1.1 Unless the context indicates a contrary intention, the following words and expressions shall have the meanings assigned to them below and cognate expressions shall bear corresponding meanings:
1.1.1 Agreement—means this agreement together with all its schedules;
1.1.2 Applicable taxes, means all taxes, Federal, provincial and Local, that are payable by the Client in respect of availing the services envisaged in this Agreement, and shall be deemed to include taxes that are brought into force subsequent to the execution of this Agreement;
1.1.3 Client— the person/company/institution that has paid for the system.
1.1.4 User— the person nominated by the client for the use of the vehicle.
1.1.5 Commencement Date—means the date on which this agreement is signed by the DTrack;
1.1.6 Package—Correlated to the limitation of services, the equipment offers at different costs.
1.1.7 Equipment—means the device, an onboard computer provided to the Client for utilization of the services and auxiliary items thereto (including operating software); according to the opted package.
1.1.8 Fleet Management services—means installation of the Equipment in motor vehicles, and receiving data from the Equipment at intervals during each day, and providing ad report based on the information received to the Client.
1.1.9 Network Area—means the area within which the cellular mobile telecommunication services are available to DTrack;
1.1.10 Service Charge—means the annual cost as invoiced, payable upon execution of the Agreement, and then each anniversary date thereafter, plus amount/s that may be invoiced to the client on a monthly basis based upon a client’s usage of the Services in excess of that include in the Service package availed by the Client.
1.1.11 Service Center—means any duly appointed Service Center, the location and other details of which shall be communicated to the Clients from time to time.
1.1.12 Servicing Hours—means the hours 0900 to 1700 Monday to Friday, excluding all public holidays, but including Saturdays from 0900 to 1300.
1.1.13 Services—means vehicle Tracking Services, Fleet Management Services, and Equipment maintenance services.
1.1.14 DTrack means DTrack Limited, its service centers, its agents and/or its distributors;
1.1.15 Unit-means any single item of Equipment, particularly those items of Equipment that can readily be identified by their trade name or types.
1.1.16 Vehicle Tracking Services - means installation of the Equipment in the motors vehicles, tracking the motor vehicles within the Network Area, and immobilization of the motor vehicles on timely basis receiving clients instructions if the motor vehicle leaves the Network Area.
1.2 Words importing the singular shall include the plural and vice versa, words importing the masculine shall include the feminine gender and vice versa and natural persons shall include juristic persons and vice versa.
1.3 The headings to the paragraphs in this Agreement are inserted for the purpose of reference only and shall not affect the interpretation of any provision to which they relate.
1.4 In the event that any definition in this clause 1 contains substantive provision, then such provision shall be given effect to as if the same were incorporated into the main body of the agreement.
The parties wish to enter into this Agreement in respect of the Services.
3. DURATION AND NOTICE
This Agreement shall commence on the Commencement Date and shall continue for an initial period of 12 months, thereafter be renewed automatically for further periods of twelve months each, unless the Customer gives DTrack three months’ written notice of its intentions to terminate the Agreement, which notice may only be given on the anniversary of the Commencement Date. DTrack may terminate the Agreement at its discretion at any time and without having to assign any reason thereof.
4.1 Payments of all amounts due in terms of this agreement shall be made by the client to DTrack by way of a Debit or Stop order on the client’s bank account, in the form and substance prescribed in schedule—I of this agreement, unless DTrack and the client agree to an alternative method of payment. The client hereby authorizes DTrack to do all such things and sign all such documents as may be necessary to give effect to the debit order.
4.2 The Service Charge is exclusive of the Applicable Taxes, which shall be invoiced along with the Service Charge but under separate head/s.
4.3 All Invoices issued by DTrack must be paid in full within the due date mentioned on the Invoice. If the payment is not received within the due date, a late fee shall be charged at the rate of Rs.1000/- per month, until then its services are discontinued/terminated.
4.4 Notwithstanding anything contained in clause 4.3 above, If payment is due to DTrack and note made within the stipulated time, DTrack is hereby authorized to:
4.4.1 Terminate this Agreement and discontinue the provision of any and all Services to the Client, including repossessing the unit for adjustment against recovery of any of its dues and/or
4.4.2 Immobilize the vehicle, without any prior notice to the Customer, till the full and final payment is received by DTrack to its entire satisfaction. Nothing herein above contained shall prejudice DTrack’s right to avail any other remedy available to it under the law for recovery of outstanding amount.
4.4.3 Invoice any additional services rendered e.g. entry into no-go areas without intimation, false alarms etc. at its own discretion, to the client.
4.5 DTrack shall not be responsible for any action, claim, loss, damage and/or detriment that are occasioned by the Client as a result of an action taken in accordance with clause 4.4 above.
5. LIMITED LIABILITY CLAUSE
5.1 In conformity with the consumer protection laws, DTrack is responsible for making customers fully aware of the products limitations and the company liabilities in case of its non-performance due to any reason.
5.2 DTrack will not be responsible for any loss of goods or cash in case of theft/snatching of vehicle till its recovery/non- recovery.
5.3 DTrack does not guarantee recovery of any vehicle under any circumstances. However, DTrack assures that in the unfortunate event - that a vehicles gets stolen/snatched, Trakker will extend their most sincere efforts towards its recovery. If a vehicle is not recovered due to some deficiency/technical failure, on part of the DTrack unit, its maximum liability to the client would be to compensate them with free replacement of a DTrack unit.
6.1 DTrack shall provide Fleet Management Service and/or Vehicle Tracking Services to the Clients who are rightful owners or have access to the Password only as Primary Users, the scope of which is exhaustively defined herein.
6.2 With respect to Fleet Management services, DTrack shall install the Equipment in the motor vehicle of the Client, effecting modifications to the motor vehicle as deemed expedient by DTrack, and then ensure that the same is in working order.
6.2.1 The equipment shall transmit periodical data to the base station at DTrack, who shall collate this data and provide Client possessing the authorized Password, with the report at the price determined by DTrack for any given period that is agreeable to DTrack.
6.3 With respect to Vehicle Tracking Services, DTrack shall install the Equipment in the motor vehicle of the Client, effecting modifications to the motor vehicle as deemed expedient by DTrack.
6.3.1 While the motor vehicle is in the Network Area, the vehicle shall be electronically monitored. If the motor vehicles attempts to leave the Network Area where No-go boundaries exist/defined then the Client has authorized DTrack to issue electronic instructions to the Equipment, installed in the motor vehicle, to immobilize the motor vehicle and DTrack may issue electronic instructions to the Equipment to immobilize the motor vehicle unless instructions to the contrary are validly received by DTrack from the Client prior to the motor vehicle leaving the Network Area.
6.3.2 A client telephonically instruct DTrack to issue electronic instructions to the Equipment, installed in the motor vehicle, to immobilize the motor vehicle, upon providing DTrack with the accurate authentication code/s. DTrack will only immobilize a vehicle while the motor vehicles is within the Network Area. As per DTrack’s SOP and international standards, immobilization can only be executed once the speed of the vehicle comes below 20kmph.
6.3.3 While the motor vehicle is within the Network Area, if the signal from the motor vehicle to DTrack is disrupted, DTrack shall attempt to contact the Client at the telephone number provided to DTrack.
6.3.4 All clients should pre-inform DTrack regarding their movement in No-go areas. This can be done by clients before starting their journey or even on their way to such an area. In the event that DTrack has no such information and on its learning that the vehicle is found plying within a No-go area, the process to shut off the engine will be initiated immediately. By pre-informing DTrack, the Client will not only save himself and his family from any inconvenience, but will also ensure their security and safety, but will also not be charged for any such additional services.
6.3.5 If at any point, a Client finds the UAN is not responding, it might be due to a non-functional line. The Client should disconnect and redial as DTrack has hunting/jumping lines and one line in the middle disrupts the entire flow. If the problem still persists, the Client can call on any of the many emergency numbers communicated in the security briefing/emergency card.
6.3.6 The client understands that the Authorities/ DTrack may levy a fine and/or charge for any false alarm or signal which summons an emergency services and the Client agrees to assure all responsibility or any alarm or signal and to pay related fines, levies and charges. The client hereby releases DTrack and DTrack’s agents, contractors and/or employees from any such responsibility and/or liability.
6.3.7 If the client requires discontinuation of the immobilization function of the Vehicle Tracking System, temporarily or permanently, then notice of the same shall have to be given to DTrack at least one business day prior to the time when the Client desires such instructions to take effect.
6.3.8 If at any point of time, the client sells the vehicle or changes the users of DTrack, then it is essential that the security/customer services department at DTrack be informed immediately. This is vital in order for DTrack to serve its clients’ security needs. The client should obtain the “Transfer of Ownership/New Details Form” from the said departments in order to avoid any inconvenience DTrack will not entertain any requests for unauthorized persons.
7.1 DTrack shall use its best endeavors to ensure continuous provision of the Services to the client but shall not be liable and/or responsible in any manner for any cessation that may occur in the provision of Services to the Client.
7.2 Save for willful misconduct and gross negligence on the part of DTrack, DTrack shall not be held liable and/or responsible for any loss, damage, detriment and/or harm that may be occasioned by the Client due to the cessation of Services, and/or pursuant, connected, related and/or ancillary to having entered into this Agreement.
7.3 The Services that are being provided to the Client are dependent upon the cellular mobile telecommunication services that are to be provided to DTrack. DTrack shall not be held liable and/or responsible for any loss, damage, detriment and or harm that may be occasioned by the Client due to the cessation/disruptive cellular mobile communication services or unforeseen malfunctions inherent due to excessive vibrations on bumpy/broken roads during the last 48 hours.
7.4 DTrack is licensed by the Government for the provision of the Services. DTrack shall not be held liable and/or responsible for any loss, damage, detriment and/or harm that by be occasioned by the Client due to the temporary or permanent revocation of the license, for the provision of the Services, by the Government.
7.5 DTrack shall not be responsible for the performance of any acts, other than those stipulated in this agreement.
7.6 DTrack shall not be liable for the Equipment not performing as required even after the requisite instructions have been issued by DTrack
7.7 DTrack shall not be liable for any actions, claim, loss, damage an/or detriment that is occasioned the Client as a result of immobilization of the motor vehicle and/or anything related connected, pursuant and/or ancillary thereto.
7.8 DTrack shall not be responsible for the recovery of any motor vehicle that exits from the No-go boundaries or Network areas due to extremely thin network boundaries or poor GSM/GPRS coverage and use of unauthorized equipment, preventing the unit to relay alarm or receive immobility signals identified as technological bugs within an electronically operated system despite being protected by the Services contemplated herein, and no loss, action, claim and /or detriment shall be claimed against DTrack in this regard.
7.9 DTrack shall not be held responsible for any voice use that is made of the cellular mobile telecommunications apparatus installed in motor vehicles, and/or anything connected thereto. If DTrack is informed by the provider of the cellular mobile telecommunication services of their having been any voice usage of the cellular mobile communications apparatus installed in motor vehicles, and/or anything connected thereto, and/or such an action is brought to the notice of DTrack, then DTrack shall have the right to terminate the services forthwith without any notice to the Client and any charges to the voice usage of the cellular mobile telecommunications apparatus installed in motor vehicles shall be payable by the Client to DTrack within three days of the same having been demanded by DTrack.
7.10 The obligations of DTrack towards the Customer under this Agreement shall be held in abeyance during the period that the equipment is not in working order.
7.11 DTrack shall not be liable/responsible for the provision of services or anything related, connected, pursuant, and/or ancillary thereto if DTrack is not informed by the Client of having divested itself of the ownership/possession/control of the motor vehicle and DTrack would stand discharged of its obligations under this Agreement and/or anything related, connected, pursuant and/or ancillary thereto.
7.12 DTrack will be entitled to and is hereby authorized by the Client (without DTrack being obliged to do so) to accept instructions from the legal/registered owner or authorized user of the vehicle in which the Equipment is installed, to remove the Equipment from such vehicle and cease monitoring of the relevant, vehicle, in which, case, the client notified in due course, and the removed Equipment will be held to the order of the party/person entitled to the equipment. DTrack will incur no liability or obligation to the Client for any loss, damages or costs, if it has acted in accordance with the authority granted in terms of this clause.
7.13 Upon learning of the removal/misuse of the equipment/unit, the system will be immediately shut down and criminal proceedings initiated.
7.14 Besides recovering the losses due to the misuse of the unit, additional penalties/charges may be imposed and recovered from the authorized user/owner.
8.1 The Equipment, as invoiced, shall be sold to the Client by DTrack after execution of the Agreement. The Services shall only become operative once the Equipment has been purchased by the Client and the same has been installed by DTrack in the Client’s motor vehicle.
8.2 The equipment shall be installed by DTrack into each motor vehicle, and the Customer authorizes DTrack to effect any modification deemed expedient by DTrack, inclusive of but not limited to acts involving cutting, welding and/or drilling, to the motor vehicle of the customer and that the Customer hereby waives the right to claim anything from DTrack for any loss, damage, diminution occasioned by the Customer due to DTrack installing the Equipment in the motor vehicle and/or anything related, connected and/or ancillary thereto.
8.3 The Equipment belongs to the person/company/institution that has paid for the system, as its client. If the user leases the equipment from a leasing/financial institution, then till such time that the unit is paid off, ownership will be held by the institution and not the user. Although the user would be free to avail the services of DTrack, the client will also possess the right to enquire regarding the location of the vehicle and in extreme cases, even shut off and repossess the vehicle.
8.4 The Equipment shall be returned to DTrack upon discontinuation of service to hold in safe custody (duly receipted), or the Client may sell the unit to be installed in another vehicle, after paying the removal/installation charges and all outstanding dues (if any).
8.5 The Equipment shall only be purchased from DTrack and even though it shall remain in the possession of DTrack, the Client shall be its owner till it is sold/transferred or adjusted against outstanding dues.
8.6 The installation, maintenance, repairs and servicing of the equipment shall be done solely by DTrack. The Client shall be separately liable in addition to the Service charges payable in terms of the Agreement, to reimburse DTrack for the cost of repairing and/or adjusting any item of Equipment to restore it to the condition in which an item of Equipment of that nature and age should be, fair wear and tear excepted. Before carrying out any such repair and /or adjustments. DTrack shall advise the Client of the estimated cost of such repair and/or adjustments. If the client declines to have the item of Equipment restored to the standard required by DTrack then the agreement shall stand terminated.
8.7 If DTrack is being installed in a vehicle operation under the hire/purchase scheme, it is essential that DTrack is informed while purchasing the unit and entered in the application form as such.
8.8 The chosen location/position to install the equipment is the best possible option in the vehicle, which will not be disclosed to the client for security reasons, unless insisted upon by the client. Any attempt by any entity, other than DTrack, to interfere with the Equipment shall immediately absolve DTrack of all its obligations under this agreement, and the Agreement may be deemed as terminated forthwith.
9. SERVICES WITH RESPECT TO THE EQUIPMENT
9.1 DTrack agrees to provide the following services in relation to the Equipment listed.
9.1.1 Should any unit fail to operate correctly having been strictly maintained by DTrack in accordance with the provisions of this Agreement, then provided that:
188.8.131.52 The client has given written notice to DTrack of the fault having occurred in the equipment; and
184.108.40.206 The unit and/or the written guidelines, manuals advice or instructions given to it by DTrack in respect of the Equipment’s use and operations, DTrack shall, upon receipt of the requisite notice from the Client, repair or replace, at the DTrack’s discretion, such offending units at DTrack’s cost.
220.127.116.11 The client shall not permit any modification or attachments to be made to the Equipment.
9.1.2 The supply of all spares and labor as are required and as determined by DTrack.
9.1.3 The use and supply of exchange units as are required by the DTrack.
9.2 For the duration of this agreement the Client agrees not to permit any person other than DTrack or it’s duly appointed agents to maintain service, calibrate and/or repair any item of Equipment.
9.3 The client shall not permit any modification or attachments to be made to the Equipment.
10. EQUIPMENT ACCESS
10.1 When DTrack is notified of a required services, such notice shall include, but not be limited, to:
10.1.1 The registration of the vehicle
10.1.2 The location of the vehicle requiring services,
10.1.3 The time of availability of the vehicle at the above location
10.1.4 The client contact person and contact phone number relating to the service.
10.2 Should DTrack or its appointed representative not be provided with the access to the Equipment, or the Equipment is not available at the above location and time, then notwithstanding anything to the contrary contained in the Agreement, DTrack shall be entitled to charge the Client all traveling costs.
10.3 The amount payable to DTrack with respect to the repairs and/or additional services having been performed by DTrack with regard to the equipment shall be paid to DTrack by the Client within 7 days of the date of repairs and/or additional services that have been carried out. DTrack shall not be obliged to carry out any further Services in terms of this agreement until all such amounts have been paid.
10.4 DTrack shall frequently call upon the Client to bring into a designated Service Center the motor vehicle, in which Equipment has been installed, for quality control and maintenance
10.5 In case of theft/loss of vehicle due to any delay in sending the vehicle in which the equipment has been installed for maintenance, would absolve DTrack of even the limited liability (5.3), as it is mandatory for the owner/user to have the equipment immediately inspected upon being informed of its malfunctioning.
11. EXCLUSIONS WITH REFERENCE TO THE EQUIPMENT
11.1 The following is specifically excluded from the services defined in this agreement:
18.104.22.168 Any damage caused to the Equipment outside the direct control and scope of influence of DTrack including but not limited to:
22.214.171.124 Any Act of God or similar man made event, or as applied to is major or causes fortuitous;
126.96.36.199 The loss of equipment between the happening of one service and the next;
188.8.131.52 All damage caused by a faulty or spurious electrical supply
184.108.40.206 All damage caused as the direct or indirect result or any act of tampering, vandalism or malicious damage howsoever caused;
220.127.116.11 All damage caused as a result of a vehicle accident;
18.104.22.168 All damage caused by fire, theft, or flood;
22.214.171.124 All damage caused as a direct or indirect result of civil or political disturbance or any like event; all damage caused by any act of any third party.
11.1.2 All damage caused as a result of the ingress of any fluid penetrating the equipment, if applicable
11.1.3 Any re-calibration or adjustment to any Equipment as is required after any gearbox, tire, differential or similar component change and/or modification has been affected to any vehicle to which the Equipment has been fitted.
11.1.4 Any replacement of any engine revolution or gearbox “take-off” device including any “W-terminal” or similar device;
11.1.5 Any stoppage, limitation, engine control, engine shutdown or similar event resulting from the operation of the equipment.
11.1.6 The removal and/or de-installation or any similar action requiring removal, re-installation and/or relocation of any unit, equipment or system, as required or requested by the client except in cases where this action is necessary to maintain existing tracking provide or tracking facility.
11.2 Any repairs, maintenance, service or other work as excluded above or any other work not specifically included in the Agreement will be charged to the client.
11.2.1 In each such instance the client shall separately request such service by addressing its request to DTrack in writing during DTrack’s servicing hours to DTrack’s designated Service Center.
11.2.2 Without derogating from anything contained in 11.2.1 and/or the generality of anything contained in this Agreement, the Client may where urgently required contact the DTrack on its applicable service telephone number, which telephone number has been separately supply to it. In all such cases the establishing of contact or otherwise with the DTrack, by this means shall not in any way be construed as a request and/or a notification as defined and required in 10.2.1 above.
11.3 Where the client indicates to DTrack that the equipment has failed to operate and in so doing cause Tracker to attend at the location of such a unit, ostensibly to repair same, and given that it subsequently transpires that same was a Client suppositions, then DTrack shall be permitted to additionally charge the Client.
11.4 DTrack shall not be liable/responsible for the provision of Services or anything related, connected, pursuant and/or ancillary thereto if the motor vehicle within which the equipment is installed is not brought to a designates service center at the time so designated by DTrack, for a quality and maintenance check. DTrack would stand discharged of its obligations under this Agreement and/or anything related, connected, pursuant and/or ancillary thereto., if the client is under to bring the motor vehicle within which the equipment is installed for a quality and maintenance check upon being requested by DTrack.
Should either party fail to comply with any term of this Agreement and fail to remedy such breach within a period of 14 days after receiving written notice to remedy such breach, then the party serving such notice shall be entitled, without prejudice to any other remedy it may have in law, to elect to cancel this Agreement
13.1 The parties further specifically agree that this Agreement shall be the sole agreement governing them in respect of the Services and the Equipment and hereby specifically agree that Agreement shall supersede any other agreement offer, undertaking, utterance or statement made by the staff, prior to the commencement of this agreement.
13.2 No alteration, variation or addition hereto shall be or any force of effect unless reduced to writing, suitably identified as such by specific reference to this.
13.3 No indulgence, leniency or extension of time granted by either party to the other shall in any way prejudice the grantor in terms of it from subsequently exercising any or all of its rights in terms of this Agreement.
13.4 DTrack shall have no liability whatsoever, other than set out in this agreement, whether in contract or otherwise, in respect of the Services and/or equipment by the client, nor shall DTrack be liable to the client or any other person for any injury, loss or damage whatsoever, whether consequential or otherwise, arising from the use by the Client of the Equipment.
13.5 The client shall be liable to pay all taxes, levies, duties, fees including but not limited to sales tax, withholding tax, excise duty presently applicable or made applicable or levied in future by any Central or Provincial Government or any other competent authority in respect of the Equipment and Services provided herein or any services in relation to any transaction or activity hereunder.
13.6 The client authorizes DTrack to provide information of the vehicle movement to any LEA/Government/Intelligence agency upon providing a formal request.
14. NOTICE AND DOMICILIUM
14.1 Each of the parties chooses its domicilium cited and et excutandi (“domicilium”) for the purpose of giving any notice, the serving of any process and for any other purposes arising from this agreement at their respective set forth hereunder:
P-2592, Muhallah Sherianabad, Oppsite PSO Petrol Pump, Sugar Mor, Nishatabad, Faisalabad-Pakistan.
As enumerated in Schedule—I hereto.
14.2 Any notice given and any payment made by a party to the other (“the addressee”) which,
14.2.1 Is delivered by hand during the normal business hours of the addressee that the address’s domicilium shall for time being be presumed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery.
14.2.2 Is posted by prepaid registered post from an address within Pakistan to the addressee at the address’s domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the fourth day after the date of posting.
14.3 Where in terms of this agreement any communication is required to be in writing, the term “writing” shall include communication by telex or facsimile. Communications by telex or facsimile shall, unless the contrary is proved by the address, be deemed to have been received by the address one hour after the time of transmission.
I fully understand that installing the equipment/unit with the services does in no way guarantee 100% safety and security of the vehicle, nor does it hold DTrack liable in case of loss of vehicle to compensate anything more than the cost of the equipment paid for, as stated under the Limited Liability clause 5.3 as DTrack is not an insurance company as per law and offers no such package when opting for only the DTrack system and monitoring facility as clearly identified in the Terms and Conditions above and may be further amended from time to time, which I have read and am in full agreement with.