Terms and Conditions (Purchase)

TRAKM8 SWIFT USER LICENCE AGREEMENT

(United Kingdom excluding Northern Ireland)

IMPORTANT NOTICES TO THE CUSTOMER

The terms and conditions of this Licence Agreement apply to the entire contents including related software applications of the Trakm8 SWIFT website under the domain name http://asp.trakm8.net/swift and to any correspondence by e-mail between Trakm8 and the Customer (both as defined below). Please read these terms carefully before using the Trakm8 website. By utilising the Trakm8 SWIFT website and the Trakm8 Hardware unit you accept the terms of this Agreement. The Trakm8 website cannot be accessed by the Customer until the Customer has agreed to the terms and conditions in this Licence Agreement.

THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITIONS 1.25 to 1.28.

Under the provisions of the Distance Selling Regulations you may have a statutory right to cancel your order, without incurring any liability for a period of 7 working days from the date that your order is accepted, or up until the point that you provide the vehicle and agree to the installation of the Trakm8 SWIFT hardware, whichever is the soonest. To cancel your order under these provisions you must be a consumer and have purchased the unit and service over the telephone, e-mail or through any other non ‘face to face’ method. Cancellation can be notified by telephone, e-mail, facsimile or letter to the supplying Trakm8 accredited dealer.

Where the Trakm8 SWIFT hardware unit is to be installed in a company vehicle, all employees or other individuals who are authorised to drive that vehicle should be advised that a tracking unit is installed, in order to limit any potential risk of privacy and employment law issues. It is strongly recommended that evidential proof of this advice be sought and retained.

THIS LICENCE AGREEMENT is made on the Installation Date between

Trakm8 Limited, a company incorporated and registered in England and Wales with company number 04415597 whose registered office is at Lydden House, Wincombe Business Park, Shaftesbury, Dorset SP7 9QJ ("Trakm8"); and
The Customer - the person or legal entity purchasing the Trakm8 SWIFT offering ("Customer").

DEFINITIONS AND INTERPRETATION

1.1 In this Licence Agreement the following terms shall have the following meanings:

"Data Protection Act" the Data Protection Act 1998 and any amendments or re-enactments thereto;

"Installation Date" the date upon which the Customer's Trakm8 Swift Hardware Unit is fully and effectively configured with the Trakm8 system such that Trakm8 is capable of receiving and processing data from the Trakm8 Swift Hardware Unit in accordance with the Specification.

"Intellectual Property Rights" all and/or any intellectual property rights of whatever nature and howsoever arising including without limitation all and/or any copyrights and database rights, all other similar or equivalent intellectual or commercial rights or property subsisting under the laws of each and every jurisdiction throughout the world whether registered or not, and whether vested, contingent or future and all reversions, renewals, revivals and extensions of any of the foregoing, and all rights under licences, consents, orders, statutes or otherwise in relation to any of the foregoing;

"Licence Fee" the element of the Trakm8 SWIFT sales price payable for use of the rights granted to the Customer under this Licence Agreement in respect of the Initial Term.

"Personal Data" any data or information which relates to an individual and, to the extent that the Data Protection Act applies to such data or information, any data or information which relates to an organisation including a corporate entity;

"Purpose" viewing and downloading telematic data in relation to the Customer vehicle in which the Customer’s Trakm8 Swift Hardware Unit is installed;

"Renewal Fee" such fee as may be notified by Trakm8 to the Customer relating to the renewal of this Licence Agreement pursuant to clause 1.30;

"Renewal Period" shall have the meaning set out in clause 10.1;

"Specification" the specification relating to the Trakm8 Swift Hardware Unit which describes the facilities, functions and performance of the same in connection with the Trakm8 system as set out in Trakm8 SWIFT User Manual as supplied from time to time;

"Swift Data Reports" visual and other representations of telematic data accessible through the access to the Website;

"Swift Hardware Unit" means the Trakm8 Swift telematics hardware unit purchased by the Customer under a Trakm8 swift hardware sale agreement between the Customer and Trakm8;

"Term" the term as determined pursuant to clause 1.29;

"Website" the content (including all and any displayed materials and graphics such as databases, maps, photographs, and other images) of the website under the domain name http://asp.trakm8.net/swift which shall contain the Trakm8 Swift Data Reports.

1.2 References to clauses are to the clauses to this Licence Agreement.

1.3 Headings are for convenience only and shall be ignored in interpreting this Licence Agreement.

1.4 References to statutory provisions shall be construed as references to those provisions as amended, consolidated, extended or re-enacted from time to time.

1.5 A reference to the singular shall include the plural and vice versa. References to the word "include" or "including" are to be construed without limitation.

GRANT OF LICENCE

1.6 Subject to and in accordance with the provisions of this Licence Agreement, Trakm8 hereby grants to the Customer for the duration of the Term a personal, non-exclusive right to:

1.6.1 access and browse the contents of the Website; and

1.6.2 download and print Trakm8 Swift Data Reports or any part thereof from the Website on the following basis:

save for the Trakm8 Swift Data Reports required for the Purpose, the Customer shall not copy, modify, publish, transmit, transfer, sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit the whole or any part of the Website or any associated or underlying software in connection with the Website;

no graphics on the Website shall be used separately from the corresponding text; and

the Customer shall not utilise Trakm8's trademarks or trade names in any way without the express written consent of Trakm8 save that the Customer shall ensure that Trakm8's copyright and trade mark notices appear in all copies.

1.7 The Customer shall comply with any reasonable instructions or conditions relating to its use of the Website as may be posted on the Website or otherwise communicated to the Customer from time to time by Trakm8.

1.8 The Customer acknowledges and agrees that any and all Intellectual Property Rights subsisting in the Website and any copies, downloads or modifications of or to extracts or other materials from the Website and any associated or underlying software in connection with the Website are owned by Trakm8 or its licensors and the Customer shall not be entitled to any proprietary rights of any kind in respect of these.

1.9 Subject to clause 1.6 no part of the Website may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service without the Trakm8's prior written permission.

1.10 Any rights not expressly granted under this clause 1 are reserved to Trakm8.

TRAKM8 OBLIGATIONS

1.11 In consideration for the Licence Fee, Trakm8 shall no later than the Installation Date supply the Customer with a unique, personalised user name and password to enable the Customer to access the Website. The Customer agrees that responsibility for the security of any user name or password issued pursuant to this clause 1.11 rests with the Customer.

1.12 Subject to this agreement, from the Installation Date Trakm8 shall make the ‘Service’, the Trakm8 Swift Data Reports in respect of any data received from the Customer's Trakm8 Swift Hardware Unit available on the Website. The Trakm8 Swift Data Reports shall be available on the Website for no less than 70 days from the date of collection by Trakm8 of the data to which such reports relate.

SECURITY

1.13 The Customer shall not, nor permit any third party to:

1.13.1 post or transmit to the Website any material:

that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may cause annoyance or inconvenience;

for which the Customer has not obtained all necessary licences and/or approvals;

which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in any country in the world; or

which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, spiders, harmful components, corrupted data or other malicious software or harmful data).

1.13.2 misuse or violate any aspect of the Website or any associated or underlying software including, without limitation by:

hacking or attempting to probe, scan or test the vulnerability of a system or network or to deliberately breach security or authentication measures;

attempting to interfere with a service to any user, host or network including by means of 'overloading', 'flooding', 'mail bombing' or 'crashing'; and

forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.

1.13.3 save as permitted under this Licence Agreement and to the extent that such actions may be prohibited by law, attempt to modify, reverse engineer, compile or decompile, disassemble any associated or underlying software in connection with the Website nor shall it amalgamate, amend, incorporate, modify, reproduce, translate or otherwise alter the same into or with any other software or use the same in conjunction with other software.

1.13.4 the Customer shall fully co-operate with any law enforcement authorities or court order requesting or directing the Customer to disclose the identity or locate anyone breaching any obligations in this clause 1.13.

LINKS WITH OTHER WEBSITES

1.14 The Customer acknowledges and agrees that links to third party websites on the Website (where provided) are provided solely for your convenience. If you use these links, you leave the Website. Trakm8 has not reviewed all of these third party websites and does not control and is not responsible for these websites or their content or availability. Trakm8 therefore does not endorse or make any representations about them, or any material found there, or any results that may be obtained from using them. If the Customer (or its permitted employees) decides to access any of the third party websites linked to the Website, it does so entirely at its own risk.

SERVICE AVAILABILITY

1.15 The Customer acknowledges and agrees that:

1.15.1 the availability of the Website (or relevant parts thereof) is dependent upon systems, technologies and other factors which are beyond Trakm8's control including but not limited to mobile communication networks, Global Positioning System technologies (GPS) and General Packet Radio Service technologies (GPRS) operated by third party providers and the Internet and interconnected systems;

1.15.2 due to the nature of such technologies, systems and other factors, problems including but not limited to, outages, link failures, power difficulties, network overloads, signal degradation and topographic, electromagnetic and other interferences and government intervention may have an adverse effect on the availability of the Website;

1.15.3 while Trakm8 endeavours to ensure that the Website is normally available 24 hours a day and to mitigate where possible the adverse effects of the problems referred to in clause 1.15.2, Trakm8 shall not be liable in any way for loss(es) suffered as a result of any such problems or if for any other reason the Website or any part thereof is unavailable to the Customer at any time or for any period and access to the Website may be suspended temporarily and without notice as a result of such problems or for any other reasons beyond the Trakm8's control.

1.16 The Customer acknowledges and agrees that while Trakm8 endeavours to ensure that the information on the Website is correct and free from technical, typographical or other inaccuracies, Trakm8 does not warrant the accuracy and completeness of the material on the Website and in particular in relation to the Trakm8 Swift Data Reports, data transmitted from the relevant Trakm8 Swift Hardware Unit may be compromised, lost or corrupted in transmission due to factors beyond Trakm8's control (including but not limited to failures in mobile, GPS and GPRS technologies operated by third parties). Trakm8 does not warrant that the material on the Website is current or "real time" and the Customer acknowledges that it may be out of date and that Trakm8 makes no commitment to update such material.

1.17 The material on the Website is provided "as is", without any conditions, warranties or other terms of any kind. Accordingly, to the maximum extent permitted by law, Trakm8 provides the Customer with the Website on the basis that Trakm8 excludes all representations, warranties, conditions and other terms (including, without limitation, the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill) which, but for this Licence Agreement, might have effect in relation to the Website

1.18 Trakm8 shall have the right at any time:

1.18.1 temporarily to suspend access to the Website without notice for the purposes of maintaining or repairing the Website or any part thereof; and

1.18.2 to make changes to the functionality, presentation, features, modes of access and material content in relation to the Website at any time without notice to the Customer.

PAYMENT

1.19 In consideration for the grant of the licence under clause 1.6, the Customer shall pay to Trakm8 the Licence Fee in accordance with Trakm8's notified payment instructions on or before order acceptance by Trakm8 for the Trakm8 Swift Hardware Unit.

1.20 The Customer shall pay to Trakm8 any Renewal Fee in accordance clause 1.30 in order to continue Service provision beyond the Initial Term or subsequent Renewal Period.

1.21 Unless otherwise notified by Trakm8, sums payable under this Licence Agreement are exclusive of any value added tax or other applicable sales tax.

DATA PROTECTION

1.22 Subject to clause 1.24, the Customer agrees and acknowledges that it is the data controller (as defined by the Data Protection Act) of all Personal Data processed by Trakm8 for the purpose of making theTrakm8 Swift Data Reports available to the Customer in accordance with this Licence Agreement and the Customer will comply with the Data Protection Act in respect of such data including but not limited ensuring the fair processing requirements of the Data Protection Act are met, for example, by informing data subjects (as defined by the Data Protection Act) of the manner in which and the purposes for which such data may be processed by and on behalf of the Customer and satisfying itself that Trakm8's processing of such data in accordance with the Customer's instructions will not breach the Data Protection Act, for example by ensuring that a relevant condition for processing set out in the Data Protection Act has been met or that an exemption applies.

1.23 Where Trakm8 processes Personal Data as the Customer's data processor (as defined by the Data Protection Act) Trakm8 agrees to act on the Customer's instructions in relation to such data and provide an adequate level of security in respect of such data.

1.24 The Customer acknowledges and agrees that Trakm8 shall be entitled to use and deal with telematic data received from the Customer for the purpose of supplying such data to; commercial entities, government agencies and local authorities for traffic and highway management purposes, in an anonymised form and solely in relation to such use Trakm8 shall be the data controller (as defined by the Data Protection Act) of any Personal Data processed in accordance with this clause 1.24.

LIABILITY AND INDEMNITIES

1.25 Subject to clause 1.26 Trakm8 (whether or not involved in creating, producing, maintaining or delivering the Website), and any of Trakm8's group companies and the officers, directors, employees, shareholders or agents of any of them, exclude all liability and responsibility for any amount or kind of loss or damage that may result to the Customer or a third party (including without limitation, any direct, indirect, punitive or consequential loss or damages, or any loss of income, profits, goodwill, data, contracts, use of money, or loss or damages arising from or connected in any way to business interruption, and whether in tort (including without limitation negligence), contract or otherwise) in connection with the Website in any way or in connection with the use, inability to use or the results of use of the Website, any websites linked to the Website or the material on such websites, including but not limited to loss or damage due to viruses that may infect your computer equipment, software, data or other property on account of the Customer's access to, use of, or browsing the Website or the Customer downloading of any software or other material from the Website or any websites linked to the Website.

1.26 Nothing in this Licence Agreement shall exclude or limit the Trakm8's liability for:

1.26.1 death or personal injury caused by negligence as such term is defined by the Unfair Contract Terms Act 1977

1.26.2 fraud;

1.26.3 misrepresentation as to a fundamental matter; or

1.26.4 any liability which cannot be excluded or limited under applicable law.

1.27 If the Customer's use of material on the Website results in the need for servicing, repair or correction of equipment, software or data, the Customer shall assume all costs thereof.

1.28 The Customer agrees to indemnify Trakm8 and keep it fully indemnified from and against any and all costs, damages, losses, liabilities and expenses (including without limitation any legal fees and expenses) which may be suffered or incurred by Trakm8 arising out of or in connection with any breach by the Customer of its obligations under this Licence Agreement.

TERM AND TERMINATION

1.29 This Licence Agreement shall commence on the Installation Date and continue for a period of 12 months ("Initial Term") unless terminated earlier pursuant to clauses, 1.31 and 1.32 or unless terminated by the Customer with the express agreement of Trakm8. Following the Initial Term the Licence Agreement may be renewed for successive 12 month periods (each of which shall be a "Renewal Period") in accordance with clause 1.30.

1.30 Within 30 days prior to the expiry of the Initial Term (or as the case may be, each subsequent Renewal Period) the Customer may notify Trakm8 in writing that it wishes to renew the Licence Agreement for the Renewal Period. Where such request for renewal is accepted by Trakm8 and provided that the Customer pays to Trakm8 the Renewal Fee in accordance with Trakm8's notified payment instructions the Licence Agreement shall renew for the Renewal Period with effect from the date of expiry of the Initial Term (or as the case may the previous Renewal Period).

1.31 Trakm8 shall have the right to terminate this Licence Agreement by notice with immediate effect if the Customer commits any breach of this licence which is material and not capable of remedy, or which is capable of remedy but which is not remedied within 7 days of notice from Trakm8 to do so.

1.32 Termination of this Licence Agreement however caused shall be without prejudice to any rights or liabilities of the parties accrued as at the date of termination.

EFFECTS OF TERMINATION

1.33 On termination or expiry of this Licence Agreement for any reason:

1.34 the Customer shall at Trakm8's direction immediately return or destroy any downloaded or printed extracts from the Website including any copies of the whole or any part of the Trakm8 Swift Data Reports; and

1.35 the licence granted hereunder shall immediately cease.

GENERAL

1.36 This Licence Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations and discussions between the parties relating to it.

1.37 Each right or remedy either party under this Licence Agreement is without prejudice to any other right or remedy of that party whether under the Licence Agreement or not.

1.38 If any provision of the Licence Agreement is found by any court, tribunal or administrative body of competent jurisdiction 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 Licence Agreement and the remainder of such provision shall continue in full force and effect.

1.39 This Licence Agreement is personal to the Customer and the Customer shall not sub-contract, assign, transfer or otherwise dispose of any of its rights or obligations under this Agreement except with prior written consent of Trakm8. Trakm8 may sub-contract, assign, transfer or otherwise dispose of its rights or obligations under this Agreement provided that the current Specification of the Service provision is maintained.

1.40 No amendment, variation or modification of this Licence Agreement shall be effective unless it is in writing and signed by a duly authorised representative of each party.

1.41 Failure or delay by a party in enforcing or partially enforcing any provision of the Licence Agreement will not be construed as a waiver of any of its rights under the Licence Agreement.

1.42 Any waiver by A party of any breach of, or any default under, any provision of the Licence Agreement by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Licence Agreement.

1.43 The parties to this Licence Agreement do not intend that any term of this Licence Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

1.44 The formation, existence, construction, performance, validity and all aspects of the Licence Agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

CONTRACT OF SALE FOR TRAKM8 SWIFT HARDWARE UNIT
(Not applicable to Leasing arrangements – see Lease Provider Agreement)

IMPORTANT NOTICE TO THE CUSTOMER

Trakm8 SWIFT functionality is dependent upon mobile network coverage and availability along with availability of the Global Positioning System (GPS). The Trakm8 SWIFT hardware unit will not operate without a Subscriber Identity Module (SIM) card and airtime provision. The following airtime providers are available: T-Mobile, or Vodafone or O2. The Customer (defined below) is advised not to purchase the Trakm8 SWIFT goods and services from Trakm8 (defined below) without first checking the geographical coverage of the available airtime providers.

Use of the Trakm8 SWIFT functionality is dependent upon accessing the Trakm8 SWIFT web site and all necessary hardware, software and Internet service provider charges necessary for web access are NOT INCLUDED in the purchase pricing for the Trakm8 SWIFT goods and services. In order to use the Trakm8 SWIFT functionality, the Customer is required to purchase the relevant hardware unit under the terms and conditions set out herein as well as to enter into a separate user licence agreement for access to the Trakm8 SWIFT website and associated web application.

Installation of the Trakm8 SWIFT hardware unit will be carried out by a third party installation service provider. Where installation is arranged by Trakm8 the services are provided under these terms and conditions. Otherwise, arranged installation services will be under separate terms and conditions between the Customer and such service provider.

The Customer should note that data from the Customer's Trakm8 Swift hardware unit will continue to be transmitted to Trakm8 SWIFT servers even where the Customer selects the 'private' mode on the relevant hardware unit.

By purchasing and arranging the installation of the Trakm8 Hardware unit you agree to the conditions of this Contract for Sale.

The Customer's attention is in particular drawn to the provisions of Condition 11

INTERPRETATION

In these conditions:

2.1 the following words shall have the following meanings:

‘Customer’: the person(s), firm or company which purchases the Goods from Trakm8;

‘Contract’: any contract between Trakm8 and the Customer for the sale and purchase of the Goods incorporating these terms and conditions;

‘Goods’: the Trakm8 SWIFT hardware unit to be supplied to the Customer by Trakm8 (including any part or parts thereof) as more particularly described in the Specification;

‘Installation’: fitting of the Goods into a Customer vehicle;

'Installer': the person(s), firm or company responsible for the installation of the Goods on the relevant Customer vehicle(s);

'Specification': the specification of the Goods which describes the facilities, functions and performance of the Goods as set out in the Trakm8 SWIFT marketing documentation;

'Trakm8': Trakm8 Limited a company incorporated and registered in England and Wales with company number 0441597 whose registered office is at Lydden House, Wincombe Business Park, Shaftesbury, Dorset SP7 9UJ.

2.2 references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced and includes any subordinate legislation for the time being in force under it.

2.3 references to the masculine include the feminine and the neuter and references to the singular include the plural and vice versa as the context admits or requires.

2.4 headings will not affect the construction of these conditions.

APPLICATION OF TERMS
DESCRIPTION
DELIVERY & INSTALLATION
NON-DELIVERY
RISK/TITLE
PRICE
PAYMENT
QUALITY
LIMITATION OF LIABILITY
ASSIGNMENT
FORCE MAJEURE
GENERAL
NOTICES

3.1 Subject to any variation under condition 3.3 the Contract will be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order or other document).

3.2 No terms or conditions endorsed upon, delivered with or contained in the Customer’s purchase order, confirmation of order or other document will form part of the Contract unless agreed by Trakm8 in writing.

3.3 These conditions apply to all Trakm8’s sales of the Goods and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of Trakm8. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Trakm8 which is not set out in the Contract. Nothing in this condition will exclude or limit Trakm8’s liability for fraudulent misrepresentation.

3.4 Each order for Goods by the Customer from Trakm8 shall be deemed to be an offer by the Customer to purchase Goods subject to these conditions.

3.5 No order placed by the Customer shall be deemed to be accepted by Trakm8 until Trakm8 or its authorised sales representative issues an acknowledgement of the order in writing (including by email) to the Customer or (if earlier), Trakm8 delivers the Goods to the Customer or its nominated third party pursuant to condition 5.1.

3.6 For the avoidance of doubt, each order for Goods under condition 3.4 that is accepted by Trakm8 pursuant to condition 3.5 shall give rise to a separate Contract.

3.7 The Customer shall ensure that the content of its order and any applicable specification in relation to delivery and installation are complete and accurate.

4.1 The description of the Goods and their functionality shall be as set out in the Specification.

4.2 All samples, drawings, descriptive matter, Specifications and advertising issued by Trakm8 are issued or published for the sole purpose of giving an approximate idea of the Goods (including the general aspect of their functionality) described in them. They will not form part of this Contract and Trakm8 expressly reserves the right to amend the form, colour, materials and any other aspect of the Goods at any time. However, the general functionality described within the User Manual will not be materially diminished.

5.1 Unless otherwise agreed in writing by Trakm8, delivery and installation of the Goods shall be made by the Installer to the Customer, or to such other third party as the Customer may direct.

5.2 The Customer (or as the case may be, it’s nominated third party pursuant to condition 5.1) shall take delivery and installation of the Goods upon such date as shall be agreed between the Customer and Trakm8.

5.3 If for any reason the Customer (or as the case may be, its nominated third party) fails to accept delivery and installation of any of the Goods when they are ready for delivery and installation, or Trakm8 is unable to deliver and install the Goods on time because the Customer has not provided, access to the vehicle, appropriate instructions, documents, licences or authorisations:

5.3.1 risk in the Goods shall pass to the Customer ;

5.3.2 the Goods shall be deemed to have been delivered;

5.3.3 Trakm8 may store the Goods until actual delivery and installation, whereupon the Customer shall be liable for all and any related additional costs and expenses (including, without limitation, storage, insurance, travel and subsequent installation costs).

5.4 The Customer agrees that any dates or times for delivery of the Goods are intended to be an estimate and time for delivery by Trakm8 shall not be of the essence and subject to condition 11.3, Trakm8 will not be liable for any loss (whether direct, indirect or consequential) costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Trakm8’s negligence), nor will any such delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds " seven " (7) days.

5.5 The Customer acknowledges and agrees that the Goods will be installed by a third party Installer. Where that third party Installer is selected by the Customer then the Installation Services will be under the terms and conditions of a separate installation agreement between the Customer and the relevant Installer.

6.1 Trakm8 shall not be liable for any non-delivery of Goods (unless caused by Trakm8’s negligence) unless written notice is given to Trakm8 within 14 days of the date when the Goods would in the ordinary course of events have been delivered.

6.2 Any liability of Trakm8 for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or if the Customer elects, issuing a refund at the Contract rate against prepayment for the Goods by the Customer.

7.1 The Goods are at the risk of the Customer from the time of delivery and installation.

7.2 Subject to clause 7.3, ownership of the Goods shall not pass to the Customer until Trakm8 has received in full (in cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to Trakm8 from the buyer on any account.

7.3 All intellectual property and other proprietary rights in any embedded software in the Goods shall at all times be owned by Trakm8.

8.1 Unless otherwise agreed by Trakm8 in writing the price for the Goods shall be the price set out in Trakm8’s price list published on the date of order acceptance and recorded on the Customer order acknowledgement.

8.2 The price for the Goods shall be exclusive of:

8.2.1 applicable purchase tax;

8.2.2 any installation costs for the Goods ;

8.2.3 costs (standard hardware, software and ISP Internet Service Provider required for internet access) necessary for access to the Trakm8 SWIFT web site and associated services.

9.1 The Customer shall pay to Trakm8 the price for the Goods on or before order acceptance.

9.2 No payment shall be deemed to have been received until Trakm8 has received the due payment in full in cleared funds and time for payment shall be of the essence.

9.3 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Trakm8 to the Customer.

9.4 All payments payable to Trakm8 under the Contract shall become due immediately on its termination despite any other provision.

10.1 Trakm8 warrants that (subject to the other provisions of these conditions) upon delivery, and for a period of 12 months from the date of delivery, the Goods shall be:

10.1.1 of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

10.1.2 subject to condition 10.3, shall be fit to perform the functions described in the Specification in relation to the Goods when operated in the manner described therein.

10.2 To the full extent permissible by law, Trakm8 shall have no liability to the Customer for any failure in the performance of the Goods to the extent that the failure arises from circumstances beyond Trakm8’s control, including (without limitation) for any delayed or defective installation of the Goods, any temporary or permanent withdrawal or loss of functionality or degradation in signal of the Global Positioning System (GPS) or the mobile phone network (GSM), or the general packet radio service (GPRS), none of which is under Trakm8’s control.

10.3 The Customer agrees to use the Goods only in accordance with the Specification and all accompanying documentation (including without limitation the user manual) provided to the Customer by Trakm8 and within the published environmental parameters.

10.4 Trakm8 shall not be liable for a breach of the warranties in condition 10.1 unless:

10.4.1 the Customer gives notice of the defect to Trakm8 Technical Support team within 30 days of the time when the Customer discovers or ought to have discovered the defect; and

10.4.2 Trakm8 is given a reasonable opportunity after receiving the notice of arranging for the examination of such Goods to ascertain the cause of the breach.

10.5 Trakm8 shall not be liable for a breach of the warranties in condition 10.1 if:

10.5.1 the defect arises because the Customer failed to follow Trakm8’s oral or written instructions as to the use or maintenance of the Goods or if there are none good trade practice; or

10.5.2 the Customer, the Customer’s employee or any other third party attempts to dismantle, alter, impede, de-install, tamper with or repair such Goods or attempts to remove or replace the SIM card in relation to the Goods without the written consent of Trakm8.

10.6 Subject to conditions 10.3, 10.4 and 10.5, if any of the Goods do not conform with the warranties in condition 10.1 Trakm8 shall at its option repair or replace such Goods (or the defective part) or credit the price of such Goods at the pro rata Contract rate. Where Trakm8 is not liable for breach of the warranties at condition 10.1 pursuant to condition 10.5 or otherwise, Trakm8 shall be entitled to invoice the Customer in respect of any repair or replacement of the Goods along with any reasonable transportation and call out costs incurred by Trakm8.

10.7 If Trakm8 complies with condition 10.6 it shall have no further liability for breach of the warranties in condition 10.1 in respect of such Goods.

10.8 Any Goods replaced will belong to Trakm8 and the warranty under condition 10.1 shall apply to any repaired or replacement Goods for the unexpired portion of the 12 month period under condition 10.1.

10.9 Where the Customer has invalidated the warranty by any of the acts described in condition 10.5 the Customer agrees to re-imburse Trakm8 for all reasonable; de-installation, transportation, repair and/or replacement of Goods expenses and re-installation costs.

11.1 Subject to conditions 4, 5, 9 and 10 and to the extent permitted by statutory authority, the following provisions set out the entire maximum financial liability of Trakm8 (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

11.1.1 any breach of these conditions;

11.1.2 any use made by the Customer of the Goods, or of any vehicle incorporating the Goods; and

11.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

11.2 Save for the conditions implied by section 12 of the Sale of Goods Act 1979, the warranties and conditions stated in this Agreement are in lieu of all other warranties, conditions or other terms, whether express or implied by statute or otherwise, all of which are expressly excluded.

11.3 Nothing in these conditions excludes or limits the liability of Trakm8 for death or personal injury caused by Trakm8’s negligence or for fraud or fraudulent misrepresentation or for any other matter for which it would be illegal for Trakm8 to exclude or limit or attempt to exclude or limit its liability.

11.4 Subject to conditions 11.3 and 11.5, Trakm8’s total liability to the Customer, in contract, tort (including, without limitation, negligence or breach of statutory duty) misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to 100% of the price paid under the Contract for the Goods.

11.5 Subject to conditions 11.2 and 11.3, Trakm8 shall not be liable to the Customer for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise):

11.5.1 loss of revenue, loss of actual or anticipated profits (including loss of profits on contracts), loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation or loss of or damage to or corruption of data; and

11.5.2 any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, whether or not such loss or damage is of the type specified in condition 11.5.1 above) whether arising out of, in connection with or in relation to any Contract or any Goods or related services or the supply, purported supply or non-supply of any Goods or related services.

12.1 Trakm8 may assign the Contract or any part of it to any person, firm or company provided that the current Specification of the Service provision is maintained.

12.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.

13.1 Trakm8 reserves the right to defer the date of delivery or to cancel the Contract in respect of 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 Trakm8 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

14.1 This Contract constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations and discussions between the parties relating to it.

14.2 Each right or remedy of either party under the Contract is without prejudice to any other right or remedy of that party whether under the Contract or not.

14.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction 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.

14.4 Failure or delay by a party in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

14.5 Any waiver by a party of any breach of, or any default under, any provision of the Contract by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.

14.6 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

14.7 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 jurisdiction of the English courts.

15.1 Any notice required to be given under this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission or by electronic mail:

15.1.1 (in case of notices to Trakm8) to its registered office or such changed address as shall be notified to the Customer by Trakm8; or

15.1.2 (in the case of the notices 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 this Contract or such other address as shall be notified to Trakm8 by the Customer.

__________________________________

If you are paying by Direct Debit, you are advised to retain a copy of the Direct Debit Guarantee.

The

Direct Debit Guarantee

This Guarantee is offered by all Banks and Building Societies that take part in the Direct Debit Scheme.
The efficiency and security of the Scheme is monitored and protected by your own Bank or Building Society.
If the amounts to be paid or the payment dates change Trakm8 Limited will notify you at least 10 working days in advance of your account being debited or as otherwise agreed.
If an error is made by Trakm8 Limited or your Bank or Building Society, you are guaranteed a full and immediate refund from your branch of the amount paid.
You can cancel a Direct Debit at any time by writing to your Bank or Building Society. Please also send a copy of your letter to us.

Trakm8 Limited is a wholly owned subsidiary of Trakm8 Holdings plc.

trakm8 is a registered trademark of Trakm8 Limited. Copyright ® 2004 Trakm8 Limited