TERMS AND CONDITIONS
These Conditions set out the terms and conditions on which the Supplier supplies its technology solutions, services and products to Customers.
The Customer’s attention is particularly drawn to the provisions of clause 9.
1. DEFINITION AND INTERPRETATION
1.1 In these Conditions, the following words have the meanings set out opposite:
Affiliate has the meaning set out in clause 16.2.1.
Bespoke Development: relates to customer specific changes made to Services
Bribery Act: the Bribery Act 2010.
Bribery Laws: the Bribery Act and associated guidance published by the Secretary of State for Justice under the Bribery Act and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption
Business Day: a day other than a Saturday, Sunday or public holiday in England or Wales.
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 16.7.
Contract: the Order, Hire Agreement, Lease Rental Agreement, Service Provision Agreement and Licence Agreement between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Controller: has the meaning given to that term in the Data Protection Laws;
Customer (You): the person, company or firm who Procures Services from the Supplier.
Data Protection Laws: means as applicable and binding on the Customer, the Supplier and/or the Services:
(a) in the United Kingdom:
(i) the Data Protection Act 2018; and
(i) the GDPR, and/or any corresponding or equivalent national laws of regulations;
(b) in member states of the European Union (EU) and/or European Economic (EEA): the GDPR and all relevant EU and EEA member state laws or regulations giving effect to or corresponding with the GDPR; and
(c) any Applicable Laws replacing, amending, extending, re-enacting or consolidating any of the above Data Protection Laws from time to time.
Data Subject: has the meaning given to that term in the Data Protection Laws
Delivery Location: has the meaning set out in clause 3.5.3.
General Development: relates to changes and improvements made to Software and/or Services
Disclosing Party: has the meaning set out in clause 8.1.
Due Date: has the meaning set out in clause 6.8
Force Majeure Event: has the meaning set out in clause 16.1.1.
GDPR: means the General Data Protection Regulation, Regulation (EU) 2016/679.
General Development of Services: relates to specification and development changes made to Services as per the Supplier’s own development roadmap
Hardware: the hardware (in cases where such hardware is required to access the Services) incorporating a SIM (in cases where a SIM is provided) and any other such or associated hardware to be supplied by the Supplier to the Customer to facilitate the delivery of the Services.
Hire Agreement: sets out the products, services, term and customer obligations under that Agreement
Initial Term: the minimum period specified in the Order
Information: all information contained or embodied in the Services
Installation Warranty: where Installation is undertaken by the Supplier then installation warranty is 12 months from date of installation
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered.
Internet Service Provider: any organization which provides access to the Internet to individual subscribers and to commercial users.
Lease Rental Agreement: sets out the products, services, term and customer obligations under that Agreement
MSA: the Modern Slavery Act 2015.
MSA Offence: has the meaning set out in clause 14.1.1.
Network Service: means the network service provided by the Network Operator, any Internet Service Provider, and any other integrated technology partner from time to time.
Network Operator: the telecommunications system operator who supplies airtime to the Supplier and any integrated technology partner used to facilitate and deliver the Service.
Online Training: access to the Supplier’s online training support team for up to a maximum of 4 training hours in any four (4) week period. A free of charge service that applies only where the Customer subscribes to the Services as part of a Lease Rental Agreement and/or Hire Agreement with the Supplier.
Order: the Customer’s order as set out on the order form or any other form approved by the Supplier.
Personal Data has the meaning given to that term in the Data Protection Laws and relates to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and which is processed by the Supplier in providing services under the Contract.
Portal: the Supplier’s software/web-based portal through which the Services are accessed by the Customer.
Processor: has the meaning given to that term in the Data Protection Laws.
Processing and process: has the meaning given to those terms in the Data Protection Laws.
Protection Data: means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under this Agreement.
Procures: the funding mechanism used by the Customer to pay the Supplier for the Services.
Receiving Party: has the meaning set out in clause 8.1.
Rental Agreement: Agreement between the Customer and Supplier that sets out the products, services, term and customer obligations under that Agreement
Rental Warranty: Warranty applicable to Services when the Customer is subject to a Lease Rental Agreement or Hire Agreement. Engineering callout charges are excluded from the Rental Warranty.
Service Provision Agreement: the contract for the provision of Services as specified in the Order.
Service Provision Charges: the charges and costs payable by the Customer under or in respect of the Service Provision Agreement in accordance with clause 6.
Services Supplier: Materials, Hardware, Installation, Software, Training, Implimentation and/or other technology solutions as set out on the Order.
SIM Card: any SIM card provided to the Customer with the Hardware or to deliver Services as set out on the Order. The SIM card remains the property of the Network Operator.
Software: HaulTech Transport Management System, HaulTech Warehouse Management System, HaulTech Sign-on-Glass app, API services, TrakMan vehicle tracking, TrakMan telematics and TrakMan CCTV software as per the Specification.
Specification: the description or specification of Software and/or Services as set out in the Order.
Sub-Processor: means another Processor engaged by the Supplier for carrying out processing activities in respect of the Protected Data: on behalf of the Customer.
Subsequent Term: any subsequent period after expiry of the Initial Term.
Supplier (We): HTC Solutions Limited, a company registered in England and Wales with company number 02850756 and whose registered office address is 1 Evolution, Hooters Hall Road, Newcastle under Lyme, Staffordshire, United Kingdom, ST5 9QF.
Supplier Materials: has the meaning set out in clause 5.1.7 and includes in particular the SIM Card and any Services as provided through a Hire Agreement and/or Rental Agreement.
Term: the Initial Term and any Subsequent Term.
Upfront Payment: If specified on the Order an advanced non-refundable payment made by the Customer to the Supplier on placement of an Order
Vehicle: the vehicle specified by the Customer in respect of which the Services are to be provided.
Warranty Period: has the meaning set out in clause 3.9
In these Conditions, the following rules of interpretation apply:
1.1.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.1.2 any phrase introduced by the terms including or include or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
1.1.3 a reference to writing or written does not include e-mails; and
1.1.4 a reference to a statute or statutory provision is a reference to it as amended or re-enacted and a reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
2.1 The Order constitutes an offer by the Customer to Procure Hardware and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier accepts the Order at which point and on which date the Contract shall come into existence (Commencement Date). The Contract shall, unless otherwise expressly provided in the Contract or terminated earlier pursuant to clauses 11.1 to 11.7, continue for the Initial Term and Subsequent Term unless and until terminated accordance with clause 11.
2.3 The Contract (with any supporting document referred to in the Lease Rental Agreement, Hire Agreement and/or Service Provision Agreement, whose own Conditions apply) constitutes the entire agreements between the parties in respect of the matters to which it relates. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
2.5 Any 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 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.
2.6 These 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.
2.7 No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier.
2.8 An Order may be withdrawn or amended by the Customer at any time provided that notice in writing of such withdrawal or amendment by the Customer is received by the Supplier before acceptance by the Supplier. The Customer accepts that should an Upfront Payment have been made by the Customer such payment will be non-refundable. If the Supplier is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable and, where an Upfront Payment has been received from the Customer the Supplier will arrange to have this refunded at the earliest opportunity.
2.9 The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Hardware Services to the Customer in accordance with the Order in all material respects.
3.2 The Supplier shall have the right to make any changes to the Hardware and/or Services which are necessary to comply with any applicable law or safety requirement or which do not materially affect the nature or quality of the Services.
3.3 The Supplier shall provide the Hardware and/or Services using reasonable care and skill.
3.4 The Supplier may perform and/or deliver the Hardware and/or Services in instalments. Any delay in performance, delivery and/or defect in an instalment shall not entitle the Customer to cancel any other instalment.
3.5 The Supplier shall not be liable for any delay in or failure of performance caused by:
3.5.1 the Customer’s failure to:
220.127.116.11 provide necessary hardware, connectivity, connecting software, platforms and/or services, resources, databases, materials and/or manpower to deliver the Services
18.104.22.168 make necessary resources available at the Delivery Location, or
22.214.171.124 prepare any such resources in accordance with the Supplier’s instructions, or
126.96.36.199 provide the Supplier with adequate instructions for performance.
3.5.2 a Force Majeure Event.
3.6 Where the Supplier is to supply Hardware and/or Services it shall do so at the location for supply or installation set out in the Order or such other location as the parties may agree (Delivery Location). Delivery shall be deemed as completed when the Hardware and/or Services have been delivered to the Delivery Location.
3.7 Any date quoted for delivery or installation of Hardware and/or Services is approximate only and the time of delivery or performance of the installation is not of the essence. The Supplier shall endeavour to complete delivery and/or installation at a date and time arranged with the Customer but the Supplier shall not be liable for any delay in delivery and/or installation of the Services that is caused by a Force Majeure Event and/or the Customer’s failure to provide the Supplier with adequate instructions and/or any other assistance that is relevant to the delivery or installation of the Hardware and/or Services.
3.8 If the Customer fails to accept delivery of the Hardware and/or Services or to make the required access to the resources and/or Delivery Location available to the Supplier, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Hardware and/or Services, delivery and/or installation (as the case may be) shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Hardware and/or Services are available to be installed and/or delivered.
3.9 The Supplier warrants that on delivery and for a period of either 12 months (or if different, the period specified in the Order) from the date of delivery (Warranty Period), the Hardware shall conform in all material respects with the Specification and be fit for any purpose expressly held out by the Supplier in writing. Consumable items such as, for example, SD cards are excluded from such warranties.
3.10 Subject to clause 3.9, the Supplier shall, at its option, repair or replace any defective Hardware based upon a return to base warranty if:
3.10.1 the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that the Hardware and/or Services does not comply with the warranty set out in clause 3.9; and
3.10.2 the Supplier is given a reasonable opportunity of examining such Hardware and/or Services; and
3.10.3 the Customer (if asked to do so by the Supplier) returns such Hardware to the Supplier’s place of business at the Customer’s cost.
3.11 The Supplier shall not be liable for the Hardware’s failure to comply with the warranty in clause 3.9 if:
3.11.1 the Customer makes any further use of such Hardware and/or Services after giving a notice in accordance with clause 3.10.1; or
3.11.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Hardware and/or Services or (if there are none) good trade practice; or
3.11.3 the Customer alters or repairs the Hardware and/or Services without the written consent of the Supplier; or
3.11.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
3.11.5 the Hardware and/or Services differs from the Specification as a result of changes made to ensure that it complies with any applicable statutory requirements.
3.12 The risk in the Hardware and/or Services shall pass to the Customer on completion of delivery or installation.
3.13 Where the customer purchased Hardware and/or Services from the Supplier title to the Hardware shall not pass to the Customer until the Supplier receives payment in full for the Hardware and/or Services.
3.14 Title to the Hardware shall not pass to the Customer if the Hardware has been provided to the Customer under a Lease Agreement. During the Initial Term title to the Hardware belongs to the Lease Agreement funder. During any Subsequent Term the title to the Hardware belongs to the Supplier.
3.15 Title to the Hardware shall not pass to the Customer in any circumstances where the Hardware and/or Services are rented from the Supplier under a Hire Agreement.
4. NETWORK SERVICES
4.1 The Customer acknowledges and agrees that the provision of the Services may be dependent upon the Network Services, the delivery and quality of which is outside of the Supplier’s reasonable control.
4.2 The Supplier will use reasonable endeavours to ensure that the Network Service is as fault free and high in quality as is reasonably practicable. The Customer recognizes, however, that the Supplier gives no warranty that the Network Service will achieve any particular performance criteria or will be fault free.
4.3 The Customer acknowledges and agrees that in the event that, at the request of the Customer, the SIM incorporated in any Hardware is disconnected, it will not be possible to reconnect the SIM and that in such a case, in order for access to the Services by means of the Hardware to be resumed, the Hardware would need to be returned at the cost of the Customer to the Supplier for a replacement SIM to be incorporated for which a charge would be payable by the Customer.
4.4 The Supplier reserves the right to:
4.4.1 suspend the provision of the Services or the Network Service to the Customer in the event of technical failure, technical modification or engineering work by or on behalf of the Network Operator, the Internet Service Provider or the Supplier for any reason, or
4.4.2 without prejudice to any other right of the Supplier, in the event that the Customer fails to pay any amount due to the Supplier under the Order and/or the Contract when due, to suspend the provision of the Services and/or to terminate the Contract.
4.5 The Customer acknowledges that in order to subscribe to Services the Customer is required to enter into a Service Provision Agreement. The Supplier shall have no liability if the Customer is unable to access the Services for any reason not caused by any Force Majeure Event.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
5.1.1 ensure that the terms of the Order, details of the Specification are complete and accurate and accepted by the Customer prior to them signing such Order;
5.1.2 co-operate with the Supplier in all matters relating to the provision of the Hardware and/or Services and, where applicable, installation of the Hardware;
5.1.3 Where required for the installation of any Hardware provide the Supplier, its employees, agents, consultants and subcontractors, with access to the required resources when and at the place arranged and with such other facilities as are reasonably required by the Supplier for the performance of the Services;
5.1.4 Where training and/or support services are being provided by the Supplier, its employees, agents, consultants and subcontractors, provide the Supplier with the resources required for the performance of the Services;
5.1.5 provide the Supplier with such information as the Supplier may reasonably require in order to supply the Hardware and/or Services, and ensure that such information is accurate in all material respects;
5.1.6 obtain and maintain in force all such necessary licences, permissions and consents as may be required for the performance of the Services before the date on which the Services are due to be performed;
5.1.7 keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) in safe custody at its own risk and maintain such Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
5.1.8 not use, or allow others to use, the Services or Hardware for any improper, immoral or unlawful purpose or for sending any communication of an offensive, abusive, obscene, indecent or menacing nature;
5.1.9 comply with any reasonable instruction issued by the Supplier relating to the use of the Hardware and/or Services;
5.1.10 not jeopardise any licence granted from time to time to the Supplier or the Network Operator; and
5.1.11 ensure that it has at all relevant times the express consent of all employees of the Customer and of all other individuals whose Personal Data is or may be Processed as a result of the use of the Services by the Customer or the performance of the Services by the Supplier to that processing of their Personal Data and indemnify and agree to keep indemnified the Supplier against all costs, claims, losses, damages, expenses and fines arising from any failure to have in place at any time any such valid consent or from any breach by the Customer of the Data Protection Act 1998 or other applicable data protection legislation or regulations in connection with the Customer’s use of the Services;
5.2 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:
5.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services;
5.2.2 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 in performing the Services or any of its obligations in consequence of the act or omission of the Supplier; and
5.2.3 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’s default.
5.3 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under these Conditions. On request, the Customer shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Customer shall on request assign to the Supplier the benefit of such insurance.
6. CHARGES AND PAYMENT
6.1 The Customer shall during the Initial Term and Subsequent Term pay all subscription and other fees and charges payable as listed in the Order as and when due and otherwise as provided in the Contract, Lease Rental Agreement, Hire Agreement and Service Provision Agreement. Unless otherwise agreed by the Supplier, the Customer shall also be liable to pay the Supplier’s costs and charges arising in respect of any cancellation of or other failure by the Customer to attend or, where required, to produce the Customer’s vehicle, at the time and place arranged or any booking or appointment for the provision of any Hardware and/or Services by the Supplier made at the Customer’s request.
6.2 Where General Development of Services occurs scoping, development, testing and online training will be borne by the Supplier. Where Bespoke Development is required the Supplier will provide the Customer with a quotation and/or estimate. On acceptance of the quotation/estimate the Customer will bear the cost of scoping, development, testing and training and will be responsible for all charges listed in the quotation/estimate.
6.3 Prior to a system build, and where an Upfront Payment is made by the Customer and the Order is then cancelled or withdrawn by the Customer, the upfront payment is non-refundable. Following system build clause 12.1.1 applies
6.4 The Supplier reserves the right to increase any Charges:-
6.4.1 on each anniversary of the Commencement Date;
6.4.2 at any time prior to the expiry of the Initial Term and/or Subsequent Term; and
6.4.3 at any time in response to increases in costs to the Supplier of providing the Services. The Supplier will endeavour to give the Customer not less than 3 months’ prior written notice of any such increase. If such increase is not acceptable to the Customer, the Customer may terminate the Contract at the end of the Initial Period and/or Subsequent Period by providing notice in writing. The Customer acknowledges and accepts that any termination will not affect their obligations under any Lease Rental Agreement and/or Hire Agreement relating to the delivery the Hardware and/or Service.
6.5 Notwithstanding clause 6.4, the Supplier may increase any Service Provision Charges with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Services which exceeds 3% and which is due to a Force Majeure Event.
6.6 The Customer shall pay each invoice submitted by the Supplier in accordance with the payment terms set out in the Order or otherwise agreed by the Supplier in writing. Unless otherwise set out in the Order any recurring charges are payable by monthly direct debit in cleared funds to a bank account nominated in writing by the Supplier. Time for payment shall be of the essence of the Contract.
6.7 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being.
6.8 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to:
6.8.1 charge interest on the overdue amount at the rate of 7.5% per annum above the then current Lloyds Bank Plc’s base rate accruing on a daily basis, with a minimum charge of £35 + VAT for each late Payment, from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounded quarterly; and
6.8.2 suspend the Services for a period of 14 days before terminating the Contract but without prejudice to the Supplier’s right to payment of the unpaid Charges and interest.
6.9 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier to justify withholding payment of any such amount in whole or in part. The Supplier may, 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.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
7.2 All Supplier Materials are the exclusive property of the Supplier.
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 or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 8 shall survive termination of the Contract.
9. LIMITATION OF LIABILITY:
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
9.1.2 fraud or fraudulent misrepresentation; or
9.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title to goods and quiet possession).
9.2 Subject to clause 9.1:
9.2.1 the Supplier shall not in any circumstances be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any of the following (whether direct or indirect):
188.8.131.52 loss of profit;
184.108.40.206 loss or corruption of data;
220.127.116.11 loss of use;
18.104.22.168 loss of production;
22.214.171.124 loss of contract;
126.96.36.199 loss of opportunity;
188.8.131.52 loss of savings, discount or rebate (whether actual or anticipated); or
184.108.40.206 harm to reputation or loss of goodwill.
9.2.2 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 £5,000 or a sum equivalent to the fees and charges paid by the Customer to the Supplier in the 12 week period prior to the alleged breach, whichever is lesser value.
9.3 Except as set out in the Contract or these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.4 The Customer shall indemnify and agrees to keep indemnified the Supplier against all costs, claims, losses, expenses or damages sustained or incurred by the Supplier in relation to any claim brought by any user of the Hardware and/or Services, or the Network Operator, or any other person in respect of any defect or failure in the Hardware and/or Services arising from any breach of these Conditions by the Customer, its employees, agents or subcontractors.
9.5 It is the Customer’s obligation to acquaint itself with and to comply with all applicable laws, regulations, requirements and restrictions imposed by governmental and other authorities or regulators relating to the Hardware and/or Services. The Customer shall indemnify and agrees to keep indemnified the Supplier against any loss or liability it may incur arising from the Customer’s breach of this provision.
9.6 The Supplier shall not be liable for any defects in the Hardware and/or Services arising from any failure by the Customer to maintain the Hardware and/or Services properly or comply with any recommendations for its use in each case in accordance with any instructions provided by or for the Supplier.
9.7 The Customer acknowledges and agrees that the Supplier shall have no liability in relation to any invalidation, cancellation or loss of any relevant Vehicle warranties arising from the installation of any Hardware in the Vehicle by the Supplier.
9.8 Where any damage is caused to a vehicle by the Supplier, its employee or acting agent the Customer will notify the Supplier within 24 hours. The Customer will work fully with the Supplier, its employees or agent to investigate any such claim and/or allegation.
9.9 This clause 9 shall survive termination of the Contract.
10. PROCESSING OF PERSONAL DATA
10.1 The parties agree that the Customer is a Controller and that the Supplier is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws.
10.2 The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
10.3 The Customer shall indemnify and keep indemnified the Supplier against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Customer of its obligations under this clause 11.
10.4 The Supplier shall:
10.4.1 process the Protected Data in accordance with the Contract except where otherwise required by applicable law; and
10.4.2 if the Supplier believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
10.5 The Supplier shall not permit any processing of Protected Data by any agent, sub-contractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the written authorisation of the Customer;
10.6 The Customer authorises the appointment of the Sub-Processors.
10.7 The Supplier shall (at the Customer’s cost):
10.7.1 assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to the Supplier; and
10.7.2 taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
10.8 The Supplier shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under this clause 10.
11.1 Either party may terminate the Contract by giving not less than three (3) months written notice to the other party, such notice to expire no earlier than the last day of the Initial Term and thereafter, whilst in the Subsequent Term, on each subsequent anniversary of the Commencement Date.
11.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach 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 of the breach; or
11.3 Without limiting its other rights or remedies the Supplier may terminate the Contract with immediate effect by giving written notice to the other party if:
11.3.1 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due; or
11.3.2 the Customer does not pay the Payment or any other payments under this or any other Agreement with us on time.
11.3.3 the Customer does not abide by any of the terms of this or any other Agreement with the Supplier.
11.3.4 the Customer tries to sell the Hardware or do anything that affects the Supplier’s rights in the Hardware.
11.3.5 the Hardware is taken to settle a debt; or the Customer has a petition for bankruptcy presented against them.
11.3.6 the Customer is a partnership, the partnership is dissolved.
11.3.7 any other agreement which the Customer enters into with the Supplier or a member of the Supplier’s group companies is terminated or becomes capable of termination.
11.3.8 the Customer is a company and has a receiver appointed or a petition is presented (or resolution passed) for the appointment of an administrator or for winding up.
11.3.9 the Customer convenes any meeting of all or any of its creditors or makes a deed of assignment or arrangement or otherwise compound with all or any of its creditors;
220.127.116.11 the Customer is liquidated or wound up or has a petition for winding up presented against them or a resolution passed for voluntary winding up (otherwise than in the course of a reconstruction approved by the Supplier);
18.104.22.168 the Customer has a petition for the appointment of an administrator or presented against the Customer or any steps taken to appoint an administrator to the Customer or the Customer has a receiver appointed over all or any of its assets;
22.214.171.124 The Customer or any holding company of the Customer is subject to a direct or indirect change of control; or
126.96.36.199 There is, in the Supplier’s opinion, a material adverse change in the Customer’s financial position or business.
11.4 If the Supplier terminates this Agreement under Term 11.2 or 11.3 or if the Customer repudiate the Agreement the Customer will pay to the Supplier the Termination Payment as set out in clause 12 as agreed damages which the Supplier agree are a true reflection of the loss the Supplier will have suffered.
11.5 Without limiting its other rights or remedies, the Supplier may suspend and terminate the Contract in accordance with immediate effect if the Customer fails to pay any amount due under the Contract, Lease Rental Agreement, Hire Agreement and/or Service Provision Agreement on the due date for payment.
11.6 Without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Hardware and/or 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 11.3 or if the Customer fails to pay any amount due under this Contract on the due date for payment.
11.7 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
12. CONSEQUENCES OF TERMINATION
12.1 On termination of the Contract for any reason:
12.1.1 the Customer shall immediately pay to the Supplier all of the outstanding fees and charges which shall become immediately due and payable and which if the Contract is terminated with effect prior to the expiry of the Initial Term and/or Subsequent Term other than by the Supplier in accordance with clause 11 shall include all fees and charges payable during and in respect of the Term.
12.1.2 the Customer shall return the SIM card, all of the Supplier Materials and any Hardware which has not been paid for in full to the Supplier. If the Customer fails to do so, then the Supplier may either;
188.8.131.52 invoice the Customer at the then retail price of the Supplier Materials for their replacement, or;
184.108.40.206 enter the Customer’s premises and Vehicles and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract and the Customer shall indemnify and agrees to keep indemnified the Supplier against all losses, costs, claims and expenses of the Supplier arising from the Customer’s use, possession, or loss of, or failure to return to the Supplier, the Supplier Materials following termination;
12.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, 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
12.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12.2 Where Supplier Materials are returned to the Supplier damaged the Supplier will invoice the Customer at the then retail price of the Supplier Materials for their replacement.
13.1 For the purposes of this clause 14 the expressions adequate procedures and associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
13.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:
13.2.1 all of that party’s personnel;
13.2.2 all others associated with that party; and
13.2.3 all of that party’s sub-contractors involved in performing the Contract so comply.
13.3 Without limitation to clause 13.2, neither party shall make or receive any bribe (as defined in the Bribery Act) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
13.4 Each party shall immediately notify the other as soon as it becomes aware of a breach of any of the requirements in this clause 13.
The Customer undertakes, warrants and represents that:
14.1 Neither the Customer nor any of its officers, employees, agents or sub-contractors has:
14.1.1 committed an offence under the MSA (MSA Offence); or
14.1.2 been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the MSA; or
14.1.3 is aware if any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the MSA.
14.2 It shall comply with the MSA and the Modern Slavery Policy
14.3 It shall notify the Supplier immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or sub-contractors have breached or potentially breached any of Customer’s obligations under clause 15.10. Such notice shall set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.
14.4 Any breach of clauses 14.1 to 14.3 inclusive by the Customer shall be deemed a material breach of the Contract and shall entitle the Supplier to terminate the Contract with immediate effect.
15. DISPUTE RESOLUTION
15.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 15.
15.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
15.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:
15.3.1 within 7 days of service of the notice, the contract managers of the parties shall discuss the dispute and attempt to resolve it.
15.3.2 if the dispute has not been resolved within 7 days of the discussion between the contract managers, then the dispute shall be referred to both parties’ directors. The directors shall discuss the dispute within 14 days and attempt to resolve it.
15.4 The specific format for the resolution of the dispute under clause 15.3.1 and, if necessary, clause 15.3.2 shall be left to the reasonable discretion of the parties, but may include the preparation and submission of statements of fact or of position.
15.5 If the dispute has not been resolved within 14 days of the discussion between the directors under clause 15.3.2 then the matter may be referred to mediation in accordance with the London Court of International Arbitration Mediation Rules.
15.6 Until the parties have completed the steps referred to in clauses 15.3 and 15.5, and have failed to resolve the dispute, neither party shall commence formal legal proceedings or arbitration except that either party may at any time seek urgent interim relief from the courts or emergency arbitrator relief.
16.1 Force majeure:
16.1.1 For 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 or breakdown or interruption in service of a utility service or transport network or the internet , 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, default of the Network Operator or Internet Service Provider or by any third party relied upon for the delivery of web based services.
16.1.2 The 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.
If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 3 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Customer.
16.2 Assignment and subcontracting:
16.2.1 The Supplier may at any time assign, transfer, 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 (Affiliate).
16.2.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.3.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and in English and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office or its principal place of business.
16.3.2 Notices may be given, and are deemed received:
220.127.116.11 by hand: on receipt of a signature at the time of delivery; or
18.104.22.168 by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting; or
22.214.171.124 by Royal Mail International Tracked & Signed OR Royal Mail International Signed post: at 9.00 am on the fourth Business Day after posting.
16.3.3 All references to time are to the local time at the place of deemed receipt.
16.3.4 This clause does not apply to notices given in legal proceedings or arbitration.
16.3.5 A notice given under these Conditions is not validly served if sent by email.
16.4.1 A waiver of any right under the Contract 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 under the Contract or the law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
16.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
16.5 No partnership:
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
16.6 Third Party Rights
16.6.1 A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
16.6.2 Any Affiliate of the Supplier shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the duly authorised representatives of the parties.
16.8 Governing law and jurisdiction:
This 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
16.9 Compliance with law
The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
16.10 Conflicts within contract
If there is a conflict between the terms contained in these Conditions and the terms of the Order, the terms of the Order shall prevail.
Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.
16.12 Further assurance
The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
16.13 Entire agreement
16.13.1 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
16.13.2 Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
16.13.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.
16.14 Set off
16.14.1 The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which the supplier has with the customer.
16.14.2 The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
16.15 Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
16.16.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
16.16.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.