In these General Terms and Conditions, the following terms when used herein shall have the following meaning:
A. Client: any (legal) person that enters into a Contract with the Provider for use of the Tracking Services and Monitoring System;
B. Contract: the agreement that is concluded between the Provider and the Client in accordance with the General Terms and Conditions, including the General Terms and Conditions applicable thereon and any Annex or Schedule that forms part of such agreement, including, but not limited to, the Proposal;
C. Equipment: a tracking device and/or a fuel level sensor (at the Client’s discretion), which transmits data to the Monitoring system;
D. Monitoring System: an internet-based motor vehicle fleet management (monitoring) system developed by the Provider, allowing the Client to obtain data (location of the vehicle, route of the vehicle, etc.) on the Vehicles in which the Equipment is installed
E. Price list: The unit prices of the Equipment, the Subscription fee, and other charges and conditions as communicated by the Provider to the Client in writing, which are binding for the Client once a Contract is concluded between the Parties;
F. Proposal: the written proposal/offer provided by Provider to Client;
G. Provider: Axxon B.V.;
H. Subscription fee: a recurring fee specified in the price list, payable by the Client to the Provider in advance as the remuneration for the usage of the Monitoring system. The subscription fee is charged and calculated for each Vehicle with the Equipment installed;
I. Tracking Services: Equipment supply, installation, and maintenance; keeping the Monitoring system and the Equipment in working order; other additional services as may be agreed in writing between the Client and the Provider; and
J. Vehicle: a motor vehicle owned, possessed, or held by the Client.
SUBJECT MATTER OF THE CONTRACT
1.1 The Client orders and the Provider provides Tracking services to the Client for a remuneration paid by the Client to the Provider in the amount and according to the procedure stipulated by the Contract.
1.2 The monitoring system provides data on every Vehicle in which the Equipment is installed and activated. The data provided by the monitoring system includes the coordinates, time readings, routes of the Vehicles, the coordinates of halting points thereof as well as warning information, and other data.
1.3 The Monitoring system services are provided after the Equipment is installed and activated aboard the Vehicle. The Equipment transmits the data from a specific Vehicle to the Monitoring system by using the services provided by mobile operators.
2.1 The Contract between Provider and Client is concluded once the Client signs the Proposal for acceptance and/or starts making use of the Tracking Services offered by Provider.
3 SETTLEMENT AND DELIVERY TERMS
3.1 The fee payable for the Tracking Services is specified in the Price list. The Parties agree that the fees specified in the Price list shall be in United States Dollars (USD). The Client shall make all the payments to the Provider pertaining to the Contract in United States Dollars (USD), or its equivalent in local currency, by electronic funds transfer to the Provider’s bank account, as provided by Provider to Client in writing from time to time. All the prices are exclusive turnover tax or any other applicable taxes.
3.2 The Equipment is delivered and paid for in the following order:
3.2.1 the Provider shall deliver and install the ordered Equipment in the Vehicles after the prepayment is received.
3.2.3 the total price of the invoice issued by the Provider is to be paid within fourteen (14) days after the Equipment has been installed.
3.3 The Subscription fee is calculated for each Vehicle with the Equipment installed, beginning with the moment when the respective piece of Equipment is installed in the Vehicle and activated for operation within the Monitoring system (depending on which condition occurs earlier). The amount of the Subscription fee shall be calculated for a calendar month and is specified in the Price list.
3.4 On the 3rd (third) day of each month, the Provider shall send an invoice to the Client for the Subscription fee for the upcoming calendar month and for any other Tracking services. The Client is obligated to pay the invoices of the Provider by the 28th day of each month.
3.5 The Provider shall have the pieces of Equipment ordered by the Client delivered to and installed in the Vehicles at the Client’s legal address, or any other place agreed upon separately by the Parties. Client shall ensure that Provider has free and undisturbed access to the Vehicles in order to complete installation. Client warrants to Provider that it has the right to install the Equipment in the Vehicle and indemnifies Provider from any claim from third parties relating to the installation of the Equipment in the Vehicle.
3.6 Each piece of Equipment and the respective SIM card shall be deemed turned over to the Client from the moment of activation as soon as it is installed in the Vehicle and activated within the Monitoring system. The Parties shall not draw any additional acceptance statements.
3.7 The Parties agree that all the invoices pertaining to the Contract may be reconciled and endorsed by sending respective notices to the e-mail addresses of the Parties as exchanged between the Parties in writing (without being signed by the representatives of the Parties). In case the Client receives no invoice to the specified e-mail address by the 20th day of the month, the Client must inform the Provider of this fact immediately. The non-receipt of the invoice does not exempt the Client from the liability to make the payment within the due term.
3.8 In case the Client delays its payment liabilities/duties beyond the payment date, the service shall automatically be suspended and the service shall only be reconnected upon payment of a reconnection fee of USD 5. In addition, the Client shall pay a penalty of 0.5% (zero point five percent) of the amount in arrears for each day of the delay to the Provider until the overdue liabilities are discharged. Payment of the penalty does not exempt the Client from paying any of the liabilities undertaken in accordance with the Contract.
3.9 The payments provided for by the Contract shall be deemed made as soon as the respective amount is credited to the payee’s settlement account.
3.10 Provider shall retain the ownership of the Equipment until receipt of full payment by the Client. Consequently, the ownership rights to the Equipment (including any other product) shall only pass from the Provider to the Client upon complete and full payment for the Equipment. Until the transfer of ownership rights, the Client has no right to dispose of the Equipment, pledge, or otherwise encumber it. Equipment that is unpaid cannot be regarded as a Client's asset and cannot be divested in a debt collection procedure that is carried out against the Client.
4 RIGHTS AND LIABILITIES OF THE PROVIDER
4.1 The Provider shall provide Tracking Services to the Client in accordance with the Contract. The Tracking Services are provided on an “as is” or “as available” basis, with no additional guarantees on the part of the Provider.
4.2 The Provider will ensure the quality and availability of the Tracking Services. The Tracking Services are provided using certain technical solutions and the services provided by mobile operators, therefore, the availability of the Tracking Services may be intermittent in particular cases.
4.3 The Provider shall provide the Client with a SIM card issued by a mobile operator, which is to be inserted into each unit of the Equipment. The Provider retains the ownership of the SIM card.
4.4 The Provider shall not be held responsible for the operation of the Equipment and the Monitoring System in case it is impaired by any faults of the Vehicle, deliberate damage to the Equipment, power failures, and/or any actions by mobile operators.
4.5 The Provider shall not disclose the data of the Client and the Vehicles to any third parties, with the exception of the cases provided for by the regulatory acts or in case so ordered by the Court. In this latter case, the Provider shall inform the Client as soon as it becomes aware of such order. The Provider may process and publish the data on all the Clients and routes managed by the Provider in general, provided that the Client is not identified (e.g. industry-specific research, traffic reports, route workload, etc.).
4.6 The Provider is not responsible for any losses that result or may result from the use of the Tracking Services.
4.7 The Provider shall ensure the consistency of route measurements for at least 98% per contract year, provided that the tracking Equipment is installed in a Vehicle, is in working order, and is not damaged.
4.8 The Provider is entitled to disable the Monitoring System for no more than 24 hours a month to carry out improvement works or scheduled maintenance on the Monitoring system. In case the term specified in this clause is exceeded in a particular month, the Client is entitled to demand the Subscription Fee to be decreased by the Provider on a pro rata basis.
4.9 The Provider may alter the Subscription Fee unilaterally upon at least 30 (thirty) days prior written notice to the Client. The notice is given either by mail or by e-mail to the Client’s contact person or by posting a respective message to the Client’s account on the website.
4.10 The Provider is entitled to process the data of the Client in accordance with the Contract. In case the Client fails to discharge its financial liabilities under the Contract in a timely manner, the Provider shall be entitled to authorize a third party to carry out the procedure of debt collection and to disclose the data about the delayed payments of the Client to third parties. Any and all costs in connection with such collection procedures, including but not limited to, 20% collection fees, shall be for the account of Client.
4.11 The Provider may redesign, alter or improve the Equipment, the Monitoring system, and the website.
5 RIGHTS AND LIABILITIES OF THE CLIENT
5.1 The Client may access the Monitoring System using the website specified by Provider to Client in writing from time to time. To access the Monitoring System, the Client has to enter the username and the password issued to the Client by the Provider after the installation of the Equipment in a Vehicle.
5.2 The Client may not disclose the password used to access the Monitoring System to any third party and is responsible to keep the password in a safe and private place. Provider is not liable for the unauthorized access of the Monitoring System in case of loss, theft, or unauthorized use of the password or log-in details of Client. Client will promptly notify Provider of the loss, theft, or unauthorized use of the password or log-in details of Client, by written notice of such loss, theft, or unauthorized use of through the email address of Provider.
5.3 Any unauthorized use or disclosure by Client of the Monitoring System or any data therefrom to third parties is prohibited.
5.3 Agreement to the Proposal confirms that Client is aware of the capabilities and solutions of the Monitoring System and that Client has no objections against these.
5.4 The Client must ensure the integrity of the Equipment and the usage and operation thereof according to the provisions of this Contract. The Client must inform the Provider of the disconnection, theft or derangement of the Equipment and/or of any damage done thereto immediately after the respective circumstances have been identified.
5.5 The Client assumes the responsibility for the integrity of a piece of Equipment and the entire scope of risk of any damage, losses, or destruction of a piece of Equipment from the moment when the Equipment has been turned over to the Client or installed in the Vehicle (depending on which condition occurs earlier).
5.7 Any operations carried out within the Monitoring System using the Client's user name and password are binding for the Client and shall be regarded as done by the Client.
5.8 In case the Client notices any malfunctions that may have been caused through the Provider's fault, the Client shall inform the Provider of such cases by sending a notice to the Provider's e-mail address for technical support.
5.9 Client is entitled to claim the non-conformance of the Tracking Services no later than five (5) days from the date when the respective circumstances have occurred. Failure to report the non-conformance within this time frame results in a lapse of the right of the Client to file a claim.
5.10 The Client may purchase and use additional pieces of Equipment if required. In this case, the Parties shall agree on the purchase of additional Equipment, the terms of delivery thereof, etc. by exchanging e-mails or making an additional agreement. The respective procedures and fees (cost of purchase, delivery, etc.) shall remain unchanged as stated in the Contract unless the Parties agree otherwise in writing.
6 WARRANTY AND LIMITATION OF LIABILITY
6.1 The Provider shall supply its own Equipment to the Client and shall provide a three (3)-year warranty if the installation of the Equipment is done by the Provider.
6.2 In case the Equipment fails to perform according to its function within the warranty period through the Provider's fault or due to a manufacturing defect, the Client must send a respective notice to the Provider's e-mail address for technical support. The Provider shall send a confirmation e-mail confirming the receipt of the notice to the Client within one (1) business day of the receipt of that notice.
6.3 Within the warranty period, the Provider must repair the Equipment or replace the damaged Equipment with another piece of Equipment (at the Provider's discretion) in case the Equipment fails through the Provider's fault or due to a manufacturing defect (under the condition that the specific piece of Equipment or Vehicle is located within the territory of product installation). The Provider will provide the warranty repairs or replacement as soon as practically feasible. Client will not have any claim on Provider for the period that the Equipment is not in use due to repair or replacement of the Equipment under the warranty.
6.4 If the damaged Equipment is replaced with other Equipment, the warranty term does not start anew but is continued from the initial date of installation.
6.5 Warranty does not apply in the following situations:
6.5.1 the serial number or the sealing mark of the Equipment is breached;
6.5.2 the Equipment is mechanically damaged through the malevolent actions of the Client or any third party, or in case any person (except for the Provider) has attempted repairs on the Equipment;
6.5.3 the Equipment is damaged by elemental forces (floods, lightning, fire, earthquake, etc.);
6.5.4 the Equipment is damaged due to the ingress of extraneous objects, liquids, or insects;
6.5.5 the damage to the Equipment is inflicted by the noncompliance of the supply voltage or telecommunications with the standards set by the Provider, by thermal shock, or due to any other domestic and external factors (soot, smoke, dust, humidity);
6.5.6 the Equipment is used with any other third-party system instead of the Monitoring system; and/or
6.5.7 the Equipment fails through the actions or omission of mobile operators or due to a mobile operator’s failure to ensure the provision of a full or partial scope of services.
6.6 If the Provider does not find any warranty restrictions stipulated by the Contract and acknowledges that the failure of the Equipment is caused through the Provider's fault or due to a manufacturing defect, the Provider shall repair the Equipment or replace it at its own discretion. This is the sole remedy of the Client relating to the warranty issued by the Provider for the Equipment.
6.7 The liability of Provider shall in all instances be limited to an amount equal to the Subscription Fee calculated over a period of 12 months or USD 10,000.00 whichever is less. Under no circumstance shall Provider be liable for incidental, consequential or special damages arising out of any transaction, product, good, or service governed by, or any claim relating to, the Contract. This limitation of damages, includes, without limitation, any incidental, consequential, or special damages arising from or related to the use or misuse of the Tracking System.
7 DURATION, SUSPENSION, AND TERMINATION OF THE CONTRACT
7.1 Unless otherwise stipulated in the Proposal, the Contract shall be effective for one (1) year. Thereafter, the Contract will be automatically renewed for consecutive periods of one (1) year, provided that in such renewal term of one (1) year any of the parties can terminate the Contract at any time with at least 30 days written notice to the other party. The Contract may be amended or terminated subject to a written agreement between the Parties.
7.2 The Provider has the right to suspend the provision of Tracking Services to the Client unilaterally or terminate the Contract with immediate effect, without judicial intervention being required, in case:
7.2.1 the Client defaults in the performance under the Contract;
7.2.2 the Client fails to pay the invoices within the payment term, and does not cure such default within seven (7) days;
7.2.3 the Client is declared bankrupt or a petition for its bankruptcy is filed, if the Client files a petition for an official moratorium (surseance van betaling), any other insolvency proceedings involving the Client are opened or applied for under any law or if the goods of Client are attached and such attachment is not lifted within thirty (30) days after it has been placed.
7.3 The Provider may resume the Tracking Services to Client after the Client cures the respective defaults and informs the Provider thereof in writing.
7.4 The Parties may terminate the Contract unilaterally upon at least 30 (thirty) days prior notice to the other Party, thereby taking article 7.1 into consideration.
8 FORCE MAJEURE
The Parties shall not be responsible for the default on their liabilities in case it is caused by force majeure circumstances that the respective Party could not reasonably anticipate, avert or influence and that it cannot be held responsible for, including, without limitation: natural disasters, military action, blockade, civil disorder, export-import prohibition or restriction, strikes, any action by third parties or the regulatory acts binding for the Parties that prevent the Parties from discharging their liabilities under the Contract. The party claiming a force majeure circumstance must inform the other Party of that in writing. In case a force majeure event continues uninterrupted for 90 days, either party has the right to terminate the Contract providing 30 days’ notice to the other party.
9 FINAL PROVISIONS
9.1 The Contract shall be construed and governed by the laws of Curaçao.
9.2 The Parties have read the Contract and all the addenda thereto, the content thereof complies with the scope of the agreement between the Parties. Any amendments or supplements to the Contract shall only be effective when executed in writing and signed by both Parties. The Parties shall recognize the notices (invoices, statements, warranty claims, Equipment orders, etc.) not signed by a representative of the respective Party, but sent to the e-mail addresses of the Parties’ contact persons as specified in the Proposal or provided to the other Party in writing, as binding for themselves.
9.3 In case of any dispute, the Parties shall attempt to settle it through negotiations. In case no accord can be achieved through negotiations, any dispute, incoherence, or claim arising from the Contract, pertaining to it or to the breach, termination, or invalidity thereof, shall be submitted exclusively for ultimate consideration to the Court of First Instance in Curaçao. This choice of jurisdiction, however, does not preclude Provider from taking legal action against the Client in any other Court of competent jurisdiction.
9.4 A Party must inform the other Party in writing of any changes to its legal address, settlement accounts, phone numbers, e-mail addresses, and other details.
9.5 The Client may not assign or transfer the Contract to any third party without the prior written consent of the Provider. A sale of the Vehicle by Client during the contract term does not release Client from its payment obligations under the Contract relating to the Tracking Services for such Vehicle.
9.6 These General Terms and Conditions, the Proposal, and the Contract have been prepared in the English language and the English language will be the only official language. Translations in any other language may be made for convenience purposes, but those translations shall in no event limit, alter, interpret, define or amend the contents of the English version of the General Terms and Conditions, the Proposal, or the Contract.
9.7 These General Terms and Conditions may be amended by Provider from time to time, provided that no amendment or modification shall be done orally and no amendment or modification shall be effective unless it is in writing.
These General Terms and Conditions have been filed with the Registry of the Court of First Instance of Curacao.