ENIGMA VEHICLE SYSTEMS LIMITED
Terms of Business - Products and Services
1.1 In these Terms, expressions used herein shall be as defined overleaf or otherwise as defined below:
‘Additional Services‘ means all or any of the Monitoring Services, and any other services offered by Enigma to Subscribers from time to time, as the Subscriber may have agreed to receive in addition to the Service under these Terms. ‘Bureau‘ means the 24 hour monitoring bureau approved by Enigma. ‘Bureau Monitoring Services‘ means the service provided from time to time by Enigma or the Bureau to the Subscriber in accordance with condition 5.5. ‘Contract‘ the contract between Enigma and the Subscriber for the purchase, or purchase lease or rental of the Product on Enigma’s ‘Flex-e’ Scheme and the provision of any of the Services relating thereto incorporating these conditions. ‘Enigma‘ means Enigma Vehicle Systems Ltd of Unit 11 Britannia Business Park, Comet Way, Southend-on-Sea, SS2 6GE. ‘Equipment‘ the road or non-road going vehicles or plant or machinery owned or operated by the Subscriber suitable for the installation into it of the Product and in respect of which such installation takes place pursuant to the Contract. ‘Fixed Monitoring Period‘ the fixed monitoring period applicable to the purchase or lease of the Product as specified in the Contract. ‘Immobiliser’ An electronic device fitted to a piece of equipment which prevents the engine from running unless the correct key (or other token) is present. ‘Installation Date’ the date when the product is fitted to the equipment, as agreed between Enigma and the Subscriber. ‘Intellectual Property Rights’ all patents, copyright and related rights, trademarks, service marks, trade, business and domain names, including by not limited to “Skyline”, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, typography rights, moral rights, rights in confidential information and any other intellectual property rights in each case whether registered or unregistered and including all applications for and renewals or extension of such rights and all similar or equivalent rights or forms of protection in any part of the world. ‘Lease’ means the lease of the Product by the Subscriber in accordance with the relevant provisions of condition 4.3. ‘Location & Reporting Services’ means the provision to the Subscriber of access to Enigma’s system to enable the Subscriber to view and receive reports (as agreed) via the Product relating to its Equipment. ‘Minimum Monitoring Period’ the minimum monitoring period applicable to the rental or lease of the Product as specified in the Contract. ‘Network’ means the GSM/GPRS network in the Territory which operates in conjunction with the Tracking System. ‘Police’ means any Chief Constable or Commissioner of Police, and Police Force or Police Authority or any of their respective servants or officers, or any of the same; ‘Product’ means the items supplied and installed by Enigma in the Subscriber’s equipment. They can be purchased, leased or rented by the Subscriber for installation into the Equipment. ‘Rental’ means the rental of the Tracking System by the Subscriber in accordance with the relevant provisions of condition 4.4. ‘Service’ means the Location and Reporting Services and/or the Text Services and/or the Bureau Monitoring Services together with any other additional services which Enigma or the Bureau provides or agrees to provide to the Subscriber. ‘Skyline’ means the brand name of the Products and Services supplied by Enigma. ‘Subscriber’ means the person whose application for the Service has been accepted by Enigma or Enigma’s agent. ‘Subscription Period’ means any period for which the Subscriber has paid the subscription fee for the Service and, if applicable, the Additional Services. ‘Territory’ means mainland England, Scotland, Wales and Northern Ireland. ‘Text Services’ means the automated service provided by Enigma whereby if an item of Equipment is illegally moved a text message is sent to the text number of the Subscriber specified in the Contract. ‘Tracking System’ a GSM/GPRS enabled Fleet Management and Security Product purchased, leased or rented, by the Subscriber for installation into the Equipment under the brand names “Skyline +, Skyline, Skyline Trailer Tracker, Skyline 999+ and Skyline 999”. ‘Vehicle’ means any road going or non-road going vehicle or piece of equipment deemed suitable for the fitting of the Product by Enigma. ‘Warranty Period’ means the period during which Enigma agrees to repair or replace the Product free of charge in accordance with the relevant provisions of condition 7 and 15.
1.2 Reference in these Terms to the singular number includes the plural and vice versa and to the masculine gender includes the feminine. Headings to clauses are included for ease of reference and shall not affect the interpretation of these Terms.
1.3 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 Any obligation on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2 Application of Terms
2.1 These conditions shall:
- apply to and be incorporated into the Contract; and
- prevail over any inconsistent terms or conditions contained, or referred to, in any Subscriber purchase order, confirmation of order, acceptance of a quotation, or specification or other similar document supplied by the Subscriber, or implied by law, trade, custom, practice or course of dealing.
2.2 Any Subscriber purchase order, or Subscriber acceptance of a quotation for the sale, lease or rental of the Tracking System and the provision of any Services by Enigma, constitutes an offer by the Subscriber to purchase, lease or rent the Tracking System and to purchase such Services on these conditions. No offer placed by the Subscriber shall be accepted by Enigma other than by Enigma executing the Contract when a contract for the purchase, rental or lease of the Tracking System and the provision of any Services on these conditions will be established. The Subscriber’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract.
2.3 Quotations are given by Enigma on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that Enigma has not previously withdrawn it.
2.4 No employee, sub-contractor or agent of Enigma has any authority to add to or to vary the Contract or these conditions or to make any representation or authority unless such addition, variation, representation or warranty is in writing and is signed by a director of Enigma.
3 Delivery and Installation
3.1 Unless otherwise agreed by Enigma, Enigma shall deliver and install the Product in the Equipment at the location agreed with the Subscriber, and the Subscriber shall ensure that all Equipment into which the Product is to be installed is made available to Enigma at such agreed location on the Installation Date. The Subscriber acknowledges that the Installation Date is only intended to be an estimate and the time for delivery and installation of the Tracking System and shall not be made of the essence by notice.
3.2 If for any reason the Subscriber fails to accept delivery of the Tracking System on the Installation Date, or Enigma is unable to deliver and install the Tracking System on the Installation Date because the Subscriber has not provided the appropriate Equipment to it:
- risk in the Tracking System, shall pass to the Subscriber (including for loss or damages caused by Enigma’s negligence);
- the Tracking System, shall be deemed to have been delivered; and
- Enigma may store the Tracking System until delivery and installation, whereupon the Subscriber shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3.3 Upon installation of the Product, the Service and, if applicable, the Additional Services, will be available to the Subscriber (in accordance with the relevant provisions of condition 6).
4.1 The Product is at the risk of the Subscriber from the time of delivery, at which point the Subscriber should make its own arrangements for insurance.
4.2.1 Where the Subscriber has opted to purchase the Product immediately ownership of the Product shall not pass to the Subscriber until Enigma has received in full (in cash or cleared funds) all sums due to it respect of:
- the Product; and
- all other sums which are or which become due to Enigma from the Subscriber on any account.
4.2.2 Where the Subscriber has opted to purchase the Product immediately until ownership of the Product has passed to the Subscriber, the Subscriber shall:
- hold the Product on a fiduciary basis as Enigma’s bailee;
- not destroy, deface or obscure any identifying mark on or relating to the Tracking System; and
- maintain the Product in satisfactory condition and keep it insured on Enigma’s behalf for its full price %li against all risks to the reasonable satisfaction of Enigma. On request the Subscriber shall produce the policy of insurance to Enigma.
4.2.3 Enigma shall be entitled to recover payment for the Product notwithstanding that ownership of the Product has not passed from Enigma.
4.3.1 Where the Subscriber has opted to lease the Product pursuant to conditions 4.3.6 ownership of the Product shall not pass to the Subscriber until Enigma has received in full (in cash or cleared funds) all sums due to it in respect of:
- the lease contract; and
- all other sums which are or which become due to Enigma Vehicle Systems from the Subscriber on any account.
4.3.2 Where the Subscriber has opted to lease the Product pursuant to conditions 4.3.6 until ownership of the Product has passed to the Subscriber, the Subscriber shall:
- hold the Product on a fiduciary basis as Enigma’s bailee;
- not destroy, deface or obscure any identifying mark on or relating to the Product; and
- maintain the Product in satisfactory condition and keep it insured on Enigma’s behalf for its full price against all risks to the reasonable satisfaction of Enigma. On request the Subscriber shall produce the policy of insurance to Enigma.
4.3.3 Enigma shall be entitled to recover payment for the Product notwithstanding that ownership of the Product has not passed from Enigma.
4.3.4 On termination of the Contract, howsoever caused, Enigma’s rights contained in this condition 4 shall remain in effect.
4.3.5 Where the Subscriber has opted to Lease the Product the Subscriber acknowledges that Enigma is and shall remain the owner of the Product until the end of the fixed monitoring period, at which point ownership passes to the Subscriber subject to Enigma having received in full (in cash or cleared funds) all sums due under the Contract.
4.3.6 Where the Subscriber has opted to Lease the Tracking System the Subscriber may at any time notify Enigma in writing that it wishes to purchase the Product. Within 10 working days of receipt of such notification Enigma shall inform the Subscriber in writing of the price applicable to the requested purchase of the Product. Within 10 working days of receipt of the price notification the Subscriber shall confirm whether it wishes to proceed and if it should wish to proceed Enigma and the Subscriber will agree the relevant paperwork in connection thereto. Until such paperwork is agreed and signed by the Subscriber the existing terms applicable to the existing Lease arrangements will remain in full force and effect.
4.3.7 Where the Subscriber has opted to lease the Product under the Lease option the term of the lease shall be for the Fixed Monitoring Period.
4.4.1 Where the Subscriber has opted to rent the Tracking System pursuant to condition 4.4.6 the Subscriber acknowledges that Enigma is and shall remain the owner of the Tracking System at all times.
4.4.2 Where the Subscriber has opted to rent the Tracking System pursuant to condition 4.4.6 the Subscriber shall:
- hold the Tracking System on a fiduciary basis as Enigma’s bailee;
- not destroy, deface or obscure any identifying mark on or relating to the Tracking System; and
- maintain the Tracking System in satisfactory condition and keep it insured on Enigma’s behalf for its full price against all risks to the reasonable satisfaction of Enigma. On request the Subscriber shall produce the policy of insurance to Enigma.
4.4.3 Enigma shall be entitled to recover payment for the Tracking System notwithstanding that ownership of the Tracking System has not passed from Enigma.
4.4.4 On termination of the Contract, howsoever caused, Enigma’s rights contained in this condition 4 shall remain in effect.
4.4.6 Where the Subscriber has opted to rent the Tracking System under the Rental option, the term of the rental shall be the Minimum Monitoring Period and shall continue thereafter unless and until terminated either:-
- by Enigma on providing to the Subscriber not less than 3 months notice in writing; or
- by the Subscriber under condition 20.3.
4.5 The Subscriber’s right to possession of the Tracking System under clauses 4.2.2, 4.3.2 and 4.4.2 shall terminate immediately if:
- the Subscriber makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed over its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Subscriber or notice of intention to appoint an administrator is given by the Subscriber or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Subscriber or for the granting of an administration order in respect of the Subscriber, or any proceedings are commenced relating to the insolvency or possible insolvency of the Subscriber; or
- the Subscriber suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between Enigma and the Subscriber, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Subscriber ceases to trade; or
- the Subscriber encumbers or in any way charges the Product.
4.6 The Subscriber grants Enigma, its agents and employees an irrevocable licence at any time to enter any premises where the goods are, or may be stored in order to inspect them, or, where the Subscriber’s right to possession has terminated, to recover them.
4.7 Where Enigma is unable to determine whether any goods are the goods in respect of which the Subscriber’s right to possession has terminated, the Subscriber shall be deemed to have sold all goods of the kind sold by Enigma to the Subscriber in the order in which they were invoiced to the Subscriber.
5 Provisions of the Service and the Additional Services
If the Subscriber has opted to receive any part of the Services the following shall apply:-
5.1 Subject to these Terms, Enigma will use all reasonable endeavours to maintain the Service and the Additional Services available to the Subscriber;
- For the subscription period if the Product is purchased outright immediately;
- For the appropriate monitoring period specified in the Contract if the Product is purchased on a Flex-e Purchase, Lease or Rental contract.
5.2 Upon becoming aware, or suspecting, that the vehicle has been stolen, the Subscriber must immediately take the following steps:-
- Notify the Police and obtain a Police Crime Reference Number in respect of the theft, then;
- Inform Enigma, or its appointed 24 hour Monitoring Bureau quoting the Police Crime Reference Number and indicating the Police Station or Police Force which has been notified.
- Enigma will then verify with the Police that the vehicle is officially logged as stolen with the Police National Computer, and if so, will provide information for the purpose of location of the vehicle. A vehicle shall be treated as stolen for the purposes of Enigma providing the Service only if it is so officially logged. Neither Enigma nor the Police will be liable for any damage of whatever nature arising out of or incidental to the Subscriber’s failure to follow the above steps or any other instructions by Enigma for use of the Service.
5.3 The Subscriber shall at all times follow the instructions provided by Enigma for the use of the Service. The Subscriber will be notified once the stolen vehicle has been located.
5.4 If the Subscriber has opted to receive the Bureau Monitoring Services:-
- subject to and following compliance with condition 8.1(c) Enigma or the Bureau shall as soon as reasonably practicable verify with the relevant police force that the relevant Equipment is officially logged with the Police National Computer and, if so, provide information within Enigma’s possession to the relevant Police Force for the purpose of assisting the relevant Police Force to locate the Equipment;
- Enigma or the Bureau shall use its reasonable endeavours to monitor for signals transmitted by the Tracking System indicating unauthorised movement of any relevant Equipment and if it detects any such signals will notify the Subscriber of that fact. Once the Subscriber confirms that the vehicle is stolen they shall immediately follow the steps, and comply with Enigma’s instructions, as set out in clause 5.2. Owing to the nature of wireless communication Enigma cannot guarantee that it will receive any signals transmitted by the Tracking System installed on the Equipment, nor, having received the signals, that it will be able to make immediate, or any, contact with the Subscriber. Enigma shall not be liable to the Subscriber for any damage of whatever nature arising out of or incidental to Enigma’s delay or failure in so receiving the signals or in making contact with the Subscriber.
5.5 Enigma reserves the right, should Subscriber action or inaction result in repeated false alarm signals to Enigma, to charge the Subscriber a sum to compensate it for its wasted time and effort in following up such false alarms, and/or terminate the Service and/or the Additional Services.
5.6 Due to the many factors outside its control, Enigma does not warrant that the Service will lead to the location of the Subscriber’s stolen vehicle. The Service and the Additional Services are not available outside the Territory unless otherwise agreed.
5.7 Enigma shall use its reasonable endeavours to meet any performance dates specified or agreed in relation to the provision of such Services but such dates shall be estimates only and time shall not be of the essence for the performance of the Contract.
5.8 Enigma does not warrant that the performance by it of any of the Services will lead to the location of any stolen Equipment.
6.1 All subscription charges and other payments under these Terms are payable in advance. The initial Subscription Period commences on the date of the installation of the Product. No Subscription period shall be for less than 1 month. Subscriptions may be renewed. Enigma will notify the Subscriber at least 14 days prior to the expiry of any Subscription Period of any variation in subscription charges and these Terms. Subscription charges are not refundable.
6.2 Enigma reserves the right at any time to vary the purchase price of the Product and with effect from the commencement of the next Subscription period, these Terms and the subscription charges for the Service and the Additional Services.
6.3 The availability of the Service and the Additional Services shall be conditional at all times upon compliance by the Subscriber with these Terms. In the event of any breach of these Terms, including any default in the payment of subscription charges, Enigma shall be under no obligation to provide the Service or the Additional Services.
6.4 The system and monitoring and the charges relating thereto are designed and limited for use in the UK. If vehicles/machines with systems fitted are taken outside of the UK they will incur increased network roaming charges. These charges will be passed onto the Subscriber along with an administration charge of £25.00.
7.1 If the Product becomes inoperative or develops faults by reason of defective components, workmanship or design within the warranty period, Enigma will (at its option) repair or replace the Product free of charge. Enigma shall have no such obligation if the Product (or its installation) has been tampered with, modified, repaired (except by persons authorised by Enigma) or has otherwise been subject to misuse or accident. This shall be the Subscriber’s sole remedy in respect of the supply of defective Product. Enigma reserves the right from time to time to modify the Product.
8 Subscriber’s Obligations
8.1 The Subscriber shall:-
- co-operate with Enigma in all matters relating to the Services and at all times follow any instructions provided by Enigma in connection with the provision of the Services;
- provide Enigma, its agents, sub-contractors, consultants and employees, in a timely manner and at no charge with access to the Tracking System operating on any relevant Equipment as reasonably required by Enigma;
- upon becoming aware or suspecting that any of the Equipment in which the Tracking System has been installed has been stolen, the Subscriber must immediately take the following steps:-
- notify the relevant Police Force and obtain a police crime reference number in respect of the theft;
- upon becoming aware or suspecting that any of the Equipment in which the Tracking System has been installed has been stolen, the Subscriber must immediately take the following steps:-
- notify the relevant Police Force and obtain a police crime reference number in respect of the theft;
- inform Enigma and the Bureau quoting the police crime reference number and indicating the Police Station or relevant Police Force which has been notified.
8.2 If the Subscriber has opted for the Lease or Rental option the Subscriber shall:-
- use the Product only for its proper purpose and in accordance with any operating instructions issued by Enigma;
- use the Product only in the ordinary course of its business within the Territory;
- not sell, offer for sale, assign, pledge, underlet, lend, transfer, lease or otherwise dispose of nor mortgage, charge or otherwise encumber any Equipment on or in which the Product operates nor to agree to do any such thing nor to agree to create any floating charge upon the same unless Enigma has previously consented in writing;
- keep the Product at its own expense in good repair, condition and working order.
8.3 In the event that any loss or damage occurs to the Product or the Equipment within which the Tracking System operates the Subscriber shall notify Enigma forthwith and shall be responsible for the cost of making good the damage and/or replacing the Product and should it fail to do so the Subscriber shall indemnify Enigma against all losses, costs, claims, damages and expenses sustained by Enigma as a result. For the avoidance of doubt the continuance of this Contract or the Subscriber’s liability to pay all sums due under this Contract shall not be affected in any way by the loss, theft or damage to or any defect in the Product.
8.4 If Enigma’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Subscriber, its agents or employees, Enigma shall not be liable for any costs, charges or losses sustained or incurred by the Subscriber arising directly or indirectly for such prevention or delay.
9.1 The relevant price to purchase, lease or rent the Product under the Lease or Rental option, shall be as specified in the Contract.
9.2 The price shall be exclusive of any value added tax which the Subscriber shall pay to Enigma in addition.
The standard payment terms are as follows unless otherwise agreed in writing:
Product and initial Service charges -
Subscribers with credit accounts - 30 days nett
Subscribers without credit accounts - Cleared payment prior to installation
Ongoing Service charges -
Payable by Direct Debit on the first working day of the month following the month of invoice
No payment shall be deemed to have been received until Enigma has received cleared funds.
10.1 All payments payable by the Subscriber to Enigma under the Contract shall become due immediately on its termination despite any other provision.
10.2 The Subscriber shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Subscriber has a valid court order requiring an amount equal to such deduction to be paid by Enigma to the Subscriber.
10.3 If the Subscriber fails to pay Enigma any sum due under the Contract:-
- the Subscriber shall be liable to pay interest to Enigma on such sum from the due date for payment at the annual rate of 8%, accruing on a daily basis until payment is made, whether before or after any judgment. Enigma reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
- Enigma reserves the right to suspend any or all of the Services until payment has been made in full;
- Enigma reserves the right to repossess the Product.
10.4 Enigma reserves the right to engage a third party (including but not limited to a debt collection agency or firm of solicitors) to recover any costs, expenses or fees owed by the Subscriber to Enigma under the terms of this agreement and the Subscriber shall be liable for the costs, expenses or fees of such third party (and the cost of Enigma in assisting such third party) on a full indemnity basis.
10.5 The Subscriber shall pay the relevant price to purchase or rent the Tracking System under the Lease Rental or Rental option on the dates specified in the Contract.
10.6 Time for payment shall be of the essence of the Contract and no payment shall be deemed to have been received until Enigma has received cleared funds.
10.7 The Subscriber agrees that Enigma may review and increase its prices under this Contract provided that such cannot be increased by more than once in any 12 month period. Enigma will give the Subscriber written notice of such increase 3 months before the proposed date of the increase.
10.8 Enigma does not accept payment in cash in excess of £6,000.
11 Credit Accounts
Credit will only be offered to Subscribers upon completion of our standard account application form and receipt of favourable trade references.
In the event of late payment, the Subscriber’s account may be placed on stop and service may be suspended. Any credit may be withdrawn and all sums due are payable immediately.
13 Invoice Disputes
Any disputes must be received in writing within 14 days of the invoice date. Failure to confirm disputes in writing within the prescribed 14 days will result in the invoice becoming due within the agreed payment terms
14 Joint and Several Liabilities
If more than one party is named as the Subscriber the liability of each shall be joint and several.
15.1 If the Subscriber has opted to purchase or rent the Tracking System under the Lease Rental or Rental option Enigma warrants that (subject to the other provisions of these conditions) the Tracking System shall be of satisfactory quality for the applicable monitoring period unless the Subscriber has opted not to include warranty cover in the Contract in which case Enigma warrants that (subject to the other provisions of these conditions) the Tracking System shall be of satisfactory quality for the first 12 months following the Installation Date.
15.2 If the Subscriber has opted to rent a Product (other than a Tracking System) under the Lease Rental option Enigma warrants that (subject to the other provisions of these conditions) the Product shall be of satisfactory quality for the applicable Lease Rental period unless the Subscriber has opted not to include warranty cover in the Contract in which case Enigma warrants that (subject to the other provisions of these conditions) the Product shall be of satisfactory quality for the first 12 months following the Installation Date.
15.3 If the Subscriber has opted to purchase a Product (other than a Tracking System) Enigma warrants that (subject to the other provisions of these conditions) the Product shall be of satisfactory quality for the first 12 months following the Installation Date unless the subscriber has opted to include warranty cover in the Contract in which case Enigma warrants that (subject to the other provisions of these conditions) the Product shall be of satisfactory quality for the applicable extended warranty period.
15.4 Enigma shall not be liable for a breach of the warranty in condition 15.1 unless the Subscriber gives written notice of any defect to Enigma, within 7 days of the defect arising and Enigma is given a reasonable opportunity by the Subscriber after receiving the notice of examining the Product.
15.5 Enigma shall not be liable for a breach of the warranty in condition 15.1 if:
- the Subscriber makes any further use of the Product after giving the notice referred to in Condition 15.2;
- the defect arises because the Subscriber failed to follow Enigma’s oral or written instructions as to the use of the Product or (if there are none) good trade practice;
- the Subscriber alters or repairs the Product without the written consent of Enigma; or
- the defect arises as a result of fair wear and tear; or
- the Product (or its installation) has been tampered with or has otherwise been subject to misuse or accident.
15.6 Subject to conditions 15.2 and 15.3 if the Product does not conform with the warranty in condition 15.1, Enigma shall (provided the Subscriber has made all payments due to Enigma under the Contract) at its option, repair or replace that Product (or the defective part) or refund the price of that Product at the pro rata Contract rate provided that, if Enigma so requests, the Subscriber shall, at Enigma's expense, return that Product or the part of such Product which is defective to Enigma.
15.7 If Enigma complies with condition 15.4 it shall have no further liability to be for a breach of any the warranty in condition 15.1 in respect of each Product.
15.8 E-Lock 3 and E-Touch Immobilisers are designed to be installed and used in the harsh environment of a machine cab. They are waterproof and tested to IP67. However Steam Cleaning and Pressure Washing are beyond the scope of the productsâ€™ specification and such activities will invalidate the warranty.
16 Intellectual Property
16.1 As between Enigma and Subscriber all Intellectual Property Rights in the Product are owned and shall remain owned by Enigma and the Subscriber will not acquire any proprietary rights over the same whatsoever. Subject to the Subscriber complying with the terms of this Contract Enigma grants to the Subscriber a personal, non-exclusive, non-transferable licence to use the Intellectual Property Rights in the Product but only to the extent necessary to enable the Subscriber to use the Product and to receive any of the Services for the longer of the Services Period, the Fixed Rental Period (and any continuation thereof pursuant to condition 5.1) and for so long as the Subscriber owns the Equipment in which the Product operates.
16.2 The Subscriber shall not permit any third party to copy, adapt, reverse engineer, de-compile, disassemble, modify or adapt any software comprised in the Product.
17 Limitation of Liability
17.1 Subject to conditions 5 and 16, the following provisions set out the entire financial liability of Enigma (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Subscriber in respect of:
- any breach of the Contract;
- any use made or resale by the Subscriber of the Tracking System, or of any Equipment incorporating the Product;
- any use made by the Subscriber of the Services or any part of them; and
- any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
17.2 All warranties, conditions and other terms implied by Statute or Common Law (save as expressly stated and save for the conditions implied by Section 12 of the Sale of Goods Act 1979 and Section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
17.3 Nothing in these conditions excludes or limits the liability of Enigma:
- for death or personal injury caused by Enigma’s negligence; or
section 2(3), Consumer Protection Act 1987; or any matter which it would be illegal for Enigma to exclude or attempt to exclude its liability; or fraud or fraudulent misrepresentation.
17.4 Subject to condition 17.2 and condition 17.3:
- Enigma’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited in respect of each separate Product to the amount received by Enigma from the Subscriber for each separate Product; and
- Enigma shall not be liable to the Subscriber for loss of profit, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of use in each case whether direct, indirect or any special, indirect consequential or pure economic loss, costs, damages, charges or expenses which arise out of or in connection with the Contract.
17.5 The Subscriber acknowledges that it is not dealing as a consumer within the meaning of Section 12 of the Unfair Contract Terms Act 1988 (UCTA) and accordingly agrees that the limitations of liability contained in this Contract satisfy the requirements of reasonableness within the meaning of subsection 2(2) and section 11 of UCTA
17.6 The Subscriber acknowledges that the provisions of these Terms limiting or excluding the liability of Enigma are reasonable given the complex nature of the technology involved in the Service and the Additional Services, the uncertainties of successfully recovering any item which has been stolen and the many other factors affecting the Services outside Enigma’s control. The Subscriber accepts that his purchase of the Enigma system in no way mitigates his duty to obtain adequate insurance for the vehicle.
17.7 Notwithstanding the foregoing, should any one or more of the provisions contained in these Terms be declared invalid or unenforceable in any respect, the validity and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
17.8 Subject to clause 17.2 nothing in these terms shall affect the Subscriber’s statutory rights as a consumer.
18.1 This agreement is personal to the Subscriber and relates exclusively to the vehicle in which the Product was originally installed, and may not be assigned to any third party.
19 Suspension of Services and Force Majeure
19.1 Enigma may, at its sole discretion and without liability, at any time suspend the Service or the Additional Services (in whole or in part) if a technical failure affects the provision of the same, or if any modification or maintenance is being carried out to the Network, or if changes to the Service or the Additional Services are required by any government or regulatory authority, or if the Network operator ceases to trade.
19.2 Enigma shall have no liability to the Subscriber under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of Enigma or any other party), failure of a utility service or transport network failure, lack of coverage or interruption of the network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
20.1 Without prejudice to any other rights or remedies which the parties may have, Enigma may terminate the Contract (in whole or in part) or suspend the provision of the Services (in whole or in part), without liability to the Subscriber, immediately on giving notice to the Subscriber if:
- the Subscriber fails to pay any amount due under the Contract on the due date for payment;
- the Subscriber commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of the Subscriber being notified in writing of the breach;
- if the Subscriber shall do or allow to be done any act or thing that may prejudice or endanger Enigma’s Intellectual Property Rights in the Product;
- a technical failure affects the provision of the Services;
- if any modification or maintenance is being carried out by any person to the Network;
- if changes to the Services (in whole or in part) are required by any government or regulatory authority;
- if the operator of the Network ceases to trade;
- if any act or omission of the Subscriber results in the Monitoring Service transmitting repeated false signals to Enigma.
20.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other, immediately on giving notice to the other if:
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
- the other party commences negotiations with all or any class of its creditors with a view to re-scheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party; or
- an application is made to Court or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
- a floating chargeholder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
- a creditor or encumbrances of the other party attaches or takes possession of or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
- the other party suspends or ceases, or threatens to suspend or cease to carry on all or substantial part of its business.
20.3 If the Subscriber has rented the Tracking System on a Rental option the Subscriber may terminate the Contract on providing notice to Enigma, in writing, to expire on or after the date falling 3 months after the Installation Date provided that such termination will only be effective by the Subscriber complying in full with condition 20.4(d).
20.4 On termination of the Contract for any reason:
- if the Subscriber has opted to purchase the Product, the Subscriber shall immediately pay to Enigma all of the payments that, had the Contract not terminated were agreed to be paid by the Subscriber to Enigma for the appropriate monitoring period;
- if the Subscriber has opted to rent the Tracking System on Lease Rental the Subscriber shall immediately pay to Enigma all arrears of payments including apportioned payments for any unpaid period and all payments that had the Contract not terminated, were agreed to be paid by the Subscriber to Enigma until the end of the relevant Fixed Monitoring Period (less a discount for accelerated payment at the rate of 2Â½ % a year) together with damages for breach and all expenses and costs incurred by Enigma in retaking possession of and selling or attempting to sell the Tracking System and/or enforcing its rights under the Contract;
- if the Subscriber has opted to rent the Tracking System on the Rental option the Subscriber shall immediately pay to Enigma all arrears of payments for any unpaid period;
- the Subscriber will immediately deliver up the Tracking System to Enigma in good repair and working order at such address as Enigma shall notify to the Subscriber and if necessary allow Enigma, its employees, agents or subcontractors access to where the Tracking System may be for the purpose of removing it;
- the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly survive termination shall not be affected.
21.1 The Subscriber accepts that, for security reasons, Enigma may record telephone calls between it and the Subscriber. The Subscriber consents to the making of such recordings, and to such being made available to Enigma for purposes relating to its business of assisting in the location and recovery of stolen vehicles or to the Police for the same ends, or otherwise for the prevention and detection of crime.
21.2 These Terms shall be governed by the laws of England to the jurisdiction of whose courts Enigma and the Subscriber submit.
22.1 The Subscriber shall keep in strict confidence all technical or commercial know-how, specifications, inventions, process or initiatives which are of a confidential nature and have been disclosed to the Subscriber by Enigma, its employees, agents, consultants or sub-contractors and any other confidential information concerning Enigma’s business or its products (including but not limited to the Tracking System) which the Subscriber may obtain. The Subscriber shall ensure that its employees, officers, representatives, advisers, agents or sub-contractors to whom information is disclosed comply with this condition 22.
22.2 The Subscriber may disclose such information as may be required by law, court order or any governmental or regulatory authority.
22.3 The Subscriber shall not use any such information for any purpose other than to perform its obligations under the Contract.
The Subscriber shall be liable to pay Enigma, on demand, all reasonable costs, charges, or losses sustained or incurred by Enigma (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Subscriber’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract.
24.1 Enigma may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
24.2 Subject to condition 24.1, no variation of the Contract or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
25.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
25.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
26.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
26.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
27 Entire Agreement
27.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
27.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of Contract).
27.3 Nothing in this condition shall limit or exclude any liability for fraud.
28.1 The Subscriber shall not, without the prior written consent of Enigma, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
28.2 Enigma may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
28.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
29 No Partnership or Agency
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
30 Rights of Third Parties
A person who is not a party to the Contract shall not have any rights under or in connection with it.
31.1 All communications between the parties about the Contract shall be in writing and delivered by hand, courier, sent by pre-paid first class post or sent by fax:
- (in case of communications to Enigma) to its registered office or such changed address as shall be notified to the Subscriber by Enigma; or
- (in the case of the communications to the Subscriber) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Subscriber set out in any document which forms part of the Contract or such other address as shall be notified to Enigma by the Subscriber.
31.2 Communications shall be deemed to have been received:
- if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
- if delivered by hand or courier, on the day of delivery; or
- if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
31.3 Communications addressed to Enigma shall be marked for the attention of The Chairman.
32 Governing Law and Jurisdiction
32.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
32.2 The parties irrevocably agree that the Courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arise out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).