GTRAK LTD is a private company registered in England and Wales under company registration number 06990564 having its registered office at Unit 3E The Gateway, Silkwood Park, Ossett, Wakefield, WF5 9TJ (“GTRAK”).
These Conditions apply to all Contracts between the Company and the Customer.
These are the only Conditions upon which GTRAK is prepared to deal with the Customer. These Conditions supersede any previous conditions of GTRAK and are to apply to the exclusion of all other terms and conditions (including any terms and conditions which the Customer purports to apply on any purchase order, acknowledgement of order, Specification or other document, orders, and quotations and to the exclusion of all representations outside these Conditions. In no circumstances will any of these Conditions be varied unless agreed in writing by one or more of the directors of GTRAK.
These Conditions shall continue to apply not withstanding that the quantity of Equipment or Additional Equipment supplied, the Purchase Price, the Services, the Additional Services or any other terms of sale or payment differ from these originally quoted or provided in the Customer’s Order.
Each Customer’s Order shall be deemed to be an offer by the Customer to purchase the items detailed in the Customer’s Order subject to these Conditions. The Customer shall ensure that the terms of each Customer’s Order and the Specification provided are complete and accurate in all respects.
[A Customer’ Order shall not be deemed to be accepted by GTRAK until a written acknowledgement of Order (whether by fax, email or letter) is issued by GTRAK or (if earlier) GTRAK delivers the Equipment and (if applicable) the Additional Equipment.]
- DEFINITIONS AND INTERPRETATION
The following expressions have the meanings stated, unless the context otherwise requires:
“Additional Charges” the additional charges made from time to time by GTRAK for the Additional Equipment and the Additional Services or such other additional items as set out in these such other additional items as set out in these Conditions; “Additional Equipment” the additional equipment offered for sale by GTRAK at the Additional Charges which enhance the Equipment and/or the Services and includes the MDT, the Trailer Monitoring System, Driver ID, immobilisation and such other additional items as GTRAK may advertise for sale from time to time; “Additional Services” the additional services offered for sale by GTRAK at the Additional Charges which enhance the Equipment and/or the Services and includes the De-Fit and Re-Fit Services, the Backoffice and Application Integration, European Roaming and such other additional services as GTRAK may advertise for sale from time to time; “Antenna” a standard antenna supplied by GTRAK which forms part of the Equipment and is affixed to each of the Customer Vehicles; “Backoffice and Application Integration” the integration of the system data streams of GTRAK to the Customer’s back office systems carried out by the Preferred Installers in accordance with the Customer’s Specifications; “Cellular Network” the cellular network as from time to time appointed by GTRAK which receives the GPRS Data and transmits it to the GTRAK Server; “Certificate of Acceptance” the certificate provided by GTRAK which must be signed by the Customer demonstrating the Customer’s acceptance that the Equipment and the Additional Equipment (if any) has been satisfactorily installed and is satisfactorily connected to the GTRAK System following satisfactory Equipment Testing; “Claim” any claim or action brought against the Customer by a third party claiming an infringement of any Intellectual Property Rights as a result of the use or in relation to the Equipment, the Additional Equipment the Services and/or the Additional Services; “Conditions” these terms and conditions as from time to time amended or supplemented; “Contract” any contract between GTRAK and the Customer for the purchase and sale of Equipment, the Additional Equipment, the Services and the Additional Services as set out in the Customer Order and accepted by GTRAK incorporating these Conditions; “Customer” any person(s) , partnership, firm or company, or other organisation with whom GTRAK contracts and who agrees to be bound by these Conditions; “Customer’s Order” an order placed by the Customer, stating in writing the number of Units required, the location of the Customer Vehicles for the purposes of installation of the Equipment, all relevant contact details of the Customer, and the Additional Equipment and/or the Additional Services it wishes to purchase (if any); “Customer Vehicles” the Vehicles owned or used by the Customer and in which the Customer has chosen to have the Units installed; “De-fit and Re-fit” the de-fit and re-fit services offered by the GTRAK Preferred Installers or which can be taught upon the request of the Customer to the Customers own fitters; “Equipment” the necessary equipment required in order to operate the GTRAK System, namely the Unit, the SIM card and the Antenna; “Equipment Testing” any testing of the Equipment and any Additional Equipment to be undertaken by the Preferred Installer immediately following installation of the Equipment and (if applicable) the Additional Equipment; “European Roaming” the European roaming option offered for sale by GTRAK to those Customers where fleets travel to mainland Europe; “GTRAK Help Desk” GTRAK’s help desk which is open from 9.00 am to 5.30 pm, Monday to Friday for customers to contact in the event of a System Fault or a query in relation to the GTRAK System. The current telephone number for this service is 01924 675065; “GTRAK Server” GTRAK’s data server which receives GPRS Data via the Cellular Network and transmits the GPRS Data to the Customer’s computer in order to operate the GTRAK System; “GTRAK System” GTRAK’s GPRS fleet monitor and tracking technology system which live tracks a whole fleet of Customer Vehicles at the same time and displays each Customer Vehicles position on the Customer’s computer; “GPRS Data” data obtained by the Unit which illustrates the movements of the Customer Vehicles; “GPRS” Global Positioning and Reporting Systems; “Invoice” any invoice raised by GTRAK and issued to the Customer for the sale of the Equipment, the Additional Equipment (if any) the Services and the Additional Services (if any); “Intellectual Property Rights” all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application) including copyright, know-how, confidential information, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off; “Mapping and GPRS Software” the software licensed to GTRAK by a third party which is contained in the SIM Card and which translates the GPRS Data into live data; “Mapping Services” the provision by GTRAK of the Mapping and GPRS Software and access to the GTRAK Server; “Preferred Installer” any third party responsible for the installation of the Equipment and any Additional Equipment and the Equipment Testing appointed by GTRAK; “Purchase Price” the total price for the Equipment and the Services as set out in the Contract; “Purchase Term” the period of years of the contract commencing on and from the date of the Certificate of Acceptance; “RFID Trailer Monitoring System” is the GTRAK RFID Trailer Monitoring System which by use of an RFID tag attached to the trailer of each Customer Vehicle and a RFID reader attached to the tractor of each Customer Vehicle will in conjunction with the MDT advise the location of the trailer in transit and will register and report where a trailer was unhooked from the Customer Vehicle showing its last known position; “Services” the GTRAK Help Desk, Mapping Services, Software Updates and such other services GTRAK may offer during the Purchase Term for sale to the Customer and which are to be included in the Purchase Price; “Sim Cards” the cards provided by a third party chosen by GTRAK which are installed within each Unit and which enable the transmission of GPRS Data to the Cellular Network; “Software” all software procured or provided by GTRAK for the Customer including the Mapping and GRPS Software and any related software required to use the GTRAK System; “Software Updates” any modifications or updates in the Software from time to time provided by GTRAK and transmitted by the GTRAK Server to the Customer’s computer; “Specifications” any specifications for the Additional Equipment and/or the Additional Services provided by the Customer and used by GTRAK or its Preferred Installer at the Customer’s request; “Technical Support” support provided by GTRAK in respect of the use of the Equipment, the Additional Equipment, the Services and the Additional Services more particularly described in condition 10; and “Unit” each GTRAK vehicle tracking unit which is installed in each of the Customers Vehicles.
- sale of equipment and services
- GTRAK agrees to:
- sell the Equipment and (where ordered) any Additional Equipment to the Customer;
- provide or use all reasonable endeavours to procure the provision (where applicable) of the Services to the Customer; and
- provide or procure the provision of Technical Support to the Customer
upon these Conditions and in consideration of the payment of the Purchase Price and (where applicable) the Additional Charges by the Customer.
- description
- The quantity and description of the Equipment and any Additional Equipment shall be as set out in the Customer’s Order or the acknowledgement of order provided by GTRAK.
- All samples, drawings, descriptive matter, specifications, and advertising issued by GTRAK and any descriptions or illustrations contained in GTRAK’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Equipment and/or the Additional Equipment described in them. They shall not form part of the Contract and this is not a sale by sample.
- delivery
- Each delivery of Equipment and/or Additional Equipment constitutes a separate agreement to which these Conditions apply, except that failure or defect in any delivery will not entitle the Customer to repudiate any Contract nor to cancel any subsequent deliveries.
- GTRAK will use all reasonable endeavours to ensure delivery of the Equipment, the Additional Equipment (if any), the Services and the Additional Services on the delivery dates set out in the Customer’s Order, but delivery may be postponed or delayed by notice to the Customer in writing. All delivery dates are estimates only and time is not of the essence in relation to them.
- If required by GTRAK, the Customer will make the location where the Equipment and (if applicable) Additional Equipment is to be delivered available for inspection by appropriate GTRAK staff or the Preferred Installers at an agreed time for the period of 10 days before the day of delivery.
- Delivery will be made during normal working hours at the agreed location.
- If the Customer refuses or fails to take delivery of Equipment, the Additional Equipment and/or the Services or the Additional Services when they are ready for delivery or GTRAK is unable to deliver any of them on time because the Customer has not provided appropriate instructions, documents, licenses or authorisations, delivery is nevertheless deemed to have taken place for the purposes of GTRAK’s rights to payment, risk in the Equipment and the Additional Equipment will pass to the Customer, and GTRAK will be entitled to store the Equipment and the Additional Equipment at the Customer's risk and expense (to include all transportation, storage and insurance charges) or GTRAK may sell the Equipment, the Additional Equipment, the Services and for the Additional Services to a third party and charge to the Customer any shortfall below the Purchase Price and any reasonable costs of storage and sale.
- Save as provided in Condition 4.5 risk of loss or damage to the Equipment and the Additional Equipment will pass to Customer at the time of delivery.
- GTRAK will not be liable for non-delivery, shortages or damage to Equipment or Additional Equipment during transit unless the Customer notifies GTRAK of any claim for shortages or non-delivery within 2 days of the due date of delivery and for damaged Equipment or Additional Equipment and/or late delivery of Services or Additional Services within 7 days of the due date of delivery of the Equipment and Additional Equipment and/or the Services or the Additional Services or during the Equipment Testing period (as applicable).
- Any liability of GTRAK for non-delivery short delivery or damage during transit of the Equipment and the Additional Equipment will be limited to the assignment by GTRAK as far as it is legally able of the rights it may have against the carrier of the Equipment and the Additional Equipment. Any liability for the provision of late Services or Additional Services will be limited to replacing the Services or the Additional Services which have not been delivered on time within a reasonable time or, in the entire discretion of GTRAK, issuing a credit note against any Invoice raised for those services or Additional Services.
- Subject to the other provisions of these Conditions GTRAK shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss) costs, damages, charges or expenses caused directly or indirectly by any delay, shortage or damages during the delivery of the Equipment and the Additional Equipment and/or for the delivery of late Services or Additional Services (even if caused by GTRAK’s negligence), nor shall any delay entitle the Customer to terminate or rescind any unless such delay exceeds 180 days.
- the software, the SERVICES, and the specification
- The Customer acknowledges that it will be provided with a supply of SIM Cards to be inserted by the Preferred Installer into each Unit which will last for the period of the Purchase Term and which will provide a link to the Mapping and GPRS Software during this period.
- At the end of the Purchase Term, the Customer will have the option, subject to any further applicable terms and conditions of GTRAK to purchase further SIM Cards from GTRAK in order to operate the Unit.
- All Software supplied with the Equipment, the Additional Equipment, the Services, and/or the Additional Services together with any Software Updates is proprietary to GTRAK or to its third-party suppliers. If and only to the extent required the Customer requires a licence of the Software and/or the Software Updates, GTRAK grants the Customer a non-exclusive, royalty-free, non-transferable, revocable licence to use the Software and the Software Updates for the Purchase Term as far as it is legally able. Neither any such licence of the Software or the Software Updates may be assigned or transferred to any third parties.
- GTRAK reserves the right to make any changes in the Specification which are required to conform with any applicable safety or other statutory or E.U requirements or, where the changes do not materially affect the quality or performance of the Additional Equipment and/or the Additional Services.
- The Customer shall at its own expense provide all necessary documents, or other materials, and all necessary data or other information for the Specification within sufficient time to enable GTRAK to provide the Additional Equipment and/or the Additional Services.
- If any Additional Equipment is manufactured or modified or the Additional Services are provided in accordance with the Specification the Customer shall indemnify GTRAK against all losses, damages, costs, and expenses awarded against or incurred by GTRAK in connection with, or paid or agreed to be paid by GTRAK in settlement or any claim for infringement of any Intellectual Property Rights of any person which result’s from GTRAK’s use of the Specification.
- maintenance and licences
- If requested by the Customer, GTRAK through its Preferred Installer will provide maintenance services for the Equipment and the Additional Equipment during the Purchase Term (unless such other period is agreed with the Customer) at such costs to be agreed between the Customer, GTRAK and the Preferred Installer
- The Customer shall obtain and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the Services and the Additional Services, the installation of the Equipment and the Additional Equipment in so far as such licenses, consents and legislation relate to the Customer’s business, premises, staff and equipment in all cases before the date on which the Equipment and the Additional Equipment is to be installed and the Services and the Additional Services are to start.
- installation
- The Customer shall ensure that the environment conditions prescribed by GTRAK are present at the place of delivery before installation.
- Within agreed date of receipt of the Customer Order, GTRAK will use reasonable endeavours to procure that the Preferred Installer attends to the Customer’s Vehicles to install the Equipment and where applicable any Additional Equipment.
- GTRAK shall use all reasonable endeavours to procure that the Preferred Installer observes all health and safety rules and regulations that apply at any of the Customer’s premises and that have been communicated to it and the Preferred Installer in writing provided that it shall not be liable under the Contract if as a result of such observation GTRAK is in breach of its obligations under the Contract.
- Time for installation of the Equipment and/or the Additional Equipment is not of the essence of the Contract.
- Once installation of the Equipment and where applicable the Additional Equipment is complete, the Preferred Installer will perform the Equipment Testing and upon satisfactory conclusion of the Equipment Testing, the Customer will sign and date the Certificate of Acceptance.
- purchase price and additional charges
- The Purchase Price will include:
- the cost, delivery, and installation of the Equipment;
- the provision of the Services for the Purchase Term; and
- the provision of Technical Support in the Purchase Term.
- The Additional Equipment and the Additional Services are not included in the Purchase Price and will be subject to the Additional Charges applicable at the time of the Customer’s Order.
- The Purchase Price and the Additional Charges will not include value added tax which will be payable by the Customer in the manner and at the rate from time to time prescribed by law.
- Payment in full of the Purchase Price and the Additional Charges will be due within 28 days from the date of the Invoice.
- The time of payment will be of the essence of each Contract.
- GTRAK reserves the right to charge the Customer interest in respect of the late payment of any sum due to GTRAK (both before and after any judgement) at the rate of 3% per annum above the base rate from time to time of HSBC Bank Plc if payment is not received by GTRAK in accordance with Condition 4.
- Without prejudice to condition 8.5 GTRAK reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
- GTRAK is entitled, by giving notice to the Customer at any time, to increase the Purchase Price or the Additional Charges to reflect any increase in the cost to GTRAK which is due to any fact or beyond its control, such as (but not limited to) any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, or of the production of the Equipment or the Additional Equipment or other cost of manufacture, any change in delivery dates, quantities or the Specification requested by the Customer or any delay caused by any instructions of the Customer or failure of the Customer to give adequate or correct information or instructions or any other cause attributable to the Customer.
- Whenever a payment is overdue, GTRAK may, without prejudice to any other remedy, at any time, terminate or suspend the Services or the Additional Services or delivery of the Equipment or the Additional Equipment. GTRAK is entitled to charge the Customer a reasonable reconnection fee for reactivation of the Services or the Additional Services and/or storage and insurance for the Equipment or the Additional Equipment after any such suspension.
- All payments due from the Customer to GTRAK must be made in pounds sterling and in full, without set-off, deduction, counterclaim, discount, abatement or otherwise.
- If GTRAK becomes entitled to terminate all or any of the GTRAK Contracts for any reason, any sums then accrued due to GTRAK will become immediately due and payable in full.
- Title and risk
- Title to the Equipment and the Additional Equipment will not pass to the Customer until the payment of the Purchase Price and any Additional Charge has been received in full in cleared funds.
- Until the title has passed, the Customer will:
- maintain, store, and handle the Equipment and the Additional Equipment in all respects in accordance with GTRAK’s guidelines so as to prevent the loss, damage or deterioration of the Equipment and the Additional Equipment, keep the Equipment and the Additional Equipment insured on behalf of GTRAK for their full price against all risks to the satisfaction of GTRAK and on request shall produce the policy of insurance to GTRAK; and
- not be entitled to sell, transfer, lease, charge, assign, by way of security or otherwise deal in or encumber the Equipment and the Additional Equipment and/or the relationship between GTRAK and the Customer in respect of the Equipment and the Additional Equipment.
- Risk of damage to or loss of the Equipment and the Additional Equipment will pass to the Customer from the moment of installation of the Equipment and the Additional Equipment.
- Until the Equipment has been paid for in cleared funds in accordance with Condition 4, GTRAK will be entitled at any time to require that the Customer returns the Equipment and the Additional Equipment to GTRAK and if the Customer does not do so immediately, the Customer will give GTRAK free access to any Customer Vehicles or any site owned or occupied by the Customer to recover the Equipment and the Additional Equipment immediately.
- Prior to the transfer of ownership pursuant to this Condition 9 the Customer’s right to possession of the Equipment and the Additional Equipment shall terminate immediately if:
- the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
- the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between GTRAK and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
- the Customer encumbers or in any way charges any of the Customer.
- GTRAK shall be entitled to recover payment for the Equipment or the Additional Equipment notwithstanding that ownership of any of the Equipment or the Additional Equipment has not passed from GTRAK.
- The Customer grants GTRAK, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment or the Additional Equipment are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
- Where GTRAK is unable to determine whether any Equipment or Additional Equipment are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by GTRAK to the Customer in the order in which they were invoiced to the Customer.
- On termination of the Contract, howsoever caused, GTRAK’s (but not the Customer’s) rights contained in this condition 9 shall remain in effect.
- technical support
- With effect from the Certificate of Acceptance and for the period of the Purchase Term, provided the Customer has complied with its obligations under these Conditions GTRAK will, by itself or through its chosen representatives, or the Preferred installers provide the Customer with the Technical Support which will comprise the following:
- training on the use of the GTRAK System; and
- ongoing support by access to the GTRAK Help Desk.
- rescheduling a cancellation
- If the Customer cancels all or any part of an order, or requests changes to any delivery dates or to the specification before any delivery date or any requested alternative date, whichever to the later, the Customer agrees to pay GTRAK a cancellation or rescheduling charge to reflect the losses made by GTRAK as a result of the rescheduling or cancellation.
- The parties agree that the charges to be made pursuant to condition 1 are intended as liquidated damages and not as a penalty.
- WARRANTIES AND LIMITS OF LIABILITY
- Warranty (Equipment and Additional Equipment)
- GTRAK warrants that immediately following the Certificate of Satisfaction the Equipment and the Additional Equipment will, as far as reasonably possible, meet the Contract. GTRAK does not give any warranty or other term as to the quality, fitness for purpose or otherwise of the Equipment, or the Additional Equipment where manufactured by a third party but shall where legally possible assign to the Customer the benefit of any warranty, guarantee or indemnity given by such third party. During the Purchase Term GTRAK will, subject to Condition 12.1.2 and Condition 12.1.3, at its sole discretion use its reasonable endeavours to procure from the third party the repair or replacement any part of the Equipment or the Additional Equipment found to contain defects in workmanship or to request the issue of a credit note but shall have no further liability including where such repair or replacement incurs Additional Charges as a result of such claim being outside any warranty period of the third party.
- GTRAK shall not be liable for a breach of the warranty in Condition 12.1.1 unless:
(i) the Customer gives written notice of the defect within 7 days of when the Customer discovered or ought to have discovered the defect or within the Equipment Testing period if the Customer was aware of it then; and
(ii) GTRAK or its third-party representative is given a reasonable opportunity after receiving such notice of examining the Equipment or the Additional Equipment.
- GTRAK’s obligations under this Condition 12.1 do not apply to maintenance, repair or replacement necessitated in whole or in part by: catastrophe or accident; wilful default, recklessness or negligence on the part of the Customer; unusual stress; power failure, or failure to maintain the prescribed environmental conditions at the installation site, the Customer altering, amending, changing or repairing the Equipment or the Additional Equipment or appointing a third party to do so, the Customer failing to follow the oral or written instructions of GTRAK or the Preferred Installer as to the storage, installation, commissioning, use or maintenance of the Equipment or the Additional Equipment or, the Customer whether by itself or through any other party combining the Equipment or the Additional Equipment with other products not supplied by GTRAK (unless it can be proven to the reasonable satisfaction of GTRAK that the defect is contained in the Equipment and the Additional Equipment) or the Customer making further use of the Equipment and the Additional Equipment after notifying GTRAK of the defect, or the defect arises as a result of incorrect, inaccurate or incomplete information being provided by the Customer for the Specification, or the Customer has not paid in full, in cleared funds, the Purchase Price and/or the Additional Charges.
- This Condition 1 contains the sole warranty, express or implied, statutory or otherwise, relating to the Equipment or the Additional Equipment and to the consumable parts. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are to the fullest extent permitted by law excluded from these Conditions.
- Warranty (Services and Additional Services)
- GTRAK warrants that the Services and Additional Services will be carried out by qualified personnel, using reasonable care and skill, and applying as far as GTRAK is reasonably able up to date techniques.
- The Customer shall not use the Services or the Additional Services for any “unauthorised purposes” or in such a manner as to interfere with use by other customers of the GTRAK System. For the purposes of this Condition 12.2.2 “unauthorised purposes” means
(i) use with intent to avoid payment of the Purchase Price or the Additional Charges;
(ii) access to, use of, alteration of, or destruction of the data files, programs, procedures or information of the Customer or any other Customer of GTRAK;
(iii) use with the intent to reverse engineer or clone the GTRAK System; or
(iv) use for any illegal or fraudulent purpose
- Any use for such “unauthorised purposes” may result, without thereby incurring a breach of the warranties in this Condition 12, in the discontinuation of the Services until such time as the unauthorised purposes cease.
- Warranty (Software, Software Updates, GTRAK Server)
- GTRAK warrants that during the Purchase Term the Software, the Software Update and the GTRAK System will be free from material defects or errors and capable of performance in accordance with the Contract in relation to the provision of the Services.
- If during the Purchase Term the Customer discovers a material defect or error in the Software, the Software Updates or the GTRAK Server it must notify GTRAK within 7 days of such defect coming to its attention in writing and GTRAK will use all reasonable endeavours to correct the defect or errors, provided that:
- the Customer can repeat the defect or error;
- the Software, the Software Updates or the GTRAK System have not been subjected to any misapplication, misuse, modification, improper use with other software, damage, or negligence by the Customer or a third party;
- the Customer has not modified the Equipment, or the Additional Equipment, the Services and the Additional Services or merged them (in whole or in part) with any other Equipment or Software;
- A technical fault of the Customer’s internet connection or the Customer’s computer did not cause it;
- A fault of the Cellular Network did not cause it howsoever arising;
- it was not as a result of the failure by the Customer to implement recommendations in respect of or solutions to defects or errors previously advised by GTRAK or the Preferred Installer;
- it does not arise as a result of any repair, adjustment, alteration or modification of the Equipment, the Additional Equipment or the Services or the Additional Services by any person other than the Preferred Installer or GTRAK without GTRAK’s prior written consent; or
- it does not arise as a result of the Customer’s failure to install the Software Updates;
- it is not caused using the Software, Software Updates or the GTRAK System by the Customer for purposes for which they were not designed.
- It is acknowledged by the parties that the rectification of any defect or error may require downtime of the GTRAK Server and hence GTRAK shall not be liable to the Customer in these circumstances.
- For the avoidance of doubt the warranty in this Condition 12.3 does not extend to provide that the operation of the Software, Software Updates or the GTRAK System will be error free or where errors are detected they can be corrected.
- GTRAK may, at its discretion, upon request by the Customer, attempt to rectify the error or defect notwithstanding that this results from any of the circumstances described in clause 12.3.2 above. In such circumstances, GTRAK will be entitled to levy Additional Charges.
- If during the term of contract agreed ‘GTRAK LTD’ should cease to operate and the service becomes discontinued a copy of the software with no guarantees and all communication data will be provided to the customer.
- Cellular Network
- GTRAK makes no warranty as to the service or airtime provided by the Cellular Network and GTRAK shall not be liable for any delay or failure in the provision of the services or for any downtime of the GTRAK Server arising solely as a result of any defect in the Cellular Network.
- Title
- GTRAK does not warrant that it has good title to or right to supply the Equipment, the Additional Equipment and/or Services and/or the Additional Services.
- Limitations
- These Conditions contain the sole warranty, express or implied, statutory, or otherwise, relating to the Services and Additional Services and all other warranties as set out in Condition 1.4 above are excluded.
- Subject to the above the following provisions set out the entire financial liability of GTRAK (including any liability for the acts or omissions of its employees, agents, Preferred Installers, and sub-contractors) to the Customer in respect of:
- any breach of these Conditions or the GTRAK Contracts;
- any use made by the Customer of any of the Equipment, the Additional Equipment and/or the Services and/or the Additional Services or for any products incorporating any of the Equipment, or the Additional Equipment; and
- any representation, statement or tortious act or omission including negligence arising under or in connection with these Conditions or the GTRAK Contract.
- Nothing in these Conditions excludes or limits the liability of GTRAK:
- for death or personal injury caused by GTRAK’s negligence; or
- under section 2(3), Consumer Protection Act 1987; or
- for any matter which it would be illegal for GTRAK to exclude or attempt to exclude its liability; or
- for fraud or fraudulent misrepresentation.
- Subject to Conditions 7 and 12.8 :
- GTRAK’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restriction or otherwise, arising in connection with the performance or contemplated performance of any Contract shall be limited to the Purchase Price and any Additional Charges and
- GTRAK shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill, loss of anticipated savings, loss of goods, loss on contract, loss of use, loss or corruption of data or information or otherwise, in each case whether direct, indirect, special, or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with any Contract.
- INDEMNITIES
- The Customer has accepted these Conditions in the knowledge that GTRAK’s liability is limited and that the Purchase Price and Additional Charges have been calculated accordingly.
- Without prejudice to Condition 13.3 the Customer will indemnify and keep indemnified GTRAK and its employees, agents and Preferred Installers against any liability, claim, loss, damage, cost, or expense of any kind caused directly or indirectly, by any negligent act or omission by the Customer, or by any claims arising from a breach of these Conditions or any Contract by the Customer.
- The Customer will indemnify and keep indemnified GTRAK against any costs, fines or expenses incurred by GTRAK as a result of connection of any Equipment, Additional Equipment and/or the Services or the Additional Services to apparatus of any telecommunications utility supplier in breach of any statutory regulations except where such costs, fines or expenses are incurred as a result of the wilful default or negligence of GTRAK.
- The Customer agrees to comply with any additional third-party software conditions notified to it on or before delivery of any third-party Software and will indemnify and keep indemnified GTRAK against all costs, charges, losses, and expenses it suffers or incurs as a result of any claims by a third-party software owner as a result of any breach by the Customer of these Conditions or the conditions of the third-party Software owner notified to it from time to time.
- For the avoidance of doubt all liabilities, claims, losses, damages, costs, and expenses set out in this condition 13 shall include all consequential losses, loss of profit, loss of reputation and/or damage to property.
- INTELLECTUAL PROPERTY RIGHTS INDEMNITY
- All Intellectual Property Rights in the Software, the Software Updates, the GTRAK Server and the GTRAK System shall be owned by GTRAK.
- GTRAK will, in its discretion, at its own expense, defend or, at its option, settle any Claim. Subject to the other provisions of this condition, GTRAK will pay any final judgment entered against the Customer with respect to a Claim provided that the Customer:
- notifies GTRAK of the Claim immediately on becoming aware of it;
- grants sole control of the defence of the Claim to GTRAK or its nominee; and
- gives GTRAK complete and accurate information and full assistance to enable GTRAK to settle or defend the Claim.
- If any part of the Equipment, the Additional Equipment and/or Services or the Additional Services becomes the subject of a Claim, or if a Court judgment is made that the Equipment, the Additional Equipment and/or Services or the Additional Services do infringe, or if the use or licensing of any part of the Equipment, the Additional Equipment and/or Services or the Additional Services is restricted, GTRAK at its option and expense may:
- obtain for the Customer the rights necessary to continue to use the Equipment, the Additional Equipment and/or Services or the Additional Services; or
- replace or modify the Equipment, the Additional Equipment and/or Services or the Additional Services so that they become non-infringing; or
- if the use of the Equipment, the Additional Equipment and/or Services or the Additional Services is prevented by permanent injunction, then accept their return and refund to the Customer an amount equal to the sum paid by the Customer for the Equipment, the Additional Equipment and/or Services or the Additional Services, [subject to straight line depreciation over a 5-year period].
- GTRAK will have no liability under this Condition 14:
- for any infringement arising from the combination of Equipment, the Additional Equipment, the Services, or the Additional Services with other products not supplied by GTRAK; nor for
- the consequences of any modification of the Equipment, the Additional Equipment, the Services, or the Additional Services unless the modification was made or approved expressly by GTRAK in writing; nor for
- anything arising out of the supply of any information, data, service, or applications assistance to the Customer.
- In no circumstances will GTRAK be liable for any costs or expenses incurred by the Customer without GTRAK authorisation in writing.
- To the extent permitted by law this Condition 14 contains the only remedies of the Customer in respect of any Intellectual Property Right infringement by the Equipment, the Additional Equipment, the Services, and/or the Additional Services.
- force majeure
- GTRAK reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Equipment, Additional Equipment, Services or Additional Services ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of GTRAK including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of [NUMBER] days, the Customer shall be entitled to give notice in writing to GTRAK to terminate the Contract.
- ASSIGNMENT AND SUB-CONTRACTING
- GTRAK is entitled to sub-contract the performance of any of its obligations under any Contract and to assign all or any of its rights and obligations under any Contract.
- These Conditions and the rights granted to the Customer under any Contract are personal to the Customer, and the Customer is not entitled to transfer or in any way make over to any third party (including any subsidiary or holding company of Customer or a subsidiary of such holding company within the meanings respectively ascribed to them by Section 736 of the Companies Act 1985) any of Customer’s rights and obligations under these Conditions, nor to sub-contract or otherwise delegate the performance of any of Customer’s obligations under these Conditions.
- confidentiality
- The Customer shall keep in strictconfidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by GTRAK, its employees, agents, Preferred Installers, or sub-contractors and any other confidential information concerning GTRAK's business or its Software, the GTRAK Server, the GTRAK System or its products which the Customer may obtain.The Customer shall restrict disclosure of such confidential material to such of its employee, agents or sub-contractors as need to know the same for the purpose of discharging the Customers' obligations to GTRAK, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
- termination
- Subject to condition 18.3 the Contract shall terminate subject to and in accordance with this Condition 18.
- Without prejudice to any other rights or remedies which the parties may have, GTRAK may terminate the Contract without liability to the Customer on giving the other not less than 1 months written notice or immediately on giving notice to the Customer] if:
- the Customer commits a material breachof any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of the Customer being notified in writing of the breach; or
- an order is made or a resolution is passed for the winding up of the Customer, or circumstances arise which entitle a court of competent jurisdiction to make a winding -up order of the Customer ; or
- an order is made for the appointment of an administrator to manage the affairs,business and property of the Customer, or documents are filed with a court of competent jurisdiction for the appointment of an administratorof the Customer, or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder ( as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986; or
- a receiver is appointed of any of the Customer's assets or undertaking or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Customers, or if any other person takes possession of or sells the Customer's assets; or
- the Customer makes an arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
- the Customer ceases, or threatens to cease, to trade; or
- there is a change of control of the Customer (as defined in section 574 of the Capital Allowances Act 2001); or
- the Customer takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
- On termination of the Contract for any reason:
- the Customer shall immediately pay to GTRAK all of GTRAK’s outstanding Invoices and interest and, in respect of Equipment, the Additional Equipment, Services and Additional Services supplied but for which no Invoice has been submitted, GTRAK may submit an Invoice, which shall be payable immediately on receipt;
- the Customer shall within a reasonable time, return all of GTRAK's Equipment and Additional Equipment where title has not transferred.If the Customer fails to do so, then GTRAK may enter the Customer's premises and take possession of them.Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
- the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving the termination, shall not be affected.
- general
- Each right or remedy of GTRAK under the Contract is without prejudice to any other right or remedy of GTRAK whether under the Contract or not.
- If any provision of the Contract is found by any court, tribunal, or administrative body of competent authority to be wholly or partly illegal, invalid, void, voidable, unenforceable, or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
- Failure or delay by GTRAK in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
- Any waiver by GTRAK of any breach of or, any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
- The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
- The formation, existence, construction, performance, validity, and all aspects of the Contract shall be governed by English Law and the parties submit to the exclusive authority of the English courts.
- communications
- All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first-class post or sent by fax:
- (in case of communications to GTRAK) to its registered office or such changed address as shall be notified to the Customer by GTRAK; or
- (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to GTRAK by the Customer.
- Communications shall be deemed to have been received:
- if sent by pre-paid first-class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
- if delivered by hand, on the day of delivery; or
- if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
- Communications addressed to GTRAK shall be marked for the attention of Mr. Tom Smith, GTRAK Ltd, Unit 3E, The Gateway, Silkwood Park, Ossett, Wakefield, WF5 9TJ.
