Airmax Remote Limited (AMR)
Conditions of Purchase and Service level – Remote Diagnostics and GPS –
Issued 27 October 2012
- Airmax Remote Ltd (AMR), a Company registered in England No. 4591575 of Logic House, 31 Black Moor Road, Ebblake Industrial Estate, Verwood, Dorset, BH31 6BB
- Airmax shall provide the Hardware and Services set out in Schedule 1 which are collectively referred to as the “Product(s)”. Additional services may be defined and may be made available to the SUBSCRIBER during the course of this agreement.
- Airmax shall provide these Products against Purchase Orders issued by the SUBSCRIBER. Title and risk of loss to the Hardware shall pass to the SUBSCRIBER upon actual delivery of the Product to the SUBSCRIBER, or to a delivery location designated by the SUBSCRIBER.
- Products suitability may be subject to vehicle compatibility and the availability of manufacturer data by make and model.
- Where a new service(s) or product is developed, above and beyond the existing offering of Airmax, they will, by mutual agreement, be added to the list of standard Airmax service offerings and SUBSCRIBER will agree to a price for the new services and any additional hardware costs.
- The SUBSCRIBER will not interfere with or disconnect, or allow any third party to interfere with or disconnect the Telematics Equipment.
- The SUBSCRIBER will ensure that anyone who uses a Vehicle fitted with Telematics Equipment is fully aware that Airmax or its employees, agent or sub-contractors are collecting data in relation to such a Vehicle.
- The SUBSCRIBER shall keep Airmax fully indemnified against all costs, claims, actions, expenses, proceedings, losses or liabilities (including without limitation, economic loss and loss of profit (direct and indirect), indirect loss or consequential loss)) made against or incurred or suffered by Airmax resulting directly or indirectly from the SUBSCRIBER’s failure to comply with any relevant legislation (including the Data Protection Act 1998).
- Airmax’s website will be available 24 x 7, with 99.8% availability during planned available time.
- The host system has twin servers with build in load balancing and back up. Certain added value resellers or partners will offer their own hosted services.
- The Airmax website will be capable of handling up to 500 concurrent users.
- Airmax will make best efforts to deal with and resolve any issues raised by end users in a timely fashion. A serious error should be fixed well within 24 hours, but some problems may not be urgent or resolvable within that time
- Airmax will monitor the website’s availability and will notify SUBSCRIBER of any unplanned outage. Planned outages shall be no more than 1 hour per month and will be planned for weekend maintenance where possible.
- Airmax’s website will support access from the following operating systems and browsers:-
- Operating Systems – Windows Vista, Windows 2000, Windows XP (including Service Pack 1 & 2
- Browser Types – Internet Explorer 5.5 onwards, Firefox Version 1.5 onwards Chrome 23. ( decaying as systems are not supported by the vendor)
- Airmax will despatch units against valid order and precise vehicle descriptions, within 24 hours of receipt of an order
- Any unit returned for investigation will be examined and diagnosed within 48 hours of receipt. Any unit found fault (with the exception of tampering or deliberate damage) will be repaired or replaced free of charge, with a replacement unit despatched on overnight delivery, the day following the confirmation of the fault.
- Airmax hardware and software upgrade strategy will be designed to minimise its effect on SUBSCRIBER. Any major changes or upgrades will be discussed in advance.
- Airmax will inform the SUBSCRIBERS of products and component lead times. These vary and a usual Lead Time may be between 5–17 weeks. They are seasonal and vary on economic conditions prevailing at the time. They are out of the control of Airmax but may be lessened if stock is held as a buffer. Airmax will not be held to account for lead times out of its control. Individual component parts will also be subject to fade during their life cycle and Airmax will manage this process by ensuring to the best of its ability to support outgoing and incoming replacement components.
Custom or Bespoke Software Development
- Custom software (also known as bespoke software) is software that is specially developed for some specific organisation or other user. As such, it can be contrasted with the use of software packages developed for the mass market, such as commercial off-the-shelf (COTS) software, or existing free software.
- Custom software is developed for a single SUBSCRIBER it can accommodate that SUBSCRIBER’s particular preferences and expectations. However it may have general appeal. Custom software may be designed in stage by stage processes, allowing all nuances and possible hidden dangers to be taken into account, including issues which were not mentioned in the specifications. Especially the first phase in the software development process may involve many departments, including marketing, engineering, research and development and general management. Airmax may charge for development on a ‘job’ or day basis. IPR will remain with Airmax unless specifically agreed in advance. The use of the developed software can be subject to an agreed restrictions or exclusive time period.
The following words and phrases shall have the following meanings:
- On-Board Diagnostics, or OBD, in an automotive context, is a generic term referring to a vehicle’s self-diagnostic and reporting capability. OBD systems give the vehicle owner or a repair technician access to state of health information for various vehicle sub-systems. The amount of diagnostic information available via OBD has varied widely since the introduction in the early 1980s of on-board vehicle computers, which made OBD possible. Early instances of OBD would simply illuminate a malfunction indicator light, or MIL, if a problem was detected—but would not provide any information as to the nature of the problem. Modern OBD implementations use a standardised digital communications port to provide real-time data in addition to a standardized series of diagnostic trouble codes, or DTCs, which allow one to rapidly identify and remedy malfunctions within the vehicle.
- 25. In-vehicle Hardware – a device fitted to the OBD port and comprising a GPS antenna, accelerometers, modem, processor and optional driver ID optional battery. Optional wi-fi and Bluetooth. Optional in-cab screen.
- 26. In-vehicle software – or firmware is operated within the unit and will be subject to version control and over air updates.
- 27. Airtime – either GSM GPRS data or 3G (optional). By agreement either a local tariff or an EU tariff upon request. Forming part of the monthly costs or paid upfront by agreement. SMS may be used for configuration.
- 28. Wire or harness cutting – there is no wire cutting on standard installations.
- General packet radio service (GPRS) is a packet oriented mobile data service on the 2G and 3G cellular communication system’s global system for mobile communications (GSM). GPRS was originally standardized by European Telecommunications Standards Institute (ETSI) in response to the earlier CDPD and i-mode packet-switched cellular technologies.
- GPRS usage charging is based on volume of data, either as part of a bundle or on a pay-as-you-use basis. An example of a bundle is up to 1 MB per month for a fixed fee. Usage above the bundle cap is either charged for per megabyte or disallowed. The pay as you use charging is typically per megabyte of traffic. This contrasts with circuit switching data, which is typically billed per minute of connection time, regardless of whether or not the user transfers data during that period.
- Monthly Service Charge – the charges payable monthly in respect of connection including airtime upon the expiry of the 36 months period from the date of installation as such charges are decided by AMR in its sole discretion from time to time.
- Charges – the charges payable by the SUBSCRIBER to AMR for the Equipment and/or subscription to the Services, as set out on the Form, and thereafter as notified by AMR to SUBSCRIBER.
- Access Period – the period set out on the Form during which the SUBSCRIBER is entitled, to access and use, the Services.
- Equipment – the equipment referred to in the Form, together with any additions or replacements made by AMR.
- Form – the printed form overleaf and includes any debit or credit card mandate or authority.
- Maintenance – maintenance services provided by AMR to SUBSCRIBERS in respect of the Equipment in accordance with Condition 6.
- Maintenance Charge – the charges payable in respect of each specific request for Maintenance made by SUBSCRIBER to AMR, as such charges are decided by AMR in its sole discretion from time to time.
- Services – processing and communication, via the GPS navigational network and the GSM data network and the Equipment, of information about the positioning, speed and other information of Vehicles.
- KPI – Key performance indicator as detailed on the web reports. Data reported is only as accurate the vehicles engine management systems reports and AMR cannot be held responsible for any defective data form the vehicles or data tampered by the SUBSCRIBER. However every effort will be made if requested to investigate the integrity of the data or an event if verification is requested.
- Hosted Services – Cloud computing? In the simplest of terms, it is IT-as-a-Service. Instead of building your own IT infrastructure to host databases or software, Airmax hosts them in it large secure server farms. Companies and registered individuals have access to its data and software over the internet (which in most IT diagrams is shown as a cloud). AMR will reflect the terms and conditions of Backspace in its SLA.
- SUBSCRIBER– the customer referred to in the Form.
- 42. Log in – being both username and password and tiered by request for SUBSCRIBER access or others by agreement
- Airmax Remote Ltd, its successors, assigns or sub-licensees.
- Vehicle(s) – the vehicle(s) and other objects in which the Equipment is to be installed and in respect of which the Services are to be provided, as agreed separately in writing between the parties.
- Reference to the singular includes a reference to the plural and vice versa. Headings are included for ease of reference and shall not affect the interpretation of this Agreement.
- Direct2Dash means An Airmax data and service offering that can be provided using non-EOBD data. The data required is collected directly from electronic control units within the vehicle, which provide data to the instrument cluster and displays. This data is manufacturer and model specific and is likely to not be available for the entire Customer fleet.
- DTC means Diagnostics Trouble Codes
- Activated/Commissioned means that a Product has been provisioned in Airmax’s subcontracted data and communications system.
- De-activated / Decommissioned Product means a unit or Product for which all Services have been discontinued and which is no longer capable of receiving, processing or storing Data
- Working Hours means 9:00 am to 4:30 pm on any Working Day.
- The “Goods” means all Goods or where the context admits any part of the Goods which the Supplier is required to supply under the Order
- The “Technical Specification” means the Specification or Specifications of the Goods and Services more particularly described and referred to on the face of the Purchaser’s Order form.
- The “Statement of Work” means the document described as such and more particularly referred to on the face of the Purchaser’s Order form.
- The “Order Price” means the price payable to the Supplier by the Purchaser under the Order for the full and proper performance thereof.
- “Month” means calendar month.
- “Person” includes a corporation, a company or other business organisation.
- The headings to these Terms and Conditions are for reference purposes only and shall not in any way affect the interpretation thereof.
- In these Terms and Conditions the masculine includes the feminine and the singular includes the plural and vice versa.
- References to any enactment, Order, regulation or other similar instrument shall be construed as a reference to the corresponding enactment, Order, regulation or instrument current at the relevant time.
SUBCONTRACTING AND ASSIGNMENT
- None of the work covered by the Order shall be subcontracted without the prior permission of the Purchaser except as is customary in the trade. The Supplier shall remain responsible for the performance of the Order and shall not assign the Order or his right to payment hereunder.
- In consideration of the Charges, AMR agrees to sell the Equipment and provide the Services to SUBSCRIBER, on the terms set out herein.
- This agreement consists of the Form and these conditions of purchase (“Agreement”), and together they constitute the entire agreement between the parties. In the event of any inconsistency between them, the Form shall take precedence.
- Where the Services incorporate internet based services on the AMR website, SUBSCRIBER must comply with the terms and conditions of use of that website.
Installation and De-installation
- Airmax prefers to use its own in-house installers and third party installers where necessary to install equipment and, where it does so, will warrant its own installs for the duration of the installation. Airmax will invoice the Customer directly for this work at the price set out in the contract.
- Where a Customer has appointed dealers, or their nominated installers, or any other third party installer to carry out installation of Airmax equipment, the Customer shall take full responsibility for those installations and the quality of the work and all issues arising from those installations. The customer shall be responsible for ensuring adequate training of the dealers / installers. Airmax will liaise with these dealers / installers to support installation of equipment within vehicles and provide suitable training material. Airmax will also provide one day of on-site training at the beginning of this contact and up to one day of training per year during the course of this contract. Additional training shall be charged at the rate set out in the contract.
- The customer will pay those dealers / installers directly for any work carried out.
- Airmax will deliver equipment to dealers or third party agents for installation within vehicles. Airmax will accept no responsibility for any equipment lost, wrongly installed, or damaged, by Customer dealers or installers. Where equipment has been installed in error, Airmax will use reasonable efforts to advise the dealer to de-install that equipment.
- Airmax has a policy of undertaking random “spot checks” / audits of installations. Airmax will not charge for these audits but will charge for remedying any installations found to be inadequate at the time of the audit and charge the Customer for that re-installation at the rate set out in Schedule 2. Airmax will provide evidence of the quality of any remedied installation.
- Upon execution of this Agreement, AMR and SUBSCRIBER will agree a time and a place for installation of the Equipment in the Vehicle(s). AMR will carry out the installation in accordance with its normal procedures or any agreed installation programme, subject to Condition 3.3 below.
- SUBSCRIBER will undertake such preparatory work and provide such access, facilities and assistance during normal business hours as AMR may reasonably require to enable it to install the Equipment. If installation cannot be effected because of SUBSCRIBER’S failure to provide reasonable access, facilities or assistance, AMR may still invoice SUBSCRIBER for the Equipment, and any other charges normally payable.
- Prior to installation, AMR will, if required, carry out pre-installation surveys in conjunction with SUBSCRIBER following which the parties will agree an installation programme. AMR reserves the right to make further charges where such installation is materially more complex or time consuming than its standard.
PROPERTY AND RISK
- Subject to Condition 4.3, the Equipment other than the SIM card shall become the property of SUBSCRIBER on payment in full of the Charges. Any unauthorised use of the SIM will instantly become the liability of the SUBSCRIBER. AMR ‘s back office will record and report unusual and excessive use for KPI alerts.
- SUBSCRIBER shall indemnify AMR against any theft, loss of or damage (fair wear and tear excepted) to any property or tools of AMR while on the Vehicle or at the relevant premises, howsoever caused, other than directly attributable to the fault of AMR.
- Title to all software and all other intellectual property used in, or in connection with the Equipment remains at all times with AMR (or relevant third party). AMR hereby grants a non-exclusive, non-transferable, non-sublicenceable, royalty free licence to SUBSCRIBER of the foregoing, for the purpose only of enabling it to make full use of the Equipment and Services.
- Following any sale or other disposal of the Vehicle(s) on which the Equipment is fitted, SUBSCRIBER shall inform AMR in writing of such event within fourteen (14) days. The SIM and service will be disconnected.
- Except as indicated on the Form, the Charges for each Entitlement Period are payable in advance. The Maintenance Charges or the Annual Maintenance Charges (as applicable) will be payable on the date(s) agreed between the parties in writing. Where any payment from SUBSCRIBER hereunder is not made within five (5) working days of becoming due, SUBSCRIBER shall, in addition to the sum outstanding, be liable (without prejudice to any other right or remedy AMR may have) to pay interest on a daily basis from the due date until the date payment is received, such interest to accrue before as well as after judgement at the rate of 4% per annum above the base rate of the Bank of Scotland plc from time to time, and SUBSCRIBER shall indemnify AMR against any costs or expenses incurred in AMR obtaining payment of such arrears.
- Prices are only valid if expressed in writing by AMR and only for the quantity of Products and time period stated in its quotation or order confirmation. If not stated, the validity period is 30 days.
- If the SUBSCRIBER agrees to lease or hire the Products from a third party such as a finance company, it is the SUBSCRIBER’s responsibility to ensure that all lease or hire agreements, payment guarantees, acceptance notes and initial payments are completed satisfactorily within 7 days of delivery. If the SUBSCRIBER fails to comply with this requirement or the 3rd party fails to pay AMR within 30 days from delivery then AMR shall invoice the SUBSCRIBER directly for the Products at its published prices and such invoice shall be payable by the SUBSCRIBER within 7 days.
- Subject to providing SUBSCRIBER 60 days written notice, AMR may in its sole discretion increase or decrease the Charges. Should SUBSCRIBER not agree to the change to the Charges, it may terminate this Agreement under clause 9.3.
- If SUBSCRIBER wishes to move the location of any of the Equipment to a new Vehicle, a charge at AMR’s then current rate will be made to SUBSCRIBER to cover the cost of removal and re-installation of such Equipment. The in vehicle unit may have to be ungraded of the engine management system is different and a fee of £50 will be made for the refurbishment or upgrades and missing cables.
WARRANTY & MAINTENANCE
- AMR warrants that the Equipment, when operated properly, will enable SUBSCRIBER to make use of the Services, for 36 months from the date of installation. SUBSCRIBER shall also be entitled to Maintenance in accordance with (and subject to) the rest of this Condition 6, for such twelve month period without charge.
- Maintenance shall continue to be provided thereafter (until such time as either party terminates this Agreement), so long as the Maintenance Charges or Annual Maintenance Charges (as applicable) are paid in full. Any failure or delay in paying the Maintenance Charges or Annual Maintenance Charges will entitle AMR to withdraw the provision of Maintenance.
- Where Maintenance is provided, SUBSCRIBER may obtain support by ringing AMR’s support helpdesk (01932504300), which is operational between 9.00am and 5.30pm weekdays (bank and other public holidays accepted). All diagnosis and fault correction shall, where possible, be done remotely, failing which AMR will send suitable engineers to the Vehicle(s). If so, SUBSCRIBER will allow the service engineers and other AMR representatives access to the Equipment at a reasonably convenient location at all reasonable times to carry out such repair and maintenance.
- Should it turn out that the problem either was due to incorrect operation of properly functioning Equipment, or otherwise caused by SUBSCRIBER, AMR may make a reasonable charge for travel to, and attendance at, the Vehicle(s).
- AMR guarantees to the Customer that the Products will be free from defects for a period of 36 months from delivery unless otherwise stated on the order confirmation. Should the Products be defective within this period, AMR will repair or replace them within a reasonable time using components or replacements that are new, or equivalent to new.
CONFIDENTIALITY, IPR & SECURITY
- SUBSCRIBER will, and will ensure that its employees and agents do, hold and cause to be held confidential any information received pursuant to this Agreement, including (without prejudice to the generality of the foregoing) trade secrets, know-how, intellectual property, designs, software technology and inventions created or operated by AMR. No copies or unlicensed use of any intellectual property in any Equipment or any other materials licensed or provided hereunder, may be made without the prior written permission of AMR.
- SUBSCRIBER acknowledges that, in order to safeguard AMR’s property rights, certain receivers have been fitted with a security device which will corrupt the software information contained in the Equipment if such units are tampered with. SUBSCRIBER accepts that it is under an obligation to ensure that the units are not so tampered with and that it has no claim against AMR in such a contingency. SUBSCRIBER further agrees to indemnify AMR against any consequential loss (including but not limited to loss of profits, loss of use and loss of revenue) which it may suffer as a result of such tampering.
LIABILITY AND INDEMNITY
- SUBSCRIBER will indemnify AMR against all liability arising out of the possession or use of the Equipment, other than liability for death or personal injury which is caused directly by AMR’s negligence.
- Neither AMR nor its employees or agents shall be liable for any loss or damage arising or resulting from:
- any defect in or operational failure of the Equipment, however caused;
- any delay in carrying out its obligations under this Agreement howsoever caused, or any event of Force Majeure as defined in Condition 10;
- any act, neglect or default (whether wilful, negligent or otherwise) of AMR its employees or agents in the manufacture, installation, inspection, maintenance, repair, extension, or modification, transfer or removal of the Equipment or otherwise howsoever caused PROVIDED always that this Condition shall not operate to exclude AMR’s liability for death or personal injury caused by the negligence of AMR its employees or agents.
- AMR shall not in any circumstances be liable for any loss of business or profits, or any consequential or indirect loss, arising under or in connection with this Agreement as a result of the use or breakdown of the Equipment or the provision of the Services.
- Under no circumstances will Airmax be liable for any punitive, indirect, special or consequential damages, compensation or loss of profits, anticipated revenue savings or goodwill, other economic loss of SUBSCRIBER, or any other costs, expenses or interest related thereto, under any theory of law or equity, arising our of or in any way related to this agreement, even if advised of the possibility thereof
- SUBSCRIBER acknowledges that the product is a wireless device and that Airmax cannot collect data from the product once it travels beyond a certain range. The products and services are dependant on the coverage areas of wireless networks owned and operated by third parties. Coverage areas are approximate. Actual coverage and operation of the products depend on system availability and capacity, system and equipment upgrades, repairs, maintenance, modifications, relocation, terrain, signal strength, structural conditions, weather and atmospheric conditions, governmental regulations, and other acts of god, and other conditions beyond Airmax’s reasonable control. The product may not operate in enclosed space in buildings between buildings, underground, or in canyons.
- The products and services are dependant upon the availability of the internet which is owned and operated by and accessed through third parties. Airmax does not warrant that the receipt of data, mapping information and other content from the product will be uninterrupted or that the transmission of data, mapping information and other content from Airmax or Airmax’s suppliers will always be timely or complete.
- NB. The AMR unit will record data even if out of coverage and will download its data when back in transmission coverage. Vehicles using local SIMS but travelling overseas will not report unless pre set and commissioned for a roaming SIM. SIMS once out of territory my not be able to be commissioned if then out of coverage.
- The termination of this Agreement howsoever caused shall be without prejudice to any rights accrued by the parties up to the date of termination.
- This Agreement shall commence on the date the Equipment is installed in the Vehicle and shall continue for the Entitlement Period, after which time it shall continue for successive Entitlement Periods unless and until terminated by written notice. Termination shall be effective from the date of receipt of the notice of termination and all Charges (and Annual Maintenance Charges or Maintenance Charges (as applicable)) levied by AMR prior to that date remain due and payable by SUBSCRIBER.
- On the date of notification of termination, SUBSCRIBER will cease to have access to all vehicle data provided and collated under the Services for the Vehicle.
- Should the SUBSCRIBER terminate this Agreement then subsequently wish to reconnect the Equipment to receive the Services, it should notify AMR in writing. On receipt of such notification and subject to AMR confirming that the Equipment remains in satisfactory working condition and the SUBSCRIBER paying the Charges (including any reconnection charges), AMR may agree to again provide the Services for further Entitlement Periods commencing on the reinstallation or inspection date.
- AMR shall not be liable to SUBSCRIBER for any failure or delay in performing its obligations hereunder if such failure arises from any act of God, war, strike, lockout or other labour dispute, riot, civil commotion, fire, flood, drought, legislation, system/network failure or interruption or other causes beyond AMR’s reasonable control. For the avoidance of doubt, SUBSCRIBER accepts that the functioning and coverage of the GPS/GSM networks and the internet are matters beyond AMR’s reasonable control. AMR will not be liable for any rebates on payments in the event of such failure or delay occurring.
- Airmax reserves the right to defer the date of provision, or to cancel, or reduce the products and services ordered by the SUBSCRIBER (without liability to the SUBSCRIBER) if it is prevented from or delayed in the carrying on of its business and its obligations under the agreement due to circumstances beyond the reasonable control of Airmax
- SUBSCRIBER may not assign or sub-contract any of its rights or obligations under this Agreement without AMR’s prior written consent.
- AMR may assign this Agreement or any part of it.
- Any notice which is to be given hereunder by either party to the other must be sent by prepaid post addressed to the other party, in the case of AMR at its registered office or in the case of SUBSCRIBER at SUBSCRIBER’S premises specified in the Form or as subsequently notified to AMR. Any notice so sent shall be deemed to be served on the date of posting and in providing such service it shall be sufficient to show that the letter containing the same was properly addressed and posted.
- This Agreement shall be governed by English Law and is subject to the jurisdiction of the English Courts.
RIGHT TO VARY
- Subject to providing SUBSCRIBER 60 days written notice, AMR may in its sole discretion vary this Agreement. Should SUBSCRIBER not agree to the variation it may terminate this Agreement under clause 9.3.
- The Purchaser may make and instruct the AMR to carry out any alteration to the Order as aforesaid at any time prior to the completion of the Order. All communications to the AMR requesting such alteration shall only be valid if originated by an Authorised Signatory.
- As soon as possible after having received any such instruction to vary the Order the AMR shall notify the SUBSCRIBER if, in the AMR’s opinion, the variation will involve an addition to or deduction from the Order Price.
- The amount to be added or deducted from the Order Price shall, if not the subject of a quotation from AMR which has been accepted by the SUBSCRIBER prior to the variation being ordered, be determined in accordance with the rates specified in the Order, if applicable. Where rates are not contained in the Order or are not applicable then the amount shall be such sum as is in all the circumstances reasonable.
- In any case where AMR is instructed to proceed with a variation prior to the determination of the value AMR shall keep contemporary records of the cost of making the variation and of the time expended thereon. Such records shall be open to inspection by the Purchaser at all reasonable times.
- If, in the opinion of the AMR, any such variation is likely to prevent or prejudice him from fulfilling any of his obligations under the Order, he shall notify the SUBSCRIBER thereof with the full supporting details. The SUBSCRIBER shall decide forthwith whether or not the variation shall be carried out.
- Subject thereto, the carrying out of such instructions shall not, without the consent of the SUBSCRIBER, be delayed pending agreement on price.
Termination and Expiration
- All the obligations of the SUBSCRIBER under this Agreement shall be construed as being material terms and conditions of this Agreement and AMR shall accordingly be at liberty to treat a breach of any of the said obligations as a repudiation and material breach of this Agreement.
- In the event of any material breach of this Agreement, including non-performance or inadequate service provision, or non-payment, uncured for thirty (30) days after the non-breaching Party delivers written notice describing the breach, a 3-months notice period can be used to terminate the contract from either side. Should a breach occur, but it is found to be capable of remedy, then both sides will agree to a period of grace to put right the breach. A maximum period of 1 month for the grace period will apply before the 3-months termination period begins. The grace period will not apply if either side informs the other that there is no intent to remedy the breach or is not capable of remedy.
- Either party may, in its sole discretion and for its sole convenience, terminate this Agreement or any Purchase Order at any time with or without cause upon ninety (90) days written notice.
- .Without prejudice to the generality of the above, AMR may terminate this Agreement forthwith by giving written notice to this effect to the SUBSCRIBER if:
- Any sum payable by the SUBSCRIBER to AMR under this Agreement is not received by Airmax within 7 days of the due date for such payment.
- .If the SUBSCRIBER breaches any of the SUBSCRIBER’s other obligations under this Agreement and, in the case of a remediable breach, such breach is not remedied within 14 days of Airmax giving notice to the SUBSCRIBER specifying the breach and requiring the same to be remedied.
- If the SUBSCRIBER fails to meet any of the SUBSCRIBER’s obligations (after being given the opportunity to do so) under any loan, hire purchase, credit sale, conditional sale or lease agreement, or under any debt, guarantee, indemnity or other finance obligation, or any of such obligations is accelerated by reason of default.
- If the SUBSCRIBER becomes or is deemed to become insolvent or unable to pay its debts or ceases or threatens to cease to carry on business in the normal course.
- Where the SUBSCRIBER is a partnership, corporation (of any kind) or statutory authority, there occurs a material change in the ownership or control of the SUBSCRIBER from that subsisting at the date of this
- Agreement or, without prejudice to the generality of the foregoing, where the SUBSCRIBER is a corporation, the SUBSCRIBER ceases to be a subsidiary of the SUBSCRIBER or corporation of which it is a subsidiary at the date of this Agreement and for the purpose of this sub-paragraph subsidiary shall have the meaning ascribed by Section 736 Companies Act 1985.
- Ownership of all or a material part of the SUBSCRIBER’s assets is transferred to a third party.
- Any representation made or information provided by or on behalf of the SUBSCRIBER to AMR from time to time in connection with the negotiation or continuation of this Agreement is found to be incorrect as to a particular which, in the opinion of Airmax is material.
- Any judgement is obtained against the SUBSCRIBER and remains unsatisfied for more than 7 days.
- The SUBSCRIBER enters into a voluntary arrangement or enters into an informal arrangement or composition with or executes a deed of assignment or trust for the benefit of the SUBSCRIBER’s creditors or any of them, or an application for an interim order is presented in respect of the SUBSCRIBER, or the SUBSCRIBER calls a meeting of the SUBSCRIBER’s creditors or any of them for the purpose of rescheduling any of the
- SUBSCRIBER’s debts or the SUBSCRIBER calls a meeting of the SUBSCRIBER’S members or creditors for the purpose of considering a resolution for voluntary winding-up.
- This Agreement shall immediately terminate if:
- The SUBSCRIBER passes a resolution for voluntary winding-up or a petition to wind-up the SUBSCRIBER is presented (other than in each case for the sole purpose of amalgamation or reconstruction to which Airmax has given its prior written consent)
- A receiver of any of the SUBSCRIBER’s assets is appointed or execution, distress or diligence is levied over any of the SUBSCRIBER’s assets or any part thereof
- An administrative receiver is appointed over the whole or substantially the whole of the SUBSCRIBER’s assets
- A petition is presented by the SUBSCRIBER or its directors or by any of the SUBSCRIBER’S creditors for an administration order to be made in respect of the SUBSCRIBER
- Nothing in this termination clause will effect the continuation of any payments of any units that are already installed for the minimum term agreed, unless it is proven that the units are failing to provide the intended data.
- On termination of this contract, AMR shall de-commission the units within the vehicles and cancel all usernames and passwords associated with the account.
- Upon termination of this Agreement for any reason, whether by SUBSCRIBER or by AMR, the Parties will reasonably cooperate during the termination period to effectively and efficiently terminate the service.
QUALITY, INSPECTION AND TESTING
- The AMR shall maintain management procedures and controls which shall provide evidence that he is capable of meeting his responsibilities in accordance with requirements defined under ISO 9000 Quality standards.
- The SUBSCRIBER’s inspector or representative and any inspector or representative of the SUBSCRIBER’s customer or his agent shall be entitled on the SUBSCRIBER’s authority to witness the inspection or testing of the Goods and Services at any time at the AMR’s works or at works of any of the AMR’s subcontractors or AMR. If required by the SUBSCRIBER, the AMR shall give the SUBSCRIBER adequate notice of the AMR’s works test which the SUBSCRIBER shall be entitled to attend. Reasonable facilities shall be provided at the AMR’s expense for the inspector or representative. The AMR shall provide the SUBSCRIBER with such certificates as the SUBSCRIBER may require.
- Notwithstanding inspection and testing the SUBSCRIBER reserves the right to subject Goods and Services to further inspection and testing upon their completion and delivery to the SUBSCRIBER prior to their acceptance.
- Neither the inspection and testing referred to in Clauses 10.2 and 10.3, nor any waiver thereof, shall relieve the AMR of its obligations to furnish the Goods and Services in accordance with the Order; neither shall they in any way prejudice any claim the SUBSCRIBER may have arising out of the use of defective AMR’s design, materials or workmanship or any shortfall in delivery.
- Any Goods and Services which are not in accordance with the Order will be rejected by the SUBSCRIBER and rejected Goods which have been delivered will be returned to AMR at the AMR’s risk and expense.