1. Definitions
1.1 In these terms and conditions or any subsequent amendments and/or additions to these Terms and Conditions as published by Yes Europa Ltd (“Terms and Conditions”):
“14 Day Trial” means the special 14 day trial period of the Equipment as set out in the [Service Agreement]. “Agreement” means these Terms and Conditions together with the [Service Agreement]; “Authorised User” means any person lawfully authorised by the Subscriber to use the Vehicle; “Commencement Date” means the date on which the Subscriber signs the [Service Agreement], registers with Yes Europa Ltd or starts to use the Service, whichever is earlier; “Duration Charges” means the payment made by the Subscriber for vehicle tracking service for the period that they are the keeper of the Vehicle as set out in the Subscription Agreement and in accordance with clause 6.3 of these Terms & Conditions; “Equipment” means the equipment listed on the [Service Agreement] signed by the Subscriber which is fitted in the Vehicle and includes any replacement parts or additions added to the vehicle at a later date; “Minimum Period” is the term signed for on the contract. “Service” means the vehicle tracking location service in mainland Great Britain and Europe as set out in the terms & conditions (which may be varied at Yes Europa Ltd’s discretion from time to time); “Subscriber” means the person, firm or company whose order for the Equipment and the Service has been accepted by Yes Europa Ltd; “[Service Agreement]” means the form signed by the Subscriber requesting the Service; “Subscription Period” means the period that the Equipment is hired by the Subscriber and which payment for the hire and provision of Service is made; always 90 days pus any term unless agreed expressly in writing from a director of Yes Europa Ltd “Termination Payment” means the payment listed on the Service Agreement payable in the event the Subscriber wishes to terminate the Subscription Period early; “Vehicle” means the Subscriber’s vehicle in which the Equipment is installed; “Warranty” means the warranty set out in clause 7.
2. Acceptance
The signing whether electronically and verbally agreeing of the [Service Agreement] and/or use of the Service after having been provided the opportunity to read these Terms and Conditions shall be deemed as conclusive evidence of the Subscriber’s acceptance of these Terms and Conditions. In signing a contract other orders will be accepted on your instruction to add to this contract making additional units co terminus and subject to the same terms and conditions. Addition to the contract will be accepted verbally, email or via any other method and the company would rely on the subscriber making vehicles available for installation as a full acceptance of your liability under this clause.
3. Equipment
3.1 The Subscriber is responsible for choosing the Equipment to ensure it is suitable for his purpose. 3.2 The Subscriber shall not nor permit any other person to tamper with, modify, add, dismantle or otherwise interfere with the Equipment and must not remove or permit the removal of the SIM card from the Equipment. 3.3 Title for all equipment provided by Yes Europa Ltd under the terms of this agreement shall remain with Yes Europa Ltd in any event. The Equipment may not be removed from the Vehicle under any circumstances unless agreed in writing by Yes Europa Ltd. 3.4 Yes Europa Ltd reserves the right to charge the Subscriber for any costs incurred as a result of breach of sclauses 3.2 and/or 3.3 3.5 The Subscriber shall keep the Equipment at all times in his possession and control and, except in the case of portable Equipment, he shall keep it at the location stated in this Agreement unless agreed with Yes Europa Ltd in writing. 3.6 The Subscriber is responsible for maintaining the Equipment in a good state of repair and condition and ensuring the Equipment is used for its intended purpose and must inform Yes Europa Ltd of any faults immediately. 3.7 Yes Europa Ltd reserves the right to inspect the Equipment at all times upon reasonable notice and allow safety or ownership labels to be affixed to the Equipment. 3.8 Yes Europa Ltd do not hire the Equipment with any guarantee or warranty or condition (express or implied) about the description, suitability or fitness for purpose of the Equipment or that it is of satisfactory quality and, to the extent permitted by law, any such warranties and conditions implied by statute or otherwise are excluded. 3.9 During the Subscription Period, Yes Europa Ltd shall pass on to the Subscriber the benefit of any guarantees, and warranties in respect of the Equipment from the manufacturer and/or supplier provided it is in their powers to do so. 3.10 Should the Equipment fail for any reason, the Subscriber must notify Yes Europa Ltd immediately and allow Yes Europa Ltd a reasonable time period to rectify the problem. The Subscriber must continue to pay all monies as they fall due regardless of any technical issue with the Equipment and Yes Europa Ltd shall make any reasonable credit payments back to the Subscriber if it is found that a real problem or issue caused the Equipment to fail. 3.11 Yes Europa Ltd reserve the right to charge an administration fee for each maintenance visit conducted by Yes Europa Ltd engineers when an engineer is requested by the Subscriber to service or fix a fault or issue with the Equipment. 3.12 The Subscriber shall be responsible for paying any fines, duties, insurance premiums and other payments due for the Equipment.
4. Software
4.1 The Subscriber is responsible for choosing any software in the Equipment to ensure it is suitable for his purpose. 4.2 Yes Europa Ltd shall not be held responsible for access problems or faults with the Service via the internet or for interrupted access to the Service. 4.3 The Subscriber shall abide by all software licences provided by the software suppliers and shall indemnify Yes Europa Ltd against any claim made against Yes Europa Ltd in relation to any breach of any licence. 4.4 The Subscriber shall be responsible for paying any licence fees, fines, duties, insurance premiums and other payments due for the software.
5. Payment
5.1 The monthly fee for the hire of the Equipment and the Service is set out in the [Service Agreement]. 5.2 Yes Europa Ltd is under no obligation to install the Equipment or provide the Service until first payment has been received or all relevant documentation has been signed by the Subscriber. 5.3 The monthly fee MUST be paid by Direct Debit or Standing Order unless otherwise agreed in writing between the Subscriber and Yes Europa Ltd. Yes Europa Ltd reserve the right to increase the monthly fee for the hire of the Equipment and the Service should any other method of payment be used. 5.4 All sums payable are exclusive of VAT and Yes Europa Ltd shall provide VAT invoices and/or schedules upon request. 5.5 If any sums due from the Subscriber to Yes Europa Ltd hereunder remain unpaid for more than 28 days from the due date, Yes Europa Ltd will be entitled to; 5.5.1 charge interest on the outstanding sum at the rate of three percent (3%) above the base lending rate as per the Bank of England, which interest shall accrue on a daily basis from the due date until payment is received in full by Yes Europa Ltd together with all interest that has accrued; and/or 5.5.2 suspend the provision of the Service until full payment has been received in full together with all interest that has accrued; and/or 5.5.3 terminate this agreement; and the Subscriber shall reimburse Yes Europa Ltd on demand in respect of all costs and expenses incurred by Yes Europa Ltd in tracing the Subscriber and in taking steps to enforce payment of any such sums due. 5.6 If the Subscriber’s bank, building society or other financial institution fails to honour any direct debit, cheque or other method of payment, the Subscriber shall reimburse Yes Europa Ltd in respect of any administration costs or costs incurred in re-presenting the same. 5.7 Where the Subscriber pays by automatic Direct Debit or Standing Order, it is the responsibility of the Subscriber to cancel the same with the bank, building society or other financial institution. Yes Europa Ltd will not be obliged to issue any refund in respect of any monies received from the Subscriber in breach of this clause. 5.8 If the Subscriber is taking advantage of the 14 Day Trial and does not inform Yes Europa Ltd of its intention to cancel this Agreement on or before the 15th day, the 14 Day Trial is automatically extended to a full Agreement and the Minimum Period shall apply.
6. Insurance
6.1 The Subscriber shall insure the Equipment for its full replacement value with full comprehensive cover against all insurable risks and effect third party liability insurance, in each case with a reputable insurer approved by Yes Europa Ltd. The Subscriber must arrange for Yes Europa Ltd’s interest in the Equipment to be endorsed on the insurance policy. 6.2 The Subscriber must, on request, provide Yes Europa Ltd evidence that such insurance is in place and should evidence not be forthcoming within 14 days from request Yes Europa Ltd have the option to, arrange insurance on behalf of the Subsciber in respect of some or all of the relevant insurance risks as Yes Europa Ltd think fit. The Subscriber shall reimburse Yes Europa Ltd the full cost of this insurance and all associated costs. 6.3 The Subscriber must immediately inform Yes Europa Ltd of any insurance claims and the Subscriber may not settle any claims without the written agreement of Yes Europa Ltd. The Subscriber hereby appoints Yes Europa Ltd as its agent for receiving insurance settlements and the Subscriber must inform the insurance company that any settlement claimed in the event that the Equipment is lost or stolen or damaged beyond economical repair (a “Total Loss”) should be paid to Yes Europa Ltd as the Subscribers agent. 6.4 Should a Total Loss occur; 6.4.1 if appropriate, Yes Europa Ltd reserve the right to inspect the Equipment and should the insurance company allow, remove the Equipment from the vehicle and return it to Yes Europa Ltd premises; 6.4.2 within twenty eight days, either; 6.4.2.1 replace the Equipment at the Subscribers expense (using the insurance monies) and continue with this Agreement or; 6.4.2.2 settle this Agreement by paying to Yes Europa Ltd the Termination Payment. Any insurance settlement we receive from the insurers will be credited to the Termination Payment. 6.5 Until any Termination Payment is received by Yes Europa Ltd, the Subscriber shall remain liable for all sums due under this agreement along with any interest. 6.6 Yes Europa Ltd are under no obligation to replace the Equipment should a Total Loss occur and should Yes Europa Ltd decide not to replace the Equipment the Agreement will be deemed terminated and only associated administration costs are payable by the Subscriber to Yes Europa Ltd in this instance.
7 Liability
7.1 Notwithstanding any other provision of this Agreement, Yes Europa Ltd does not seek to exclude or restrict its liability for fraud, or for death or personal injury caused by its negligence. 7.2 In respect of all other liability hereunder, Yes Europa Ltd’s liability in respect of each event or series of connected events shall not exceed an amount equal to the sum of the monies paid by the Subscriber during the 12 months prior to any claim. 7.3 Yes Europa Ltd shall not be liable to the Subscriber for loss of profits or any other indirect or consequential loss whether arising from tort (including negligence) or breach of contract or otherwise. 7.4 The Equipment is an electronic assembly that consumes an electrical current. It is designed to draw small amounts of current when the vehicle is not being used and there is a small drain on the vehicle battery that may adversely affect vehicles that are not in regular use. Yes Europa Ltd accepts no liability for any consequences of the battery drain associated with use of the Equipment and recommends that the battery should be recharged periodically to ensure maximum performance 7.5 The Equipment (together with any optional extras supplied by Yes Europa Ltd and installed in the vehicle) must not be used in any way which would or may affect the ability of the driver of the vehicle to drive safely. Yes Europa Ltd shall not be liable for any loss or damage caused by the acts or omissions of the driver of the vehicle. 7.6 The Subscriber acknowledges that, owing to the nature of the technology comprised in the Equipment, the operation of the Service may from time to time be adversely affected by physical features such as underpasses, atmospheric conditions and other causes of interference beyond Yes Europa Ltd’s control. Yes Europa Ltd can give no guarantee that the vehicle, or other Services, will work in adverse conditions or in the event of force majeure. In particular, the operation of the Equipment and, therefore, the provision of the Service in accordance with this Agreement, depends to some extent upon the operation of the digital cellular telecommunications technology with which the Equipment operates, and this technology is not operative in all parts of mainland Great Britain and Europe. 7.7 The Subscriber acknowledges that the hire of the Equipment does not in any way mitigate the duty to obtain adequate insurance for the vehicle. 7.8 Yes Europa Ltd will accept no liability for damage or loss incurred as a result of the Subscriber’s breach of these Terms and Conditions.
8 Assignment
8.1 This Agreement is personal to the Subscriber and relates exclusively to the Subscriber vehicle(s) and may not be assigned to another subscriber. 8.2 Yes Europa Ltd may assign, transfer or novate this Agreement and the rights and obligations under it to any other party at any time, and must inform the Subscriber of any such transaction in writing within a reasonable time after it has occurred. 8.3 If the Subscriber intends to sell the vehicle the Subscriber should contact Yes Europa Ltd to discuss the transfer of the Equipment to a new vehicle. If the vehicle is sold with the Equipment still installed, this Agreement will be deemed terminated and the Subscriber acknowledges that they will be liable to pay to Yes Europa Ltd the Termination Payment.
9 Subscription Period and Termination
9.1 This Agreement shall commence upon the Commencement Date and shall continue for the Minimum Period detailed on the quote or verbally agreed never less than 24 months unless formally written in and thereafter shall automatically be renewed for a further minimum period of 12 months on each anniversary of the Commencement Date unless terminated by either party giving 90 days notice prior to the next anniversary of Commencement Date. Notice of cancellation shall be sent to Yes vehicle tacking limited registered office (or such other address as Yes Europa Ltd may nominate from time to time) 9.2 Upon termination of this Agreement the accrued rights and liabilities of the parties shall not be affected and payments made by Subscribers prior to termination are non-refundable unless agreed in writing by Yes Europa Ltd prior to termination. 9.3 Either party may, by written notice to the other party, terminate this Agreement in the event that: 9.3.1 the other party is in material or persistent breach of this Agreement; and/or 9.3.2 the other party becomes insolvent or bankrupt, enters into liquidation, whether voluntary or compulsory, passes a resolution for its winding up, has a receiver or administrator appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt. 9.4 Yes Europa Ltd may terminate this Agreement with immediate effect on written notice to the Subscriber in the event that: 9.4.1 any government or other regulatory approvals for the use of the Equipment are withdrawn, suspended or amended at any time; and/or 9.4.2 the Subscriber or any Authorised User raises false alarms in circumstances where, he or she had (in Yes Europa Ltd’s opinion) no reasonable grounds, on which to believe that the Vehicle had been stolen or that genuine emergency or breakdown conditions exist. 9.5 Where the Subscriber has no charge for deinstallation and reinstallation as part of their subscription package this is subject to a fair use policy of one deinstallation and reinstallation per device per annum. 9.6 Termination of this Agreement by the Subscriber will take effect at the end of the relevant Subscription period. 9.7 Where a subscriber has self-fitted Yes Europa Ltd’s equipment, at the end of the term it is the subscriber’s responsibility to ensure the goods are returned at their cost. Any tracking devices missing will be invoiced at £300 each. Termination notice will only be accepted during the month which they fall due. 90 days notice has to be given in every case.
10 Subscriber Information
10.1 The Subscriber acknowledges that for security reasons and training, telephone calls between Yes Europa Ltd and the Subscriber may be recorded. 10.2 The Subscriber acknowledges that authorised Yes Europa Ltd personnel can track the vehicle. 10.3 Yes Europa Ltd reserves the right to use and to allow third parties to use location, time and speed information obtained from the vehicle for traffic information, journey data analysis and mapping purposes. 10.4 Yes Europa Ltd reserves the right to use the Subscriber’s personal data, including personal data obtained from the vehicle, for traffic information, data analysis, mapping, and marketing purposes. 10.5 Yes Europa Ltd and its agents, its business partners and/or carefully selected companies may use the Subscriber’s information to keep the Subscriber informed by post, telephone, facsimile, e-mail, text messaging or other means about products and services that may be of interest. By providing Yes Europa Ltd with contact details, the Subscriber consents to being contacted by these methods for these purposes. If the Subscriber does not wish to receive marketing information, the Subscriber must state this in writing to Yes Europa Ltd at Rainbow House, Railway Road, Adlington, Chorley, PR6 9RB. 10.6 If the Subscriber provides information about another person, in doing so the Subscriber confirms that they have given permission to provide it and for Yes Europa Ltd to be able to process their personal data (including any sensitive personal data) and also that the Subscriber has told them who Yes Europa Ltd is and what Yes Europa Ltd will use their data for, as set out in this notice. 10.7 The Subscriber will inform all Authorised Users of the Vehicle of the information contained in this clause.
11 General
11.1 All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be delivered or transmitted to the intended recipient’s address as specified above or on the Service Agreement or such other address as either party may notify to the other for this purpose from time to time. Any notice shall be treated as having been served on delivery if delivered by hand, four (4) working days after posting if sent by pre-paid registered mail, two (2) working days after despatch if sent by courier and on confirmation of transmission if sent by facsimile. Reference to “in writing” in this Agreement includes Yes Europa Ltd notifying the Subscriber by email, where the Subscriber has supplied their email address for this purpose. 11.2 The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party’s right later to enforce or to exercise it. 11.3 If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms. 11.4 This Agreement or any subsequent additions to these Terms and Conditions notified to the Subscriber contains all the terms agreed between the parties regarding its subject matter and supersedes any prior Agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedies shall be for breach of contract as provided in this Agreement. 11.5 The construction, validity and performance of this Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English and Welsh courts to resolve any disputes between them.