AUTOMATRICS
LIMITED mtrack – TERMS AND CONDITIONS OF
THESE TERMS AND CONDITIONS APPLY TO THE PROVISION
OF AUTOMATRICS LIMITED & PARTNER SERVICES AND THE
GENERAL
CONDITIONS APPLICABLE TO Automatrics
Limited “
1 definitions AND INTERPRETATION
1.1 In these
Conditions the following terms have the following meanings:
Area
of Coverage Based on
Charges In relation to the Service, any sums payable by Customer set out in
Schedule 1, in relation to Goods, and services Automatrics Limited list price
for such Goods and services, in each case from time to time
Customer The person of business who buys or agrees to buy
services and/or Goods from Automatrics Limited.
End
User the owner or keeper of an mtrack to be tracked.
Goods such transmitters, location devices and other items
as may be provided to Customer by Automatrics Limited from time to time
Mtrack
Mtrack
or Mtrack Pro GSM/RF/GPS
Technology system – The hardware supplied to the Customer as set out in the
provision of goods in this contract. The
technologies used by the mtrack are utilised by our staff or our finding
partner company staff to locate the mtrack units. The Customer may also use
the mtrack to recover their assets themselves if supplied and trained with the
recommended RF receiver. Details available upon request.
Inappropriate anything that:
(1) Is or may reasonably be considered to be
obscene, indecent, offensive, harassing or menacing;
(2)
Violates the rights of any third party (whether in relation to privacy,
publicity, copyright or other intellectual property rights, confidentiality or
otherwise);
(3)
Is intended to or does cause annoyance, worry or inconvenience;
(4)
That causes or contributes to any defamatory or libellous act; or
(5)
That is otherwise unlawful or promotes or contributes to any unlawful activity
Location information
on the location of an mtrack unit provided by where appropriate GPS satellites
or the Network GSM tracking provider and the RF homing beacon
Location
Request a request by Customer to be
provided with details of the approximate Location of an mtrack unit
Monitoring
and Finding 24/7 process of Monitoring Alarms, triggering alarms and
amending mtrack configuration carried out by our staff. This entails receiving
a GPS or GSM location from the Mtrack and then finding the exact Location using
homing beacon technology. This service is charged as set out in Schedule 1.
Agent
/ Retailer a person
or business that is authorised by Automatrics Limited from time to time to sell
the mtrack hardware.
Positional
Accuracy the accuracy within which the
mtrack whereabouts can be established
Service the
Automatrics Limited service provided from time to time by Automatrics Limited
in the Area of Coverage, as detailed in the Service Description
Service
Description the description of the Service appearing on the
Website and/or in Automatrics Limited official published literature from time
to time. The service to monitor and check for alarms, then if necessary locate
the Customers mtrack unit. If an mtrack needs to be located, Automatrics
Limited provides this service
Automatrics Limited are the providers of the National Finding Service to
locate and liaise with the Customer and Police relation to the Finding of their
mtrack and the asset it is protecting.
Tracking the
process of obtaining the Location of an mtrack located in the Area of Coverage
by means of the Service.
AUTOMATRICS
LIMITED Automatrics Limited 37 Whaddon Chase, Hillhead,
Website means
the website http://www.mtrackonline.co.uk/
1.2 In these Conditions:
1.2.1 headings
are used for convenience only and will not effect the interpretation of these
Conditions;
1.2.2 use
of the singular includes the plural and vice versa and use of any gender includes
the other genders;
1.2.3 any reference to any
statute, law, statutory instrument or other regulation having the force of law
shall be deemed to include any lawful amendment, re-enactment, extension,
replacement, modification, consolidation and/or repeal thereof; and
1.2.4
any reference to a person shall include natural
persons, partnerships, corporate bodies, associations and all other legal
persons of whatever kind howsoever constituted.
2 PROPERTY RIGHTS
2.1 The
Goods are sold subject to the rights of any person whether in respect of any
patent, trademark, registered design, copyright, confidential disclosure or
otherwise to prevent or restrict the sale or use of the Goods in any part of
the world and the Customer will in this respect accept such title to the Goods as
Automatrics Limited may have. The Customer hereby acknowledges their sole
responsibility to comply with all terms and conditions of any licence attaching
to Third Party Software supplied and delivered by Automatrics Limited. The Customer hereby acknowledges that failure
to comply with such terms and conditions may result in the Customer being
refused a software licence or having the same revoked by the proprietary
owner. The Customer hereby further agrees
to indemnify Automatrics Limited in respect of all costs, charges or expenses
incurred by Automatrics Limited as a result of any breach by the Customer of
such conditions.
3 USE OF THE
SERVICE AND/OR GOODS
3.1 Customer
shall at all times be responsible for ensuring that its use of the Service
and/or Goods is in accordance with all relevant statutes, regulations,
directives and similar items having the force of law and that it has all
permits, licences, consents and permissions required for the lawful use of the
Service and/or Goods.
3.2 By
supplying the Service and/or Goods, Automatrics Limited does not make any
representation or give any warranty as to the legality of the Service and/or
the use of Goods in the
3.3 In
particular but without limitation to clause 3.1, Customer shall not use the
Service and/or Goods in any way, which is Inappropriate.
4 WARRANTIES AND liability
4.1 All warranties, conditions and other
terms implied by statute or common law is, hereby excluded to the fullest
extent permitted by law. It is the Customers responsibility upon entering into
agreement to accept or reject terms and conditions regarding monitoring and
finding, Automatrics Limited will use all reasonable efforts to ensure ETS
Norway (the system providers) provider
partner should Automatrics Limited cease
trading.
4.2 Automatrics Limited shall not be
liable for any claim to the extent that the claim relates to loss of profits,
goodwill, anticipated savings, business opportunity, data or use of data,
injury to reputation, third party losses or indirect, consequential or special
loss or damage regardless of the form of action, whether in contract, strict
liability or tort (including negligence) and regardless of whether Automatrics
Limited knew or had reason to know of the possibility of the loss, injury or
damage in question.
4.3 Nothing in these Conditions shall
limit Automatrics Limited liability for death or personal injury caused by
negligence, for fraud or fraudulent misrepresentation, for breach of the
conditions as to title and quiet enjoyment implied under English law or for any
other liability, the exclusion or limitation of which is prohibited by English
law.
4.4 Save as provided in clause 4.3, Automatrics
Limited shall not have any liability to Customer unless a claim is brought
within 6 months of the date Customer was or ought to have been aware of the
circumstances giving rise to the claim.
4.5 Save as provided in clause 4.3 Automatrics
Limited total aggregate liability under any claim or series of claims arising
from any one act or default of Automatrics Limited howsoever such claim or
claims arise (be it by negligence, breach of contract, misrepresentation or
otherwise) shall in no circumstances exceed the aggregate to the price of the
Goods in question and ultimately be
limited on the liability maximums laid down by Automatrics Limited
insurers.
4.6 Automatrics Limited is under no
obligation to provide leasing or finance to the Customer. But this may be
available upon request
4.7 Automatrics Limited accepts no
liability for the actions, requests or responsibilities of any leasing or
finance company if used to purchase the Goods and/or monitoring service.
5 FORCE MAJEURE
Automatrics Limited will not be liable for any
failure to comply with its obligations under these Conditions to the extent
that such failure results from circumstances beyond Automatrics Limited
reasonable control.
6 NOTICES
6.1 Any notice, request, instruction or
other document to be given by a party hereunder shall be delivered by hand,
sent by pre-paid first class post, or by facsimile or e-mail transmission to
the recipient's address, fax number or e-mail address notified to the other
from time to time.
6.2 Unless proved otherwise, a notice
shall be deemed to have been received if delivered by hand, at the time of
delivery; if sent by facsimile or e-mail during the business day of
transmission as long as the sender can show satisfactory transmission; and if
sent by post, 48 hours after posting.
7 GENERAL
PROVISIONS
7.1 Automatrics Limited may make
changes to these Conditions from time to time.
Any such change shall apply only to those Services and/or Goods
purchased by Customer after the date of such change. Customer is reminded of the need to
periodically check these Conditions for changes.
7.2 These Conditions contain all the
terms agreed by the parties in relation to the provision of the Service and/or
Goods and supersede all prior arrangements, understandings and arrangements
whether oral, in writing or arising from a course of dealing. Customer acknowledges that in purchasing the
Service and/or any Goods it has not relied upon any matter not set out herein.
7.3 A person who is not a party to the
contract between Automatrics Limited and the Customer has no right under that
contract (including, without limitation, these Conditions) whether under the
Contracts (Rights of Third Parties) Act 1999 or otherwise.
7.4 Customer shall not assign, transfer,
sub-contract, delegate or in any way dispose of its rights and/or obligations
under these Conditions without the prior written consent of Automatrics
Limited. Customer acknowledges that Automatrics
Limited may assign, sub-contract or delegate the whole or any part of its
rights and/or obligations under these Conditions.
7.5 If any provision of these Conditions
is held by any court or other competent authority to be invalid or
unenforceable in whole or part, the validity of the other provisions of these
Conditions and the remainder of the provision in question shall not be affected
thereby.
7.6 The failure of Automatrics Limited
to enforce or to exercise at anytime or for any period of time any right
arising pursuant to this Agreement does not constitute and shall not be
construed as a waiver of such term or right.
7.7
The laws of
7.8
The failure
of Automatrics Limited to enforce or to exercise at anytime or for any period
of time any right arising pursuant to this Agreement does not constitute and
shall not be construed as a waiver of such term or right.
CONDITIONS APPLICABLE TO THE PROVISION OF THE SERVICE
8
PAYMENT
8.1
Customer shall pay Automatrics Limited the Charges for the Goods the Monitoring Service, and a finding fee if required . All payments must be made in
pounds sterling (£) without set off or deduction by the method of payment
detailed below in Schedule 1. All Charges are exclusive of VAT and the costs of
delivery that shall be paid by Customer in addition to the Charges
8.2
The Customer shall pay the Price and any other sums due in respect of
the Goods prior to despatch, and the Customer shall pay in advance the annual
service / subscription / monitoring fee.
8.3
On the fulfilment of the Company’s obligations under the contract, the
Customer may renew the Contract by placing a new order with the Company that
shall again constitute an offer that is open to be accepted or rejected by the
Company.
8.4 Automatrics Limited may deliver by
installments in such quantities as it may reasonably decide; such installments
shall be separate obligations and no breach in respect of one or more of them
shall entitle the customer to cancel any subsequent installments or repudiate
this contract as a whole.
9 PROVISION OF SERVICE
9.1 In
consideration of Customer's payment of the Charges, Automatrics Limited will provide the Service in accordance with the
Service Description, subject to these Conditions.
9.2 Automatrics Limited warrants that it will provide the Service with
reasonable care and skill but does not warrant and excludes all liability
arising from:
9.2.1 the Positional
Accuracy of the Service;
9.2.2 any failure, inaccessibility or
downtime (whether planned or otherwise) in the Network which results in a
Location Request not revealing the Location of any End-User, either accurately
or at all;
9.2.3 any failure of or, its inability to
provide, Tracking due to the End User's mtrack being un-configured, having
insufficient battery charge, in an area with no coverage for an extended period
of time.
10 END
USERS
10.1 Customer
acknowledges and accepts that Automatrics Limited ability to provide the Service
is dependent upon:
10.1.1 the
End User consenting to be tracked at all times
10.1.2 the
End User being in the Area of Coverage when a Location Request is made.
10.13 the
End User ability to ensure the tracking device is well hidden and not easily
detected by any third party
10.2 Customer
shall be responsible for procuring each End User's initial consent to be
Tracked in accordance with their own company policy and any necessary
interpretation of the Data Protection Act or Human Rights Act, and withdrawing
or refusing its consent to be Tracked.
10.3 Customer
acknowledges that End Users have the right to withdraw from the Service at any
time and that Automatrics Limited shall be bound to comply with any such
withdrawal with immediate effect.
11 OBLIGATIONS OF CUSTOMER
11.1 Customer agrees to comply with these Conditions at all times in relation
to its use of the Service.
11.2 Any
code name, password and/or personal identification
number issued to Customer (whether serial number or otherwise) are personal to
Customer and Customer shall not disclose the same to any third party or allow
any third party to use the Service using such code name, password and/or
personal identification number.
11.3 Customer
will not use the Service to provide mtrack location verification or similar
services to any third party.
11.4 Customer
acknowledges that:-
11.4.1 Positional
Accuracy is a function of the available GPS or GSM Network signal in any
particular area and therefore Positional Accuracy is better in certain areas due
to coverage and visibility. Automatrics Limited makes no warranties against
equipment that does not have a GSM signal and therefore finding which is
dependent on this signal also carries the same requirement
11.4.2 Positional
Accuracy can be affected by a number of other factors such as cell availability
on the Network, Network up-time, Network maintenance, GSM signal strength and
atmospheric conditions; and
11.7 In
the event that Customer wishes to make Location Request to Automatrics Limited in
respect of its employees Customer warrants that in all employment contracts
and/or terms and conditions of service with such employees it has obtained the
consent of such employees to be Tracked if such permission is required.
11.8 Customer
shall indemnify and hold Automatrics Limited harmless against any and all loss,
damages, costs, expenses and any other liabilities whatsoever awarded against,
suffered, sustained or incurred by Automatrics Limited as a result of any
claim:
11.8.1 relating
to improper use by Customer of the Service;
11.8.2 resulting
from Customer's breach of these Conditions; and
11.8.3 otherwise
arising out of the conduct of Customer in using the Service or any inaccuracy
in any information provided by Customer.
118.4 Customer
shall give to Automatrics Limited all reasonable assistance for the purposes of
any such claim.
12 CANCELLATION AND SUSPENSION
12.1 Automatrics Limited shall be entitled to cancel the provision of
the Service to Customer without refund penalty or liability forthwith on giving notice in writing to Customer
if:
12.1.1 Customer commits any material breach of
any term of these Conditions and (in the case of a breach capable of being
remedied) shall have failed, within 30 days after the receipt of a request in
writing from Automatrics Limited to do, to remedy the breach; or
12.1.2 Customer shall have a receiver or
administrative receiver appointed over the whole or any part of its undertaking
or assets or shall pass a resolution for winding up (otherwise than for the
purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a
court of competent jurisdiction shall make an order to that effect or if
Customer shall enter into any voluntary arrangement with its creditors or shall
become subject to an administration order or Customer ceases or threatens to
cease to carry on business or shall suffer any similar insolvency or bankruptcy
proceeding or action under the laws of any jurisdiction.
12.2
Automatrics Limited shall be
entitled without penalty or liability to suspend the Customer's access to the
Service at any time immediately upon written notice in the event that Customer
uses or has reason to believe that the
Customer is using the Service in any way that is Inappropriate.
12.4 The Customer shall not cancel the
Contract without obtaining written consent from the Company. If consent is
given, the Customer shall indemnify the Company against all loss of costs,
charges, expenses and profit incurred by the Company in respect of the Contract
up to the date of receipt by the Company of the written notification of
cancellation by the Customer
13 EFFECT OF CANCELLATION
13.1 Any cancellation or suspension of the
Service shall be without prejudice to any other rights or remedies a party may
be entitled to under these Conditions or at law and shall not affect any
accrued rights or liabilities of either party nor the coming into or
continuance in force of any provision hereof which is expressly or by
implication intended to come into or continue in force on or after such cancellation.
13.2 Upon cancellation of Service Automatrics
Limited Cease the provision of the Service.
CONDITIONS APPLICABLE TO THE SUPPLY OF GOODS
14 DELIVERY & TITLE
14.1 In consideration of Customer's payment
of the Charges, Automatrics Limited will provide the Goods and Services,
subject to these Conditions.
14.2 No order for Goods will be binding
until such time as Automatrics Limited has accepted it in writing.
14.3 Automatrics Limited will use
reasonable endeavors to deliver the Goods to Customer within 28 days of the
date upon which Customer's order is accepted by Automatrics Limited but time of
delivery shall not be of the essence.
14.4 Risk in the Goods will pass to
Customer upon delivery.
14.5 Title to the Goods shall not pass to
Customer until such time as Automatrics Limited shall have received payment of
all sums due to it from Customer.
14.6 Prior to the title in the Goods
passing to the Customer the Customer shall hold the Goods as Fiduciary agent to
Automatrics Limited and shall keep the Goods separate from any other goods
properly stored, protected and insured and clearly identified and shall bear
the costs thereof.
14.7 The
Customer’s right to possession of the Goods shall terminate immediately upon
the occurrence of any the events detailed in clauses 12.1.1 and 12.1.2. On termination of this agreement, howsoever
caused, Automatrics Limited’s (but not the Customer's) rights contained in this
clause 14 shall remain in effect.
14.8 The
Customer grants Automatrics Limited, its agents and employees an irrevocable
licence at any time to enter any premises where the Goods are or may be stored
in order to inspect them, or, where the Customer’s right to possession has
terminated, to recover them.
15 MANUFACTURER’S
WARRANTIES
Automatrics
Limited will where possible use reasonable endeavours to pass to Customer the
benefit of any warranties given by the manufacturer of the Goods. A defective mtrack with a valid warranty will
either be repaired or replaced with a new mtrack. Replacement or repair of the
product does not extend the original warranty period.
The
warranty conditions for possible manufacturing defects does not cover:
·
defects without
significance for the operation and use of the product
·
defects caused by the
customer as a consequence of incorrect installation or use, and modifications
or alteration to the product
·
defects resulting from
abnormal use
A further condition for the warranty is that the
identity number label on the mtrack has not been altered or removed.
15.1 Automatrics limited warranties for one
year from date of delivery the mtrack to the following specification.
15.1.2 upon receipt of an alarm or customer
authorization, the unit can emit a radio homing beacon that complies with FCC
regulations. Finding of the mtrack using this signal is for professional
Finding teams only and Automatrics Limited makes no warranties or guarantees
for Finding.
15.1.3
the mtrack battery will last in accordance
with the Customers usage, although this is greatly affected by configuration.
Promotional literature for the mtrack contains suggested lifetime of the
battery based on laboratory conditions and do not necessary reflect the type of
usage the mtrack is put through by the Customer.
15.2 Automatrics Limited makes no guarantee or warranty that the mtrack unit
can be recovered if stolen.
16 OBLIGATIONS OF CUSTOMER
16.1 Customer agrees to comply with these Conditions
at all times in relation to its use of the Goods.
16.2
Customer agrees to understand the mtrack specification as set out in
Section 15.
16.3
Returns
16.3.1
The Customer shall inspect the Goods immediately on delivery and shall
within 48 hours of delivery notify Automatrics Limited of any damaged goods,
defects or discrepancies. The Customer
shall be deemed to have accepted the Goods if the Customer shall have removed
the Goods from their wrapping.
16.3.2
Any damaged defective or unopened Goods must be returned to Automatrics
Limited within 14 days of delivery. In
circumstances where the Product manufacturer’s Terms and Conditions are more
rigorous than those of Automatrics Limited the Customer must, as Automatrics
Limited will be obliged to, comply with those requirements.
16.3.3
If the Customer returns any Goods more than 60 days after the invoice
date Automatrics Limited will make good by repair or at Automatrics Limited’s
sole option replace any Goods which under proper use are, or become, defective
within a period of 12 months from the date of invoice.
16.3.4
Before returning any Goods to Automatrics Limited for whatever reason a
return authorisation number (RAN) must be obtained and the returns procedures
and conditions detailed below must be followed. RAN numbers are valid for 14
days only.
16.4 Customer acknowledges that:-
16.4.1 Electronic Tracking Service AS are responsible for ensuring the hardware
complies with the specification in Section 15 and the hardware or the
Automatrics Limited Service, Monitoring and Finding cannot ensure the Finding
of a stolen mtrack.
16.4.2 Customer shall indemnify and hold Automatrics
Limited harmless against any and all loss, damages, costs, expenses and any
other liabilities whatsoever awarded against, suffered, sustained or incurred
by Automatrics Limited as a result of any claim:
16.4.3 relating to Inappropriate use by Customer
of the Service;
16.4.4 resulting from Customer's breach of these
Conditions; and
16.4.5 otherwise arising out of the conduct of
Customer in using the Service or any inaccuracy in any information provided by
Customer.
16.4.6
If the Customer utilises the services of a financing or leasing company
to pay for the Goods, the Terms & Conditions of the company must be adhered
to and the Customer shall not hold Automatrics Limited liable for the actions
or requirements of that finance or leasing company.
16.5 Returns
Procedure
16.5.1
First you must obtain a Return Authorisation Number (RAN). For refund as 16.6.1 or faulty or
incompatible Goods please call our Technical Department on 01329 663812. In order to expedite returns some Goods are
referred to the manufacturer who will deal with the return.
16.5.2
We will only accept Products that are in a ‘Returnable Condition’. For Products to be in a Returnable condition
they must be returned to us with all items included in the original sale
including manuals cables disks and any free software items. For Goods being returned for a refund the
original product packaging must also be returned in a suitable condition.
16.5.3
The Product must be adequately wrapped to prevent damage during transit
with the Returns Number clearly marked on the outside of the package. It would help us to speedily process your
return if you also enclosed a detailed note of the fault.
16.5.4
Send your package to: Automatrics Limited, 37 Whaddon Chase, Hill Head,
16.5.5
Automatrics Limited does not accept liability for packages damaged
during transit and proof of postage is not proof of delivery. You are therefore strongly advised to send
your package by recorded delivery, registered post or courier and maintain
sufficient insurance to cover the value of the goods. The cost of return carriage is to be borne by
the customer.
16.5.6
On receipt of the package the product will be tested against the stated
fault (if any). Tested Goods found to be
in full working order will be returned to the customer.
16.5.7
Goods that are not defective or damaged and accepted by Automatrics
Limited for restocking are subject to a 15% handling charge.
16.6.1 Shopper has right to cancel within (7) seven Days from the
receipt of goods.
16.6.2 Return of goods for refund must follow the Returns Procedure
16.5
17 GOODS IMPORTED FROM THE UNITED
STATES
Certain Goods supplied by Automatrics
Limited may have been purchased from the
Schedule 1 – Charges
PRICE
Hardware,
Monitoring and Finding price lists, catalogues, advertising matter or similar
materials issued by Automatrics Limited are indicative only as to the price and
range of products available from time to time and information contained therein
shall not be binding on Automatrics Limited.
The
Price shall be the price quoted by Automatrics Limited at the time of the
Customer placing the order and shall exclude delivery charges and Value Added
Tax (which shall be due at the rate ruling on the date of Automatrics Limited
invoice)
Automatrics
limited reserves the right to amend quoted prices and delivery charges at
anytime prior to delivery
On
the fulfilment of the Company’s obligations under the contract, the Customer
may renew the Contract by placing a new order with the Company that shall again
constitute an offer that is open to be accepted or rejected by the Company.
LEASING
Where
leasing, customers must read and agree to the leasing companies own Terms &
Conditions. Automatrics Limited can arrange leasing, but the relationship is
between the Customer and the finance company. Note that fees for arranging and
throughout the lifetime of the finance are normally applicable.
The
Customer is advised to note that the Goods leased or financed remain the
property of the leasing/finance company until a final payment is made unless
their Terms and conditions state otherwise. These companies will normally
insist that the goods are insured.