Terms and Conditions

1. THE TERMS & CONDITIONS SET FORTH ON THIS FORM, TOGETHER WITH THE RELATED MASTER SERVICE AGREEMENT, THE WEB ORDER(S), AND THE ORDER CONFIRMATION(S) CONSTITUTE THE ENTIRE AGREEMENT (THE “AGREEMENT”) BETWEEN GUARDTRAX LLC (“GUARDTRAX”) AND CUSTOMER (“CUSTOMER”). GUARDTRAX WILL NOT BE BOUND BY ANY TERMS OF CUSTOMER’S ORDER THAT ARE INCONSISTENT WITH THE TERMS HEREIN. ACCEPTANCE BY CUSTOMER OF THESE TERMS MAY BE MADE BY: (1) WRITTEN ACCEPTANCE OF THESE TERMS, (2) PLACEMENT OF A WEB ORDER WITH GUARDTRAX OR (3) RECEIPT BY CUSTOMER OF ANY GUARDTRAX PRODUCTS (“PRODUCTS” OR “GUARDTRAX SERVICES”). THE MASTER SERVICE AGREEMENT, THIS AGREEMENT, THE WEB ORDER(S) AND THE ORDER CONFIRMATION(S) CONSTITUTES A VALID CONTRACT BETWEEN GUARDTRAX LLC AND CUSTOMER FOR THE PURCHASE OF PRODUCTS AND SERVICES AND THIS AGREEMENT IS BINDING ON ALL PARTIES TO ANY WEB ORDER PLACED BY THE CUSTOMER.
2. General: The Terms and Conditions of services and/or sale contained herein apply to all Master Service Agreements and Web Order(s) accepted by GUARDTRAX. Acceptance of Customer’s order by GUARDTRAX will be made only on the express understanding and condition that insofar as the terms and conditions in this Agreement conflict with any terms and conditions in Customer’s order, the terms and conditions of this Agreement shall govern. If a Web Order is accepted by GUARDTRAX, then the date of the Agreement shall be the Effective Date set forth on the face of the GUARDTRAX Web Order(s). In consideration of Customer’s use of the Service, Customer agree to: (a) provide true, accurate, current and complete information about Customer as prompted by the Service's registration form (such information being the "Registration Data"); (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete; and (c) if applicable, provide appropriate notification messages for any event notifications that Customer set-up on the Service. If Customer provide any information that is untrue, inaccurate, not current or incomplete, or GuardTrax has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, GuardTrax has the right to suspend Customer’s account (as detailed in paragraph 3 herein) and refuse any and all current or future use of the Service (or any portion thereof) until such time as Customer’s Registration Data can be verified. All information gathered from Customer in connection with the use of the Products and service will be governed by the GUARDTRAX Privacy Policy, as may be modified from time to time, located at www.GUARDTRAX.com and which policy is incorporated herein by reference and made a part of this Agreement.
3. Prices, Taxes, Payment: Any written price quotation, either pursuant to this Agreement or on any other form, shall become void unless accepted by Customer within thirty (30) days of the date thereof, unless sooner revoked or rejected by GUARDTRAX. All prices quoted, all orders accepted, and all billings rendered are exclusive of all federal, state and local withholding, excise, sales, use and similar taxes, fees, or charges imposed by any governmental authority on this transaction. Customer will reimburse or pay to GUARDTRAX any such tax, fee or charge, at the time of sale or thereafter, that GUARDTRAX is required to pay such taxes. Terms of payment for parts and equipment are due upon receipt of invoice unless otherwise agreed to in writing, and GUARDTRAX service will be invoiced monthly under the same terms. Terms of payment for the monthly GUARDTRAX service, which is billed in advance. Upfront costs for parts & equipment are due upon entering into a contract with GUARDTRAX and recurring monthly equipment fees are due on the date of each invoice with the first installment due thirty (30) days after receipt of equipment from GUARDTRAX. Payment for parts, equipment and service are not contingent upon installation of said parts & equipment, which is the Customer’s sole responsibility to arrange within thirty (30) days following receipt of the equipment. GUARDTRAX may charge Customer a fee of $50.00 for any check returned due to insufficient funds. GUARDTRAX may also, at its sole discretion, apply any security deposit or portion thereof to any unpaid balance. GUARDTRAX may perform credit verification on Customer as GUARDTRAX deems necessary in its discretion.
4. Term of Agreement: The term of the contract for the GuardTrax service shall be for the number of months stated in the Order Confirmation in Contract Term beginning upon the shipment date of the GT device(s) ("Initial Term"). This agreement shall continue thereafter for successive one (1) year renewal periods until either party gives written notice at least sixty (60) days prior to the then current term that it elects not to renew this Agreement.
5. Termination Penalties: If agreement is cancelled by Customer prior to the end of the term of the agreement, the Customer will incur a termination penalty equal to the total of the remaining monthly payments (“Termination Fee”). In addition, Customer shall arrange to return any Products owned by GUARDTRAX in working and operable condition within thirty (30) days of terminating the service.
6. Software License: GUARDTRAX hereby grants only to Customer a non-transferable, non-exclusive right and license to use any software provided pursuant to this Agreement or contained in or embedded in any of the Products (collectively, the “Software”), solely in conjunction with such Products, in object code form only. Customer may only transfer such Software together with, and as incorporated in, the Products with which it was originally delivered. Customer receives no title or ownership rights to such Software. Except for the license granted in this Section, all right, title and interest in the Software shall remain the exclusive property of GUARDTRAX or its licensors. This Agreement does not give Customer any right to reproduce the Software or any related documentation, and Customer agrees that it shall not decompile, disassemble, compile or reverse engineer the Software or otherwise attempt to gain access to the Software source code or provide access to the GUARDTRAX service to a competitor or any other third party without the prior written consent of GUARDTRAX
7. Member Account, Password & Security: Customer will receive a password and account designation upon completing the Service's registration process. Customer is responsible for maintaining the confidentiality of the password and account, and is fully responsible for all activities that occur under Customer’s password or account. Customer understands that a person or entity with knowledge of its password and account may be able to track and/or control its assets connected to the service or otherwise utilize the Services GUARDTRAX provides to Customer as an End User. Customer agrees to: (a) immediately notify GUARDTRAX of any unauthorized use of its password or account or any other breach of security, and (b) ensure that Customer exits from its account at the end of each session. GUARDTRAX cannot and will not be liable for any loss or damage of any nature arising from Customer’s failure to comply with this Section 8.
8. Title and Delivery: Title shall pass to Customer at the time the Products are delivered to Customer’s premises, unless Products are licensed by GuardTrax to the Customer. GUARDTRAX SHALL NOT BE LIABLE FOR ANY DELAY IN TRANSPORTATION OF THE PRODUCTS. In the event of any default by Customer, GUARDTRAX may decline to make further shipments without in any way affecting its rights under this Agreement. GUARDTRAX disclaims liability for delay or non-delivery of Products, when the cause of such delay or non-delivery is beyond the reasonable control of GUARDTRAX.
9. Warranties: GUARDTRAX provides a one-year limited warranty for the GUARDTRAX device covering parts and labor, provided that the device has not been misused or otherwise damaged outside of normal operational use at the sole determination of GUARDTRAX.
10. Training: Customer agrees that all users and other appropriate personnel will participate in training in use of GT device and website. Regularly scheduled weekly webinars will be available for all users. Upon a change in staffing, Customer will use best efforts to have new Guards attend a training session for the GT device.
11. Firware Upgrade: Customer agrees that it will have the mechanism in place to allow for online upgrading of the firmware for the GT devices which includes allowing the device to be connected to the necessary online servers. The upgrading is expected to occur 2 to 3 times per year.
12. Issue Reporting: Customers are required to alert GuardTrax immediately of any issues with the device by email at gtsupport@guardtrax.com. Phone inquiries and related issues can be directed to Customer Service at (908) 418-4767.
13. Data Overage: Each GuardTrax device is permitted monthly data usage of 3 MB. To the extent that the device incurs data usage over that amount for a given month, whether by device usage, theft or otherwise, you may incur additional charges at the sole discretion of GuardTrax.
14. Exclusions and Limitations: TO THE EXTENT PERMITTED BY LAW, GUARDTRAX SHALL NOT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, NOR FOR ANY LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR GOODWILL, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, EVEN IF GUARDTRAX HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH LOSS, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CUSTOMER. GUARDTRAX TOTAL LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE PRICE PAID BY CUSTOMER FOR SUCH PRODUCT OR SERVICE. GUARDTRAX SPECIFICALLY DOES NOT REPRESENT THAT ANY REPAIRS OR EXCHANGES OF PRODUCTS CAN BE MADE WITHOUT RISK TO OR LOSS OF PROGRAMS OR DATA. The Products and any modifications, alterations, additions or changes to the Products, are not fault tolerant and are not designed, manufactured or intended for use in life support, emergency, mission critical or other ultra-hazardous activities (“High Risk Activities”). GUARDTRAX specifically disclaims any express or implied warranty of fitness for such High Risk Activities. Customer represents and warrants that it will not use, or permit to be used, the Products for such High Risk Activities, and Customer agrees to fully indemnify and hold harmless GUARDTRAX for any damages or other losses resulting from such use.
15. General Practices Regarding Use & Storage: Customer acknowledges that GUARDTRAX may establish general practices and limits concerning use of the Service, including without limitation the maximum number of times (and the maximum duration for which) Customer may access the Service in a given period of time. Customer agrees that GUARDTRAX has no responsibility or liability for the deletion or failure to store any notifications and other communications or other content maintained or transmitted by the Service. Customer acknowledges that GUARDTRAX reserves the right to log off accounts for which Service use fees are not timely paid. Customer further acknowledges that GUARDTRAX reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
16. Data Management and Responsibility: GUARDTRAX is not responsible for the loss of Customer’s data or for the back-up or restoration of Customer’s data regardless of whether this data is maintained on our servers or Customer’s computer or server.
17. Indemnity: Customer agrees to indemnify and hold harmless GuardTrax and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: (a) content Customer submits, posts, transmits or otherwise make available through the Service; (b) Customer’s use of the Service; (c) Customer’s violation of these Terms & Conditions; (d) Customer’s use of the Service to control Customer’s asset(s); (e) Customer’s violation of any rights of another; and (f) use of Customer’s account and any sub-account whether or not such usage is expressly authorized by Customer.
18. Coverage and Data Transmission: Actual coverage and operation of the Products depends on system availability and capacity, system and equipment upgrades, repairs, maintenance, modifications and relocation, Customer’s equipment, terrain, signal strength, structural conditions, weather and atmospheric conditions, governmental regulations, suspected fraudulent activities, acts of God and other conditions beyond GUARDTRAX reasonable control. GUARDTRAX will not be responsible for limits in coverage or performance degradation due to any such conditions. Customer acknowledges that coverage may be interrupted, halted, or curtailed or the quality of the transmission may be diminished at any time. The Products and service are dependent upon the availability of the internet, which is owned and operated by and accessed through third parties and/or the Customer.
19. Links: The Service may provide, or third parties may provide, links to other Internet and/or mobile sites or resources. Because GUARDTRAX has no control over such sites and resources, Customer acknowledges and agrees that GUARDTRAX is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources (“Content”). Customer further acknowledges and agrees that GUARDTRAX shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
20. Force Majeure: Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of GUARDTRAX shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of GUARDTRAX, including without limitation, failure of the Internet network, strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.
21. Technical Data: Customer shall not without GUARDTRAX prior written consent use, duplicate, or disclose any technical data, or any information on the construction of the Products or Services delivered and/or disclosed by GUARDTRAX to Customer for any purposes other than for the installation, operation or maintenance of the Products.
22. Trademarks: GUARDTRAX, the GUARDTRAX device, logo, service marks, and other GUARDTRAX logos and product and service names are trademarks and service marks of GUARDTRAX. Without GUARDTRAX prior permission, Customer agrees not to display or use in any manner, the GUARDTRAX trademarks and service marks.
23. Infringement of Intellectual Property Rights: Customer is prohibited from infringing, publishing, submitting, copying, uploading, downloading, posting, transmitting, reproducing, or distributing software, video or audio content, or any other material that is protected by copyright, trademark, patent, trade secret, any other type of intellectual property rights, trademark laws (by rights of privacy or publicity) or other proprietary right of any party unless Customer own or control the rights thereto or have received all necessary consent to do the same. This prohibition includes the use of any material or information including images or photographs that are made available through a GUARDTRAX or its Service(s). GUARDTRAX follows the copyright protection practices under the Digital Millennium Copyright Act (DMCA) of 1998.
24. Default: Customer will be in default if: a) Customer does not pay any amount due as required in any sales and/or service; or b) Customer breaches any promises made under the terms of this Agreement and does not cure within ten (10) days of receiving notice of such; or c) Customer gives GUARDTRAX some reasonable cause to believe that Customer is unwilling or unable to make payments under this Agreement.
25. Remedies: If Customer defaults, GUARDTRAX may do any or all of the following: a) GUARDTRAX may require Customer to enroll in an automated payment process by providing account information and signing an appropriate authorization; b) GUARDTRAX may, without notice, accelerate all sums due under this Agreement; c) GUARDTRAX may terminate the services provided under this Agreement without any liability to GUARDTRAX and without affecting GUARDTRAX rights to be paid for the remaining term of the Agreement; d) GUARDTRAX may demand the immediate return of all Products, which it holds title to, in good operating condition; e) if Customer does not return the Products or the Products are returned in a damaged condition, GUARDTRAX may, at its option, initiate proceedings at Customer’s expense to repossess the Products not returned or in the alternative, assess Customer for the full present day replacement or repair cost of the Products; f) GUARDTRAX reserves the right to exercise any other remedy available by law or equity, for which Customer and any guarantor(s) expressly waive any required notice; g) if GUARDTRAX is forced to refer this Agreement to any attorney for collection or enforcement of this Agreement, Customer agrees to pay GUARDTRAX reasonable attorney’s fees and costs which will not be less than the greater of $400.00 or 25% of the total amount in collection as a liquidated damage and not a penalty.
26. Dispute Resolution: IT IS IMPORTANT THAT CUSTOMER READ THIS ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. CUSTOMER CONTINUES TO HAVE CERTAIN RIGHTS TO OBTAIN RELIEF FROM A FEDERAL OR STATE REGULATORY AGENCY.
27. Binding Arbitration: The arbitration process established by this section is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16. Customer has the right to take any dispute that qualifies to small claims court rather than arbitration. All other disputes arising out of, or related to, this Agreement (whether based in contract, tort, statute, fraud, misrepresentation or any other legal or equitable theory) must be resolved by final and binding arbitration. This includes any dispute based on any product, service or advertising having a connection with this Agreement and any dispute not finally resolved by a small claims court. The arbitration will be conducted by one arbitrator using the procedures described by this Section. If any portion of this Dispute Resolution Section is determined to be unenforceable, then the remainder shall be given full force and effect. The arbitration of any dispute shall be conducted in accordance with the American Arbitration Association's ("AAA") Supplementary Procedures for Consumer-Related Disputes, as modified by this Agreement, which are in effect on the date a dispute is submitted to the AAA. Customer has the right to be represented by counsel in arbitration. In conducting the arbitration and making any award, the arbitrator shall be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms.

    NO DISPUTE MAY BE JOINED WITH ANOTHER LAWSUIT, OR IN AN ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON, OR RESOLVED ON A CLASS-WIDE BASIS. THE ARBITRATOR MAY NOT AWARD DAMAGES THAT ARE BARRED BY THIS AGREEMENT AND MAY NOT AWARD PUNITIVE DAMAGES OR ATTORNEYS' FEES UNLESS SUCH DAMAGES OR FEES ARE EXPRESSLY AUTHORIZED BY A STATUTE. CUSTOMER AND GUARDTRAX BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT

28. Arbitration Information and Filing Procedures: Before Customer take a dispute to arbitration or to small claims court, Customer must first contact our customer account representatives at the customer service number on Customer’s GUARDTRAX bill for the Services, or write to us at the following address, and give us an opportunity to resolve the dispute.

    Address: GuardTrax, LLC, 11 Commerce Drive, Cranford, NJ 07016; Phone Number: 908-272-0114.

    Similarly, before GUARDTRAX takes a dispute to arbitration, we must first attempt to resolve it by contacting Customer. If the dispute cannot be satisfactorily resolved within sixty (60) days from the date Customer or GUARDTRAX is notified by the other of a dispute, then either party may then contact the AAA in writing at AAA Service Center, The Paramount Building 1633 Broadway, 10th Floor, New York, NY 10019 and request arbitration of the dispute. Information about the arbitration process and the AAA's Arbitration Rules and its fees are available from the AAA on the Internet at http://www.adr.org/. The arbitration will be based only on the written submissions of the parties and the documents submitted to the AAA relating to the dispute, unless either party requests that the arbitration be conducted using the AAA's telephonic, on-line, or in-person procedures. Additional charges may apply for these procedures. Any in-person arbitration will be conducted at a location that the AAA selects in New Jersey or New York. Arbitrations under this Agreement shall be confidential as permitted by federal law.

29. Fees and Expenses of Arbitration: Customer must pay the applicable AAA filing fee when Customer submit Customer’s written request for arbitration to the AAA. The AAA's filing fee and administrative expenses for a document arbitration will be allocated according to the AAA's Rules. Customer also may ask the AAA about the availability of a pro bono arbitrator and/or a waiver or deferment of fees and expenses from the AAA; more information about the AAA's rules and policies is available at the AAA's website, which is at www.adr.org. Unless applicable substantive law provides otherwise, each party will pay its own expenses to participate in the arbitration, including attorneys' fees and expenses for witnesses, document production and presentation of evidence. If Customer prevails before the arbitrator, however, Customer may seek to recover the AAA's fees and the expenses of the arbitrator from us. If we prevail before the arbitrator, and if we show that Customer acted in bad faith in bringing Customer’s claim, then we may seek to recover the AAA's fees and expenses of the arbitrator from Customer.
30. End User License Agreement: If Customer have connected to the Service by downloading or installing GUARDTRAX or an Affiliate’s or Supplier’s software ("Software"), Customer’s use of that Software is subject to the End User License Agreement that accompanied that Software. Otherwise, GUARDTRAX or its applicable third party licensors, grants Customer a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single device; provided that Customer do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. Customer agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including, without limitation, for the purpose of obtaining unauthorized access to the Service. Customer agrees not to access the Service by any means other than through the interface that is provided by GUARDTRAX for use in accessing the Service.
31. Software Product Restriction: No title to or ownership of any Software or any parts thereof, including integrated Software or parts thereof, is transferred to the Customer or the ultimate purchaser by any delivery of Software to Customer. Customer agrees to strictly comply with all restrictions identified in this Section 26 with regard to all software, including all improvements or updates delivered by GUARDTRAX. Customer acknowledges that the restrictions on Software licensed or distributed by GUARDTRAX from third-party suppliers may include registration or license requirements and prohibitions on copying. GUARDTRAX makes NO WARRANTY as to any software products, whether produced by GUARDTRAX or a third party, all of which are supplied by it “AS-IS”, and GUARDTRAX makes NO WARRANTY as to any experimental or developmental products, or as to products not manufactured by GUARDTRAX.
32. Security Interest: GUARDTRAX reserves, until full payment has been received, a purchase money security interest in the Products. Customer agrees to execute any document appropriate or necessary to perfect the security interest of GUARDTRAX, and Customer hereby authorizes GUARDTRAX to file a UCC-1 financing statement or similar document, and appoints GUARDTRAX as Customer’s attorney-in-fact to execute and deliver such instrument to show GUARDTRAX interest in the Products.
33. Governing Law and Venue: This Agreement and performance by the parties hereunder shall be construed in accordance with the laws of the State of New Jersey, U.S.A., without regard to provisions on the conflicts of law, Customer and GUARDTRAX consent to the exclusive jurisdiction of the State of New Jersey, and any state or federal court located there. CUSTOMER AND ANY GUARANTOR ALSO CONSENT TO THE PERSONAL JURISDICTION OF THE STATE OF NEW JERSEY AND ANY STATE OR FEDERAL COURT LOCATED THERE. Customer waives personal service of process and consents to service of process by certified mail or registered mail return receipt requested to the Customer’s business address and expressly waives any right to trial by jury. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The Parties agree to modify any invalid or unenforceable provision, to the extent possible, to become a valid and enforceable provision that achieves the financial balance and mutual understanding established between the Parties.
34. Assignment: Customer shall not assign its order, this Agreement or any interest therein or any rights thereunder without the prior written consent of GUARDTRAX. GUARDTRAX may assign this Agreement without affecting any obligations or rights of the Customer.
35. Entire Agreement: This Agreement between Customer and GUARDTRAX in connection with the Products or parts thereof constitutes the entire agreement between GUARDTRAX and Customer and supersedes all previous communications, representations and agreements, whether oral or written, between the Customer and GUARDTRAX with respect to the subject matter hereof. Any copies of original documents are considered ‘original’ copies and are still binding. The failure by GUARDTRAX to enforce at any time any of the provisions in this Agreement will in no way be construed as a waiver of such provisions.
36. Modifications to Terms & Conditions: GUARDTRAX reserves the right to modify these Terms & Conditions at any time. Updated versions of the Terms & Conditions will appear on GUARDTRAX web site and are effective immediately. Customer is responsible for regularly reviewing the Terms & Conditions. Continued use of GUARDTRAX web site services after any such changes will constitute Customer’s consent to such changes.