Smart Track Vehicle Tracking Service Agreement

THIS AGREEMENT(which includes the above Schedule and all the following clauses and provisions) is made as of the date specified BETWEEN Smart Track , a company duly incorporated under the Laws of Jamaica with registered office at 36 Patrick Drive, Kingston 20, Jamaica (hereinafter referred to as “Smart Track”) of the One Part AND the party(ies) whose name(s) and address(es) are set forth in Items in the attached form (hereinafter, together jointly and severally if more than one, referred to as the “Customer”, which expression shall include Customer’s personal representatives, successors and permitted assigns) of the Other Part

Whereas:

  1. Smart Track  has entered into arrangements pursuant to which Smart Track  is in the business(inter alia) of installing Vehicle Units (as defined herein) in the motor vehicles of customers in Jamaica which allow such customers to access the Personal Vehicle Tracking and/or Fleet Management Services(as described below) and providing certain related services set forth herein:
  2. Smart Track  does not offer armed response or vehicle recovery security services, however these service are provided to Smart Track via a third party security provider.
  3. The Customer is desirous of purchasing the Selected Services (as defined herein) and as entered into this Agreement which allows Smart Track  to sell and install the number of Vehicle Units from time to time as agreed by the parties in the Customer’s motor vehicle(s) to facilitate the provision of the Selected Services to the Customer on the terms and conditions hereinafter set forth;

NOW IT IS HEREBY AGREED as follows:

Definitions and Interpretations

  1. In this Agreement:
  2. The “Selected Services” means the services selected at Item 7 of the attached form  from among the service options therein specified;
  3. “Vehicle Unit” refers to hardware designed to compile and transmit, via the Vehicle Tracking and Fleet Management Platform, relevant data relating to the vehicle in which it is installed, to enable the Vehicle Tracking and Fleet Management Services to be provided to the Customer.
  4. “Vehicle Tracking and Fleet Management Services” refers to the service that uses Vehicle Units, and incorporates GSM SIM cards and a gps tracking software that typically resides in the Internet Cloud and associated database servers and is accessed through the internet, which – (i) displays maps displaying locations of installed and functioning Vehicle Units, (ii) stores the position data for a period of time, and (iii) handles basic alerting, reporting and customer administration features, using a GSM network for the transmission of data, it being understood that the features comprised in the Vehicle Tracking and Fleet Management Service may change from time to time;
  5. The “Warranty Period” in relation to a Vehicle Unit and any related components, means the period of (1) year from the date that the Vehicle Unit was purchased from Smart Track Ltd for light vehicles and 6months for mid and heavy duty vehicles or such other period as applies to the chain of warranties originating from the overseas supplier through Smart Track .
  6. In this agreement the word “Customer” shall be deemed to include the masculine, feminine of neuter genders, and where the context so requires the singular form of expression shall be deemed to include the plural form.
  7. Where there is more than one person included within the defined term “Customer” at Item 1 or 2 of the above Schedule, all obligations of the Customer under this agreement shall be imposed on and assumed by such persons both jointly and severally.
  8. The headings used herein are solely for convenience and will not be used in interpreting or constructing this agreement.

Installation Services

  • Smart Track  agrees to supply the customer with a Vehicle Unit and make provisions for its installation in accordance with and subject to the terms and conditions specified herein.
  • Smart Track  may subcontract any of the services or responsibilities on its part to be performed under this agreement, to such sub-contractor as Smart Track  deems fit.
  • Provided the Customer is in compliance with all the customer’s obligations under this contract, Smart Track  shall provide and/or procure the provision of the following services in connection with the Selected Services:
    • Installation of the Vehicle Unit(s) in the customer’s motor vehicle(s), by appointment;
    • After the initial installation, maintaining the Vehicle Unit(s) through routine servicing at the offices of Smart Track  or other specified location as shall be notified to the customer by Smart Track ; and
    • Technical support and customer care

Fees and Payments

  • The Customer shall pay to Smart Track  the Fee(s) specified at Item 6 of the above Schedule  for the initial installation of the Vehicle Unit, together with general consumption tax thereon(“GCT”) at the applicable rate from time to time as needed.
  • The Customer shall pay to Smart Track  the specified subscription fee where applicable, which is specified at Item 6 of the above Schedule  for access to the Selected Services, together with GCT thereon at the applicable rate from time to time, subject to Smart Track ’s right to vary the recurring subscription fee as hereinafter provided.
  • Smart Track  may from time to time, by notice in writing to the Customer, vary the fees payable by the Customer to Smart Track  for the initial installation of the Vehicle Unit and for access to the Selected Services, and each such variation shall take effect from the date specified in such notice(or, if no such date is specified, such variation shall take effect from the date specified in the notice).
  • The initial installation fee covers the charge for installing the Vehicle Unit in the motor vehicle, and the Customer shall pay Smart Track or such subcontractor as Smart Track deems fit, the initial installation prior to the installation of the Vehicle Unit.
  • Where applicable, the monthly subscription fees for the Selected Services accrue in full 30 days from the initial installation date.
  • Where applicable, each annual subscription fee for the Selected Services accrue in full on the 365 days from of the initial installation of the Vehicle Unit.
  • Where applicable, each quarterly subscription fee for the Selected Services accrue in full on the 3-month mark from the initial installation of the Vehicle Unit, and each 3month period thereafter.
  • The Customer shall pay to Smart Track  all monthly, quarterly or annual fees and all other fees and charges charged by Smart Track  for the Selected Services, together with GCT thereon at the applicable rate from time to time, on or before the due dates specified in Smart Track’s invoices. 
  • Smart Track will invoice the Customer on a monthly, quarterly, yearly basis in advance or at such other intervals as Smart Track  may from time to time determine.
  • The Customer will be liable to pay interest on invoiced amounts which are not paid in full to Smart Track by the Customer on or before the due, date, such interest accruing from day to day, as from such following due date, at the interest rate charged by Smart Track’s main commercial bank from time to time unauthorized overdrafts (and such interest rate shall prevail both after as well as before judgement).

Getting Started

  1. The Customer shall at the time of ordering the Vehicle Unit agree a security password with Smart Track  and it is understood and agreed that Smart Track  is under no legal obligation to provide any services to the Customer until the Customer has confirmed to Smart Track the Customer’s Agreement with security password. If no password it provided, Smart Track will create a temporary password which can be changed at the customer’s request.
  2. The Customer shall make the motor vehicle(s) in which the Vehicle Unit is installed, available to Smart Track  or its authorized agent for the installation of the Vehicle Unit(s) on the day date and time appointed for same, and agrees that the Customer will become liable to a cancellation fee(and GCT) if the Customer fails to keep the appointment after giving prior confirmation thereof without prior notification atleast 48 hours in advance of the appointment date and time.
  3. The Customer agrees to furnish Smart Track at the time of installation with copies of the certificates of registration and motor vehicle certificate of title respectively for the Customer’s motor vehicle(s) in which the Vehicle Unit(s) is/are installed.

Rules for the use of the Selected Services

  • The Customer shall use the Vehicle Unit and the Selected Services as instructed by Smart Track.
  • The Customer ensures that once installed, the Vehicle Unit(s) is/are not modified and/or removed at any time or under any circumstances by any person other than Smart Track or Smart Track’s authorized agents, or written permission given by Smart Track.
  • The Customer shall keep confidential and is responsible for maintaining confidentiality of Customer’s personal credentials(Account ID, User ID and password)(Personnal Account Credentials) and for restricting third party access to the Personal Account Credentials. Customer agrees to accept responsibility and liability for all activities that occur using the Personal Account Credentials whether lawful of unlawful and agrees to notify Smart Track immediately if there has been an unauthorized use of the account or any other breach of security. Smart Track is not liable for any loss the Customer may incur as a result of someone else using the Personal Account Credentials either with or without the Customer’s knowledge. The Customer is also solely responsible for all uses of the Personal Account Credentials, whether or not actually or expressly authorized by the Customer.
  • The Customer shall comply with all applicable foreign and local laws relating to its use of the Selected Services under this Agreement(including or without limitation, export and control laws and regulations).
  • The Customer agrees to contact Smart Track immediately if the motor vehicle battery in the Customer’s motor vehicle(s) is disconnected for any reason whatsoever, in order for Smart Track to test the Vehicle Unit(s) to confirm whether it is functioning or not.
  • If the motor vehicle in which the Vehicle Unit is installed is involved in a motor vehicle accident, the Customer agrees to contact Smart Track immediately so that Smart Track can test the Vehicle Unit to confirm that if it is functioning correctly.
  • The customer agrees that the Customer will keep the fact that there is a Vehicle Unit installed in the Customer’s vehicle(s) secret and will not place any manufacturer’s stickers, or otherwise advertising the Selected services on such motor vehicle(s).
  • The customer shall not open(or permit any third party who is not authorized by Smart Track to open the vehicle Unit or tamper with it under any circumstances,
  •  The Customer shall provide all proofs of identity and other information that Smart Track  shall require from time to time and shall co-operate with Smart Track in its security and other checks.
  • Where the Selected Services includes the stolen vehicle recovery service by a third party provider, Smart Track shall not be under any obligation to attempt the recovery of the motor vehicle however where the vehicle has been stolen and the customer has uttered the passwords to Smart Track’s operator at its Monitoring Centre, Smart Track will assist in providing as much support as reasonably possible in locating and providing details to either the police, security provider, customer or all the afore mentioned.
  • Where the customer selects the vehicle tracking service that includes vehicle monitoring and or recovery, upon being informed by the customer that the vehicle has been stolen, Smart Track will notify our third party recovery team, then make an initial report to the police and liaise with the investigating team by providing information of the vehicle’s current location. Once the vehicle is recovered, all costs associated with the recovery/return of the vehicle will be borne at the owner’s cost.
  • Where the customer purchases any other Smart Track provided security devices including but not limited to wireless immobilizer/kill switch systems, anti-hijacking systems, vehicle tracking systems, etc, the customer absolves Smart Track  from any responsibility for damage to property, injury, death or any other liability, except where the outcome was caused by Smart Track’s negligence. If the outcome is proven to have been caused by Smart Track’s negligence, Smart Track will assist with repairs subject to an assessment by a Smart Track approved assessor up to maximum of JMD$50,000 and the customer agrees that no further action will be taken by the customer against Smart Track or its agents.
  •  If the Customer decides before the installation of the vehicle unit that the customer does not want to proceed with the Selected Services, the customer may cancel this agreement by notice in writing to Smart Track prior to installation, subject to paying Smart Track’s standard cancellation fee(if applicable) and GCT thereon or any costs and expenses incurred by Smart Track in anticipation of providing the Selected Services prior to receiving such notice from the Customer.
  • In the event of sale of the motor vehicle(s) in which the Vehicle Unit is installed, this agreement may be assigned, with the prior consent of Smart Track, to the new owner for such motor vehicle(s) for the remainder of the term of this contract between Smart Track  and the customer, provided that the new owner first – (i) registers with Smart Track  to enable Smart Track to facilitate the provisions of the Selected Services to the new owner and (ii) signs a Smart Track Customer agreement.
  • In the event that the Customer acquires new motor vehicle to replace a motor vehicle in which a Vehicle Unit has been installed, the Vehicle Unit may at the request of the customer be transferred by Smart Track or its authorized agents to the new motor vehicle, subject to Smart Tracks’ prior written consent, in which case this agreement shall apply to the new motor vehicle while this agreement remains in effect. A prerequisite of this transfer is that the new vehicle, must be registered with Smart Track by delivery of the certificate of registration and motor vehicle title. The Customer agrees to pay a removal and re-installation fee to Smart Track in accordance with Smart Track’s current charges prevailing (and GCT thereon).

Repairs

33.  In the event that the Customer is notified by Smart Track that there is a fault with the Vehicle Unit, the Customer agrees to consent to a service call as soon as possible after being so notified, and the Customer agrees that the Selected Services may be suspended by Smart Track from the time of notification by Smart Track until the Vehicle Unit is repaired or replaced.

34.  The Customer agrees to allow a representative of any of Smart Track’s commercial partners to be present when correction to a faulty installation of a Vehicle Unit is being undertaken by Smart Track  or an authorized agent or subcontractor of Smart Track .

35.  The Customer shall be liable for the cost of replacing or repairing the Vehicle Unit rendered necessary by any accident or intentionally inflicted damage (including the cost of a temporary replacement Vehicle Unit, should one be required during the period of repairs).

36.  The Customer agrees that Smart Track shall not be liable for theft or loss of or any damage to the Customer’s motor vehicle or any contents thereof, during such time as the motor vehicle battery is found to be malfunctioning or removed from the Customer’s motor vehicle.

37.  In the event that the battery in the motor vehicle battery is or becomes compromised and the Vehicle Unit becomes inoperable, it is understood and agreed that Smart Track will not be responsible for the efficacy of the Selected Services until after the Vehicle Unit is once again operating effectively.

38.  Where the Selected Services include either or both vehicle tracking and recovery services, in the event of any occurrence, not due to the negligence of Smart Track, which results in the inability to track the motor vehicle and the motor vehicle is not located and recovered,  Smart Track shall not be liable either in damages or to any abatement of subscription fees or otherwise.

39.  The Customer acknowledges that Smart Track has no control over and shall not be liable for the content of information transmitted by the Customer via the Vehicle Unit through the Selected Services (whether visual, written or audible), and that Smart Track does not examine and shall not be liable for the use to which the Customer puts the Selected Services or the nature of the information the Customer or the Customer’s users send or receive.

40.  The Customer understands, accepts and agrees that – {i) the Customer and any person(s) designated by the Customer to use any of the Selected Services or access location information by means of any of the Selected Services are responsible for complying with any local laws and privacy protection rules related to the use of location information and/or Global Positioning System (“GPS”) equipment, (ii) location, mileage and other information provided by means of the technical platform underpinning the Selected Services require the use of the GPS constellation of satellites and their respective signals and processing, all of which are under the control of the U.S. Department of Defense, (iii) the availability and accuracy of this information are based on these signals and are subject to prevailing department policies, atmospheric conditions, and satellite visibility, (iv)  Smart Track shall not be liable for the accuracy of GPS signals or any element of the GPS system, (iv) GPS coverage may be unavailable in some areas or interrupted from time to time for a variety of reasons not under the control of Smart Track (v) the Selected Services may be limited or unavailable based on difficulties with the Internet generally or the web browser, computer, office or home wiring or Internet Service Provider, (vi)  Smart Track does not guarantee continuous and uninterrupted access to any of the Selected Services, (vii) the Selected Services utilize maps and other information provided by third parties, and  Smart Track makes no representations or warranties regarding and is not liable- for the accuracy or completeness of the information provided by these third parties, and (viii) maps provided are intended for information purposes only, and construction projects or other events may cause real conditions to differ from the map results.

41.  It is understood and agreed by the Customer that – (i) the transmission service which enables Selected Services to be provided is not available in all places, (ii) the quality of the transmission service may vary from place to place and from time to time, and (iii) the transmission service is not fault-free and may be impaired by physical obstructions, geographic and atmospheric conditions and other causes such as radio interference. Smart Track  shall have no liability to the Customer in the event that the Selected Services cannot be provided effectively or at all due to any of the foregoing reasons, and the Customer agrees to release and discharge Smart Track from any liability for any losses, injuries, damage, costs or expenses suffered or incurred by the Customer as a result of the Selected Services not being provided effectively or at all due to any of the foregoing reasons.

42.  It is understood and agreed that the Selected Services will not be capable of being provided at any time while the Customer’s motor vehicle is in a tunnel, container or any other form of covered or underground enclosure, or if the Vehicle Unit has been disabled by a third party or the Customer. Smart Track shall have no liability to the Customer in the event that the Selected Services cannot be provided effectively or at all due to any of the foregoing reasons, and the Customer agrees to release and discharge Smart Track from any liability for any losses, injuries, damage, costs or expenses suffered or incurred by the Customer as a result of the Selected Services not being provided effectively or at all due to any of the foregoing reasons.

43.  To the extent that any services which Smart Track has agreed to perform cannot be performed as a result of, or the performance thereof is negatively affected by, any defect in the Vehicle Units or any other components of the Fleet Management Service, or as a result of the functionality of the Vehicle Units or any other components of the Fleet Management Service being adversely impacted by local conditions,  Smart Track shall be relieved from liability to the Customer for failing to provide such services or to provide them in a manner that achieves the desired results.

44.  Smart Track shall not be liable for any loss of income, loss of business, loss of profits, expenditure or any consequential loss arising from Smart Track’s breach or non-performance under this Agreement.

45.  Smart Track  shall not in any event be liable for any matter outside of Smart Track’s control.

46. Smart Track shall not be liable for any non-performance of any of its responsibilities under this Agreement resulting from errors or omissions in information supplied to Smart Track by the Customer or by any third parties in relation to the Selected Services or any other services the Customer requires.

47.  Subject and without prejudice to the other terms of this Agreement, the upper limit of Smart Track’s total liability to the Customer per claim or series of connected or unconnected claims, is any event the sum of JMD$50,000

48.  Smart Track’s fees and charges under this Agreement, and Smart Track’s insurance arrangements, take into account the limitations on and exclusion of liability set forth in this Agreement, without which the cost to the Customer of the provision of the Selected Services would be significantly higher.

49.  Smart Track shall not be liable for any loss or damage caused during the process of motor vehicle recovery. It is understood and agreed that Smart Track provides recovery services through a third party security provider, and will assist as much as possible in coordinating and providing assistance where possible. Where recovery services is required Smart Track  can provide details about the options available, however it is up to the customer to determine which option is most suitable to them. Smart Track shall not be liable for any acts or omissions of the Police or any other third party provider in relation to either of the Security services.

50.  Smart Track shall not be liable for any loss caused to the Customer by any third parties (including, without limitation, the Police).

51.  It is understood and agreed that the Customer shall be liable for any third party charges incurred by the Customer including but not necessarily limited to third party recovery and storage charges.

Warranty Provisions and Related Matters

51. It is agreed that:

(a)          for a period of one (1) year after the date of installation of the Vehicle Unit in the Customer’s motor vehicle (the ”  Smart Track Workmanship Warranty Period”),  Smart Track  warrants to the Customer that the workmanship in relation to the installation of the Vehicle Unit by or on behalf of Smart Track is not defective, including (i) the mounting of Vehicle Unit inside the motor vehicle, (ii) the connection between the Vehicle Unit and a constant power source, (iii) the connection between the Vehicle Unit and an ignition power source, (iv) the connection between the Vehicle Unit and ground, (v) the installation of the antennas into their corresponding connectors on the Vehicle Unit, and (vi) the proper installation of the antennas, and Smart Track  warrants the proper operation of these miscellaneous elements under normal operating conditions;

(b)          the Customer shall notify  Smart Track promptly of any defect in the installation of the Vehicle Unit which is discovered by the Customer within the Smart Track Workmanship Warranty Period, and Smart Track, at its sole expense, shall promptly repair such defect as long as it is caused by faulty workmanship on the part of Smart Track ;

(c)           final payment for or acceptance by the Customer of the installation works shall not relieve Smart Track from any of the responsibilities covered by  Smart Track’s above stated warranty;

(d)          in relation to paragraphs (a), (b) and (c) of this clause, for the avoidance of any doubt it is hereby agreed and declared that – (i)  Smart Track’s warranty obligation referred to therein will not require Smart Track to provide maintenance in circumstances which do not result from Smart Track’s faulty workmanship, whether or not such maintenance relates to any of items referred to in paragraph (a) of this clause, (ii) Smart Track  assumes no warranty obligation (even during the Smart Track Workmanship Warranty Period) for maintenance calls which relate to defects or other shortcomings in the Vehicle Units or the Fleet Management Service, (iii)  Smart Track  will at the request of the Customer undertake non-warranted repairs at Smart Track’s standard fee rates prevailing from time to time (and GCT thereon).

(e)          refunds of 100% will only be facilitated if a cancellation request is made prior to start of the installation process. Once the vehicle unit is installed it becomes the property of the customer and Smart Track will only be liable for refunding the subscription fees already covered from the date of the refund request up to the end of the subscription period.

52.  With the intent that Smart Track  passes through to the Customer the benefit of such warranties as are provided to Smart Track in relation to equipment and materials furnished to Smart Track by its supplier, in the event that a Vehicle Unit or any related component installed by or on behalf of Smart Track in the Customer’s motor vehicle is or becomes defective and this is reported to Smart Track during the Warranty Period,  Smart Track shall replace the defective Vehicle Unit or related component with a functioning Vehicle Unit or related component without charge to the Customer if Smart Track is unable to repair the defective Vehicle Unit (whether at all or at a cost that  Smart Track  regards as economic), and save as aforesaid Smart Track  shall have no other liability for any losses, injuries, damage, costs or expenses suffered or incurred by the Customer as a result of the Vehicle Unit or any other equipment and materials furnished to  Smart Track  by its supplier being or becoming defective or otherwise inoperable. It is understood and agreed that in agreeing to replace a defective Vehicle Unit without charge to the Customer in the circumstances specified in the preceding sentence,  Smart Track  is relying on the warranty provided to it by its supplier, and the Customer hereby agrees to be bound by any limitations and restrictions applicable to such warranty and shall have no recourse to  Smart Track  in the event that the warranty does not cover the Customer’s claim in respect of the defective Vehicle Unit.

53.  In the event that a Vehicle Unit installed by or on behalf of Smart Track  in the Customer’s motor vehicle is or becomes defective and this is reported to Smart Track  after the Warranty Period,  Smart Track  shall have no liability for any losses, injuries, damage, costs or expenses suffered or incurred by the Customer as a result thereof: and the Customer shall pay Smart Track ‘s charges at its prevailing rates (and

54. Smart Track  gives no warranty for and shall not be liable for items and components which are not covered by the warranty provided to Smart Track  by its supplier, and Smart Track  will not be liable to fix or replace warranted items or components outside of the applicable warranty period.

55. For the avoidance of any doubt, the Customer shall bear any service charge and service costs associated with technical matters which are not under warranty.

56.  Any tampering with the Vehicle Unit in any way, or any transfer of the Vehicle Unit between motor vehicles by the Customer or by a service provider who has not been authorized by Smart Track  for this purpose, shall invalidate the warranties provided by Smart Track  in this Agreement, and Smart Track  shall be entitled to discontinue the Selected Services or any of them if it believes that the Vehicle Unit has been tampered with. The Customer shall be liable for the cost of any remedial work required on the Vehicle Unit before reconnection.

57.  Smart Track  shall have no warranty obligations to the Customer save as expressly provided herein. All implied warranties, and all representations and warranties under the Sale of Goods Act or by any other legislation or at common law or in equity, are hereby excluded.

Duration, Termination & Related Matters

58.  This Agreement shall be for the initial period of twelve (12) months from the date specified in the above Schedule, and shall be automatically renewed for successive twelve (12) month periods unless terminated by either party upon thirty (30) days written notice given during the last sixty (60) days of the current twelve (12) month period, provided that (in the case of non-renewal by the Customer) Smart Track  has received all sums due to it under this Agreement.

59.  Smart Track  may (but shall not be obliged to) suspend or cancel the provision of any or all of the Selected Services and the performance of its other obligations under this Agreement, and shall also be entitled (but shall not be obliged) to terminate this Agreement by notice in writing to the Customer, if any one or more of the following occurs:

(a)          the Customer fails to pay any fees or other sums falling due to  Smart Track  under this Agreement (and the GCT charged thereon, if applicable) and such default continues for three or more days after the due date for payment;

(b)          any other breach of this Agreement by the Customer;

(c)           the Customer supplies  Smart Track  with information which  Smart Track  reasonably believes to be false or misleading or materially incomplete;

(d)          the Customer or any of its employees or agents behaves in a manner which is threatening or abusive to the staff of  Smart Track  or any subcontractor of  Smart Track ;

(e)          the Customer or any of the Customer’s employees or agents uses the service for fraudulent, illegal or immoral purposes.

60.  If any or all of the Selected Services to the Customer is or are suspended by  Smart Track  and the Customer requests that the suspended Selected Services be recommenced or reactivated, then the Customer shall be liable to a reconnection fee at Smart Track ‘s  prevailing rate (and GCT thereon) if  Smart Track  recommences or reactivates the suspended Selected Services.

61.  The following shall survive the expiration or any termination of this Agreement:

(a)          all restrictions, limitations and exclusions (howsoever styled) in relation to Smart Track ‘s liability as set forth in this Agreement;

(b)          all indemnities provided herein by the Customer to  Smart Track ; and

(c)           all obligations of confidentiality set forth herein.

62.  On suspension or cancellation of any of the Selected Services or termination of this Agreement, the Customer shall not be entitled to recover any proportion of sums previously paid by them to Smart Track .

63.  In the event that  Smart Track ‘s arrangements referred to in recital A above comes to an end – (i) Smart Track  may elect to continue its relationship with the Customer as provided in this Agreement (whether utilizing the Fleet Management Service as defined herein through the existing technological platform or utilizing an alternate technological platform acceptable to  Smart Track ), or (ii) Smart Track  may terminate this Agreement by notice in writing to the Customer (and all obligations of Smart Track  shall thereupon terminate).

Indemnification

64.  The Customer shall release, indemnify, defend and hold Smart Track  and Smart Track ‘s respective agents, employees, shareholders, directors and subsidiaries harmless from and against any and all claims, liabilities, losses and damage which arise out of or result from any of the matters referred to in paragraphs ( a) through ( e) of the preceding clause above.

65.  The Customer shall indemnify, defend and hold Smart Track , its officers, directors, employees, affiliates and its suppliers harmless from any claims, losses, damages, penalties or costs (including without limitation reasonable attorneys’ fees) arising out of: (i) the Customer’s use of the Selected Services; (ii) the Customer’s violation or alleged violation of any applicable laws or regulations with respect to the Selected Services; or (iii) infringement of any intellectual property rights of any third party. The obligations contained in this paragraph shall survive any termination or suspension of the Services contemplated herein, the expiration or termination of this Agreement, and shall also survive final payment.

66.  Where the Selected Services include any of the Security services:

(a)          Smart Track  is hereby authorized by the Customer to pass on to the Police any information they·may require or request in order to assist with their investigations and any subsequent prosecution; and

(b)          Smart Track  reserves the right to suspend the Security services if there occurs what  Smart Track  reasonably regards as an excessive number of false alarms.

67. The vehicle tracking and fleet management services provided by Smart Track  also comes with an

       immobilizer function. The customer acknowledges the dangers associated with this

       feature once the command is sent and will accept any responsibility for damages incurred,

subsequent to immobilization of the vehicle.   

Confidentiality

67.  If during the term of this Agreement the Customer shall obtain any confidential or proprietary information regarding the Selected Services, the Customer shall hold such information in strict confidence.

68. The Customer agrees that Smart Track  may disclose information about the Customer’s use of Selected Services to satisfy any law, regulation, government agency request, court order, subpoena or other legal process.

General

69.  Smart Track  may assign any or all of its rights under this Agreement. The Customer may assign any or all of its rights under this Agreement with Smart Track s’s prior written consent.

70.  The failure of either party to insist upon the performance of any of the terms, covenants, conditions or provisions of this Agreement shall not be considered a waiver or relinquishment of future compliance therewith, nor shall a waiver by either party of any breach of any term, covenant, condition or provision, operate as a waiver of any other term, covenant, condition or provision.

71.  Each provision in this Agreement is severable, and should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall not be affected or impaired thereby.

72.  The parties’ relationship to each other shall be that of independent principal contractors, and neither party shall be deemed to be an agent, employee, partner of, or joint venturer with the other party.

73.  Smart Track  may amend at any time the provisions of this Agreement by, at Smart Track ‘s election: (i) posting revised terms and conditions (“Amended Terms”) on Smart Track ‘s Web Site or (ii) delivering the Amended Terms to Customer at the address, fax or e-mail address provided herein (such delivery may be included in invoices for the Services delivered to Customer). All Amended Terms shall automatically be effective upon such amendment being posted on Smart Track ‘s Web Site or notified to the Customer as provided herein. The Customer agrees to be responsible for regularly reviewing Smart Track ‘s web site to obtain timely notice of any such amended terms and Smart Track ‘s then-current terms and conditions. By using the Selected Services after posting or delivery of Amended Terms, the Customer will be deemed to have accepted and be bound by such Amended Terms. No such amendment by Smart Track  shall constitute a default or termination by Smart Track  of this Agreement, nor shall such amendment serve to be a basis for the Customer’s termination of this Agreement. Except as otherwise provided herein, this Agreement may only be amended or modified, in whole or in part, by a written instrument signed by the parties to this Agreement.

74.  This Agreement is governed by the laws of Jamaica.

75.  Any notice, approval, consent, request or report under this Agreement shall be put in writing and sent to the address given herein for each party. Service of such documents shall be presumed delivered within five (5) days of posting, if not delivered by hand or electronic transmission, or on the date of delivery (if delivered by hand or by electronic transmission).

76.  This Agreement constitutes and comprises the entire and complete agreement between the parties, to the exclusion or any prior or collateral agreements or warranties ( express or implied)

77.  Any terms or conditions in any invoices or purchase orders or other documentation issued or accepted by Smart Track  in relation to the Vehicle Unit(s) and/or any of the Selected Services shall, to the extent they be in conflict with this Agreement, have no effect whatsoever and this Agreement shall govern the relationship between Smart Track  and Customer.