ACKNOWLEDGEMENT
The Customer acknowledges that the Services include the real time tracking of assets and recording of video footage from cameras installed on vehicles. This may mean that the tracking and video footage also permits the identification of movements of individuals, such as employees, customers, contractors or other third parties. The Customer understands that it is their responsibility to ensure that all Data Protection Laws are adhered to in their use of the Services given its role as Data Controller.
THE BASICS
1.WHAT WORDS MEAN
Some of the words and phrases in these terms and conditions mean specific things. They are capitalised all the way through and explained in the Defined Terms section at the end of these Terms.
The singular shall include the plural and vice versa and words denoting persons shall include individuals, sole traders, partnerships, bodies corporate and unincorporated associations of persons.
The words ‘include’ or ‘including’ do not limit something to just the examples that follow.
Any reference to a specific law or regulation in the Terms includes that law or regulation as amended, replaced or extended.
2.ORDER OF DOCUMENTS
If there is a conflict between any of the documents forming the Contract, the order of priority, highest first, is:
the Sales Order Confirmation;
the Charges Schedule; and
these Terms.
3.HOW THE CONTRACT IS FORMED AND WHEN IT STARTS
The Contract is formed and comes into force on the Commencement Date but is conditional upon the Supplier receiving written acceptance from Radius (whose products and service it is reselling) that Radius will contract with the Supplier for the Products and Services as set out in the Sales Order Confirmation. The Supplier shall use reasonable endeavours to procure the acceptance from Radius, provided that if Radius does not provide its written acceptance within 30 days of the date of this Contract, then this Contract shall automatically terminate with immediate effect and neither party shall have any liability to the other under this Contract.
The Contract contains the only conditions upon which the Supplier will deal with the Customer in relation to the Products and Services, to the exclusion of all other terms and conditions.
THE SERVICES
4.WHAT THE SUPPLIER SHALL DO
The Supplier shall provide the Services in all material respects in accordance with the Specification.
To enable the Customer to access the Services the Supplier will provide the Customer with Products as set out in the Sales Order Confirmation. The Supplier reserves the right to supply the Customer with new and/or reconditioned Hardware, all of which will enjoy the benefit of clause 9 (Repair and Replacement of the Hardware).
The Supplier shall make the Data Reports available on the Telematics Dashboard.
The Supplier shall supply the Customer with a unique, personalised username and password to enable the Customer to access the Telematics Dashboard and use the Services.
Subject to and in accordance with the Terms, the Supplier grants to the Customer for the Initial Term (and any Subsequent Term) a non-exclusive, revocable right to:
access and browse the contents of the Telematics Dashboard; and
download and print Data Reports and video footage from the Telematics Dashboard, provided that:
the Customer shall not use the Supplier’s trademarks or trade names or those of Radius, or of the Supplier's other upstream suppliers and contractors, in any way without obtaining the prior express written consent of the Supplier in each instance; and
no part of the Telematics Dashboard may be reproduced or stored in any other website.
Unless proactively saved onto the Telematics Dashboard by the Customer (in which case it is stored indefinitely), video footage will only be stored on the Telematics Dashboard for 31 days following creation, whereupon all such video footage shall be securely and irrevocably deleted.
Supplier may suspend Services immediately where; invoices remain unpaid; fraud is suspected; Radius or any other of the Supplier's upstream providers suspends or terminates its service; provision of Services would breach law; maintenance or technical work is required.
5.WHAT THE CUSTOMER SHALL DO
The Customer shall:
only use the Products for their intended purpose and in a careful and proper manner in compliance with all applicable laws and the Supplier’s instructions and specifications;
only use the Products and Services within the Fleet, and shall not de-install and/or re-install any Hardware between vehicles in the Fleet without the Supplier's prior consent (save for self-install items), and shall ensure that all Hardware is removed from any vehicle before that vehicle ceases to be a member of the Customer's Fleet (e.g. where the vehicle is sold or put on hire). Where Hardware is de-installed and re-installed by the Supplier or its agents or contractors, this may be subject to further engineer charges for installation which will be quoted at the time;
procure compliance with the Terms (and any end user licence agreement for the Telematics Dashboard from time to time) by all of its authorised users of the Telematics Dashboard;
comply with any and all restrictions on type of and number of authorised users, as set out in Service Order Confirmation and any end user licence of the Telematics Dashboard;
ensure that all of its employees, (and where entitled to access), their contractors and/or group companies fully comply with all such restrictions and obligations (including, without limitation, any laws applicable to the performance of their respective obligations under the Contract);
comply with any instructions or conditions relating to its use of the Telematics Dashboard as may be posted on the Telematics Dashboard or otherwise communicated to the Customer from time to time by the Supplier;
protect and safeguard any Telematics Dashboard credentials issued by the Supplier and prevent any unauthorized access by any third party; and
use the SIM solely:
in combination with the Hardware; and
for transmitting telemetry, vehicle and video data between the Fleet and the Supplier’s systems.
The Customer represents and warrants to the Supplier as at the Commencement Date and on an ongoing basis at all times during the term of this Contract that:-
it is entering into this Contract on a business-to-business basis and will use the Products and Services wholly or mainly for the purposes of its trade, business, craft or profession; and
Its use of the Products and Services will for civilian only use, and the Products and Services will not be sold, exported, re-exported or used directly or indirectly within the military sector, or any sector related by any means with the development of chemical, biological or nuclear weapons or programs;
Neither it or any of its direct or ultimate beneficial owners or any of its Affiliates or personnel are Restricted Parties or have been subject to any claim or investigation with respect to Sanctions.
The Supplier shall be entitled to terminate the Contract in the event of any breach by the Customer of the warranties at clause 5.2, with no compensation or liability to the Customer, and to the extent permitted by law, the Customer will hold harmless, indemnify and keep indemnified the Supplier, its Affiliates and its and their directors, officers and employees, against all claims, liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier and its arising out or in connection with a breach of this clause.
6.DELIVERY AND INSTALLATION
The Sales Order Confirmation will set out whether the Hardware is being delivered by the Supplier, or by Radius, and whether Installation is being completed by the Supplier or by Radius, or where particular elements of Hardware are being self-installed by the Customer.
Delivery is completed and risk in the Hardware transfers to the Customer with effect from the unloading of the Hardware at the Delivery Location.
The estimated dates for delivery of the Hardware and dates for Installation of Hardware will be set out within the Sales Order Confirmation. Where Radius undertakes delivery and/or Installation, then any estimated dates are subject to final confirmation with Radius, and may be subject to change.
The Installation may be performed by the Supplier or a third party engaged by the Supplier (which may include Radius or its contractors). Where the Customer self-installs any element of the Hardware then they are responsible for following all Hardware specifications and instructions, and the Supplier is not responsible for any defects or faults in the Hardware or Services to the extent caused by the Customer's failure to correctly install.
In some circumstances it will be necessary for the Supplier or third party engaged by the Supplier to adapt, adjust, amend or modify an asset or vehicle in the Customer’s Fleet in order to install Hardware. Subject to clause 17.1, the Supplier shall not be liable for any damage caused by such adaptation, adjustment, amendment or modification.
The Customer shall have no right to cancel an arranged Installation. Where the Customer fails to make any vehicle in the Fleet available on the agreed date, time and place of Installation, the Supplier may, without prejudice to any other rights or remedies, charge the Customer a late cancellation charge per vehicle or asset as detailed in the Charges Schedule.
If the Installation is performed by the Supplier or a third party engaged by the Supplier, the Customer has 10 days from the date of delivery of the Hardware to check that it is satisfied that:
the Hardware is functioning as against its Specification in all material respects.
If the Customer does the Installation the Customer shall check and install the Hardware within 10 days of delivery of the Hardware.
If, having checked the Hardware in accordance with the provision of this clause 6, the Customer is not satisfied that the Hardware is functioning in all material respects against the Specification, it shall give notice in writing via support@vatiotelematics.co.uk within 10 days of:
the Installation if the Installation was conducted by the Supplier or a third party engaged by the Supplier; or
the delivery of the Hardware by the Supplier to the Customer if the Installation was conducted by the Customer.
Within 20 days of notification under clause 6.9, the Supplier or a third party engaged by the Supplier shall examine the Hardware at a time and place specified by the Supplier and rectify any issues to the satisfaction of the Supplier (acting reasonably).
In the unlikely event that the Customer’s Fleet is damaged during and due to Installation performed by the Supplier or a third party engaged by the Supplier, the following process shall be followed:
the Customer will give notice of any alleged damage to the Fleet in writing including photographic evidence to support@vatiotelematics.co.uk
within 9 days of notification under clause 6.11.1, the Supplier or a third party engaged by the Supplier will initiate an investigation. The Customer shall cooperate fully with such investigation, and provide all information and access as reasonably requested by the Supplier;
6.8.3.subject to obtaining written consent from the Supplier, the Customer may procure a quotation for the repair of the damage to the Fleet. The Customer shall provide to the Supplier all reasonably requested information and materials related to the quotation to allow them to make an informed decision under clause 6.8.4 below;
the Supplier will inform the Customer in writing the amount, if any, that they will contribute to the costs of the repairs. Following the Supplier’s written consent, the Customer may proceed with the commencement of the repairs;
for the avoidance of doubt, the Supplier shall not be responsible for any costs incurred without prior approval in writing and nothing in this clause 6.9 creates an obligation for the Supplier to contribute to costs for repair in any circumstance.
Supplier's total liability arising from Installation damage shall be limited to the reasonable direct cost of physical repairs to the affected vehicle or asset which the Supplier is able to recover from the third party installer, and the Supplier shall have no liability for loss of use, downtime, replacement vehicles, consequential losses or diminution in value.
7.WHEN SUPPLIER IS NOT TO BLAME
The Customer acknowledges and agrees that:
the accessibility, accuracy and availability of the Telematics Dashboard (or relevant parts thereof), Data Reports, Location Data, Fleet data, and video footage is dependent upon systems, technologies and other factors which are beyond the Supplier’s control including Mobile Communication Services. Due to the nature of such technologies and systems, problems such as outages, link failures, network overloads, signal degradation, topographic, electromagnetic and other interferences may have an adverse effect on the accessibility and availability of the Telematics Dashboard, Data Reports, Location Data, Fleet data and/or video footage. The Supplier does not warrant that the Data Reports, Location Data, Fleet data, video footage and features made available on the Telematics Dashboard will continue to be supported by Mobile Communication Services or that the Customer will be able to use the Data Reports, Location Data, Fleet data, video footage or features made available on the Telematics Dashboard as part of the Services for the intended use, due to the fact that such depends partly on circumstances beyond the Supplier’s reasonable control;
the Services rely upon third party technology, telecommunications providers, hosting environments, software providers and upstream suppliers. Supplier shall not be liable for any interruption, delay, degradation, suspension, reduction in functionality or cessation of Services arising directly or indirectly from any act, omission or failure of any such third party provider.
the functionality of Bluetooth enabled tags is dependent on being in range of Bluetooth enabled Hardware;
where Hardware is enabled by Artificial Intelligence (AI) technologies, the associated outputs are limited and may in some situations result in incorrect or inaccurate results or outputs, as AI is an evolving technology, is based on statistical models, and may not always reflect real-world complexities. AI outputs must not be relied upon without independent verification; and
CO2 figures are reliant on information provided by Customer and are calculated by reference to miles travelled and the vehicle's CO2 emissions data. CO2 figures are an estimate only and do not take into account variables outside the Supplier’s knowledge such as fuel type, tyre pressure and vehicle load.
Supplier does not guarantee uninterrupted, continuous or error-free Services and does not provide any minimum uptime commitment unless expressly agreed in writing.
Location Data, reports, alerts, AI-generated outputs, vehicle diagnostics and video recordings are estimates and informational tools only. Supplier does not warrant their accuracy, completeness or fitness for any particular purpose.
The Customer acknowledges and agrees that the Products and the Services are designed and intended for use by the Customer for its Fleet management purposes only. As such, the Supplier is not responsible for any data privacy, employee relations, regulatory, compliance, insurance or other purposes for which the Customer may use the Products and Services and the Customer hereby agrees to indemnify and to keep the Supplier and its Affiliates indemnified against all claims, demands, actions, proceedings, damages, charges, costs and expenses in any way arising out of or in connection with such usage.
Without prejudice to the generality of clause 7.2, the Supplier makes no representation or warranty that video recording capability will record any particular incident or that the record, if any, of a particular incident, will be effective to support an insurance claim, recovery against a third party, or otherwise. Customer shall maintain adequate motor, fleet, cyber, property and business interruption insurance throughout the Contract.
Without prejudice to the generality of clause 7.2, it is the Customer’s responsibility to satisfy itself that its use of the Services will allow it to meet any legal or regulatory obligations applicable to it. To the maximum extent permitted by law, in no event shall the Supplier be liable in connection with this Contract, whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise for breach of any applicable law or regulation applicable to the Customer’s business activities in connection with its use of the Services.
Customer shall maintain adequate motor, fleet, cyber, property and business interruption insurance throughout the Contract to protect from the eventualities outlined in 7.3 and 7.4.
It is the Customer’s responsibility to ensure that the Products comply with any legal or regulatory requirements applicable to the vehicles or assets within its Fleet. The Supplier does not provide any warranty that the Products are appropriate for the vehicles or assets within the Customer’s Fleet other than that set out in the Specification..
The Customer hereby agrees to indemnify the Supplier and its Affiliates, and to keep the Supplier and its Affiliates indemnified against all claims, demands, actions, proceedings, damages, charges, costs and expenses which may be brought against the Supplier in any way arising out of or in connection with (i) the Customer’s failure to comply with its responsibility under clause 7.5; and/or (ii) use of the Products not in accordance with or outside of any Product specification provided by the Supplier to the Customer.
To the fullest extent permitted by law, all warranties, representations, conditions and other terms implied by statute, common law or otherwise are excluded.
The Customer acknowledges and agrees that the Hardware will utilise the Fleet’s battery power and as such:
the Customer is responsible for ensuring the Fleet’s battery is in good working order and condition and sufficiently powerful to run both the Fleet and Hardware at all times;
with Hardware fitted the Fleet will always fail a manufacturer’s parasitic drain test, accordingly the Hardware should be disconnected from the Fleet (at the Customer’s cost) prior to such test; and
the battery will be depleted if the Fleet is not used for long periods of time.
The Supplier may at any time, in its sole discretion, temporarily suspend access to the Telematics Dashboard for the purposes of maintaining or repairing the Telematics Dashboard or any part thereof; and to make changes to the functionality, presentation, features, modes of access and material content in relation to the Telematics Dashboard without notice to the Customer.
Customer shall take reasonable steps to mitigate any loss arising from a failure or interruption of the Services.
Supplier gives no guarantee that stolen vehicles or assets will be recovered and accepts no liability for theft, loss or failure to recover any vehicle or asset.
THE PRODUCTS – OWNERSHIP, REPAIR AND REPLACEMENT
8.TITLE TO THE HARDWARE
All Hardware which is supplied by the Supplier to the Customer is supplied on a hire basis only, and is owned by Radius, who are the Supplier's upstream supplier of Hardware and shall remain the sole and exclusive property of Radius.;
The Customer shall not:
sell, lend, rent, encumber, dispose or part with possession of such Hardware, except in accordance with the Supplier’s express written consent;
deface, destroy, alter or obscure any identifying mark on the Hardware; and
shall deliver up the Hardware to the Supplier, or, if required, to Radius.
8.3 The Customer is responsible for all Hardware from completion of delivery until returned to Supplier, regardless of cause or loss of damage.
8.4 The Customer’s right to use of the Hardware shall terminate immediately if:
the Customer is the subject of a bankruptcy order or it makes an arrangement or composition with its creditors, or it enters into any form of liquidation or other form of insolvency as within the meaning of section 123 of the Insolvency Act 1986;
the Customer ceases to trade or operate in its normal course of business; or
the Customer seeks to sell, lend, rent, encumber, dispose or part with possession of the Hardware; and
8.5 The Supplier may bring an action for the price of the Hardware, and any other amounts due under a Contract, irrespective of whether title to the Hardware has passed to the Customer.
9.REPAIR AND REPLACEMENT OF THE HARDWARE
If the Customer gives notice in writing to the Supplier within 10 days of discovery that some or all of the Hardware is defective, the Supplier shall:
test the Hardware at a time and place convenient to the Customer; or
require the Customer to promptly return the Hardware to the Supplier’s place of business or Radius' place of business for testing.
Subject to clause 9.4 and 9.7 and after the Customer has given written notice to the Supplier as required under clause 9.1, the Supplier shall:
if the notice under clause 9.1 has been received by the Supplier in accordance with these Terms and within the Initial Term, (at its option) repair or replace any Hardware that is deemed defective (in its sole discretion); or
if the notice under clause 9.1 has been received by the Supplier outside of the Initial Term, (at its option) repair or replace any Hardware that is defective and charge the Customer a fee of not more than the Non-Return Fee applicable to the piece of Hardware plus the Configuration Fee, plus the De-install/Re-install fee (if applicable), as set out in the Charges Schedule.
Clause 9.4 shall apply in the following circumstances:
the defect arises because the Customer failed to follow the Supplier’s instructions as to the storage, installation, commissioning, use, maintenance or replacement of the Hardware;
the Customer alters or repairs the Hardware without the written consent of the Supplier;
the defect arises as a result of wilful damage, negligence, or abnormal working conditions;
the defect arises as a result of any damage caused by use of the Hardware outside of its specified operating parameters as set out in the Specification, exposure to lightning or power spikes;
the defect arises as a result of an accident involving the vehicle or asset in which the Hardware is installed; or
in the case of the ‘neon’ product or other battery powered product or device, if such product or device was despatched to the Customer more than three years ago or its location alert has been activated more than 1,200 times.
If the Customer has given notice under clause 9.1 and one or more of the circumstances in clause 9.3 apply, the Supplier shall repair or replace (at its option) the affected Hardware and may levy the following charges:
the prevailing cost of the equivalent replacement Hardware;
the Configuration Fee; and
the De-install/Re-install fee (if applicable),
as set out in the Charges Schedule.
Repaired/replaced Hardware provided by the Supplier pursuant to this clause 9 shall be provided in accordance with clause 6 (Delivery and Installation) and clause 8 (Title to the Hardware). Replacement Hardware will comprise the same or enhanced functionality and may include reconditioned units.
If the Supplier’s Hardware testing pursuant to clause 9.1 identifies the problem is user error (including but not limited to error in installation or user error against the Specification), the Supplier may charge the ‘No Fault Found’ fee set out in the Charges Schedule.
The Customer acknowledges that this clause 9 is its exclusive remedy for any defective Hardware and that subject to clause 17.1, the Supplier shall have no liability to the Customer in respect of defective Hardware.
PAYMENTS
10.PAYING WHAT THE CUSTOMER OWES THE SUPPLIER
The Customer shall pay the Prices, via direct debit, to the Supplier in accordance with this clause and as specified in an applicable Sales Order Confirmation. Unless otherwise specified in the Sales Order Confirmation or agreed with the Supplier, payment of all amounts due shall be made by the Customer within 7 days of the date of invoice.
The Supplier may charge the Customer if the Customer requires a paper or non-standard invoice.
All Prices payable under a Contract are exclusive of all value-added and other taxes and duties applicable to the supply of the Products and Services which will be payable by the Customer.
The Price can be changed by the Supplier, in its sole discretion, without notice, where increases are imposed upon the Supplier by third party suppliers, telecommunications providers, software providers, regulatory bodies or governmental authorities, including but not limited to any cost increases or additional costs imposed by Radius either generally or specifically with regard to the Customer's usage
The Customer shall make all payments properly due under a Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise.
The Customer will be deemed to have accepted an invoice as correct unless the Customer notifies Radius in writing within 30 calendar days of the date of the invoice, specifying the reasons for the dispute. Undisputed amounts within the invoice remain due and payable in accordance with clause 10.1. Upon the Supplier’s receipt of Customer’s written notice of a disputed invoice, the Customer and Supplier will work together in good faith to resolve the dispute. If Customer and Supplier are unable to resolve the dispute within 14 days after the Supplier’s receipt of such written notice, the Supplier will have the right to seek any remedies it may have under the Contract or applicable law.
11.WHAT HAPPENS IF THE CUSTOMER DOES NOT PAY THE SUPPLIER
If the Customer does not pay any amount properly due to the Supplier under or in connection with a Contract on or before the due date, the Supplier may:
charge the Customer interest on the overdue amount at the rate of 4% per year above the UK base rate of Barclays Bank Plc from time to time (which interest will accrue daily until the date of actual payment and be payable on demand) or claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998; and/or
at any time after the due date, without notice to the Customer, set off any liability of the Customer to the Supplier or its Affiliates against any liability of the Supplier or an affiliate to the Customer such as a deposit held by the Supplier or an Affiliate, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under these Terms; and/or
refer any overdue amount to a third party debt collection agency. The Customer acknowledges and agrees that it will be liable for any legal and debt collection costs incurred by the Supplier and its agents.
if a request for a payment via any payment method is returned unpaid the Supplier will charge the Customer a fee of £50.00 plus VAT for every occasion when a payment is returned unpaid. In the event that payment is required by Credit card for whatever reason the Supplier reserves the right to make a charge for such payment.
Any exercise by the Supplier of its rights under this clause 11.1 will be in addition to and will not limit or affect any other rights or remedies available to it under applicable law, these Terms or otherwise.
If the Customer does not pay, the Supplier may take legal proceedings against the Customer and/or against any guarantor of the Customer’s obligations under this Contract. This could result in a County Court Judgement being obtained and registered against the Customer and/or any guarantor. If the Customer still fails to pay following judgement, the Supplier may start bankruptcy or winding up proceedings against the Customer. If the Customer owns property, the Supplier may apply to the court for a charging order over the Customer’s property to secure the money owed to the Supplier and may subsequently apply to the court for the possession and sale of the Customer’s property. If the Customer does not pay any amount due under this Contract on time, the Supplier can report the Customer’s default to a credit reference agency. This could make obtaining credit more difficult for the Customer in the future.
The Supplier (and/or its agents or representatives) may perform credit checks on the Customer. The Customer hereby gives its express consent to the Supplier (and its agents or representatives) to carry out any such checks. The Customer hereby acknowledges and agrees that the credit checks may involve giving information about the Customer to licensed credit reference agencies or third parties.
The Customer warrants its understanding that this contract will only remain in place whilst a satisfactory credit report is available and that decisions on credit availability are at the sole discretion of the Supplier.
The Supplier may request a ‘Security Deposit’ in lieu of a satisfactory credit report. The ‘Security Deposit’ constitutes a continuing security and shall remain in place until all Secured Liabilities have been discharged in full and the Supplier has confirmed in writing that the Security Deposit is released. The Supplier may at any time, without notice to the Customer, appropriate, apply, deduct or set-off all or any part of the Security Deposit against any Secured Liabilities which are due, owing, contingent, prospective or disputed. Upon the occurrence of any Insolvency Event (being any event referenced in clause 15.3.3(b)), The Supplier shall be immediately entitled to apply the whole or any part of the Security Deposit against any Secured Liabilities.
PROTECTING INFORMATION
12.INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in or arising out of or in connection with the Services (including the format of the Data Reports) or the Products) remain the sole property of the Supplier or its licensors and will be owned exclusively by the Supplier or the Supplier’s licensors.
Subject to clause 12.3, the Supplier owns all data generated by or related to the operation or performance of the Services. This operational and performance data does not include any Personal Data which shall be dealt with subject to the provisions of clause 14.
The Customer owns all data provided by or on behalf of the Customer to the Supplier in connection with the Services, and all Location Data and Customer specific operational data (including vehicle footage, vehicle data and operational data). The Supplier may use this data as required for the purpose of performing the Services and in accordance with clause 12.4.
The Customer authorises the Supplier and its third party licensors to retain and use on a royalty free and perpetual basis, a copy of the data referred to clause 12.3 above, in anonymised aggregated form (such that the identity of the Customer and any data subject is not ascertainable) for the purpose of carrying out data analytics in relation to the services provided to its customers (including using the information to produce and distribute reports, analyses and data based upon the Statistical Data) and otherwise developing new products and services (“Statistical Data”).
13.KEEPING THINGS CONFIDENTIAL
The Customer and the Supplier agree that for the duration of this Contract and for a subsequent period of three years following termination or expiry of the Contract, each Party will at all times keep confidential any Confidential Information of the other Party and shall not permit the same to be copied, used, disclosed or disposed of except in accordance with this Contract. The provisions of this clause 13 shall not apply to Confidential Information which is already in the public domain or becomes so at a future date other than by breach of this Contract or disclosures of Confidential Information that are:
required by law or regulation in response to a request from a law enforcement or regulatory body or authority;
made in connection with a court order or other similar demand;
made in connection with a contemplated merger, acquisition or similar transaction;
made to an Affiliate or company related to the Supplier;
made to the Supplier’s service providers for delivering the Services, on behalf of the Supplier or to the Supplier’s employees, agents, consultants, and contractors who need to know;
as required for the Supplier to perform its obligations under the Contract; or
expressly authorised in writing by the duly authorised representative of the Party which is the owner of the Confidential Information.
14.DATA PROTECTION
The Customer and the Supplier will each observe all provisions of the Data Protection Laws. This includes the obligation of the Customer to duly inform involved Data Subjects about the Processing (as defined in Data Protection Laws) of their Personal Data by the Supplier under the instruction of the Customer. The Customer acknowledges that it is their responsibility to conduct all relevant data privacy impact assessments and to assure itself of the basis of its Processing of Personal Data and that its data protection policies are adequate.
The Customer and the Supplier acknowledge that, in respect of any Personal Data which the Supplier Processes on behalf of the Customer in connection with this Contract, the Customer shall be the Data Controller and the Supplier shall be the Data Processor.
The Supplier shall only collect, Process, store, and use Personal Data, and the Location Data:
to the extent that such is necessary for the performance of the Contract and the improvement of the Services;
in accordance with the Customer’s lawful, documented, and reasonable instructions (which shall, unless otherwise agreed, be to Process Personal Data to the extent that such is necessary for the performance of the Contract and the improvement of the Services); or
as required to comply with the Data Protection Laws.
The Customer instructs the Supplier to collect, Process, store and use the Personal Data for the purpose as included under clause 14.3 above.
The Customer hereby consents to the Supplier’s appointment of subprocessors (in particular Radius, and their sub-processor Amazon Web Services) who may from time to time be engaged by the Supplier in support of the Supplier’s provision of the Services to the Customer, including in relation to the outsourcing by the Supplier of the hosting of its data centres to a third party within the United Kingdom or the European Economic Area. The Supplier warrants that such third parties shall be legally bound to their respective obligations under the provisions of the Data Protection Laws as a Data Processor. Upon the Customer’s written request which shall not be exercised more than once in any 12 month period, the Supplier shall notify the Customer:
of the identity of any subprocessor(s); and
if any Processing is to take place outside of the United Kingdom or the European Economic Area.
The Customer may revoke its consent for the Processing of Personal Data in relation to this Contract at any time. Such revocation must be presented to the Supplier in writing and shall not affect the Contract and will leave the Customer’s obligations (including payment obligations) under the Contract intact. The Customer acknowledges that, as a result of such revocation, the Supplier may not be able to provide the Services.
The Supplier shall implement appropriate technical and organisational measures to protect any Personal Data collected under the Contract against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and against all other unlawful forms of Processing. Having regard to the state of the art and the cost of their implementation, such measures shall provide a level of security appropriate to the risks represented by the Processing and the nature of the Personal Data to be protected.
Upon becoming aware of any unauthorised disclosure of Personal Data, the Supplier shall:
notify the Customer without undue delay; and
co-operate with the Customer and take such reasonable commercial steps as are directed by the Customer to assist in the investigation, mitigation and remediation of that Personal Data breach.
The Supplier shall:
ensure that its employees who may have access to the Personal Data are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;
cease Processing the Personal Data within 120 days upon the termination or expiry of the Contract or, if sooner, the Services to which it relates and as soon as possible thereafter, either return, or securely wipe from its systems, the Personal Data and any copies of it or of the information it contains. For the avoidance of doubt this shall not apply to the Statistical Data which the Supplier shall be entitled to retain; and
to the extent permitted by law, make available to the Customer such further information and (as applicable) co-operate in the conduct of any audit or review exercise, as the Customer may reasonably require to provide assurance that Supplier are in compliance with the obligations set out in this clause 14, provided always that this requirement shall not oblige Supplier to provide or permit access to information concerning (i) Supplier internal pricing information; (ii) information relating to Supplier’s other customers (including any pricing information); (iii) any of Supplier non-public external reports; (iv) any internal reports prepared by Supplier; (v) any Intellectual Property Rights of the Supplier; or (vi) any information which would infringe Data Protection Law. Further a maximum of one audit or review may be activated under this clause in any twelve (12) month period and provided always that the Customer and the Supplier shall (acting reasonably) agree a mutually convenient date for the audit or review to take place.
The Customer as Data Controller warrants that:
it has all authority and consents necessary to enable the Supplier to process the
Personal Data in accordance with the Data Protection Laws for the purposes of this Contract; and
it has complied with and shall, during the Contract, continue to comply with the obligations of a Data Controller under the Data Protection Laws.
The Customer shall indemnify the Supplier and keep the Supplier indemnified against all claims, demands, actions, proceedings, damages, charges, costs and expenses which may be brought against the Supplier in any way arising out of or in connection with a breach by the Customer of clause 14.10.
The Customer shall also indemnify the Supplier and keep the Supplier indemnified against all claims, fines, penalties, investigations, enforcement actions, employee grievances and tribunal proceedings arising from Customer’s monitoring of drivers, employees, workers, contractors or third parties which arise in any way out of or in connection with a breach by the Customer of clause 14.10.
The Customer and the Supplier acknowledge that they have agreed that the Customer will respond to enquiries from Data Subjects, any governmental and/or judicial body concerning the Processing of Personal Data by the Supplier and that the Supplier will, upon request by the Customer, provide reasonable assistance to the Customer for these purposes.
The Data Protection Schedule sets out the subject matter and duration of the Processing, the nature and purpose of the Processing, the type of Personal Data and categories of Data Subject as required by Article 28(3) of UK GDPR or equivalent provisions of any Data Protection Laws. As between the Customer and the Supplier, nothing in the Data Protection Schedule confers any right or imposes any obligation on either the Customer or the Supplier.
ENDING THE CONTRACT
15.TERMINATING THE CONTRACT
For all Customers, the Contract will continue in force for the Initial Term unless terminated in accordance with the Terms.
The Contract may continue for a Subsequent Term, but does not auto-renew, and any Subsequent Term is subject to written agreement between the Supplier and the Customer
The Supplier may, without limiting any of its other rights arising under this Contract, on giving written notice, terminate the Contract:
Subject to and without prejudice to clause 15.4, with immediate effect, or on such period of notice as specified in its termination notice, where it ceases to hold the rights from Radius or any other third party upstream supplier to provide the Products and/or Services;
on not less than 28 days’ written notice, such notice to expire on the last day of any calendar month;
with immediate effect, if:
the Customer fails to observe or perform any material term or condition hereof, including in any event non-payment or non-compliance with clause 5.1.1, clause 5.2 or clause 7.5, and such default or breach (if capable of remedy) shall not be remedied within 20 days after notice in writing, specifying the breach and requiring the same to be remedied, has been given; or
any of the following events occur: (i) the presentation of a petition for 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) the application for an order or application for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect of the Customer; (iv) if a receiver, administrative receiver, administrator or similar office is appointed over all or any part of the assets or undertaking of the Customer; (v) the Customer making a composition or arrangement with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement; (vi) the Customer goes into liquidation or is subject to a bankruptcy petition, application or order; (vii) the Customer becoming unable to pay its debts or otherwise becoming insolvent, or (viii) the Customer ceasing, or threatening to cease, to carry on business or (ix) the Customer undergoes any change of control;
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 three months; or
at the sole discretion of the Supplier, the Customer fails a credit check performed on it under clause 11.4.
Where the Supplier terminates under clause 15.3.1 or suspends under clause 5,:-
it shall, but only to the extent that Radius or any upstream supplier agrees to provide the same, provide their co-operation and assistance to achieve an orderly transfer of the Services to a third party supplier; and
Where Radius requires, the Customer agrees to enter into a novation of this Contract to Radius or another of its resellers.
16.WHAT THE CUSTOMER SHALL PAY WHEN THE CONTRACT IS TERMINATED
Upon expiry or earlier termination of the Contract:
the Customer will pay all outstanding amounts it owes to the Supplier within 30 days after the date of termination; and
unless the Customer has purchased the Hardware the Customer shall return the Hardware (at its cost) to the Supplier, or at the Supplier's request directly to any upstream supplier. If the Customer has lost, damaged or otherwise fails to return the Hardware to the Supplier in good marketable condition (to be determined at the Supplier's sole discretion) within 60 days of the termination of the Services, the Customer shall pay the Supplier a non-return fee set out in the Charges Schedule. For the avoidance of doubt, if, at any time, the Customer does not have in its possession or control the Hardware delivered to it, the Supplier may treat the Hardware as lost unless the Customer can prove otherwise.
If the Supplier terminates the Contract under clause 15.3.2 it shall be entitled to recover as liquidated damages, and without prejudice to any other claim, the full amount of its costs and losses with Radius or any other third party provider, which are irrecoverable as at termination, together with all lost profit which it would have been entitled to during the outstanding period of the prevailing fixed term.
IF SOMETHING GOES WRONG
17.HOW FAR EACH PARTY CAN BE HELD RESPONSIBLE
Nothing in the Terms shall be deemed to exclude or limit the Supplier’s liability in respect of any liability which cannot legally be limited, including liability for:
death or personal injury resulting from negligence; or
fraud or fraudulent misrepresentation.
Subject to clause 17.1, in no event, whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise, shall the Supplier be liable for any loss of profits, loss of income, loss of revenue, loss of use, loss of production or loss of anticipated savings, loss of business, contracts or commercial opportunities, loss of or damage to goodwill or reputation, any loss of or corruption of any data, database or software or in respect of any special, indirect or consequential loss or damage whatsoever.
Subject to clauses 17.1 and 17.2, the Supplier’s maximum aggregate liability under the Contract for all claims or otherwise shall be limited to the higher of (i) the Prices paid or to be paid by the Customer in the twelve months prior to the date on which the Customer’s first claim arose: and (ii) £10,000.
If the Customer has a complaint about this Contract, it should contact the complaints team on 0330 005 0052 (call costs from outside the UK may vary depending on your service provider). If the Customer wishes to contact the Supplier by email, please send an email to support@vatiotelematics.co.uk. Alternatively, the Customer can write to Vatio Telematics, Your NRG Ltd, Baltic Street, Hartlepool, TS25 1PW. The Supplier will acknowledge the receipt of the complaint within 3 business days and will respond to the complaint within 5 business days of receiving it. The Supplier will keep the Customer updated on the progress throughout via phone, email or by letter. A full copy of the Supplier’s complaint procedure is available on request.
If the Customer is not happy with the Supplier’s response or if eight weeks has passed since the Customer first let the Supplier know about its complaint, the Customer may be able to refer its complaint to the Financial Ombudsman Service ("FOS") – depending on the structure of the Customer’s business and if it falls within the jurisdiction of the service, the
details of which can be found at: www.financial-ombudsman.org.uk/consumers/complaints-can-help.
The Supplier will let the Customer know if it believes the FOS can review the complaint when it sends the Customer either the final response, or confirmation that the Supplier will not be able to respond within eight weeks. If the Customer wishes to contact the FOS directly, it can find more information about FOS referral rights by visiting www.financial-ombudsman.org.uk/. Alternatively, the FOS can be contacted by telephone 0800 023 4567, by email at complaint.info@financial-ombudsman.org.uk, or by letter at: The Financial Ombudsman Service. Exchange Tower, London, E14 9SR.
18.FORCE MAJEURE EVENTS
If a Party is prevented or delayed in the performance of any of its obligations under the Contract by a Force Majeure Event, then, except with respect to any payment obligations of either Party, that Party will be excused from the performance or punctual performance, as the case may be, of its obligation, to the extent that such Force Majeure Event continues and agrees to use reasonable endeavours to overcome or work around the Force Majeure Event so as to be able to perform its obligations under the Contract.
EVERYTHING ELSE
19.TRANSFERRING TO ANOTHER PARTY
The Supplier may freely assign its rights and obligations, in whole or in part, under the Terms without the Customer’s consent. The Customer may not without the prior written consent of the Supplier assign, transfer, charge, license or otherwise dispose of or deal in a Contract or any of its rights or obligations under these Terms. Any assignment in contravention of this clause 19 will be deemed null and void.
20.THIRD PARTIES’ RIGHTS
Each Contract is made for the benefit of the Customer and the Supplier and is not intended to benefit any third party or be enforceable by any third party save for any third party software sub-licensing provisions. The right of the Customer or the Supplier to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Terms is not subject to the consent of any third party.
21.NO PARTNERSHIP OR AGENCY ARRANGEMENT
The Contract does not:
set up any partnership, exclusive arrangement or joint venture between the Customer and Supplier (or their respective affiliates);
make one Party the agent of the other Party; or
authorise either Party us to enter any commitments for, or on the behalf of, the other Party.
22.NO WAIVER
No breach of any provision of the Terms will be waived except with the express written consent of the Party not in breach.
Failure or delay by either the Customer or the Supplier in enforcing or partially enforcing any provision of these Terms will not be construed as a waiver of any of its rights under these Terms. Any waiver by one Party of any breach of, or any default under, any provision of the Terms by the other Party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other Terms.
23.WHAT HAPPENS IF PART OF THE CONTRACT IS ILLEGAL, INVALID OR UNENFORCEABLE
If any provision of the Terms is determined by any court or other competent authority to be unlawful or unenforceable, the other provisions of the Terms will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the Customer and the
Supplier, in which case the entirety of the relevant provision will be deemed to be deleted).
24. MAKING CHANGES TO THE CONTRACT
The Supplier shall be entitled to amend the Terms by publication on its public-facing website, which amendments shall come into force on the date that the Customer is notified thereof and apply to all Contracts whether entered into before or after that date.
25.ENTIRE AGREEMENT
The Contract constitutes the entire agreement between the Customer and the Supplier with respect to the subject matter hereof and supersedes all previous agreements, arrangements and understandings between the Customer and the Supplier, provided always that the usage of the Telematics Dashboard and the Supplier’s public-facing website by the Customer shall be governed by the usage terms and conditions displayed on such sites.
26.CHOICE OF LAW
The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the Customer and the Supplier submit to the exclusive jurisdiction of the English courts.
DEFINED TERMS
Affiliate means any entity that directly or indirectly controls or is controlled by the Supplier, or is jointly controlled with the Supplier;
Charges Schedule means the charges set out in the Sales Order Confirmation which may be updated from time to time by the Supplier at its sole discretion to reflect any additional costs and charges (and variation to costs and charges) imposed by Radius or any other upstream supplier, and to reflect any increase or change in the Supplier's costs or factors outside of the Supplier's control;
Commencement Date means the earlier of (i) the date on which the Customer signs the Sales Order Confirmation; (ii) the date on which the Customer makes their first payment; or (iii) the date on which the Customer starts using the Services;
Confidential Information means information of commercial, proprietary or other value disclosed by one Party to the other Party which is identified as confidential or might reasonably be considered to be confidential and that has not lawfully come into the public domain or been independently developed;
Contract means the agreement between the Customer and the Supplier which comprises the Sales Order Confirmation, the Charges Schedule, these Terms and any documents referred to in the Terms;
Customer means the entity detailed on the Sales Order Confirmation that is purchasing the Services or Product from the Supplier; Data Protection Laws means:
a)To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data; and
b)To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Party is subject, which relates to the protection of Personal Data.
The terms “Personal Data”, “Process/Processing”, “Data Controller”, “Data Processor” and “Data Subject” shall have the same meaning as in the Data Protection Laws;
Data Protection Schedule means the written statement of data processing, as provided by the Supplier to the Customer;
Data Reports means visual and other representations of telematic data produced by the
Customer’s use of the Services accessible through the Telematics Dashboard;
Delivery Location means the delivery location set out in the Sales Order Confirmation;
EU GDPR means the General Data Protection Regulation ((EU) 2016/679);
Fleet means the vehicles or assets for which the Services are delivered;
Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the Party affected (including power failures, industrial disputes, changes to the law, pandemics, disasters, explosions, fires, floods or other extreme adverse weather, riots, terrorist attacks and wars);
Hardware means vehicle or asset telematics or tracking units and/or cameras and/or Bluetooth enabled tags, as provided by the Supplier and itemised on the Sales Order Confirmation, and associated peripherals which may or may not include a battery;
Initial Term the contract period set out in the Sales Order Confirmation;
Installation means fitting the Hardware into the Fleet;
Intellectual Property Rights means any patent, registered or unregistered design right, trade mark or other proprietary rights inherent in the Products or the Services, any copyrights and database rights, all other similar or equivalent intellectual or commercial rights or property subsisting under the laws of each and every jurisdiction throughout the world whether registered or not, and whether vested, contingent or future and all reversions, renewals, revivals and extensions of any of the foregoing, and all rights under licences, consents, orders, statutes or otherwise in relation to any of the foregoing;
Location Data means data on the geographical position of the Fleet and other messages sent to or by the Fleet;
Mobile Communication Services means the mobile electronic communication services used for transmitting Location Data and video footage;
Party means the Supplier or the Customer, as applicable; Prices means:
a)whichever is most recent of the price for the Products and the Services:
set out in the Sales Order Confirmation:
as agreed in writing between the Customer and the Supplier;
as notified by the Supplier to the Customer under clause 10.3
b)the charges set out in the Charges Schedule from time to time;
Products means the Hardware and any associated SIM, software and firmware;
Radius means Radius Telematics Limited with company number 09970051 and any of its permitted successor or assigns;
Restricted Party means any person, entity or individual that is listed on or is owned or controlled directly by or indirectly by a person listed on a Sanctions List, or a person acting on behalf of such person;
Sales Order Confirmation means the written confirmation of order sent by the Supplier to the Customer;
Sanctions means any trade, economic or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by a Sanctions Authority and any other laws or regulations applicable in the country or countries of performance of the Contract as amended, supplemented or substituted from time to time;
Sanctions Authority means (i) the UN; (ii) the European Union (and any of its member states); (iii) the United Kingdom; (iv) the United States of America; (v) or any other applicable government or law enforcement body; and (vi) the governments and official institutions of any of Paragraphs 26 to 26 above, including His Majesty’s Treasury;
Sanctions List includes Specially Designated Nationals and Blocked Persons list, the Foreign Sanctions Evaders (FSE) list, and the Sectoral Sanctions Identification list maintained by OFAC, the Consolidated List of Financial Sanctions Targets, or any similar list maintained by, or public announcement of a Sanctions designation made by, a Sanctions Authority, each as amended, supplemented or substituted from time to time;
Secured Liabilities means liabilities and obligations owed by the Customer to the Supplier under any Contract, whether actual, contingent, accrued or future;
Services means the Fleet tracking services and/or access to video footage provided through the
Supplier’s proprietary or licensed in web-based software and/or the Vehicle Check Service;
SIM means Subscriber Identity Module card providing network airtime;
Specification means the specification for the Products and Services in each case as set out in or linked to within the Sales Order Confirmation;
Statistical Data has the meaning in clause 12.4;
Subsequent Term means any extension to the Initial Term agreed in accordance with clause 15.2;
Supplier means the company Your NRG Ltd t/a Vatio Telematics that is detailed in the Sales Order Confirmation;
Telematics Dashboard means **DOMAIN TO BE CONFIRMED and any successor website and the content therein (including all and any displayed materials and graphics such as databases, maps, photographs, and other images) which shall include the Data Reports, and includes any application that is made available as part of the Vehicle Check Service;
Terms means these terms and conditions;
UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018; and
Vehicle Check Service means the application provided by the Supplier that assists with documenting regular vehicle checks.