Self Track Terms and Conditions for the Sale of Goods and Supply of Services
The Customer's attention is particularly drawn to the provisions of clause 10.
1.1Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Dublin are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.6.
Contract: the contract between the Supplier and the Customer for the sale of Goods and supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from the Supplier.
Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.
Goods: the goods (or any part of them) is delivered by the hardware seller.
Initial Term: the initial term of the Contract as set out in the Order.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer's order for Services as set out on the Supplier's website called Subscriptions Plans. Here the customer selects the type of subscription that suits his or her needs. The overall description of each order is outlined under “Details” for each Subscription Plan.
Services: the services supplied by the Supplier to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided by the Supplier to the Customer included in the Order.
Supplier: The supplier of hardware (GPS tracker) is the company who sell you the hardware. Self Track is the supplier of the software solution that allows you register yourself for Subscriptions and to track your vehicle or asset.
Supplier Materials: all materials, equipment, documents and all other property of the Supplier which the Supplier uses in connection with the provision of the Services.
1.2Construction. In these Conditions, the following rules apply:
(a)a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b)a reference to a party includes its personal representatives, successors or permitted assigns;
(c)a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d)any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e)a reference to writing or written includes faxes and e-mails, where receipt of the email is subsequently acknowledged either explicitly or implicitly; and
(f)unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2.BASIS OF CONTRACT
2.1The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.7The Supplier and the Customer shall endeavour to agree a date upon a time and place for the installation of the Goods on the vehicle(s).
3.SUPPLY OF SERVICES
3.1The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3The Supplier shall have the right from time to time, without any obligation to inform or notify the Customer, to make changes to the Services and changes to the Supplier’s website including, but not limited to, functionality changes, changes to reflect changes in the services provided by third party providers of goods or services to the Supplier and any other changes which, in the reasonable opinion of the Supplier, are necessary or desirable to assist with or enhance the delivery of the Services and/or to reflect changes in market conditions affecting the Supplier’s business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in the Supplier’s systems’ capabilities.
3.4The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4.1The Customer shall:
(a)ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b)co-operate with the Supplier in all matters relating to the Services;
(c)provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's vehicles, machinery, stock, Customer’s premises, office accommodation and other assets and/or facilities as reasonably required by the Supplier;
(d)provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(e)obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and
(f)keep and maintain the Supplier Materials and the Goods at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials and the Goods in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials or the Goods other than in accordance with the Supplier's written instructions or authorisation.
4.2If the Customer fails to pay on time such monies as may be due from the Customer to the Supplier or if the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a)the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services, which may include the deactivation of the Goods, until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b)the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c)the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5.TITLE AND RISK
5.1The risk in the Goods shall pass to the Customer on completion of delivery.
5.2Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a)the Goods; and
(b)all other sums which are or which become due to the Supplier for sales of the Goods to the Customer.
5.3Until title to the Goods has passed to the Customer, the Customer shall:
(a)hold the Goods on a fiduciary basis as the Supplier's bailee;
(b)not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c)maintain the Goods in satisfactory condition;
(d)notify the Supplier immediately if it becomes subject to any of the events listed in clause 11.2; and
(e)give the Supplier such information relating to the Goods as the Supplier may require from time to time.
5.4If before title to the Goods passes to the Customer, (i) the Customer fails to pay on time such monies as may be due from the Customer to the Supplier, and/or (ii) the Customer becomes subject to any of the
events listed in clause 11.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then in either case, without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
5.5For the avoidance of doubt, where a SIM card is provided by the Supplier, title to the SIM card shall never pass to the Customer.
6.CHARGES AND PAYMENT
6.1The Charges for the Services shall be as set out in the Order.
6.2The Supplier reserves the right to increase its fee rates. The Supplier will give the Customer written notice of any such increase 2 months before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within 2 weeks of the date of the Supplier's notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving 2 weeks' written notice to the Customer.
6.3The Supplier shall invoice the Customer on the frequency as set out in the Order.
6.4The Customer shall pay each invoice submitted by the Supplier:
(a)Via the automated payment system on the Self Track website using a valid credit card or debit card
6.5All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.6If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, the supplier will close down service without any further notice.
6.7The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6.8In the event the Supplier suspends the Services in accordance with clause 4.2(a) the Supplier shall charge a re-activation fee as set out in the Order.
6.9In the event the Customer wishes to move the location of a Good to a new vehicle, a charge at the Supplier’s then current rate shall apply to cover the cost of removal and re-installation of the Good.
6.10Prior to the sale, or other disposal, of any vehicle the Customer shall give not less than 14 days’ notice to the Supplier and grant the Supplier access to the vehicle to enable the Supplier to remove the Good from the vehicle.
6.11The Subscription Plan will automatically be renewed 20 times unless the Customer login and cancel the Subscription Plan 5 days before renewal date.
7.INTELLECTUAL PROPERTY RIGHTS
7.1All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier (Self Track).
7.2The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer's use of any such Intellectual Property Rights may be conditional on Customer agreeing to be, and being, bound by the terms and conditions of any such third party.
7.3All Supplier Materials and the Goods are the exclusive property of the Supplier.
8.1The Supplier warrants that the Goods, when operated and maintained properly, will enable the Customer to make use of the Services for 24 months from the date of installation. This warranty shall not apply where (i) an act or omission of the Customer has given rise to the damage, (ii) the damage has been caused by exposure to water, (iii) the Goods have been tampered with in any way, or (iv) the Goods have been installed by someone other than the Supplier.
8.2The Customer shall pay the Supplier’s then current call-out charge (together with payment for travel expenses) where the Goods are not covered by the warranty contained in clause 8.1.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how,specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 8 shall survive termination of the Contract.
10.LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
10.1Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a)death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b)fraud or fraudulent misrepresentation; or
(c)(where the Customer is a consumer) breach of the terms implied by consumer legislation in circumstances where a limitation or exclusion of liability is not permitted.
(a)the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b)the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed an amount equal to the aggregate amount of Charges actually paid in respect of such Goods by the Customer to the Supplier in the 3 months’ prior to the liability arising.
10.3To the maximum extent permissible by law, the Supplier shall under no circumstances whatever be liable to the Customer in respect of the acts or omissions of third party providers of other services which form part of
the Services including, but not limited to, providers of maps, providers of GPS coverage and/or mobile network service providers.
10.4The terms implied by the Sale of Goods and Supply of Services Act 1980 are, to the fullest extent permitted by law, excluded from the Contract.
10.5This clause 10 shall survive termination of the Contract.
11.1After the expiration of the Initial Term, without limiting its other rights or remedies, the supplier (Self Track) may terminate the Contract by giving the customer 3 months' written notice.
11.2Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a)the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b)the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
(c)the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d)a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e)the other party (being an individual) is the subject of a bankruptcy petition or order;
(f)a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g)an application is made to court, or an order is made, for the appointment of an examiner or if a notice of intention to appoint an examiner is given or if an examiner is appointed over the other party (being a company);
(h)the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i)a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j)any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause11.2(b) to clause 11.2(i) (inclusive);
(k)the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(l)the other party's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m)the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
11.3Without limiting its other rights or remedies, the Supplier (Self Track) will terminate the Contract with immediate effect if the withdrawal of funds fails on the due date for payment. It is the Customer responsibility to ensure the card has available funds on the due date of payment. It is the Customer’s responsibility to keep card details up to date to insure payment can be taken under this Contract on the due date for payment
11.4Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 11.2(b)) to clause 11.2(m), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
11.5The Customer can cancel the subscription by login in to his or her Self Track account and go to My Subscriptions and cancel any future withdrawals of funds. The Customer will receive a confirmation email that the subscription has been cancelled.
11.6The service will continue the renewal date. The Customer accepts service cannot be stopped during a subscription period.
12.CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a)the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(b)clauses which expressly or by implication survive termination shall continue in full force and effect.
13.1For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13.2The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
13.3If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 5 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
14.1Assignment and other dealings.
(a)The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b)The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
(b)A notice or other communication shall be deemed to have been received: if sent by e-mail, one Business Day after transmission.
(c)The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a)If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b)If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.4Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.5No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
14.6Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Supplier.
14.7Data Protection. The Supplier undertakes that it will comply, and will cause its employees, agents and sub- contractors to comply, with the Data Protection Acts 1988 and 2003 and all applicable data protection laws in connection with the performance of its obligations under the Contract.
Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Irish law, and