The provision by TrackMatic to the Customer of Services shall be subject to these Terms and Paragraph 19.3 applies. The signing of the Echosign Agreement by the Customer and/or use of Services having had the opportunity to read these Terms shall be deemed conclusive evidence of the Customer’s acceptance of the Terms of the Agreement. Customer authorizes TrackMatic to insert any missing information onto the Agreement and to correct any misspelling or other such minor errors. 2.2. The technology related to the Services and the Software is constantly changing and being developed. As a result of this TrackMatic reserves the right to make reasonable changes to the terms of the Agreement at any time during the Term, but will only do so when it has good reason. In the case of a change TrackMatic will publish the updated terms at www.TrackMatic.co.nz/terms. The updated terms will apply from the date the updated terms are published on the Website. The Customer should visit the Website regularly to identify any changes.
3.1. Unless otherwise stated in the Agreement TrackMatic is responsible for all shipping and handling charges. However, any delivery required by the Customer that exceeds TrackMatic’s normal delivery terms (e.g. the Customer requests overnight or express) shall be paid by the Customer at TrackMatic’s then current rates. TrackMatic is not obliged to provide the Customer with copies of freight bills. 3.2. Shipping or delivery dates of TM are best estimates only. TrackMatic reserves the right to make deliveries of TM in installments. Delivery delay or default of any installment shall not relieve the Customer of its obligation to pay for Services provided by TrackMatic or accept remaining deliveries of TM. Installation issues must be notified to us within 4 hours for standard vehicles and customized solutions including temp monitor within 28 days.
4) LICENSE, RISK OF LOSS, TITLE AND SECURITY INTEREST
4.1. TrackMatic grants the Customer a limited, non-transferable license to use TM provided to it by TrackMatic for the purposes of the Agreement and for the Term.
4.2. The Customer assumes the risk of any loss, fire, damage, and theft of TM after delivery to the Customer.
4.3. The Customer agrees to keep TM fully insured for the greater of either (i) its full replacement value, or (ii) the unpaid balance on the Agreement. The Customer also agrees to obtain general public liability insurance from someone acceptable to TrackMatic and to include TrackMatic as an additional insured. The Customer agrees to provide TrackMatic with certificates or other evidence of the insurance policies acceptable to TrackMatic before this Agreement begins. The insurance must provide that TrackMatic be given at least 30 days notice of any cancellation or material change. If the Customer does not provide acceptable evidence of insurance before the due date of the first payment due from the Customer to TrackMatic under this Agreement it agrees to pay TrackMatic a risk fee with each periodic payment for the Services liquidated to be equal to 0.5% of the monthly payment for all Services due from the Customer to TrackMatic for each TM. The purpose of this risk fee is to compensate TrackMatic for the fact that the Customer has not provided proof that the TM is insured as agreed. This risk fee shall be income to TrackMatic and will not be used to TM44531FD (01/13) purchase any insurance or otherwise cover any costs, expenses or losses caused by a loss of any TM. The amounts of risk fees paid by the Customer will not decrease its liability hereunder for a loss of any TM or otherwise. The Customer agrees the risk fee does not release it from the duty to provide and maintain insurance coverage and that it has no rights to any insurance benefits from TrackMatic in the event of a loss. The Customer acknowledges that it is in the best position to prevent the charging of this risk fee by providing to TrackMatic proof of insurance in accordance herewith.
4.4. Notwithstanding delivery to the Customer and possession by the Customer of TM, TRACKMATIC RETAINS THE LEGAL AND BENEFICIAL OWNERSHIP OF TM. TrackMatic is NOT transferring title or any ownership rights in TM to the Customer and TrackMatic reserves all rights not expressly granted to the Customer.
4.5. The Customer hereby acknowledges that any IPR relating to the TM shall remain TrackMatic’s exclusive property.
4.6. If a Vehicle is repossessed and a TM remains in the Vehicle, the Customer obligations under the Agreement continue and TrackMatic will not be liable to pay any refund of any payments made by the Customer and the Customer shall use best endeavors to recover the TM.
4.7. or trackmatic units may only be removed from a Vehicle upon receipt of written permission by TrackMatic. The Customer may not abandon, sublicense, assign, rent, lease or otherwise transfer or market a TM.
4.8. TrackMatic may reasonably inspect TM during the Term.
4.9. At the end of the Term, Customer must contact TrackMatic to receive a return location for TM.,Trackmatic will then notify the client of the date of removal and vehicles must be made available at he same time on said date which is final and made by trackmatic. De-install is at a cost of 450 NZD dollars per vehicle and includes admin and postage charges.
4.10. For Agreements where the Plan details that the Customer is purchasing TMs at the commencement of or by the expiry of the Term or for agreements before 1 January 2012 the following changes to these Terms shall apply:
4.10.1. Delete Paragraph 4.1 with consequential changes to the remaining sub-paragraph numbers of Paragraph 4 and to any other cross references in the remainder of the Terms;
4.10.2. Paragraph 4.3 (previously 4.4) shall read “The legal and beneficial ownership of TM shall only pass to the Customer after payment in full to TrackMatic of the price of TM (including any interest and other costs as set out in the Agreement) and until such time TM remains the property of TrackMatic. However, despite payment in full to TrackMatic the Customer hereby grants to TrackMatic a security interest in TM to secure payment in full of all other amounts due under the Agreement (e.g. data communication services and Software).”
4.10.3. Paragraph 4.4 (previously 4.5) shall read “The Customer hereby acknowledges that any IPR relating to the TM shall remain TrackMatic’s exclusive property and that despite ownership of TM it undertakes not to use any TM with any GPS related services provided by any company other than TrackMatic during or after the Term.”
4.10.4. Delete “abandon” from Paragraph 4.6 (previously 4.7);
4.10.5. Delete Paragraph 4.8 (previously 4.9) in its entirety;
4.10.6. Amend a part of the 4th sentence of Paragraph 5.1 to read as follows: “ of TM for a period of 90 days but may charge ..”
4.10.7. Amend a part of the 1st sentence of Paragraph 5.4 to read as follows: “ workmanship for 12 months or in the case of a Standard-Fit TM Unit (fitted by a vehicle manufacturer prior to purchase of a new Vehicle by the Customer) for as long as the Vehicle’s manufacturer’s warranty subsists, save that ..”;
4.10.8. Add the words “Unless payment for TMs has been made in full, ” to the beginning of 13.3.2 and 13.3.3; and
4.10.9. Add a new Paragraph 16.1 “Payment for TMs shall be made in advance; with consequential changes to the remaining sub-paragraph of Paragraph 16 and to any other cross references in the remainder of the Terms.
5) INSTALLATION OF TM AND WARRANTY
5.1. TrackMatic shall install TM using a qualified person or agency. TrackMatic shall have the right to subcontract the installation in whole or part and shall notify Customer of the details of the subcontractor appointed on request. The installation of TM shall be completed within a reasonable period of time and subject to section and paragraph 12.1. TrackMatic may charge the Customer a surcharge for waiting time and other delays associated with installation caused by the Customer’s failure to have the Site or Vehicles available as specified in the Plan or otherwise agreed with TrackMatic or for requests for installation out of normal working hours between Monday and Friday. The Customer acknowledges that it is aware that in order to install TM it might be necessary for TrackMatic or one of TrackMatic’s subcontractors to drill holes in either the exterior or interior of Vehicles and agrees that TrackMatic shall not be liable for any costs, expenses or damages arising in any way from such work or from the location of such install. TrackMatic warrants the installation of TM for Lifetime but may charge a reasonable fee for a visit to a Site. All warranty claims must be in writing to TrackMatic but do not cover accidental or deliberate damage. Any install issues must be made in writing within 4 hours and are at the discretion of management.
5.2. The Customer shall make best endeavors to make all the Vehicles on which TM are to be installed or de-installed available at the earliest possible time and at the same time, where reasonably practicable after the Shipping Date. Once installations are booked the TM will be shipped to the Customer.
5.3. Installation of TM and any warranty or maintenance services shall take place at the Site. If the Site is not a TrackMatic service center then the Customer shall provide a Site which meets the following standards:
5.3.1. The Site shall be safe and present no hazards;
5.3.2. All necessary utilities (including plumbing, lighting, electrical power) shall be easily accessible and provided without charge to TrackMatic;
5.3.3. The Customer shall, at its expense, obtain and maintain during the period of installation a policy of general liability insurance covering any liability arising out of TrackMatic’s use or occupancy of the Site and all appurtenant areas;
5.3.4. Customer shall indemnify and hold harmless TrackMatic from and against any and all liabilities, including reasonable attorney’s fees arising from TrackMatic’s use of the Site or the condition of the Site; and
5.3.5. Customer shall allow TrackMatic, its authorized agents, and subcontractors full and free access to the Site at agreed and scheduled installation times during Business Hours and shall not require that TrackMatic waive any claim arising from its use of the Site or impose any other restrictions as a requirement of access to the Site. TrackMatic shall attempt to honor any Customer requests for installation during non-Business hours, but may charge the Customer a surcharge for such installation.
5.4. Subject to Paragraphs 8 and 18, TrackMatic warrants TM against defects in materials and workmanship for Lifetime save that the warranty does not cover Associated Components and custom solutions unless notified within 28 days including fridge equipment. All said equipment is to be maintained by the client.To obtain a warranty or maintenance service, Customer must contact the TrackMatic Help Desk at 0845 0604 08864 or as advised from time to time. TrackMatic or at its discretion:
5.4.1. advise the Customer to (a) obtain a RMA; (b) adequately package the defective TM; (c) ship the defective TM to the address provided by TrackMatic; and (d) mark the RMA number prominently on the outside of the carton. TM received without an RMA number or unpaid will be returned postage unpaid to Customer. TrackMatic will return the repaired or replacement TM to the Customer by post and fully insured if the warranty claim or request for maintenance is valid, but may charge for repaired or replaced Associated Components; and/or
5.4.2. Repair, remove and/or reinstall the TM at a location and time agreed between the parties.
5.5. In the event that a warranty claim or request for maintenance is not pursuant to the Agreement, TrackMatic may agree to repair or replace TM in accordance with the same process as outlined in 5.4 and TrackMatic shall be entitled to charge for travel costs, Associated Components and labor and freight charges unless reported within 28 days of install.
5.6. Under no circumstances will TrackMatic be liable for any costs and expenses incurred by a Customer (through a third party or otherwise), such as repair costs to a TM device and/or a Vehicle, and not liable for any damage caused either intentional or otherwise by the contractor this is between the customer and the contractor chosen on the clients behalf by us ,in the event that the Customer does not first comply with its obligations under the warranties detailed in 5.1 and 5.3 above to give TrackMatic the opportunity to verify any claim under the warranties and where appropriate either arrange remedial work or replacement either to be carried out by TrackMatic (or its sub-contractors), or by the Customer (or its sub-contractors) on terms agreed in writing with TrackMatic. Therefore, any costs and expenses incurred by a Customer, whether a warranty claim is valid or not, before notification, verification by and agreement with TrackMatic in terms of the validity of the warranty claim, repair or replacement, by TrackMatic or another, are costs and expenses that shall be borne by the Customer.
5.7. The TM is an electronic assembly that consumes electrical current. It is designed to draw low amounts of current when the Vehicle is not being operated and therefore there is a small drain on the Vehicle battery that may adversely affect Vehicles that are not in regular operation. TrackMatic is not liable for any consequences of the battery drain associated with use of TM and recommends that the Vehicle battery should be recharged periodically to ensure maximum performance and that touchscreens are disconnected overnight and/or when the Vehicle is not in operation.
5.8. TM installed on trailers are often subject to harsher conditions and treaTMent than those installed inside Vehicles. TrackMatic is not liable for the consequences of damage to TM as a result of exposure to external conditions such as, but not exclusively, weather and contact with physical objects.
5.9. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH 5, TRACKMATIC MAKES AND CUSTOMER RECEIVES NO OTHER WARRANTY WITH RESPECT TO TM, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, EFFECTIVENESS, COMPLETENESS, ACCURACY, TITLE AND NON-INFRINGEMENT ARE EXPRESSLY EXCLUDED, EXCEPT WHERE PROHIBITED BY LAW, AND WHERE PROHIBITED, ANY SUCH WARRANTY IS LIMITED TO THE MINIMUM WARRANTY AND PERIOD PROVIDED BY LAW. NO EMPLOYEE
TM44531FD (01/13) OR AGENT OF TRACKMATIC HAS THE AUTHORITY TO GRANT ANY OTHER WARRANTY TO CUSTOMER, WRITTEN OR ORAL.
5.10. The above warranties shall be null and void in the event that there has been any alteration, modification, or special configuration made by the Customer to a TM or de-installation or installation of a TM by the Customer or its contractor unless TrackMatic has approved in writing such contractor or approved the work undertaken or otherwise interfered with, misused or damaged including water damage by internal Vehicle water ingress and accordingly in such circumstances. In the event of a de-installation by a Customer the charges for Services relevant to the de-installed TM continue unless the parties agree otherwise.
6) LOCATION AND DATA COMMUNICATION SERVICES
6.1. The Services are intended only for routine messaging and ascertaining of location, Vehicle status and business information (i.e. not emergency or prevention of crime).
6.2. All Services may not be available to Customer now or in the future. Availability and scope of Services will be in accordance with the Plan.
6.3. The cost of communications associated with the use of the Services is included in the fees specified in the Plan, unless specified as a separate and additional cost in the Plan. If the Customer’s data communications usage materially exceeds any maximum amounts specified in the Plan, TrackMatic may at its sole discretion charge the Customer Overage Charges.
6.4. Customer acknowledges that TrackMatic may, for its internal test and quality control purposes, without charge to the Customer, locate or communicate with TM used by the Customer.
6.5. The Services provided by TrackMatic to Customer hereunder are solely for Customer’s internal business use as set forth in the Agreement allowing the Customer to locate and communicate with TM and the data or output from the Services may not be resold or otherwise offered to or used by third parties and the Customer shall not use the Software to operate as a value added reseller or for any other use involving using the Services to process the data of other persons and/or entities, unless it has signed a VAR Agreement.
7.1. The Software includes software components and the Mapbase and Map Engine licensed to TrackMatic by various entities (collectively, “TrackMatic’s Licensors”) and is provided with RESTRICTED RIGHTS. The Software is a proprietary product of, and constitutes copyright ©1991-2013 by TrackMatic and TrackMatic’s Licensors. ALL RIGHTS RESERVED UNDER THE COPYRIGHT LAWS OF THE New Zealand and international treaty. For purposes of any public disclosure provision under any legislation or regulation, it is agreed that the Software is a trade secret and a proprietary commercial product and not subject to disclosure. All right, title and interest in and to the Software and all copies and duplicates thereof, and all related copyrights, trademarks, trade names, trade secrets rights and other intellectual property and proprietary rights and interests, are vested and remain in TrackMatic and TrackMatic’s Licensors. The Software is licensed, not sold, to the Customer for use only under the terms of the Agreement. TrackMatic is NOT transferring title or any ownership rights in the Software to the Customer and TrackMatic and TrackMatic’s Licensors reserve all rights not expressly granted to the Customer. The Customer may not damage or compromise TrackMatic’s or TrackMatic’s Licensors’ copyrights, trademarks, trade names, trade secrets or other proprietary interests in the Software. If the Customer breaches the Agreement, monetary damages will not suffice to compensate TrackMatic and/or TrackMatic’s Licensors and TrackMatic and/or TrackMatic’s Licensor’s will be entitled to equitable remedies, including, without limitation, temporary restraining orders and temporary and permanent injunctions, without being required to post any bonds or security or prove special damages.
7.2. TrackMatic grants the Customer a limited nonexclusive, non-transferable license to use the Software for the Term and for the purposes of the Agreement.
7.3. The Customer must use the Software on computers with minimum processing capabilities as designated by TrackMatic and with access to an internet connection, preferably a high speed dedicated connection.
7.4. The Customer may not sublicense, assign, rent, lease or otherwise transfer or market the Software, Agreement or License.
7.5. The Customer may not derive or attempt to derive the source code or structure of all or any portion of the Software by reverse engineering, disassembly, decompilation, or any other means. The Customer may not decompile, disassemble, reverse engineer, port, translate, modify, copy, transfer, make derivative works of, or otherwise use the Software, except as expressly authorized by the Agreement. The Software and all materials and knowledge related thereto is obtained by the Customer and its employees, agents and representatives in confidence and shall not be duplicated or disclosed or published by any such persons in any form, or reproduced, transcribed, imitated or simulated in whole or in part. The Customer must take all reasonable steps to ensure it does not transmit worms or TM44531FD (01/13) viruses or any code of a destructive nature that may affect the Software or Services or use the Software or Services for inappropriate and/or illegal purposes. The Customer may disclose relevant aspects of the Software to employees, agents and representatives to the extent that such disclosure is reasonably necessary to use the Software in accordance with the Agreement; provided however, that the Customer shall take all reasonable steps to ensure that the Software is not disclosed or duplicated in contravention of the Agreement by such employees, agents and representatives.
7.6. If there is any violation or suspected violation of any provision of Paragraph 7.5, the Customer shall immediately notify TrackMatic and shall, at its expense, assist TrackMatic in the enforcement of Paragraph 7.5 against any of its current or former employees, agents, or representatives. Regardless of any right to enforce its rights directly, TrackMatic shall not be obligated to do so, and the obligation to enforce shall remain with the Customer whether or not TrackMatic takes such action. The Customer agrees to indemnify and hold TrackMatic harmless from any claim, liability, damage or expense, including reasonable attorney’s fees, suffered by TrackMatic as a result of any violation of Paragraph 7.5 by it or its current or former employees, agents or representatives.
7.7. TrackMatic warrants that the Software will perform in substantial compliance with the written materials provided to the Customer by TrackMatic or as detailed on the Website. No oral advice or information provided by TrackMatic or any of its agents or employees, whether given before or after first use of the Software shall create a warranty or in any way increase the scope of this limited warranty, and the Customer is not entitled to rely on any such information. This warranty shall not be applicable if there has been any alteration, modification, or special configuration made to the Software by the Customer.
7.8. Only the current version of the Software and the immediately preceding version will be supported by TrackMatic. The Customer will be advised of changes to the Software (which may be implemented at TrackMatic’s discretion from time to time) and the Customer shall diligently follow any such instructions as soon as reasonably possible. Customers may be required to pay TrackMatic a license upgrade fee. TrackMatic shall have no liability to the Customer should it fail to upgrade the Software after having received notice of changes.
7.9. The Software utilizes a Mapbase owned and maintained by the Map Suppliers. The Customer’s use of these Services is subject to the terms of the Map Suppliers listed at Paragraph 14 herein. If Euro Roaming is not detailed in the Plan and is requested by a Customer it can be added to the Plan at TrackMatic’s then current rates but TrackMatic requires at least 14 days’ notice for such an upgrade (2 days’ notice for agreements before 1 January 2012) and a Vehicle must be located in the Nz for a minimum of 2 Working Days prior to the commencement of Euro Roaming.
7.10. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED AS IS. THE EXPRESS WARRANTIES PROVIDED IN PARAGRAPH 7.7 ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY TRACKMATIC. TRACKMATIC AND TRACKMATIC'S LICENSORS MAKE AND CUSTOMER RECEIVES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, EFFECTIVENESS, COMPLETENESS, ACCURACY, TITLE AND NON-INFRINGEMENT ARE EXPRESSLY EXCLUDED, EXCEPT WHERE PROHIBITED BY LAW, AND WHERE PROHIBITED, ANY SUCH WARRANTY IS LIMITED TO THE MINIMUM WARRANTY AND PERIOD PROVIDED BY LAW. NO EMPLOYEE OR AGENT OF TRACKMATIC HAS THE AUTHORITY TO GRANT ANY OTHER WARRANTY TO CUSTOMER, WRITTEN OR ORAL.
7.11. The Customer acknowledges that if traffic, speed data, driver black spot, vehicle analytics, battery life, fuel data form part of the Services in the Plan it may contain inaccurate or incomplete information due to changing circumstances, sources used and the nature of collecting such data, any of which may lead to incorrect results.
7.12. Subject to Paragraphs 10 and 18, TrackMatic shall provide the services described below without additional charge (unless specified) during each period for which Customer has purchased Services:
7.12.1. Defects in the Software. During the Term, if the Customer reports a defect in the Software, TrackMatic shall use reasonable endeavors to resolve such defect as part of an Update. In the event of each notification to TrackMatic, TrackMatic may request that the Customer first submit to TrackMatic a written description of the apparent defect, a complete copy of all output, including, when possible, screen shots or print outs of the apparent defect and sufficient information to reproduce the defect;
7.12.2. Material Defects in the Software: If the Customer reports in writing, a material defect in the Software to TrackMatic within 90 days of the defect first becoming apparent, and TrackMatic is unable to reasonably correct it within 90 days of the date of the report, TrackMatic will refund to the Customer a proportion of fees paid for those parts of the Services that were inoperative for the period from when the defect first became apparent to when the defect was corrected. In the event of each notification, TrackMatic may request that the Customer first submit to TrackMatic a written description of the apparent defect, a complete copy of all output, including, when possible, screen shots of print outs of the apparent defect and sufficient information to reproduce the defect. The Customer agrees that its only remedy under this limited warranty is to receive a refund of the amount paid for the inoperative Services in the said period;
7.12.3. Telephone Consultation/On-Line Diagnostic Support. TrackMatic provides telephone support by its representatives during Support Hours. In addition, TrackMatic offers on-line diagnostic support through the use of remote access software of TrackMatic’s designation, or other connectivity software where available; and
7.12.4. On-Site Troubleshooting and training. When necessary, TrackMatic may offer the Customer on-site troubleshooting support. TrackMatic retains the right to charge the Customer for such support. Any additional support requested by the Customer, including general maintenance, installation of Upgrades, which requires support by TrackMatic representatives at Customer’s site, shall be provided and charged to the Customer at TrackMatic’s standard support rates as specified by TrackMatic from time to time plus the cost of travel of TrackMatic representatives (including meals and overnight lodging, if necessary).
8. FURTHER LIMITATION TO WARRANTIES
The warranties specified in these Terms (TM, installation and Software) shall be null and void and TrackMatic shall be entitled to charge the Customer its then applicable charges for replacement parts, site visits and other associated costs in the event that there has been:
8.1. use of TM and/or Software that is not in the ordinary course of business or has not been approved in writing by TrackMatic;
8.2. accidents, misuse, abuse, neglect, damage and tampering with TM and/or the Software;
8.3. improper installation, maintenance, or repair (not provided or authorized by TrackMatic) of TM and/or the Software;
8.4. connection of TM to an improper voltage supply, reception or transmission problems caused by inadequate or improper antenna (not provided by TrackMatic);
8.5. water, weather or physical damage to TM or exposure to the elements;
8.6. use of TM with accessories or devices not approved by TrackMatic; or
8.7. use of the Services other than in the normal and customary manner.
9. TELECOMMUNICATION CARRIERS & GPS
The Customer acknowledges that communication services (such as GSM and GPRS) used in the provision of the Services are provided by TCs and the Customer specifically acknowledges and agrees the following:
9.1. Customer acknowledges that the Services may be temporarily refused, interrupted, curtailed or limited because of aTMospheric, terrain, or other natural or artificial conditions and may be temporarily interrupted or curtailed due to usage concentrations, modifications, upgrades, relocation and repairs of the transmission networks. Customer agrees that TCs, TrackMatic and TrackMatic Agents shall not be responsible for such interruptions of Services or the inability to use the Services within the Coverage Area.
9.2. Neither TrackMatic nor TCs can guarantee the security of wireless transmissions and Customer agrees that neither shall be liable for any lack of security relating to the use of the Services;
9.3. TrackMatic may temporarily suspend or permanently terminate the provision of some or all of the Services upon little or no notice in the event that TrackMatic’s agreement with a TC is terminated or in the event the Customer violates a TC’s acceptable use policy or other network rules and policies. Customer waives any and all claims against the underlying TC, including any roaming carrier, for such suspension or termination. In the event that TrackMatic’s agreement with a TC is terminated TrackMatic will take reasonable steps to transfer the communications used by the Customer to another TC within 28 days;
9.4. TrackMatic will use all reasonable endeavors to give notice to relevant Customers in the event of notification that a TC intends to discontinue or suspend its provision of GSM communication services. However in such circumstances where provision of all or part of the Services is no longer possible without changes to the Services, TrackMatic shall be entitled to temporarily suspend or permanently terminate the provision of some or all of the Services upon little or no notice to relevant Customers. On request by any Customer effected, TrackMatic agrees to offer suitable alternative Services using alternative communication on commercial terms;
9.5. The TMs utilize GPS technology in order to establish geographic location information. While GPS can provide worldwide, three-dimensional positions, 24 hours a day, in any type of weather there are some limitations inherent to GPS technology. There must be a relatively clear “line of sight” between the GPS antenna and 4 or more satellites. Objects, such as buildings, overpasses, and other obstructions (such as parking in garages or underground structures) that shield the antenna from a satellite can potentially weaken a satellite’s signal such that it becomes too difficult to ensure reliable and/or accurate positioning. These difficulties are particularly prevalent in densely urban areas;
9.6. The Customer acknowledges that it is improbable that the communication services used and GPS will have 100% coverage or functionality in any area at all times. Any deviations from any coverage representations made or from
any coverage map shown to the Customer shall not constitute default by TrackMatic. Any surveys, if provided, are to indicate general parameters of expected coverage, subject to previously mentioned conditions, and are not binding as an exact representation of coverage; and
9.7. In the event that the Customer’s use of TM either intentionally or unintentionally results in abnormal and/or excessive communications usage, TrackMatic shall be at liberty to suspend Services in relation to the relevant TM, for a reasonable amount of time, on written notice to the Customer, until TrackMatic is able to assess the cause and implement a solution.
10. INTERRUPTION OF SERVICES; FORCE MAJEURE
TrackMatic shall have no liability for a failure to provide or for delay in providing TM, installation of TM or Services due directly or indirectly to causes beyond the control of TrackMatic or its subcontractors, including, without limitation, acts of God, or governmental entities, or of the public enemy, termination of Services due to actions of a TC, including, but not limited to, deactivation/dismantling of a TC’s GSM or GPRS network, acts of the Customer, strikes, unusually severe weather conditions, interruptions of transportation or inability to obtain necessary labor, materials or facilities, default of any supplier, or delays in Ofcom frequency authorization or license grant. Delivery schedules of TM shall be considered extended by a period of time equal to the time lost because of any such delay. If TrackMatic is unable to wholly or partially provide TM or perform the Services for more than 30 days because of any cause beyond its control, TrackMatic may terminate the Agreement without any liability to Customer, other than refund any amounts paid for TM, Software or Services which have not been provided and all deposits and advance payments made by the Customer will be retained by TrackMatic as compensation for documentation, processing and other expenses.
11. REVISION OF FEES AND SERVICES
Before the end of the Term TrackMatic may, upon 60 days’ notice revise the monthly rates for Services set forth in the Plan, such changes to take effect immediately after the Term finishes. If the Customer terminates the Agreement other than as herein provided, all accrued and unpaid charges shall be immediately due and payable including removal of hardware and software disconnection where by an early termination charge of 150 dollars applies per vehicle.
12. AUTOMATIC RENEWAL & TERMINATION and early termination
12.1. At the expiration of the Term, the Agreement shall automatically renew for successive 12 month periods unless express written notice is received by either party from the other at least 30 days, but not more than 90 days, prior to the expiration date, any fees due will be paid to trackmatic on early termination including any eraly termination charges and de-install fees detailed below. Note any months free periods are repayable at the end of the termination.
12.2. The Customer shall pay TrackMatic the unpaid aggregate price and fees for all Services listed in the Plan for the remaining term of the Agreement if the Customer cancels the Agreement otherwise in accordance with 12.1 above.
12.3. The Agreement shall terminate immediately without liability if either the GSM or GPS networks are shut down as well as de-installation will be carried out only by a Trackmatic approved installer and logo removal of software and return of devices will be at a cost of 340 dollars per vehicle for standard devices and 379 euro for custom devices including fridge,driver identification devices this applies to both early cancelation or end of contract.
12.4. The Agreement may be terminated on 90 days written notice if the other party is in breach of any of the material terms of the Agreement, and such breach is not cured within the 90-day notice period. In addition, TrackMatic may terminate the Agreement upon the occurrence of any Event of Default (as provided for in Paragraph 13 below).
12.5. The Customer is not entitled to terminate the Agreement pursuant to 12.4 above for any alleged breach of warranty under Paragraphs 5.1, 5.4 or 7.7 herein unless such warranty claim is in writing and follows the procedures set out in Paragraphs 5.1, 5.4 or 7.12 and TrackMatic fails to meet its obligations under Paragraphs 5.1, 5.4, 7.7 or 7.12 herein and after 90 days written notice of breach as prescribed in 12.4 above.
12.6. Upon termination of the Agreement for whatever reason the Customer shall not use the Software for any purpose and immediately de-install any Software installed on any of its computers and return to TrackMatic or destroy all related documentation if requested by TrackMatic. The enforceability of the Agreement which by its nature shall survive the termination of the Agreement no de-install of any device may happen without a trackmatic engineer and any cost whatsoever must be paid as appicable at that time and this will be given at termincation request. De-install must be at the same location as install and all vehicle must be made available within 14 days of termination.
12.7. In the event that the Agreement relates to a Customer’s trial or evaluation of the Services (“a Trial”), and in the event the Agreement does not continue after a Trial, TrackMatic shall be entitled to charge the Customer a handling and administration fee per Unit at TrackMatic’s then current rates in addition to de-installation charges and take any and all steps as provided for in Paragraph 13.2 in the event that the Customer does not return TM as provided for in Paragraph 4.9 (save that in the event of a Trial TrackMatic will pay the shipping costs of returning TM to TrackMatic). Otherwise these Terms apply to the Agreement until its termination or expiry. In the event of a Trial where a Customer does not give written notice of its intent to cancel the Trial before its expiry, this Agreement shall remain in force at the prices quoted to the Customer for a term of three (3) years.
13. CUSTOMER DEFAULT AND TRACKMATIC REMEDIES
13.1. Customer shall be deemed to be in default in the event of any of the following (each an “Event of Default”):
13.1.1. Customer does not pay any amount due within 10 days of when it first becomes due;
13.1.2. Customer is in breach of any of the material terms of the Agreement, or any other obligation with TrackMatic, and does not cure such breach within 30 days of receipt of notice of such breach;
13.1.3. Customer transfers or attempts to transfer any TM to another party; or
13.1.4. Customer gives TrackMatic reasonable cause to be insecure with Customer’s willingness or ability to make required payments, such as: Customer is unable to pay its debts as they fall due, becomes insolvent or bankrupt, enters into liquidation, whether voluntary or compulsory, passes a resolution for its winding up, has a receiver or administrator appointed over the whole part or any part its assets, makes any composition or arrangement with its creditors or takes or suffering any similar action in consequence of its debt.
13.2. In the event of the Event of Default TrackMatic may, in addition to the other rights set forth elsewhere in the Agreement take all or any of the following steps:
13.2.1. Suspend any or all Services;
13.2.2. Charge the Customer a £5 per TM administration charge and a late fee and interest at the rate of one and one-half percent (1 1/2%) per month (or the highest rate permitted by law, if such rate exceeds the highest rate permitted by law) to compensate TrackMatic for the extra administrative expenses incurred by it;
13.2.3. Exercise any remedy at law or equity, for which Customer expressly waives any required notice;
13.2.4. Refer the Agreement to an attorney for legal action, in which case, Customer agrees to pay TrackMatic’s reasonable attorney’s fees and actual costs, including our travel costs to any deposition or court appearance. Customer further agrees that a reasonable legal fee is not less than the greater of £300.00 or 25% of the total amount in collection as a liquidated damage and not a penalty; and/or
13.2.5. Charge the Customer a reactivation fee for each TM should TrackMatic suspend Services and then re-activate the Services at TrackMatic’s then current rates.
13.3. In the event of an Event of Default where the Customer fails to pay more than 3 consecutive invoices when due, in addition to the remedies detailed above in Clause 13.2 TM shall be entitled to terminate the Agreement with immediate effect and:
13.3.1. The Customer shall pay TrackMatic a sum which represents the remainder of the fees due under the Agreement less TrackMatic’s projected future mapping and communication costs for the provision of the Services;
13.3.2. Demand that Customer return TM to TrackMatic or at TrackMatic’s election collect from Customer the estimated TM fair market value, agreed to be 25% of the original TM cost, discounted to present value on the date of computation at 5% per year;
13.3.3. If Customer does not return the TM, TrackMatic may without any liability to Customer for damages caused by the entry or retaking possession, and without releasing Customer from any payment or other obligation, immediately repossess the TM (including by entering the Customer’s premises on reasonable notice) without any court order or other process of law, in which case Customer agrees to pay the repossession cost; and
13.3.4. Sell or otherwise dispose of TM with or without notice, at a public or private sale, and apply the net proceeds to the amount Customer owes TrackMatic, in which case, Customer will remain responsible for any remaining amount due hereunder.
14. Map Suppliers End User Term
15. ADDITIONAL THIRD PARTY SERVICES AND SMARTNAV
15.1. Third Party Services are only available to Customers which have the Third Party Service included in the Plan and who have paid for the relevant Subscription for these services and the provisions of this Clause 15 shall apply.
15.2. The Customer and Authorized users of the Vehicle remain at all times responsible for observing all relevant laws and regulations in addition to codes of safe driving and TrackMatic will not in any event be liable for any fine, penalty, or punishment imposed.
15.3. TrackMatic will make all reasonable efforts to procure the accuracy and completeness of information and reports supplied directly by Third Parties, but do not warrant the accuracy or completeness of them at all times.
15.4. The format and content of Third Party reports to the Customer may be changed by the Third Parties, from time to time.
15.5. In the event that the Plan includes Stolen Vehicle Tracking, SafeSpeed, SmartNav or SmartNav in Europe paragraphs 5, 6, 8 and/or 9 respectively from www.TrackMatic.co.nz/terms and their respective definitions apply as if incorporated herein and in the case of any inconsistency these terms shall take precedence.
Customer shall make payments to TrackMatic in accordance with the Agreement, at such place and/or by such means as TrackMatic designates from time to time any amount due that is deemed fit by trackmatic and that is fair and may change without notice, the client agreed to pays trackmatic any fees that are deemed needed. Specifically:
16.1. Unless otherwise detailed in the Plan a pro-rata portion of the aggregated average of the charges for all Services based on a daily charge of one-thirtieth (1/30) of a monthly charge or one-ninetieth (1/90) of a quarterly charge or one three-hundred and sixty-fifth (1/365) of an annual charge shall be payable by the Customer from the earlier of date of installation or 30 days after the Shipping Date (or in the case of a TM already fitted by an OEM from the date of activation of the Services) to the end of the calendar month in which the said 30 days expires on the Shipping Date (“Part Payment”). Thereafter charges for the Services are due in advance at the beginning of each calendar month or as otherwise detailed in the Plan, from the start of the next calendar month to the expiry of the Term or as otherwise detailed in the Plan and are not refundable;no deposit is refundable if the client terminates early
16.2. Unless otherwise detailed in the Plan all payments by the Customer to TrackMatic for Services and any other payment obligations shall be made by TrackMatic electronically withdrawing requisite cleared funds from the Account. The Customer authorizes TrackMatic to debit the Account for periodic charges for Services or other amounts due and owing at the time under this Agreement. If the Customer wants to authorize TrackMatic to debit another account, it must advise TrackMatic in writing providing adequate authority for TrackMatic to debit charges from the Account.
16.3. In the event of the Plan detailing monthly in advance payment terms (not annually or quarterly in advance) the Customer shall, on signature of the Agreement, pay by DD (or otherwise detailed in the Plan) the first three complete calendar month’s charges of the Term for the Services and the Part Payment as provided for in 16.1 above and therefore the Customer will not need to make another advance payment until the beginning of month four of the Term unless other amounts are owed by the Customer to TrackMatic during that period;
16.4. Incremental charges and other service charges, including, without limitation, Overage Charges and warranty charges are billed in arrears and shall be paid on 30 days terms or in advance as stated in your contract. ;
16.5. If TrackMatic makes a charge for installation it will be billed separately as specified in the Plan;
16.6. Except for the amount, if any, of any tax or fee included in the Agreement, the prices set forth therein are exclusive of VAT and the Customer agrees to pay when due any amount for VAT if VAT is applicable.
16.7. Save for Paragraphs 10 and 7.12.2, no advance payments made by the Customer for the Services and/or TM are refundable.
17.1. The Customer warrants that it will advise any employee or other authorized user of a Vehicle that the:
17.1.1. Vehicle may be tracked;
17.1.2. The Customer and employees will be able to view details relating to Vehicle(s) using the Software; and
17.1.3. The Customer will be able to produce historical reporting of Vehicle(s) for a period of up to 6 months prior to the date on which the report is requested or for the period from when the Services were active if less.
17.2. The Customer acknowledges that for quality control, security reasons and training, telephone calls between TrackMatic and the Customer and/or its employees may be recorded.
17.3. The Customer consents to TrackMatic tracking and tracing the location, time and speed of Vehicles via the TM for the purposes of the Agreement.
17.4. The data produced by use of the Services is the property of the Customer however,TrackMatic reserves the right to use and to allow third parties to use anonymised location, time, speed and other information obtained from Vehicles for traffic information, journey data analysis, mapping, fleet benchmarking or other related purposes. TrackMatic will retain such data for 3 years save that access by the Customer without charge may be shorter if detailed in the Plan or if otherwise advised to the Customer. Customers which have OEM lease and maintenance and/or insurance or leasing related services detailed in the Agreement (or otherwise agreed in writing) consent to the provision by TrackMatic during the Term of data produced by the use of the Services, or access to said data, identified as the Customer’s data, to the OEM, insurance and/or leasing company designated in the Agreement.
17.5. TM and its agents, its business partners and/or carefully selected companies may use the Customer's information to keep the Customer informed by post, telephone, facsimile, e-mail, SMS or other means about TM products and services. By providing TM with contact details, the Customer consents to being contacted by these parties for these
purposes. If the Customer does not wish to receive marketing information, the Customer must state this in writing to TrackMatic
18. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
The liability obligations of TrackMatic to the Customer or any 3rd party under the Agreement are strictly controlled and limited by the laws, and regulations which from time to time have jurisdiction. In any event, the Customer acknowledges and agrees that:
18.1. TrackMatic shall have no liability for any single isolated failure of the Services, or delay that does not exceed 48 hours;
18.2. The liability and obligations of TrackMatic or a TrackMatic Agent to the Customer herein may be strictly controlled and limited by the laws, rules and regulations of governmental authorities which from time to time have jurisdiction. In any event, regardless of the form of action, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise, the Customer’s exclusive remedy and the total liability of TrackMatic to Customer arising in any way in connection with the Agreement, for any cause whatsoever, including, but not limited to, any failure or disruption of Services provided, shall be limited to the right of repair or replacement of defective TM (depending on warranty conditions) and payment by TrackMatic of damages in an amount equal to the amount charged to Customer for undelivered Services provided under the Agreement and in no event shall TrackMatic’s liability exceed the amount paid by the Customer for the Services in question in the 12 months preceding the beginning of such failure or disruption to the Services, nor shall any action be brought for any breach more than one year after the accrual of such cause of action or for any breach where TrackMatic was not first afforded the opportunity to investigate and/or verify any defect relating to installation, TMs and/or the Software in accordance with the warranty provisions herein. TrackMatic shall not be liable for property damage or any damages or loss of any kind, whether increased costs, lost profits or goodwill, lost revenues or data or incidental, special, punitive, indirect, incidental, exemplary or consequential damages, arising from the use of the Services even if TrackMatic has been advised of the possibility of such damages;
18.3. TrackMatic and its suppliers shall not be liable to any other person or entity or third party for any loss or damages caused by any interruption of Services, regardless of cause;
18.4. Customer agrees to indemnify, defend and hold TrackMatic and its licensors harmless from and against any liability, loss, injury (including injuries resulting in death), demand, action, cost, expense or claim of any fees (including reasonable legal fees) arising out of or in connection with any use or possession by Customer of the data produced by the Services and/or the improper or unauthorized use of the Services or the failure to use the same properly or as directed by TrackMatic from time to time;
18.5. If the Customer becomes aware of any matter which might give rise to a claim against TrackMatic or the Customer concerning the potential infringement by TrackMatic, and/or the Services of any patent, copyright or other intellectual property rights of any third party or the potential misappropriation or unlawful disclosure or use of a third-party's trade secrets (an "Infringement Claim"); or any infringement or suspected infringement of TrackMatic’s IPR and/or the IPR relating to the Services by a third party, the following provisions shall apply:
18.5.1. The Customer shall immediately give written notice to TrackMatic of the matter (stating in reasonable detail the nature of the matter). If the matter has become the subject of any court proceedings the Customer shall deliver the notice of such proceedings within sufficient time to enable TrackMatic to contest the proceedings before any material time limits have passed;
18.5.2. The Customer shall provide TrackMatic and its professional advisers reasonable access to premises and personnel and to any relevant assets, documents and records within its possession or control (and at TrackMatic’s expense take copies of any of the documents or records, and photograph any premises or assets) for the purposes of investigating the matter; and 18.5.3. Customer shall:
18.104.22.168. take such action and institute such proceedings, and give such information and assistance, as TrackMatic may reasonably request to:
22.214.171.124.1. dispute, resist, appeal, compromise, defend, remedy or mitigate the matter; or
126.96.36.199.2. enforce against any person (other than TrackMatic) the rights of the Customer in relation to the matter; and
188.8.131.52. in connection with any proceedings related to the matter (other than against TrackMatic) use professional advisers nominated by TrackMatic and, if TrackMatic so requests, allow TrackMatic the exclusive conduct of the proceedings;
18.5.4. The Customer shall not admit liability in respect of or settle any matter without the prior written consent of TrackMatic, such consent not to be unreasonably withheld or delayed; and
18.5.5. In addition, if any of the Services provided by TrackMatic hereunder are, or in TrackMatic's reasonable judgment are likely to become, the subject of an Infringement Claim, whether or not due to notification by Customer, TrackMatic shall be at liberty to immediately cease providing those elements of the Services that are subject to the actual or potential Infringement Claim and at its expense will use commercially reasonable efforts to: (A) procure for Customer the right to use and continue using the Services; or (B) replace the Services with a non-infringing equivalent; or (C) modify the Services to make its use hereunder non-infringing; provided however, in the event that TrackMatic agrees to commercial terms with the relevant third party to obtain for the Customer the right to use the Services, the Customer will pay, in addition to the fees for the Services listed in the Plan, a monthly amount equal to the Customers proportionate share of the amounts payable to such third party for the use of the Services during such month. If none of (A), (B), or (C) of the preceding sentence are available on commercially reasonable terms in TrackMatic's good faith judgment, TrackMatic will so notify the Customer, whereupon: (A) the Customer will cease use of the Services, if requested by TrackMatic, return to TrackMatic the TMs and Associated Devices containing the allegedly infringing technology in accordance with the terms hereof; and (B) TrackMatic will equitably adjust the charges to reflect the discontinuation of the applicable portion of the Services. In such event, the TrackMatic and Customer will seek to establish mutually acceptable alternative arrangements and to make any appropriate adjusTMents to their respective obligations under this Agreement though the execution of an amendment; and
18.5.6. Nothing in this Paragraph 18.5 shall in any way restrict or limit the general obligation at law of the Customer to mitigate any loss which it may incur as a result of any matter related to this Paragraph 18.5.
18.6. The provisions of this Paragraph limiting and excluding the liability of TrackMatic are reasonable given the complex nature of the technology involved in the provision of Services and the many other factors affecting the Services outside TrackMatic’s reasonable control.
19.1. TrackMatic (or its associated companies) is the proprietor of the “TrackMatic”, "TrackMatic”, “Safe N Secure”, “eClient”, “Smartnav” names, derivatives, associated symbols and trademarks and all documentation relating thereto and any use is specifically prohibited unless under the Agreement or by separate written agreement with TrackMatic.
19.2. If any provision of the Agreement shall be unlawful, void, or unenforceable, then that provision shall be deemed limited to the extent required to make it enforceable, or, if necessary, severed from the Agreement. Such a provision shall not affect the validity and enforceability of the remaining provisions of the Agreement.
19.3. The Agreement (and for the avoidance of doubt including these Terms) constitutes the entire agreement and understanding between the parties as to the subject matter of the Agreement and supersede all previous and contemporaneous communications, representations or agreements, written or oral relating to the Services purchased under the Agreement. Any amendments to these Terms must be in writing and authorized and signed by a Director of TrackMatic or its Financial Controller or General Counsel and are not otherwise binding.
19.4. Any waiver of a breach of the Agreement shall not be a continuing waiver and shall not prevent any claim of a breach of the same terms or any other term of the Agreement.
19.5. In these Terms, words incorporating the masculine gender only include the feminine and neuter genders and words incorporating the singular number only include the plural and vice versa.
19.6. The Customer agrees to observe and abide by all applicable laws, ordinances, rules and to hold TrackMatic harmless from liability or loss by reason of any asserted or established violation of the same by Customer, its employees, agents or representatives.
19.7. The Customer acknowledges and agrees that the Services must not be used in any way which would or may affect the ability of any driver of the Vehicle to drive safely and in accordance with local laws and regulations. The Customer or its employees or other authorized users are ultimately responsible for the Vehicle under his/her control and they should be aware of their surroundings at all times. In certain geographic areas one way streets, turn restrictions and entry prohibitions (e.g. pedestrian zones) are not recorded or displayed. TrackMatic is not liable for any loss or damage caused by the acts or omissions of the driver of the Vehicle. Users of the Vehicle remain at all times responsible for observing all relevant laws and codes of safe driving and TrackMatic is not liable for any fine, penalty, or punishment issued to the Customer or any user of the Vehicle.
19.8. The Agreement is fully assignable and transferable by TrackMatic to any person or entity and shall inure to the benefit of such assignee or successor, Customer may not assign the Agreement without the prior written consent of TrackMatic, except that Customer may, without TrackMatic’s consent, assign the Agreement: (a) to Customer’s parent company, a subsidiary, or an affiliate; (b) to any successor corporation by consolidation or merger; or (c) to any corporation with the authority to carry on a business of a nature transacted by Customer and to which Customer
has sold all or substantially all of its assets, provided that Customer has advised TrackMatic in writing of such assignment and Customer remains liable for any obligations or liabilities arising under the Agreement.
19.9. The headings used herein are for convenience only and are not to be used in the interpretation of the Agreement.
19.10. All notices and other communications required or permitted to be given under the Agreement shall be in writing and addressed to the Managing Director and shall be delivered or transmitted by the Customer to TrackMatic at the address specified on the Agreement or such other address as TrackMatic may notify to the Customer for this purpose from time to time. Notices by TrackMatic to the Customer shall be to the customer address listed on the Agreement or as provided by the Customer to TrackMatic from time to tome and it is the responsibility of the Customer to advise TrackMatic of any change of address expeditiously. Any notice shall be treated as having been served on delivery if delivered by hand or email, 4 working Days after posting if sent by pre-paid registered mail, 2 working Days after dispatch if sent by courier and on confirmation of transmission if sent by facsimile.
19.11. The construction, validity and performance of this Agreement shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the English courts to resolve any disputes between them.
19.12. Where any provision of this Agreement refers to an affiliated company or licensor of TM, it shall be enforceable by that company in accordance with the Contracts (Rights of Third Parties) Act 1999 (Nz), but otherwise no provision in this Agreement is intended for the benefit of any third party.
19.13. Each signatory is duly authorized and has the necessary power and authority to execute and deliver this Agreement on behalf of the applicable party and to bind such party, and each party has the necessary power and authority to deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby.
It is the policy of TrackMatic LTM always to try to give our best possible service to you, but if you have any questions or concerns about the product or service this contract applies to newzealand law and Uk law, please contact TrackMatic. Email: info@TrackMatic.co.nz