Connected Services Terms and Conditions
PART A: TERMS AND CONDITIONS
Conditions: the terms and conditions set out in this document (Part A) (as amended from time to time in accordance with those terms and conditions) and any special terms and conditions expressly agreed in writing between the Company and the Customer.
Contract: the contract between the Company and the Customer for the supply of the Services which incorporates these Conditions and the Contract Details.
Contract Details: the document signed by the Customer and referred to as the “Contract Details” (Part B) and which forms part of the Contract.
Company: means TVG Vision Limited (CRN: 06876748).
Customer / Client means the person, firm, business, company or other legal entity which buys or agrees to buy the Services from the Company as identified in the Contract Details.
Services: the services (or any part of them) to be supplied by the Company to the Customer as set out in the Contract Details or as otherwise agreed in writing by the Company and the Customer including, without limitation, the Online Services.
Initial Term: has the meaning set out in the Contract Details or, if not so set out, 24 months.
Location Data: data on the geographical position of the relevant asset.
Mobile Communication Services: the mobile electronic communication services used for transmitting the Location Data and other messages.
Onboard Units: a device, as referred to on the ‘Item List’ (as set out in the Contract Details), purchased or leased by the Customer under a separate contract from the Company or one of its sales partners that can be used for obtaining Location Data via satellite tracking and for sending and receiving such data and other messages via Mobile Communication Services (either automatically according to a set procedure or by other agreed means).
Online Services: the online service, as available via the TVG Platform, structured and designed to enable the Customer to monitor their assets, to the extent that such assets are in the Territory, by displaying and facilitating the transmission of Location Data and other messages between the TVG Platform and the Onboard Units via satellite tracking and/or Mobile Communication Services.
Parties or party: the Company and the Customer and party or Party shall mean either of them.
Territory: means the United Kingdom.
TVG Platform: means the software proprietary to the Company and used by the Customer to receive the Online Services by the transmission of Location Data and other messages from and through this software to the Onboard Units.
UK Data Protection Legislation: means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
2.0 Terms & Conditions
2.1 Company Obligations
2.1.1 No employee, contractor, agent or other representative of the Company has any authority to make any statements, guarantees and/or representations on behalf of the Company in relation to the Services or the Contract.
2.1.3 Each right or remedy of the Company under the Conditions is without prejudice to any other right or remedy of the Company whether under law, the Conditions, the Contract or otherwise.
2.1.4 Reference to any statute or statutory provision in these Conditions 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.
2.1.5 The headings in these Conditions shall not be construed as forming part of the Conditions.
2.1.6 The Company reserves the right to correct any clerical errors made by its employees, contractors, agents or other representatives at any time.
2.1.7 A reference in these Conditions to writing or written includes email.
2.1.8 In these Conditions, a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.1.9 The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all its rights and obligations under the Contract.
2.1.10The Services are described in the Contract. The Company reserves the right to amend the Services if required by any applicable statutory or regulatory requirement and the Company shall notify the Customer in such event.
2.1.11 the Company shall supply the Services in accordance with the Contract.
2.2 Customer / Client Obligations
2.2.1 The Customer shall not assign, mortgage, charge, delegate, sub-contract, transfer, dispose of, declare a trust over or deal in any other manner with any of its rights or obligations under the Contract, either in whole or in part, without the prior written consent of the Company.
2.2.2 The Customer shall:
a) ensure that all information, materials and data it supplies to the Company is complete and accurate;
b) co-operate with the Company in all matters relating to the Services and/or the Contract;
c) provide the Company with such information, data and materials as the Company may reasonably require in order to supply the Services, and ensure that such information, date and materials is complete and accurate in all material respects;
d) obtain and maintain all necessary licences, permissions and consents which may be required for the Services;
e) comply with all applicable laws and regulations; and
2.2.3 If the Company’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) without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Contract 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 in each case to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
b) the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations; and
c) the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
2.3 Joint Obligations
2.3.1 These Conditions shall apply to all Contracts for the sale of the connected services by the Company to the Customer to the exclusion of all other terms and conditions including any terms and conditions which the Customer may seek or purport to impose, incorporate and/or apply under any purchase order or confirmation order or similar document or which are or may be implied by trade, custom, practice or course of dealing.
2.3.2 Any variation of the conditions (including any special terms and conditions agreed between the Parties) shall be inapplicable and have no contractual force and effect unless agreed in writing by the Company and the Customer.
2.3.3 Unless specifically provided all notices required or permitted by the Contract should be in writing and in English, effective upon receipt and may be delivered personally by commercial express courier, first class recorded mail or an electronic transfer (e-mail) with an electronic receipt.
2.3.4 Any notice required to be given shall be deemed to have been given if sent to the registered address of the Company or the Customer’s last known address and the time of service shall be the time when in the ordinary course of transmission it would have reached its destination.
2.3.5 If any provision or part-provision of the Contract or these Conditions is, becomes or 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 legality invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract or Conditions and the remainder of such provisions shall continue in full force and effect.
2.3.6 Save for as expressly provided to the contrary in the Contract, the Parties do not intend that any term of the Contract or Conditions will be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person that is not a party to it. the Company’s affiliates and group companies are intended to have the benefit of, and can enforce against the Customer, any provision of the Contract where such are expressly named as having the benefit of such provision as if such were parties to the Contract.
2.3.7 The Contract shall be governed by and construed in accordance with English law and the Parties hereto agree to submit to the exclusive jurisdiction of the Courts of England and Wales.
2.3.8 Unless expressly provided otherwise in writing, these Conditions apply to all Contracts for the supply of Services by the Company and are expressly incorporated into every Contract entered into by the Company with any Customer.
2.3.9 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
2.3.10 In these Conditions, a reference to a party includes its successors and permitted assigns.
2.3.11 In these Conditions, any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.3.12 Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions, illustrations or descriptions of the Services contained in the Company’s websites, catalogues or brochures or otherwise 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.
2.3.13 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
2.3.14 The Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
2.3.15 Nothing in the Contract shall limit or exclude any liability for fraud.
2.3.16 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this clause. Each party may disclose the other party’s confidential information:
a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 2.3.16; and
b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
2.3.17 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
3.0 Commercial Element (Basis of Sale / Fee Structure / Charges)
3.1 Company Obligations
3.1.1 The price for the Services shall be the price set out in the Contact. The price in the Contract (and all other prices, charges, costs and fees quoted by the Company) is/are exclusive of: a) any VAT along with other sales taxes and incidental costs and expenses chargeable from time to time, b) any costs in relation to the purchase, lease or use of the items and services relating to the Services, the Onboard Units and the Mobile Communication Services; and c) any local or unknown legislation costs. Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as chargeable on the supply at the same time as payment is due for the supply.
3.1.2 All pricings are subject to review and the Company reserves the right to increase the price (by giving notice to the Customer) to reflect any increase in the cost of the Services to the Company that is due to any factor beyond the control of the Company including, without limitation, acts or omissions of the Customer, changes to material costs, working practices, increases in taxes and duties including that of sub-contracted or key supplier activities (as deemed applicable by the Company). The prices will be reviewed and, if applicable, increased annually by the Company and any increase will not exceed 15% of the then current price in any one year.
3.1.3 the Company may raise one or more invoices in respect of the price for the Services and/or any other sums payable to the Company pursuant to the Contract
3.2 Customer / Client Obligations
3.2.1 The Customer will pay the Company for the Services the price set out in the Contract subject to adjustment from time to time in accordance with these Conditions. The Company shall be able to invoice the Customer for the price of the Services in accordance with the provisions of the Contract or, if not set out in the Contract, at any time. The price for the Services may be paid by direct debit, standing order or such other payment method as agreed between the Company and the Customer in writing from time to time.
3.2.2 All invoices are payable by the Customer within 30 days of the invoice date in full and cleared funds into the bank account nominated by the Company from time to time unless alternative payment methods and/or terms have been agreed, in writing, in advance between the Company and the Customer whereby the Customer shall pay the price in accordance with that agreed payment schedule and/or by way of that agreed payment method. Time for payment shall be of the essence of the Contract.
3.2.3 If the Customer fails to pay the price and/or any invoice in accordance with clause 3.2.2 above (or as otherwise agreed between the Company and the Customer), the Company reserves the right to demand full and immediate payment of the relevant sum and/or any remaining payments due under the agreed payment schedule (referred to in clause 3.2.2) and/or any other sums due from the Customer to the Company whether arising under the Contract or otherwise.
3.2.4 The Customer agrees to accept additional charges incurred where the maximum data limits of the relevant monthly data package are exceeded. Unless agreed in writing by the Company all such payments will be collected on a monthly basis by direct debit from the Customer’s bank account, details of which are set out in the Contract.
3.2.5 In the event that the Customer fails to pay any amount due to the Company in accordance with the Contract: a) all outstanding sums owing by the Customer to the Company shall become immediately due and payable; b) the Customer shall pay interest on all overdue sums from the due date until payment of the overdue sum, whether before or after judgement, which will accrue each day at the statutory interest rate set out in Late Payment of Commercial Debts (Interest) Act 1998 (as varied from time to time)and all costs and other sums incurred by the Company relating to the recovery and collection of any overdue amount and any relevant interest; c) the Company reserves the right to suspend the Services until all sums owing to the Company by the Customer have been repaid in full (including all related interest and costs) and the Company shall not be obliged to comply with any of its obligations under the Contract until such suspension ceases; and d) the costs of suspending and reactivating the Services (including, without limitation, all relevant systems and equipment required in relation to the Services) shall be borne by the Customer as a debt on demand.
3.2.6 All payments made by the Customer shall be made without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
In the event a fault in the Services (including, without limitation, all relevant systems and equipment required in relation to the Services) caused by one of the following then the Customer agrees to pay to the Company all costs incurred for labour, equipment and/or attendance fees to repair, replace or disconnect the Services (including, without limitation, all relevant systems and equipment required in relation to the Services) as well as any other associated equipment connected to the Services (including, without limitation, all relevant systems and equipment required in relation to the Services):
3.3.1 Normal wear and tear.
3.3.2 Routine maintenance.
3.3.3 Accidental or malicious damage to the equipment, inconsistency in operation or malfunction caused by interference or tampering with the equipment by either the Customer, its agents or a third party, including theft or attempted theft and Physical damage to the surface of the hardware.
3.3.4 Faulty operation due to the Customer programming error or misuse of software.
3.3.5 Any damage caused by unaccounted for activity for the repair or re-setting of Services (including, without limitation, all relevant systems and equipment required in relation to the Services) due to activation caused by the same.
3.3.6 Any loss or damage caused by events such as fire, flood, theft or acts of God, whether the Customer is insured for such events.
3.3.7 Failure of, or interference from, any connected or third-party service or any other system.
3.3.8 Changes to layout, equipment or environmental conditions, internal or external, that interfere with, prevent the operation of or reduce the performance of any part of Services (including, without limitation, all relevant systems and equipment required in relation to the Services).
3.3.9 The equipment is subject to unauthorised opening or repairs.
3.3.10 The misuse of equipment or damage to it due to exposure to moisture, liquids, heat or abuse or non-compliance with the instructions supplied with the hardware, neglect or misapplication.
3.3.11 The equipment is not installed or serviced by either the Company or an approved installer holding a valid certificate of competence issued by the Company.
3.3.12 Breakdown or failure during a period of suspended cover.
3.3.13 Repairs initiated and conducted by the Customer without the Company’s written agreement.
3.3.14 Batteries of any description associated with any equipment.
3.3.15 Equipment being recalled by the manufacturer.
3.3.16 Costs due to damage caused as a result of accidents, vandalism or theft.
3.3.17 Repairs/service carried out outside the United Kingdom.
3.3.18 Failure of the internet rendering temporary loss of vehicle visibility or data on a PC.
3.3.19 Reinstatement of Customer’s data, user interface or any network connection.
3.3.20 Any hardware that is still covered by a manufacturer’s limited or full warranty.
3.3.21 Damage to the equipment caused by vehicle component failure.
3.3.22 HDD, SIM or memory card failure.
3.3.23 Software for firmware accompanying or installed in the hardware. Software or firmware upgrades to the hardware.
3.3.24 No faults being found to the equipment.
3.3.25 The cost of hiring any temporary loan equipment, insurance for this equipment and the cost of refurbishment if not returned in the same condition as it was originally issued along with any incurred costs for substitute equipment whilst awaiting repair.
3.3.26 Any financial arrangements made by the Customer itself or persons acting as the Customer’s agents for attending to or in connection with the operation of the Customer’s system.
3.3.27 Where additional upgraded or exchanged parts are required to effect optimum system performance (e.g. when a different antenna would rectify a coverage/connectivity problem).
3.3.28 Delivery costs for equipment not covered by the agreement.
3.3.29 Costs to attend a vehicle whereupon the failure is excluded under the terms of the agreement.
4.0 Specifics in relation to Online Services Offered
4.1 Company Obligations
4.1.1 Service Provided: a) the Company does not warrant that GPS or the Mobile Communication Services will continue to support the functionality offered by the Online Services or that the Customer will be able to successfully use the Online Services for its intended use. The use by the Customer depends partly on circumstances beyond the Company’s reasonable control for which it accepts no liability; and b) the Company reserves the right to change the look and feel of TVG Platform and/or the wider Online Services and the way the Location Data and other messages/information is displayed.
4.1.2 User Names & Passwords: the Company shall provide the Customer with the necessary access data, such as account names, user names and passwords to enable it to operate the Online Services. All such access, data and information must be kept confidential by the Customer.
4.1.3 Data Transmission: the Company will, or will use reasonable endeavours to procure that any of its sales partners will, if the Customer requests, procure the Mobile Communication Services for the transmission of Location Data between the Onboard Units and the TVG Platform. The Customer acknowledges and agrees that the Company is dependent upon the third parties providing these services and therefore cannot provide any warranties, representations or guarantees on the following: a) that the Mobile Communication Services will be available on a continuous basis and at any place within the Territory (for instance due to gaps in network coverage and to the fact that these providers reserve the right to suspend their services for maintenance purposes, for security reasons, under instruction of competent authorities etc); b) the speed at which the Location Data will be transmitted; and c) data will be stored on the Company server for a maximum period of 12 months.
4.1.4 SIM cards: the Company will, or will use its reasonable endeavours to procure that its sales partners will, provide, as required, the SIM cards for each Onboard Unit that the Customer is licensed to use in connection with the Online Services, which the Customer shall use solely a) in combination with the Onboard Units; and b) for transmitting Location Data and video between the asset and the TVG Platform. In the event that the Customer provides its own SIM cards for any Onboard Units:
a) the Company shall not be responsible or liable, in any way to the Customer (including without limitation for any breach of the Contract, any delay in provision of the Services or otherwise) in respect of any matter caused by or attributable to, in whole or in part, such SIM cards; and
b) the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from such SIM cards or the use thereof; and
4.2 Customer Obligations
4.2.1 Service Provided: a) The Customer is granted a non-exclusive and non-transferrable right to use the Online Services for tracking and video download and remote viewing of assets and for reporting purposes. b) The Customer may use the Online Services in connection with the number of Onboard Units set out in the Contract. At any time if the Customer wishes to increase the number of Onboard Units it must notify the Company and enter into a separate contract for the supply of the same. c) The Customer is responsible for the provision of and maintaining a high-quality internet service in order to provide for the necessary means of access, coupled with sufficient capacity to allow for the requirements of the Online Services to be utilised.
4.2.2 User Names & Passwords: The Customer is responsible and liable for any use of the Online Services by itself or any other person, whether authorised or not, who has obtained access to any data generated by the Online Services via the Customer’s access data. Such liability shall end three working days after the Company has received a written request from the Customer to invalidate the Customer’s access data.
4.2.3 Data Transmission: The Customer will indemnify, defend and hold the Company and its affiliates and group companies (from time to time) harmless from and against any losses, damages, fines, costs or expenses (including legal fees) arising from or in connection with claims from third parties that the (contents of the) Location Data sent to or from the TVG Platform violate applicable laws and regulations, infringe the rights of such third parties (including intellectual property rights) or is/are otherwise unlawful towards third parties.
4.2.4 SIM cards: a) The ownership of SIM cards provided by the Company is retained by the Company and the Customer must return, at the Customer’s expense, such SIM cards upon expiry or termination of the Contract. The Company retains the right to charge the Customer all costs that they incur on any SIM cards not returned at the end of the Contract, including reasonable administration charges. b) The Customer shall indemnify, defend and hold the Company and its affiliates and group companies (from time to time) harmless from and against any losses, damages, fines, costs or expenses (including legal fees) arising from or in connection with claims from third parties in relation to the use of such SIM cards. the Company
4.2.5 The Customer will be responsible for ensuring the accuracy of any order (including any applicable specification) and for giving the Company any necessary information within a sufficient time to enable the Company to perform their required work scope.
4.2.6 The Customer agrees not to allow any person other than one of the Company’s authorised representatives to test, repair, adjust, connect to or alter any part of Services (including, without limitation, all relevant systems and equipment required in relation to the Services) at any time during the period of the Contract, unless expressly directed by the Company.
4.2.7 The Customer is under an obligation to ensure their drivers do not tamper with or in any way attempt to “deceive” the relevant equipment
4.2.8 The Company does not monitor Customer’s vehicles or equipment. It is the Customer’s responsibility to inform the Company of any suspected malfunction and if such notification is not provided to the Company then the Company bears no liability in respect of the said malfunction. the Company does provide advanced services which would provide such monitoring by the Company but the provision of such services must be separately negotiated between the Parties and be listed in the contracted items.
4.2.9 CCTV: The Customer must provide, when necessary, a temporary login to their CCTV account to enable remote diagnosis and possible “over the air” rectification. The login will automatically expire 48 hours after provision to the Company. The procedure to enable the temporary access rights will be provided to the Customer by the Company.
4.2.10 The Customer accepts overall responsibility for the integrity of Services (including, without limitation, all relevant systems and equipment required in relation to the Services). the Company does not accept liability for any loss, damage or injury caused by the actions of the Customer, the Customer’s agents the Customer’s distribution of keys and/or passwords and codes and the misuse of the same. The Customer indemnifies the Company against any loss, damage or injury following a breach of the Customer’s own security or safety protocol and in respect of any claim or demand whatsoever made by any person or persons in respect of injury, loss or damage arising directly or indirectly from the delivery and use of the Services supplied by the Company, howsoever caused and whether or not amounting to negligence.
4.2.11 The Company does not guarantee that its System cannot be circumvented or compromised. The Customer indemnifies the Company against any liability for loss, damage or injury to persons following the non-operation of Services (including, without limitation, all relevant systems and equipment required in relation to the Services).
4.2.12 The Company has no specialist knowledge of the value or nature of the contents of the Customer’s assets or the nature of the risk that the Customer’s contents or personnel may be exposed to. Services (including, without limitation, all relevant systems and equipment required in relation to the Services) are not a replacement for and may, at best only reduce any risk, loss, damage or injury to persons to the extent that is reasonably practicable. Liability for risk lies with the Customer. It is the Customer’s responsibility to ensure they comply/register to any requirements under the UK Data Protection Legislation and indemnify the Company against any prosecution for the Customer’s failure to conform to such.
5.1 The Company shall use reasonable endeavours to meet any delivery date or other timescale specified to the Customer in connection with the Contract. However, any delivery date or timescale given or quoted is intended as an estimate only and time is not to be of the essence in respect of any delivery date or timescale. The Customer shall be bound to accept the Services when delivered/provided. the Company shall not be liable for any delay in delivery or non-adherence to any timescale caused by any event beyond the Company’s reasonable control or any act or omission of the Customer.
5.2 The Company shall not be liable to the Customer for any losses incurred by late delivery/late provision of the Services.
5.3 The Company shall not be liable in any way whatsoever for short delivery unless the Customer notifies the Company of any shortage within 24 hours of delivery or deemed delivery.
5.4 The Company shall deliver in accordance with the Contract or as expressly agreed, in writing, between the Parties.
5.5 The Company may deliver by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7.0 Warranty & RMA
7.1 Company Obligations
7.1.1 The Company warrants that the Services will be provided using reasonable care and skill.
7.1.2 Subject to compliance by the Customer with clause 7.2.1 below, if the Company accepts that the Services have not been provided using reasonable care and skill, at its sole discretion, it will either repair or replace the defective Services (or the defective part) or allow full credit for the defective Services to the Customer. The Company will not be liable for the Services failure to comply with the warranty set out in clause 7.1.1 above if:
a) the Customer makes any further use of such Services after notifying the Company of the breach;
b) the defect arises because the Customer failed to follow the Company’s oral or written instructions or (if there are none) good trade practice;
c)the defect arises as a result of the Company following any drawing, design or specification supplied by the Customer;
d) the Services are defective as a result of changes made to ensure they comply with applicable statutory or regulatory standards or
e) the defect arises as a result of any materials, equipment or information provided by the Customer including, without limitation, any SIM card provided by the Customer.
Except as provided in this clause 7.1.2, the Supplier shall have no liability to the Customer in respect of the warranty set out in clause 7.1.1.
7.1.3 the Company will provide first line technical support to the Customer. When a fault is identified the Customer should contact the Company’s technical support desk who will take the necessary steps to address the problem which may include taking the Customer through a required diagnostic process.
7.2 Customer / Client Obligations
7.2.1 Should any defect in the Services arise these must be highlighted in writing to the Company within 2 working days of the Customer becoming aware of the relevant defect. the Company will then investigate the complaint (including investigation the Services) and either accept this (in such event clause 7.1.2 shall operate) or reject the complaint. In the event that the Customer does not comply with the timescales set out in this clause, the Company shall not be liable for breach of the warranty set out in clause 7.1.1 above.
8.1 Company Obligations
8.1.1 The Company does not accept liability for any breach of the Contract or failure to perform any of their obligations by reason of Force Majeure, to include but not limited to, war, threat or war, riots, civil strike, terrorist activity, industrial dispute, natural or nuclear disaster, adverse weather conditions, traffic congestion, obstruction of any road or highway or any other cause beyond their control. To the extent the Force Majeure continues the Company agrees to use all reasonable endeavours to overcome or work around the Force Majeure so as to be able to perform its obligations under the Contract.
8.1.2 The Company does not accept liability for any loss in trading or profits, internal expenses or consequential loss incurred by the Customer following any unlawful act of entry otherwise of any person or persons in or on the Customer’s assets or as a result of the misuse or interference with the Company’s goods or equipment.
8.1.3 The Company is not required to complete its obligations under the Contract or to make any repayment to the Customer where such obligations are frustrated by the applications of a third party, such as discontinuance of a product or late delay of the provision of services.
8.1.4 The Company has no liability for any delays in fulfilling its obligations under the Contract which are due to the actions of a third party. Neither the Company nor its supplier shall be liable to the Customer or any third party for any damages either direct, indirect, incidental, consequential or otherwise (including in each case but not limited to damages for the inability to use the equipment or access data, loss of business, loss of profits, business interruption or the like) arising out the use or inability to use the hardware even if the Company has been advised of the possibility of such damages.
8.1.5 The Company’s total liability to the Customer shall not exceed the amount actually paid by the Customer to the Company up to the date of the relevant event giving rise to the Company’s liability. the Company’s total liability includes liability in contract, tort (including negligence), breach of statutory duty or otherwise arising under or in connection with the Contract.
8.1.6 The following types of loss are wholly excluded by the Parties in respect of any liability of the Company:
a) Loss of profits.
b) Loss of sales or business.
c) Loss of agreements or contracts.
d) Loss of anticipated savings.
e) Loss of use or corruption of software, data or information.
f) Loss of or damage to goodwill.
g) Indirect or consequential loss.
8.1.6 The Company shall not be responsible for any fraud on the part of its employees and/or agents or any fraudulent misrepresentation on the part of its employees and/or agents
8.1.7 Unless the Customer notifies the Company that it intends to make a claim in respect of an event within the notice period, the Company shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.2 Customer Obligations
8.2.1 Should the Customer pay a 3rd party for the execution of services which the Company is obliged to carry out under the contract then the Company must be reimbursed by the 3rd party for the services undertaken or to be undertaken. If the Company is not reimbursed, then the Company has the right to withdraw the Services until it receives reimbursement from the 3rd party. It is the responsibility of the Customer to ensure that the reimbursement is made by the 3rd party to the Customer.
8.2.2 In cases where there is an OEM (main dealer) requirement to resolve compatibility issues, any associated charges will be the liability of the Customer.
8.3 Joint Obligations
8.3.1 Nothing in the Contract limits any liability which cannot be legally limited, including, but not limited to, liability for death or personal injury caused by negligence and fraud or fraudulent misrepresentation.
8.3.2 All warranties, conditions and other terms implied by statute, are common law or otherwise are, to the fullest extent permitted by law, excluded from the Contract
9.0 Intellectual Property & Indemnity
9.1 Company Obligations
9.1.1 The Company retains all intellectual property rights in the Online Services, the Onboard Units, the TVG Platform and/or arising out of the Services and the Customer shall not at any time acquire any rights, title or interest in these intellectual property rights by virtue of any use that the Customer may make thereof pursuant to the Contract.
9.1.2 The Company retains copyright and intellectual property rights to the content and images on its website. Written permission must be obtained from the Company to use any content, including images from the website. Authorised use of content and images must only be used in conjunction with Goods and Service purchased from the Company and must not be used where such use is likely to cause confusion or deception.
9.2 Customer / Client Obligations
9.2.1 The Customer will not at any time contest the Company’s ownership of the intellectual property rights referred to in clause 9.1.1 nor assist anyone else to do so nor do anything that would jeopardise or diminish such rights to the Service or the value thereof.
9.2.2 Where it has been proven that the Customer has facilitated a breach of the Company’s intellectual property rights the Customer will be liable to reimburse the Company for all research and development costs associated with the intellectual property.
9.3 Joint Obligations
9.3.1 Each Party agrees not to use proprietary information received from the other for any purpose other than provision of Services under the Contract. The receiving party shall disclose or give access to proprietary information only to such parties, employees, agents or contracts (“Receiving Personnel”) having a need to know and solely for use regarding the Contract. The receiving party will advise Receiving Personnel having access to proprietary information of the confidential and proprietary nature. the Company’s service desk number and the Customer’s contact number are considered proprietary information.
10.0 Data Protection
10.1 Company Obligations
10.1.1 the Company is free to collect, process, store and use personal data, more specifically, the Location Data to the extent that such is necessary for enabling the Customer to use the Online Services or for invoicing purposes. the Company may decide in the future to outsource the hosting of their data centres to a third party. Currently, the Company host the data centres in house. If the Company were to outsource the hosting of data centres to a third party this would be under the strict terms of a data processor agreement, compliant with the UK Data Protection Legislation. the Company will not sell personal data to third parties. In the event that the Company decide to outsource data centres, the Customer agrees that the Company may make data available to the data centre that the Company instructs.
10.2 Customers / Client Obligations
10.2.1 The Customer agrees to the collection, processing, storage and use by the Company of their Location Data. The Customer shall inform its employees, relatives and all persons fitted with the Onboard Units and connected to the Service about the types of data that will be processed, of the purposes and duration of the processing and whether the data will be transmitted to third parties for the purpose of providing the Service. Moreover, the Customer shall inform these employees, relatives and other persons about their rights regarding the data processed.
10.2.2 The Customer warrants that it holds the written consent from its employees, relatives and all the persons fitted with the Onboard Units and connected to the Online Services, to pass on personal data, more specifically Location Data and that it explicitly instructs the Company to provide the Online Services by using and storing such data and to pass on such data to third parties that the Company users for the provision of the Online Services. The Customer shall present the relevant consent or an appropriate operating agreement to the Company on request.
10.2.3 The Customer may revoke its consent for the collection, processing, storage and use of their Location Data at any time. Such revocation must be presented to the Company in writing, at their registered office
10.3 Joint Obligations
10.3.1 Both Parties will comply with all applicable requirements of the UK Data Protection Legislation. This Clause 10.3 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the UK Data Protection Legislation. In this Clause 10.3, “Applicable Laws” means (for so long as and to the extent that they apply to the Company) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and “Domestic UK Law” means any UK Data Protection Legislation and any other law that applies in the UK.
10.3.2 The Parties acknowledge that for the purposes of the UK Data Protection Legislation, the Customer is the controller and the Company is the processor.
10.3.3 Without prejudice to the generality of clause 10, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Company for the duration and purposes of the Contract.
10.3.4 Without prejudice to the generality of clause 10, the Company shall, in relation to any personal data processed in connection with the performance by the Company of its obligations under the Contract:
a) process that personal data only on the documented written instructions of the Customer unless the Company is required by Applicable Laws to otherwise process that personal data. Where the Company is relying on laws of a member of the European Union or European Union law as the basis for processing personal data, the Company shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Company from so notifying the Customer;
b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Company has provided appropriate safeguards in relation to the transfer;
(ii) the data subject (as defined in the UK Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii) the Company complies with its obligations under the UK Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) the Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
e) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the UK Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f) notify the Customer without undue delay on becoming aware of a personal data breach; and
g) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data.
10.3.5 The Customer consents to the Company appointing any such third party specified in the Contract or agreed in writing from time to time between the Parties as a third-party processor of personal data under the Contract.
11.0 Cancellation / Termination / Insolvency & Liquidation
11.1 Company Obligations
11.1.1 The Company may terminate, without prejudice to any of its other rights or remedies arising hereunder, upon giving written notice to the Customer, the Contract with immediate effect if: a) the Customer fails to observe or perform any term or condition hereof, including in any event, non or late payment of any sums due to the Company, and such default or breach (if capable of remedy) shall not be remedied within 30 calendar days after notice in writing, specifying the breach and requiring the same to be remedied, has been given; b) any of the following occurs: I. the presentation of a Petition for the winding up of the Customer. II. the Customer is the subject of an order or an effective resolution is passed for winding up the Customer. III. an application for an order or for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect of the Customer is made. IV. a receiver, administrative receiver, administrator or similar officer is appointed over all or any part of the assets or undertaking of the Customer. V. the Customer makes a composition or arrangement with its creditors generally or an assignment for the benefits of its creditors or other similar arrangement. VI. the Customer goes into liquidation. VII. the Customer becomes unable to pay its debts or otherwise becomes insolvent. VIII. the Customer ceases or threatens to cease carrying on business or is otherwise wound up; or IX. there has been any delay or failure in performance under the Contract resulting from any event of Force Majeure which delay or failure shall have continued for a period of 3 months.
11.1.2 The Company may terminate the Contract and/or withdraw all or any of its services thereunder (whether temporarily or permanently at the absolute discretion of the Company) if any invoice or other sum is unpaid after 30 days or in the event that the Customer is in breach of any term of the Contract or these Conditions, subject to the Company giving the Customer not less than 7 days’ notice in writing
11.1.3 Any such termination, withdrawal or suspension of services or obligations arising under the Contract as may occur by virtue of these Conditions shall be without prejudice to the right of the Company to claim payment from the Customer in accordance with 3.2.5 herewith.
11.1.4 In the event of the discontinuance of the Services, the Company reserves the right to cancel the Contract and refund to the Customer the part of any fees relating to the remaining period of the Contract. In the event where a Customer is paying by instalments, no refund will be given, but collection of fees will be cancelled
11.1.5 The Company reserves the right to cancel the Contract without refund under circumstances of persistent breach of the Contract by the Customer or its employees.
11.1.6 On termination of the Contract:
a) the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
b) the Customer shall return all of the Company’s materials or equipment and any Services which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer’s premises 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;
c) clause 11.3.3 will operate in accordance with its terms (if applicable).
11.1.7 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the Parties that have accrued up to the date of termination or expiry, 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.
11.1.8 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
11.2 Joint Obligations
11.2.1 The Contract commences on the start date set out in the Contract or, if not set out, the date the Contract is signed by the Customer and shall continue, unless terminated earlier in accordance with its terms, until expiry of the Initial Term and shall automatically extend for 12 months (“Extended Term”) and the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party, not later than 3 months before the end of the Initial Term or the relevant Extended Term to terminate the Contract at the end of the Initial Term or the relevant Extended Term, as the case may be For the avoidance of any doubt, the Customer shall remain liable for the price of the Services in accordance with the Contract during any notice period in accordance with this clause 11.2.1.
11.2.2 The Company may terminate the Contract at any time by providing the Customer with 1 month’s written notice.
11.2.3 The Customer shall not be able to terminate the Contract save for as expressly provided in clause 11.2.1 above and strictly in accordance with the requirements of that clause. In the event that (i) the Customer purports to terminate the Contract during the Initial Term or any Extended Term other than as provided in clause 11.2.1 above or (ii) the Company terminates the Contract in accordance with clause 11.1.1 or 11.1.2 above , without prejudice to any other right or remedy available to the Company, the Customer shall pay to the Company the full price payable to the Company under the Contract for the duration of the relevant Initial Term or Extended Term in which the Customer purports to terminate the Contract or in which the Company terminates the Contract (as the case may be) immediately on demand as liquidated damages. The parties confirm that these liquidated damages are reasonable and proportionate to protect the Company’s legitimate interest and compensate the Company in respect of the commercial deal that has been provided to the Customer based on the length of the Initial Term or Extended Term (as the case may be).
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