General Definitions

• "Subscriber Application Form" - the face of this agreement and the vehicle schedules (if any) attached, containing, amongst others, the details of the Client and the vehicles;
• "Trac-King the Company" – Trac-King (Private) Limited;
• "The Client" - the party whose details appear on the Subscriber Application Form and who is bound by the terms of this agreement upon the Client's signature of the Subscriber Application Form;
• "Day; week; month" - calendar day, week or month, respectively;
• "The JPS" - the collective fees for the rendering of the service relating to airtime subscriptions, usage and monitoring messaging, payable monthly, quarterly, half yearly, 3 quarterly or annually in advance by the Client to Trac-King. Trac-King may change the fees from time to time upon giving not less than one months notice to the Client in writing;
• "Fleet Management" - providing the client the ability to view the trip history and selected events of its vehicles;
• "GPRS coverage" - GPRS is the technology used by the fleet management product. GPRS coverage is constantly growing in Zimbabwe and services will improve alongside it. The client is aware that the unit will not be able to provide fleet management data until the vehicle enters a GPRS covered area;
• "Loss" - the hi-jacking and/or theft of a vehicle, unless otherwise specified, upon the occurrence which event the Client undertakes immediately to notify Trac-King;
• "Installation Centre" - a Trac-King approved centre whose business includes the installation of Units;
• "Installation" - installation of a Unit by an Installation Centre;
• "Manual" - the document that explains, amongst others, the specifications and usage requirements relating to the FLEET Unit, which document the Client warrants that the Client has read and understood;
• "Monitoring Message" - message generated by a Unit (pursuant to, amongst others, a Monitoring Request) and providing information to Trac-King regarding the ignition status and duration of a vehicle;
• "Monitoring Request" - any request made (whether deliberately or by mistake) regarding the ignition status and/or position of a vehicle;
• "Monitoring Service" - the provision of information of the vehicle's ignition status and/or position;
• "Network coverage" - the unit utilises GSM technology. As such it relies on the unit being within network coverage for it to be positioned or located. Network coverage is constantly growing;
• "Party" - any one of the parties to this agreement;
• "Recover" - after notification to Trac-King of a loss, to secure, hold and deliver the vehicle to the Police, Client or, at Trac-King's discretion, to the relevant authorities;
• "Recovery" - has a related meaning;
• "Pro service" - the recovery and Monitoring Service to be provided to the Client and performed by Trac-King, regarding the vehicle's, in accordance with this agreement;
• "Service Provider" - Trac-King or an entity appointed by Trac-King to perform the services and to which this agreement will apply and be read with the necessary changes;
• "Signature date" - the date upon which the last party signs this agreement;
• "SVR" - Stolen Vehicle Recovery. The service provided by Trac-King within the territory;
• "Stolen Vehicle Recovery" - the service of recovering a stolen vehicle. This service will be provided on every CARTRACK unit but not all units are designed to maximize the chances of Stolen Vehicle Recovery. Fleet Lines, Bike trackers and Cartrack satellite units are easy to install and therefore, easy to find, reducing the recovery rate. For specialist rooms, the client should opt for a device with a Stolen Vehicle Recovery module;
• "The Territory" - shall mean Zimbabwe;
• "Unit" - the electronic device and ancillary equipment designed by Cartrack, and installed in a vehicle by an Installation Centre;
• "Vehicle" - any vehicle for the details of which appear either on a Subscriber Application Form or on any vehicle schedule attached, in which vehicle a Unit is installed. Vehicle will be used to cover any trailer that has had a Cartrack trailer unit fitted;

1. Purchase Specifics (applicable where units are purchased outright)

1. In this agreement the following terms shall apply:
   1. "This/the agreement" - this sale and service agreement (as selected in the Subscriber Application Form), the Subscriber Application Form and any appendices attached;
   2. "Initial period" - from and including the signature date of the Agreement to 00:00 on the last day of the third month thereafter;
   3. "Purchase Price" - where this is a sale and service agreement, the amount specified on and payable as per the Subscriber Application Form or Quote for the purchase of the Unit. Amount is due for payment upon the signing of this agreement;

2. The Service

1. Trac-King will respond to each notification of a loss and use its reasonable endeavours to effect a recovery. The Client authorises Trac-King to recover, hold and deliver the vehicle to the Police and indemnifies Trac-King against any damage arising therefrom or at any time thereafter and/or whilst the vehicle is at any time in Trac-King's possession. No risk in the vehicle shall, at any time, pass to Trac-King. The recovery will, save where otherwise provided, be rendered free of additional charge within the Territory;
2. Due to the numerous variables involved, Trac-King does not guarantee that the service will lead to a recovery. The Client acknowledges that the service is intended to reduce the risk of loss, but will not eliminate such risk;
3. In the event of a Fleet Quick, Fleet line or Bike Track being stolen, Trac-King will attempt to aid in recovering the vehicle. The client acknowledges that these units are not designed with specialist recovery in mind and the chances of recovery are significantly lower than if fitting a unit with a Stolen vehicle Recovery module such as the Fleet Plus or Fleet Exec Plus;
4. Clients may, up to 2 times a month, test the unit by calling in to request the position of their vehicle. Additional tests carried out at the insistence of the client shall be charged to the client in accordance with Trac-King's current tariff. The onus is on the client to contact the Trac-King control centre to initiate a unit test. The Client must take all reasonable steps to ensure that the Unit is in proper working order and must immediately report any Unit faults and/or failures to Trac-King. The client must ensure the vehicle is within a network covered area before initiating the test;
5. The Fleet Management unit will be barred from roaming GPRS functionality. Requests for roaming will only be accepted in very rare circumstances where a fee will be charged and paid for upfront. The only roaming functionality that comes standard is to be used by the control room, only, to effect a recovery if the vehicle is stolen. All use by the client of any roaming functionality will be charged for;
6. The Client is aware that the Fleet Management service relies on a number of components that are outside Trac-King's control. These include (but are not limited to) network coverage, GPRS coverage, internet service, telecommunications, electricity power supplies and staff tampering. Trac-King cannot be held responsible for the failing of any of these and the client accepts that the service may not work from time to time should any of these components fail. Trac-King is not liable for any losses incurred or lack of service provided in these instances and the client shall not withhold payment or claim a breach of contract in such instances;
7. Trac-King, using its Regional Cartrack partners, will attempt to recover stolen vehicles passing outside the territory but this may incur additional costs according to Trac-King's standard tariffs at the time of recovery;

3. Term

This agreement shall continue for the initial period and, thereafter, indefinitely until either party terminates by giving the other three (3) months' written notice thereof.

4. Fee

1. As consideration for Trac-King undertaking to provide the service, the Client shall pay Trac-King the Fee, and any increase thereto, monthly, quarterly, half yearly, or annually in advance with the first Fee being paid on the signature date. Payments must be made in advance of the 7th or the relevant month or on such earlier date as specified in any debit authorization form in the Subscriber Application. Invoices will be sent to the email address or physical address as specified on the Subscriber Application. The client must ensure this information is accurate and up to date at all times. If the addresses are not accurate then not receiving an invoice will not be accepted as a valid reason for non payment;
2. If, as a result of a Monitoring Request, Trac-King renders any service not otherwise required of it in terms of this agreement, the Client shall pay Trac-King an amount determined in accordance with Trac-King's then applicable standard rates for any such service rendered;
3. The Client may not withhold payment of any amount due under this agreement because the Unit is damaged or cannot be operated or used. All amounts outstanding in terms of this agreement shall be charged at a rate of interest equivalent to Trac-King's Commercial Banker's prime overdraft rate plus 3% applied monthly; and in the event of that payment the services may be suspended and the unit deactivated;
4. Where the fee is, by direct agreement between the Client and any other person ("the intermediary"), to be paid to Trac-King by the intermediary and the intermediary fails, for any reason whatsoever, to pay any Fee or charge, the Client undertakes forthwith to pay such Fee and, for the remaining term of this agreement, to pay any outstanding accrued fee and any Fee due thereafter in terms of this agreement;
5. In the event that the Unit is de-activated as a result of non-payment of subscriptions by the Client, the client shall be required to pay a reconnection fee according to Trac-King's standard rates. In addition, the client shall pay any outstanding balances owed under this agreement before reconnection takes place;
6. Trac-King reserves the right to alter the fee structure in line with tariffs imposed on them, or alterations made to their tariffs, by their service providers. The client will be notified at least no month in advance in writing;
7. Should the client be allocated a GPS list after or text bundle then exceeding these limits will incur extra costs to be paid in arrears;
8. Vehicles on Cartrack Fleet currently have a 204M monthly GPS list limit. For each additional MB over this limit the client shall be charged at Trac-King's current rates. On average a vehicle uses between 5-10 MB a month. The bundle is set well above this limit as the limit is designed to cut out abuse of the unit and not to hinder the purpose of the fleet unit;
9. If payment is made by Debit or Stop Order, the client will be in breach of this agreement if he cancels the debit or stop order without written consent of Trac-King or changes his banking details upon which the debit is made without giving Trac-King sufficient written notice to effect the change. Sufficient notice is deemed to be 1 calendar month;

5. Hardware and Warranty

1. The parties agree that the service cannot be provided unless an installation Centre installs the Cartrack Unit in a vehicle and the Unit is programmed, enabled and functioning to its manufacturer's specifications. The Client accepts responsibility to use the Unit and the services strictly in accordance with the provisions of the Manual and other literature disseminated by Trac-King from time to time and to ensure that the features of the Unit in terms of such literature will suit the purpose intended by the Client. The provisions of this agreement shall supersede all conflicting provisions in the Manual or other literature. The Client shall not, in any way, alter or tamper with the Unit;
2. Subject to compliance with 5.1, the Unit (excluding consumables, such as backup batteries) and the installation thereof shall carry a 13 month warranty against faulty materials or faulty workmanship by Trac-King. The warranty does not cover fair wear and tear. Any maintenance and/or repairs must be carried out at an Installation Centre (and will be chargeable if outside of the warranty agreement), Trac-King gives no other warranty regarding the Unit or the service. The warranty contained in this clause is limited to an obligation on the part of Trac-King to repair or replace the unit in question;

6. Lifetime Warranty

1. Standard hardware warranty is 13 months, thereafter devices that need to be changed out will be charged for. For an additional monthly bolt on fee, Trac-King will cover: - all hardware repairs and replacements on your unit, consumables and all accessories (except temperature sensors) for as long as the client is still paying the monthly subscriptions and lifetime warranty. The cover is there to protect against normal wear and tear, age, faulty unit or fitments, and it excludes all damage done by 3rd parties or due to accident damage or loss;
2. Whilst the USD currency remains legal tender, the pricing will be fixed to the quoted USD price. Should the currency no longer become legal tender it would need to be priced according to a USD equivalent as the replacement components and devices are all imported and would need to be replaced using USD;
3. This is a new insurance offering on all new fitments. It can be added on after filment provided your filment is less than 6 months old and a catch up fee will need to be paid for each month missed since the date of filment;

7. False Alarms

1. The Client shall immediately notify Trac-King of any Monitoring Request accidentally or unintentionally generated ("false alarm"). The Client accepts liability for the consequences of any false alarm, acknowledging that such false alarm may lead to the relevant authorities or Trac-King responding thereto and potentially making wrongful arrests. Accordingly, the Client undertakes to repay all costs incurred by Trac-King (at Trac-King's then applicable standard rates), and hereby indemnifies the Service Provider against all claims for damages, arising out of a false alarm;

8. Furnishing of Information

1. The Client warrants the correctness and accuracy of all the information on the Subscriber Application Form or otherwise furnished by or on behalf of the Client to Trac-King;
2. The Client shall immediately notify Trac-King in writing of any changes in the information on the Subscriber Application Form or furnished to Trac-King from time to time in accordance with the standard practice or procedures of Trac-King;
3. The Client chooses the address referred to on the Subscriber Application Form as domicilium citandi et executandi for all purposes arising out of this agreement, provided that the Client shall be entitled to change such domicilium, on written notice to Trac-King, with effect from the date of receipt by Trac-King of such notice;

9. Clients General Obligations

1. The Client keeps the Trac-King emergency numbers handy and contacts Trac-King as soon as possible after a loss. The emergency numbers must not be visible within the vehicle;
2. If the Client becomes aware or is made aware by Trac-King that the Unit in a vehicle is not operational, the vehicle is immediately taken to an installation Centre. If the Client fails to do so, Trac-King may, at its option, suspend the service and is not liable for a failed recovery in this regard;
3. The Client keeps false alarms to a minimum Trac-King reserves the right to respond only once positive confirmation of a loss can be obtained; and
4. The Recovery teams are a dedicated resource/tracking stolen and hijacked cars. They are not to be used for domestic or civil disputes. The Recovery Teams work hand in hand with the Zimbabwe Republic Police - Vehicle Theft Squad who in turn do not get involved in such matters. As such Trac-King reserves the right to only affect a Recovery once a theft or hijacking has been reported to the police should it feel this is not a genuine theft or hijacking;
5. Prior to conducting a test, Trac-King is notified to expect a test;
6. Client is responsible for arranging a backup battery replacement every 3 years;

10. Car Hire Disclaimer

1. The client has been made aware that hire vehicles run a high risk of vehicle theft due to the extended periods of time the vehicle can be hired, and subsequently the amount of time a vehicle thief has to find and disable a tracking device before the vehicle is due to be returned;
2. Recovery in these kinds of instances is not possible, and therefore Trac-King wishes to make known that they cannot be held liable for any failed recovery, especially in such instances;
3. The best way to combat this type of theft is by the Car Hire companies carrying out thorough due diligence of the party/person the vehicle is being rented to or restricting rentals to reputable and traceable entities;

11. Exclusion of Liability

Trac-King shall not be under any liability (including liability for negligence) for any loss or damage or injury to the client or any third party, or any loss of or damage to any vehicle in which a unit is fitted, arising out of the provision of the service or otherwise, whether direct, indirect, consequential or contingent and whether foreseeable or not, and in particular shall not be liable for financial loss or loss of profits, contracts, business, anticipated savings, use or goodwill, arising out of the provision of the services or the supply or functioning of a unit, or any alleged deficiency in that regard.

12. General

1. If Trac-King is directly or indirectly prevented or restricted from carrying out all or any of its obligations under this agreement by a cause beyond its control (including, without limitation, the failure by any person to provide a service to Trac-King or the failure of the Unit), then Trac-King shall be relieved of its obligations under this agreement during the period that such event continues, but only to the extent so prevented, and shall not be liable for any delay or failure in performance of its obligations hereunder. The existence of such an event shall not preclude the Client from terminating this agreement in accordance with the provisions herein;
2. This agreement sets out the entire agreement and understanding between the parties and supersedes all prior agreements, written or oral, in connection with the subject matter hereof;
3. No addition to variation or consensual cancellation of this agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties;
4. No indulgence which any of the parties ("the grantor") may grant to any other or others of them ("the grantees") shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights against the grantee(s) which might have arisen in the past or which might arise in the future;
5. Words indicating the singularly shall include the plural and vice versa, and words indicating one gender shall include the other genders; any reference to an actual person shall include a body corporate, firm or association and vice versa;
6. In this agreement, the headings to the clauses are included for reference purposes only and will not in any way affect or govern the interpretation or construction of this agreement;
7. Where appropriate in this agreement, meanings ascribed to defined works and expressions will impose substantive obligations on the parties;
8. When any number of days or other period is prescribed for the doing of any act or for any other purpose, same will be calculated exclusively of the first and inclusively of the last day;
9. In the interpretation of this agreement, the contra proferendum rule of construction will not apply (this agreement being the product of negotiations between the parties) and this agreement will not be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the reparation of this agreement;
10. Each party undertakes to do all such things, perform, take all such steps and procure the doing of all such things as may be necessary and requisite to give effect to the terms, conditions, obligations and import of this agreement read with its annexures;
11. If Trac-King instructs legal practitioners to take any action against the Client or the intermediary to enforce obligations under this agreement, the Client shall be liable for all costs incurred by Trac-King to Trac-King's legal practitioners, calculated on the legal practitioner and own client scale, together with collection commission on all amounts collected by the legal practitioners;
12. The nature and amount of any indebtedness of the Client to Trac-King shall at any time be determined and proved by a document purporting to have been signed by a director, manager or accountant for the time being of Trac-King, whose capacity or authority it shall not be necessary to prove, which certificate shall, upon the mere production thereof, be binding on the Client as prima facie proof of the contents of the document and of the fact that the amount stated therein is due and payable in any legal proceedings against the Client, and will be valid as a liquid document against the Client in any competent court;
13. If any provision of this agreement is rendered unlawful (retrospectively or otherwise), then only that unlawful provision shall be deemed to be modified to the extent, and in the manner, necessary to render it consistent with the enactment rendering it unlawful or, if such modification is impossible, be deemed to be severable from the remaining provisions hereof and pro non scripto. In either such event, notwithstanding anything to the contrary in this agreement, Trac-King and the Client respectively shall have all the rights conferred on the line by the law rendered such provision unlawful;
14. The Client may not cede or delegate the Client's rights or obligations in terms of this agreement without the prior written and recorded consent of Trac-King, which consent shall not unreasonably be withheld, and once Trac-King's procedures have been followed and completed. Trac-King may, at any time and without the consent of the Client, cede or delegate Trac-King's rights and/or obligations under this agreement;
15. The laws of the Territory shall govern this agreement, and all disputes, actions and other matters in connection with this agreement shall be determined in accordance with such laws;

13. Default

1. If the Client (or the intermediary on the Client's behalf) fails timeously to pay any amount due in terms of this agreement or (in Trac-King's reasonable opinion) the Client abuses or misuses the service, then, notwithstanding anything to the contrary in this agreement:
2. All amounts payable for the remaining term of this agreement will become immediately due and payable; or
3. Trac-King may, at its election, cancel this agreement forthwith or claim specific performance, without any prejudice to Trac-King's right to claim damages;
4. Default by the Client of any of the Client's obligations under this agreement will, for the duration of such default and at the option of Trac-King, suspend all of the obligations of Trac-King. Trac-King shall be entitled to charge the Client for costs reasonably incurred in collecting any amounts due in terms of this agreement including the services of a debt collector. If Trac-King provides the service while the Client is in default, then the Client is liable for (and hereby indemnifies Trac-King against) any costs thereby incurred. Trac-King may retain possession of any vehicle recovered by it until all payment obligations have been fulfilled;