Blackhawk Terms and Conditions IT IS AGREED
- In this Agreement:
Agentsmeans Blackhawk's agents, dealers and any third party, authorised by Blackhawk to provide services to the Client on behalf of Blackhawk in relation to the supply of the Tracking Pack to Clients;
Agreementmeans the Blackhawk Service Agreement, or Farm Angel Service Agreement, or Fleet Agent Service Agreement and these terms and conditions;
Blackhawkmeans Blackhawk Tracking Systems Limited;
Blackhawk Installermeans a person or company approved by Blackhawk to install and de-install the Tracking Unit and may include a Dealer;
Clientmeans the client or customer described in the Service Agreement, its agents, successors, assigns or any person acting on behalf of that client;
Dealermeans any of the vehicle dealerships that Blackhawk has appointed or authorised as a dealer of the Tracking Pack;
Documentationmeans any instruction manuals, user guides and other information relating to the Tracking Pack (and includes any updates or new versions released by Blackhawk from time to time);
Due Datemeans the date on or before the 20th day of the month of the date of the invoice;
End Usermeans the owner of any vehicle fitted with a Tracking Unit and who is party to a Service Agreement;
Extended Warrantymeans an additional period of 24 months commencing a year from the date of this Agreement as specified in the Blackhawk Service Agreement;
GSM Providermeans the person or entity authorised by Blackhawk to provide the cellular Transmission Services to the Client;
Halo Tagmeans the small Bluetooth 4.0 tag which connects to the Tracking Unit through Bluetooth 4.0 when in proximity to the Tracking Unit;
Insolvency Eventmeans any insolvency-related event suffered by the Client, including without limitation where:
Installation Feemeans the installation and set up costs of the Tracking Unit (as set out in the Agreement and charged by the Blackhawk Installer to the Client);
- the Client ceases to carry on business or be able to pay its debts as they become due;
- the Client disposes of the whole or any substantial part of its assets, operation or business;
- any step is taken by a mortgagee to take possession or dispose of the whole or a substantial part of the Client's material assets, operations or business;
- any step is taken to enter into any arrangement between the Client and its creditors (other than in the case of a solvent reconstruction or reorganisation);
- any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator, or other like person of the whole or part of the Client's assets, operation or business;
- an administrator is appointed under Part 15A of the Companies Act 1993, a receiver, receiver and manager, voluntary administrator, a manager appointed under the Corporations (Investigation and Management) Act 1989, a trustee, provisional liquidator, liquidator or any other person (however described) holding or appointed to an analogous office or acting or purporting to act in an analogous capacity; or
Intellectual Property Rightsmeans all rights to patents, licenses, trademarks, trade names, inventions, trade secrets, copyrights, and know-how relating to the origin, manufacture, programming, operating, supporting and/or servicing of the Tracking Pack and all enhancements or modifications relating to the same;
Monthly Feesmeans the fees as set out in the Agreement payable by the Client to Blackhawk (including hire costs where applicable). Monthly fees are calculated on a daily basis starting from the date of installation until the Agreement is terminated and all post-termination obligations have been satisfied;
Passwordsmeans any passwords used by the Client, its officers, employees or agents to access or use the Tracking Pack;
Purchase Pricemeans the purchase price for the Tracking Pack as set out in the Blackhawk Service Agreement;
RFmeans (broadly) the Tracking Pack’s ability to transmit and receive electromagnetic signal for wireless communication, including satellite, cellular, Wi-Fi and/or Bluetooth communication;
Satellite Providermeans the person or entity authorised by Blackhawk to provide the satellite Transmission Services to the Client (and may include Iridium - which offers a theoretical 100% coverage);
Service Agreementmeans the Service Agreement between Blackhawk and the Client dated or intended to be dated the same date as these terms and conditions;
Support Servicesmeans the support services provided by Blackhawk, as detailed in clause 8, during the Warranty Period to correct faults in the Tracking Pack or to assist the Client in operating the Tracking Pack;
Termmeans the length of the time as stated in the Agreement that Blackhawk has agreed to provide, and the Client has agreed to receive, the Tracking Pack on the terms and conditions set out in this Agreement, unless terminated in accordance with the terms of this Agreement.
Tracking Packmeans the Tracking Unit, the Tracking Software, (either collectively or any part of the Tracking Pack in isolation), the Halo Tag and any enhancements and modifications to the same;
Tracking Servicesmeans the Blackhawk tracking service relevant to the Tracking Unit(s) described in the Agreement;
Tracking Softwaremeans the Blackhawk vehicle tracking software licensed for use with the Tracking Unit and on the Client's computer system, as described further in the Agreement;
Tracking Unitmeans a hardware device supplied to the Client by Blackhawk for installation into a host vehicle as described in the Agreement;
Transmission Servicesmeans the mobile transmission services to be provided by the GSM Provider and/or the Satellite Provider, in respect of the Tracking Pack; and;
Warranty Periodmeans, 12 months starting from the commencement date in the Agreement or such other date as Blackhawk may expressly agree.
- Scope of Agreement
- Blackhawk will supply the Tracking Pack to the Client on the terms and conditions set out in the Agreement.
- The Tracking Pack supplied comprises:
- the Tracking Unit purchased or leased by the Client;
- the non-exclusive and revocable licence to use the Tracking Software (including updates whilst the account is current as detailed in clauses 15 and 16);
- secondary telephone support of the Tracking Software during business hours whilst the account is current (primary telephone support shall be provided by the Dealer);
- the ability to obtain a replacement Tracking Unit if the Tracking Unit is faulty when leased. This does not include installation/de-installation services which are at the cost of the Client;
- the ability to obtain a replacement Tracking Unit if the Tracking Unit is faulty whilst within the Warranty period. This does not include installation/de-installation services which are at the cost of the Client;
- the supply of Transmission Services; and
- the Tracking Services.
- Blackhawk grants the Client a non-exclusive, non-transferable licence to use the Tracking Software and Documentation sosolely for the Client's internal or own business purposes or use, in accordance with the Agreement.
- Installation and Tracking Pack
- The Client agrees that only a Blackhawk Installer can install and de-install the Tracking Unit.
- The Tracking Unit is designed to be installed into vehicles with suspension, such that vibration is dampened, or installed in a location with a low level of vibration. Prolonged, undampened vibration will damage the Tracking Unit. Blackhawk must approve the vehicle type prior to installation. The Client agrees to ensure that the vehicle is used in such a manner that will not result in damage to the Tracking Unit.
- Risk of damage to or loss of the Tracking Unit (including any SIM cards) will pass to the Client on installation of the Tracking Unit by a Blackhawk Installer.
- At the expiry of a 10 day period from the date the Blackhawk Installer installs the Tracking Unit, the Client expressly accepts, unless otherwise notified in writing to Blackhawk, that:
- the delivery and installation of the Tracking Unit is complete and to the Client's satisfaction;
- the Tracking Unit is in good condition and repair;
- the Tracking Unit is suitable in all material respects for the Client's purposes; and
- the Tracking Unit has been installed to a satisfactory standard and no damage has been caused to the vehicle or to the Tracking Unit during the installation process.
- The Client shall ensure that the installation of the Tracking Unit and use of the Tracking Pack does not render invalid, breach or void any vehicle warranty or vehicle lease or finance provisions. Blackhawk accepts no liability whatsoever for any such invalidity, breach or avoidance.
- Functioning of Tracking Pack
- Blackhawk warrants that the Tracking Unit has been designed and ruggedised to IP67 standard as a minimum, unless otherwise specified for a particular variant of Tracking Unit. The Client agrees that notwithstanding such design or ruggedisation of the Tracking Unit, the functioning of the Tracking Unit may be affected by:
- Environmental or geographical characteristics – the surrounding environment, terrain or geographical location of the vehicle may obstruct satellite or telecommunication signals from reaching the Tracking Unit and vice versa.
- Non-availability and non-visibility of satellites or telecommunication signals – Blackhawk relies on the telecommunication and satellite services provided by third parties and cannot guarantee that such Transmission Services are fully available at all times and locations.
- Submersion in water – Blackhawk does not warrant that the Tracking Unit will perform as stated if the Tracking Unit is used outside of IP67 tolerances or if the Tracking Unit has been submerged in greater than 1 metre of water or in less than 1 metre of water but for longer than 30 minutes.
- Damage to the Tracking Unit – Blackhawk does not warrant that the Tracking Unit will perform as stated if the Tracking Unit has been damaged, such damage may arise from instances including a vehicle accident or vibrations (prolonged or otherwise) outside of Blackhawk’s specifications.
- RF interference – Blackhawk does not warrant that the Tracking Unit will perform as stated if RF interference exists (whether from solar flares, ionised atmosphere or due to loading of the vehicle, particularly if the load is above or next to the Tracking Unit).
- Indoor environments - the Tracking Unit will not have satellite connectivity in most indoor environments and accordingly, may not function as stated.
- Antenna location - Whilst the Tracking Unit is installed in a position where consideration has been given to RF performance in a variety of orientations, certain orientations where the Tracking Unit is obstructed by parts of the vehicle body may result in non-connectivity of the Tracking Unit.
- Presence of satellites at any moment in time – the Tracking Unit may take up to five minutes to communicate via satellite in usual circumstances, depending on visibility of satellites at a given moment. Once a satellite is visible, the Tracking Unit may take a further 10 minutes to send data (for example a panic alert message) per antenna. The Tracking Unit features two antennas facing opposite directions and antenna switch logic, whereby the other antenna will be used if one cannot send data successfully within 15 minutes. This means that it may take a theoretical 15 minutes on one antenna to send data via satellite, and a total possible communication delay of up to 30 minutes, factoring in both antennas.
- Battery life – the Tracking Unit features an internal battery which potentially lasts up to 12 hours if in panic mode, or three weeks in non-panic mode, when not being charged by the host vehicle. If the Tracking Unit is not being charged by the host vehicle and the internal battery has run flat, the Tracking Unit will not function.
- The Halo Tag has been designed to connect automatically to the Tracking Unit through Bluetooth 4.0 (otherwise known as Bluetooth Smart or Bluetooth Low Energy), once in sufficient proximity. The successful transmission of a panic alert from the Halo Tag via the Tracking Unit is contingent on no adverse factors affecting the functioning of the Tracking Unit pursuant to clause 4.1. The connectivity of the Halo Tag to the Tracking Unit may be further affected by:
- Direct line of sight – the Halo Tag is required to be within a direct line of sight to the Tracking Unit in order to function without RF issues.
- Proximity to the Tracking Unit – the Halo Tag is required to be within 10 metres’ direct line of sight (approximately 32.8 feet) of the Tracking Unit to support connectivity between the Halo Tag and the Tracking Unit via Bluetooth 4.0.
- Battery life – the Halo Tag has a battery life of up to two years after activation, and a maximum of 24 months’ shelf-life prior to activation. Use of a Halo Tag beyond its battery life will negate any warranty.
- Usage of Halo Tag – the Halo Tag battery life can only support panic mode for up to two weeks (non-consecutive).
- Damage to the Halo Tag – if the Halo Tag is damaged, it may no longer be able to function as intended.
- Submersion in water – if the Halo Tag is used outside of IP67 parameters or has been submerged in greater than 1 metre of water or in less than 1 metre of water for longer than 30 minutes, the Halo Tag may not function.
- RF interference due to certain materials or objects in proximity which obstruct direct line of sight, for example metallic shielding between the Halo Tag and the Tracking Unit.
- Accident detection on the device is through the processing and interpretation of three-axis accelerometer data. Blackhawk does not use any sensors, such as crash detection sensors, in any of its solutions. Therefore there may be instances of false reported accidents and missed accidents (in particular, collision types where the nature of the collision is difficult to distinguish from an impact).
- Whilst the Tracking Pack and Tracking System has been designed to enhance safety, Blackhawk cannot guarantee that the Tracking Pack and Tracking System will function without fail during the occurrence of an accident given complex factors which may affect performance. Blackhawk is not liable for any death, injury or loss which occurs as a result of the Tracking Pack and Tracking System’s performance or non-performance.
- The Tracking System may not be available at all times as from time to time it may be unavailable due to amongst other things, necessary maintenance or upgrades.
- Any warranty or guarantee (whether contained in the Agreement, implied by law or otherwise) shall to the fullest extent permitted by law be hereby modified by this clause 4. The Client accepts and acknowledges the above limitations in respect of the Tracking Pack (including the Halo Tag). The Client shall make all operators aware of the Tracking Pack’s limitations.
- Tracking Software Functionality
- The Tracking Software features operator behaviour benchmarking, including visualisation graphics and reporting of data collected relating to operator behaviour and vehicle use.
- Behaviour benchmarking and dashboard features are based primarily on (but not necessarily limited to) analysis and interpretation of accelerometer data collected and sent by the Tracking Unit. The Tracking Software does not factor in human variables or external variables, for example but not limited to operator age, level of experience, weather conditions, terrain or loading of the vehicle.
- Operator behaviour information displayed on the Tracking Software, including labels such as “Low Risk”, “Medium Risk” and “High Risk” are suggestive and relative to other operators in a customer’s cohort only, and are not to be interpreted in any way as an absolute indication of the safety level of an operator.
- Any thresholds used in the algorithms behind interpretation of accelerometer data to result in operator behaviour metrics are also indicative and are in no way intended to be interpreted as the absolute limits of safety.
- Any algorithms used in the Tracking Software may be changed at any time at Blackhawk’s sole discretion.
- Personal Properties Securities Act 1999 ("PPSA")
- The Client acknowledges that:
- these terms create a security interest (as defined under the PPSA) in favour of Blackhawk in the Tracking Unit leased to the Client by Blackhawk;
- the Client shall act immediately when requested by Blackhawk to do such acts and provide such information that in Blackhawk's opinion may be necessary or desirable to enable Blackhawk to register and perfect any security interest created or provided for by these terms, in the Tracking Unit; and
- to the fullest extent permitted by law, the Client waives any rights it may have now or in the future to receive a copy of any verification statement or other confirmation related to any security interest created or provided for by, or perfected in the manner contemplated by these terms.
- the Client agrees (to the extent permitted under the PPSA) that the Client shall have no rights under Part 9 (Enforcement) of the PPSA.
- Client's Obligations
- The Client will not use the Tracking Pack (or any part of it) for any unlawful purpose.
- The Client will ensure that the Tracking Pack is used in accordance with all applicable laws, regulations, standards and industry codes of conduct.
- The Client must not use any equipment in connection with the Tracking Pack that has not first been approved, in writing, by Blackhawk.
- The Client will strictly comply with the Documentation and the reasonable directions of Blackhawk from time to time regarding the use of the Tracking Pack.
- The Client will provide Blackhawk with a contact person within the Client's organisation, or one contact person for each branch of the Client's organisation. This contact person or contact people will be the liaison person or persons with Blackhawk regarding the terms of this Agreement.
- The Client must not use the Tracking Pack for research purposes of any kind without the written consent of Blackhawk.
- Support Services
- 8.1. During the Warranty Period, Blackhawk shall provide Support Services to the Client, secondary to the provision of support in the first instance by the Dealer. Any additional costs incurred by Blackhawk in the provision of Support Services will be payable by the Client unless otherwise agreed by Blackhawk, including, but not limited to:
- Any freight or transportation costs incurred;
- Travel cost for callouts; and/or
- Time incurred in callouts.
- If the Client requires support for the Tracking Unit, the Client shall call the Dealer through which they purchased the Tracking Unit in the first instance.
- Where the Dealer is unable to satisfactorily address the Client’s support requirements, the Client can call Blackhawk's Client support number 0800 Blackhawk (0800 252 254) or contact Blackhawk by email on email@example.com.
- Blackhawk will use its reasonable efforts to provide Support Services for the Tracking Pack during the Warranty Period.
- The Support Services do not include services that are required as a result of:
- misuse of the Tracking Unit or failure to use the Tracking Unit in accordance with the Documentation
- unauthorised attempts to repair, replace, modify or maintain the Tracking Pack; or
- damage to the Tracking Unit that occurs during or subsequent to a breach of the terms of this Agreement by the Client.
- Where the Tracking Unit is sold to the Client, during the Warranty Period (or Extended Warranty Period as the case may be) Blackhawk shall replace or repair (at Blackhawk's sole discretion) any defective Tracking Unit subject to this clause 8.
- Blackhawk may suspend Tracking Services or Transmission Services at any time without notice, for any reason including but not limited to, technical reasons, network repairs, or to comply with any law or order from an emergency service or government authority.
- The provision of Support Services are contingent upon the observation of the requirement specified in clause 3.1.
- Fees and Payment
- On order placement, the Client will pay to the Blackhawk Installer or Dealer:
- the Installation Fee as detailed in the Service Agreement;
- the first Monthly Fee as detailed in the Service Agreement;
- in the case of a sale of the Tracking Unit, the full Purchase Price; and
- in the case of a lease of the Tracking Unit, the first month’s lease payment.
- The Client will be sent an invoice on the first day of every month. The invoice shall be paid in full on or before the Due Date, preferably by credit card online through the Tracking Software administration portal, or by direct debit. The Client will receive a final invoice upon termination of the Agreement and the removal of the Tracking Unit.
- If the Client fails to pay an invoice 30 days after the Due Date, Blackhawk may without prejudice to its other rights or remedies under this Agreement:
- charge the client an administration fee of 15% of the outstanding amount in addition to the outstanding amount; and / or
- prohibit the Client from having access to the Tracking Services and/or the Transmission Services.
- If the Client fails to pay an invoice on or before 60 days after the Due Date, Blackhawk may disconnect the Client's account and forward the account to debt collectors, with any charges that are incurred to be the responsibility of the Client.
- In the case of Tracking Unit lease, the undamaged Tracking Unit must be returned on or before 30 days after the end of the lease.
- If a Client disputes an invoice or there are invoice errors requiring remedy by Blackhawk, the Client shall provide Blackhawk with a dispute notice pursuant to clause 18.1. Upon receipt of the Dispute Notice the dispute shall be resolved pursuant to clause 18 and Blackhawk shall not enforce any of its other rights and remedies under this clause 9.
- If payment is made by direct debit, a NZ$15 plus GST administration fee will be charged to the Client in the case of dishonourment or non-payment.
- If the client elects through the Blackhawk Website to receive updates via SMS, an SMS cost of NZ$0.50 (plus GST) per SMS will be charged to the Client.
- Warranties and Limitation of Liability
- Blackhawk warrants to the Client that:
- it has full power and authority to license the Tracking Software to the Client on the terms and conditions herein;
- insofar as Blackhawk is aware, the Tracking Pack does not infringe any Intellectual Property Rights of a third party;
- during the Warranty Period, the Tracking Unit will function in accordance with its specifications subject to any limitations and qualifications contained herein.
- All warranties are based on the assumption that the Client will deliver any faulty Tracking Unit or Tracking Software to an authorised Blackhawk base.
- For the avoidance of doubt, failure to comply with the terms and conditions of the Agreement will void all warranties given by Blackhawk.
- Consumer Guarantees Act and Blackhawk's Liability
- As Client acquires or hires the Tracking Unit and Tracking System for business purposes, the Consumer Guarantees Act 1993 will not apply.
- The Client acknowledges that:
- The Client relies upon its own knowledge, skill and judgement in relation to the particular use or suitability of the Tracking Pack for the Client's purpose;
- All warranties, descriptions, representations or conditions whether implied by the Sale of Goods Act 1908 or otherwise or contained in any document not furnished by Blackhawk are expressly excluded to the fullest extent permitted by law;
- Blackhawk will accept no liability for any damages or losses arising from a consequence of any act, default or negligence on the part of Blackhawk or of an employee, agent or contractor of Blackhawk;
- Subject to the provisions of clause 11.2.3, Blackhawk's liability under or in connection with the performance of these terms, whether in tort, contract, equity or on any other basis, shall be limited to the lesser of the price of the Tracking Pack complained of, the cost of repairing or replacing the Tracking Pack or the actual loss or damage suffered by the Client;
- Blackhawk shall not be liable to the Client or any third party in contract, tort (including negligence) or on any other basis for:
- any indirect or consequential losses or damages;
- any loss of use, loss of profits, loss of anticipated savings; or
- any third party claims suffered or incurred by the Client; and
- Subject to clause 11.2, the Tracking Pack shall be warranted to be free from defect and any defective Tracking Pack shall be replaced or repaired (at the sole discretion of Blackhawk), provided that any claim made under this clause shall be made in writing to Blackhawk within the Warranty Period.
- If an unaltered version of the Tracking Unit develops faults by reason of defective components, design or workmanship within the Warranty Period, and the Client is not in breach of the terms of the Agreement, Blackhawk will either repair or replace the Tracking Unit (or the affected component of the Tracking Unit) at no cost to the Client. Any such replacement or repair will be the Client's sole remedy in respect of the supply of a defective Tracking Unit;
- during the Warranty Period the Tracking Software will function in accordance with its specifications. Blackhawk will provide all reasonable programming and remedial services to correct documented code errors which are caused by a defect in an unaltered version of the Tracking Software at no cost to the Client, provided that the Client is not in breach of any of the terms of the Agreement. Any such programming and remedial services will be the Client's sole remedy in respect of the supply of defective Tracking Software.
- Subject to clause 10, the Client shall at all times indemnify and hold Blackhawk, its directors, officers, employees and agents, harmless from and against any costs (including reasonable legal costs on a solicitor and client basis), claims, demands, expenses, losses or other consequences suffered by Blackhawk in relation to the performance of the Client's obligations under this Agreement, and from any costs, claims, demands, expenses, losses or other consequences suffered by Blackhawk in relation to any breach by the Client of this Agreement, or arising out of the negligence, breach of statutory duty, or wilful default of the Client's agents, employees or sub-contractors or of any other person for whose acts and omissions the Client is vicariously liable and also against any action, claim or demand by the Client's employees, agents, or subcontractors, their personal representatives or dependants, or any clients of the Client.
- Any call outs will be charged a call out fee.
- The exclusions in this clause 11 apply for the benefit of (and shall be enforceable by) Blackhawk, all officers, employees, contractors and agents of Blackhawk.
- Intellectual Property and Confidentiality
- The Client acknowledges that the Intellectual Property Rights in the Tracking Pack and the Documentation are owned by Blackhawk or its licensors.
- The Client acknowledges that this Agreement does not transfer to the Client any Intellectual Property Rights in the Documentation or the Tracking Pack (other than the limited rights granted herein).
- Title to any SIM card or SIM chip forming part of the Tracking Unit will remain vested in Blackhawk at all times.
- The Client will:
- not reproduce, translate, adapt, reverse engineer, vary or modify the Tracking Unit, Tracking Software, the Tracking Pack generally or the Documentation other than to make such reasonable number of copies of the Tracking Software as is necessary to enable the Client's employees, officers and agents to use the Tracking Software in accordance with the terms of the Agreement;
- take all reasonable steps to prevent, and will procure that its officers, employees and agents (as applicable) take all reasonable steps to prevent, any unauthorised access to the Tracking Pack and to ensure the non-disclosure and confidentiality of the Tracking Pack and Documentation;
- not transfer, assign or otherwise deal in the Tracking Pack, Tracking Software and Documentation or the Client's rights under this Agreement;
- maintain all copyright notices on the Tracking Pack and Documentation;
- not, and will ensure that its officers, employees and agents do not (as applicable), disclose any Passwords and will ensure that all Passwords:
- cannot be easily guessed; and
- are changed regularly and as reasonably requested by Blackhawk; and
- notify Blackhawk in writing immediately if it has knowledge of the existence of any circumstances which may suggest that any person may have unauthorised knowledge or use of the Tracking Pack and Documentation or any Password.
- Term and Termination
- This Agreement commences on the date both parties sign the Agreement and will continue for the Term as set out in the Blackhawk Service Agreement unless terminated in accordance with the provisions of this Agreement.
- Blackhawk may notify in writing to the Client of their wish to terminate this Agreement at any time. Termination shall occur 90 days from the date the Client receives this notice.
- In the case of a fixed term Agreement the Client may elect to terminate the Agreement before the end of the Term set out in the Service Agreement but must pay a termination charge of 50% of the monthly charges over the remaining term of the Agreement.
- In the absence of a fixed term Agreement, the Client may elect to notify their wish to terminate the Agreement at any time.
- Blackhawk may terminate the Agreement by notice with immediate effect, if:
- the Client breaches any provision of the Agreement and does not remedy the breach within 14 days after receiving a written, faxed or emailed notice from Blackhawk or its authorised representative requiring the breach to be remedied; or
- Blackhawk believes the Tracking Pack to be at risk for whatever reason including, but not limited to, the manner of use of the Tracking Pack or that the Client is unable to, or might be unable to, pay any hire charge or purchase price; or
- the Client suffers an Insolvency Event; or
- the Client fails to maintain the Tracking Unit; or
- the Transmission Services are suspended for any reason whatsoever.
- Termination of the Agreement by Blackhawk is without prejudice to any rights that Blackhawk may have under the Agreement in law or equity.
- Consequences of Termination of Agreement
- Upon termination of this Agreement, where the Tracking Pack is leased, the Client will:
- immediately cease to use the Tracking Software and all Documentation and deliver to Blackhawk all copies of the Tracking Software and Documentation in the Client's possession or control;
- grant Blackhawk, an irrevocable right and authority to enter, at any time, onto any place or into any vehicle where any part of the Tracking Pack is situated or thought to be situated to remove the Tracking Pack;
- return the Tracking Software and Tracking Pack to Blackhawk's control ensuring that the de-installation of the Tracking Unit is performed by a Blackhawk Installer pursuant to clause 3.1; and
- pay any and all sums due and/or payable to the other party under the Agreement that become due for payment before or after termination.
- Within 30 days of termination, the Client must certify to Blackhawk in writing that it has fully complied with its obligations under clause 14.1.
- The client shall continue to be charged the normal Monthly Fees after the termination of this Agreement until clause 14.2 is satisfied.
- If Blackhawk establishes that the Client had not in fact complied with all obligations under clause 14.1 when the letter was received, the Client will be charged backdated Monthly Fees from the date that the letter was received until the Client complies with all unresolved obligations. Clause 9 will apply in respect of any backdated payments.
- If the undamaged leased Tracking Unit is not returned on termination, then the client shall be liable for the full and immediate payment of the then current purchase price of a new Tracking Unit (plus GST).
- Upon termination of the Agreement, all licences granted pursuant to the Agreement shall be deemed to be immediately revoked without any further notice and the Client acknowledges that no Tracking Services will be provided by Blackhawk or the GSM Provider or Satellite Provider.
- Blackhawk shall make reasonable endeavours to avoid any damage or loss to the Client and the End User in the repossession of the Unit.
- Blackhawk will not be liable to the Client or any other person for any loss suffered or liability incurred arising from the termination of the Agreement or the repossession of any part of the Tracking Pack.
- For the avoidance of doubt, the Client indemnifies Blackhawk against any costs, claims, damage, expense or liability suffered or incurred by Blackhawk arising directly or indirectly from Blackhawk exercising its rights under this clause or otherwise acting to recover any part of the Tracking Pack hired or money payable by the Client. This includes any damage to the vehicle caused by Blackhawk's attempts to recover the Tracking Pack (including causing the vehicle to be shutdown).
- Termination of this Agreement will not affect any provisions of this Agreement which are intended to continue after termination (including, without limitation, clauses 6, 9, 10, 11, 12 and 17.3).
- Sale of Tracking Pack
- Where a Tracking Pack is sold to the Client:
- legal and beneficial ownership of the Tracking Pack will remain with Blackhawk until the Client has made full payment of the Purchase Price; and
- until legal and beneficial ownership of the Tracking Pack has passed to the Client, the Client will not disassemble or make any structural alterations to the Tracking Pack without the prior written consent of Blackhawk.
- Hire of Tracking Pack
- In the case of hire, Blackhawk may obtain and disclose personal information about the Client to and from anyone else and, if Blackhawk considers it relevant to assess the Client's application for credit or to collect overdue payments in respect of that credit, the Client agrees to Blackhawk obtaining from a credit reporter and/or a credit provider, a credit report containing personal information about the Client and/or the Client’s director in relation to credit provided by Blackhawk. Such information will be held at the address of Blackhawk and the Client may access and correct that information by contacting Blackhawk. Blackhawk warrants that personal information about the Client shall only be disclosed to Blackhawk's debt collectors from time to time to aid in the collection of any money owing to Blackhawk by the Client.
- In the case of damage to the Tracking Unit, however caused, the Client shall be responsible for the full costs of all repairs to restore the Tracking Unit to the condition it was in at the time of hire. The Client's maximum liability under this clause shall be the value of the Tracking Unit.
- In the case of loss or irreparable damage to the Tracking Unit, however caused, the Client shall be responsible for the full cost to Blackhawk of replacing the Tracking Unit.
- The Client shall be responsible for any loss of revenue suffered by Blackhawk due to the unavailability of the Tracking Unit for sale or hire due to loss or damage to the Tracking Unit.
- Where a Tracking Pack is leased to the Client, the Client shall:
- not part with the possession of the Tracking Pack and shall not sublet, or sell, or attempt to alienate the Tracking Pack in any way, or grant security interest in, or deal with the Tracking Pack in any way that may be prejudicial to Blackhawk other than installing the Tracking Device in vehicles listed in the Blackhawk Service Agreement;
- be liable for any loss or damage to any Tracking Pack, including but not limited to, damage or loss caused by fire, storm, collision, accident, theft or burglary, or arising from misuse, abuse, mysterious disappearance or wrongful conversion, any breach of the Agreement, violation of any laws, exposure to any corrosive substances (including caustic, cyanide, acids, salt water), theft where not reasonably locked and secured, transportation (except where transported by Blackhawk), or negligence by the Client and shall pay to Blackhawk the cost of making good the repair to the Tracking Pack or the cost of replacing the Tracking Pack, whichever is the lesser;
- take proper care of and use the Tracking Pack in a manner or to such an extent that a reasonable Client would, and according to the Documentation and any instructions given by Blackhawk or the GSM Provider or Satellite Provider;
- not carry out repairs, maintenance, adjustments, alterations or additions to the Tracking Pack without the express consent of Blackhawk;
- not remove any signage of the Tracking Pack without the prior written consent of Blackhawk where signage is applicable;
- immediately notify Blackhawk, by telephone, if the Tracking Pack is damaged or is otherwise in need of maintenance or repair;
- on request by Blackhawk advise of the location of any hired Tracking Pack;
- give Blackhawk irrevocable licence to enter any premises within the Client's control for the purposes of inspecting, repairing, testing or removing the Tracking Pack; and
- not attempt to remove the Tracking Unit.
- The hire period for the Tracking Pack shall start when Blackhawk gives possession of the Tracking Pack to the Client, and shall continue until the Client has returned the Tracking Pack into the possession of Blackhawk.
- Client Information
- The Client acknowledges that Blackhawk may generate, and/or require use of existing Client information. The Client grants Blackhawk the right to use, copy, modify, store and disclose the Client information to the extent necessary so that they can supply the Support Service and Tracking Services, and any enhancements or modifications to the same to the Client. Blackhawk will not make this information available to any current or future competitors.
- The Client will, to the extent that the Client information contains personal information (as defined in the Privacy Act 1993) about an individual (including an employee or contractor of the Client), procure from that individual all necessary consents required by law to enable that information to be lawfully used by Blackhawk. The Client shall obtain all necessary consents and approvals from any operator of the vehicle in which the Tracking Unit is installed, particularly under the Privacy Act 1993. The Client shall ensure that such consent also extends to Blackhawk and the purpose and use of any personal information obtained.
- The Client indemnifies Blackhawk (and will continue to indemnify Blackhawk notwithstanding termination or expiration of this Agreement for all loss (including losses, liabilities, penalties, damages, costs, charges and expenses) which Blackhawk may suffer or incur (whether in relation to the Privacy Act 1993 or otherwise) by reason of the Client's failure to comply with clause 17.2.
- Dispute Resolution
- A party may notify the other parties ("Dispute Notice") if that party considers that a dispute exists between the parties about the construction or performance of this Agreement (including the determination of any matter to be agreed or any document to be completed under this Agreement) ("Dispute"). The Dispute Notice shall briefly describe the Dispute, and state that it is given under this clause 18.1.
- As soon as reasonably practicable after the Dispute Notice has been given, the parties shall co-operate and negotiate in good faith in an endeavour to resolve the Dispute expeditiously. A party may refer the Dispute to mediation under the Agreement if the parties are unable to resolve the Dispute within 5 Business Days after the date on which the Dispute Notice is delivered.
- Mediation under the Agreement shall be governed in all respects by the LEADR NZ standard mediation Agreement. The mediation shall be conducted by a mediator and for a fee determined by the parties or (failing Agreement within 5 Business Days after referral to mediation) a mediator in Auckland, New Zealand recommended by the Chairperson for the time being of LEADR. Subject to anything to the contrary in this Agreement, the parties shall act in good faith in the mediation in an endeavour to resolve the Dispute expeditiously.
- For the avoidance of doubt, the existence of a Dispute shall not relieve a party from the requirement to perform its obligations under this Agreement generally and, notwithstanding the Dispute, each party shall continue to perform its obligations under this Agreement to the maximum extent possible (having regard to the nature of the Dispute), including the completion of any Agreement as soon as practicable even where the date for completion of the Agreement has passed.
- Where the Dispute is not resolved pursuant to clauses 18.2 and 18.3, any party may refer the Dispute to arbitration by giving the other parties notice in writing stating the subject matter of the Dispute and the first party's desire to have the matter referred to arbitration. The arbitration shall also be held in Auckland.
- If the Dispute is referred to arbitration, then it shall be finally resolved in accordance with the Arbitration Act 1996 and the express provisions of this clause 18 shall prevail in the event of any inconsistency with that Act, to the extent permitted by law.
- Any notice given under this Agreement will be in writing delivered to the relevant party or sent by post, facsimile or email transmission at such address or number as may be notified in writing by each party to the other from time to time. If delivered by hand, any such notice will be deemed received at the time when the same is handed to or left at the address of the party to be served. If served by post a notice will be deemed received two working days (not being Saturday, Sunday or a public holiday) after the day of posting. If served by fax a notice will be deemed received on the day of dispatch. If sent by email, a notice will be deemed received on the date and time at which it enters the addressee's information system. The Client must notify Blackhawk immediately of any change to the Client's address for service.
- If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in force and effect.
- If Blackhawk waives any default or breach of this Agreement, this will not constitute a waiver of any other or subsequent default or breach. No waiver will be effective unless made in writing.
- The Client may not assign, sub-licence or transfer its rights and obligations under this Agreement without the prior written consent of Blackhawk.
- Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement if such delay or failure is due to a force majeure event, being any cause outside its reasonable control including but not limited to acts of God, natural disaster, riot, malicious damage, fire or acts of any governmental authority. This clause 19.5 does not apply to any obligation to pay money for liabilities incurred prior to the force majeure event.
- This Agreement is governed by the laws of New Zealand and the parties agree to submit to the exclusive jurisdiction of the Courts of New Zealand.
- In the case of any conflict between the Service Agreement and these terms and conditions, the provisions of these terms and conditions shall prevail.