Sales & Services Agreement

Smartwitness Emea Limited – Sales And Services Agreement

Sales & Services Agreement

The Customer's attention is particularly drawn to the provisions in clause 11. I. Interpretation Definitions. In these Conditions, the following definitions apply: Acceptable Usage: usage of the Services by the Customer, being usage of 100mb, 250mb or 500mb dependent on the agreed sales contract per SIM card per month, aggregated across all SIM cards held by the Customer from the Reseller.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Commencement Date: has the meaning set out in clause 1.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 14.6.

The Contract: This Sales and Services Agreement titled “SMARTWITNESS EMEA LIMITED - TERMS & CONDITIONS OF SUPPLY OF EQUIPMENT AND/OR PROVISION OF SERVICES”.

Customer: the person or firm who purchases and becomes the end user of the Equipment and/or Services from the Supplier.

Delivery Date: the date for delivery of the Equipment, as set out in the Order and/or as agreed by the Supplier and the Customer from time to time.

Delivery Location: the location for delivery of the Equipment, as set out on the Order, or such other location as the parties may agree.

Equipment: the Supplier’s equipment and the Goods (or any part of them) set out in the Order and supplied to the Customer by the Supplier in accordance with these Conditions.

Excessive Usage: excessive usage of the Services by the Customer, being usage in excess of the Acceptable Usage.

Force Majeure Event: has the meaning given to it in clause 13.1.

Equipment Specification: any specification for the Equipment, including any relevant plans or drawings that is set out in the Order and/or agreed in writing by the Customer and the Supplier.

Finance Agreement: means the contract between the Customer and the Finance Company.

Finance Company: means the business or company providing financial assistance to the Customer for the hire of the Equipment and/or Services.

Goods: any goods or equipment supplied by the Supplier and incorporated into the Equipment for provision of the Services, including, without limitation, any SIM card, software, middleware and/or hardware.

Initial Term: shall be as set out on the Order.

Installation Services: any services to install the Equipment to a Vehicle.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Liability: means any liability, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise.

Order: the Customer's order for the supply of Equipment and/or Services, as set out on the form overleaf.

Services: the services, including the Installation Services, supplied by the Supplier to the Customer as set out in the Service Specification, and the term Service shall be interpreted accordingly.

Service Specification: the description or specification for the Services (if any) set out in the Order.

Subsequent Term: the period of one (1) year or as the Supplier and the Customer shall agree in writing from time to time.

Supplier: SmartWitness EMEA Limited registered in England and Wales with company number 10284027 whose registered office is at Unit 2, Valley Point, Beddington Farm Road, Croydon, CR0 4WP.

Supplier Materials: includes all equipment, technology, products and materials owned or used by the Supplier.

Term: the Initial Term and any Subsequent Term for provision of the Services.

Vehicle: the Customer’s vehicle or other goods upon which the Equipment has been or is to be installed. In these Conditions, the following rules apply:

(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b) a reference to a party includes its successors or permitted assigns;

(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(e) a reference to writing or written includes faxes and e-mails.

1. Scope of the Agreement/Contract

1.1

The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order.

1.2 This Agreement will come into force on the date at which the goods are shipped from the Supplier’s warehouse if the delivery location is elsewhere, or at the moment the goods are deemed to be delivered at the Supplier’s warehouse otherwise, or in the case that the Supplier is arranging installations, it will be at the date the first vehicle is installed. (Commencement date)

1.3

Upon the expiry of the Initial Term, the Supplier shall automatically continue to supply the Services for the Subsequent Term and the Customer will continue to pay the Supplier subject to termination.

1.4

The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.

1.5

All of these Conditions shall apply to the supply of both Equipment and Services except where application to one or the other is specified.

1.6

This agreement applies to all orders and purchases of products and services by the signed Customer from Supplier. This agreement will continue to apply to all future orders made by the Reseller to SmartWitness until termination of the agreement, or unless otherwise specified by SmartWitness.

2. Equipment

2.1

The Equipment is described in the Supplier's catalogue, as set out in and/or modified by the Equipment Specification.

2.2

The Supplier reserves the right to amend the Equipment Specification if required.

3. Delivery of Equipment

3.1

The Supplier shall ensure that the delivery of the Equipment is accompanied by a delivery receipt detailing reference numbers, equipment type and quantity, special storage instructions and any outstanding balances.

3.2

The Delivery Date is approximate only. The Supplier shall not be liable for failure to deliver, or any delay that is caused by:

(a) a Force Majeure Event; or

(b) the Customer's failure to facilitate delivery.

(c) any breach by the Customer of clause 8.1.

3.3

If the Customer fails to accept or take delivery of the Equipment within three (3) Business Days of the Supplier notifying the Customer that the Equipment is ready, the Customer remains obliged to fulfil its payment obligations. In such case, the Products will be stored at the risk and expense of the Customer.

3.4

The Supplier may deliver the Equipment by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

3.5

The Supplier shall be given a commercially reasonable amount of time to attain stock for all orders. This reasonable time shall be calculated as approximately twenty-one (21) days. Any failure by the Supplier to meet orders within this time shall not amount to a breach of duties under this agreement.

4. Quality of Equipment

4.1

The Supplier warrants that on delivery the equipment shall be of satisfactory quality and fit for purpose as set out in the Consumer Rights Act 2015 or the Sale of Goods Act 1979 dependent on the contracting parties.

4.2

If the Customer gives notice during the warranty period that the equipment does not comply with clause 4.1 and gives the Supplier reasonable time to inspect such equipment:

(a) the Supplier shall repair or replace the defective Equipment; or

(b) the Supplier shall, if the equipment was purchased by the Customer in the last seven (7) days, refund the price of the defective Equipment in full.

4.3

The Supplier shall not be liable for the Equipment's failure to comply with the warranty in clause 4.1 if the failure is a result of:

(a) the Customers unintended use or adaption of the equipment beyond the instruction of the equipment or good trade practice;

(b) fair wear and tear.

4.4

The standard warranty period for all SmartWitness products is one (1) year unless otherwise specified by SmartWitness. 4.5

Should the Customer send back goods to SmartWitness not requiring a repair or replacement, a restocking fee shall apply. This fee will be calculated at 20% of the product sale value accruing weekly up until 4 weeks from the date of sale; at which time a restocking action will not be allowed.

5. Title and risk

5.1

The risk in the Equipment shall pass to the Customer on completion of delivery.

5.2

Title to the Equipment shall not pass to the Customer until the Supplier receives payment in full for the Equipment.

5.3

Title to the Equipment will remain with the Supplier if the equipment is rented from the Supplier.

5.4

Until title to the Equipment has passed to the Customer, the Customer shall:

(a) Take all reasonable measures to ensure the equipment remains in satisfactory condition and as installed by the Supplier.

(b) Notify the Supplier of any changes to the equipment and provide information as required from time to time.

5.5

In the event of a breach of clause 5.4 the Supplier may have:

(a) the Customer's right to resell Equipment or use it in the ordinary course of its business cease immediately; and

(b) the Supplier may at any time:

(i) require the Customer to deliver up the Equipment; and

(ii) if the Customer fails to do so promptly, enter any premises of the Customer, or of any third party where the Equipment is stored, or in order to recover it.

6. Supply of Services

6.1

The Supplier shall, for the Term, provide the Services to the Customer in accordance with the Service Specification in all material respects.

6.2

Any performance dates pertaining to the service shall be estimates only and time shall not be of the essence for the performance of the Services.

6.3

The Supplier shall notify the Customer of any changes required to comply with legal or technological requirements.

6.4

The Customer accepts that:

(a) the Supplier is not able to provide a fault-free Service, due to the nature of the technologies that perform and deliver the Service; and

(b) the Supplier shall have no Liability for provision of those parts of the Services that are subject to technologies that are outside of the Supplier’s direct control.

7. Customer's obligations

7.1

The Customer shall:

(a) take all reasonable measures to help further the process of implementing the service and use of the equipment.

(b) provide the Supplier with all information required.

(c) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.

(d) keep and maintain all materials, equipment, documents and other property of the Supplier.

(e) promptly inform the Supplier of any changes to the agreement including termination and damaged equipment.

(f) where the Supplier is not providing any Installation Services, ensure that the Supplier’s installation instructions and/or any manuals relating to such installation, are fully and accurately implemented and complied with; and

(g) in the event that the Equipment is leased or rented, either from the Supplier or a Finance Company, or subject to a Finance Agreement:

(i) use their best endeavours to protect the Equipment from damage including providing adequate insurance.

7.2

If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a) the Supplier shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Customer remedies the Customer Default,

(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Customer Default,

(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

8. Charges and payment

8.1

The price for the Equipment and Services shall be the price set out in the Order and:

(a) in respect of the Installation Services, the Supplier's standard fee rates apply to each Equipment installation taking place Monday to Friday between 8.00 am to 6.00 pm; and

(b) the Supplier shall charge additional rates for any part of any Equipment installation carried out by individuals outside the hours specified in clause 8.1(a).

8.2.

Should a specific agreement be made in which services are issued free of charge for an indicated time, fees for the service provided will resume as normal upon expiration of that indicated time period unless otherwise specified.

8.3

The Supplier reserves the right to:

(a) increase its standard daily fee rates for the charges for the Services, provided that such charges cannot be increased more than once in any 12 month period.

(b) Suspend services for non-payment and/or late payment applying a re-connection charge specified by Supplier.

(c) Increase the price of the Equipment and/or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Equipment and/or Services to the Supplier that is due to:

(i) any factor beyond the control of the Supplier

(ii) any request by the Customer to change the delivery date(s), or order.

(iii) any delay caused by any instructions made by the Customer,

(iv) any delay in provision of the Installation Services caused by any breach by the Customer of clause 7.1; and

(d) increase the price of the Services, by giving notice to the Customer, where there is any usage of the Services above the Acceptable Usage;

(e) charge the Customer for any Excessive Usage of the Services, at the rate of the amount stipulated in the Sales and Service Agreement if an addendum is issued allowing over usage.

(f) charge the Customer for any and/or all costs of replacement of any part of the Goods that are damaged, lost or stolen at any time; and

(g) change these Conditions. The Supplier shall exercise reasonable endeavours to notify the Customer of any such changes.

8.4

In respect of the Equipment and/or Installation and/or Services the customer will be charged on a pro-rata daily basis from the date of delivery and/or installation of each unit. The Supplier shall invoice the Customer prior to sending out the order, and on a monthly basis after this in relation to a service.

(a) if leased in accordance with a Finance Agreement, upon expiry of the Initial Period, the Supplier shall invoice the Customer on or at any time after expiry of the Initial Period in accordance with the terms of these Conditions.

8.5

The Customer shall pay each invoice submitted by the Supplier 30 days in advance. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of VAT.

8.6

If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, the Customer shall pay interest on the overdue amount at the rate of 5% per annum above Barclays Bank Plc's base rate from time to time. The Customer shall pay the interest together with the overdue amount.

9. Intellectual property rights

9.1

All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier. All Supplier Materials are the exclusive property of the Supplier.

10. Confidentiality

10.1

A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information as needed for the purpose of discharging the receiving party’s duties, or complying with the law. All such individuals and parties shall be informed of confidentiality as though they were part of the contract. This clause 10 shall survive termination of the contract.

11.

Limitation of liability:

THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

11.1

Nothing in these Conditions shall limit or exclude the Supplier's liability for:

(a) death or personal injury caused by its negligence,

(b) fraud or fraudulent misrepresentation;

(c) any such terms implied into the contract through legislation.

11.2

Subject to clause 11.1:

(a) the Supplier shall under no circumstances whatsoever have any liability to the Customer for any loss of profit or consequential loss.

(b) the Supplier's total Liability to the Customer shall in no circumstances exceed the purchase amount paid by the Customer in the three (3) months immediately prior to notification of the Supplier of the claim.

11.3

The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

11.4

The Supplier may from time to time perform a credit search on the Customer in order to fully assess any risks presented.

11.5

This clause 11 shall survive termination of the Contract.

12. Termination

12.1

Without limiting its other rights or remedies either party may terminate the Contract after expiry of the Initial Term by giving all entities party to this agreement not less than three (3) months' prior written notice and an email to accounts@smartwitness.com, such notice to expire on the Initial Term or any Subsequent Term.

12.2

Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party breaches its obligations under this contract and fails to remedy such breach within fourteen (14) days.

(b) the other party is unable to pay its debts under the Insolvency Act 1986.

(c) the process of winding up, bankruptcy, restructuring liquidation or administration has begun.

(d) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;

(e) the other party's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

(f) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

12.3

Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer, or suspend the supply of services or equipment if:

(a) the Customer fails to pay any amount due under this Contract on the due date for payment; or

(b) the Customer fails to pay any amount due to the Finance Company under the Finance Agreement: or

(c) the Finance Company notifies the Supplier of any breach by the Customer of the Finance Agreement; or

(d) the Customer becomes subject to any of the events listed in clause 12.2(b) to clause 12.2(f).

12.4

In the event the Services are suspended in accordance with clause 13, the Customer shall continue to make all payments for the Services during such period of suspension, and the Supplier may agree in writing to re-instate provision of the Services. Any such re-instatement shall be subject to payment of a reconnection charge by the Customer.

12.5

On termination of the Contract for any reason:

(a) the Customer shall immediately pay to the Supplier all of the payments already due to the Supplier, all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

12.4

Termination Fee

(a) In the event that the Customer wishes to terminate the contract while there are outstanding obligations on the part of the Customer, or while the contract is in operation and has not reached the end of its specified time period of operation, the Customer shall be charged a termination fee calculated as the equivalent of all outstanding charges under the order.

(b) Should a Customer wish to discontinue the contract after an initial contractual period has come to a close (roll over period), a disconnection charge will be charged at a rate specified by Supplier.

13. Force majeure

13.1

For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

13.2

The Supplier shall not be liable for a failure to perform obligations under this Contract as a result of a Force Majeure Event.

13.3

Should such an event prevent supply of services or equipment for more than four (4) weeks, the Supplier shall have the right to terminate this Contract by written notice to the Customer.

14. General

14.1

Assignment and other dealings.

(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract any or all of its obligations under the Contract to any third party.

(b) The Customer shall not, without the prior written consent of the Supplier, assign to a third party all or any of its rights or obligations under the Contract.

(c) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to such address as that party may have specified to the other party in writing and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.

(d) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address; if sent by pre-paid first class post or other next working day delivery service, at 11.00 am on the third Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.

(e) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

14.2

Severance.

(a) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, if shall not affect the legality and enforceability of the rest of the Contract, and the parties shall negotiate in good faith to amend such provisions so that it is legal, and, to the greatest extent possible.

14.3

Waiver.

A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.4

A person who is not a party to this Agreement may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.

14.5

Each party shall comply with its obligations under the applicable data protection legislation.

14.6

Non-solicitation

(a) The Customer shall not at any time for a period of two years from the date of this Agreement (“Restricted Period”), deal with or seek the custom of any person who is at the date of this Agreement or who has been at any time during the period of 12 months immediately preceding the date of this Agreement, a client or a customer of the Company or any of its Associated Companies.

(b) The Customer shall not during the Restrictive Period offer employment to, enter into a contract for the services of, or attempt to solicit or seek to entice away from the Company or any of its Associated Companies any individual who is at the date of this Agreement a director, officer or employee of the Company or any of its Associated Companies or procure or facilitate the making of any such offer or attempt by any other person.

(c) Each of the covenants in this clause 14 is a separate undertaking and shall be enforceable by the Company separately and independently of its right to enforce the other covenant contained in this clause 14.

d) Each of the covenants in this clause 14 is considered fair and reasonable by the parties but if any restriction is found to be unenforceable, but would be valid if any part of it were deleted or the period of application reduced, the restriction shall apply with such modifications as may be necessary to make it valid and enforceable.

14.6

Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.

14.7

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

14.8

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

14.9

Various addendums may vary the application of this agreement. Addendums will only have application to this if they specify clearly that they are intended to act as an addendum to this agreement, and are countersigned by authorised representatives of all parties involved including SmartWitness EMEA Ltd.

14.10

Should any clause or group of clauses when read together contradict wholly or partially any clause or group of clauses in SMART WITNESS - TERMS & CONDITIONS OF SUPPLY OF EQUIPMENT AND/OR PROVISION OF SERVICES, this agreement shall take precedence once signed by Customer.

By signing this form Customer hereby accepts and agrees to the terms and conditions as stated in this General Terms and Conditions for the Procurement of Products and Services.

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