Terms of Service  

Terms of Service are part of the Service agreement you would enter in with TMS Solutions Ltd. and its subsidiary company TMS Wireless Ltd. for the Device you use, the DriverTrack software and the Service we provide.

Service Commitment Period: The time period we offer and you choose to commit to in order to purchase and enter into agreement for activation of any product or service TMS Solutions Ltd. and its affiliated companies provide. 

Software:
a) In accordance with the terms and conditions contained in this Agreement, TMS Solutions Ltd. will provide Customer access to a non-exclusive, non-transferable license to use TMS Solutions Ltd.'s DriverTrack Software platform (also known as “The Software”).
b) TMS Solutions Ltd. will provide to Customer a minimum amount of technical support services to assist Customer in utilizing the Software.
c) Subject to the limitations set forth in this Agreement, access to the Software shall be available 24 hours per day 365 days per year.
d) Customer shall only use the Software through TMS Solutions Ltd.'s Web Site, and the Software, including its source code, shall at all times remain in the possession of and be the exclusive property of TMS Solutions Ltd..
e) TMS Solutions Ltd. shall not be responsible for any conversion expenses incurred by Customer or any other person or entity required for Customer to use the Software. 

Device: Any wireless device to be used with the Services, including a mobile phone, table, wireless modem, SIM (Subscriber Identity Module) card, DriverTrack DT100 or third party tracking equipment. 

Service(s): Any wireless voice, data or other services provided by or through TMS Solutions’ mobility partners  including monthly access, plans, airtime, data usage, roaming, messaging, downloads, applications, browser usage, internet access, Wi-Fi hotspot usage, on-line payments, customer support and account administration (such as account changes, NSF cheques, service reinstatement and collection efforts). 

Term: The period starting on the date Service is activated for a Device and ending on the termination of this agreement. 

Service Limitations: Services are available in TMS Solutions Ltd.’s partners’ (also known as “service providers”) coverage areas on compatible devices where enabled and technology permits. TMS Solutions Ltd. maintains no responsibility for the service provider actions and the user acknowledges that they are aware that, without notice, the service providers may change the network or coverage areas, and change or end roaming relationships, and are not liable for any resulting changes in your ability to use the Services or the Device. Your selected devices may not work should you choose to replace the SIM card on your own. You are responsible (a) to ensure your Services and plan are compatible with any device (whether provided by TMS Solutions Ltd. or not), and (b) for charges that arise if they are not, or if you change the settings of your device or SIM card. Only TMS Solutions-issued SIM cards should be activated with respective TMS issued devices. Data-only devices such as tablets, wireless modems. TMS Solutions Ltd. issued DriverTrack tracking devices to not provide access to 911 services. TMS Solutions Ltd. and any of its subsidiary companies are not responsible, financially or otherwise, for any deficiencies or service interruptions from any of our wireless providers or equipment manufacturers. 

Privacy: All information that TMS Solutions Ltd. keeps about you is protected consistent with Canadian provincial and federal privacy laws. If, by such policies or applicable law, TMS Solutions Ltd. must obtain express consent from you for any activity, express consent is deemed to be given by you where an objective documented record of your consent is created at the time that such consent is given. By ordering the Services and/or entering into this Agreement, you expressly consent to TMS Solutions Ltd. disclosing your personal information to the following: 

• you;
• a person who, in our reasonable judgment, is seeking your personal information as your agent or representative;
• another telecommunications service provider to provide you with efficient and cost-effective telecommunications service;
• another company to supply you telephone or telephone directory related services;
• an agent hired by us to collect your account;
• an affiliated company of TMS Solutions Ltd. involved in supplying you with telecommunications and/or broadcasting services;
• a public authority if it appears there is imminent danger to life or property.

Information Sharing: By entering into this Agreement, you consent to the sharing of account and profile information about you within TMS Solutions’ subsidiary companies including TMS Wireless Ltd. By entering into this Agreement, you also consent to receiving one bill for the Service and the services of the other TMS Solutions Ltd. companies if and when such billing consolidation is available. 

Software Limited License/No Warranty: THE USE OF PROVIDER'S SOFTWARE AND ITS RELATED HARDWARE, EQUIPMENT AND INTERNET CONNECTION IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. THE PROVIDER MAKES NO WARRANTY, EXPRESSED OR IMPLIED, FOR THE SOFTWARE OR ITS RELATED HARDWARE, EQUIPMENT, WEB SITE AND INTERNET CONNECTION INCLUDING, WITHOUT LIMITATION, WARRANTY OF THE MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER DOES NOT WARRANT 1) THAT THE SOFTWARE IS ERROR FREE, VIRUS FREE, OR THAT ITS OPERATION WILL BE UNINTERRUPTED, 2) THE STORAGE OF PERSONALIZATION SETTINGS OR CUSTOMER DATA, 3) THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THOUGH THE PROVIDER'S SOFTWARE AND SERVICES, or 4) THE AVAILABILITY OF PROVIDERS RELATED HARDWARE, EQUIPMENT, WEB SITE AND INTERNET CONNECTION. 

Device and Network Warranty: EXCEPT AS PROHIBITED BY ANY LAW THAT APPLIES TO TMS SOLUTIONS LTD., WE DO NOT WARRANT THAT THE DEVICE OR SERVICES WON’T FAIL OR BE INTERRUPTED, OR THAT COMMUNICATIONS ARE PRIVATE OR SECURE. NEITHER TMS SOLUTIONS LTD. OR OUR WIRELESS NETWORK PROVIDER PARTNERS CAN GUARANTEE THE ABILITY TO CREATE OR MAINTAIN A MOBILE COMMUNICATION CONNECTION AND THE QUALITY OF THE CONNECTION ARE NOT EQUAL OR ADEQUATE IN EVERY LOCATION AT ANY TIME, SERVICES MAY BE ADVERSELY AFFECTED BY PHYSCIAL FACTORS (E.G.) BUILDINGS, TUNNELS OR MOUNTAINS), ATMOSPHERIC CIRCUMSTANCES, OR CHANGES TO OR MAINTENANCE OF THE NETWORK, INTERCONNECITION FAILURES, JAMMING TRANSMITTERS, OR OTHER CAUSES. TMS SOLUTIONS LTD. PROVIDES NO ASSUARANCE OF COMPENSATION ON BEHALF OF THEIR WIRELESS PARTNERS OR THEMSELVES IN THESE SITUATIONS.  

Your Device (including any accessories) purchased from TMS SOLUTIONS LTD. or its authorized distributors in connection with the Service are subject to the manufacturers' warranties. For any DriverTrack related product not limited to the DT100, SmartOne Tracking Tag or the DT400, TMS Solutions Ltd. will provide an identical (or similar) replacement device at no charge at anytime while the customer in question is an active TMS Solutions customer. The customer is responsible for all return shipping charges and replacement is not covered when it is clear the device has been physically abused outside of normal “wear and tear” use conditions. Unlocking, opening or otherwise tampering with any DriverTrack or TMS Solutions issued device may also void the lifetime replacement conditions and TMS Solutions will not provide any warranty or exchange for the aforementioned device.

Updates: TMS Solutions Ltd. may update the software, features and settings on your Device (including Non-TMS manufactured devices with a wireless partner SIM card) including through "Over-The-Air" means as necessary, without notice, and you acknowledge and agree that such updates may be required in order to continue receiving the Services 

Pre-Authorized Payments, Credit Limit and Security deposit: You expressly authorize TMS Solutions Ltd. to charge your credit card or other pre-authorized payment vehicle any amounts (including taxes) due on your account (including as a result of termination of Services before the end of your SCP). You promise that the credit card for which you have provided information to TMS Solutions Ltd. is in your name, is valid and has not expired. You promise to promptly advise TMS Solutions Ltd. if your credit card information changes for any reason. We may at any time impose or change a limit on the balance that can be outstanding on your account (Credit Limit), on advance notice to you. We may suspend the Services at any time if your balance, including unbilled usage and pending charges and adjustments, exceeds this limit, until you pay down your account to an amount below the limit. We may charge an administrative fee to re-start the Services. Notwithstanding the Credit Limit or suspension, you must pay us any amounts you owe in excess of the Credit Limit. Based on your credit rating or usage charges, we may require a refundable security deposit from you at any time during the Term. TMS Solutions Ltd. may apply all or part of the deposit to any outstanding amounts owed by you to TMS Solutions Ltd. Unless expressly prohibited by any law that applies to TMS Solutions Ltd., all deposits when returned shall be returned without the payment or accrual of interest. 

Monitoring: TMS Solutions Ltd. has the right but not the obligation to access, monitor, investigate and preserve a record of any content transmission or other use of the Services. You consent to any such activities that are undertaken to satisfy any law or to enhance operating efficiencies, improve service levels, assess client satisfaction, or protect TMS Solutions Ltd. or its clients from use of the Services contrary to the applicable sections throughout this document.  

Indemnity: You are responsible for and will indemnify us for all damages, losses, expenses and any action, claim or judgment which may be made against us by anyone in connection with the use of your Device, DriverTrack software or connected services provided by TMS Solutions Ltd., or your violation of this Agreement, all to the extent not expressly prohibited by any law that applies to TMS Solutions Ltd. 

Changes to this Agreement and Use of Service: You agree that any Sections or parts of this Agreement, any fees or other obligations, and any Services, may be modified or terminated by TMS Solutions Ltd. except to the extent expressly prohibited by any law that applies to TMS Solutions Ltd.. We will notify you by providing you a clear and legible written notice at least 30 days in advance of any change that affects you. If applicable and if required by any law that applies to TMS Solutions Ltd., the notice will set out the new provision or the changed provision, and the provision as it read formerly, along with the date of the coming into force of the change and your rights set out below. Nothing in this Agreement requires you to accept the Services after any change is made to this Agreement, the fees or Services ; however, your sole remedy for such a change is, if the change would increase your obligations or reduce ours, to refuse the change and cancel the agreement which has been changed upon the payment of any amounts payable as specified in the main part of your Service Agreement and any other applicable fees or charges, except where such fees or charges are prohibited by any law that applies to TMS Solutions Ltd., in which case such cancellation shall be without penalty. You must notify us of your cancellation within 30 days of the effective date of change. If you continue to receive the Services after this period, you expressly agree that no additional written agreement or express acknowledgement is required to accept such change and, unless otherwise prohibited by any law that applies to TMS Solutions Ltd., you specifically waive any and all statutory requirements for notice and express acceptance of such changes except for those provided in this paragraph. You agree that you cannot change this Agreement and that, except as expressly prohibited by any law that applies to TMS Solutions Ltd., no oral or written statement or representation of any sales agent, representative or employee of TMS Solutions Ltd. made to you can change this Agreement. 

Ending your Service or Agreement: You may terminate your monthly rate plan and/or data feature or plan as set out in the Service Agreement presented to you (of which these Terms of Service are part), but you must pay any amounts set out therein, if you do so before the end of your SCP. If you are a prepaid client, you may cancel your Agreement at any time. Any balance remaining in your account on termination is non-refundable. We may end your Agreement and any or all Services and deactivate your Device by providing you 30 days advance written notice (except to the extent expressly prohibited by any law that applies to TMS Solutions Ltd.), or (ii) at any time without notice if you do not pay any amount owing when due, or you otherwise breach any term of this Agreement. Upon deactivation of the Device, and/or termination of the Services and this Agreement, you must pay in full all charges that are due including any amounts set out in the main part of your Service Agreement if you choose to terminate before the end of your SCP, late payment fees and any outstanding payments, fees and charges owing under this Agreement, plus applicable taxes. This obligation survives termination of this Agreement. Any SIM card will be deactivated and may not be reactivated. TMS Solutions Ltd. will provide a refund of the amount of any credits greater than $5 which remain outstanding (after netting out any amounts payable by you) upon the termination of this Agreement. You must contact your financial institution to cancel any direct debit and credit card authorizations relating to your account. 

Service and Device Liability: EXCEPT FOR NON-COMPLIANCE WITH APPLICABLE WARRANTIES OR CONDITIONS (IN WHICH CASE OUR ENTIRE RESPONSIBILITY IS SET OUT IN SECTION 8 ("WARRANTY"), WE ARE NOT LIABLE TO YOU OR ANYONE USING YOUR DEVICE OR THE SERVICES OR ANY THIRD PARTIES INCLUDING FOR THE FOLLOWING: 

1.       DEFECTS, FAILURES OR INTERRUPTIONS IN SERVICE, INCLUDING TRANSMISSION

2.       ANY DAMAGES, LOSS OF PROFITS, LOSS OF PROPERTY, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, MISAPPROPRIATION OF PERSONAL INFORMATION STORED ON DEVICE OR SIM CARD OR ANY OTHER LOSS, HOWEVER CAUSED, INCLUDING FROM USE OF THE SERVICES OR YOUR DEVICE.

3.       ANY CONTENT TRANSMITTED ON OR RECORDED BY OUR FACILITIES OR OUR SUPPLIERS, INCLUDING CONTENT THAT MAY BE ILLEGAL, DANGEROUS, DEFAMATORY, OFFENSIVE OR ANNOYING OR WHICH MAY INFINGE UPON OTHERS’ INTELLECTUAL PROPERTY, PRIVACY OR OTHER RIGHTS, OR ANY CONTENT, APPLICATION OR SERVICES PROVIDED TO YOU BY A THIRD PARTY FOR USE WITH YOUR DEVICE OR THE SERVICES, EVEN IF WE BILL YOU FOR SUCH CONTENT, APPLICATION OR SERVICES ON BEHALF OF SUCH THIRD PARTY.

4.       ANY VIOLATION BY YOU OF THE AGREEMENT, YOUR NEGLIGENE, OR ACTS OR OMISSIONS IN CONNECTION WITH THE WERVICES, OR YOUR DEVICE.

5.        LOSS, THEFT, DAMAGE TO OR UNAUTHORIZED USE OF THE SERVICES, YOUR DEVICE, ANY EQUIPMENT, ELECTRONIC RECEIPTS OR ANY PERSONAL IDENTIFICATION NUMBER 

THE LIMITS SET OUT ABOVE APPLY EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY ANY LAW THAT APPLIES TO TMS SOLUTIONS LTD.

Agree and Activate: BY (A) SIGNING YOUR SERVICE AGREEMENT, WHICH INCLUDES THESE TERMS OF SERVICE, (B) CLICKING "I AGREE" OR SIMILAR ACCEPTANCE IF THIS AGREEMENT IS PRESENTED ELECTRONICALLY, (C) OTHERWISE REGISTERING YOUR CONSENT WITH US (SUCH AS VIA A CLIENT CARE REPRESENTATIVE OR INTERACTIVE VOICE RESPONSE SYSTEM) OR (D) ACTIVATING THE SERVICE, YOU AGREE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT, AND AGREE TO CAUSE ALL PERSONS WHO USE THE SERVICES OR DEVICE UNDER YOUR ACCOUNT TO COMPLY WITH THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, DO NOT PROCEED WITH THE ACTIVATION OF YOUR SERVICE AND PLEASE RETURN THE DEVICE TO US IN ITS ORIGINAL CONDITION WITH ALL INCLUDED ACCESSORIES, MANUALS AND PACKAGING INTACT WITHIN APPLICABLE RETURN PERIOD/USAGE LIMIT. SIM CARDS REMOVED FROM PACKAGING OR ACTIVATED CANNOT BE RETURNED. You acknowledge that TMS Solutions Ltd. need not sign this Agreement in person and in your presence to have it constitute a valid, binding and enforceable agreement.