SiteTraxx Hardware Lease, Software Subscription, Data Access and Consulting Services Agreement

This Agreement, encompassing these Terms and Conditions and the Sales Confirmation, governs the sale of Goods and Services by SiteTraxx, LLC (“Seller”) to Buyer, and outlines terms for data access, SiteTraxx SaaS use, and SiteTraxx Terminal leases. This Agreement supersedes all prior understandings. Pre-existing written contracts signed by both parties covering the Goods and Services shall prevail if inconsistent with these Terms. Seller may change Services without Buyer’s consent if changes do not materially affect nature, scope, fees, or performance dates.

I. Delivery and Performance

  • Goods Delivery: Delivery is stated to be within a reasonable time and is FOB (Free on Board), CO, meaning the Buyer takes ownership and risk of loss upon delivery to the carrier. The Buyer is responsible for all costs and logistics from that point forward.
  • Buyer’s Role: The Buyer must accept delivery within 2 days of notification and is liable for all associated costs, including loading and unloading. If the Buyer fails to take delivery, the risk of loss passes to the Buyer immediately, and the Seller may store the goods at the Buyer’s expense.
  • Partial Shipments: The Seller has the right to make partial shipments, with each shipment considered a separate sale for which the Buyer must pay.
  • Services: Service performance dates are estimates only, and the Seller is not liable for delays caused by the Buyer’s actions or omissions. The Buyer must cooperate, provide necessary information, and maintain all required licenses.

II. Non-Delivery and Inspection

  • Non-Delivery: The Seller’s quantity dispatch is conclusive unless the Buyer provides contrary evidence. The Buyer’s sole remedy for non-delivery is a written notice within 2 days, and the Seller’s liability is limited to either replacing the goods or adjusting the invoice.
  • Inspection and Rejection: The Buyer has a limited “Inspection Period” upon receipt to notify the Seller of “Nonconforming Goods” (products that are different from the order or incorrectly labeled/packaged). If the Buyer fails to provide written notice within this period, acceptance is presumed.
  • Buyer’s Remedies: The Buyer’s exclusive remedies for nonconforming goods are limited to either a replacement or a credit/refund at the Seller’s discretion. The Buyer is responsible for shipping the nonconforming goods back to the Seller at their own expense and risk.

III. Financial and Payment Terms

  • Price: Prices are based on the Seller’s published rates on the order acceptance date. The agreement explicitly states that if prices increase before delivery, the Buyer will be billed at the new, higher price. All prices are exclusive of taxes, which are the Buyer’s responsibility.
  • Payment: The payment terms for standard orders may vary depending on proposal requirements and will be defined and printed directly on the invoice. In such cases, the terms stated on the invoice shall govern and supersede any conflicting general payment terms outlined herein.

Custom orders require 50% of the invoice upon receipt and the remaining 50% upon the Seller tendering the goods to the carrier.

All payments must be made in U.S. Dollars via check, ACH transfer, or wire transfer.

Late payments accrue interest at 2.5% per month or the highest legal rate. If Buyer fails to make payment within 30 days following written notice of delinquency, Seller reserves the right to suspend delivery of goods or performance of services until payment is received in full.

The Buyer is prohibited from withholding payment due to any dispute or set-off claim.

  • Security Interest: The Buyer grants the Seller a purchase money security interest in the goods as collateral until the full purchase price is paid.

IV. Warranties and Liability

  • No Warranty: This agreement contains a complete disclaimer of all warranties, both express and implied. The Seller makes “NO WARRANTY WHATSOEVER REGARDING GOODS OR SERVICES, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.”
  • Limitation of Liability: The Seller’s aggregate liability is capped at the total amounts paid by the Buyer for the goods and services. The Seller is also not liable for indirect, consequential, incidental, or punitive damages, including loss of use, revenue, profit, or data, with the exception of gross negligence, willful misconduct, death, or bodily injury.

V. Legal and Miscellaneous Provisions

  • Governing Law and Jurisdiction: The agreement is governed by the laws of the State of Texas. Any legal action must be instituted in federal or state courts in Dallas, Texas, and both parties submit to the exclusive jurisdiction of these courts.
  • Termination: The Seller may terminate the agreement immediately if the Buyer fails to pay within 30 days of notice, breaches any term, or becomes insolvent.
  • Confidentiality: All non-public information disclosed by the Seller to the Buyer is considered confidential. The Buyer must not disclose or copy this information and must return all related documents upon request. The Seller is entitled to injunctive relief for any violation.
  • Assignment: The Buyer is prohibited from assigning or delegating any rights or obligations under the agreement without the Seller’s prior written consent.
  • Relationship of the Parties: The parties are independent contractors. Nothing creates agency, partnership, joint venture, employment, or fiduciary relationship.

VI. Software as a Service (SaaS) and Leased Equipment

  • Software License: This license is limited, non-exclusive, non-transferable, and revocable. The Seller retains full ownership of the software and all its intellectual property. The Buyer is granted a limited right to use the software for internal business operations and is prohibited from reverse-engineering, modifying, or selling it.
  • SaaS Data Ownership: The Buyer owns all data uploaded via the software, but the Seller is granted a limited license to use this data solely for providing and improving the software and services. The Seller is responsible for implementing industry-standard security measures to protect the data.
  • Terminal Leases: The agreement also covers the lease of SiteTraxx terminals. The Buyer is responsible for any damage or theft of these terminals beyond normal wear and tear and must notify the Seller immediately. Upon termination, the Buyer must return the terminals in good condition within a specified number of days.