The Find’n’Secure GPS Vehicle Tracking Services are provided by EMBARC, using a device and other hardware installed in your vehicle ("Find’n’Secure Unit") which receives global positioning satellite (GPS) signals and communicates with the response center via wireless and landline communications networks. The availability and use of Find’n’Secure Services are subject to many limitations, including the following:
(a) Services are available only if you have activated your Find’n’Secure account with EMBARC;
(b) Services are available only if your vehicle ignition is on, and your vehicle battery is charged and connected;
(c) Services are available only if you are within operating range of the designated wireless network;
(d) Services may be impaired by land-line and wireless communications problems caused by atmospheric or topographical conditions, busy cells, capacity limitations, equipment problems, equipment maintenance, and other factors and conditions;
(e) Services may be affected by inherent limitations of your vehicle’s electrical system and architecture, or if any of the components of your vehicle’s Find’n’Secure Unit have been damaged or are defective;
(f) Services are not available if the GPS system is not working or the signals are obstructed;
(g) A small error built into the GPS system may impair EMBARC’s ability to determine your vehicle’s precise location; and
(h) Services may be limited to geographic areas where map data available in EMBARC’s databases, which may be less than that which is otherwise generally available. Find’n’Secure GPS Positioning system uses analog and/or digital cellular telephone signals. If the wireless carrier terminates or restricts analog and/or digital service, the Find’n’Secure Services will not be available.
UNDER THIS CIRCUMSTANCE, SOME OR ALL OF THE FIND’N’SECURE SERVICES MAY BE SUSPENDED OR TERMINATED WITHOUT PRIOR NOTICE TO YOU AND WITHOUT ANY LIABILITY TO EMBARC,THE UNDERLYING WIRELESS CARRER OR ANY THIRD PARTY BENEFICIARY.
You or a subsequent owner of your vehicle may terminate your account for Find’n’Secure GPS Tracking Services to your vehicle, upon submission of proper documentation to EMBARC. You may transfer the Find’n’Secure Services to another properly equipped vehicle owned or leased by you, or you may transfer the Find’n’Secure Services to a subsequent owner of your vehicle upon submission of proper transfer documentation to EMBARC.
EMBARC may charge a fee to transfer the Services.Use of the Find’n’Secure GPS Vehicle Location Services by a subsequent owner will constitute the agreement of the subsequent owner to be bound by the terms and conditions contained herein.
You agree to:
(a) be fully responsible for the protection of your password;
(b) use the emergency and roadside Find’n’Secure Vehicle Tracking Services only for actual emergencies and roadside assistance needs;
(c) follow the instructions for use of the Find’n’Secure Unit and the Find’n’Secure GPS Positioning Services
(d) furnish all contact and other information requested by EMBARC and notify EMBARC immediately of any change in the information or in the ownership of your vehicle
(e) properly maintain your vehicle and the Find’n’Secure Unit
(f) not use the Find’n’Secure Services in violation of any laws or for any unlawful or abusive purpose
(g) not use the Find’n’Secure Automatic Vehicle Location Services in any manner that could harm EMBARC, the underlying wireless carrier or any other person and
(h) use the map, routing and traffic information and other content included in the Find’n’Secure GPS Tracking Services only for your own personal use and not resell, retransmit or modify the information and content.
The initial term of this agreement is one year, or the longer period you have selected in the Service Plan. This agreement will automatically get renewed for successive one-year renewal terms, unless you or EMBARC serves notice of cancellation to the other party at least 30 days before the beginning of the next renewal term. You may cancel service either by sending a written cancellation notice to EMBARC. You must provide your password to cancel service. EMBARC will endeavor to notify you prior to the beginning of each renewal period. EMBARC will send written notice to you at least 45 days before the beginning of any renewal term if EMBARC is changing the subscription fee or any of the Find’n’Secure Tracking Services included in your Service Plan. If you fail to timely deliver a cancellation notice, then your Find’n’Secure Services will continue and you will be liable to pay charges for the next year.
The subscription fee for the Service Plan you have selected is payable in advance of the initial term or any renewal term thereafter. The subscription fee is not refundable. The fee for routing assistance is charged on a per-use basis and is payable monthly within 30 days of the invoice date. If the payment is not made within the due date, late fee of US $5 per month will be charged. By providing your credit card or bankcard number, you authorize EMBARC to charge your account for all fees, wireless charges, taxes and other amounts due under this agreement. You authorize EMBARC to review your credit history and obtain credit reports to determine your credit worthiness. If EMBARC determines that you are not credit worthy, EMBARC may either refuse to extend credit to you, or may refuse to provide Find’n’Secure Tracking Services, or may cancel this agreement at its sole discretion.
You are liable for and agree to pay all sales and telecommunications taxes, and all other taxes, fees, levies and charges imposed on you, by EMBARC, the underlying wireless carrier or the Find’n’Secure Unit manufacturer, in connection with the purchase and installation of the Find’n’Secure unit and the provision and use of the Find’n’Secure GPS Tracking Services. The taxes, fees and charges will be added to your bill.
Except as stated hereinabove, you are liable for and agree to pay all telecommunications costs, including wireless access and airtime charges, associated with Find’n’Secure GPS Tracking Services to your vehicle. The costs will be added to your bill.
If EMBARC determines that your usage of the Find’n’Secure GPS Tracking Services is so excessive that it interferes or could interfere with EMBARC’s ability to provide timely, high-quality telematics services to its other subscribers, or if EMBARC determines that your usage constitutes a nuisance or is otherwise not consistent with the terms of this agreement, then EMBARC may at its sole discretion suspend, modify or terminate the Find’n’Secure GPS Positioning / Tracking Services provided to you, without any advance notice.These rights are in addition to those stated hereafter under the title "Default and Termination."
It is specifically understood by the parties that Find'n'Secure GPS Tracking Software of EMBARC is confined only to the extent of recording of real time movements of vehicles etc. and generating reports based on the data received by the server through GPS mechanism. EMBARC is not at all liable for any consequences whatsoever on account of any "S.O.S." or panic alerts triggered by the device in case of any emergency. When EMBARC receives an "S.O.S." signal from your vehicle, EMBARC will attempt to determine if an emergency exists. If EMBARC believes an emergency exists, EMBARC will attempt to contact a public safety provider or answering point to request assistance. EMBARC will also attempt to call one of your third party emergency contacts. Nevertheless, attending to SOS calls is not covered by this Agreement. Instead, such SOS calls may be attended to by EMBARC purely on humanitarian consideration without any consequential responsibility. Neither EMBARC, nor resellers nor the underlying wireless carrier guarantee that EMBARC will successfully contact the appropriate emergency agency or your third party emergency contacts, or that emergency personnel will respond to the call or locate your vehicle. Neither EMBARC, nor any resellers nor the underlying wireless carrier is responsible for any failure or delay in responding to an emergency or for the quality of service delivered or any consequence thereof, whether the failure is the fault of EMBARC, the underlying wireless carrier or any third party service provider. You release EMBARC, resellers and the underlying wireless carrier from all liabilities and losses (including physical injury or death) that you or others may suffer in an emergency situation.
You do not have any right in the wireless phone number assigned to your Find’n’Secure Unit. EMBARC can change the number at any time. As a condition to providing wireless service, the Underlying Wireless Carrier requires that you agree to the following terms:
"That you have no contractual relationship whatsoever with the Underlying Wireless Carrier and that you are not a third-party beneficiary of any agreement between EMBARC and the Underlying Wireless Carrier. IN ADDITION,YOU EXPRESSLY AGREE THAT THE UNDERLYING WIRELESS CARRIER HAS NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU."
If you fail to timely pay any amount due under this agreement, EMBARC may terminate this agreement at it sole discretion upon 10 days written notice to you. If you breach any other term of this agreement, EMBARC may terminate this agreement upon 30 days written notice to you. These rights are in addition to any others EMBARC may have. If EMBARC brings an action to enforce its rights against you, you agree to pay all reasonable costs of enforcement, including attorneys’ fees. IF EMBARC TERMINATES THIS AGREEMENT, YOU WILL NOT BE ABLE TO ACCESS ANY OF THE FIND’N’SECURE SERVICES, INCLUDING EMERGENCY SERVICES, AND YOU WILL NOT BE ENTITLED TO A REFUND OR CREDIT.
EMBARC will not be responsible for the failure to provide Find’n’Secure Vehicle / Personal Tracking Services to you if caused by any of the following: any act or omission of any wireless carrier (including interruption of cellular service), any emergency agency or any other third-party service or product provider; equipment failures or shortages; damage to the EMBARC response center, any land or wireless communications networks or the GPS system; acts of nature (natural calamity e.g., earthquake, hurricane, floods etc.), labor strikes, civil commotion, riots or war; or any other act or event that is beyond reasonable control of EMBARC. UNDER ANY OF THESE CIRCUMSTANCES, EMBARC MAY AT ITS OPTION SUSPEND OR TERMINATE ALL OR SOME OF THE FIND’N’SECURE GPS TRACKING SERVICES OR TERMINATE THIS AGREEMENT ALTOGETHER WITHOUT ANY PRIOR NOTICE TO YOU AND WITHOUT ANY LIABILITY. MOREOVER, YOU WILL NOT BE ENTITLED TO A REFUND OR CREDIT OF THE FEE AND CHARGES ALREADY PAID TO EMBARC
EMBARC's limited warranty extends only to the Find’n’Secure GPS Tracking Unit sold by it, and does not cover the Find’n’Secure Services or the wireless service. EXCEPT FOR THE TRACKING UNIT’S LIMITED WARRANTY, NEITHER EMBARC NOR ANY RESELLERS OR ANY THIRD PARTY BENEFICIARY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SERVICES (INCLUDING ANY CONTENT OR OTHER INFORMATION DELIVERED TO YOU AS PART OF THE SERVICES),THE WIRELESS SERVICE OR THE FIND’N’SECURE UNIT, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL WARRANTIES WITH REGARD TO THE GPS TRACKING SERVICES, THE WIRELESS SERVICE OR THE UNIT ARE EXPRESSLY DISCLAIMED.
(a) The Find’n’Secure Services are provided to you merely as a convenience and are not intended as a substitute for insurance. The amount of fees and other charges for Find’n’Secure Services are not related to the value of your vehicle or its contents or to the potential cost of any injury or loss suffered by you or anyone else. You should obtain and maintain adequate insurance covering such injuries and losses. YOU AGREE TO RELEASE EMBARC, resellers and the underlying wireless carrier AND EACH THIRD PARTY BENEFICIARY FROM ALL CLAIMS, LIABILITIES AND LOSSES IN CONNECTION WITH THE FIND’N’SECURE SERVICES, INCLUDING, BUT NOT LIMITED TO CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM THE TOTAL OR PARTIAL FAILURE OF PERFORMANCE OF THE FIND’N’SECURE SERVICES, EVEN IF CAUSED BY THE NEGLIGENCE OF EMBARC OR THE MALFUNCTION OF THE FIND’N’SECURE UNIT. YOU AGREE TO INDEMNIFY EMBARC, the underlying wireless carrier AND EACH THIRD PARTY BENEFICIARY AGAINST ALL SUCH CLAIMS, LIABILITIES AND LOSSES BROUGHT BY THIRD PARTIES. YOU FURTHER AGREE THAT THIS RELEASE EXTENDS TO ANY PARTY CLAIMING UNDER YOU AND THAT NO INSURANCE COMPANY WILL HAVE ANY RIGHT OF SUBROGATION.
(b) NEITHER EMBARC, the underlying wireless carrier, NOR ANY THIRD PARTY BENEFICIARY WILL BE LIABLE TO YOU OR TO ANY OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) IN CONNECTION WITH THE FIND’N’SECURE TRACKING SERVICES OR THE FIND’N’SECURE UNIT, EVEN IF EMBARC, the underlying wireless carrier, OR THE THIRD PARTY BENEFICIARY IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY TO ALL CLAIMS, INCLUDING, WITHOUT LIMITATION, CLAIMS IN CONTRACT AND TORT (SUCH AS NEGLIGENCE, PRODUCT LIABILITY AND STRICT LIABILITY).
(c) IF EMBARC, the underlying wireless carrier, OR ANY THIRD PARTY BENEFICIARY IS FOUND LIABLE TO YOU FOR ANY REASON, YOU AGREE THAT THE AGGREGATE LIABILITY OF ALL THESE PARTIES TO YOU FOR ANY CLAIM IS LIMITED TO THE TOTAL AMOUNT PAID BY YOU FOR THE FIND’N’SECURE GPS TRACKING SERVICES DURING THE PRECEDING TWELVE MONTHS FROM THE DATE OF CAUSE OF ACTION OF YOUR CLAIM. NEITHER EMBARC, nor the underlying wireless carrier NOR ANY THIRD PARTY BENEFICIARY WOULD HAVE AGREED TO PROVIDE THE FIND’N’SECURE GPS TRACKING SERVICES TO YOU IF YOU DID NOT AGREE TO THIS LIMITATION. THIS AMOUNT IS THE SOLE AND EXCLUSIVE LIABILITY OF EMBARC, or the underlying wireless carrier OR THE THIRD PARTY BENEFICIARIES TO YOU, AND IS PAYABLE AS LIQUIDATED DAMAGES AND NOT AS A PENALTY EXCEPT WHERE PROHIBITED BY LAW, YOU MAY NOT BRING ANY CLAIM AGAINST EMBARC, or the underlying wireless carrier OR ANY THIRD PARTY BENEFICIARY MORE THAN ONE YEAR AFTER THE CLAIM ARISES.
The Find’n’Secure Services employ wireless telephone networks that use radio channels to transmit voice and data. Therefore, neither the privacy nor security of conversations or data over the wireless telephone networks can be guaranteed.
EMBARC will not record, monitor or track your vehicle’s location or other information unless you subscribe for Find’n’Secure GPS Tracking services, or, if required by a validly issued governmental order.
(a) You agree that in conjunction with the provision of emergency, security, roadside assistance and other Find’n’Secure GPS Positioning services, EMBARC may create an electronic or other record of your vehicle’s location, description, direction of travel and other parameters, diagnostics data, and of any incidents involving your vehicle. Your vehicle is also equipped with sensing and diagnostics modules capable of transmitting certain vehicle data or information. You agree that these records, your personal information provided with this form and your account information may be retained by EMBARC and furnished to the underlying wireless carrier and to third party service providers (i.e. emergency responders, concierge service providers). Your consent to the use by us and by third party service providers of these records and your account information for the purposes of providing Find’n’Secure GPS Location Services to you and occupants of your vehicle, enabling Embarc to maintain communication with you as a customer, and administering your account. Personal information shall not be used or disclosed for any other purpose. If you cancel Find’n’Secure GPS Location services, all personal information, but not necessarily vehicle information, will be retained only as long as necessary for the fulfillment of the aforementioned purposes or for a period necessary to complete billing or comply with applicable laws. You also consent to Embarc or our dealers and resellers, contacting you or other occupants in your vehicle or at your mailing or electronic address or at your home or business phone number on file regarding Find’n’Secure GPS Tracking services or to discuss your account.
(b) You understand that, for quality assurance purposes, EMBARC may monitor and record conversations between the Find’n’Secure GPS Tracking System response center and your vehicle’s occupants. Additionally, if stolen vehicle recovery is requested or if approached by any Government or any law enforcement agency, EMBARC’s response center specialists may listen to and/or record conversations of the vehicle’s occupants without their knowledge in order to assist in recovering the vehicle. YOU CONSENT TO SUCH MONITORING AND RECORDING AND YOU RELEASE EMBARC AND THE UNDERLYING WIRELESS CARRIER FROM CLAIMS, LIABILITIES AND LOSSES THAT MAY RESULT AS A CONSEQUENCE OF ANY SUCH MONITORED AND/OR RECORDED CONVERSATIONS.
(c) YOU CONSENT TO THE COLLECTION, USE AND DISCLOSURE OF YOUR PERSONAL AND VEHICLE INFORMATION AS DESCRIBED IN THE FIND’N’SECURE GPS TRACKING SYSTEM PRIVACY STATEMENT, which may change periodically. You may obtain a current copy of the Find’n’Secure Privacy Statement and/or request to review or change your personal, vehicle and account information by contacting EMBARC.
(d) EMBARC may be legally compelled to provide location data and other information obtained through the Find’n’Secure GPS Tracking system to law enforcement agencies. You release EMBARC from any claim or liability based upon such disclosure of information under compulsion of law.