Last Revised: October 13, 2022
Version: V 1.0.0.2
These Terms and Conditions (“Terms”) are between you (the “Customer”) and YoGPS Inc. dba YoGPS (“YoGPS”) and they govern your use of the Services and Devices (as defined and further explained below).
If you have any questions relating to these Terms, please contact YoGPS by email at support@yogps.com
PLEASE READ THIS ENTIRE DOCUMENT CAREFULLY BEFORE INSTALLING THE DEVICE AND USING THE SERVICES. THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CERTAIN EXCLUSIONS AND LIMITATIONS ON THOSE RIGHTS, INCLUDING:
IN ORDER TO RECEIVE THE SERVICES, YOU MUST ACCEPT THESE TERMS, WHICH WILL CREATE A BINDING LEGAL AGREEMENT BETWEEN YOU AND YoGPS. YOU WILL EITHER ACCEPT BY SIGNING THE ORDER FORM AND EXECUTION PAGE OR ORDERING THE SERVICE THROUGH THE YoGPS WEBSITE AND CLICKING THE BOX OR BY ORDERING THE SERVICE THROUGH YoGPS MOBILE APP AND CLICKING SIGN UP INDICATING THAT YOU HAVE READ AND UNDERSTOOD AND ACCEPT THESE TERMS AND OUR PRIVACY POLICY.
The following definitions apply to this Agreement:
“Affiliate” has the meaning given to it in the Canada Business Corporations Act, R.S., 1985, c. C-44, and includes a partnership in which a party, including Customer, has a controlling interest.
“Applicable Laws” means all applicable federal, provincial, state, municipal and local laws, statutes, by-laws, rules, order (including court and regulatory orders), regulations, and codes in effect from time to time and made or issued by governmental, legislative, administrative or regulatory authorities or agencies.
“Charges” means the charges payable by Customer to YoGPS for the Devices and/or Services, including applicable data fees, fixed monthly charges, installation, upgrade and support fees and any other charges incurred in using the Services.
“Confidential Information” has the meaning set out in Section 11.1.
“Customer Data” means the information and data generated by the Devices and the provision of the Services, including Location Information and any information that comes from Customer’s vehicle, pet or other item, and information that incorporates or is derived from the processing of such information or data.
“Customer Equipment” means the equipment and facilities of the Customer and/or its Users, used in conjunction with the Devices in order to obtain the Services, and includes the Customer’s vehicles.
“Device” means the YoGPS real-time global positioning satellite locator device which monitors and collects global positioning satellite (“GPS”) coordinates to show the location of a vehicle, pet, person, PDA or other item.
“Effective Date” means the effective date indicated on the Order Form and Execution or, in the case of online signups, the date the Customer agrees to these Terms.
“Fleet Tracking Services Agreement” or “Agreement” means these Terms, the signature page affixed to these Terms, the Order Form and Execution page, any additional Service Order(s), and any additional schedules attached hereto.
“Intellectual Property” means all intellectual and industrial property including without limitation all works in which copyright subsists or may subsist, documentation, text and other literary works, computer programs, designs, industrial designs, trade secrets, confidential information and know-how, trademarks, trade names, discoveries and inventions, and integrated circuit topographies.
“Intellectual Property Rights” means all registered and unregistered rights granted, applied for, or otherwise in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Location Information” means the GPS coordinates showing the location of the pet, vehicle, PDA or item chosen by the Customer.
“Services” means the services provided by YoGPS associated with the Devices, including monitoring and collection of Location Information, and the YoGPS Customer App.
“Service Orders” means the initial and subsequent orders, placed by the Customer and accepted by YoGPS for Devices and Services to be provided by YoGPS. The initial Service Order is included in the Order Form and Execution Page or the online order form through which the Customer orders the Device and Services. A Service Order is also placed by the Customer for changes, additions or modifications to a Service.
“User” means any person (including but not limited to the Customer), firm, corporation or other entity, that utilizes the Devices or Services, including the Customer’s own employees or contractors. Derivative terms such as “Usage” or “Use” will have corresponding meanings.
“Warranty Period” means the 30 days period commenced from the activation date of a Device.
“YoGPS Customer App” means the YoGPS proprietary mobile app for Android and iOS through which the Customer can access its Customer Data.
2. SERVICES
2.1 Services. YoGPS agrees to provide the Services, including the provision of Devices to be used in conjunction with the Customer Equipment, to the Customer as described in each Service Order from time to time pursuant to provisions of these Terms and any specific terms and conditions set out in the applicable Service Order (the “Service Terms”).
3. CHARGES AND PAYMENT TERMS
3.1 Charges. Customer shall pay YoGPS the Charges for all Services, as specified and at the prices as set forth in each Service Order or otherwise pursuant to this Agreement. One-time and annual Charges are to be paid in full upon execution of the applicable Service Order. For monthly and quarterly Charges, YoGPS will invoice the Customer in advance of such Charges being incurred.
3.2 Payment Terms. All Charges are due and payable to YoGPS on the due date stated on the invoice, which will be no later than 30 days from the date of the invoice, without any right of deduction or setoff. All payments are to be made via debit card, credit card or via electronic transfer to an account specified by YoGPS , or by such other payment mechanism as specified on the Service Order. YoGPS will charge Customer interest on any outstanding balances at a rate of at the rate of 1.5% per month (19.56% per annum), or the maximum legal rate, if less.
3.3 Taxes. Taxes, such as sales, use, service, value added or like taxes, are not included in the Charges and will be invoiced, if applicable, as separate items.
3.4 Installation Charges. Upon request, YoGPS will provide Device installation and other configuration services with Customer Equipment. Such Charges will be at YoGPS ‘s then current rates for professional services. YoGPS may also subcontract the provision of such services.
4. OWNERSHIP
4.1 Devices
(a) Title to the Device will pass to Customer upon full payment of the Charges for the Device.
(b) The Customer shall not remove, tamper with, rearrange, disconnect, reconfigure or repair any Devices, including passwords and equipment identifiers, or to perform a software reset of any Devices without the prior written permission of YoGPS . The Devices may contain technological measures (including the ability to disable the Devices) designed to prevent the illegal usage of software or other violations of this Agreement or applicable law. The Customer shall not circumvent or attempt to circumvent such measures
4.2 Software License
4.3 Intellectual Property
(b) Except as otherwise provided in this Agreement, the Customer shall not (i) make any modifications, or improvements to, or derivative works of the YoGPS Customer App or Devices; (ii) reverse engineer, decompile or otherwise attempt to derive the source code, underlying ideas, algorithms, structure of organization of the YoGPS Customer App or Devices; (iii) resell, sell, export, transfer, distribute, market, and/or sublicense the YoGPS Customer App or Devices; or (iv) otherwise use the YoGPS Customer App or Devices except as authorized pursuant to this Agreement
5.1 The Customer shall be solely responsible for any and all personal data and information related to identifiable individuals it provides through the Services (“Customer Data”). Customer shall retain ownership of Customer Data, subject to the rights and permissions granted in this section 5. By providing Customer Data to YoGPS, the Customer grants all such rights and permissions in or relating to Customer Data to YoGPS as are necessary to provide the Services.
5.2 Notwithstanding anything to the contrary, YoGPS has the right to collect and analyze 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 Users access and use of the Services, and data and information based on or derived from Customer Data), and Customer hereby grant YoGPS the right 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 YoGPS 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, provided that YoGPS shall not disclose Customer Data or information derived from Customer Data to third parties unless such information has been aggregated, de-identified and/or anonymized such that it cannot reasonably be used to identify a specific individual or customer, and (c) disclose such information in other ways upon specific consent.
6.1 Customer Responsibilities. In addition to any other obligations of the Customer under this Agreement, including any Service Order, the Customer shall:
6.2 Failure to Comply. YoGPS is not liable for any failure to provide the Services in accordance with this Agreement that results from Customer’s failure to comply with the obligations set out in Section 5.1. In the event Customer is in breach of sub-section (e), (f), (g), (h), and (i), and such breach materially adversely affects or the YoGPS ’s network, the Services or other customers’ ability to receive services from YoGPS , YoGPS may take all actions which it reasonably considers necessary to address that material adverse effect, including immediate suspension of the Services.
6.3 Vehicle Sale of Transfer. In the event of an accident or sale of vehicle, it is Customer’s responsibility to inform YoGPS of cancellation or the transfer of the Service to the new vehicle owner and inform the buyer of the vehicle of the presence of an active GPS tracker installed in the vehicle. Should the Customer seek Device removal and/or reinstallation to a new vehicle, additional charges will apply.
6.4 Customer Representations. The Customer represents and warrants that it
(c) has obtained any required authorization and consent: (i) to monitor the location of the pet, vehicle, PDA or item chosen by the Customer; and (ii) to agree that YoGPS may monitor, collect, use, communicate, retain and disclose Location Information as described in this Agreement.
7.1 Term of the Agreement. This Agreement will commence on the Effective Date and continues until all Service Orders hereunder have expired or have been terminated (the “Term”).
7.2 Term of Service Orders. The term of each Service Order is specified in that Service Order (the “Service Term”). Except as otherwise noted in a Service Order, after the Service Term ends, YoGPS will continue to provide the Services on a month-to-month basis unless the Customer enters into a new Service Order. Following the expiration of the Service Term, either party may cancel the Service upon 30 days notice. The pricing following the Service Term will remain the same, however YoGPS reserves the right to increase or modify pricing on 30 days notice..
7.3 Termination Generally. Any termination of this Agreement will automatically terminate the licences granted to the Customer and the right to use the Services.
7.4 Termination by Customer. Subject to section 7.6, the Customer may cancel the Services and terminate this Agreement and any then-current Service Orders at any time by providing thirty (30) days written notice to YoGPS . Notwithstanding section 7.6, YoGPS will refund Customer for all Charges paid if Customer cancels the Service Order within fourteen (14) days from the Effective Date or the Device has travelled more than 10 km, whichever occurs sooner.
7.5 Termination for Cause. Either party may terminate this Agreement upon written notice to the other party, effective immediately or at such later date as specified in such notice and without any penalty, in the event that the other party commits a material breach of this Agreement and such breach is not cured within ten (10) days of receiving the notice. Further, this Agreement is deemed to be terminated in the event of insolvency or the institution of any insolvency, receivership or conservatorship, assignment for the benefit of creditors, bankruptcy or similar proceedings against either Party, or an order to wind up the business activities of either party.
7.6 Termination Fees. In the event that Customer terminates a Service for convenience pursuant to Section 7.4 or YoGPS terminates the Service for material breach pursuant to Section 7.5 (a “Terminated Service”), the Customer shall pay YoGPS all Charges due for the Terminated Service up to the date of termination, including installation charges or non-recurring charges, and an amount equal to: (a) 100% of the monthly recurring Charges for the Service, multiplied by the number of months remaining in the then current Service Term, or (b) as otherwise provided in the Service Order, as well as any applicable termination fees set out in the Service Terms (the “Termination Fees”). Customer acknowledges and agrees that the Termination Fees are liquidated damages and consideration for the Services and are not a penalty.
7.7 Post-Termination. YoGPS ’s right to all outstanding Charges pursuant to this Agreement and related Service Orders will survive any termination or expiration of this Agreement until such time as all such fees have been paid in full.
7.8 No Liability of YoGPS . The termination, restriction or suspension of Services, pursuant to this Section 7, will not affect Customer’s obligation to pay for the Services rendered prior to the termination, restriction or suspension. YoGPS will not be liable for any loss, damage or inconvenience suffered by Customer as a result of any termination, restriction or suspension of the Services.
7.9 Survival. The terms of this Agreement, which by their nature are intended to extend beyond the term of this Agreement, will survive any termination or expiration of this Agreement, including Sections 3, 4, 5, 6.1, 7, 8, 10, 11, and 12.
8.1 The Customer agrees that YoGPS may collect, use, retain, store, retain, transfer, use or otherwise process Location Information as described in this Agreement and YoGPS ’s Privacy Policy (https://YoGPS.com/privacy-policy/), which is incorporated by reference into this Agreement.
9.1 Disclaimer. Customer acknowledges that YoGPS does not warrant: (i) uninterrupted or error-free Services; (ii) that there will not be delays, interruptions, errors, defects or failures associated with the Services, YoGPS ’s network or the networks of YoGPS ’s network service providers (including telecommunication network coverage failure, server failures or delays, network and server latency, non-availability of satellite coverage or failure of any communications link); and (iii) the content, availability, accuracy or any other aspect of any information, including data, files and all other information or content in any form, accessible or made available to or by the Customer or its Users through the use of the Services. YoGPS may interrupt the Services at any time for any duration of time, without any notice or liability, in order to install, repair, replace or to perform necessary maintenance or for other technical reasons as may be required. Customer acknowledges that the Services are available to the Devices only within the operating range of YoGPS in Canada and the United States and that YoGPS , its affiliates and its third party vendors will not be liable to the Customer or its Users with respect to any claim or damage related to or arising out of or in connection with any coverage gap or any interruption, curtailment or other limitation provided above. YoGPS makes no guarantees or warranties that the Devices and Services ordered from YoGPS , including, by way of example and not limitation, medical/health alert solutions, alarm solutions or people tracking solutions, will detect, avert or prevent the occurrences of the type for which they are designed. In the event that a vehicle, pet or item is in a region with limited or no mobile network coverage, the satellite locations logged by the Device will be stored in the Device and sent to the service once network connectivity is resumed.
9.2 Limited Device Warranty. YoGPS warrants that during the Warranty Period a Device will perform in accordance with the written specifications that issued with respect to the Device, subject to the limitations and conditions set forth in our specifications and this Agreement, and when used in accordance with our documentation and specifications (the “Limited Warranty”). Prior to the expiration of the Warranty Period, YoGPS will either repair or replace the Device or use commercially reasonable efforts to correct any material defects in software and services. YoGPS reserves the right to replace any Device with a more current version or model or refurbished device units in its sole discretion. In the event that YoGPS determines that a Device must be replaced, Customer will be responsible for shipping charges and applicable removal and re-installation charges. The Limited Warranty does not cover (i) problems with a Device caused by normal wear and tear; (ii) problems resulting from improper installation, maintenance, repair, or usage of a Device; (iii) problems with a Device resulting from external causes such as accident, abuse, misuse, mishandling, collision, alteration, negligence, fire, theft, loss, vandalism, riot, explosion and natural disasters; (iv) problems resulting from any change of technology, law or regulation that renders a Device obsolete or incompatible with existing telecommunications services. Further, YoGPS is not responsible for any problems or technical malfunctions of any Devices, vehicles or connected components, including any injury to users, pets and or owners or any persons and damage to vehicles. To the maximum extent permitted by Applicable Law, the foregoing constitutes YoGPS ’s sole and exclusive remedy and our sole and exclusive obligation for any breach of the foregoing warranty.
9.3 Waiver. THE WARRANTIES PROVIDED IN THIS AGREEMENT REPLACE ALL OTHER WARRANTIES AND CONDITIONS. THE CUSTOMER WAIVES AND YoGPS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AVAILABILITY OR RELIABILITY OF THE SERVICES.
10.1 LIMITATION OF LIABILITY. YoGPS NOR ITS AFFILIATES WILL BE LIABLE TO CUSTOMER, USER OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE, SPECIAL, PUNITIVE DAMAGES, OR FOR ANY DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF PROFITS OR BUSINESS, LOST REVENUE OR LOSS OF OR DAMAGE TO DATA, FAILURE TO REALIZE EXPECTED SAVINGS, COMPETITIVE ADVANTAGE OR GOODWILL OR ANY COMMERCIAL OR ECONOMIC LOSS OF ANY KIND OR NATURE WHATSOEVER, REGARDLESS OF THE FORESEEABILITY THEREOF OR EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF THE PROVISION OF SERVICE OR IN ANY WAY ARISING OUT OF THIS AGREEMENT. THE CUSTOMER’S EXCLUSIVE REMEDY AND YoGPS ’S TOTAL LIABILITY, IF ANY, FOR DAMAGES FOR ANY CAUSE WHATSOEVER, WILL BE NO MORE THAN OR THE CHARGES PAID BY CLIENT FOR THE DEVICE OR THREE (3) MONTHS OF SERVICE CHARGES PRECEDING THE EVENT ALLEGED TO HAVE CAUSED THE DAMAGES, WHICHEVER IS LESS.
10.2 Fundamental Breach. Section 10 of this Agreement will apply even if there is a breach of condition, a breach of essential or fundamental term, or a fundamental breach of this Agreement.
10.3 Limitations Fair and Reasonable. Customer agrees that the limitations of liability set out in this Section are fair and reasonable in the commercial circumstances of this Agreement and that YoGPS will not have entered into this Agreement but for the agreement to limit YoGPS ’s liability in the manner and to the extent provided for in this Agreement.
10.4 Indemnity. In addition to any other indemnities contained in this Agreement, Customer shall indemnify and defend YoGPS , and YoGPS ’s Affiliates, and each of their shareholders, directors, officers, employees, agents, underlying providers, contractors and licensors from and against all claims, losses, expenses, damages and costs, including reasonable legal fees, resulting from any action, inaction or breach of this Agreement by Customer or other Users.
11.1 Headings. The headings in this Agreement are for the convenience of the parties only, and are in no way intended to define or limit the scope or interpretation of the Agreement or any provision hereof.
11.2 Notice. All notices that are required to be given under this Agreement will be in writing and will be sent to the addresses set out on the execution page of this Agreement, and/or address as each party may designate by notice given in accordance with this Section 14.3. Any such notice may be delivered by hand, by overnight courier, by facsimile transmission, by email and online via any secure website made available by YoGPS for this purpose, and will be deemed to have been received: (a) by hand delivery – at the time of delivery; (b) by overnight courier – 24 hours after the date of delivery to courier; and (c) by email or any secure website made available by YoGPS – the next business day.
11.3 Relationship of Parties. Nothing in this Agreement will be construed as establishing or implying any partnership or agency between the parties.
11.4 Customer Affiliates. The Customer executes and delivers this Agreement on its own behalf and on behalf of its Affiliates, if applicable.
11.5 Entire Agreement. This Agreement and all documents and agreements referenced in or to be delivered pursuant to this Agreement constitutes the entire agreement between the parties, and supersedes any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement. Customer’s additional or different terms and conditions will not apply. Except as expressly provided in this Agreement for documents that YoGPS may amend from time to time, the terms and conditions of this Agreement may not be changed except by an amendment signed by an authorized representative of each party.
11.6 Notices. All notices that are required to be given under this Agreement will be in writing and will be sent to the email address used while buying online or to the address of the Customer recipient set out on the cover page of the signed Agreement, or such other recipient and/or address as each party may designate by notice given in accordance with this Section 13.6. Any such notice may be delivered by hand, by overnight courier, by facsimile transmission, by email and online via any secure website made available by YoGPS for this purpose, and will be deemed to have been received: (a) by hand delivery – at the time of delivery; (b) by overnight courier -24 hours after the date of delivery to courier; (c) by facsimile – immediately upon automatic answerback confirmation of transmission; and (d) by email or any secure website made available by YoGPS – the next business day.
11.7 Remedies Not Exclusive. Except for those remedies that are expressly stated to be sole remedies, the remedies provided to the parties under this Agreement are cumulative and not exclusive to each other, and any such remedy will not be deemed or construed to affect any right which any of the parties is entitled to seek at law, in equity or by statute.
11.8 Assignment. The Customer shall not assign this Agreement or any Service Order assign any rights without the prior written consent of YoGPS , not to be unreasonably withheld, and any purported assignment in violation of the provisions of this section will be null and void. Any change in the voting control of the Customer will constitute an assignment hereunder and shall be subject to the approval of YoGPS as set forth above. This Agreement will ensure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
11.9 Force Majeure Event. If and to the extent that a party’s performance of any of its obligations pursuant to this Agreement is prevented, hindered or delayed by reason of: fire, flood, earthquake, explosion or other casualty or accident or act of God; war, riots, civil disorders, sabotage, terrorism or other violence; embargo, epidemic or quarantine restrictions; strikes or other employment disputes of either party’s or subcontractor’s personnel; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental authority; power outages; acts or omissions of third party telecommunications carriers or any part of the public Internet; inability on account of a cause beyond the party’s reasonable control to obtain necessary materials, components, services or facilities, or any other cause beyond the reasonable control of a party (in each case, a “Force Majeure Event”), then the non-performing, hindered or delayed party will be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such party continues to use its reasonable commercial efforts to re-commence performance whenever and to whatever extent possible, including through the use of alternate sources, workaround plans or other means. This Section will not apply to any failure to make any payment when due.
11.10 No Waiver. Neither party’s failure to exercise any of its rights under this Agreement will constitute or be deemed to constitute a waiver or forfeiture of such rights.
11.11 Invalidity of Particular Provision. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected.
11.12 Governing Law and Attornment. This Agreement is made under and will be construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to choice of law rules that would apply a different body of law. Any legal suit, action or proceeding must be brought solely and exclusively in the Province of Ontario.
11.13 Counterparts. A written Service Order may be executed in any number of counterparts with the same effect as if all parties had signed or accepted (online) the same document. All of these counterparts will for all purposes constitute one agreement, binding on the parties, notwithstanding that all parties are not signatories to the same counterpart. A faxed copy or photocopy of a Service Order t executed by a party in counterpart or otherwise will constitute a properly executed, delivered and binding agreement or counterpart of the executing party.
11.14 Currency. Unless otherwise specified in a Service Order, all dollar amounts referred to in this Agreement are expressed in Canadian dollars.
11.15 Further Assurances. Each of the parties will promptly execute and deliver to the other at the cost of the other such further documents and assurances and take such further actions as the other may from time to time request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights, interests and remedies intended to be created in favour of the other.
