SkyGuard/SkyGuard Fleet

Terms & Conditions

1. Devices.

(a) The Customer shall use only those Devices and Accessories approved by SkyGuard for use on the wireless messaging networks through which the Services are provided. The Customer shall pay shipping and handling costs for Devices and Accessories shipped to the Customer. The Customer shall be solely responsible for installation of the Devices and Accessories.

(b) So long as the Customer is not in default and has an active Service account with SkyGuard in good standing, SkyGuard shall warrant that each Device will be free from defects in design, materials and workmanship for a period of one (1) year from the date of original shipment to the Customer. Such warranty shall obligate SkyGuard to repair or replace and return, at no charge to the Customer, Devices determined to have defects subject to SkyGuard's warranty obligations; provided, however, SkyGuard shall not be responsible for replacement of lost Devices, or for the cost of repair or replacement of Devices due to negligence, accidental or intentional damage, misuse or abuse. Devices shall be returned to SkyGuard for inspection.

(c) Following reasonable and preliminary troubleshooting efforts by Customer and SkyGuard, SkyGuard shall repair or replace, at no charge to the Customer, Devices purchased from SkyGuard which are damaged and are covered by Maintenance Protection; provided, however, SkyGuard shall not be responsible for replacement of lost Devices or for the cost of repair or replacement of Devices due to negligence, intentional damage, misuse or abuse. Maintenance Protection must be procured and activated prior to initial Device shipment. All Devices that are replaced in accordance with the foregoing shall be returned by Customer to SkyGuard within thirty (30) days following receipt of the replacement Device, and shall pay SkyGuard for the full purchase price of any such Devices that are not timely returned to SkyGuard.

(d) Any Device returned to SkyGuard pursuant to Section 1(b) and 1(c) above shall be returned at the Customer's expense to: SKYGUARD RETURNS @ 2506 Lakeland Drive, Suite 403, Flowood, MS 39232. Returns of Devices shall require a valid return material authorization ("RMA") number provided by SkyGuard. SkyGuard shall not be responsible for any returns received that fail to identify a valid RMA number on the outside of the shipping container.

2. Website and Software.

(a) The Customer shall be responsible for establishing its Service account and configuring the UIS via the SkyGuard or SkyGuard Fleet Service website ("Website") in accordance with the user guide ("User Guide") and associated manuals and end user documentation (collectively, the "Materials") made available by SkyGuard. The Website is owned and operated by SkyGuard, and the Customer's use of the Website shall be governed by the terms of, and limited to only such use authorized by, this Agreement and the User Guide as the same may be modified from time to time in SkyGuard's sole discretion. SkyGuard reserves the right to modify features and functionality of the Website from time to time without notice at SkyGuard's sole discretion.

(b) The Customer's Service account may be accessed by the Customer through the Website only by way of a web-enabled application ("Application") owned by SkyGuard. Software provided by SkyGuard to the Customer in connection with the Services and not otherwise subject to a separate written agreement between the parties, including without limitation the Application, any software or firmware contained or embedded in the Devices, any updates and releases, and the Materials (collectively, the "Software") shall be subject to the following provisions. SkyGuard hereby grants to the Customer a non-exclusive, non-transferable, non-assignable, revocable, conditional, cancelable, terminable license to use the Software, in object code form only, solely in connection with the Services for Customer's internal business purposes on Customer's equipment. The use of any Software is licensed, not sold, to the Customer for its use only under the terms of this Agreement, and SkyGuard reserves any rights not expressly granted to the Customer. The Software is protected by the copyright laws of the United States. The Customer may use the Software only with the Service. The Customer may not use the Software (i) in connection with the products and/or services of any third party, or (ii) to provide services for the benefit of any third party, including without limitation as a service bureau. The Customer may not copy the Software. The Customer may not download and install the Software, nor place the Software on a network, at any time. The Customer may not lend, rent, lease, sublicense, resell for profit, distribute or otherwise transfer the Software (in source code or object code form) or any Device. The Customer may not sell, sublicense or otherwise disclose to third parties any maps, reports or other data generated by its use of the Software, nor use such maps, reports or data for any purpose other than for the Customer's own purpose as permitted herein in connection with the Service. The Customer acknowledges that the Software in source code form remains a confidential trade secret of SkyGuard, and, therefore, the Customer agrees not to attempt to alter, decipher, decompile, disassemble, modify, adapt, translate, incorporate into other works, create derivative works from, or reverse engineer the Software or any Device or allow others to do so, except and only to the extent applicable laws specifically prohibit such restriction. The Customer may not alter, remove or obscure any proprietary legend, copyright or trademark notice contained in or on the Software. The restrictions and limitations contained herein applicable to the Software shall also apply to the non-software information that is used and manipulated by the Software. IF THE CUSTOMER VIOLATES ANY OF THE FOREGOING, THE CUSTOMER'S LICENSE IMMEDIATELY AND AUTOMATICALLY IS TERMINATED.

(c) All rights in the Software, including without limitation any patents, copyrights and any other intellectual property rights therein, will remain the exclusive property of SkyGuard and/or its licensors. The Customer agrees that the Software is the proprietary and confidential information of SkyGuard and/or its licensors subject to the provisions of Section 9 ("Confidentiality") below. Except to the extent otherwise expressly agreed by the parties in writing, SkyGuard has no obligation to provide maintenance or other support of any kind for the Software, including without limitation any error corrections, updates, enhancements or other modifications. This Agreement does not include the right to sublicense the Software. The license to use the Software granted herein is personal to the Customer, and, therefore, may not be assigned (by operation of law or otherwise) or transferred without the prior written consent of SkyGuard. The license granted herein to use the Software shall terminate upon the expiration or termination of this Agreement, whereupon the Customer shall promptly destroy all copies of the Software in its possession. The Service is subject to licensing arrangements between SkyGuard and its third party licensors and SkyGuard reserves the right to terminate this Agreement at any time without liability in the event any such licensing arrangement should terminate.

3. Representations and Warranties

If Customer is a corporation or other legal business entity, Customer represents and warrants to SkyGuard that (a) it is duly organized, validly existing and in good standing under the laws of the state of its organization; (b) it has all requisite power and authority to enter into this Agreement and to perform its obligations under the terms of this Agreement; (c) this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding obligation of Customer enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, moratorium and other laws of general application affecting the enforcement of creditors' rights; and (d) the execution, delivery and performance of and compliance with this Agreement by Customer does not and will not conflict with, constitute a default under, nor result in any violation of (i) its certificate of incorporation, bylaws or other such governing documents, (ii) any term or provision of any mortgage, indenture, contract, agreement, instrument, judgment or decree, or (iii) any order, statute, rule or regulation applicable to Customer, which violation would have a material adverse effect on its business or properties.

If Customer is an individual, Customer represents and warrants to SkyGuard, and covenants and agrees, that (i) Customer has the power and authority to enter into this Agreement; (ii) Customer is at least eighteen (18) years old; (iii) Customer has read and agrees to be bound by this Agreement; and (iv) Customer will not use the Services, Devices, Accessories or Software or any rights granted hereunder for any unlawful purpose or in violation of any applicable law.

4. Disclaimer of Warranties and Limitation of Liabilities

(a) THE CUSTOMER ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE APPROPRIATE NETWORK, SERVICE TO ACHIEVE ANY INTENDED RESULTS, AND FOR THE PROPER INSTALLATION, USE, AND RESULTS OBTAINED BY THE SERVICE, DEVICES AND ACCESSORIES. CUSTOMER ALSO ASSUMES FULL RESPONSIBILITY FOR THE CONSEQUENCES RESULTING FROM SKYGUARD'S PERFORMANCE OF FUNCTIONS REQUESTED BY CUSTOMER. THE CUSTOMER HAS THE SOLE RESPONSIBILITY FOR INSPECTING AND TESTING THE SERVICE TO THE CUSTOMER'S SATISFACTION BEFORE USING THE SERVICE. THE SERVICE IS PROVIDED TO THE CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, SKYGUARD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SERVICES, THE DEVICES, THE ACCESSORIES, THE SOFTWARE OR THE WIRELESS MESSAGING NETWORKS THROUGH WHICH THE SERVICES ARE PROVIDED, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, DURABILITY, PERFORMANCE AND QUALITY, AND ANY WARRANTY OF FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. Under no circumstances shall SkyGuard be liable to the Customer or any other person for any loss, injury or damage, of whatever kind or nature, resulting from or arising out of any mistakes, errors, omissions, delays or interruptions in the receipt, transmission or storage of any data, signals or information arising out of or in connection with use of the Services, the Software and/or SkyGuard's wireless messaging networks or for SkyGuard's inability to perform such functions.

(b) SKYGUARD SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, GOODWILL OR ANY OTHER PECUNIARY LOSS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, THE DEVICES, THE ACCESSORIES, THE SOFTWARE AND/OR THE INTENDED USE THEREOF, OR THAT RESULT FROM OR ARISE OUT OF ANY MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF SKYGUARD HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBLITY OF SUCH DAMAGES.

(c) WITHOUT LIMITING SECTION 7(b) ABOVE, THE TOTAL LIABILITY OF SKYGUARD TO THE CUSTOMER IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (1) DIRECT DAMAGES PROVEN BY THE CUSTOMER OR (2) THE AGGREGATE AMOUNTS PAID BY THE CUSTOMER TO SKYGUARD UNDER THIS AGREEMENT FOR THE ONE (1) MONTH PERIOD PRIOR TO THE ACCRUAL OF SUCH CAUSE OF ACTION FOR THE SPECIFIC PRODUCT OR SERVICE WHICH FORMS THE BASIS FOR SUCH CAUSE OF ACTION. THE FOREGOING LIMITATION SHALL APPLY TO ALL CAUSES OF ACTION AND CLAIMS, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. THE CUSTOMER ACKNOWLEDGES THE REASONABLENESS OF THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY. NO CAUSE OF ACTION UNDER ANY THEORY WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR TO THE INSTITUTION OF A LEGAL PROCEEDING ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED BY THE CUSTOMER AGAINST SKYGUARD.

(d) The Services provided to the Customer hereunder may be used (i) only in conjunction with their lawful and intended use approved by SkyGuard as contemplated in the SkyGuard sales and marketing materials, and (ii) only in connection with motor vehicles or other assets of the Customer located within areas of SkyGuard's wireless messaging network coverage (which coverage areas may increase or decrease at SkyGuard's sole discretion during the term hereof), any other use by the Customer and/or users of the Customer's Service account being expressly prohibited ("Authorized Use"). SkyGuard may suspend Service or terminate this Agreement effective upon notice for any violation of this Section 1(c).

(e) The Customer acknowledges that it will be using the Services and Website to monitor vehicle or other asset activity and location, control vehicle activity and functions and/or make decisions related to its business based on information it receives over the Website, and that SkyGuard disclaims all warranties and liability regarding the use of the Services and the Website and the results of such use, including without limitation such monitoring and control and the information it receives therefrom, in terms of its correctness, accuracy, timeliness, reliability or otherwise.

5. Indemnity

The Customer shall defend, indemnify and hold SkyGuard and its affiliates harmless from and against any and all claims, liabilities, losses, damages and costs, including reasonable attorneys' fees, resulting from, arising out of, or in any way connected with (i) any acts, errors, omissions and/or breach of any warranty, representation, agreement or obligation contained herein, including any violation of any duty imposed by law, by the Customer and/or users of the Customer's Service account; (ii) the performance of the Customer's duties and obligations hereunder; or (iii) any use of the Services or related products and documentation by the Customer and/or users of the Customer's Service account. The Customer's obligations under this Section shall survive the termination of this Agreement.

6. Notice

Any notice or other communication herein required or permitted to be given shall be in writing and may be personally served or sent by a recognized overnight courier or United States mail, and shall be deemed to have been received when (a) delivered in person, (b) one (1) business day after delivery to the office of such overnight courier service, or (c) three (3) business days after depositing the notice in the United States mail with postage prepaid and properly addressed to the other party, at the following respective addresses:

To SkyGuard:

SkyGuard, LLC
2506 Lakeland Drive
Suite 403
Flowood, MS 39232

To Customer: The billing address established by the Customer
or to such other address or addresses as either party may from time to time designate as to itself by like notice.

7. Product Availability

(a) All Devices and all third-party services resold by SkyGuard to the Customer under this Agreement are subject to availability and no guarantee is made as to availability. SkyGuard reserves the right to modify, withdraw and/or discontinue any product and/or service offering upon at least thirty (30) days notice to the Customer.

(b) Should any UIS generate excessive usage in a manner which adversely affects the messaging network and/or SkyGuard's ability to provide Services to its customers in an efficient and timely manner, SkyGuard reserves the right to discontinue Service to those UIS generating such excessive usage until alternate arrangements are made or until the problem is otherwise resolved to SkyGuard's reasonable satisfaction.

8. Default. Upon the occurrence of an event of default, the party not in default shall have the right to terminate this Agreement upon the failure of the defaulting party to cure such default within thirty (30) days following receipt of notice of the default. As used herein, the term "event of default" shall mean the failure by a party to observe or perform in any material respect any of the covenants or agreements contained in this Agreement.

9. Confidentiality. Each party agrees to protect the other's confidential or proprietary information from unauthorized dissemination. Customer agrees that the existence of, as well as the terms and the rates offered in this Agreement constitute confidential information which belongs to SkyGuard. Neither party will use the other's confidential or proprietary information for purposes other than those necessary to further the purposes of this Agreement. Neither party will disclose to any third party the other's confidential or proprietary information without the prior written consent of the other party. The parties' obligations under this Section shall survive the termination of this Agreement.

10. Miscellaneous. (a) This Agreement shall be governed by and construed in accordance with the laws of the State of Mississippi, without regard to the principles of conflict of laws; (b) if any provision of this Agreement shall be held to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the validity and enforceability of the remaining provisions shall not in any way be affected or impaired thereby; (c) no delay or failure by SkyGuard to enforce any right under this Agreement will be deemed a waiver of that or any other right; (d) if any action shall be brought on account of any breach of or to enforce or interpret this Agreement, the prevailing party shall be entitled to recover from the other, as part of the prevailing party's costs, a reasonable attorneys' fee; (e) this Agreement may be executed in one (1) or more counterparts, each of which will be deemed an original, but which collectively will constitute one and the same instrument; (f) the Customer may not assign or delegate its obligations under this Agreement, either in whole or in part, without the prior written consent of SkyGuard; (g) neither party will be liable for any nonperformance under this Agreement due to causes beyond its reasonable control that cannot be reasonably avoided or overcome; (h) the headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement; (i) this Agreement, including all exhibits and documents directly referenced, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter; (j) no amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties; (k) Upon any termination of this Agreement, each party shall be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except with respect to those obligations which by their nature are designed to survive termination; provided that no such termination will relieve the Customer from any amount due and owing hereunder or either party from any liability arising from any breach of this Agreement.; and (l) Should either party be required under applicable law, rule or regulation, or pursuant to the order of any court or governmental entity or legal process of any governmental entity or court to disclose such information, such party shall use commercially reasonable efforts to: (a) limit such disclosure to the extent practicable; and (b) make such disclosure only to the extent so required.

Revised January 2010