SkyGuard Terms and Conditions:

Agreement Regarding Terms and Conditions For Use of SkyGuard Products

The following Terms and Conditions (which are sometimes collectively referred to herein as the “Agreement”) shall govern SkyTel’s provision of wireless motor vehicle/asset tracking and related services (“Services”) and the related devices (“Devices”) and accessory equipment (“Accessories”) to you, our subscriber (“Customer”). Any terms and conditions proposed by Customer which are in addition to or which conflict with these Terms and Conditions shall be of no force or effect. By subscribing to and using the Services, Customer shall be deemed to have agreed to and accepted these Terms and Conditions.

1. Scope.

    (a) Customer agrees to subscribe to the Services as specified by Customer on the “Shop SkyTel Services” page located at www.skytel.com or through the SkyTel Customer Service or other authorized procedure for ordering and activating the Services (“Order”), only in conjunction with the Authorized Use (as defined herein below). Customer acknowledges that any terms and conditions of any such Order submitted by Customer that are inconsistent with this Agreement shall be null and void. SkyTel shall have the right to limit the quantity of Devices that Customer may procure at SkyTel's sole discretion. Customer shall give SkyTel at least thirty (30) days’ advance notice before deactivating Service for any units in service (“UIS”). (b) The Services provided to Customer hereunder may be used (i) only in conjunction with their lawful and intended use approved by SkyTel as contemplated in the SkyTel sales and marketing materials, and (iii) only in connection with motor vehicles or other assets located within areas of SkyTel’s wireless messaging network coverage (which coverage areas may increase or decrease at SkyTel’s sole discretion during the term hereof), any other use by Customer and/or users of Customer’s Service account being expressly prohibited. SkyTel may suspend Service or terminate this Agreement effective upon notice for any violation of this Section 1(b).

(c) Customer acknowledges that as a part of the Service Subscription it is agreeing to allow limited access to its odometer readings by the selling Dealer in order to enable Dealer to establish and send Service Alerts.  Such Service Alerts shall notify customer of upcoming standard maintenance recommendations.  Customer further acknowledges that SkyTel shall have access to customers data for network planning purposes.

2. Devices.

    (a) Customer shall use only those Devices and Accessories approved by SkyTel for use on the wireless messaging networks through which the Services are provided. Customer shall be solely responsible for installation of the Devices and Accessories.

    (b) All Device related issues must be addressed with the Dealer who initially sold the Device to the Customer.

    (c) So long as the Customer is not in default and has an active Service account with SkyTel in good standing, SkyTel warrants that each Device will be free from defects in design, materials and workmanship for as long as continuous service is active on the device. Such warranty shall obligate SkyTel to repair or replace and return the SkyGuard device, at no charge to Customer, Devices determined to have defects subject to SkyTel’s warranty obligations; provided, that SkyTel shall not be responsible for the cost of repair or replacement of Devices due to negligence, accidental or intentional damage, misuse or abuse. Devices shall be returned to SkyTel for inspection.  SkyTel offers an extended warranty which will add twenty-four (24) additional months to the aforementioned standard warranty, under the same terms and conditions.  

   3. Website and Software.

    (a) Customer shall be responsible for establishing a Service account and configuring the Device via the  SkyGuard Service website (“Website”) in accordance with the relevant user guide (“User Guide”) and associated manuals and documentation (collectively, the “Materials”) made available by SkyTel. The Website is owned and operated by SkyTel, and 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 SkyTel’s sole discretion. SkyTel reserves the right to modify features and functionality of the Website from time to time without notice at SkyTel’s sole discretion.

    (b) The Customer’s Service account may be accessed by Customer through the Website only by way of a web-enabled application (“Application”) owned by SkyTel. Software provided by SkyTel to 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. SkyTel hereby grants to 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 own purposes on Customer’s equipment. The use of any Software is licensed, not sold, to Customer for Customer’s use only under the terms of this Agreement, and SkyTel reserves any rights not expressly granted to Customer. The Software is protected by the copyright laws of the United States. Customer may use the Software only with the Service. 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. Customer may not copy the Software. Customer may not download and install the Software, nor place the Software on a network, at any time. 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. Customer may not sell, sublicense or otherwise disclose to third parties any maps, reports or other data generated by Customer’s use of the Software, nor use such maps, reports or data for any purpose other than for Customer’s own purpose as permitted herein in connection with the Service. Customer acknowledges that the Software in source code form remains a confidential trade secret of SkyTel, and, therefore, 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. Customer may not alter, remove or obscure any proprietary legend, copyright or trademark notice contained in or on the Software. Customer will not remove or export the Software or use, or permit any third party to use, the Software in any country other than the United States. 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 CUSTOMER VIOLATES ANY OF THE FOREGOING, 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 SkyTel and/or its licensors. Customer agrees that the Software is the proprietary and confidential information of SkyTel and/or its licensors subject to the provisions of Section 10 (“Confidentiality”) below. Except to the extent otherwise expressly agreed by the parties in writing, SkyTel 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 Customer, and, therefore, may not be assigned (by operation of law or otherwise) or transferred without the prior written consent of SkyTel. The license granted herein to use the Software shall terminate upon the expiration or termination of this Agreement, whereupon Customer shall promptly destroy all copies of the Software in Customer’s possession. The Service is subject to licensing arrangements between SkyTel and its third party licensors and SkyTel reserves the right to terminate this Agreement at any time without liability in the event any such licensing arrangement should terminate.

4. Pricing.

Customer shall timely pay all fees and charges accruing hereunder, including, without limitation, recurring charges such as annual and monthly service charges (which are payable in advance and not contingent upon usage) and applicable usage charges (which are payable in arrears). SkyTel reserves the right to modify the fees and charges; provided, however, (i) SkyTel may not increase any Service Offering fees and charges until expiration of the Initial Term (as defined below), and (ii) SkyTel may increase such fees and charges only upon at least thirty (30) days’ advance notice to the Customer.

5. Billing Procedure.

    (a) SkyTel shall invoice Customer on an annual basis for all fees and charges accruing hereunder. SkyGuard Service Plans are available on mandatory credit card billing only.    (b) All fees and charges shall be due and payable by Customer within thirty (30) days following the date of SkyTel’s invoice. Any balance not paid by such due date shall bear interest from and after the invoice date at the lesser of one and one-half percent (1�%) per month or the maximum rate of interest allowed by law. Amounts due and owing to SkyTel shall not be subject to offset or reduction for any reason. SkyTel, or a third party acting on SkyTel’s behalf, shall be authorized to prepare, process and negotiate credit card charge forms for any credit card account designated by Customer in and for all fees and charges (including, without limitation, all recurring and non-recurring fees and charges) payable by Customer under the Agreement. All sales, use and other such governmentally imposed or authorized taxes, fees, surcharges and/or assessments relating to this Agreement shall be paid by Customer. In addition to any other remedies available to SkyTel hereunder and at law, SkyTel shall have the option to immediately suspend Service and/or refuse to process additional Orders in the event Customer fails to timely meet the payment obligations outlined above. If Service is suspended, SkyTel shall have the further right to condition restoration of the Services on (i) Customer’s bringing the payable balance to current status, and/or (ii) payment of a $25.00 per Device reconnect fee.

    (c) In order to dispute any fee or charge, Customer must raise such dispute in writing to SkyTel-SkyGuard@skytel.com (in connection with SkyGuard Services) within ninety (90) days of the date of the invoice on which the disputed fee or charge appeared. Failure to timely notify SkyTel of any disputed fee or charge shall result in the invoice being deemed valid and binding.

6. Representations and Warranties. If Customer is a corporation or other legal business entity, Customer represents and warrants to SkyTel 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 SkyTel, 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.

7. Disclaimer of Warranties and Limitation of Liabilities.

    (a) CUSTOMER ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE 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 SKYTEL’S PERFORMANCE OF FUNCTIONS REQUESTED BY CUSTOMER OR A USER OF CUSTOMER’S SERVICE ACCOUNT IN CONNECTION WITH SKYGUARD REMOTE ASSISTANT SUPPORT SERVICE. CUSTOMER HAS THE SOLE RESPONSIBILITY FOR INSPECTING AND TESTING THE SERVICE TO CUSTOMER’S SATISFACTION BEFORE USING THE SERVICE. THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, SKYTEL 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 SkyTel be liable to Customer or any other person for any loss, injury or damage, of whatever kind or nature, resulting from or arising out of (i) 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 SkyTel’s wireless messaging networks, or (ii) SkyTel’s actions or inactions in performing the functions requested by Customer or a user of Customer’s Service account in connection with SkyGuard Remote Assistant support service, or for SkyTel’s inability to perform such functions.

    (b) SKYTEL SHALL NOT BE LIABLE TO 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 SKYTEL HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

    (c) WITHOUT LIMITING SECTION 7(b) ABOVE, THE TOTAL LIABILITY OF SKYTEL TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (1) DIRECT DAMAGES PROVEN BY CUSTOMER OR (2) THE AGGREGATE AMOUNTS PAID BY CUSTOMER TO SKYTEL 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. 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 CUSTOMER AGAINST SKYTEL.

    (d) Customer acknowledges that Customer will be using the Services and Website to monitor motor vehicle or other asset activity and location, control motor vehicle activity and functions and/or make decisions related to motor vehicles or other assets based on information Customer receives over the Website, and that SkyTel 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.

8. Indemnity. Customer shall defend, indemnify and hold SkyTel 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 Customer and/or users of Customer’s Service account; (ii) the performance of Customer’s duties and obligations hereunder; or (iii) any use of the Services, SkyGuard Remote Assistant support service or related products and documentation by Customer and/or users of Customer’s Service account. Customer’s obligations under this Section shall survive the termination of this Agreement.

9. Term and Termination.

    (a) The initial term of this Agreement shall commence upon activation of the Service and shall terminate unless customer exercises its option to renew on an annual basis.

    (b) 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.

    (c) 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.

10. Confidentiality. Customer shall protect SkyTel’s confidential or proprietary information from unauthorized dissemination. Customer shall not use SkyTel’s confidential or proprietary information for purposes other than those necessary to further the purposes of this Agreement, nor shall Customer disclose to any third party SkyTel’s confidential or proprietary information. Should Customer 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, Customer shall (i) limit such disclosure to the extent practicable; and (ii) make such disclosure only to the extent so required. Customer’s obligations under this Section shall survive the termination of this Agreement.

11. Notices. 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 SkyTel: To the attention of Vice President of Sales, with a copy to the Legal Dept. at:

        If by United States mail:       SkyTel

                                                  Post Office Box 2469

                                                  Jackson, Mississippi 39225-2469

        If by overnight courier:        SkyTel

                                                  500 Clinton Center Drive

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.

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

13. Miscellaneous. (a) The Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflict of law; (b) if any provision of the Agreement shall be held to be illegal, 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, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby; (c) no delay or failure by SkyTel to enforce any right under the Agreement will be deemed a waiver of that or any other right; (d) if any action shall be brought by SkyTel on account of any breach of or to enforce any of the terms, covenants or conditions of the Agreement, SkyTel shall be entitled to recover from Customer, as part of SkyTel’s costs, a reasonable attorneys’ fee and/or third-party collection charges; (e) Customer may not assign or delegate Customer’s obligations under the Agreement, either in whole or in part, without the prior written consent of SkyTel; (f) SkyTel shall not be liable for any nonperformance under the Agreement due to causes beyond its reasonable control that cannot be reasonably avoided or overcome; (g) the headings and captions used herein are used for convenience only and are not to be considered in construing or interpreting the Agreement; (h) this Agreement, including all 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; and (i) no amendment to or modification of the Agreement will be binding on SkyTel unless in writing and signed by SkyTel; provided, that SkyTel reserves the right to unilaterally modify the terms of this Agreement and to condition Customer’s continued receipt of the Services upon Customer’s acceptance of a modified version of this Agreement.

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