automatic
billing. Until such time, you hereby authorize NexTraq to charge such card for amounts
due. If a charge is rejected for any reason, you will remain responsible for all payments
due hereunder, as well as any expenses incurred in connection with such
rejection. Payments, including automatic billing, may be set up online at
billpay.nextraq.com. To cancel automatic billing, you can cancel online at
billpay.nextraq.com, contact your account representative, or call (800) 358 -6178.
5.3 You will be solely responsible for the choice of an Internet service provider necessary
to access the Platform and Services (if applicable) and for all related fees and expenses.
NexTraq is not responsible or liable for any failure, disruption or loss caused by your
connection to the Platform and Services.
6. TERM AND TERMINATION.
6.1 You agree to pay the Charges for the entire term set forth on the applicable Order
Form (the “Initial Subscription”). Unless you notify us at least 30 days prior to the end
of the Initial Subscription stating that you want to discontinue use of the Equipment, such
subscription will automatically renew on a month -to-month basis (each, a
“Renewal Subscription”) based upon the terms and conditions then in effect. For clarity
and avoidance of doubt, this 30 day notice period is required even if you want to
discontinue use of part of the Equipment. Services offered during any such Renewal
Subscription may be subject to higher Charges than those offered pursuant to a longer -
term subscription. Automatic Renewal Subscriptions will continue to renew for all
Equipment and Services until either party provides the other with notice of its intention to
cease such automatic renewals. Any Equipment on a Renewal Subscription will not be
eligible for our Repair or Replacement Remedy described in this Agreement.
As used in this Agreement, “Term” means the period beginning at the start of your first
Initial Subscription and ending with the termination or expiration of the last subscription
pursuant to any Order Form or this Agreement or upon termination by either party in
accordance with this Agreement.
6.2 Notwithstanding the foregoing, we may terminate this Agreement by written notice to
you if you (i) fail to pay any amounts owed hereunder within 10 calendar days of the
applicable due date; or (ii) become insolvent, dissolve, make an assignment for the
benefit of creditors, or commence (voluntarily or involuntarily) a bankruptcy or other
reorganization proceeding. Either party may terminate this Agreement or any applicable
Order Form and Service upon written notice if the other breaches any material obligation
hereunder (other than payment obligations) and such breach remains uncured 30 days
after notice thereof by the non-breaching party. In addition, if we notify you of any change
to these terms and conditions that either (a) materially increases the Charges payable by
you or (b) materially and adversely effects your use of the Services (each a “Material
Change”), then you may terminate this Agreement or any applicable Order Form and
Service, by giving 30 days’ prior written notice specifying the reason therefor, unless we
notify you during such 30-day period that the Material Change shall not apply to you.
461
Upon termination for any reason, the license set forth in Section 8 shall immediately
terminate and you shall immediately return or destroy (at our written request and
expense) any and all proprietary materials of NexTraq in your possession and all copies
(including electronic copies) thereof.
6.3 In the event of a termination of this Agreement for any reason other than an uncured
breach by NexTraq or pursuant to the above provisions of Section 6.2 addressing Material
Changes, you shall promptly pay us, as compensation for loss of our bargain and not as
a penalty, an amount equal to the aggregate Charges otherwise pa yable for the
remainder of each active subscription at the effective time of termination. You agree that
our damages for such a termination would be difficult or impossible to estimate accurately,
and you further agree that this amount is a reasonable pre -estimate of our minimum
probable loss. You also agree to pay any other amounts then owed and that we may
exercise any other right at law or in equity, including seeking damages beyond the
amounts set forth herein.
6.4 Notwithstanding anything to the contrary herein, Sections 1, 2, 4, 5, 6.3 and 10
through 14, as well as your obligation to pay any outstanding amounts due hereunder,
shall survive any expiration or termination of this Agreement.
7. RELATIONSHIP WITH WIRELESS CARRIER. YOU EXPRESSLY UNDERSTAND
AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER
WITH THE UNDERLYING WIRELESS SERVICE PROVIDER OR ITS AFFILIATES OR
CONTRACTORS AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY
AGREEMENT BETWEEN NEXTRAQ AND THE UNDERLYING CARRIER. IN
ADDITION, YOU ACKNOWLEDGE AND AGREE THAT THE UNDERLYING CARRIER
AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE,
OR OTHER LIABILITY OF ANY KIND TO YOU, WHETHER FOR BREACH OF
CONTRACT, WARRANY, NEGLIGENCE, STRICT LIABILITY IN TORT OR
OTHERWISE, AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS
THEREFOR. YOU FURTHER ACKNOWLEDGE THAT MESSAGES OR DATA
TRANSMISSIONS MAY BE DELAYED, DELETED OR NOT DELIVERED, AND 911
CALLS (IF APPLICABLE) MAY NOT BE COMPLETED, AND THAT THE UNDERLYING
CARRIER AND NEXTRAQ CANNOT GUARANTEE THE SECURITY OF THE
WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF
SECURITY RELATED TO THE USE OF THE SERVICES. YOU FURTHER
ACKNOWLEDGE THAT REPRESENTATIVES OF THE UNDERLYING WIRELESS
SERVICE PROVIDER MAY HAVE MET WITH YOU INDIVIDUALLY OR TOGETHER
WITH NEXTRAQ TO DISCUSS AND REVIEW PRINTED MATERIALS THAT
EXPLAINED THE UNDERLYING WIRELESS SERVICE PROVIDER’S
UNDERSTANDING OF NEXTRAQ’S SERVICES. YOU ACKNOWLEDGE THAT YOU
HAVE HAD THE OPPORTUNITY TO FULLY INVESTIGATE THE CAPABILITIES,
QUALITY AND RELIABILITY OF THE NEXTRAQ SERVICES AND HAVE SATISFIED
YOURSELF THAT THE SERVICES SATISFACTORILY MEET YOUR BUSINESS
NEEDS. YOU AGREE THAT THE UNDERLYING WIRELESS SERVICE PROVIDER
AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE,
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OR OTHER LIABILITY OF ANY KIND TO YOU ARISING FROM OR RELATED TO ANY
MEETINGS, DISCUSSIONS OR EXPLANATIONS REGARDING THE NEXTRAQ
SERVICES AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS YOU
MAY HAVE AGAINST THE UNDERLYING WIRELESS SERVICE PROVIDER AND ITS
AFFILIATES AND CONTRACTORS THEREFOR. YOU FURTHER ACKNOWLEDGE
AND AGREE THAT, IF EQUIPMENT IS NO LONGER ACTIVE, OR IF THE SERVICE
HAS BEEN MODIFIED TO USE A DIFFERENT WIRELESS CARRIER, THEN, DURING
THE TERM OF THIS AGREEMENT OR ANY TIME THEREAFTER, THE INITIAL
UNDERLYING WIRELESS SERVICE PROVIDER MAY ACCESS SUCH EQUIPMENT
USING OVER THE AIR PARAMETER ADMINISTRATION OR OTHER MEANS IN
ORDER TO DOWNLOAD SOFTWARE OR OTHER INFORMATION INTENDED TO
PREVENT SUCH EQUIPMENT FROM ATTEMPTING TO CONTACT SUCH
CARRIER’S WIRELESS NETWORK.
8. LIMITED LICENSE. We hereby grant you, for use during the Term only, a non -
exclusive, non-transferable, revocable, limited license to (a) access and use the Services
and (b) use the software integrated into or stored on any authorized Equipment or the
Platform (“Software”) solely in conjunction with the authorized use of the Services during
the Term. You represent, warrant and covenant that you shall only use the Services for
the permitted uses set forth in this section. Any purpose or use not specifically authorized
herein is expressly prohibited. Without limiting the foregoing, and except as otherwise
expressly set forth in this Agreement, you shall not at any time, directly or indirectly: (a)
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make
available the Services or Software; (b) reverse engineer, decompile, disassemble,
decode, adapt, or otherwise attempt to derive or gain access to any component of the
Services or Software, including, without limitation, the source code of the Software, or
gather, extract, reproduce and/or display, any material on or from the Software, whether
or not by the use of spiders or other ‘screen scraping’ software or system used to extract
data; (c) copy, modify, translate, or create derivative works based on the Services or
Software; (d) remove any proprietary notices included within the Services or Software; (e)
publish, enhance, or display any compilation or directory based upon information derived
from the Services; (f) use the Services or Software in any manner or for any purpose that
infringes, misappropriates, or otherwise violates any intellectual property right or other
right of any person or entity, or that violates any applicable law or regulation or (g) use
the Services for the benefit of a third party or other than as expressly permitted in this
section. You will ensure that your end users comply with these restrictions as well as any
and all other restrictions applicable to end users in this Agreement.
We may block your access to the Platform and Services (and Software integrated into or
stored on any authorized Equipment or the Platform) in the event you attempt to make
unauthorized use thereof, or if your u se (authorized or not) interferes with the operation
and utilization of the Services by any other party, provided in the case of an otherwise
authorized use, we use reasonable efforts under the circumstances to provide advance
notice and opportunity to cure. We and our licensors expressly reserve and retain all
right, title and interest in and to our respective proprietary information and materials and
all intellectual property rights and other proprietary rights not expressly granted
hereunder.
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We both acknowledge that all transactions in furtherance of this Agreement, and the
terms of this and any other agreements with NexTraq, including pricing, specifications,
and any other competitive commercial, technical, or business data or information, are
confidential and proprietary. You agree to take all reasonable steps necessary to prevent
disclosure to any third party, and further agree to notify NexTraq in writing via certified
mail within ten (10) business days of the receipt of any request from a third par ty to
disclose said confidential information. In NexTraq’s sole discretion, NexTraq may request
Customer to enter into a separate confidentiality and non-use agreement.
9. LIMITED WARRANTY. We warrant that, throughout the Term, other than as set forth
below, the Services will be available and operate in accordance with our published
specifications. If Services do not perform in accordance with such specifications, for
Services other than online Services, you may request, and if applicable we will issue, a
credit (based on the Charges for the total number of affected Equipment) for each day
during which your ability to access and use the Service was materially impaired. We will
also offer our limited Repair or Replacement Remedy for Equipment, subject to the terms
of this Agreement. The foregoing represents our entire liability, and your sole and
exclusive remedy, for any breach of the Limited Warranty described in this Section 9. This
limited warranty does not cover interruption of Service as a result o f scheduled
maintenance and downtime, the proper exercise of our remedies hereunder, or Internet
Unavailability, Network Interruption Factors or any event or occurrence beyond our
reasonable control. You acknowledge that the data available through the Services
generally and online Services is limited to data generated by your use of Equipment and
NexTraq’s related application processes and is subject to omissions or inaccuracies due
to Network Interruption Factors or any event or occurrence beyond NexTraq’s control. As
used herein, (i) “Internet Unavailability” means (a) failure or unavailability of Internet
access; (b) unauthorized use, theft or operator errors relating to your telephone, cable or
Internet service provider; (c) bugs, errors, configuration problems or incompatibility of
equipment or services relating to your computer or network; or (d) failure of
communications networks or data transmission facilities, and (ii) “Network Interruption
Factors” means any wireless or satellite network outages or constraints that may occur
due to the availability of such network being temporarily refused, interrupted, curtailed or
otherwise limited by factors including but not limited to atmospheric, environmental or
topographical conditions, physical features such as buildings, tunnels or landmass
features, satellite or transponder failure, coverage loss or gaps, capacity constraints, or
network provider facilities changes, modifications, updates, relocations, repairs,
maintenance or other similar activities necessary for the proper or improved operation of
the applicable network.
10. DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET
FORTH IN SECTION 9 ABOVE, THE EQUIPMENT AND SERVICES PROVIDED
HEREUNDER ARE PROVIDED “AS IS,” “WHERE IS” AND “AS AVAILABLE” AND
THERE ARE NO OTHER WARRANTIES MADE BY NEXTRAQ, EXPRESS, IMPLIED,
OR ARISING OUT OF A COURSE OF DEALING, USAGE OR TRADE PRACTICE,
INCLUDING, BUT NOT LIMITED TO, NON-INFRINGEMENT, MERCHANTABILITY OR
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FITNESS FOR A PARTICULAR PURPOSE. NEXTRAQ MAKES NO WARRANTY OR
COMMITMENT HEREUNDER WITH RESPECT TO ANY EQUIPMENT OR
HARDWARE; ANY SUCH WARRANTIES OR COMMITMENTS SHALL BE GOVERNED
BY SEPARATE AGREEMENT BETWEEN YOU AND THE PROVIDER OF SUCH
EQUIPMENT. NEXTRAQ DOES NOT WARRANT THAT THE SERVICES (OR ANY
DATA OR INFORMATION MADE AVAILABLE THROUGH THE SERVICES) OR
SOFTWARE WILL BE UNINTERRUPTED, SECURE, ACCURATE, COMPLETE,
ERROR FREE, FREE OF VIRUSES OR HARMFUL CODE OR COMPATIBLE WITH OR
WORK WITH OTHER SYSTEMS, SOFTWARE OR SERVICES; NOR DOES IT MAKE
ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF
THE SERVICES OR EQUIPMENT.
11. LIMITATION OF LIABILITY. NEXTRAQ’S TOTAL LIABILITY FOR ANY DAMAGES
ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES
PROVEN IN AN AMOUNT NOT TO EXCEED THE AMOUNT YOU PAID UNDER THIS
AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE
EARLIEST DATE ON WHICH THE CLAIM AROSE. IN NO EVENT SHALL NEXTRAQ
OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT,
NON-COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY,
TREBLE OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST
PROFITS, LOST SAVINGS, LOSS OF DATA OR BUSINESS OPPORTUNITY OR
OTHER INCIDENTAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE
THE SERVICES OR ANY EQUIPMENT OR SOFTWARE PROVIDED UNDER THIS
AGREEMENT, EVEN IF NEXTRAQ OR SUCH AFFILIATE HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A LIMITED REMEDY SET
FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. NEXTRAQ
SHALL NOT BE RESPONSIBLE IN ANY WAY FOR ANY DAMAGES CAUSED BY ANY
ABNORMAL OR IMPROPER USE OF THE SERVICES.
NEXTRAQ shall not be liable for any claim or action brought more than 12 months from
the date on which you had initial knowledge or should have known the facts at the or igin
of the claim/action.
12. INDEMNIFICATION. You agree to indemnify and hold harmless NexTraq and its
Affiliates, their successors and assigns and each of their respective directors, officers,
employees and agents (the “Indemnified Parties”) against any and all losses, claims,
actions, suits, demands, judgments, settlements, liabilities, damages and expenses
(including attorneys’ fees and costs) arising out of or claimed to have been caused directly
or indirectly by (a) your (including your employees’ or independent contractors’) negligent
or intentional misuse of the Services or (b) your actual or alleged breach of this
Agreement.
13. EXPORT COMPLIANCE ASSURANCE. You certify that you will be the final end -
user of the Services, and any Related Products (any commodity provided to you as part
of the Services) or Related Accessories (hardware components necessary for the delivery
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of the Services) which are made available to you as a necessary element of the Services.
You will only use the Services and any Related Products and Related Accessories until
the earliest of either their end of life, physical or otherwise, or the end of this Agreement.
You commit to use and/or consume the Services and Related Products and Related
Accessories as declared to NexTraq and commit not to make them available (either free
or for a price) to any other third party (individual or organization), whatever the country.
You certify that you shall comply with all applicable laws and regulations with regard to
the supply, sale, transfer, export, re-transfer, or re-export of the Services, any Related
Products, any Related Accessories, and any related data, including but not limited to
those relating to: trade sanctions (including but not limited to comprehensive or sectoral
embargoes and restricted parties) and export controls (including but not limited to military
or dual usage products), altogether defined hereafter as “Trade Restrictions.”
A Restricted Person shall mean any individual, entity or body either: (i) specifically
designated or listed under Trade Restrictions; (ii) owned or controlled by any person
specifically designated or listed under Trade Restrictions; or (iii) acting for or on behalf of
any person specifically designated or listed under Trade Restrictions. You certify that, as
of the date hereof, neither you, nor any of your related entities, nor any of your or their
respective directors or officers is a Restricted Person. You shall immediately notify
NexTraq if any of the abovementioned becomes a Restricted person.
You shall indemnify and hold harmless NexTraq from and against any losses, costs,
claims, causes of action, damages, liabilities, and expense, including attorneys’ fees, any
expense of litigation or settlement, and court costs, arising from any noncompli ance with
Trade Restrictions or the certifications and representations in this clause. You shall be
responsible for any act or omission of your officers, employees, affiliates, agents,
suppliers, or subcontractors at any tier, in the performance of any of their obligations
under this clause.
14. MISCELLANEOUS. This Agreement shall be construed and governed by the laws of
the State of Georgia without giving effect to the conflict of laws principles. The United
Nations Convention for the International Sale of Goods is expressly excluded. Any legal
action arising out of or relating to this Agreement shall be brought exclusively in a state
or federal court located in Georgia and the parties’ consent to the personal jurisdiction of
such courts. You acknowledge and agree that a breach or threatened breach by you of
any of your obligations under Section 4 or Section 8 may cause NexTraq irreparable harm
for which monetary damages would not be an adequate remedy and agree that, in the
event of such breach or threatened breach, NexTraq shall be entitled to equitable relie f,
including a restraining order, an injunction, specific performance, and any other relief that
may be available from any court. Such remedies are not exclusive and are in addition to
all other remedies that may be available at law, in equity, or otherwise. In the event of any
delay in performance (except payment obligations) by either party due to any cause
arising from or attributable to acts, events, non-happenings, omissions, accidents or other
causes beyond the reasonable control of either party, incl uding restrictions of law,
regulations, orders or other governmental directives, labor disputes, cyber -attacks
(including denial of service or distributed denial of service attacks), network failures,
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emergency maintenance, fire, explosions, storms, or other similar events (each, a “Force
Majeure Event”), the party affected thereby shall be under no liability for loss or injury
suffered by the other party as a result thereof and the performance of such obligation by
the party affected thereby shall be suspended during such delay and upon cessation of
the cause of such delay, this Agreement shall again become fully operative and such
affected party shall promptly rectify such delay in performance, provided that, if such
delay pertains to a material obligation of the party affected by such event of force majeure
and such delay shall exceed three (3) months, either party shall be entitled to terminate
this Agreement by written notice to the other. Notwithstanding the foregoing, and for the
avoidance of doubt, this Force Majeure Event clause does not apply to a party’s payment
obligations under this Agreement, which shall continue without suspension.
This Agreement (including all Order Forms and documents incorporate herein) constitutes
the entire agreement between the parties regarding the subject matter hereof and
supersedes all prior or contemporaneous agreements and understandings relating
thereto. This Agreement may be amended as set forth in Section 2; no other amendment
shall be binding unless set forth in a writing signed by both parties, and no waiver
hereunder shall be binding unless signed in writing by the party against whom the waiver
is to be enforced. In the event of any conflict between these terms and conditions and
any written modification executed by the parties, the document later in time shall
prevail. Other than the Indemnified Parties, there are no third party beneficiaries to this
Agreement. You may not assign this Agreement without our prior written consent. This
Agreement shall be binding upon and inure to the benefit of the parties hereto and their
successors and permitted assigns. If any provision of this Agreement is determined to
be unenforceable, the remaining provisions shall not in any way be affected. This
Agreement may be executed in counterparts, the parties’ consent to the use of electronic
signatures, and an electronic signature or copy thereof shall be deemed an original for all
purposes. Pronouns used in this Agreement are applicable to the singular as well as the
plural forms of such terms. The captions and other headings contained in this Agreement
are inserted for convenience of reference only and shall not affect the interpretation or
meaning of this Agreement.
15. THIRD PARTY PRODUCTS AND SERVICES. NexTraq may also offer or facilitate
the purchase of products and services from third parties. You acknowledge that these
products and services are provided by third parties that are independent companies. By
accepting this Agreement, you also confirm that NexTraq is not responsible for these
third-party products and services and accepts no liability for their use. Your use of any
such third-party products and services is governed that third party’s own contracts and
terms and conditions as they may be amended from time t o time. NexTraq shall be
afforded at least all the same rights and benefits as the third party providing those
products and services, including, but not limited to, NexTraq’s right to be indemnified by
you to the same extent as you are required to indemni fy any such third party; but in no
event shall NexTraq be liable for such products and services of a third party.
16. NOTICES. You agree that we may provide any legal notice relating to this Agreement
by mail to the same address where we send invoices for the Service. Except as expressly
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provided herein, any notice you deliver to us must be in writing, addressed to “Legal
Affairs” and delivered with confirmation of receipt to 303 PERIMETER CENTER N, STE
800, ATLANTA, GA 30346.
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