1. Order Confirmation

All quotes are submitted subject to the goods being unsold. Quotes are only accepted when Customer has received Trackunit’ s written acceptance of the quote, including confirmation in electronic form. If Trackunit submits a quote to Customer, Customer has to accept in writing, including electronically, before the expiry of the acceptance deadline. Cancellation of orders must be made in writing and must be confirmed by Trackunit in writing. Customer is, regardless of the reason for the cancellation, obliged to buy any goods commissioned for the order which cannot be cancelled. The goods in question shall be invoiced to Customer, at the latest by the order’s originally planned delivery time, at Trackunit’s purchase price with the addition of any delivery costs.

2. Prices

Prices are as described in the quote provided to Customer, or as described in the agreement between Trackunit and Customer. Trackunit is entitled to adjust the prices for the subscriptions in the Initial Term and Renewal Term as described in Section 5 once a year on the 1st of January, the prices shall not be adjusted with more than 7% per year. Further, Trackunit reserves the right at any time to adjust the agreed prices for non-delivered Products, in the event of price increases from sub-suppliers, increases in the price of materials, in the event of exchange rate change, changes in wages, government intervention or similar circumstances. Any tax, assessment, duty, custom or other fee of any nature imposed upon the Products, their sale, use or consumption imposed by any governmental authority, domestic or foreign, on or measured by the transaction between Trackunit and Customer shall be paid by Customer in addition to the price quoted or invoiced. In the event that Trackunit is required to pay any such tax, duty, fee or charge, Customer shall reimburse Trackunit therefore unless otherwise agreed upon in writing.

3. Payment Conditions

Trackunit is continually striving to reduce the environmental impact of Trackunit and its Customers. Therefore, all invoices will be sent electronically. Payment for Trackunit Products shall be made by the date indicated on the invoice as the last date for payment for it to be regarded as on time. If no such date is indicated, payment shall be made in cash upon delivery. If the delivery is postponed due to Customer’s circumstances (claimant’s default), Customer – unless Trackunit notifies Customer in writing otherwise – is still obliged to make any payment to Trackunit, as though the delivery was made at the agreed time. Trackunit is entitled to charge default interest from the time the payment falls due at the maximum rate permitted by applicable law. When sending payment reminders, Trackunit is entitled to make a dunning charge if permitted by applicable law. In the case of default of payment, Trackunit is entitled to request that collection costs are paid in full. In the event that an invoice is not paid on time, Trackunit reserves the right to suspend the subscription without notice until the invoice is paid. If the invoice is not paid within the timeframe set in the reminder to the Customer, Trackunit will close Customers account. Customer can within 30 days of an account being closed pay the amount due and a re-activation fee to have the account re-opened.

Customer is not entitled to offset any counterclaims against Trackunit which are not recognized by Trackunit in writing and is not entitled to withhold any part of the purchase sum due to offsetting of any type. Any assignment of Customer’s counterclaims to a third party without Trackunit’s prior written consent shall be void. Customer agrees to reimburse Trackunit for any costs and expenses (including reasonable attorneys’ fees or costs of collection agencies) in connection with the collection of any amounts owed to Trackunit under these Conditions or transaction contemplated hereby.

4. Subscriptions

Unless otherwise agreed in writing, the subscription is calculated from the date of delivery and shall be invoiced from the 1st of the following month. Billing frequency is monthly.

5. Term and Termination

All subscriptions are made for an initial term of thirty-six (36) months (Initial Term) unless otherwise agreed between the parties in writing. The subscriptions are thereafter renewed automatically for a 12-month period (Renewal Term), unless terminated by either party on the terms mentioned in this Section 5. The subscription can be cancelled by either party with a notice of three (3) months before the end of the respective Initial- or Renewal Term. No repayment is made for the subscriptions, even if cancelled earlier than the end of the Initial Term. Trackunit may cancel the subscriptions at any time with immediate effect, if Customers account is closed according to Section 5. The subscriptions can be cancelled by either party effective immediately upon written notice, if the other party breaches any obligation in these Conditions which remains uncured within thirty (30) days after written notice, or a petition in bankruptcy or petition alleging insolvency or inability to pay debts when due in the ordinary course of business shall be filed against the other party and is not be dismissed within thirty (30) days, or a receiver shall be appointed for the assets of the other party and not be dismissed within thirty (30) days, or the party shall make an assignment for the benefit of creditors, shall become insolvent, or shall be unable to pay its debts when due in the ordinary course of business.

6. Data Protection and Privacy

The definitions in this Section 6 shall have the same meaning as in the General Data Protection Regulation (GDPR). When you engage with Trackunit to display data from tracking devices via the ISO Feed, as an end-customer you are the Data Controller for Personal Data Processed by the Trackunit. As an end-customer (Data Controller) you are obliged to fulfill the obligations in the relevant data protection legislation. The Personal Data relating to the end-users of the Equipment shall be Processed in accordance with the Rights of the Data Subject (e.g. Access to Personal Data). Trackunit acts as Data Processor or sub-processor. Trackunit does only Process Personal Data upon specific instructions from the end-customer (Data Controller) or another Data Processor (e.g. a rental company) acting on behalf of the end-customer as a Data Controller. The relationship between the end-customer and Trackunit or a Data Processor and Trackunit is regulated in a Data Processing Agreement in accordance with the requirements in the relevant data protection legislation. Trackunit is entitled to aggregate and/or anonymize data collected from the tracking devices. When data are anonymized, it is no longer possible to identify the end-user of the Equipment. In accordance with Danish, EU and U.S. laws and regulations, Trackunit shall implement appropriate technical and organizational security measures to protect data against accidental or unlawful destruction, loss or alteration and against unauthorized disclosure, abuse or other processing in violation of such laws and regulations. Trackunit and Customer undertake to handle any information as confidential, including but not limited to documents, source code, e-mail correspondence, etc., pursuant to Section 7 below. After expiration or termination of these conditions, such information shall remain confidential for five years. The only exception shall be information characterized as general knowledge. Trackunit shall retain the right, but not the obligation to access data generated by Customer for purposes of (a) processing such data on behalf of Customer, and (b) for Trackunit’s internal statistical purposes on an anonymized basis. Trackunit shall also retain the right, but not the obligation, to store data indefinitely while at all times acting in accordance with all applicable laws and regulation. Trackunit shall not sell or disclose any data unless pursuant to written direction from the Data Controller(s) of such data or pursuant to court order. However, Trackunit retains the right to analyze and disclose market statistics which, among other sources are based on anonymous operating data Customer’s equipment. Trackunit shall retain the right, but not the obligation to make use of subcontractors with regard to the data Processing, and to make use of Standard Contractual Clauses if needed to uphold applicable data protection legislation and regulation. Trackunit shall upon request from Customer, produce a list of subcontractors to Customer. Trackunit shall at all times ensure, that the subcontractor meets the same standards as required by these Conditions between Trackunit and Customer. For any questions please see our privacy policy at www.trackunit.com or contact our DPO at [email protected].

7. Protected and Confidential Information

Any type of information which is not publicly available, including drawings and technical documents and other trade secrets, transferred by Trackunit to Customer (“Confidential Information”), shall remain the exclusive property of Trackunit and shall be treated as confidential by Customer. Such Confidential Information has been developed at substantial expense and contains trade secrets that are the exclusive property of Trackunit. Confidential Information thus must not, without Trackunit’s written consent, be copied, reproduced or forwarded to a third party or used for any purpose other than the one for which it was intended when transferred. Confidential Information shall be returned to Trackunit upon request. For the avoidance of doubt, Confidential Information supplied by Trackunit does not include information that (a) was generally available to Customer from public or published sources, provided publication did not take place in violation of these Conditions or through fault or omission of Customer, (b) was lawfully obtained from a source under no obligation of confidentiality, directly or indirectly, to either Customer or Trackunit, or (c) was disclosed to the general public with the written approval of Trackunit, and Customer shall exercise due diligence and reasonable care to hold such information in confidence. Customer’s confidentiality obligations under this Section 7 shall survive the termination or expiration of these Conditions.

8. Software Warranties

CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT CUSTOMER’S USE OF TRACKUNIT SERVICES IS AT CUSTOMER’S SOLE RISK AND THAT SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Customer is sole responsible to make available to Trackunit any and all access to the ISO-feed in order for Trackunit to be able to display the data from the ISO-feed in Trackunit Applications and potential API Exports.
Customer shall make sure that Trackunit is allowed to receive the ISO-feed and that any and all licenses or other rights needed to display the ISO-feed in the Trackunit Manager on behalf of Customer is obtained and upheld. Trackunit does not warrant or represent any functionalities, services or other elements relating to the ISO-feed or its delivery to the Trackunit Manager outside Trackunit control
The provisions of this clause do not affect any of Customer’s legal rights that cannot be excluded under applicable mandatory national legislation, including but not limited to any mandatory statutory warranties. If any part of this limited warranty is held to be invalid or unenforceable, the remainder of the limited warranty shall nonetheless remain in full force and effect. The warranty of Services shall in no case extend further than the warranty of the hardware as described in Section 12.1 (Warranty Period). Warranty of Services is contingent on Customer maintaining current releases of the Services provided by Trackunit. Customer’s sole remedy and Trackunit’s sole obligation under the foregoing warranty shall be for Trackunit to use commercially responsible efforts to correct any substantial nonconformity of the Services reported to Trackunit by Customer during the Warranty Period. The foregoing warranty shall not apply to any failure to conform by Services that is caused by a) the use or operation of Services in an environment other than that intended or recommended by Trackunit, b) modifications to Services not made by Trackunit, or c) third party hardware or software provided by third party and not authorized by Trackunit for use of Services.

9. Online Purchase

If you have purchased any hardware or service on our online platform, and you are not satisfied with your product, you have the possibility to make a complaint on the Online Dispute Resolution website: https://webgate.ec.europa.eu/odr/. It is a free independent online dispute resolution located in the EU.

10. Indemnity

Customer agrees to indemnify, defend and hold harmless Trackunit, its officers, directors, employees, agents and insurers of each of them, from and against any and all third party claims, demands, actions, damages, expenses, costs, claims, judgments and liabilities (including, without limitation, interest, penalties and reasonable attorneys’ fees and investigative costs) incurred by Trackunit, arising from, in connection with or as a consequence of (a) any negligent, or wrongful act or omission by Customer; (b) Customer’s transfer, use or sale of any Product, except to the extent that such suit or demand arises out of the failure of such Product to meet Trackunit’s express warranties; and/or (c) Customer’s possession, operation, maintenance, delivery or return of any Product. Such protection shall include, without limitation, claims for personal injury or death or property damage arising out of any act or omission of Customer or its customers. This Section 10 shall survive the termination or expiration of these Conditions.

11. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY PROVISION IN THESE CONDITIONS OR ELSEWHERE TO THE CONTRARY, EXCEPT FOR DAMAGES FOR BODILY INJURY (INCLUDING DEATH), DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY, AND THE INDEMNIFICATION OBLIGATIONS UNDER THESE CONDITIONS: (a) IN ANY ACTION UNDER OR RELATED TO THESE CONDITIONS, WHETHER ARISING IN CONTRACT, TORT, (INCLUDING NEGLIGENCE) OR OTHERWISE, NEITHER PARTY, OR ITS AFFILIATE, SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATE FOR ANY OF THE FOLLOWING EVEN IF INFORMED OF THEIR POSSIBILITY AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE: (i) THIRD PARTY CLAIMS FOR DAMAGES; (ii) LOSS OF, OR DAMAGE TO, DATA; (iii) SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES; OR (iv) LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS; AND (b) THE MAXIMUM CUMULATIVE LIABILITY OF EITHER PARTY AND ITS AFFILIATES TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL ACTIONS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, SHALL IN NO CASE EXCEED THE AMOUNT OF 500.000 DKK OR 80.000 USD OR 70.000 EUR. If applicable, Customer agrees to cause its customers and anybody in the chain of manufacturing supply and distribution including the end customer to be bound by limitations of liability substantially equal to those contained in these Conditions. This Section 11 shall survive the termination or expiration of these Conditions. Trackunit’s liability towards Customer for loss or damage arising from defective quality or for any other non-conformity is limited to the purchase price of the Trackunit Product claimed to be defective. Trackunit shall only be liable towards Customer for product liability, if such product liability cannot be derogated from under the mandatory Danish law, and if Customer – in addition to the otherwise applicable requirements under mandatory Danish law – can prove that the defect having caused the damage is a result of Trackunit’s negligence. Trackunit is not liable in any way for any functionality, services, licenses, connections or other elements in relations to the ISO-feed or any hardware or software relating to the ISO-feed other than the functionalities and services provided by Trackunit and presented in the Trackunit Application layer. Trackunit shall have no obligations in relation to the use of the ISO-feed and circumstances in relation to third-party hardware or software. Customer shall have no right to full or partial refunding of the payment of license for the ISO-feed because of but not limited to defective product, defective installation, breakdown with network operators, failure in providing the data via the ISO-feed to Trackunit from a third-party or Customer.

12. Intellectual Rights

Product is supplied as software Customer acquires a non-exclusive and non-perpetual software license in the form of a right to use the software for the purpose made clear in the accompanying product specifications. The License is only applicable for the contracted term, and will terminate, when the term expires or is terminated. Over and above this, Customer acquires no rights in the form of licenses, patents, copyrights, trademarks of other intellectual rights connected with the Product. Customer acquires no rights to the source code of the software.

13. Force Majeure

Trackunit is entitled to cancel orders or defer the agreed delivery of Products, and is otherwise free from liability for any lack of delivery, or defective of delayed deliveries, which are wholly or partially due to circumstances which are outside the reasonable control of Trackunit, such as any act of God, embargo, rebellion, unrest, war, terrorism, fire, state regulations, strikes, lockout, go-slows, lack of means of transportation, scarcity of goods, sickness, delay in or lack of supplies from suppliers, accidents in production or testing, lack of energy supplies, inability to obtain necessary labor, manufacturing facilities or delays by sub-contractors. All Customer’s rights are suspended or are discontinued in such cases. In the event of cancellation or delayed implementation, Customer cannot request compensation from or assert any other claim against Trackunit.

14. Partial Invalidity

If at any time any one or more of the provisions of these Conditions become invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions of these Conditions shall not be in any way impaired.

15. Transfer of Rights and Obligations

Trackunit is entitled to assign and transfer, in whole or in part, its rights and obligations under this agreement to a third-party. Customer may not assign or transfer its rights and obligations hereunder without the prior written consent of Trackunit.

16. Governing Law

The parties agree that these Conditions, any sale hereunder, or any claim, dispute or controversy between Trackunit and Customer arising from or relating to these conditions, its interpretation, or the breach, termination or validity thereof, the relationships which result from these Conditions or any related sale shall be governed by the laws of Denmark, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
For US customers: These Conditions or any related sale shall be governed by the laws of the State of Illinois, without regard to its conflicts of law provisions.

17. Arbitration

Any dispute, claim or controversy arising out of or relating to these Conditions or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Aalborg, Denmark before one (1) arbitrator, the arbitrator is appointed by the Danish Institute of Arbitration. The arbitration shall be administered by the Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by the Danish Institute of Arbitration and in force at the time when such proceedings are commenced. Judgment on the award may be entered in any court having jurisdiction. The arbitrator’s decision shall be reduced to writing. Further, the award by the arbitrator shall be final and binding on the parties. All judgments are confidential and shall not be disclosed to the public.
Notwithstanding the immediately preceding paragraph, the parties expressly acknowledge and agree that either party may seek from a court any interim or provisional relief, including, but not limited to, temporary or permanent injunctions, restraining orders, or a decree of specific performance that may be necessary to protect their rights or property. In particular, but not in limitation of the aforesaid, the parties acknowledge that the covenants contained in Sections 7 and 11 are unique and integral to these Conditions and that monetary damages would be an inadequate remedy at law in the event of a breach. The remedies provided in this section shall be cumulative and not exclusive and are in addition to any other remedies, which either party may have under these Conditions or applicable law.
For US Customers: Any dispute, claim or controversy arising out of or relating to these Conditions or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Chicago, Illinois before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures or, if eligible, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. The arbitrator’s decision shall be reduced to writing. Further, the award by the arbitrator shall be final and binding on the parties. All judgments are confidential and shall not be disclosed to the public. Notwithstanding the immediately preceding paragraph, the parties expressly acknowledge and agree that either party may seek from a court any interim or provisional relief, including, but not limited to, temporary or permanent injunctions, restraining orders, or a decree of specific performance that may be necessary to protect their rights or property. In particular, but not in limitation of the aforesaid, the parties acknowledge that the covenants contained in Sections 7 and 11 are unique and integral to these Conditions and that monetary damages would be an inadequate remedy at law in the event of a breach. The remedies provided in this Section shall be cumulative and not exclusive and are in addition to any other remedies, which either party may have under these Conditions or applicable law.

18. Survival

Section 7, 10, 11,16 and 17 shall survive the termination or expiration of these Conditions.

19. Complete Agreement

These Conditions and Trackunit’s written acceptance constitute the complete and exclusive statement of the agreement between the parties hereto. It supersedes all prior written and oral statements, including prior representations, statements, conditions, or warranties with respect to the Products.