1.1 In these conditions, the following definitions will apply (unless the context requires otherwise):
1.2 Reference in these Terms & Conditions to the singular shall be deemed to include the plural and vice versa. Headings to clauses are included for ease of reference and shall not affect the interpretation of these Terms & Conditions.
2.1. These Conditions apply to the Order and all subsequent orders of goods and/or services by You from Us to the exclusion of all other terms and conditions.
2.2. Until We accept Your Order, no agreement exists between You and Us and We are not bound to provide any Products or Services to You. Your Order will not be deemed to be accepted until We give you a written notice of acceptance of Your Order or (if earlier) the Products are invoiced or dispatched to You or We commence performance of the Services.
2.3. Any variation to these Conditions must be agreed in writing by an authorised Fleet Innovations Limited signatory.
2.4. By signing the Purchase Order Form You accept these conditions. You may not cancel the Order without Our written agreement and on terms that You indemnify Us, and keep US indemnified, in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses directly or indirectly incurred by Us as a result of such cancellation. Any such cancellation will be treated as early termination.
3.1. You acknowledge that all intellectual property rights existing or which may arise in connection with the Products or the Services remains with or will belong to Us or its licensors.
4.1. We will use reasonable endeavours to meet any dates or times specified or requested for delivery of the Products and the performance of the Services, but all such dates and times are estimates only and We will not be liable for any damage or loss suffered by You as a result of such dates or times not being met.
4.2. We reserve the right to make deliveries in instalments. Delay or other default by Us in relation to a particular instalment will not relieve You of Your obligation to accept delivery of and pay for other instalments.
4.3. The Products will be delivered to You at Your delivery address as set out on the Purchase Order Form.
4.4. All risk in the Product will pass to You at the time of delivery or, if You wrongfully fail to take delivery of the Products, at the time when We tender delivery of them.
4.5. If You do not accept delivery of the Products, fail to give Us adequate delivery instructions or delay or prevent Us from delivering the Products, then without prejudice to any other right or remedy available to us:
4.5.1. We may on written notice to You, charge a reasonable sum in respect of any additional expenses incurred by Us; and
4.5.2. You will be deemed to have repudiated this Agreement and We may terminate it in accordance with these Conditions.
4.6. You will be responsible for:
4.6.1. Obtaining all necessary consents for the installation and use of the Products in any premises and/or vehicles; and
4.6.2. Providing a suitable and safe environment for Our personnel.
4.7. We will observe Your reasonable site regulations previously advised to Us in writing.
5.1. You will be deemed to have accepted the Products unless you notify Us in writing within 14 days of delivery.
5.2. You may not return any Products delivered to You which comply with this Agreement in all material respects without Our prior written approval. If We agree You may return any Products and You must:
5.2.1. pay Us a reasonable handling charge; and
5.2.2. return such Products to Us carriage-paid in their original shipping carton.
5.3. If You return any Products which comply with this Agreement in all material aspects to Us without Our prior written approval, We may return them to You or store them at Your cost without prejudice to any rights or remedies We may have.
6.1. Unless otherwise agreed in writing, the price for the Products, and the charges for any training services, will be invoiced in one instalment on signature of this Agreement. Unless otherwise agreed in writing, charges for the Internet based Services will be payable either:
6.2. All invoices issued under this Agreement are payable within 7 days of the date of the invoice. Time for payment will be of the essence. We will not be obliged to perform Internet based Services for You until We have received payment in full of the relevant invoice(s).
6.3. The charges for the Products and Services are exclusive of VAT which will be charged at the rate current at the date of invoice. The charges for the Products and Services exclude postage, packaging and insurance charges and reasonable out of pocket travel expenses for training which will also be invoiced by Us to You.
6.4. Late payment will carry interest at an annual rate of 2% above the HSBC Bank Plc base rate from time to time from the due date until the date You make payment in full. Interest will accrue daily after as well as before any judgment. You will reimburse Us for all costs and expenses (including legal costs) incurred in the collection of any late payments.
6.5. If you do not make any payments to Us by the due date or You commit any other breach of these Conditions, We may, on 14 days’ prior written notice and without prejudice to any other remedy or right available to Us, suspend any further deliveries of Products and/or performance of any or all of the Services.
7.1. Notwithstanding delivery and the passing of risk in the products, we will retain all the ownership rights in the Products until we have received payment in full of all the sums due to Us for the Products under this Agreement.
7.2. Unless and until We have received payment in full for all the sums due to Us in respect of the products, We may at any time.
7.2.1. require You to return the Products to Us, and/or
7.2.2. enter any of Your premises or vehicles where Products are present or reasonably thought to be present in order to remove them. You will reimburse Us for all costs and expenses reasonably incurred by Us in connection with any such entry and/or removal.
8.1. The Internet services are only available to You as follows:
8.1.1. unless You are otherwise notified by Us in writing Internet services are only available to You within the UK;
8.1.2. unless You are otherwise notified by Us in writing. Internet services will be available to You to street level and/or to mapping level at such locations as We decide at Our absolute discretion;
8.1.3. when the equipment is switched on and, when it incorporates a cellular transceiver and activated cellular service, is within the operating range of a provider of cellular service to such system;
8.1.4. subject to transmission limitations caused by atmospheric or topographical conditions, busy cells, limitations in the cellular infrastructure and any other similar conditions outside Our control;
8.1.5. subject to limitations based on the electrical system design and structure of the object to which the equipment is attached;
8.1.6. subject to refusal, interruption or curtailment due to government regulations or orders due to system capacity limitation or equipment modifications, upgrades, relocations, repairs and similar activities necessary or appropriate for the provision of the Internet based Services;
8.1.7. subject to unavailability while the battery to which any Equipment is connected is discharged or disconnected or if any of the Equipment is damaged;
8.1.8. you accept that some of the Services rely upon GPS and that the provision of the Services is dependent upon the provision of normal uninterrupted satellite and land telecommunication services, mobile telephone services, power supplies and equipment which may be owned, controlled or operated by third parties or which may be subject to statutory control or which may operate under government granted licences or permits. Accordingly, the level and quality of the Services at any time may be impaired, interrupted or suspended by any act or omission of the US Department of Defence or other authority or regulatory body which may now or later have responsibility for/or control over any aspect of the delivery of any part of such Services
8.1.9. subject to any other GPS limitations that may impair Our ability to determine precisely the Equipment’s location.
8.2. You acknowledge and agree the provision of the Internet based services depends on the proper provision and/or maintenance of the Equipment that may be installed and/or maintained by third parties.
8.3. The Internet Services depend upon the availability of the Systems and, by their nature, may from time to time be adversely affected by physical features e.g., buildings, underpasses, atmospheric conditions, topography and other causes of interference and may fail or require maintenance from the relevant Systems Provider without notice.
8.4. You authorize Us to deactivate the Internet based Services temporarily for nuisance or safety reasons.
8.5. You must comply with any reasonable instructions issued by us which concern Your use of the Services and/or the Equipment and/or connected matters.
8.6. You must advise Us immediately by telephone in the event of loss or theft of the Equipment or the SIM card or if the SIM card is damaged. You acknowledge and agree to indemnify Us of any airtime or other charges that We may incur in the event that the Equipment and/or SIM card is stolen and We are not notified immediately.
8.7. We may suspend availability of all or any Internet based Services or disconnect any Products if:
8.7.1. You fail to comply with any of the terms of this Agreement (including failure or delay in payment) until the breach (if capable of remedy) is remedied; or
8.7.2. You do (or allow to be done) anything which is in Our reasonable opinion may in any way adversely affect the quality, function, operation of performance of any Internet based Services to You or any other customer; or
8.7.3. the use of the Internet based Services by any person may constitute a violation or infringement of any third party right or of any statutory duty or any obligation in contract, tort of otherwise; or
8.7.4. You fail to meet Our reasonable requirements as to credit-worthiness or if we reasonably believe that you have entered into this Agreement fraudulently or that any Internet based Services are being used for criminal, unlawful or inappropriate activities by You or any other person.
8.7.5. Any exercise by Us of this right of suspension or disconnection will not affect Your obligation to pay the charges due for the period of suspension or disconnection or Our right subsequently to terminate this Agreement.
9.1. Subject to paragraph 9.4, We warrant to You that:
9.1.1. the Services will be provided with reasonable skill and care; and
9.1.2. the Products will correspond materially with their specification at the time of delivery and will be free from material defects in material and workmanship for a period of 12 months from delivery.
9.2. If any Product is found to Our reasonable satisfaction not to conform to the warranty set out in paragraph 9.1, Our only obligation is at Our discretion either to;
9.2.1. replace or repair (at a location in the United Kingdom agreed between You and Us) free of charge the defective Product; or
9.2.2. refund the price of the defective Product in the event that this has already been paid to Us by You against the return of the Product.
9.3. We will redeliver any repaired or replaced Products to You free of charge to destinations (agreed between You and Us) in the United Kingdom. Such delivery will otherwise be in accordance with the subject of these Conditions, except that the period of 12 months referred to in paragraph 9.1 will be replaced by the un-expired portion of the 12 month period since the original delivery of the Products.
9.4. We will not be liable to You under paragraph 9.1 and/or 9.2:
9.4.1. if the Products or Services have been misused, mishandled, overloaded, modified or used for any purpose other than that for which they were intended; or
9.4.2. if the Products have been installed or repaired by someone other than Us or Our agents or sub-contractors and the defect results from such installation or repair; or
9.4.3. if the defect is due to fair wear and tear, wilful damage, negligence, abnormal operating conditions or failure to follow Our instructions: or
9.4.4. if the total price of the Product has not been paid to Us by the due date for payment; or
9.4.5. if the Products have been manufactured to Your design and the fault is due to Your faulty design.
9.5. You will pay all costs and expenses reasonably incurred by Us.
9.5.1. in attempting to repair the Products where either no fault is found or is found to exist or the fault is not covered by the warranty not contained in this paragraph; and/or
9.5.2. if We are prevented from or delayed in carrying out any replacement or repair pursuant to paragraph 9.2.1 by You or Your employee’s or contractors act or omission.
9.6. Except as expressly provided in this Agreement, all warranties, guarantees and conditions relating to the Products and/or Services including (without limitation) those relating to description, quality, and fitness for purpose (whether express or implied by statute common law or otherwise) are excluded. In particular We give no warranty as to the accuracy of data transmitted via the Systems nor as to the continuous availability of the Systems nor as to the continuous availability of the Systems.
9.7. You must notify Us of any claim under paragraph 9 as soon as reasonably possible.
10.1. You acknowledge and agree that:
10.1.1. You are responsible for the operation of the Products and You will ensure that they are used safely and properly and that You will use, maintain and keep them in accordance with any instructions provided by Us; and
10.1.2. the prices of the Products and Services are agreed commercially on the basis of Our potential liability as set out in this Agreement, with You having had the opportunity to ask for a variation of these conditions with any appropriate adjustment to the charges for the Products and/or Services.
10.2. Except as expressly provided in this Agreement We will not be liable to You in any way (whether contractual, tortuous or otherwise) in respect of any loss, damage or expense arising directly or indirectly from any defect in the Products or any failure to provide the Services whether or not caused by Our negligence or that of our employees, agents or sub-contractors. In particular We will not be liable for any loss of profit, loss of data, loss of goodwill, loss of business opportunity or any liability to third parties or for any consequential or indirect loss, damage or expense which may be suffered or incurred by You in connection with the Products or the Services.
10.3. Our aggregate liability to You for any and all claims arising from any and all acts and/or defaults of Us, or Our employees, agents or sub-contactors, whether for negligence, breach of contract or otherwise will not in any event exceed the total amount paid by You to Us for the Products and Services under this Agreement.
10.4. Nothing in these conditions will
10.4.1. restrict or exclude liability for death or personal injury caused to You by Our negligence; or
10.4.2. if You are a consumer, restrict or exclude liability for death or personal injury caused to You by Our act or omission; or
10.4.3. restrict or exclude any liability of Us which may arise under section 12, Sale of Goods Act 1979, Part 1, Consumer Protection Act 1987 or Section 2, Supply of Good and Services Act 1982; or
10.4.4. if You are dealing as a consumer (as defined in Section 12, Unfair Contract Terms Act 1977) affect Your statutory rights under the Sale of Goods Act 1979, the consumer Transactions (Restrictions on Statements) order 1976 or the Supply of Goods and Services Act 1982.
10.5. You are responsible for satisfying yourself that the Products and the Services are appropriate for the purposes for which they are intended.
10.6. You will indemnify Us and keep us indemnified against all liabilities, claims, damages, losses and proceedings arising out of or in any way connected with any breach of this Agreement or act or omission by You, Your employees, agents and sub-contractors.
10.7. In any event, Our liability shall automatically cease either if You are in breach of the Rental Agreement or of this or any other contract made with Us or if We or Our servants or agents are denied full and free rights of access to any alleged defective Products or Services.
11.1. You acknowledge and agree that We may hold files and voice computer records containing Your records which may include Your personal details (if You are an individual or group of individuals) or those of Your employees, bank details and other records whether provided by You or another source including as a result of collecting information from use of the Services. This information may include sensitive information. It is held to enable Us to provide the Service, and may also be used for administration purposes and particular to comply with our legal obligations.
11.2. We may also pass your personal details to associated companies and Our or their agents to those concerned in the prevention and detection of crime for the purposes of compliance with any legal obligation, to a third party who compiles telephone directory services and/or to a third party who carries out direct marketing activities.
11.3. By signing the order form You consent to the above and if any individual (e.g. one of Your employees) uses any of the Products or the Services or if You provide any personal information about any individual to Us, You must ensure that, prior to such use commencing or prior to the provision to Us of that information, that individual is informed of the purposes for which their personal information may be used by Us and has consented to such use, including the monitoring or recording of their calls in accordance with the terms of this Agreement.
11.4. You acknowledge and agree that in conjunction with the provision of the services We may create an electronic or other record of the Equipment’s location, direction and other circumstances and any incidents monitored by the Equipment. You understand and agree that any such records as well as Your account information may be retained by Us and associated companies. You consent to Our use and that of third parties of these records and of Your account information for the purposes of providing the services and administering Your account.
11.5. You warrant that You will comply with the provisions of the DPA, (including the Data Protection principles) and the Telecommunications (Data Protection and Privacy) Regulations 1999 and in particular that You give (and in the case of any relevant individual have procured the giving of) all consents and approvals required by Us in order to lawfully give effect of this Agreement and You will indemnify Us and keep us indemnified against all liabilities, losses and expenses that We may incur as a result of Your breach of this warranty.
11.6. You acknowledge that We may monitor and record conversations from time to time for quality assurance and employee training purposes including between Our response centre specialists and You. Also, if You request assistance in locating a stolen vehicle Our operators may listen to and/or record conversations occurring in the vehicle, without the knowledge of the vehicle’s occupants in order to determine or assist in the recovery of stolen equipment. You consent to such monitoring and recording and agree that neither We nor any associated company will be liable for any claims, losses, damages or costs of any kind which may result from any such monitored and/or recorded conversations.
11.7. Your use of the Products may fall within the DPA or any successor legislation and if so it is Your responsibility to comply with the relevant legislation.
12.1. So far as practicable (and subject to paragraph 11) We undertake to treat all information identifiable as being supplied by You contained in Our system and/or documentation as confidential and will not disclose it to any third party without Your permission, unless for the purposes of clause 12.2.
12.2. You acknowledge Our right to use any general intelligence or experience gained in the provision of the Services for the purposes of marketing and/or improving Our systems and services for customers.
12.3. Neither party’s obligations of confidentially will apply in relation to information which (a) is public knowledge other than as a result of a breach of that party’s obligations or (b) which it is obligated to disclose by law, any Court of competent jurisdiction, any government agency or regulatory body lawfully requesting the same or by the regulations of any recognized stock exchange.
12.4. You will not without Our prior written consent disclose or use, for Your own purposes or for the benefit of any other person, any confidential or proprietary information concerning or belonging to Us.
13.1. You acknowledge that activation of some of the Services may require the use of a password and that anyone with access to Your user details and password, and/or those provided to your employees, may be able to access such Services. It is Your responsibility to maintain the privacy and security of Your password and those provided to your employees and/or accessed via your systems. You agree that neither We nor any associated company will be liable to You or any third party for any claims, losses, damages or costs which may result from any use of Your password and/or those of your employees.
13.2. You acknowledge and agree that cellular telephone systems use radio channels to transmit voice and Data communications over a complex network, and that therefore neither privacy nor security of conversations or data transmitted over cellar telephone systems can be guaranteed. You also acknowledge and agree that the use of the internet and/or telephone lines to access any of the Services does not provide a secure environment. Unwanted programmes or material may be downloaded without the knowledge of You or the user, which may give unauthorized persons access to Your computer data. These programs may perform actions which neither You nor the user has authorized, possibly without Your or the user’s knowledge. Consequently neither We nor any associated company will be liable to You for any claims, losses, damages or costs which may result from a lack of privacy or security experienced over cellular telephone systems, the internet or telephone lines.
14.1. This Agreement will commence on the date that both parties sign this Agreement and (subject to earlier termination in accordance with agreement) will continue in force for a minimum period as defined on the Purchase Order Form (the Initial Term) and thereafter, unless and until terminated by either party giving at least 3 months written notice to the other expiring at any time on or after expiry of the initial term.
14.2. Either party may terminate this agreement immediately on written notice to the other if the other:
14.2.1. commits any material breach of this Agreement and in the case of breach capable of remedy, fails to remedy within 14 days of being required to do so; or
14.2.2. dies or makes any arrangement with or composition for the benefit of its creditors, has petition for its winding up passed or presented (other than for the purpose of amalgamation or reconstruction) or has bankruptcy proceedings commenced against it, or has a receiver or administrative receiver, administrator or manager appointed over the whole or any part of its business or any of the above under the law of any jurisdiction occurs in relation to the other party.
14.3. If this agreement is terminated for any reason, without prejudice to any other right and remedy available to Us You will immediately pay any sums due to Us as set out in clause 16 and :
14.3.1. upon our written request, You immediately return to us all products for which you have not already paid Us in full;
14.3.2. You will pay all Our costs expenses and losses resulting from such termination; and
14.3.3. all rights granted to You pursuant to paragraphs 8 and 9 will cease.
14.4. The termination of this agreement is without prejudice to any rights or liabilities of either party which have accrued prior to termination and shall not affect any provision which comes into effect or continues in effect after termination (including but not limited to paragraphs 11 and 12).
15.1. Entire Agreement – This Agreement, together with any documents referred to in it, constitutes the whole agreement between You and Us relating to its subject matter and supersedes any prior agreements, understandings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter. No particulars, statements or descriptions whether contained in any advertising matter, catalogues, brochures, price lists or otherwise provided by Us concerning the Products and/or the Services nor any verbal representations by any agent, employee or representative of Us shall from part of this Agreement or be treated as constituting a representation on Our part. You acknowledge that You have not been induced to enter into this Agreement by any representation or warranty other than those contained in this Agreement and agree that You shall have no remedy in respect of any other such representation or warranty except in the case of fraud or fraudulent misrepresentation.
15.2. Assignment/Sub-Contracting – (a) You may not assign, transfer or otherwise deal with or dispose of any or all of Your rights, benefits or liabilities under this Agreement. You may not resell any of the Products or Services (whether as a distributor, retailer or dealer). (b) We may perform or exercise any and all of Our obligations and/or rights under this Agreement through any third party, provided that any act or omission of any such third party shall be deemed to be Our act or omission. We may assign transfer or otherwise deal with or dispose of all or any of Our rights, benefits or liabilities under this Agreement, provided that if You are a Consumer such assignment does not reduce any of Your guarantees under this Agreement.
15.3. Force Majeure – Neither party shall be liable in any way for loss or damage arising directly or indirectly through or in consequence of being unable to perform its obligations under this Agreement as a result of any cause beyond its reasonable control. Upon the occurrence of such event, such party may terminate this Agreement without liability.
15.4. Third parties – A person who is not a party to this Agreement has no right under the Contracts (Rights to Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from this Act.
15.5. No partnership – Nothing in this Agreement shall create or evidence any relationship of partnership or agency between the parties.
15.6. Waiver – No failure by either party to exercise, nor any delay in exercising, any of its rights, powers, privileges or remedies under this Agreement shall operate as a waiver, nor prevent such party subsequently enforcing any right, power, privilege or remedy nor prevent such party treating any material breach by the other as a repudiation of this Agreement.
15.7. Severability – If any provision of this Agreement shall be held to be invalid, illegal, void or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Agreement in that jurisdiction shall not be affected and the legality, validity and enforceability of the whole of this Agreement shall not be affected in any other jurisdiction.
15.8. Set Off – Except where You are a Consumer, You are not entitled to exercise any right of set off or counter claim against any amounts due to Us from You under this Agreement.
15.9. Notices – Any notice given under this Agreement shall be sent by post or delivered by hand to the recipient’s address stated in the Purchase Order Form. Notices shall be deemed to have been delivered 48 hours after the date of posting or on delivery if delivered by hand.
15.10. Governing Law and Jurisdiction – This Agreement shall be governed and construed in accordance with the laws of England. All disputes arising under this Agreement shall be subject to the non-exclusive jurisdiction of the English Courts.