made and entered into on date specified on signed Proposal, by and between
OnTrak Solutions (“OnTrak”), a New Jersey Limited Liability Company, and
Company named on signed Proposal (“Customer”) (collectively, the “Parties”).
1. Equipment and Services:
Annexed to this Agreement is the Proposal, which shall set forth the
description of services and equipment (“Services” and/or “Equipment”)
being provided to Customer by OnTrak. The Proposal is incorporated into this
Agreement. Customer may add additional Services and/or Equipment to the
Proposal after this Agreement is entered into by completing an Additional Unit
Form (“AUF”). The commencement date of the AUF shall be the date stated
on the AUF and will be added to the monthly invoices and billed as stated
a) shall commence as of the date of
this Agreement stated above (“Commencement Date”) and shall be renewed
each year thereafter for so long as Customer is insured by an Insurance Company
and Customer will abide by the separate agreement (policy endorsement) relating
to these services:
b) May or may not be terminated at
Customer’s option in the event insurance coverage is no longer in effect.
c) Continue on a month-to-month basis
and may be terminated as stated in paragraph six (6) herein in the event
insurance coverage the Insurance Company is no longer in effect.
3. Payment: Payment
for the purchase of the required equipment and monthly charges during the
initial twelve (12) month policy period commencing ending shall be covered by
the Insurance Company as part of the OVIT Program. Thereafter, Customer shall
assume responsibility for monthly payments.
4. Default and Remedies:
In the event Customer shall fail to perform any of the covenants, obligations,
and/or conditions stated in the Agreement, and without prejudice to or waiving
and other rights or remedies stated herein, then: a) OnTrak shall be permitted
to immediately suspend and/or terminate supplying Customer with Equipment
and/or Services and terminate this Agreement; b) Customer shall be liable for
all costs, expenses, and/or damages incurred by OnTrak based on Customer’s
default; c) Customer shall be required to immediately return all Equipment to
OnTrak. In the event Customer fails to return all Equipment as required, OnTrak
may be permitted to use self-help to uninstall and obtain possession of the
Equipment from Customer.
5. SD Cards: If OnTrak supplies the Customer with an SD card for use with the Equipment, Customer shall only use the SD card provided by OnTrak and at the applicable usage levels. OnTrak shall be permitted to charge Customer an administrative fee for any excessive and/or failure to use the SD card provided, including use of the SD card outside of the United States, unless otherwise authorized by OnTrak.
6. Equipment Maintenance
and Use: Customer shall maintain the Equipment in good condition and
not remove, alter, disfigure, or cover any identifying information on the
Equipment. OnTrak shall not be responsible to replace, repair, or refund
Customer for any Equipment and/or Services, unless the Equipment and/or
Services does not operate due to a diagnosed software issue. Customer shall use
the Equipment and/or Services in compliance and in accordance with all rules,
regulations, ordinances, and laws governing the use of the Equipment and/or
Services and this Agreement. Customer shall be liable for any and all damages
to Equipment, other than normal wear and tear, before title is transferred to
7. Intellectual Property:
OnTrak shall provide to customer for the Customer’s use all information and
data generated and obtained from the Equipment and/or Services (“Customer
Data”). OnTrak shall have the right to use all of Customer’s Data. OnTrak
will provide Customer Data to Customer’s insurance carrier as part of OnTrak’s
8. Entire Agreement:
This Agreement constitutes the entire Agreement between the Parties and
supersedes and revokes all other agreements whether oral or written between the
parties. The Customer acknowledges that it has not relied on any statement,
promise or representation made by or on behalf of OnTrak that is not set forth
in this Agreement. OnTrak has the right to update/change any and all policies
at any time and will inform the customer via written notice or email.
9. Negative Inference:
The Parties understand and agree that no negative inference shall be draw
against OnTrak as the preparer of this Agreement.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same Agreement. Facsimile or electronic signatures shall be deemed originals.
In the event that any provision of this Agreement is held to be unenforceable,
invalid, and/or illegal, all other provisions of this Agreement shall remain in
full force and effect.
12. Attorney’s Fees:
OnTrak shall be entitled to reasonable attorney’s fees, costs, and
disbursements in any action arising from the enforcement or Customer’s default
of this Agreement.
Customer may not assign this Agreement, Equipment, and/or Services provided for
in this Agreement to any other person and/or entity without OnTrak’s prior
written consent. OnTrak may assign this Agreement without notice to the
Customer or Customer’s consent. This Agreement shall be binding upon all
respective parties’ heirs, assigns, executors, administrators, and
14. Governing Law:
This Agreement shall be governed by and construed in accordance with the laws
of the State of New Jersey. The Parties consent that any action or proceeding
brought by any party shall be brought within the State of New Jersey, Monmouth
OnTrak shall not be liable for any damages and/or loss, nor any injury or
damage to Customer or any person and/or entity resulting from any cause of
whatsoever nature resulting or caused by OnTrak, the Equipment, or Services.
Customer agrees to defend, indemnify, and hold harmless OnTrak for any claims,
actions, demands, loss, expense, and/or damage of any kind for monetary
damages, property damages, equitable relief, personal injury, and/or wrongful
death arising out of any acts, omissions, negligence, or willful misconduct
committed by OnTrak, its officers, members, employees, agents, contractors,
invitees, or personnel rising out of, connected with, or resulting from the
this Agreement, Equipment, and/or Services. Customer shall reimburse OnTrak for
any penalties, fines, judgments, awards, decrees, attorney’s fees, and related
costs and/or expenses, and any reimbursements to OnTrak for all fees, expenses,
and/or costs incurred regarding the aforementioned. This provision shall
survive the termination of this Agreement.