This Buyback Agreement (the “Agreement”) is a legal contract that governs the Tracki Guaranteed Buyback Plan (“Plan” or “Option”). The Agreement is between the individual or entity that has purchased the Plan, or the individual or entity to whom the Plan was properly transferred (“You” or “Your”) and Tracki, Inc.
By entering this agreement, you acknowledge that this is a legal contract and you have the opportunity to read the terms and conditions set forth in it. This Agreement, the associated online or in-store materials (“Materials”) that the Agreement is sold with, if applicable and your sales receipt comprise the entire agreement relating to the Plan.
1. DEFINITIONS. In addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings for purposes of this Agreement:
(a) DEVICE: The consumer item covered by this Agreement.
(b) DEVICE RETAIL PRICE: The actual cost You paid for the hardware components of the Device.
(c) SERVICE FEE: The fee that You paid for the Plan, as specified on Your receipt, or in the online terms of sale, as applicable.
(d) PLAN PERIOD. The period commencing on the Effective Date of this Agreement and ending on Expiration Date (the “Plan Period”), during which the Plan can be exercised without penalty. The Plan Period is subdivided into a number of sub-periods (“Subperiods”), as described in this Agreement, on the Materials, or in the online terms of sale, as applicable.
(f) BUYBACK AMOUNT. The amount Tracki agrees to pay You for the Device if You exercise the Plan within the Plan Period, subject to the terms of this Agreement, such amount to be paid to you by Tracki in the form of a check issued by Tracki Inc. The Buyback Amount changes based on both the Subperiod during which the Device is postmarked, and the condition of the Device as follows:
(I) FIRST PERIOD. The time period from the purchase date of the Device to six (6) months after the purcchase date of the Device. During the First Period, the Buyback Amount will be 100% of the Device Retail Prie, subject to the condition of the Device.
(II) SECOND PERIOD. The time period from six (6) months after the purchase date of the Device to twelve (12) months after the purchase of the Device. During the Second Period, the Buyback Amount will be 90% of the Device Retail Price, subject to the condition of the Device.
(III) THIRD PERIOD. The time period from twelve (12) months after the purchase date of the Device to eighteen (18) months after the purchase date of the Device. During the Third Period, the Buyback Amount will be 80% of the Device Retail Price, subject to the condition of the Device.
(IV) FOURTH PERIOD. The time period from eighteen (18) months after the purchase date of the Device to twenty-four (24) months after the purchase date of the Device. During the Fourth Period, the Buyback Amount will be 70% of the Device Retail Price, subject to the condition of the Device.
2. GRANT OF BUYBACK OPTION. Tracki hereby grants to You an option to sell to Tracki, and Tracki hereby agrees to buy the Device at a Buyback Amount according to the schedule set forth in this Agreement, or in the online terms of sale, as applicable, subject to the conditions set forth in this Agreement.
3. EXERCISE – WHEN YOU ARE READY TO CLAIM YOUR BUYBACK AMOUNT. You may exercise this Option by (a) notifying Tracki through the Tracki website at http://www.tracki.com or by calling 1(800) 742-1200, and (b) shipping the Device to Tracki, at an address provided by Tracki at the time of exercise, with a postmark during the Plan Period or the Late Fee Period, provided that You are not in breach of any of the terms of this Agreement.
4. SHIPPING TERMS.
(a) TRACKI PROVIDES SHIPPING LABEL AND BOX. Tracki will, at Your discretion, provide You with a pre-paid postage label for shipping the Device to Tracki via Fed DHL or an equivalent carrier from within the United States either (I) through an interface on the Tracki website, or (II) along with a box appropriate for the Device with packaging materials, mailed to Your address within the United States. Please allow approximately one (1) week for delivery of the box. It is solely Your responsibility to request a box in advance of any deadlines in this Agreement you wish to meet and to postmark the Device to Tracki on time. You must pay for and provide your own shipping label and box if You intend to ship from outside the United States. DHL or any other shipping company used by Tracki shall not be construed to be an agent of Tracki.
(b) SHIPPING ADDRESS. If you use a postage label provided by Tracki, the Device must be shipped to the address specified on the postage label. If you do not use a Tracki postage label, the Device must be shipped to the address specified on the Tracki website at http://www.tracki.com.
(c) DEVICE PACKING. You have the sole responsibility for packing and shipping the Device in a manner that ensures that it will not be damaged during shipment and You bear all risk of loss to the Device, including damage during shipping until the Device is actually received by Tracki.
(d) RISK OF LOSS. The risk of loss shall pass to Tracki upon receipt of the Device by Tracki. If material loss or damage occurs during the shipping of the Device to Tracki, You bear the risk of loss and Your rights under this Agreement will automatically terminate without notice.
5. TIME OF ESSENCE; FAILURE TO EXERCISE. Time is of the essence in this Agreement and is a material term of the Agreement.
(a) DEVICE POSTMARKED DURING LATE FEE PERIOD. If You fail to exercise the Plan during the Plan Period, You shall have thirty (30) days from the Expiration Date to postmark the Device to Tracki (“Late Fee Period”). If the Device is postmarked during the Late Fee Period, Tracki will reduce the Buyback Amount associated with the last Subperiod by 10%, unless an exception has been granted by Tracki in accordance with paragraph 10(h).
(b) DEVICE POSTMARKED AFTER LATE FEE PERIOD. If Device is postmarked after the last day of the Late Fee Period, and an exception has not been granted by Tracki in accordance with paragraph 10(h), and the Device is received by Tracki, Tracki may in its sole discretion
(I) consider the device a Rejected Device as described in Paragraph 8, or
(II) consider the Plan terminated and refuse to accept the Device.
6. RETENTION OF SERVICE FEE; PAYMENT.
(a) RETENTION OF SERVICE FEE. The Service Fee will only be refunded to You at Tracki’s discretion. Specifically, all sums paid by You will be retained by Tracki in consideration for the granting of the Option in the event that
(I) the Plan is not exercised before the end of the Late Fee Period, or
(II) the Device is considered Substantially Impaired under Paragraph 8.
(b) PAYMENT. Payment of the Buyback Amount to You by Tracki constitutes fulfillment of all of Tracki’s obligations under this Agreement and terminates this Agreement.
(c) TIMING. Payment of the Buyback Amount by Tracki shall be made within sixty (5) working days following receipt of the Device by Tracki, subject to the Acceptance Testing set forth in Paragraph 8. Upon Tracki’s successful completion of Acceptance Testing and its subsequent notification to You by e-mail or through a secure area of the Tracki website of the successful completion of Acceptance Testing, all right, title and interest in Device will shift to Tracki.
(d) SALES TAX. You are responsible for paying and accounting for any sales tax that may be applicable to You in Your home state for the sale of the Device to Tracki. Tracki makes no representations or warranties regarding Your possible sales tax liabilities for this transaction. All sales tax liabilities for Your sale of the Device to Tracki are solely Your responsibility.
7. ACCEPTANCE TESTING. If You exercise the Plan in accordance with the terms of this Agreement, Tracki in its sole discretion or the discretion of any of its agents reserves the right to adjust the Buyback Amount according to the following grading system. PLEASE NOTE that Tracki will not make a claim on any warranty plan on Your behalf. You must make any warranty claim prior to sending the Device to Tracki.
(a) GOOD. The Device is fully functional, with a good physical condition. The Device must be returned as a whole, with substantially all components and all other accessories that originally shipped with the Device. If Tracki grades the Device as Good, no adjustment will be made to the Buyback Amount.
(b) POOR. The Device has one or more of the following issues: 1. The Device has sustained minor functional damage or product failure that can be easily repaired; 2. One or more of the Device‘s minor components, peripherals, or accessories is missing or damaged but can be easily repaired or replaced; 3.The Device has more than normal visible wear and tear, including, but not limited to, cracks, dents, scratches, dirt, and user-added stickers. If Tracki grades the Device as Poor, the Buyback Amount will be adjusted down by 10%.
(c) SUBSTANTIALLY IMPAIRED. The Device has one or more of the following issues: 1. The Device has functional damage or product failure that affects its ability to perform its function or impairs its use and cannot be easily repaired; 2. One or more of the Device’s components, peripherals, or accessories is missing or damaged and cannot be easily repaired or replaced; 3. The Device has been recalled by its manufacturer and has not been repaired or replaced prior to sending it to Tracki. All damage described above must be repaired either under warranty or at Your own cost before sending the Device to Tracki. The Device will not be accepted in Substantially Impaired condition and Tracki will retain the Service Fee You paid. If the Device is considered to be Substantially Impaired, the Device will be considered Rejected Device as provided in Paragraph.
8. REJECTED DEVICE. If the Device is considered to be a Rejected Device, the Plan will be terminated with no refund of Your Service Fee or payment of the Buyback Amount, and you will be notified by e-mail and/or in a secure area on Tracki’s website within thirty (5) days of receipt of Device by Tracki (“Rejection Notification”). You hereby grant Tracki the power to dispose or sell the Rejected Device with Tracki bearing all costs of environmental disposal and retaining any net proceeds of the sale or disposal.
9. OTHER TERMS AND CONDITIONS.
(a) DEVICE PURCHASED CONCURRENTLY OR PREVIOUSLY. You warrant that You are the legal and beneficial owner of the Device as of the Effective Date of this Agreement. You further warrant that You have purchased the Device previously or concurrently with this plan, and agree that the terms of this Agreement cover only the Device and NOT any similar or alternative device except as specified in Paragraph 9(I). Tracki reserves the right to terminate the Plan for individuals who have not purchased the Device before entering into this Agreement.
(b) PURCHASER RECORDS. You may be asked to provide information from either your sales receipt or the Materials, if applicable, as a condition for receiving service under the Plan. YOUR ORIGINAL SALES RECEIPT AND MATERIALS, IF APPLICABLE, SHOULD BE KEPT WITH THIS AGREEMENT IN A SAFE PLACE.
(c) TECHNICAL SPECIFICATIONS. In order for the Buyback Amount to be valid and effective, the actual technical specifications of the Device must match the technical specifications, including the serial number (“Technical Specifications”) of the Device you purchased, except as specified in 9(I). In cases where the actual specifications of the Device You shipped to Tracki do not match the specifications of the Device covered by the Plan, we may ask you to provide an original sales receipt, and if the sales receipt cannot be produced or does not match the device you sent, the Device will be considered a Rejected Device, as provided in Paragraph 8.
(d) USER DATA, MEMORY, CONFIDENTIAL INFORMATION. You hereby agree to remove all personal, confidential, or proprietary information from the Device prior to shipping the Device to Tracki. By exercising the Plan You further agree to hold Tracki harmless for any dissemination of such information through the resale of the Device.
(e) EXEMPTION FROM EXPIRATION DATE. You may qualify for an exemption from the Expiration Date and/or Late Fee Period if the Device is being repaired or replaced by a warranty provider or through a recall process by a manufacturer during the Expiration Date. To qualify for this exemption, You must complete all of the following:
(I) Notify Tracki that the Device is being repaired under warranty, by e-mail at firstname.lastname@example.org or registered United States Mail at Tracki Customer Support, P.O. Box xxxxxx, Los Angeles, CA 90051-6681, within three (3) days of sending or delivering Device for warranty repair and before the Expiration Date; and (II) Send in the Device to Tracki within three (3) days of receiving it from the warranty issuer; and
(III) Include in the shipment of the Device to Tracki the paperwork on the warranty return from the warranty issuer, which identifies the date You sent or delivered the Device to the warranty issuer and the date You received the repaired Device from the warranty issuer.
(I) EXEMPTION FROM TECHNICAL SPECIFICATIONS. You may also qualify for an exemption from the Technical Specification requirements in Paragraph 9(c) if the Device is replaced by a warranty provider or through a recall process by a manufacturer. To qualify for this exemption, You must complete all of the following:
(I) Notify Tracki by e-mail at email@example.com or registered United States Mail at Tracki Customer Support, P.O. Box xxxxxx, Los Angeles, CA 90051-6681 of the change in serial numbers within ten (10) days of receiving the replacement Device; and
(II) Include the original paperwork for the warranty replacement or recall replacement from the warranty issuer/manufacturer from the warranty issuer clearly identifying the old serial number of the Device and the new serial number of the Device with the shipment of the Device to Tracki.
(f) TRANSFERABILITY. You may transfer this Plan to an eligible party to whom You sell or give the covered Device while this Plan is in force by notifying Tracki through an interface on Tracki’s website of the email address of the new owner. An additional fee to Tracki may apply when transferring ownership.
(g) BUYBACK AMOUNT CHANGES. Any percentage change in the Buyback Amount shall be a change based on the entire Buyback Amount, exclusive of any other or prior change.
(h) PLAN ADMINISTRATION. Your rights under these terms and conditions, including, without limitation, the payment of any Buyback Amount, are expressly contingent upon your full compliance with each of the requirements set forth in this Agreement. All eligibility and other matters relating to your purchase or use of this Plan will be determined by Tracki, at its sole discretion, and each such determination will be binding on you.
(a) GOVERNING LAW. AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN, AND SHALL BE CONSTRUED PURSUANT TO, THE LAWS OF THE STATE OF DELAWARE.
(b) INTERPRETATION. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be determined to be invalid or unenforceable to any extent under Delaware law, and the extent of such invalidity or unenforceability does not destroy the basis for the bargain between the parties as expressed herein, then
(I) such provision shall be deemed severed from this Agreement with respect to such circumstance, without invalidating the remainder of this Agreement or the application of such provision to other circumstances, and
(II) a new valid and enforceable provision, which accomplishes the intent of the parties hereto as evidenced by the provisions so severed, shall be deemed substituted in lieu of the invalid or unenforceable provision.
(c) WAIVER. No action or lack of action by Tracki shall be deemed or construed as a waiver of any provision of this Agreement. No waiver of any provision of this Agreement shall constitute or be deemed a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless it is executed in writing by the party making the waiver.
(d) HEADINGS. Any headings used in this Agreement are for reference purposes only and are not to be used to construe or limit the meaning of any provision.
(e) DISPUTE RESOLUTION AND INDEPENDENT ARBITRATION. MOST OF YOUR CONCERNS CAN BE RESOLVED THROUGH TRACKI CUSTOMER SERVICE. IF, HOWEVER, YOU HAVE AN ISSUE THAT CANNOT BE RESOLVED WITHOUT THIRD-PARTY INTERVENTION, YOU AND TRACKI AGREE THAT ANY DISPUTE OR CLAIM IN LAW OR EQUITY ARISING BETWEEN THEM OUT OF THIS AGREEMENT OR ANY RESULTING TRANSACTION SHALL BE DECIDED BY NEUTRAL, BINDING ARBITRATION BEFORE THE BETTER BUSINESS BUREAU, UNLESS THE PARTIES MUTUALLY AGREE TO A DIFFERENT ARBITRATOR, WHO SHALL RENDER AN AWARD IN ACCORDANCE WITH SUBSTANTIVE DELAWARE LAW. THIS MEANS THAT ALL SUCH CUSTOMER DISPUTES (EXCEPT PERHAPS CERTAIN SMALL CLAIMS) WILL BE RESOLVED THROUGH ARBITRATION, NOT WITH A JUDGE OR JURY. JUDGMENT UPON THE AWARD OF ARBITRATOR(S) MAY BE ENTERED INTO ANY COURT HAVING JURISDICTION. INTERPRETATION OF THIS AGREEMENT TO ARBITRATE SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT.
(f) ATTORNEYS’ FEES. If any legal action or proceeding arises out of or relating to this Agreement, the prevailing party will be entitled to receive from the other party, in addition to any other relief that may be granted, the reasonable attorneys’ fees, costs, and expenses incurred in the action or proceeding by the prevailing party.
(g) LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRACKI’S TOTAL LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY), OR OTHERWISE), ARISING OUT OF OR RELATING TO THE GUARANTEED BUYBACK PLAN OR ANY OTHER PRODUCTS, SERVICES OR OTHER ITEMS FURNISHED BY TRACKI UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE BUYBACK AMOUNT PAYABLE BY TRACKI TO YOU FOR THE PRODUCT GIVING RISE TO THE CLAIM. Some states do not allow the limitation of liability, so the foregoing may not apply to you.
(h) AMENDMENT. Tracki may modify any immaterial terms or conditions of this Agreement upon written notice to You. Any material terms or conditions of this Agreement may be amended only upon written agreement of the parties.