Lexshell 131 Trading Pty Ltd t/a Altrack or Altrac Fleet Management
Terms and Conditions of Subscriber
Definitions
“the Agent” – the authorized Altrack representative (if any) described as such in the transaction schedule;
“this agreement” – this agreement as read with the Transaction Schedule and New Vehicle Addendum if any;
“the Equipment” – the apparatus consisting of the Altrack tracking device and SIM card installed in a vehicle and any piece of equipment ancillary thereto for the purposes of invoking and/or facilitating the provision of the Altrack service;
“Existing Client” – the person who is receiving the Altrack service in terms of an existing agreement with Altrack;
“GSM Network” – Global Systems for Mobile Communications as defined in the European Technical Standards Institute of specifications;
“Vodacom” – Vodacom Pty Ltd
“Altrack” – Lexhsell 131 Tarding Pty Ltd t/a Altrack Fleet Management Registration # 972082107
“Altrack Control Centre” – Centre where signals from the equipment will be monitored and acted upon;
“the Altrack Service” – the services set out hereunder and further as contained in the transaction schedule annexed hereto.
“the New Vehicle Addendum” – the form issued by Altrack from time to time, to be completed by an existing client in order to receive the Altrack service in respect of a vehicle the details of which appear thereon;
“the Parties” – both Altrack and the subscribers collectively;
“the Signature Date” – the date of signature of this Agreement by the Subscriber;
“the Subscriber” – the person(s) whose details appear in the Transaction Schedule and/or New Vehicle Addendum;
“Territory” – all countries in Southern Africa in which the Altrack Service is provided;
“The Transaction Schedule” – that part of this agreement, being the Subscriber Application Form, which identifies the Subscriber and wherein provision is made for other particulars concerning this agreement including the fees payable for the Equipment rental and/or the Altrack Service in respect of the Vehicle which forms part of the agreement;
“the Vehicle” – the vehicle(s) referred to in the Transaction Schedule or the New Vehicle Addendum as the case may be, in which the equipment is installed;
Words importing to singular shall include the plural and vice versa and words importing one gender shall include the other genders; any reference to an actual person shall include a body corporate, firm or association and vice versa.
Appointment
2.1 The subscriber appoints Altrack to provide the Altrack Service to the subscriber. Altrack accepts the appointment on the terms and conditions set out in this Agreement.
2.2 The Subscriber hereby hires from Altrack, which hereby rents subject to the terms and conditions of this Agreement and the Transaction Schedule hereof, the Altrack tracking unit and related equipment for the entire period, as set out in clause 4.
New Vehicle Addendum
3.1 The subscriber shall qualify for The Altrack service in respect of each vehicle added where an Altrack tracking device is fitted to the vehicle. The subscriber shall become liable to Altrack for the monthly rental upon fitment of the tracking device or completion of a schedule whichever occurs first. The presentation of a vehicle for fitment of a tracking device shall constitute addition of a new vehicle for the purposes of this agreement.
3.2 Notwithstanding the aforegoing and the purposes of good record keeping, the Subscriber shall complete and thereafter send by facsimile, a New Vehicle Addendum to Altrack.
Term
4.1 The duration of this agreement shall be on a month to month basis, commencing on the signature on installation, whichever is the sooner and thereafter shall continue indefinitely until terminated by either party by the giving of 1 (one) month’s written notice of termination.
The Equipment
5.1 Notwithstanding the provisions of clause 4 hereof, the parties agree that the Altrack service cannot be invoked or rendered unless the equipment is properly installed in the vehicle by a Altrack approved fitment centre and such equipment is programmed, enabled and functioning to its manufacturers specification. Only Altrack approved equipment may be used for purposes of this agreement.
5.2 Any maintenance and/or repairs required to be done shall be carried out at one of Altrack’s approved fitment centres.
5.3 Altrack (but not the Subscriber) shall be relieved of its obligations under this agreement during any period when Altrack has notified the subscriber or the subscriber becomes aware itself that the equipment is defective and the subscriber has not delivered the vehicle to Altrack for the purposes of rectifying the defect..
5.4 The Subscriber shall notify the Altrack control centre immediately of every signal of the equipment, which has been accidentally or unintentionally activated. The Subscriber accepts responsibility for the consequences of any accidental or unintentional activation of the equipment, it being agreed that such consequences may include the police or response teams responding pursuant to any such activation and making wrongful arrests and the Subscriber indemnifies Altrack against any claims or damages as a result of such accidental or unintentional activation of the equipment. The subscriber shall present any vehicle which it sells or lets out to a third party to Altrack in order to ensure that the equipment is removed and not mistakenly taken to be stolen. In the event of the subscriber failing to comply with aforegoing it shall be liable for any losses suffered by Altrack and hereby indemnifies Altrack against any such losses regardless of how remote they might be.
5.5 The Subscriber shall not modify or alter the equipment in any way.
5.6 All risk of loss and damage in and to the equipment shall, from the date of installation by a Altrack approved fitment centre, pass to the Subscriber.
5.7 The Subscriber shall within 48 (forty eight) hours, advise Altrack in writing in the event of loss, damage or theft of the Equipment or Sim card (if applicable).
5.8 The parties agree that Altrack shall retain ownership of the equipment and the Subscriber shall be required to notify its finance company of such ownership upon installation, in writing. Altrack shall retain the right to remove the equipment from the Subscriber’s vehicle at any time due to breach of this agreement by the Subscriber. The subscriber undertakes in such event to comply with all of Altracks instructions and directions in the event of such breach.
5.9 The Subscriber shall bear all risk in respect of the equipment and shall ensure that it carries suitable insurance cover for the value of such equipment.
5.10 The Subscriber and any person entering the vehicle with his permission may not in any way tamper with the equipment and any damage resulting from such tampering shall be at the cost of the Subscriber. In addition to the aforegoing tampering shall release Altrack from its obligations under this agreement.
TERRITORY
The Altrack Service is available only within the areas in Southern Africa where the Altrack Service is commercially available from time to time and Altrack shall accordingly not, unless otherwise provided for in this agreement, be obliged to render any of the Altrack Service outside the territory.
FEES AND CHARGES
7.1 As consideration for Altrack undertaking to provide the Altrack Service, the Subscriber shall pay Altrack ,upon signature of the agreement or installation whichever is the sooner the monthly rental referred to in the transaction schedule on the face hereof together with any increases pursuant to 7.2 below, monthly in advance on or before the 7th (seventh) day of each calendar month or such earlier date as specified in the debit order authorisation contained in the transaction schedule, provided that the first such monthly rental shall be paid upon conclusion of this agreement, and the Subscriber shall continue to pay the monthly rental until termination of this agreement as per clause 4.1 above.
7.2 Altrack may from time to time increase the Monthly rental upon at least 1 (one) calendar month’s prior written notice to the Subscriber.
7.3 If, as a result of the signal from the equipment, or at the Subscriber’s instance or request, or, the request of any authorised representative of the Subscriber or any authorised user of the vehicle, Altrack (or any of its subcontractors) renders any service not otherwise required of it in terms of this agreement, the Subscriber shall pay Altrack any amount determined in accordance with Altrack’s standard rates for any such service rendered.
7.4 The Subscirber shall not be entitled to withhold payment of any amounts due under the agreement for any reason whatsoever.
7.5 Should the Subscriber fail to pay any amount due in terms of or arising from the agreement on due date, Altrack shall be entitled to hand the account over to a Altrack collection agent to recover the outstanding amount.
7.6 The Subscriber shall in addition to the Monthly rental pay Value Added Tax thereon (at the rate applicable from time to time) or any other tax or fiscal charge which may be imposed by legislation.
7.7 The Subscriber hereby consents to the jurisdiction of the Magistrate’s Court for the purposes of recovering any amounts due to Altrack. The subscriber acknowlages that Altrack shall be entitled to attorney and client costs against it in such event.
7.8 All stamp duties payable in respect of this agreement or any suretyship or securities given in respect hereof shall be paid by the Subscriber either on demand or by addition to the overall debt.
7.9 The first debit order deduction will be a pro-rata amount for the month that your vehicle has been fitted with a Altrack unit, plus one month’s subscription in advance. If necessary, in the event that the original debit order is returned for any reason whatsoever, the Subscriber authorises Altrack to submit an additional debit order during the course of the month for the full outstanding balance.
7.11 If Sim cards (if any) are pre-loaded with international roaming it is agreed that the Subscriber will be liable for all charges incurred in respect of international roaming, should the equipment be located outside the borders of the Republic of South Africa.
7.12 The Subscriber agrees that should he cancel this agreement prior to the expiry of the initial period set out in clause 4, then the whole balance owing in terms of this agreement shall become due and payable.
7.13 Subscriber remains liable for all the monthly payments that become due until such date that it terminates this agreement in writing.
7.14 The Subscriber may, at Altrack’s discretion, be charged for any services rendered to the Subscriber where such services have been requested by the Subscriber, its representative or an authorised driver of the vehicle, where such services are not otherwise required of it in terms of this agreement. The Subscriber shall pay Altrack an amount determined in accordance with Altrack’s standard rates, determined from time to time, for any such service rendered.
SERVICES
Altrack shall provide the following services in terms of this product –
8.1 Stolen Vehicle Recovery Services which shall include response and recovery of the Vehicle in the event of it being reported stolen or hijacked.
NOTICES
Notwithstanding Clause 14 below, where Altrack is required to notify the Subscriber or its contact person(s) of any facts pursuant to this agreement, such notice shall be effected by telephone to the Subscriber or its contact person, as the case may be, at such telephone number(s) as notified in writing by the Subscriber to Altrack from time to time. Where Altrack cannot reach the Subscriber or its contact person at the given telephone number, Altrack shall be relieved of the duty to provide any such notice.
EXCLUSION OF LIABILITY
For purposes of this clause all references to “Altrack” shall include references to the Agent, the Franchisee, Altrack’s subcontractors, employees, agents and independent contractors, the Altrack Group and any of the Altrack Group’s independent contractors, subcontractors, employees and agents.
10.1 The Subscriber recognises that the Altrack Services are intended to reduce the risk of loss, but not of eliminating such risk. Altrack shall not be liable for any loss or damage of whatsoever nature caused to the Subscriber in consequence of any act or omission by Altrack or any failure by Altrack to perform the Altrack Service pursuant to this agreement, including any negligence on the part of Altrack or any acts beyond its control. Altrack in no way guarantees recovery of the vehicle and simply undertakes to use its best efforts to recover the Subscriber’s vehicle in the event of theft.
Applicable to GSM Products only
10.2 Altrack shall exclusively have the right to decide whether to cut the petrol supply of the vehicle in the event of theft or loss based upon considerations of safety for other road users and any such
decision lies solely at its discretion.
10.3 Altrack guarantees that it will make its best effort to recover the vehicle, however, it does not make any guarantee with regard to the recovery of the vehicle.
10.4 Altrack shall have the final say as to whether to apply a fuel cut in respect of the vehicle and such decision will be based upon safety consideration in respect of which Altrack shall have the final say.
FURNISHING OF INFORMATION
11.1 The Subscriber warrants the accuracy of all the information furnished by or on behalf of the Subscriber to Altrack in terms of or pursuant of this agreement.
11.2 The Subscriber shall forthwith notify Altrack in writing of any change(s) in the information set forth in Transaction Schedule and/or New Vehicle Addendum or furnished to Altrack from time to time in accordance with the standard practice or procedures of Altrack.
11.3 Should any of the aforesaid information change and not be notified in writing to Altrack or should any information supplied not be correct in all respects, then the Subscriber agrees to hold Altrack harmless.
11.4 The Subscriber authorizes Altrack to:
11.4.1 Access from credit bureau, the Subscriber’s personal information concerning financial risk and payment habits (“payment profile”)
11.4.2 Use data that Altrack may hold in relation to the Subscriber from time to time for the following purposes.
11.4.2.1 To share information about the Subscriber’s payment profile with credit bureau and other service providers;
11.4.2.2 To process the Subscriber’s request for access to Fleet Management Service;
11.4.3 Disclose the Subscriber’s payment profile to credit bureau and other service providers
BREACH
If the Subscriber:-
12.1 Fails to pay any amount under this agreement on due date; or
12.2 Fails in the performance of any of its obligations hereunder or breaches any term or condition of this agreement; or in Altrack’s opinion, reasonably exercised, consistently raises false alarms or abuses the Altrack service; Altrack may immediately thereupon suspend its
Obligations under this agreement and/or, simultaneously therewith or thereafter terminate this agreement without notice to the Subscriber. Any such suspension and/or termination shall be without prejudice to any other rights, which Altrack may then have in law.
12.3 Upon termination of this agreement for whatsoever reason all amounts payable by the Subscriber to Altrack shall become due and payable and in respect of a rental transaction.
12.4 Upon termination prior to the expiry of the initial period (as stated in the Subscriber Application Form), the Subscriber in respect of a rental transaction, shall, at its cost and risk forthwith allow Altrack to recover the Equipment from the Subscriber and shall do all such things as may be reasonably necessary to enable Altrack’s authorised agent or representative to uplift and collect the Equipment.
CERTIFICATE OF INDEBTEDNESS
A certificate signed by any director or manager for the time being of Altrack in respect of any indebtedness of the Subscriber to Altrack under the agreement or otherwise or in respect to any other fact shall be prima facie evidence of the Subscriber’s indebtedness to Altrack and/or such other fact. It shall not be necessary to prove the appointment of the person signing any such certificate.
DOMICILIUM
14.1 The parties hereby choose domicilium citandi et execulandi for all purposes of and in connection with this agreement their respective physical addresses as set forth in the Transaction Schedule.
14.2 Either party shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be address other than a box number, and any such changes shall be only effective upon receipt of notice in writing by the other party of such change.
14.3 Subject to clause 6, all notices, demands, communications or payments intended for either party shall be made or given at the relevant Party’s domicilium for the time being
14.4 A notice sent by either party to the other shall be deemed to be received by the other party on the same day, if delivered by hand or sent by telefax and on the 5th (fifth) day after posting, if sent by prepaid registered mail.
14.5 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by any party shall be an adequate written notice or communication to it notwithstanding that it was sent to or delivered at the party’s chosen domicilium citandi et executandi.
GENERAL
15.1 This agreement shall be governed by the laws of the Republic of South Africa.
15.2 Should any provision of this agreement be rendered unlawful (retrospectively or otherwise) then that unlawful provision only shall be deemed to be modified to the extent and in the manner necessary to render it consistent with the enactment rendering it unlawful or, if such modification is impossible, be deemed to be severable from the remaining provisions hereof. In either such event notwithstanding anything to the contrary in this agreement contained, Altrack and the Subscriber respectively shall have all the rights conferred on them by the law rendering such provision unlawful.
15.3 This agreement sets out the entire agreement and understanding between the parties and supersedes all prior agreements, written or oral, in connection with the subject matter hereof.
15.4 No addition to, variation or consensual cancellation of this agreement shall be of any force or effect unless in writing and signed or on behalf of all the parties.
15.5 No indulgence, which any of the parties (“the grantor”) may grant to any other or others of them (“the grantee(s)”), shall constitute a waiver of any of the rights of the grantor, who shall not thereby by precluded from exercising any rights against the grantee(s) which might have arisen in the past or which might arise in the future.
15.6 The Subscriber shall not be entitled to cede or delegate its rights or obligations in terms of this agreement without the prior written consent of Altrack, which consent shall not unreasonably be withheld. Altrack shall be entitled to cede or delegate its rights and/or obligation under this agreement.