1. Definitions
1.1 “Agreement” - The agreement concluded between the Client and ACM Track in respect of the Product and/or Service outlined in the Subscriber Application Form and any additions to such Subscriber Application Form, which agreement will be exclusively governed by these terms and conditions and the specific terms and features applicable to the relevant Product or Service (as contained in ACM Track’s Product brochures), read together with the Subscriber Application Form and any appendices attached.
1.2 “Business Day” - Any day other than a Saturday, Sunday or official public holiday in South Africa.
1.3 “ACM Track” shall mean ACM Technology CC
1.4 “ACM Track” – ACM Track (Pty) Ltd and any entities appointed by ACMTrack to perform the Service shall include references to the employees, agents, sub-contractors, service providers, suppliers and any independent contractors of ACM Track or such appointed entities.
1.5 “Client” – The Party whose details appear on the Subscriber ApplicationForm and who has signed after being requested to read these terms and conditions which will govern the relationship between the Parties.
1.6 “Confidential Information”- Information that is identified (orally or in writing) as confidential or of such a nature that a reasonable person would understand such information to be confidential.
1.7 “Cooling-Off” – This means the right of the Client to rescind the Agreement if it originated from Direct Marketing as referred to in clause 3.6.
1.8 “Control Centre” shall mean the center where signals from the ACM Track tracking unit will be monitored and acted upon
1.9 “Day; Week; Month” – Calendar Day, week or month, respectively.
1.10 “Direct Marketing” – means where the Client has been approached by ACM Track in an unsolicited manner as defined in the Consumer Protection Act No 68 of 2008.
1.11 “Fee” – The collective fees for providing the Service, either as minimum term option or as a standard Option specified on the Subscriber Application Form and payable monthly in advance by the Client to ACM Track, together with any other bank or administrative charges incurred by ACM Track under this Agreement.
1.12 “Installation Centre” – A centre approved by ACM Track for the installation of a fixed Unit.
1.13 “Intermediary” – A third party nominated by the Client.
1.14 “Loss” - The hijacking and/or theft of a Vehicle, in which event the Client is responsible to immediately notify ACM Track if the Client has a Unit with SVR.
1.15 “Signature date” shall mean the date of the last signature of this agreement by the Subscriber and the Service Provider
1.16 “Product” – Each Unit and/or the value-added services selected by the Client on the Subscriber Application Form and any Additional Products selected and/or added from time-time.
1.17 “The Parties/Party” – ACM Track and the Client; either ACM Track or the Client.
1.18 “Price Table” – An indicative price list, available to the Client on request, setting out the ruling retail price for the Service, the Minimum term option amounts, the Products and ancillary charges which may be updated from time to time.
1.19 “Purchase Price” – The amount specified as the “Price” on the Subscriber Application Form.
1.20 “Roaming Costs” – Any GSM costs incurred when the Unit transmits messages via a GSM network when located outside the Territory.
1.21 “Service” – Means the provision by ACM Track to the Client of Fleet Management Services (“FMS”) and/or Stolen Vehicle Recovery Services (SVR), dependent on the Product selected by the Client on the Subscriber Application Form.
1.21.1 “FMS” - This means the provision by ACM Track to the Client of a real-time web-based system whereby the Client is able to position, monitor and obtain reports covering various aspects of driver and vehicle performance. This Service only applies where a GPS fleet management Unit is installed and is limited to the Territory, except if the Product specifically incorporates international data roaming, in which case the roaming data service will be provided in specified countries.
1.21.2 “SVR” - Means the provision of a Service by ACM Track to the Client whereby ACM Track conducts the tracking and recovery operations in accordance with ACM Track’s standard procedures to secure the Vehicle after receiving notification of a Loss by the Client. This Service is only applicable in the Territory and in countries where ACM Track has an operational branch.
1.22 “Subscriber Application Form” – The face of this Agreement and any appendices attached.
1.23 “Term” – Where the Client has selected the standard purchase option, from and including the date of each Product installation to 00:00 on the last day of the month; where the Client has selected the minimum term option, from and including the date of each Product installation to 00:00 on the last day of the Minimum term option period stipulated in the Subscriber Application Form, which minimum term option period shall be deemed to be 36 (thirty-six) months from installation.
1.24 “Territory” – The Republic of South Africa.
1.25 “Unit” – The electronic device and ancillary equipment to be installed in a Vehicle at an Installation Centre or the mobile asset tracking device, by an authorised ACM Track representative in order for ACM Track to provide the Service.
1.26 “Vehicle” – Any Vehicle or other asset of the Client which is the subject of this Agreement and in which a Unit is installed, the details of which appear either on the Subscriber Application Form, add vehicle form or on any appendix attached.
2. Appointment
2.1 The Subscriber hereby appoints ACM Track to provide a Service to the Subscriber and to do so, upon the terms and conditions set forth in this agreement.
3. The Service
3.1 An authorised ACM Track representative at an ACM Track Installation Centre or mobile installation unit shall install the Unit into the Client’s Vehicle/s.
3.2 Where the Client has selected a Unit with SVR, with or without FMS, the following shall apply:
3.2.1 ACM Track will respond to each notification of a Loss and do all that it reasonably can to recover the Vehicle. The Client authorises ACM Track to recover the Vehicle for the Client and, if necessary, after recovery, to remove the Vehicle from a dangerous location. If ACM Track is under obligation, after securing the Vehicle, to deliver it to a relevant authority, ACM Track shall do so. If the Client requires a cross-border recovery, the Client will be responsible for the repatriation of the Vehicle and the cost thereof;
3.2.2 ACM Track does not guarantee that the SVR will lead to a recovery. The Client acknowledges that the SVR is intended to reduce the risk of Loss, but will not eliminate such risk;
3.2.3 The Client shall, immediately or as soon as is practically possible, notify ACM Track of any recovery request unintentionally generated (“false alarm”). The Client will be responsible for any false alarm and understands that such false alarm may lead to the relevant authorities or ACM Track responding thereto and making wrongful arrests. Accordingly, the Client shall be responsible for repaying all costs and any expense incurred by ACM Track, and hereby indemnifies ACM Track against all claims or damages arising out of a false alarm.
3.3 Where the Client has selected a Unit with FMS, with or without SVR, the following shall apply:
3.3.1 The FMS features provided by ACM Track to the Client are dependent on and limited to the Product selected by the Client and as indicated on the Subscriber Application Form and in the Product brochures;
3.3.2 Secure 24-hour (twenty-four-hour) access to the web-based monitoring and reporting system shall be provided to the Client on the creation of a username and password;
3.3.3 User support shall be provided by telephone or email support desk.
3.3.4 ACM Track provides its Clients with a free, 24-hour (twenty-four-hour) Unit testing service. However, the responsibility is on the Subscriber to contact the ACM Track control centre for a Unit test to be carried out. The Subscriber must take all reasonable steps to ensure that the Unit is in proper working order and must immediately or as soon as is practically possible report any Unit faults and/or failures to ACM Track in order for ACM Track to provide the service.
3.4 The Client accepts responsibility for making all reasonable enquiries as to the suitability for the purpose of the Unit, the main features of which are disclosed in Product brochures which are available to the Client on request.
3.5 The ACM Track Service cannot be invoked or rendered unless an ACM Track unit is properly installed in the vehicle by an approved ACM Track fitment center and such unit is programmed, enabled and functioning to this manufacturer’s specification. Only approved ACM Track units may be used for purposes of this agreement. This agreement does not provide for the supply, installation, programming (encoding) and enabling of the ACM Track unit.
3.6 The client will be responsible to use the unit and the service in the manner advised by ACM Track. The client shall not in any way remove, alter or tamper with the Unit.
3.7 Subject to clause 5.5, the unit and installation thereof carries a 12 (twelve) month warranty any maintenance and/or repairs must be carried out by an approved fitment center.
3.8 Notwithstanding the aforesaid, any maintenance and/or repair required in terms of this warranty shall be carried out at one of the Service Provider’s approved fitment centers or mobile installation team.
3.9 The Subscriber accepts responsibility for the consequences of any unintentional activation of the ACM Track system, it being agreed that such consequences may include the police or response teams responding pursuant to any such activation and making wrongful arrests.
3.10 The Subscriber is responsible for testing the unit within 7 days after an accident or vehicle structural modification.
4. Terms and Conditions
4.1 This Agreement shall continue for the Term.
4.2 The Client (if the Client is a natural person) may cancel this Agreement in writing or other recorded manner:
4.2.1 upon the expiry of the Term without penalty or charge, subject to the Client remaining liable to ACM Track for any amounts owed in terms of the Agreement up to the date of cancellation; or
4.2.2 at any other time, by giving ACM Track notice of 20 (twenty) Business Days, subject to the Client remaining liable to ACM Track for any amounts owed in terms of the Agreement up to the date of cancellation and subject to clause 4.4.
4.3 The Client (if the Client is a juristic person) may cancel this Agreement in writing or other recorded manner:
4.3.1 by giving ACM Track notice of 1 (one) month upon expiry of the Term, subject to the Client remaining liable to ACM Track for any amounts owed
4.3.1 by giving ACM Track notice of 1 (one) month upon expiry of the Term, subject to the Client remaining liable to ACM Track for any amounts owed in terms of the Agreement up to the date of cancellation or
4.3.2 at any other time, by giving ACM Track notice of 1 (one) month, subject to the Client remaining liable to ACM Track for any amounts owed in terms of the Agreement up to the date of cancellation and subject to clause 4.4
4.4 ACM Track will impose a reasonable cancellation fee, should the cancellation be before the end of the Term. In this regard, if the Client is a Consumer, as defined by Section 1 of the Consumer Protection Act No 68 of 2008, then the cancellation fee shall be determined by taking into account the cost incurred by ACM Track in the acquisition of the Client, which cost may vary from time to time. Should the Client not fall within the definition of a Consumer, then the cancellation fee shall be equal to the value of the remainder of the Client’s contract.
4.5 ACM Track may cancel this Agreement 20 (twenty) Business Days after giving written notice to the Client of a material failure (i.e. non-payment or failure to comply with the obligations in terms of this Agreement) by the Client, unless the Client has rectified the failure within that time.
4.6 Should the Client have concluded the Agreement with ACM Track as a result of Direct Marketing, the Client has the right to enforce its Cooling-Off rights in accordance with the Consumer Protection Act 68 of 2008. In terms thereof, the Client may be entitled to cancel the Agreement within 5 (five) Business Days after the Agreement has been concluded, by written notice to ACM Track. Should the Client exercise his/her Cooling-Off rights, then any payment that has been made to ACM Track in respect of such agreement will be repaid as follows:
4.6.1 Within 15 (fifteen) Business Days if no installation has been completed; or
4.6.2 Within 15 (fifteen) Business Days after the return of the Unit to ACM Track if installation has already taken place.
4.7 In the event that the Client finds the Unit defective or not of the standard described, the Client shall return the Vehicle to ACM Track within 10 (ten) Business Days of fitment, at ACM Track’s risk and expense, for ACM Track to inspect the Unit installed in the Vehicle. Should the Unit be found to be defective, ACM Track shall, at its discretion, replace the Unit or cancel the Agreement.
5. Renewal
5.1 ACM Track will, not more than 80 (eighty) days and not less than 40 (forty) days before the expiry of the Minimum term option, notify the Client in writing or any other recordable form of the impending expiry date, including the notice of:
5.1.1 Any material changes that will apply if the Agreement is to be renewed or which may apply beyond the expiry of the Term; and
5.1.2 Any options available to the Client in terms of clause
5.2 On the expiry, it will automatically be continued on a month-to-month basis, subject to the notice periods in clause 4 and any material changes of which ACM Track has given notice (in terms of clause 5.1.1) unless the Client:
5.2.1 Requests ACM Track to terminate the Agreement on the expiry date of the Term in terms of clause 4; or
5.2.2 Agrees to a renewal of the Agreement for a further period.
6. Fees
6.1 The Price Table, as contained in the Product brochures and updated from time to time, will be made available to the Client upon the Client’s request.
6.2 The Client shall pay ACM Track the Fee for the Service as set out in the Subscriber Application Form as revised from time to time as per this clause 6, monthly in advance by debit order on the Client’s bank account.
6.3 ACM Track reserves the right to debit on the Client’s salary date and/or their preferred debit date, as provided by the Client. In the event that either payment date does not fall on a Business Day, the Client hereby agrees that ACM Track may debit the Client’s bank account on the preceding Business Day.
6.4 In the event that the Client’s debit order is returned for any reason whatsoever, ACM Track reserves the right to change the date on which debit orders are processed.
6.5 The Client shall pay ACM Track for additional ad-hoc Services such as Roaming Costs within 30 (thirty) days of receipt of an invoice from ACM Track. The Client agrees such costs reflected on an invoice received from ACM Track shall be considered a true reflection of the costs incurred by the Client and the Client shall not withhold payment for any reason whatsoever.
6.6 The first Fee and the Purchase Price, if applicable, shall be paid upon installation of the Unit.
6.7 ACM Track will increase the Fee by 10% each year for years 2 (two) and 3 (three) of the Term, thereafter, increases shall be at ACM Track’s discretion and based on the prevailing Consumer Price Index.
6.8 ACM Track shall provide the Client with written notice of not more than 80 (eighty) days nor less than 40 (forty) days before each annual Fee increase stating the increased amount and the effective date.
6.9 The Client agrees that the proportion of the Fee which relates to foreign currency input costs, may be subject to change at ACM Track’s discretion, based on the foreign exchange rate at any given time and/or any price changes effected by third-party service providers. Accordingly, ACM Track shall provide the Client with 30 (thirty) days' written notice of any such changes in the Fee.
6.10 All amounts outstanding in terms of this Agreement shall bear interest from the due date until payment at the maximum rate permitted by law.
6.11 Where the Fee, by direct or indirect agreement between the Client and the Intermediary, is to be paid to ACM Track by the Intermediary and the Intermediary fails to pay any Fee, the Client will be responsible for paying such Fee and, for the remainder of the Term, to pay by debit order in terms of clause 5.2 any outstanding Fee due and any future Fee due in terms of this Agreement.
7. Hardware and Warranty
7.1 The Client will be responsible for using the unit and the service in the manner intended and advised by ACM Track. The Client shall not, in any way remove, alter or tamper with the Unit.
7.2 Subject to the Client complying with clause 7.1, the Unit and the installation thereof carries a 12 (twelve) month warranty. Any maintenance and/ or repairs must be carried out at an Installation Centre by an authorised technician.
7.3 All risk of loss and damage in and to the Unit shall, from the date of installation, pass to the Client, but ownership of the Unit shall remain with ACM Track. If this Agreement is terminated in accordance with clause 3 or clause 9, ACM Track may at its expense remove the Unit and the Client shall, within 5 (five) days of receipt of any written or verbal request, deliver the Vehicle to an Installation Centre for such removal.
8. Furnishing of Information
8.1 The Client confirms the completeness and accuracy of all the information on the Subscriber Application Form or otherwise furnished by or on behalf of the Client to ACM Track.
8.2 The Client shall immediately, or as soon as practically possible notify ACM Track in writing of any amendments to the information on the subscriber Application Form, any material changes relating to the Vehicle, including, inter alia, insurance details, or other information furnished to ACM Track from time to time, by written notice to accounts@acmtrack.com or by calling 010 594 0607. The information will be updated within 7 (seven) days of receipt by ACM Track.
8.3 The Client has selected the address referred to on the Subscriber Application Form as its selected legal address where all communications from ACM Track and any legally required notices will be delivered for all purposes arising out of this Agreement provided that the Client shall be entitled to change such legal service address, by written notice to accounts@acmtrack.com or by calling 010 594 0607. The information will be updated within 7 (seven) days of receipt by ACM Track.
9. Client’s General Obligation and Responsibility
9.1 It is the responsibility of the Client to contact the ACM Track control centre for a Unit to be tested. The Client must take all reasonable steps to ensure that the Unit is in proper working order and must immediately or as soon as is practically possible report any Unit faults and/or failures to ACM Track in order for ACM Track to provide the Service.
9.2 The Client must ensure that the ACM Track emergency numbers 010 5940607 are kept handy and contact ACM Track as soon as possible after a Loss.
9.3 The Client holds exclusive responsibility, and ACM Track shall have no liability, for ensuring that the Service complies with all laws regarding the intended use by the Client of the Service herein.
9.4 It is the client’s responsibility to;
9.4.1 Report the Loss to ACM Track within 6 (six) hours of the Loss;
9.4.2 Report the Loss to the relevant law enforcement agency promptly and provide ACM Track with the case reference number and details of the enforcement agency where the theft was reported; and
9.4.3 Contact ACM Track every calendar quarter to test the Unit, notwithstanding any system-generated or courtesy testing undertaken by ACM Track. If notified by ACM Track that the Unit is faulty, the Client must make the Vehicle available for inspection within 3 (three) working days; and
9.4.4 Keep the Client’s emergency contact details up to date and ensure there are sufficient emergency contact persons so that at least one contact is available to receive a call from the control room in the event of a Loss.
10. Default
10.1 If the Client (or the Intermediary on the Client’s behalf), after 7 (seven) days written notice of default, fails to pay any amount due in terms of this Agreement or the Client abuses or misuses the Service, then, for the duration of such default, ACM Track may suspend all its obligations in terms of this Agreement. ACM Track shall be entitled to recover arrear fees by debiting the Client’s account with the outstanding balance or by any other legal action, and cancel the Agreement, charging a reasonable penalty fee for early cancellation.
10.2 ACM Track reserves the right to cancel this agreement at any time, on 10(ten) days’ written notice to the Client.
11. Disclaimers
11.1 ACM Track makes no warranty that the Service will capture all events, that remote access and the GSM network will be continuous or uninterrupted, that the fleet management web-based system will be error-free, or that any specific result or outcome will be achieved by utilising the Service, or that the use of the Service by the Client will comply with all applicable laws.
12. Warranties and Representations
12.1 The Client represents and warrants that:
12.1.1 It has the necessary right and authority to enter into this Agreement, is the lawful owner and/or possessor of the Vehicle, and is therefore permitted to allow ACM Track to provide the Service herein;
12.1.2 In making such disclosure, the Client hereby indemnifies ACM Track from any claim whatsoever which may arise from any third party/ies against ACM Track in the event that the Client has misrepresented its right and authority.
13. Exclusion of Liability
13.1 In addition to any other indemnities contained in this Agreement, ACM Track will not be liable for any loss or damage of whatsoever nature caused to the Client in consequence of any act or omission by ACM Track, notwithstanding any negligence on the part of ACM Track, provided only that ACM Track is entitled in law to contract out of such liability. In the event that ACM Track is, despite the provisions of this clause, found by a court of law with competent jurisdiction to be liable for any loss or damage to the Client, ACM Track’s liability will be limited to the maximum amount of R10 000 (ten thousand Rand).
13.2 ACM Track/Service Provider will not be liable for any delay in rendering any of the services pursuant to this agreement or any failure to render such service due to the negligence of the Subscriber.
13.3 It is expressly agreed that the services rendered, equipment sold and/or installed and/or maintained are for the purpose of minimizing the risk of loss, damage, personal attack, injury or any other applicable cause of loss and not of eliminating such risk.
14. General
14.1 ACM Track will make every reasonable effort to carry out its obligations under this Agreement, using commercially reasonable efforts conforming to generally accepted industry standards. Where ACM Track 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, then ACM Track cannot be held responsible for delay or failure in performance in meeting its obligations.
14.2 By entering into this agreement, the client consents to ACM Track processing its personal information, usage data, vehicle positioning, driver behaviour, de-identified data and any other such data sent from the Unit installed in the client’s Vehicle.
14.3 In the event that the Client’s Vehicle is fitted with any data transmitting device which is streaming data, the Client, as the owner of the data, hereby appoints ACM Track as its duly authorised agent to instruct the relevant service provider to also stream the data in real-time to the ACM Track platform.
14.4 For the duration of this Agreement and at all times after its termination, each Party and its employees and agents agree not to disclose any Confidential Information obtained from the other Party to any other person or entity.
14.5 Any other services or value-added products included in the Client’s package are subject to these terms and conditions, as read together with the terms and conditions of the applicable product. It is the responsibility of the Client to ensure that they familiarise themselves with the relevant terms and conditions from time to time.
14.6 The Client may not alter the terms of this Agreement without the written consent of ACM Track. ACM Track reserves the right to amend these Terms and Conditions from time to time. Any amended version of the Terms and Conditions will be displayed on the ACM Track website (clientzone.acmtrack.com) together with the date on which it will become effective, which will never be less than 30 (thirty) days after the date on which it is first published. It is the Client’s obligation to visit the ACM Track website on a regular basis in order to determine whether any amendments have been made and the effective date thereof.
14.7 Where any number of days or other period is given in this Agreement for the carrying out of the Service or obligations, the days will be calculated excluding the first day and including the last day.
14.8 In the event of ACM Track proceeding with legal action against the Client or the Intermediary for breach of payment under this Agreement, the Client shall be responsible for all costs (on a client and own attorney scale) allowable by the courts if an award is made in ACM Track’s favour.
14.9 The nature and amount of any indebtedness of the Client to ACM Track at any time shall be determined and proved by a document signed by a manager of ACM Track, whose capacity or authority it shall not be necessary to prove. Such certificate shall, upon the mere production thereof, be binding on the Client as prima facie proof that the amount stated therein is due and payable and will prima facie be valid as a liquid document against the Client in any competent court. If the Client wishes to dispute such certificate or the effects thereof, the burden of proof rests on the Client. Neither Party may cede or delegate the rights or obligations in terms of this Agreement without the prior written consent of the other Party, which consent shall not unreasonably be withheld.
14.10 ACM Track will attempt to resolve any dispute quickly and efficiently. The Client may direct any complaint to the Consumer Commission. Should the Client not be satisfied with the complaint resolution, the Client may act in a competent court.
14.11 The laws of the Republic of South Africa will apply to this Agreement and the relevant courts of the Republic of South Africa will have exclusive jurisdiction in relation to the Agreement.
14.12 The Client undertakes to provide ACM Track with a 30 (thirty) day written notice in the event that the Client no longer wishes to receive correspondence regarding new Products and value-added services.
15. DOMICILIUM / AND NOTICES
15.1 The parties hereby choose as their domicilium citandi et executandi for purposes of and in connection with this agreement their respective physical address as set forth in the subscriber form.
15.2 Either party shall be entitled to change its domicile from time to time, and any such changes shall only be effective upon receipt of notice in writing by the other party of such change.
15.3 All notices, demands, communications or payments intended for either part shall be made or given at the relevant party’s domicile for the time being.
15.4 A notice sent by either party to the other shall be deemed to be received by the other party on the same day if delivered by hand or sent by email on the 5th (fifth) day after posting if sent by registered mail.
15.5 Notwithstanding anything to the contrary herein contained a written notice
or communication received by any party shall be an adequate written notice
or communication to it notwithstanding that it was not sent to or delivered
at the parties chosen domicilium citandi et executandi.
16. FORCE MAJEURE
16.1 Neither party shall be in breach of this agreement, where the inability to comply with any obligation is caused by Force Majeure. Force Majeure shall include, but is not limited to; war, riots, civil commotion, natural physical disaster, strike or industrial action by either Party’s employees, any action by government or public authority, and circumstances wholly beyond the control of the parties.
16.2 Notice of an occurrence of Force Majeure shall be given to the other party as soon as possible and shall include details of the event, and the likely effect it may have on either party’s obligations in terms of this Agreement.
16.3 Should either party be prevented from carrying out its contractual obligations for a continuous period of 30 (thirty) days as the result of the occurrence of Force Majeure, this Agreement may, at the other Party’s instance, be terminated on the expiry of the 30 (thirty) day period.
Revision date: November 2022