Locate Terms of Service Agreement
Updated February 13, 2020
LOCATE TERMS OF SERVICE AGREEMENT
WHEREAS the Customer wishes to purchase the Services (as described herein) from KYCS Global Inc. (“KGI”), and subject to KGI’s acceptance of this Agreement or any renewal thereof, KGI agrees to provide the Services described herein (the “Agreement”), THE PARTIES AGREE AS FOLLOWS:
In this Agreement, the following terms shall have the meaning set forth below: “Authorized Dealer ” or “AD” means those dealers who are from time to time identified by KGI as being authorized service centers, and shall include KGI (the Customer can communicate with KGI or visit the KGI web site to obtain a current list of ADs and their respective locations); “KYCS Locate Unit” means the KYCS brand vehicle location unit; “Current Term” means either the period covering the Initial Term or the Renewal Term; “Customer” means the person, company or other entity identified in the Customer Information portion of this Agreement; “Equipment” means the KYCS Locate Unit installed in the Vehicle, said unit or parts thereof may have been previously used or reconditioned; “Initial Term” means the period for which the Service was initially purchased by the Customer pursuant to this Agreement, as set forth on the face hereof; “Renewal Term” means successive one-year periods for which this Agreement shall be renewed following the Initial Term; “Reactivation fee” means the amount of $50; “Service” means KGI’s stolen vehicle location service described herein; “Service Area” means wherever there is 4G/LTE cellular service (KGI reserves its right to modify from time to time the territory included in the Service Area); “Service Call” means any request or call made by the Customer to KGI concerning the location of the Vehicle or any theft notification automatically emitted by a KYCS Locate Unit; “Term” means the entire duration of this Agreement, including any renewal or extension thereof; “Tracking Fee” means the amount of $250 per Service Call; “Vehicle” means the Customer’s vehicle into which Equipment is installed and in relation to which the Service is purchased.
- EQUIPMENT INSTALLATION AND MAINTENANCE
2.1 In order to ensure the proper functioning of the Equipment, the Customer shall co-operate with KGI and ADs with regard to all aspects of the installation, removal, repair and maintenance of the Equipment and ensure that same shall only be performed by an AD. Failure to abide by this condition shall void any warranty related hereto.
2.2 For security reasons, only KYCS or an AD may, to the exclusion of the Customer, handle or keep the KYCS Locate Unit when such unit is not installed in the Vehicle.
(i) will reduce both the effectiveness of the Equipment and KGI’s ability to provide the Service; (ii) can result in the generation of false alarms; (iii) shall be deemed a breach of this Agreement; and
(iv) shall void any warranty or guarantee related hereto. All maintenance of the Equipment, including the replacement of the Locate battery, shall be at the expense of the Customer, the whole in accordance to KGI’s standard rates applicable from time to time. KGI reserves its right to modify the nature and intervals of the maintenance program related to the Equipment, and Customer hereby undertakes to diligently respect any such maintenance program.
2.3 The Customer acknowledges that if the Vehicle is recovered at any time by using the KYCS Locate via Service Call, that the KYCS Locate battery must be replaced. Failure to replace the battery after a Service Call will reduce the effectiveness of the Equipment and KGI’s ability to provide the service.
- SALES AND TRANSFER OF VEHICLE
3.1 The Customer acknowledges that the sale or transfer of the Vehicle shall not operate an assignment of this Agreement and shall not release the Customer from its obligations hereunder. If the Customer intends to sell or otherwise transfer the Vehicle to a third party (the “Purchaser”) without first removing the KYCS Locate Unit, Customer must ensure that a then current Agreement duly completed by the Purchaser is submitted to KGI for acceptance. Until such time as the Purchaser’s Agreement is accepted by KGI, if and when same were to occur, the Customer shall continue to be bound by this Agreement and must respect and abide by all of its obligations hereunder, including all payments due to KGI, until the expiry or termination thereof in accordance to its terms and conditions. In no event will any fees which were pre-paid by the Customer be reimbursed to the Customer.
- THE SERVICE
4.1 KGI shall only provide the Service once the following steps have been completed: (i) the Equipment has been installed in the Vehicle by an AD; (ii) KGI has received the payment of any and all fees payable by the Customer under this Agreement; and (iii) KGI has accepted the Agreement.
4.2 Following the receipt by KGI of a Service Call: (i) if a KYCS Locate Unit is installed in the Vehicle, the Customer must provide to KGI a confirmation, which is acceptable to KGI, that a stolen car incident report has been filed with public security authorities (the “Police”). If KGI obtains these confirmations, KGI shall use its reasonable commercial efforts to locate the Vehicle within the Service Area. KGI shall have the option but not the obligation to track or locate the Vehicle if: (i) it is situated outside the Service Area; or (ii) it has not received confirmation that a stolen car incident report has been filed with the Police and obtained the report or file identification number provided by the Police.
4.3 KGI has no obligation to communicate with or inform any third party, including the Police, of its reception of a Service Call.
4.4 Should KGI successfully locate the Vehicle, KGI’s only obligation shall be to make a reasonable attempt to inform by telephone the Police of the location of the Vehicle. KGI will also have the option, at its discretion, of taking possession of and storing the Vehicle until it has obtained the necessary confirmations from the Customer and/or the Police concerning the status of the Vehicle. KGI may also have the Vehicle towed at the Customer’s expense. The Customer acknowledges that the Police may refuse or neglect to respond to KGI’s notification or may do so in an untimely manner and the Customer further acknowledges that KGI shall not be responsible for any prejudice or damage suffered as a result of such an occurrence.
4.5 Should the Customer fail to abide by any of the terms and conditions of this Agreement, including without limitation, the payment of any amount due to KGI or an AD, KGI reserves its right, at its sole discretion, to either: (i) refuse to respond to a Service Call; or (ii) provide the Service subject to the immediate payment by the Customer of a supplemental tracking fee of an amount determined at KGI’s discretion, but in no event less than $1000 per Service Call.
4.6 Under no circumstances can the Customer interrupt the application of this Agreement, nor will the Customer be credited for payments applicable to any period during which the Vehicle is stored or the Services are not required.
- THE CUSTOMER
5.1 The Customer undertakes to immediately advise both KGI and the Police of the theft or suspected theft of the Vehicle, and to immediately communicate to KGI the report or file identification number provided by the Police with regard to such theft or suspected theft. The Customer acknowledges that any delay in placing a Service Call or advising the Police of the theft or suspected theft of the Vehicle reduces the likelihood of successfully tracking and recovering the Vehicle.
5.2 The Customer agrees to pay to KGI the Tracking Fee if the Vehicle is located by KGI. However, should the Vehicle be situated outside the Service Area, the Customer acknowledges and accepts that KGI reserves the right, in its sole discretion, to decide whether it will attempt to locate the Vehicle and whether it will charge a supplemental fee above and beyond the applicable Tracking Fee.
5.3 The Customer understands that fines, penalties and other such amounts may be charged by local governments or agencies for any false alarm which summons an emergency service. Any Service Call which results from anything other than the theft of the Vehicle. If KGI deems that a Service Call is unfounded or constitutes a false alarm, the Customer shall be responsible for and assume: (i) all of KGI’s costs and expense incurred in responding to the Service Call; (ii) any applicable tracking fees; and (iii) any fines, penalties or other amounts charged by local governments or agencies for any false alarms or signals.
5.4 The Customer understands and agrees that if the Equipment is relocated by the customer subsequent the initial installation of the Equipment (i) that a false tamper alarm will be triggered, and (ii) that a service charge of $250 may be charged to customer after the third such false alarm. Customer understands and agrees that Customer shall contact KGI to give notice of false alarms prior to relocating the equipment
5.5 The Customer understands and agrees that KGI reserves the right to unilaterally terminate this Agreement at its discretion without any refund of any kind if the Customer generates an unreasonable number of unfounded Service Calls or false alarms, the whole in the sole opinion of KGI.
5.6 In order to ensure proper delivery of the Service, the Customer agrees to immediately notify KGI in writing of:
(i) any change to the information contained in this Agreement, including Customer’s (a) address, (b) home, work or cellular telephone numbers, (c) email address, (d) credit card number and expiry date, and (e) name of insurance company and broker, and insurance policy number; (ii) an intended sale or transfer of the Vehicle; (iii) the destruction of the Vehicle and/or Equipment; (iv) the removal of the Equipment from the Vehicle; (v) a change to the Vehicle’s color. Should the Customer fail to inform KGI as required herein, the Customer shall be responsible for and assume any and all costs and expense incurred by KGI as a result of said failure.
5.7 If Customer terminates this Agreement before the end of the Term, the Customer will have to pay KGI any and all fees payable under this Agreement. The Customer agrees to pay all amounts owed to KGI pursuant to this Agreement, including without limitation, all fees, renewal fees, penalties and administrative charges as each becomes or may become due.
5.8 The Customer authorizes KGI to, from time to time: (i) debit any and all amounts due, or to become due, pursuant to this Agreement, including any fees regarding any Renewal Term, directly from the Customer’s credit card, without the need for any further authorization or notice; (ii) obtain or exchange personal information with any personal information agent towards establishing or verifying financial standing; (iii) maintain a file containing personal and public information concerning the Customer and the Vehicle for the purpose of efficiently providing the Service; (iv) contact the Customer’s insurer or broker to inform same of any failure by the Customer to abide by the terms and conditions of this Agreement; (v) divulge any information that it holds or that it may hold with regard to the Customer or the Vehicle to the Customer’s insurer or broker; (vi) request and obtain any and all information concerning the Customer, the insurance coverage or the Vehicle which is in the possession of the Customer’s insurer or broker; and (vii) track, locate, take possession of and store the Vehicle following a Service Call.
5.9 The Customer expressly acknowledges that the Equipment is offered by KGI for the sole purpose of tracking the Vehicle should it be stolen. Accordingly, KGI is not responsible for, and the Customer agrees to fully indemnify KYCS against any liability, loss or damages incurred by KGI arising from or relating to, any use of the Equipment by the Customer for any purpose other than to track the location of the stolen Vehicle including, without limitation, any use thereof which may be contrary to law, whether by violating the privacy or personal information of others or otherwise.
5.9 If it is upon the expiry of the Initial Term or any Renewal Term, if the Client is in Default or if the Client cancels this Agreement, the Client agrees to remove the Equipment from his Vehicle or have the Equipment deactivated, at his own expense. If the Client does not abide by this regulation, KGI will not be held responsible of any loss, damage, fee or expense incurred by the Client arising from or relating to the presence of the Equipment in the Client’s Vehicle.
- LIMITATION OF LIABILITY
6.1 The Customer understands that: (i) KGI is not an insurer and does not provide any type of insurance protection; (ii) the Service is not a replacement for adequate insurance coverage; and (iii) KGI does not guarantee the recovery of the Vehicle.
6.2 The Customer agrees to defend, indemnify and hold KGI harmless with regard to any liability incurred in performing the Services, including without limitation, the payment of any fines, penalties or other charges for false alarms and unfounded Service Calls, reasonable expenses, costs and attorney’s fees.
6.3 The liability of KGI with regard to any acts or omissions relating to this Agreement, including without limitation, the delivery of the Services, shall never exceed the total amount of fees paid by the Customer under this Agreement.
6.4 The Customer acknowledges that KGI, the ADs, the Police and KGI’s wireless service providers are independent parties and under no circumstances will KGI be responsible for any act or omission of the ADs, the Police or KGI’s wireless service providers, nor will the AD, the Police or KGI’s wireless service providers be responsible for any act or omission of KGI. Neither KGI nor its wireless service providers shall: (i) guarantee the uninterrupted functioning of their services; and (ii) be liable to the Customer for any damages, loss of profits, earnings or business opportunities, indirect or incidental, consequential or special damages, personal injury, death or other loss resulting from the Services, the failure to recover the Vehicle or otherwise.
6.5 Under no circumstances shall the Customer be entitled to any refund or credit due to any interruption in KGI’s ability to provide the Service, no matter the cause. Should KGI be unable to provide the Service due to no fault of the Customer for a period of more than thirty (30) consecutive days, the Customer’s only recourse will be to request that the Term of this Agreement be extended, at no cost to the Customer, for a period of time equal to the period during which the Service was interrupted.
- LIMITED WARRANTY AND GUARANTEE
7.1 The only warranty provided to the Customer by KGI is a one-year limited warranty on parts and labor covering solely manufacturing defects affecting the Equipment. The Customer shall refer to KGI’s warranty card, if any, for all applicable conditions and exclusions, which form part of this Agreement. Any defects concerning the installation of the Equipment by an AD shall be the sole responsibility of the AD.
7.2 In the event that neither KGI nor the Police succeed in locating the Vehicle within sixty (60) days following the Service Call, and the Customer’s insurer indemnifies the Customer for the loss of the Vehicle, the Customer will, upon signing a full release of any right or recourse it may have against KGI, have the option of receiving from KGI: (i) new Equipment, and the equivalent of the service fees paid by the Customer during the Current Term, the whole at no cost to the Customer. This is the only guarantee provided by KGI. This guarantee must be exercised by the Customer within 90 days following the date of theft failing which it becomes null and void. This guarantee only applies to vehicles purchased from authorized automotive dealerships.
- CUSTOMER DEFAULT
8.1 Should the Customer fail to abide by any of the terms and conditions of this Agreement or of any other agreement between the Customer and KGI, or breach same in any manner, the Customer shall be in a situation of default (hereinafter “Default”).
8.2 If the Customer is in Default, KGI may immediately, and without providing any notice or delay, do any or all of the following, without waiving any other remedy available at law: (a) terminate this Agreement and/or any other agreement between the Customer and KGI; or (b) deactivate the Equipment and cease providing the Service. If the Customer is in Default, the termination of this Agreement and of any other agreement will not release the Customer from its obligation to pay any and all sums due and to become due pursuant to this Agreement or other agreements.
8.3 All remedies provided for herein are deemed to be cumulative. To the extent permitted by law, KGI also has the right to recover all reasonable collection expenses, court costs, attorneys’ fees and any direct or consequential damages resulting from the Default. Any subsequent acceptance by KGI of payments by the Customer under this Agreement does not in and of itself constitute a waiver of any existing Default, regardless of whether KGI has knowledge of the Customer’s Default.
8.4 The Customer understands and agrees that in the event Customer shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, or shall a petition of organization, arrangement, or similar relief be filed against the Customer, or if a receiver of any part of the Customer’s property or assets is appointed by any court, the Customer will remain obligated to pay to KGI the amount of all unpaid rental fees, and any other sums accrued and thereafter accruing under this Agreement.
- TERM & TERMINATION
9.1 Upon the expiry of the Current Term, this Agreement shall expire, with the exception of any terms herein that may survive the termination of this Agreement.
9.2 Termination of this Agreement by KGI as a result of a Default shall not entitle the Customer to any refund of any amount paid under this Agreement.
9.3 The Client renewing this Agreement after the termination of this Agreement resulting of a Default shall pay the Reactivation fee.
- GENERAL CLAUSES
10.1 KGI hereby reserves its right to change any of the terms and conditions of this Agreement following a written notice to the Customer of said change (the “Notice”). Should the Customer refuse to accept any said change, the Customer will have 10 days from the date of the Notice to advise KGI in writing of its intention to terminate this Agreement. This will be the Customer’s only recourse in the event of a unilateral change to a term or condition of this Agreement by KGI.
10.2 The customer acknowledges that KGI Equipment may contain used, reconditioned or refurbished components.
10.3 The Customer understands and agrees that any payments made by Customer under this Agreement are deemed to be acceptance of the terms and conditions herein by the Customer.
10.4 All of the provisions of this Agreement shall apply to, bind and contractually obligate the Customer’s heirs, executors, administrators, representatives, successors and assigns.
10.5 If a court determines any provision or any part of a provision in the entire Agreement between the Customer and KGI to be invalid or unenforceable, that provision or the part of the provision shall be null and void to the extent determined by the court. However, each other provision or part of a provision in the entire Agreement shall continue to be valid and enforceable.
10.6 KGI reserves its right to offset compensation between amounts owed by the Customer to KGI and amounts owed by KGI to the Customer.
10.7 Notwithstanding any facts, the parties understand and agree this Agreement and any disputes of any kind arising herefrom shall be governed and interpreted by the laws of Ontario and adjudicated in the courts of Ontario.
10.8 The parties have requested that this Agreement be drafted in the English language. Les parties reconnaissent qu’elles ont exigé que la présente convention soit rédigée en anglais.
© KYCS GLOBAL INC.[/cherry_col][/cherry_row]