WHEREAS RAM has agreed unless otherwise provided herein to lease to the Customer, and the Customer has agreed to lease from RAM a vehicle-mounted satellite tracking and data transfer unit on the terms and conditions set out in the Order Form as hereinafter defined and on the terms and conditions as set out herein. NOW THEREFORE in consideration of the sum of $ l.00 and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, the parties hereto agree as follows:
1. Definitions
1.1 In these terms: "Contract" Means the contract between the Customer and RAM Global Solutions (Canada) Ltd. ("RAM") for the supply and installation of a vehicle-mounted telematics system and/or any additional items as described in this Contract. "Customer" means any person, sole proprietor, partnership, joint venture, company or corporation or other legal entity who has signed this Contract to have supplied and installed any equipment as described in this Contract. "Equipment" means VMDU's and any other hardware supplied under this contract. "Finance Company" means a recognized financial institution or bank which as part of its normal business activities provides financing under lease and rental agreements and with whom RAM has made arrangements to provide financing for Customers who meet the finance company 's lending criteria. "Installer" means the person or appointed agent who has been authorized by RAM to install the Equipment and Software in a professional and competent manner. "RAM" means RAM Global Solutions (Canada) Ltd. or its successor or assigns. "VMDU" means a Vehicle Mounted Satellite Tracking and Data Transfer Unit as supplied by RAM and/or its agents. "Order Form" means the Order Form that contains details as to the equipment being provided by RAM, the rent particulars , pricing details, rental period and additional terms and conditions in relation to same and the Order Form shall form part of this Contract. "Rental/Purchase Period" means a period of not less than 5 years unless otherwise stated on the Order Form and which period will apply from the date the first vehicle installation is completed. "Software" means the computer program supplied by RAM and/or its agents for the purposes of vehicle tracking and reporting and installed on the Customer's designated computer equipment (the "Computer Equipment"). "System" means the vehicle tracking and reporting system as supplied and supported by RAM and includes, without limitation, the Equipment and Software.
2.1 This Contract shall become final and binding when signed by Customer, and a duly authorized signing officer of RAM and when RAM has waived the financial conditions provided herein , if applicable.
2.2 The Contract shall be conditional on (i) Customer 's consent to the terms and conditions herein without modification and either (ii) RAM confirming in writing that a Finance Company has agreed to provide financing to the Customer for the purposes of this Contract and/or (iii) RAM has agreed in writing to provide such financing itself or (iii) agreement is made providing for the Customer to purchase the System pursuant to Section 3.2.2.
2.3 If an Order Form has been signed by the Customer, the terms and conditions of the Contract shall be binding on the Customer and shall be irrevocable byCustomer.
2.4 Any amendment of any term of this Contract shall not be binding on the parties unless in writing and signed by RAM and theCustomer.
2.5 Except as specified otherwise in this Contract or where Section 3.2.2 applies, the Contract shall be for rental only of the System and no title in the System shall pass to the Customer.
3.1 On receipt of written approval of financing by the Finance Company, RAM will advise the Customer and the Customer agrees to enter into finance and/or lease agreement in a form and format as presented by RAM and/or the Finance Company and as required by the Finance Company.
3.2 lf a Finance Company does not approve the Customer within 90 days of the date of the Order Form:
3.3 The first months lease rental payment and all installation charges will be paid to RAM on signing by Customer of the OrderForm.
3.4 All prices quoted in the Order Form and all payments shall be in Canadian Dollars unless otherwise specified. Should any payments not be made when due, then interest on such overdue payments shall be paid at the rate of I. 1/2% per month, 18% per annum until the payment plus service charges have been paid, but this shall not be construed as obligating RAM to grant any extension of time in the terms of payment.
3.5 In the event that any cheque is returned "NSF' or payment stopped, a service charge of $150.00 shall be applied to the account and shall be due and payable immediately.
4.1 On signing of all required documentation including Finance Company documents and payment of all monies hereunder , or upon a purchase by Customer and receipt of all monies owing to RAM, RAM will advise its Installer or contractor who will then contact the Customer directly to arrange a mutually suitable date to install theSystem. The timing of such installation is subject to availability of the Installer and should the Installer fail to install upon the date agreed to, RAM shall not be liable for any losses or damages, direct or indirect, whatsoever suffered by Customer as a result of such delay. If the Installer is an employee of RAM, the liability of RAM in such instance shall be limited to the costs of installation only and will not extend to any other losses or damages, direct or indirect, whatsoever as may be suffered by the Customer.
4.2 If any or all of the vehicles subject to installation are not available for the System to be installed, RAM reserves the right to charge an additional 25% surcharge on the then current Installation charges, which surcharge shall be paid immediately to RAM prior to RAM installing the System, at which time the System shall be installed.
The Customer shall at its own expense for the purposes of effectively operating the System, provide suitable computer equipment with such minimum specifications as required by RAM. The computer equipment will be maintained by the Customer and shall be at all times fully operational and in good working condition. The Customer will upgrade any computer equipment as is required to accommodate any software updates provided by RAM from time to time. Upgrading may, without limitation, apply to any or all computer hardware and software and any or all peripheral equipment whether internal or external. RAM shall not be liable for any damages and/or losses, direct or indirect, incurred by Customer as a result of failure of any of Customer's computer equipment caused by such upgrading. RAM shall have the right to charge Customer for reinstallation of software at the then current rates due to any failure of Customer's computer hardware and RAM shall require payment in full in advance prior to such reinstallation.
5.1 Customer shall make available at least I fully qualified member of its staff to ensure the efficient operation of the System at all times. All training provided by RAM Global Solutions is free of charge.
6.1 RAM warrants that the Equipment, and the installation thereof, shall for the Term conform with all applicable instruction manuals, user guides and other information supplied by RAM.
6.2 If the Equipment or System becomes inoperative during the Term, RAM will at its own discretion replace or repair the Equipment and/or System free of charge. RAM will not be liable to replace or repair any Equipment that has been interfered with, modified, repaired, transferred and or tampered with without the written permission of RAM or has been subject to misuse or an accident. The above shall be the sole remedy in respect of any warranty claim in respect of the supply of defective Equipment and/or Software.
6.3 RAM reserves the right from time to time to alter or modify the operation, design or performance of the System.
The Customer agrees to comply with the terms and conditions of any and all software licences that accompany the Software and agrees that it shall sign any and all Software Licences presented to it. The Customer shall pay such licence fees as are required and shall be the then current fees or as set out in the Contract or Order Form. Failure to pay any licence fee may result in disconnection of the System until such licence fee has been paid and RAM shall incur no liability for any losses or damages whatsoever suffered by Customer as a result of any such disconnection. Discontinuance of service for failure to pay licence fees shall not constitute a breach of this Contract by RAM and shall not constitute failure by RAM to provide services pursuant to this Contract and shall not entitle Customer to stop or delay any payments owing to RAM or any Finance Company.
8.1 The Customer agrees to keep the System free and clear at all times of any and all liens, mortgages and encumbrances , full risk for loss or damage to the System however caused and whether or not insured except for the unlawful or grossly negligent acts or omissions of RAM, its employees , servants andagents.
8.2 In the event the System is lost, stolen or damaged , Customer will promptly notify RAM of such event. The Customer shall, for the term of this Contract, keep the System fully insured against loss or damage naming RAM as additional insured and loss payee for the total value of the System. Insurance proceeds will be used to pay RAM any amounts due under this Contract.
8.3 Customer shall use the System in a careful and prudent manner and in accordance with manufacturer ' s specifications and not for any unlawful purpose and shall, at Customer 's expense, comply with and conform to all federal, provincial, municipal and other laws and ordinances and regulations in any way relating to the possession, use or maintenance of the System.
8.4 The System will be used for the Customer's own business use (rather than resale) and will not be used for personal, household or family purposes.
8.5 The Customer shall not make use of the System other than for the purpose that it is used at the commencement of this Contract.
To the extent not prohibited by law or statute, the Customer hereby waives the benefit of all provisions of all applicable conditional sales, regulatory, credit and other statutes and all regulations made thereunder in any applicable jurisdiction which would in any manner affect, restrict or limit the rights and remedies of the Customer hereunder. The Customer also waives and assigns to RAM the right of any statutory exception from execution or otherwise and further waives any right to demand security for costs in the event of litigation.
10.1 Subject to any provision herein , and notwithstanding any applicable statutory provisions, RAM shall not be liable to Customer for any loss, damage or expense of any kind or nature, whether direct, indirect or consequential, caused by the System or use thereof , by inadequacy of the System Rights or by any interruption of service or loss of use of the System, nor shall RAM be responsible for special or consequential damages or damages for loss of use arising directly or indirectly nor from any breach of contract, fundamental or otherwise, or negligence and, without limitation , loss of computer time, loss of profit, loss of revenues, failure to realize expected savings or other commercial or economic losses of any kind and in no event shall the liability of RAM exceed the sum equal to the outstanding payments owing pursuant to this Contract to the end of the rental/purchase period up to a maximum of 12 months.
10.2 RAM shall not be liable for any loss or damage as a result of any loss or damage whatsoever incurred by Customer arising from tampering with Software or System or arising from unauthorized repair, modification, misuse or transfer of the System.
10.3 Customer acknowledges that the functioning of the System is subject to availability and geographic coverage of GPRS airtime as supplied by RAM, and RAM shall not be liable to Customer for any losses or damages whatsoever, direct or indirect, that Customer may incur for failure in availability and geographic coverage of GPRS airtime.
11. Assignment Customer shall not assign this Agreement or any rights hereunder without first obtaining the prior written consent of RAM. RAM, however, shall be entitled to assign this Contract to any third party upon written notice to the Customer.
12.1 Customer hereby consents to RAM releasing any financial information it has provided to RAM to a Finance Company and hereby consents to RAM and/or the Finance Company contacting Customer 's credit references.
12.2 Customer also consents to the use by RAM of Customer 's data as collected from vehicle units to advise third parties of traffic and/or road conditions provided however that the Customer and its individual vehicles shall not be identified or identifiable.
12.3 RAM may also disclose payment history information relating to the Customer to any creditor reporting agency. All information obtained by RAM relating to the Customer may be disclosed to any assignee or successor of RAM's rights and interests under this Contract.
12.4 Customer acknowledges that RAM collects, uses and discloses personal information as defined by applicable legislation for purposes that include the following: (a) to establish and maintain responsible relationships with customers, to administer customer contracts and financing arrangements and to provide on-going service, (b) to understand customer needs, (c) to develop, enhance, promote, market or provide product services and support, (d) to manage and develop RAM 's business and operations, and (e) to meet legal requirements. Customer hereby consents to RAM collecting , using and disclosing any such personal information. Customer represents and warrants that it has obtained all necessary permission before transmitting such information to RAM.
12.5 RAM and Customer will take all reasonable steps to protect data confidentiality.
12.6 Customer agrees to erase personal information from the System's memory prior to returning the System to RAM.
12.7 Customer acknowledges that RAM will neither be responsible for confirming the continued presence of personal information on return of the System, nor for any subsequent erasure, use, disclosure or loss by the Customer.
RAM shall not be liable for any delay in performing any of its obligations hereunder or any failure of the System to perform any of its functions hereunder caused by force majeure including, but not limited to, acts of God, insurrection or civil disturbance, civil disorder, civil disobedience, war or military operations, national or local emergency , acts of omission of government , highway, regulatory or other competent authority , unofficial or otherwise unlawful industrial action or any kind , environmental conditions, severe inclement weather and any other cause beyond the reasonable control of RAM.
14.1 RAM may terminate this Contract at any time without notice in the event that the System is modified or in any way altered without RAM's prior written approval or damaged or as a result of any breach by the Customer of the terms and conditions of this Contract, or as a result of the Customer using the System otherwise than in accordance with its specifications.
14.2 At the end of the term of this Contract, provided RAM has not exercised its rights to terminate or has agreed with Customer to sell the System to the Customer, the Customer shall return the System to RAM at the Customer 's expense in the same condition as it was on the date of delivery, reasonable wear and tear excepted.
14.3 The following constitute "Events of Default" under this Contract: (a) (b) Failure of the Customer to pay any amount due under this Contract, Subjection of the System or any Software to any lien, mortgage or encumbrance , (c) The Customer breaches any term or condition of this Contract, (d) The Customer having recourse or being subject to any federal or provincial statute respecting its bankruptcy , insolvency or winding-up, (e) The System is, in the reasonable opinion of RAM, in danger of loss, damage or destruction , or is in fact lost, damaged or destroyed.
14.4 Upon occurrence of any of the Events of Default, RAM shall be entitled to:
The terms and conditions herein shall be governed by the laws of the Province of Ontario, and the Customer hereby irrevocably submits to the jurisdiction of the Courts of Ontario.
16.1 Any notices given or made pursuant to this Contract shall be in writing.
16.2 Any such notice to RAM shall be addressed to RAM at 2360 Bristol Circle Suite, 202 Oakville, ON, L6H 6M5, Attention: James Monks and in the case of Customer, to the address indicated on this form and shall be deemed to have been duly given or made as follows: (i) if sent by first class mail, 3 business days after mailing , (ii) if sent by facsimile, when dispatched , (iii) if personally delivered , upon delivery.
16.3 Customer acknowledges that it has reviewed and fully understands the terms and conditions herein and the Order Form, and agrees to be boundthereby.
17.1 Invalidity of any provision of this Contract shall not affect the validity of any other provision hereof , and any such invalid provision shall be severed there-from.
17.2 No failure by RAM to exercise any right accruing to it under this Contract shall operate as a waiver thereof , nor preclude the exercise of any other right or privilege by RAM.
17.3 There are no other terms and conditions applicable to this Contract and Order Form other than those contained therein or as modified in writing by theparties.
17.4 This Contract shall ensure to the benefit of and shall be binding upon RAM, its successors and assigns, and the Customer and their permitted successors and assigns.
17.5 All sales transactions exclude the application of the 1980 United States Convention on Contracts for the international sale of goods, if otherwise applicable.
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