Trakm8 Limited, is a limited company incorporated in England and Wales (registration number 04415597) having its registered office at 4 Roman Park, Roman Way, Coleshill, Birmingham, West Midlands, B46 1HG ("Trakm8", "us", "we"). Our office telephone number is 0330 333 4120.
Please read these Terms and Conditions carefully, as they set out our and your legal rights in relation to the rental of the Trakm8 Prime Product. Your attention is specifically brought to the limitations and exclusions of liability contained within Clause 11 below and the requirements of Clauses 4.1(d), 4.1(g), 7.4 and 12.
1. Definitions and Interpretation
In these Terms:
2. These Terms
Agreement means this Trakm8 Prime Rental Agreement;
Battery Status Data means the output from a battery health algorithm utilising Diagnostic Data;
Contract means each order for the rental and licence of the Trakm8 Prime Product;
Customer means your business or you as an individual as applicable;
Customer Hardware means your hardware on which the Mobile App is installed;
Data means Telematics Data, Driver Profile Data, Diagnostic Data, On Board Diagnostic Data, FNOL and Battery Status Data;
Data Protection Laws means the Data Protection Act 1998 and the General Data Protection Regulation ("GDPR") and any legislation implementing GDPR into national law;
Data Reports are on line reports containing your Data accessed through the Web Portal or Mobile App;
Diagnostic Data means refined data produced by the Hardware or the Customer Hardware which is derived from the On-board Diagnostic Data;
Driver Profile Data means the scoring output from the Supplier’s driver profiling algorithm;
Firmware means the software installed on the Hardware;
FNOL means first notification of loss which is an optional alert facility where a Data packet and video file (where available) is captured of a suspected crash event;
Hardware means the Trakm8 Telematics Units and/or Trakm8 Cameras as set out in your Contract;
Including means including but not limited to (and "include" and "includes" shall be read accordingly);
Initial Minimum Term is the first period of time for which you rent the Trakm8 Prime product which is twelve (12) calendar months;
Installation means fitting the Hardware into your vehicle either by self-installation if your vehicle is compatible or, by Trakm8 if it is necessary to have a hard-wired installation;
Intellectual Property means any patent, registered or unregistered design right, trade mark or other proprietary rights inherent in the Trakm8 Prime Product, 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 applications for and 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;
Licence Fee means the combined price you have agreed to pay monthly to use Trakm8 Prime and rent the Hardware during the Initial Minimum Term and where applicable thereafter;
Mobile App means a mobile device application which enable access to the Software and/or Data;
On-board Diagnostic Data means all raw, unprocessed data specified under the European On-Board Diagnostic standards available at a Vehicle or plant’s J1962 diagnostic socket or obtained from the Customer Hardware;
OBD Port means a specific vehicle’s On Board Diagnostics port;
Personal Data means any data or information which directly or indirectly relates to a living individual and, to the extent that the Data Protection Act Laws apply to such data or information, any data or information which relates to an organisation including a corporate entity;
Renewal Fee means the Licence Fee to continue your use of the Trakm8 Prime Product after the Initial Minimum Term;
Rental Period means the Initial Minimum Term plus any extension thereof;
Self-Install means installation of the Hardware by the Customer;
SIM means the Subscriber Identity Module card within the Hardware providing network airtime for the transmission of your Data;
Telematics Data means any combination of raw unprocessed, GPS, CANBus and accelerometer data;
Trakm8 Camera means a means an optical instrument for recording or capturing images, which are stored within the camera;
Trakm8 Prime means Trakm8's proprietary software that collects and processes Data from your vehicle;
Trakm8 Prime Product means the Hardware which is rented by you together with the licensed Trakm8 Prime software;
Trakm8 Telematics Unit means a vehicle telematics unit which includes a SIM card necessary to provide network airtime;
Trial Period if you have selected the trial option, the period of time of 30 days during which you have free use of the Hardware and Trakm8 Prime in order to ascertain their suitability;
Web Portal an internet gateway to access the content, functionality and report suite available from Trakm8 Prime and/or the Data;
2.1 By ordering, paying for and using the Trakm8 Prime Product you agree to be bound by this Agreement to the exclusion of all other terms and conditions.
3.1 Your Contract will set out the Initial Minimum Term and the Licence Fee. Your Contract is subject to this Agreement and in order for Contracts to come into force you must accept the quotations set out in your Contract;
3.2 Any subsequent orders for Trakm8 Prime will be subject to the provisions of this Agreement including the selection of one of the Initial Minimum Term options. We will default to your previous selection for an Initial Minimum Term unless you instruct us to the contrary.
4. Delivery & Installation of the Hardware
4.1 Unless otherwise agreed:
(a) we will deliver the Hardware to your requested address;
(b) we will be responsible for arranging postage or carriage for the Hardware
(c) you will be responsible for Self-Installation of the Hardware in accordance with the accompanying instructions unless your vehicle type requires a hard wired Installation which we will arrange with you at an additional cost which will be advised to and agreed with you at the point of purchase;
(d) you will be responsible for looking after the Hardware once it is delivered to you and you will be charged ninety-nine pounds (£99) for each item of Hardware if it is lost, damaged, or not returned to us at the end of the Rental Period or Trial Period.
(e) if you return Hardware to us after a Rental Period or Trial Period in order to terminate this agreement, you must retain proof of postage which we may require to be provided to us in the event that we do not receive the Hardware.
(f) where you have agreed a hard wired Installation of the Hardware the Installation may be performed by a third party engaged by Trakm8. Without prejudice to your statutory rights as a consumer under Distance Selling Regulations (when applicable), where you cancel an arranged hard wired Installation with less than twenty four (24) hours’ notice, or otherwise fails to present the vehicle at the agreed date, time or place of Installation we may charge you a late cancellation charge of seventy five pounds (£75) plus VAT.
(g) where you have ordered Self-Install Hardware, the Hardware must be used only with vehicles that are compatible with Trakm8 Prime. Compatibility must be checked using our compatibility checker at https://obdchecker.trakm8.net?location=0&compatibility=1. If the vehicle to which the Hardware is fitted is not confirmed to be compatible by our compatibility checker then Trakm8 is not responsible for any damage that may be caused to the vehicle or the Hardware. Where damage to the Hardware is caused by incompatibility with the vehicle, the customer will be charged for the Hardware in accordance with 4(d).
4.2 Any date or dates we advise to you for the delivery of the Hardware to you will be an estimate unless it is for a fixed wire Installation.
5. Ownership of the Hardware
5.1 Title to (ownership) the Hardware remains at all times with Trakm8.
5.2 You agree that you will: (i) retain the Self-Installed Hardware securely within the vehicle; (ii) not deface, destroy, alter or obscure any identifying mark on the Hardware; (iii) ensure that no charge, lien or other encumbrance is created over the Hardware; and (iv) return the Hardware to Trakm8 at the end of the Contract and retain proof of delivery or for fixed wire Installation you will arrange for Trakm8 to de-Install the Hardware.
6. Technical Support and Assistance
6.1 You agree to ensure that the Hardware is only used in accordance with this Agreement and you will not attempt to dismantle the Hardware or use it in any other way except as contemplated by this Agreement.
6.2 Technical support for Self-Installation, the Web Portal or Mobile App will be available to you by telephone 03303334121 and email firstname.lastname@example.org during normal United Kingdom business hours (Monday to Friday inclusive, 9.00 am to 5.00 pm excluding English public holidays).
7. Prices, Payment and Premature Termination
7.1 During the Rental Period we will issue a quarterly or annual invoice to you for the Licence Fee or Renewal Fee as applicable.
7.2 The first payment in respect of the Licence Fee will be for three months in advance if you have chosen quarterly payments, or for twelve months in advance if you have chosen annual payments. The Licence Fee/Renewal Fee will be collected quarterly or annually from the credit, debit card or bank details you have supplied to us, quarterly or annually in advance thereafter.
7.3 All prices payable under a Contract are exclusive of VAT.
7.4 If you terminate the Contract before the expiry of the Initial Minimum Term, all remaining payments due under the Initial Minimum Term shall become due immediately and will be collected from the credit or debit card details you have supplied to us.
8. Warranties & Licences
8.1 Trakm8 warrants that:
(a) the Hardware will be of satisfactory quality and Trakm8 Prime will be free from defects that materially affect its’ performance;
(b) the Trakm8 Prime Product will comply with all laws, rules, regulations applicable in the United Kingdom;
Other than the limited warranties under this Clause 8, all other warranties whether express or implied are excluded to the maximum extent permitted by law
8.2 Subject to you paying the Licence Fee(s), Trakm8 grants you a non-exclusive, limited Licence to use the Firmware within the Hardware for the Trial Period and the Rental Period. Except for the limited rights granted to you Trakm8 retains all proprietary rights and title inherent in the Firmware.
8.3 Subject to you paying the Licence Fee(s), Trakm8 grants you a non-exclusive, limited, fixed term Licence to use Trakm8 Prime, the Web Portal and Mobile App for the Trial Period and the Rental Period.
Except for the limited rights granted to you Trakm8 retains all proprietary rights and title inherent in Trakm8 Prime.
8.4 All grants of Licence under this Clause 8 are strictly conditional upon you not disassembling, decompiling, reverse engineering or otherwise attempting to change or modify the Software.
8.5 Trakm8 shall not be liable for any of the warranties under this Agreement in respect of Hardware where you or any of your employees or any other unauthorised third party attempts to; dismantle, impede, de-install, tamper with or repair such Hardware or attempts to remove or replace the SIM card of the Hardware or you fail to comply with the requirements of Clause 4.1(g).
8.6 Where Trakm8 is not liable for a breach of the warranties as per Clause 8.1(c), Clause 8.5 or otherwise, then Trakm8 will charge you the reasonable costs incurred in respect of any repair, service call out and/or supply of replacement Hardware.
8.7 The Trakm8 Prime Data Reports in respect of Data received from the Hardware in your vehicle or from the Customer Hardware will be available to you for not less than seventy (70) days from the date of collection of the Data.
8.8 Your attention is drawn to the fact that the availability of the Web Portal (or relevant parts thereof) and Mobile App and/or the Data Reports is dependent upon systems, technologies and other factors which are beyond Trakm8’s control including the Customer Hardware, mobile communication networks, Global Positioning System technologies (GPS) and General Packet Radio Service technologies (GPRS) operated by third party providers, the Internet and interconnected systems. Due to the nature of such technologies, systems and other factors, problems including outages, link failures, power difficulties, network overloads, signal degradation and topographic, electromagnetic and other interferences and government intervention may have an adverse effect on the availability of the We Portal, Mobile App and/or the Data Reports.
8.9 While Trakm8 endeavours to ensure that Trakm8 Prime is available 24 hours a day and to mitigate where possible the adverse effects of the problems referred to in Clause 8.8, Trakm8 shall not be liable in any way for loss(es) suffered as a result of any such problems or if for any other reason the Web Portal, Mobile App and/or Data Reports or any part thereof is unavailable to you at any time or for any period and access to the Web Portal, Mobile App and/or Data Reports may be suspended temporarily and without notice as a result of such problems or for any other reasons beyond our control.
8.10 Trakm8 shall have the right at any time to temporarily suspend access to the Web Portal, Mobile App and/or Data Reports for the purposes of maintenance; and to make changes to the functionality, presentation, features, mode of access and material content of the Web Portal, Mobile App and/or Data Reports. Trakm8 will in the ordinary course of events give reasonable notice to you of any planned access interruption.
8.11 You will need to continue to pay the Licence Fee in order to continue to use Trakm8 Prime Product beyond the selected Initial Minimum Term.
9. Telematics Data and Data Protection
9.1 Where Trakm8 processes Personal Data as your data processor (as defined by the Data Protection Laws) Trakm8 agrees to act on your lawful and reasonable instructions in relation to such Personal Data and provide an adequate level of security.
9.2 You acknowledge and agree that Trakm8 shall be entitled to use and process Personal Data for the purpose of providing the Trakm8 Prime Product.
9.3 Where you are a data controller, Trakm8 may also be a data controller in respect of its telematics provision. In such a case, in respect of Trakm8’s processing in respect of all data subjects from which you use the Trakm8 Prime Product to collect personal data, you will be responsible for ensuring a legitimate basis for processing under the Data Protection Laws, providing fair processing information to data subjects and for responding to data subjects’ requests to exercise their rights under the Data Protection Laws. You agree to indemnify us against and any all costs, damages, losses, liability and expenses we suffer or incur in connection with your breach of this Clause 9.3.
9.4 You also agree that Trakm8 may use the Data in a pseudonymised form to refine and optimise processing algorithms, associated R&D and other commercial activity.
10. Termination of the Rental Contract
10.1 You may give written notice (email or letter) to terminate your Contract 30 days prior to the expiry of the Initial Minimum Term or at any time thereafter on 30 days written notice. Trakm8 shall have the right to terminate or suspend this Licence by notice with immediate effect if you commit any breach of this Licence which is material (including failing to pay the Licence Fee) and not capable of remedy, or which is capable of remedy but which is not remedied within 7 days of written notice to do so. Termination of this Licence Agreement however caused shall be without prejudice to any rights or liabilities accrued as at the date of termination.
10.2 On termination or expiry of this Licence for any reason the Licence granted hereunder shall immediately cease and you will no longer be able to access Trakm8 Prime. You will return the rented Hardware to Trakm8 at the end of the Contract, maintaining proof of postage. In the case of fixed wire Installed Hardware, you agree to make the vehicle available for de-installation of the Hardware.
11. Limitations and Exclusions of Liability
11.1 Nothing in the Agreement or any Contract will:
(a) limit or exclude the liability of Trakm8 for death or personal injury resulting from negligence;
(b) limit or exclude the liability of Trakm8 for fraud or fraudulent misrepresentation by that Party;
(c) limit or exclude any liability of Trakm8 in any way that is not permitted under applicable law.
11.2 The limitations and exclusions of liability set out in this Clause 11
(a) are subject to Clause 11.1;
(b) govern all liabilities arising under the Agreement or in relation to the subject matter of any Contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
11.3 Trakm8 will not be liable to you in respect of; any loss of profits, income, revenue, use, production or anticipated savings, loss of business, contracts or commercial opportunities, loss of or damage to goodwill or reputation, any loss or corruption of any data, database or software or in respect of any special, indirect or consequential loss or damage whatsoever.
11.4 Trakm8 will not be liable to you for any losses arising out of a Force Majeure Event.
11.5 To the maximum extent allowable under the prevailing law, Trakm8 will not accept any liability for any damage arising to a vehicle where you have not ensured compliance with the provisions of Clause 4.1(g) and you have allowed the Self Installed Hardware to be fitted into a vehicle not advised to and agreed by the Trakm8.
11.6 Trakm8’s maximum aggregate liability to you under the Contract or otherwise will not exceed the total amount paid by you to Trakm8 under the applicable Contract.
12.1 Under normal operating conditions, each Trakm8 Telematics Unit will incur a maximum network data usage of 5Mb per month. These data charges are included within the Licence Fee for the Software. Save for any costs incurred due to the actions, delay or negligence of Trakm8; you agree to indemnify Trakm8 against all excessive network charges that arise through the misuse, loss or theft of the Hardware's SIM (Subscriber Identity Module) card.
12.2 You agree to notify Trakm8 immediately as soon as you are aware of any misuse, loss or theft of the Hardware unit and/or its SIM card.
12.3 You agree to indemnify Trakm8 from any third party claim made against Trakm8 resulting you failing to comply with the requirements of Clause 4.1(g)
13. Force Majeure
13.1 The obligations of each Party under this Agreement shall be suspended during the period and to the extent that the affected Party is prevented or hindered from complying with them by any cause beyond that Party’s reasonable control including strikes, lock outs, labour disputes, 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, difficulty or increased labour or materials costs in connection with the performance of obligations under this Agreement.
In the event of either Party being so hindered or prevented; the affected Party shall give notice of suspension and its cause and the omission to give such notice shall forfeit the rights of that Party to claim suspension under this Clause 13. Any Party whose obligations have been suspended as aforesaid shall resume the performance of those obligations as soon as reasonably possible after the removal of the cause and shall so notify the other Party. In the event that the cause continues for more than three months, either Party may terminate this Agreement by giving the other Party 30 days’ notice
14.1 No breach of any provision of a Contract or this Agreement will be waived except with the express written consent of the Party not in breach.
14.2 In the event of any dispute arising in relation to any of the terms of this Licence Agreement, both Parties agree to attempt to negotiate in good faith a mutually satisfactory resolution prior to resorting to legal proceedings.
14.3 If any provision of a Contract or this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract or this Agreement 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 Parties, in which case the entirety of the relevant provision will be deemed to be deleted).
14.4 Contracts or this Agreement may not be varied except by a written document signed by or on behalf of each of the Parties.
14.5 Trakm8 may freely assign its rights and obligations under a Contract or this Agreement without the Customer’s consent. The Customer may not assign its rights or obligations under a Contract or this Agreement without Trakm8’s consent.
14.6 Failure or delay by either Party in enforcing or partially enforcing any provision of this Agreement will not be construed as a waiver of any of its rights under this Agreement. Any waiver by one Party of any breach of, or any default under, any provision of the Agreement 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 of the Agreement. The Customer may not assign its rights or obligations under a Contract or this Agreement without Trakm8’s consent.
14.7 All Contracts will be governed by this Agreement which will be construed in accordance with the laws of England and Wales; and the courts of England and Wales will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with a Contract or this Agreement or its subject matter or formation.
15. Customer Complaints
15.1 We always endeavour to provide our Customers with exceptional products and services. However if things go wrong we will make all reasonable efforts to quickly resolve the issue. In the event that you are still dissatisfied with any aspect of your experience with Trakm8 or our products please contact in the first instance our technical support team at email@example.com or by telephone on 03303334121 during normal United Kingdom business hours (Monday to Friday inclusive, 9.00 am to 5.30 pm excluding English public holidays).
16. Consumer Customers
16.1 Consumer Customers (individuals, sole traders and small partnerships) orders come under the provisions of the Consumer Contract Regulations. If you are a consumer, you have a statutory right to cancel your order without incurring any liability for a period of up to 14 days from the day following the date you receive your Hardware, or from the point that you provide the vehicle for Installation of the Hardware ( the “Cooling Off Period”). To cancel your order under these provisions you must have purchased Trakm8 Prime over the telephone or by our website or by email. Cancellation must be notified to firstname.lastname@example.org.
16.2 You must return the Hardware to Trakm8 maintaining proof of postage. Provided the Hardware and/or Camera is returned undamaged, we will refund you monies paid by you within 14 days of having received your returned Hardware. Where you have requested commencement of the Trakm8 Prime Service before the elapse of the Cooling Off Period we will charge you for the period of Service utilised only up to the point of cancellation.