General Terms & Conditions of HUNTER GLOBAL TRACKING Ltd.
1. These Terms & Conditions apply to all Solutions, services, online Services and products of HUNTER GLOBAL TRACKING Ltd, unless otherwise specified in writing.
Scope of Validity
The following terms and conditions (hereinafter Terms and Conditions) - in this English language version - are the legal basis for the relationship between any contracting party such as inter alia agent, representative, distributor and/or client (hereinafter called the ‘CP’) and HUNTER GLOBAL TRACKING Ltd, (hereinafter called ‘HGT’), 14 Avenue Industrielle, 1227 Carouge, Switzerland www.hunterglobaltracking.com). These terms and conditions are part of all transactions with any CP. Other terms and conditions, particularly purchasing conditions of buyers are not recognized by HGT. By ordering one of HGT’s offers with accompanying terms and conditions or by clicking/signing the “I confirm having read these General Terms and Conditions of Hunter Global Tracking Ltd and I accept.” (or, mutatis mutandis, the same formulation), the CP accepts that these terms and conditions become a part of the agreement. In addition to these general terms and conditions, Swiss substantive law applies.
HGT sells systems for tracking and telematics solutions. The purpose of HGT Services is to offer a complete solution of tracking needs including tracking devices, a platform and support. Hardware/software integration, collection, compilation, processing and utilisation of data, preparation of data and databases (e.g. multimedia content) for the Internet and other media (especially retrieval using mobile telecommunication devices), provision of computer programmes as well as online applications and telematics hardware for use by private and corporate customers, is supplied by a third party provider under contract with HGT. Data, databases, programmes, value-added services and telematics hardware are made available by HGT for purchase. To use HGT data, services and products here inafter called ‘Solutions’), the CP places an order with HGT to implement the provision and operation of its tracking system. The use of HGT’s Solutions is subject to the conditions stipulated hereunder. The use of all HGT Internet Solutions on the 3rd party platform domain is also subject to the following conditions. Data and Internet applications that are not offered by HGT shall be governed by the terms and conditions of their respective suppliers.
HGT may change these terms, order forms, tariffs, terms of reference, national guidelines and service requirements as well as service descriptions at any time by notifying the changes to the CP in writing. If the CP does not object in writing to any or all of the aforementioned changes within four weeks from receipt of the notification then the notified changes shall be deemed approved.
HGT operates its technical infrastructure 365 days a year, 24 hours a day, with a minimum availability of 97.5% on annual average. Disruptions for maintenance and technical problems that lie outside the sphere of influence of HGT (e.g. disruptions in the Internet service providers, mobile network operators etc.) are excluded.
HGT provides a support line available for CP customers in case of problems.
HGT will endeavour to limit service interruptions to a minimum when undertaking maintenance and other necessary technical modifications to its infrastructure. If maintenance works are, however, inevitable, HGT will inform the CP, where possible, with a lead-time of one week.
It is the company’s aim is to provide Solutions to the highest standards of accuracy and timeliness. HGT therefore uses advanced technologies, reliable partner companies, elaborate control systems and motivated employees. Due to multiple technical interdependence, HGT is not liable for any dysfunction of products and Solutions or the accuracy/timeliness of the data sets provided by third party providers (e.g. by other partners such as network operators) as well as for the fluctuation and variation within the data sets. Despite constant internal
checks and quality controls, HGT may not be able to guarantee accuracy, timeliness or scope of databases and other Services whenever third party companies are involved.
Obligations of the CP
When using any HGT tracking solution the CP may not track any person against their will or without their knowledge. Persons who are to be tracked (regardless of the tracking technology) by an HGT Solution must have declared their prior consent to the CP before the first location is retrieved. This also applies if a person used an object that is trackable and by this the person himself may become trackable (e.g. vehicle tracking). To avoid any doubt, the CP must be able to prove any person’s consent, on request by HGT. If the CP, as a company,
may want to track its employees then it is necessary to obtain the consent of the relevant staff bodies (e.g. employee councils).Tracking of people against their will is unlawful and punishable.
The CP agrees that tracking data of objects and persons on an anonymous basis (i.e. without any specific reference to persons or objects) that has been received and processed by HGT’s Solutions is owned by HGT with no intention of marketing to third parties.
If the CP markets HGT’s Solutions under the CP’s own name then the full commercial operation of those Solutions and content responsibility has to be carried exclusively by the CP. HGT only provides Solutions through information and telecommunications technology.
Independently of the Solutions used, the CP has a duty to cooperate and support HGT in order to enable setup and operation of the requested HGT system/Solutions. In particular, the CP is obliged to provide the required parameters to make its system work properly. Depending on the requested Solutions, an interface description, following HGT specifications, must be provided by the CP to HGT in advance.
The CP declares that by using HGT’s Solutions any laws and/or third-party rights (in particular copyright, trademark, patent, publicity or other proprietary rights of third parties) must not be infringed. The CP also undertakes not to publish any violent, pornographic, racist, discriminatory or in any other manner unlawful content. If the CP changes in any way the configuration or content of the Solution offered by HGT, then HGT is not responsible for any loss of functionality of the system/Solution. If the CP is not the end user, HGT has no contractual obligation regarding the functioning of the Solution other than its contractual obligations with the CP.
Information provided by the CP must be genuine, truthful and reliable. Targeted false information, especially banking information from third parties that had not given power of attorney to the CP is punishable by law and will be prosecuted.
"Netiquette" shall generally apply. This code of conduct for working with the Internet and governing behaviour online shall apply to all issues relating to Internet use. The CP shall agree to abide by "netiquette" as an integral part of the Agreement with HGT.
Should the CP become aware of such illegal information, he or she shall be obliged to inform HGT of this. HGT shall, as far as possible, investigate the matter and take any necessary measures.
The subletting of systems/Solutions or any services procured from HGT to third parties shall be permitted solely and exclusively following a corresponding agreement with HGT. In the event of violation of this provision, HGT shall reserve the right to terminate the relevant agreement without notice or to enforce corresponding claims for compensation. Furthermore, the CP needs to ensure that the use of HGT Solutions by third parties without written permission from HGT is excluded. CP passwords and user accounts which were provided by HGT must be kept confidential and with great care. The CP acknowledges that any use of his account(s) is correct after authentication by its user and access has been correctly attributed to the CP.
The CP shall be responsible for its own hardware and software components (including programmes and computer configuration). HGT cannot guarantee sound Internet access on all end terminals. In the event of malfunction resulting in action by the CP being necessary, if there is no possibility of rectifying the fault in any other way, the CP shall be obliged to have its system adapted at its own expense or to cease operations. Otherwise, HGT shall be unilaterally entitled to switch off the connection.
The CP shall be responsible for taking all necessary security precautions to ensure a secure flow of data. The CP shall be held liable by HGT for the use of its account and SIM card. Passwords and user IDs must not be communicated to third parties. However, if they are communicated by or at the request of the CP, the account holder shall be held liable for any potential consequences.
The CP must ensure that its use of the Internet and tracking Solutions is in accordance with the law applicable in the country or countries of use. This includes, in addition to criminal law, in particular data protection and personal rights, telecommunications legislation, copyright and related industrial property rights. National guidelines and/or legislation (per country) define the conditions under which tracking solutions operate particularly with regard to the consent of persons to be tracked. It is mandatory that the CP adhere to the corresponding
national legislation. The CP undertakes to immediately implement changes of such legislation that affect tracking procedures and/or individual consent for tracking. A change in the rules may require a change of practice, in particular a change of applicable laws/regulations or decisions of the relevant governmental authorities as well as a change of contracts between HGT and mobile network operators.
The use of the Internet and tracking solutions/products carries various data protection risks for the CP/user. HGT shall make every effort to ensure that the security systems in place are as effective as possible by taking economically reasonable, technically feasible and oroportionate measures. However, HGT cannot issue any guarantees against misuse. All participants shall be held personally responsible for taking measures to secure and shield their data and their network against infiltration and other attacks. In the event that HGT finds evidence of hacking (or similar) by a HGT product service user, it shall reserve the right to deactivate access to the service without advance notice.
Furthermore, the CP in question shall also be barred indefinitely from using all of HGT’s systems/Solutions. In addition, HGT shall reserve the right to initiate civil and/or criminal proceedings against the CP/user concerned, where applicable.
Following the announcement of changes in tracking-related legislation in any country where the system operates, the CP undertakes to immediately implement changes in its tracking Services based on HGT’s Services in order to fulfil all legal requirements in all countries where the Services are used or marketed by the CP.
Terms of Payment
Invoices issued by HGT for corporate customers are – unless otherwise confirmed in writing, net ex-factory and payable within 10 days after receipt, plus legally required value added tax (VAT), where appropriate. Invoices issued for private customers’ invoices are payable on receipt. All orders are payable in advance. However, payment conditions can be negotiated for large orders, at HGT’s discretion.
If it is subsequently ascertained that the CP concealed adverse conditions from HGT at time of the order that increase the probability that the CP may not fulfil its contract, HGT is entitled, without prior notice, to cancel the contract and demand immediate payment for Services already performed.
The CP may only make a counterclaim or withhold payments to HGT to the extent that this claim is undisputed by HGT and legally binding. Goods delivered by HGT to the CP remain the property of HGT until the CP has made full payment.
Contract, Termination of Online Services
The prerequisite for the use of HGT online Services is the proper user registration (“Registration”) in the service. The CP undertakes to provide the required information correctly and in full.
Registration data will be checked by HGT. False or fake registrations are not permitted. HGT reserves the right to refuse the registration of the CP without giving reasons. Following the acknowledgement of the registration, the CP receives a confirmation as well as a user access to data (“login”) by email.
In case of change of the CP’s personal data, the CP will immediately update its registered personal data in HGT’s online Services. HGT can only guarantee quality service based on correct and complete user registration.
The CP will ensure that the Solutions are only used by persons who are directly registered; non- registered persons are not entitled to use HGT’s Solutions. The CP is liable for any consequences of misuse if any person or third party improperly uses HGT’s online Solutions with the CP’s user login and password.
The CP understands that when purchasing a Solution from HGT, the CP has purchased two years’ worth of tracking platform use, agreed data usage and ownership of the tracking devices.
The CP undertakes to choose a password that can be changed at any time during the use of the Solutions. The CP is responsible for maintaining password confidentiality. The CP understands that HGT cannot be held responsible for any Solution failure in case of any change made by the CP to the content of the Solutions offered by HGT and not agreed to in advance, in writing.
Unless otherwise agreed, the minimum period of use for the Solutions [e.g. HGT tracking platform with SIM-card loaded tracking unit(s)] is 24 months. This initial use period is automatically extended for another 12 months, unless cancelled 3 months in writing before the end of the initial 2-year period.
For technical reasons, the CP must perform the termination of HGT’s Solutions. In the CP’s user profile, the CP needs to select “cancel service”. When executing the termination of user access, any existing positive account balance, as well as other asset credits in the service, are lost and are non-refundable. This is also applicable if a notice is not complied with – see §5.7. The cancellation will be confirmed by email. Upon termination, no deductions will be made. The bankissued debit authorization is immediately cancelled. If HGT manually performs
the termination of user access, an administration fee of at least € 20 per tracking unit has to be paid in advance to HGT.
An automatic restoration of user access for HGT Solutions, after termination, is not possible. However, manual restoration by HGT could be an option or the CP could request to register with a new user account at any time.
In case of suspected or proven abuse of the Solutions by the CP, or of interference in the Solutions by the CP or of a serious breach of contractual obligations by the CP, HGT reserves the right to terminate the contract.
Delivery Dates of Products
Delivery dates for products shall be deemed approximate delivery dates. Fixed dates are only accepted by HGT if they have been expressly confirmed in writing by HGT.
In case of a major delivery delay identified in writing by the CP, the CP is entitled to cancel the order after setting a reasonable grace period in writing. In any case, compensation claims are excluded
Warranty and Liability
In case of incomplete or incorrect delivery by HGT, or in case of faulty equipment, the CP is required to report to HGT no later than 14 days after delivery. If the CP is a commercial entity, any defective parts that may be discovered by reasonable inspection must be reported latest ten days after reception – or, in case of hidden defects, immediately after discovery. A delayed use of supplied products/ content does not invalidate the CP’s obligation of a reasonable examination of HGT supplies on receipt. It should be noted that as software can never be completely free of errors, Solution functionality and interoperability remains the responsibility of the user (the CP); furthermore interfacing with the user’s own software is not guaranteed unless formally agreed to at the time of the order.
Swiss consumer law governs HGT product warranty. Regarding justified and timely warranty complaints, HGT has the choice between repairing the product or providing a replacement. The CP is entitled to a price reduction if two repairs or respective replacements
fail and the products/Solutions are still flawed or the repair is not performed within a reasonable time. Other liabilities are not affected. In any case, compensation claims are excluded.
Compensation to the CP, for whatever legal reason, is excluded in cases of ordinary negligence, unless the intent is to violate key parts of the contract. In cases of a minor breach of contractual obligations, due to negligence, whose fulfilment is essential to achieve the purpose of the contract, HGT shall not be liable for personal injury, property damage or financial losses. The liability for consequential damages based on breach of contract is excluded, provided that neither intent nor gross negligence are present. In business transactions with companies, the aforementioned liability limitations also apply to cases of gross negligence.
HGT shall provide no guarantee of data integrity stored in or communicated via its system/Solution or the Internet. Any guarantee covering inadvertent disclosure of and damage to or deletion of data sent or received via its system/Solution or saved therein shall be excluded.
In particular, HGT shall accept no responsibility for losses suffered by the CP as a result of the misuse of the service (including viruses).
Any liability on the part of HGT for ensuring a specific technical or economic outcome, for indirect damage such as loss of earnings, for claims submitted by third parties, as well as for damage resulting from production downtime, loss of data and liability for ordinary negligence shall be expressly excluded, with reservations being made for further compulsory legal liability provisions.
In all cases, HGT shall reserve the right to submit claims for compensation against users responsible for committing offences (in particular data breaches, data misuse and so-called hacking attacks) involving the Company's network or infrastructure. This shall also apply to noncompliance with aforementioned ‘netiquette’.
Scope of Tracking Services
Location-based or tracking online Services by HGT are designed to track objects and people. For the latter, the person’s consent is required. HGT explicitly mentions here that tracking of persons without their knowledge or against their will constitutes a serious violation of the law. The CP will bear full legal responsibility in case of infraction.
Certain value-added features of the Solutions not included in the initial package offer (such as additional SMS, MMS, satellite communications) will be billed to the CP monthly on an actual use basis.
HGT is not required to maintain online Services on a permanent basis. However, the CP is entitled to immediate termination of the contract in case HGT permanently suspends its Services. A technically induced interruption of the latter is not to be regarded as a permanent suspension of Services. In the case of a permanent interruption HGT will notify the CP by email, SMS or website.
Invoicing of Services
Unless agreed in writing, the cost and scope of Services shall be governed by the publication of a currently valid price list by HGT. HGT reserves the right to change prices and/or performance criteria on the following basis: a new price list is announced by email to the CP at least one month prior to its expiry date. An official new price list replaces all existing older price lists. In the event of a price increase, the CP has the right to terminate its contract with HGT on the date when the new price list enters into force. However, by continuing to use HGT’s Services, the CP accepts the changed conditions.
HGT cannot change the price of any agreed Solution that has been fully paid for.
Costs of any communication between HGT and the CP relating to the latter’s products/Solutions via SMS (e.g. to enable or disable the transmission of contacts, manual localization, device configuration etc.) as well as each cell-ID tracking operation on behalf of CP, are to be borne by the CP.
Unless agreed otherwise in writing, invoices for additional services are sent either monthly or for the paid performance period as an online invoice (Web) or PDF (by email). Invoices are sent as PDF by mail to a confirmed contact designated by the CP. If no error message is received by HGT regarding the receipt of the said email and invoice by the agreed contact, the CP waives any objection that the invoice has not been received.
The CP has the right to dispute the charges billed within one month from the date of the invoice. HGT invoices specifically mention this right. In case the CP does not make use of its right to challenge the invoice within the period specified, the invoice shall be deemed approved.
The implementation of HGT Solutions requires the processing of personal data. The CP agrees to the collection, processing and utilization of personal data incurred by these Solutions to implement the system. The CP agrees that personal data will be stored and processed electronically by HGT. HGT isentitled to provide personal data to third parties, as long as this is strictly necessary for the provision of Solutions to the CP.
The CP is entitled, at any time and free of charge, to send a written request to HGT in order to ascertain the nature of any CP-related personal data that has been stored by HGT. Information shall be provided electronically by HGT.
All Solutions proposed by HGT and its 3rd party supplier are covered by copyright protection in accordance with the Swiss Federal Copyright Act of 1992. Any infringement will be prosecuted.
Reproductions of HGT Solutions are only permitted with explicit written consent from HGT.
Shipping: Business-relevant and Solution-related Information via Email
By providing an email address, the CP agrees that any relevant information for the business relationship as well as any solution-oriented information may be sent by email. This includes information on new products and services that are relevant business information.
The CP’s email address will not given by HGT to third parties for advertising purposes.
Upon termination of the business relationship, the email address is no longer used by HGT for the information described in point 12.1. For information on products and services the email address may be used by HGT until the CP formally unsubscribes or requests that such information be no longer sent by HGT, via simple email to the email address email@example.com. Amendments to the General Terms &
Conditions and Partial Nullity.
The relevant legally binding version of these General Terms Conditions shall be published on the Internet on HGT’s webpage. It shall be the responsibility of the CP to inform itself of the respective current General Terms & Conditions. These General Terms & Conditions shall be deemed to have been accepted upon the entry into force of the amendments. HGT shall reserve the right to adjust its prices, services, products and Solutions, as well its General Terms and Conditions at any time.
Should one or more provisions of these General Terms and Conditions prove to be null and void or invalid, this shall not affect the remaining provisions. These shall remain unchanged and retain their validity. The null and void provision(s) is (are) to be replaced, as far as possible, by provisions which are legally valid and of equal economic value.
In the event of contradictions between the different language versions of the General Terms and Conditions, where appropriate, the English version shall be authoritative.
Applicable law and Jurisdiction
These provisions shall be governed exclusively by Swiss substantive law, to the exclusion of the Vienna Convention (UN Convention on Contracts for the International Sale of Goods). In the case of any dispute arising directly or indirectly from these Terms & Conditions, the place of jurisdiction shall be the location of the Company's registered offices: Geneva (GE), Switzerland. Valid with effect from 1 September 2014.