Terms and Conditions

February 2015

These Terms and Conditions (“Terms”) govern the Panache Telematics division of Vardhaman Technology Private Limited. Customer Order Form (the “Agreement”) between PANACHE TELEMATICS and the Customer named in the Agreement (“Customer”) both collectively be referred to as “the Agreement”. The Term "Software" also includes web services provided by PANACHE TELEMATICS with secure login ID and password. The Term "Return of Device" is only applicable under "Rental Scheme" and not under "Sale of Device".

  1. DEFINITIONS
    The following definitions shall be used throughout these Terms:
    1. Account means the bank account on which the Customer’s first payment was drawn or another account as advised by the Customer to PANACHE TELEMATICS in writing as provided for in Paragraph 16.2.
    2. Alert means the service whereby alerts are directly sent to a Customer’s designated mobile phone or email if included in the Plan.
    3. Associated Components means those components used in conjunction with the VMU such as power cable, interconnecting cables with sensors and switches, touch screens, batteries, casings, and other non-electrical components.
    4. Business Hours means Monday to Friday, 9:30 a.m. to 6:00 p.m., at the relevant location, excluding Indian public holidays.
    5. Coverage Area means the India except J and K and restricted Government/Military areas.
    6. GPRS means General Packet Radio Services.
    7. GPS means Global Positioning System.
    8. GSM means the global system for mobile communications (either 2nd generation “2G” or 3rd generation “3G”).
    9. IPR means any patents, trademarks, service marks, design rights (whether registerable or otherwise), applications for any of the foregoing, copyright, database rights, trade or business names and other similar rights or obligations whether registerable or not in any country.
    10. License means the license to use the VMU and the Software granted by PANACHE TELEMATICS to the Customer as set out in Paragraphs 4.1 and 1.7.2 herein.
    11. Lifetime means for as long as the Customer (or its assignee under the provisions herein) is paying for Services or Three years whichever is earlier.
    12. Map Engine means mapping software licensed to PANACHE TELEMATICS.
    13. Map Suppliers means the suppliers of the Map Engine and Mapbase which together enable the Software to process location data and represent the locations of VMU on computers and / or in-vehicle displays.
    14. OEM means Original Equipment Manufacturer (vehicles).
    15. Plan means the Services and prices selected and agreed by the Customer and detailed in the Agreement.
    16. Services means the provision of VMUs, location and data communication services, the Software as well as any ancillary support or maintenance services provided by PANACHE TELEMATICS to the Customer.
    17. Delivery Date means the date PANACHE TELEMATICS ships/delivers a VMU to the Customer.
    18. SIM card means the Subscriber Identity Module inserted into a VMU to enable communications.
    19. Installation Site means the location specified by the Customer and agreed by PANACHE TELEMATICS for installation of the VMU and listed in the Agreement.
    20. Software means PANACHE TELEMATICS and/or Reporter software applications as detailed on the Website, the software installed on VMU and all third party licensed software used by PANACHE TELEMATICS including the Mapbase and Map Engines and Updates in addition to the look and feel of web applications forming part of the Software.
    21. Telecommunication Carrier(s) or TC(s) means PANACHE TELEMATICS ’s or Customer's 3rd party communication providers.
    22. Telematics Device(s) or VMU(s)” means the mobile tracking and communications device(s) detailed in the Agreement and Associated Components and installed software provided by PANACHE TELEMATICS or a 3rd party to the Customer for installation on Vehicles or trailers to enable the provision of Services.
    23. Term means for the number of years or months as detailed in the Agreement commencing from the activation of Services, in addition to theperiod from the Shipping Date to the activation of Services (if any) ) and any renewal periods thereafter.
    24. Updates means updates to Software, such as bug fixes, patches, enhanced functions, missing plug-ins or new versions.
    25. Vehicle means a vehicle or trailer owned or controlled by the Customer and designated in the Agreement (or otherwise agreed by the parties in writing) for installation with a VMU.
    26. Website means the PANACHE TELEMATICS website at http://www.panachetelematics.com and all other associated websites

  2. ACCEPTANCE
    1. The provision by PANACHE TELEMATICS to the Customer of Services shall be subject to these Terms. The signing of the Agreement by the Customer and/or use of Services having had the opportunity to read these Terms shall be deemed conclusive evidence of the Customer’s acceptance of the Terms of the Agreement. Customer authorizes PANACHE TELEMATICS to insert any missing information into the Agreement and to correct any misspelling or other such minor errors.
    2. The technology related to the Services and the Software is constantly changing and being developed. As a result of this, PANACHE TELEMATICS reserves the right to make reasonable changes to the terms of the Agreement at any time during the Term, but will only do so when it has good reason. In the case of a change PANACHE TELEMATICS will publish the updated terms at http://www.panachetelematics.com/terms and services. The updated terms will apply from the date and will be published on the Website. The Customer should visit the Website regularly to identify any changes.

  3. DELIVERY, SHIPPING AND HANDLING.
    1. Unless otherwise stated in the Agreement PANACHE TELEMATICS is not responsible for all shipping and handling charges.
    2. Shipping or delivery dates of VMU are best estimates only. PANACHE TELEMATICS reserves the right to make deliveries of VMU in installments. Delivery delay or default of any installment shall not relieve the Customer of its obligation to pay for Services provided by PANACHE TELEMATICS or accept remaining deliveries of VMU.

  4. LICENSE, RISK OF LOSS, TITLE AND SECURITY INTEREST
    1. PANACHE TELEMATICS grants the Customer a limited, non-transferable license to use VMU provided to it by PANACHE TELEMATICS.
    2. The Customer is responsible for the risk of any loss, fire, damage, and theft of VMU after delivery to the Customer.
    3. The Customer hereby acknowledges that any IPR relating to the VMU shall remain PANACHE TELEMATICS’s exclusive property.
    4. VMU may only be removed from a Vehicle upon receipt of written permission by PANACHE TELEMATICS. The Customer may not abandon, sublicense, assign, rent, lease or otherwise transfer or market a VMU.
    5. PANACHE TELEMATICS may reasonably inspect VMU during the Term.
    6. In case of Rental Agreement at the end of the Term, Customer must contact PANACHE TELEMATICS to receive a return location for VMU. Customer then must, at Customer's expense, uninstall the package, insure and return VMU to that address within 05 days at the end of the Term, in as a good condition as when the Customer had received VMU, except only reasonable wear and tear. At the end of the Term, if Customer has not returned VMU, the Agreement automatically renews for successive one year periods with the same Terms as set forth in the Agreement. In case of VMU procured by Customer under direct Sale or under SBI(EMI) scheme at the end of the Term Customer has to inform Panache Telematics in writing by mail or E-mail his intentions to stop the services or else it is deemed to be consider as customer is willing to continue the services and PANACHE TELEMATICS will continue web access services and raise invoice for the same. Customer is bound to pay such invoices raised by PANACHE TELEMATICS.

  5. INSTALLATION OF VMU AND WARRANTY
    1. PANACHE TELEMATICS shall install VMU using a qualified person or agency. PANACHE TELEMATICS shall have the right to subcontract the installation in whole or part and shall notify the Customer all the details of the subcontractor appointed on request. The installation of VMU shall be completed within a reasonable period of time. PANACHE TELEMATICS may charge the Customer a surcharge for waiting time and other delays associated with installation caused by the Customer’s failure to have the Site or Vehicles available as specified in the Plan or otherwise agreed with PANACHE TELEMATICS or for request for installation out of normal working hours between Monday and Friday. The Customer acknowledges that it is aware that in order to install VMU it might be necessary for PANACHE TELEMATICS or one of PANACHE TELEMATICS’s subcontractors to drill holes in either VMU exterior or interior of Vehicles and agrees that PANACHE TELEMATICS shall not be liable for any cost of expenses or damages arising in any way from such work. PANACHE TELEMATICS warrants the installation of VMU for Lifetime but may charge a reasonable fee for a visit to a Site. All warranty claims must be in writing to PANACHE TELEMATICS.
    2. The Customer shall make best endeavors to make all the Vehicles on which VMU are to be installed available at the earliest possible time and at the same time, where reasonably practicable after the Shipping Date.
    3. Installation of VMU and any warranty or maintenance services shall take place at the Site. If the Site is not a PANACHE TELEMATICS service center then the Customer shall pay charges for the same and also provide a Site which meets the following standards:
      1. The Site shall be safe and present no hazards.
      2. All necessary utilities (including plumbing, lighting, electrical power) shall be easily accessible and provided without charge to PANACHE TELEMATICS.
      3. The Customer is advice, at its expense, obtain and maintain during the period of installation a policy of general liability insurance covering any liability arising out of PANACHE TELEMATICS’s use or occupancy of the Site and all appurtenant areas.
      4. Customer shall indemnify and hold harmless PANACHE TELEMATICS from and against any and all liabilities.
      5. Customer shall allow PANACHE TELEMATICS , its authorized agents, and subcontractors full and free access to the Site /Vehicle at agreed and scheduled installation time during Business Hours and shall not require that PANACHE TELEMATICS waive any claim arising from its use of the Site or impose any other restrictions as a requirement of access to the Site. PANACHE TELEMATICS shall attempt to honor any Customer's request for installation during non-Business hours, but may charge the Customer a surcharge for such installation.
    4. PANACHE TELEMATICS warrants VMU against defects in materials and workmanship for period of 12 months from delivery, warranty does not cover Associated Components. To obtain a warranty or maintenance service, Customer must contact the PANACHE TELEMATICS Help Desk number.
    5. The VMU is an electronic assembly that consumes electrical current. It is designed to draw low amounts of current when the Vehicle is not being operated and therefore there is a small drain on the Vehicle battery that may adversely affect Vehicles that are not in regular operation. PANACHE TELEMATICS is not liable for any consequences of the battery drain associated with use of VMU and recommends that the Vehicle battery should be recharged periodically to ensure maximum performance.
    6. The above warranties shall be null and void in the event that there has been any alteration, modification, or special configuration made by the Customer to a VMU or de-installation or installation of a VMU by the Customer or its contractor unless PANACHE TELEMATICS has approved in writing such contractor or approved work undertaken or otherwise interfered with, misused or damaged including water damage by internal Vehicle water ingress and accordingly in such circumstances. In the event of a de-installation by a Customer the charges for Services relevant to the de-installed VMU continue unless both the parties agree otherwise.

  6. LOCATION AND DATA COMMUNICATION SERVICES
    1. The Services are intended only for routine messaging and ascertaining of location, Vehicle status and business information (i.e. not emergency or prevention of crime).
    2. All Services may not be available to Customer now or in the future. Availability and scope of Services will be in accordance with the Plan.
    3. The cost of communications associated with the use of the Services is included in the fees specified in the Plan, unless specified as a separate and additional cost in the Plan. If the Customer’s data communications usage materially exceeds any maximum amounts specified in the Plan, PANACHE TELEMATICS may at its sole discretion charge the Customer Overage Charges.
    4. Customer acknowledges that PANACHE TELEMATICS may, for its internal test and quality control purposes, without charge to the Customer, locate or communicate with VMU used by the Customer.
    5. The Services provided by PANACHE TELEMATICS to Customer here under are solely for Customer’s internal business use as set forth in the Agreement allowing the Customer to locate and communicate with VMU and the data or output from the Services may not be resold or otherwise offered to or used by third parties and the Customer shall not use the Software to operate as a value added reseller or for any other use involving using the Services to process the data of other persons and/or entities, unless it has signed an Agreement.

  7. SOFTWARE
    1. The Software includes software components and the Mapbase and Map Engine licensed to PANACHE TELEMATICS by various entities (collectively, “PANACHE TELEMATICS’s Licensors”) and is provided with RESTRICTED RIGHTS. The Software is a proprietary product of, and constitutes copyright © by PANACHE TELEMATICS and PANACHE TELEMATICS’s Licensors. ALL RIGHTS RESERVED UNDER THE COPYRIGHT act. For purposes of any public disclosure provision under any legislation or regulation, it is agreed that the Software is a trade secret and a proprietary commercial product and not subject to disclosure. All right, title and interest in and to the Software and all copies and duplicates thereof, and all related copyrights, trademarks, trade names, trade secrets rights and other intellectual property and proprietary rights and interests, are vested and remain in PANACHE TELEMATICS and PANACHE TELEMATICS’s Licensors. The Software is licensed, not sold, to the Customer for use only under the terms of the Agreement. PANACHE TELEMATICS is NOT transferring title or any ownership rights in the Software to the Customer and PANACHE TELEMATICS and PANACHE TELEMATICS’s Licensors reserve all rights not expressly granted to the Customer. The Customer may not damage or compromise PANACHE TELEMATICS’s or PANACHE TELEMATICS’s Licensors’ copyrights, trademarks, trade names, trade secrets or other proprietary interests in the Software. If the Customer breaches the Agreement, monetary damages will not suffice to compensate PANACHE TELEMATICS and/or PANACHE TELEMATICS’s Licensors and PANACHE TELEMATICS and/or PANACHE TELEMATICS’s Licensor’s will be entitled to equitable remedies, including, without limitation, temporary restraining orders and temporary and permanent injunctions, without being required to post any bonds or security or prove special damages.
    2. PANACHE TELEMATICS grants the Customer a limited nonexclusive, non-transferable license to use the Software for the Term and for thepurposes of the Agreement.
    3. The Customer must use the Software on computers with minimum processing capabilities as designated by PANACHE TELEMATICS and with access to an internet connection, preferably a high speed dedicated connection.
    4. The Customer may not sublicense, assign, rent, lease or otherwise transfer or market the Software, Agreement or License.
    5. The Customer may not derive or attempt to derive the source code or structure of all or any portion of the Software by reverse engineering, disassembly, de-compilation, or any other means. The Customer may not decompile, disassemble, reverse engineer, port, translate, modify, copy, transfer, make derivative works of, or otherwise use the Software, except as expressly authorized by the Agreement. The Software and all materials and knowledge related thereto is obtained by the Customer and its employees, agents and representatives in confidence and shall not be duplicated, disclosed or published by any such persons in any form, or reproduced, transcribed, imitated or simulated in whole or in part. The Customer must take all reasonable steps to ensure it does not transmit worms or) viruses or any code of a destructive nature that may affect the Software or Services or use the Software or Services for inappropriate and/or illegal purposes. The Customer may disclose relevant aspects of the Software to employees, agents and representatives to the extent that such disclosure is reasonably necessary to use the Software in accordance with the Agreement; provided however, that the Customer shall take all reasonable steps to ensure that the Software is not disclosed or duplicated in contravention of the Agreement by such employees, agents and representatives.
    6. If there is any violation or suspected violation of any provision of Paragraph 7.5, the Customer shall immediately notify PANACHE TELEMATICS and shall, at its expense, assist PANACHE TELEMATICS in the enforcement of Paragraph 7.5 against any of its current or former employees, agents, or representatives. Regardless of any right to enforce its rights directly, PANACHE TELEMATICS shall not be obligated to do so, and the obligation to enforce shall remain with the Customer whether or not PANACHE TELEMATICS takes such action. The Customer agrees to indemnify and hold PANACHE TELEMATICS harmless from any claim, liability, damage or expense, including reasonable attorney’s fees, suffered by PANACHE TELEMATICS as a result of any violation of Paragraph 7.5 by it or its current or former employees, agents or representatives.
    7. PANACHE TELEMATICS warrants that the Software will perform in substantial compliance with the written materials provided to the Customer by PANACHE TELEMATICS or as detailed on the Website. No oral advice or information provided by PANACHE TELEMATICS or any of its agents or employees, whether given before or after first use of the Software shall create a warranty or in any way increase the scope of this limited warranty, and the Customer is not entitled to rely on any such information. This warranty shall not be applicable if there has been any alteration, modification, or special configuration made to the Software by the Customer.
    8. Only the current version of the Software and the immediately preceding version will be supported by PANACHE TELEMATICS. The Customer will be advised of changes to the Software (which may be implemented at PANACHE TELEMATICS’s discretion from time to time) and the Customer shall diligently follow any such instructions as soon as reasonably possible. Customers may be required to pay PANACHE TELEMATICS a license upgrade fee. PANACHE TELEMATICS shall have no liability to the Customer if it fails to upgrade the Software after having received notice of changes.
    9. The Software utilizes a Mapbase owned and maintained by the Map Suppliers. The Customer’s use of these Services is subject to the terms of the Map Suppliers.
    10. Except as expressly provided herein, the software is provided as it is. The express warranties provided in paragraph 7.7 are limited warranties and are the only warranties made by PANACHE TELEMATICS. PANACHE TELEMATICS and Licensors make and customer receives no other warranty, whether express or implied, including without limitation all warranties of merchantability and fitness for any particular purpose, Effectiveness, completeness, accuracy, Title and non-infringement are expressly excluded, except where prohibited by law. No employee or agent of PANACHE TELEMATICS has the authority to grant any other warranty to customer, written or oral.
    11. The Customer acknowledges that if traffic, speed data, driver black spot, vehicle analytics, battery life, fuel data form part of the Services in the Plan it may contain inaccurate or incomplete information due to changing circumstances, sources used and the nature of collecting such data, any of which may lead to incorrect results.
    12. PANACHE TELEMATICS shall provide the services described below without additional charge (unless specified) during each period for which Customer has purchased Services:
      1. Defects in the Software (not applicable for web services): During the Term, if the Customer reports a defect in the Software, PANACHE TELEMATICS shall use reasonable endeavors to resolve such defect as part of an Update. In the event of each notification to PANACHE TELEMATICS,PANACHE TELEMATICS may request that the Customer first submit to PANACHE TELEMATICS a written description of the apparent defect, a complete copy of all output, including, when possible, screen shots or print outs of the apparent defect and sufficient information to reproduce the defect.
      2. Material Defects in the Software(not applicable for web services): If the Customer reports in writing, a material defect in the Software to PANACHE TELEMATICS within 90 days of the defect first becoming apparent, and PANACHE TELEMATICS is unable to reasonably correct it within 90 days of the date of the report, PANACHE TELEMATICS will refund to the Customer a proportion of fees paid for those parts of the Services that were inoperative for the period from when the defect first became apparent to when the defect was corrected. In the event of each notification, PANACHE TELEMATICS may request that the Customer first submit to PANACHE TELEMATICS a written description of the apparent defect, a complete copy of all output, including, when possible, screen shots of print outs of the apparent defect and sufficient information to reproduce the defect. The Customer agrees that its only remedy under this limited warranty is to receive a refund of the amount paid for theinoperative Services in the said period.
      3. Telephone Consultation/On-Line Diagnostic Support: PANACHE TELEMATICS provides telephone support by its representatives during Support Hours. In addition, PANACHE TELEMATICS offers on-line diagnostic support through the use of remote access software of PANACHE TELEMATICS’s designation, or other connectivity software where available; and
      4. On-Site Troubleshooting and training: When necessary, PANACHE TELEMATICS may offer the Customer on-site troubleshooting support. PANACHE TELEMATICS retains the right to charge the Customer for such support. Any additional support requested by the Customer, including general maintenance, installation of Upgrades, which requires support by PANACHE TELEMATICS representatives at Customer’s site, shall be provided and charged to the Customer at PANACHE TELEMATICS’s standard support rates as specified by PANACHE TELEMATICS from time to time plus the cost of travel of PANACHE TELEMATICS representatives (including meals and overnight lodging, if necessary).

  8. FURTHER LIMITATION TO WARRANTIES
  9. The warranties specified in these Terms (VMU, installation and Software) shall be null and void and PANACHE TELEMATICS shall be entitled to charge the Customer its then applicable charges for replacement parts, site visits and other associated costs in the event that there has been:

    1. Use of VMU and/or Software that is not in the ordinary course of business or has not been approved in writing by PANACHE TELEMATICS.
    2. Accidents, misuse, abuse, neglect, damage and tampering with VMU and/or the Software.
    3. Improper installation, maintenance, or repair (not provided or authorized by PANACHE TELEMATICS) of VMU and/or the Software.
    4. Connection of VMU to an improper voltage supply.
    5. Water, weather or physical damage to VMU or exposure to the elements.
    6. Use of VMU with accessories or devices not approved by PANACHE TELEMATICS; or
    7. Use of the Services other than in the normal and customary manner.

  10. TELECOMMUNICATION CARRIERS & GPS
  11. The Customer acknowledges that communication services (such as GSM and GPRS) used in the provision of the Services are provided by TCs and the Customer specifically acknowledges and agrees the following:

    1. Customer acknowledges that the Services may be temporarily refused, interrupted, curtailed or limited because of atmospheric terrain or other natural or artificial conditions and may be temporarily interrupted or curtailed due to usage concentrations, modifications, upgrades, relocation and repairs of the transmission networks. Customer agrees that TCs, PANACHE TELEMATICS and PANACHE TELEMATICS Agents shall not be responsible for such interruptions of Services or the inability to use the Services within the Coverage Area.
    2. Neither PANACHE TELEMATICS nor TCs can guarantee the security of wireless transmissions and Customer agrees that neither shall be liable for any lack of security relating to the use of the Services.
    3. PANACHE TELEMATICS may temporarily suspend or permanently terminate the provision of some or all of the Services upon little or no notice in the event that PANACHE TELEMATICS’s agreement with a TC is terminated or in the event the Customer violates a TC’s acceptable use policy or other network rules and policies. Customer waives any and all claims against the underlying TC, including any roaming carrier, for such suspension or termination. In the event that PANACHE TELEMATICS’s agreement with a TC is terminated PANACHE TELEMATICS will take reasonable steps to transfer the communications used by the Customer to another TC within 28 days and customer will be charged for the same.
    4. PANACHE TELEMATICS will use all reasonable endeavors to give notice to relevant Customers in the event of notification that a TC intends to discontinue or suspend its provision of GSM communication services. However in such circumstances where provision of all or part of the Services is no longer possible without changes to the Services, PANACHE TELEMATICS shall be entitled to temporarily suspend or permanently terminate the provision of some or all of the Services upon little or no notice to relevant Customers. On request by any Customer effected, PANACHE TELEMATICS agrees to offer suitable alternative Services using alternative communication on commercial terms.
    5. The VMUs utilize GPS technology in order to establish geographic location information. While GPS can provide worldwide, three- dimensional positions, 24 hours a day in any type of weather, there are some limitations inherent to GPS technology. There must be a relatively clear “line of sight” between the GPS antenna and 4 or more satellites. Objects such as buildings, overpasses, and other obstructions (such as parking in garages or underground structures) that shield the antenna from a satellite can potentially weaken a satellite’s signal such that it becomes too difficult to ensure reliable and/or accurate positioning. These difficulties are particularly prevalent in densely urban areas.
    6. The Customer acknowledges that it is improbable that the communication services used and GPS will have 100% coverage or functionality in any area at all times. Any deviations from any coverage representations made or from any coverage map shown to the Customer shall not constitute default by PANACHE TELEMATICS. Any surveys, if provided, are to indicate general parameters of expected coverage, subject to previously mentioned conditions and are not binding as an exact representation of coverage; and9.7. In the event that the Customer’s use of VMU either intentionally or unintentionally results in abnormal and/or excessive communications usage, PANACHE TELEMATICS shall be at liberty to suspend Services in relation to the relevant VMU, for a reasonable amount of time, until PANACHE TELEMATICS is able to assess the cause and implement a solution.

  12. INTERRUPTION OF SERVICES; FORCE MAJEURE
  13. PANACHE TELEMATICS shall have no liability for a failure to provide or for delay in providing VMU installation and Services directly or indirectly to cause beyond the control of PANACHE TELEMATICS or its subcontractors, including, without limitation, acts of God, or Governmental entities, or of the public enemy, termination of Services due to actions of a TC, but not limited to, deactivation/dismantling of a TC’s GSM or GPRS network, acts of the Customer, strikes, unusually severe weather conditions, interruptions of transportation or inability to obtain necessary labor, materials or facilities, default of any supplier, or delays in frequency authorization or license grant. Delivery schedules of VMU shall be considered extended by a period of time equal to the time lost because of any such delay. If PANACHE TELEMATICS is unable to wholly or partially provide VMU or perform the Services for more than 30 days because of any cause beyond its control, PANACHE TELEMATICS may terminate the Agreement without any liability to Customer, other than refund any amounts paid for VMU, Software or Services which have not been provided and all deposits and advance payments made by the Customer will be retained by PANACHE TELEMATICS as compensation for documentation, processing and other expenses.

  14. REVISION OF FEES AND SERVICES
  15. Before the end of the Term PANACHE TELEMATICS may, upon 60 days’ notice revise the monthly rates for Services set forth in the Plan, such changes to take effect immediately after the Term finishes. If the Customer terminates the Agreement other than as herein provided, all accrued and unpaid charges shall be immediately due and payable including removal of hardware and software disconnection where by an early termination charge as decided by PANACHE TELEMATICS.

  16. AUTOMATIC RENEWAL & TERMINATION
    1. At the expiration of the Term, the Agreement shall automatically renew for successive 12 month periods unless express written notice is received by either party from the other at least 30 days, but not more than 90 days, prior to the expiration date.
    2. The Customer shall pay PANACHE TELEMATICS the unpaid aggregate price and fees for all Services listed in the Plan for the remaining term of the Agreement if the Customer cancels the Agreement otherwise in accordance with 12.1 above.
    3. The Agreement shall terminate immediately without liability if either the GSM or GPS networks are shut down.
    4. The Agreement may be terminated on 90 days written notice if the other party is in breach of any of the material terms of the Agreement, and such breach is not cured within the 90-day notice period. In addition, PANACHE TELEMATICS may terminate the Agreement upon the occurrence of any Event of Default (as provided for in Paragraph 13 below).
    5. The Customer is not entitled to terminate the Agreement pursuant to 12.4 above for any alleged breach of warranty under Paragraphs 5.1, 5.4 or 7.7 herein unless such warranty claim is in writing and follows the procedures set out in Paragraphs 5.1, 5.4 or 7.12 and PANACHE TELEMATICS fails to meet its obligations under Paragraphs 5.1, 5.4, 7.7 or 7.12 herein and after 90 days written notice of breach as prescribed in 12.4 above.
    6. Upon termination of the Agreement for whatever reason the Customer shall not use the Software for any purpose and immediately de- install any Software installed on any of its computers and return to PANACHE TELEMATICS or destroy all related documentation if requested by PANACHE TELEMATICS. The enforceability of the Agreement, which by its nature shall survive the termination of the Agreement.
    7. In the event that the Agreement relates to a Customer’s trial or evaluation of the Services (“a Trial”), and in the event the Agreement does not continue after a Trial, PANACHE TELEMATICS shall be entitled to charge the Customer a handling and administration fee per Unit at PANACHE TELEMATICS’s then current rates in addition to de-installation charges and take any and all steps as provided for in Paragraph 13.2 in the event that the Customer does not return VMU as provided for in Paragraph 4.6 (save that in the event of a Trial PANACHE TELEMATICS will pay the shipping costs of returning VMU to PANACHE TELEMATICS). Otherwise these Terms apply to the Agreement until its termination or expiry. In the event of a Trial where a Customer does not give written notice of its intent to cancel the Trial before its expiry, this Agreement shall remain in force at the prices quoted to the Customer for a term of three (3) years.

  17. CUSTOMER DEFAULT AND PANACHE TELEMATICS REMEDIES
    1. 13.1. Customer shall be deemed to be in default in the event of any of the following (each an “Event of Default”):
      1. Customer does not pay any amount due within 10 days of when it first becomes due.
      2. Customer is in breach of any of the material terms of the Agreement, or any other obligation with PANACHE TELEMATICS, and does not cure such breach within 30 days of receipt of notice of such breach.
      3. Customer transfers or attempts to transfer, any VMU to another party; or
      4. Customer gives PANACHE TELEMATICS reasonable cause to be insecure with Customer’s willingness or ability to make required payments, such as: Customer is unable to pay its debts as they fall due, becomes insolvent or bankrupt, enters into liquidation, whether voluntary or compulsory, passes a resolution for its winding up, has a receiver or administrator appointed over the whole part or any part its assets, makes any composition or arrangement with its creditors or takes or suffering any similar action in consequence of its debt.
    2. In the event of the Event of Default PANACHE TELEMATICS may, in addition to the other rights set forth elsewhere in the Agreement take all or any of the following steps:
      1. Suspend any or all Services.
      2. Charge the Customer as per PANACHE TELEMATICS norms VMU administration charge and a late fee and interest at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if such rate exceeds the highest rate permitted by law) to compensate PANACHE TELEMATICS for the extra administrative expenses incurred by it.
      3. Exercise any remedy at law or equity, for which Customer expressly waives any required notice.
      4. Refer the Agreement to an attorney for legal action, in such case, Customer agrees to pay PANACHE TELEMATICS’s reasonable attorney’s fees and actual costs, including our travel costs to any deposition or court appearance. Customer further agrees that a reasonable legal fee is not less than the greater of ₹ 25000.00 or 25% of the total amount in collection as a liquidated damage and not a penalty; and/or
      5. Charge the Customer a reactivation fee for each VMU should PANACHE TELEMATICS suspend Services and then re-activate the Services at PANACHE TELEMATICS’s then current rates.

  18. MAP SUPPLIERS END USER TERM
  19. Terms of Use and Online Privacy Statements apply to this Agreement as per our Map Provider.


  20. ADDITIONAL THIRD PARTY SERVICES
    1. Third Party Services are only available to Customers which have the Third Party Service included in the Plan and who have paid for the relevant Subscription for these services and the provisions of this Clause 15 shall apply.
    2. PANACHE TELEMATICS will make all reasonable efforts to procure the accuracy and completeness of information and reports supplied directly by Third Parties, but do not warrant the accuracy or completeness of them at all times.
    3. The format and content of Third Party reports to the Customer may be changed by the Third Parties, from time to time.

  21. PAYMENT/TAXES
  22. Customer shall make payments to PANACHE TELEMATICS in accordance with the Agreement, at such place and/or by such means as PANACHE TELEMATICS designates from time to time. Specifically:

    1. Unless otherwise detailed in the Plan a pro-rata portion of the aggregated average of the charges for all Services based on a daily charge of one-thirtieth (1/30) of a monthly charge or one-ninetieth (1/90) of a quarterly charge or one three-hundred and sixty-fifth (1/365) of an annual charge shall be payable by the Customer from the earlier of date of installation or 30 days after the Shipping Date (or in the case of a VMU already fitted by an OEM from the date of activation of the Services) to the end of the calendar month in which the said 30 days expires on the Shipping Date (“Part Payment”). Thereafter charges for the Services are due in advance at the beginning of each calendar month or as otherwise detailed in the Plan, from the start of the next calendar month to the expiry of the Term or as otherwise detailed in the Plan and are not refundable.
    2. Unless otherwise detailed in the Plan all payments by the Customer to PANACHE TELEMATICS for Services and any other paymentobligations shall be made by PANACHE TELEMATICS electronically withdrawing requisite cleared funds from the Account. The Customer authorizes PANACHE TELEMATICS to debit the Account for periodic charges for Services or other amounts due and owing at the time under this Agreement. If the Customer wants to authorize PANACHE TELEMATICS to debit another account, it must advise PANACHE TELEMATICS in writing providing adequate authority for PANACHE TELEMATICS to debit charges from the Account.
    3. In the event of the Plan detailing monthly in advance payment terms (not annually or quarterly in advance) the Customer shall, on signature of the Agreement, pay by DD (or otherwise detailed in the Plan) the first three complete calendar month’s charges of the Term for the Services and the Part Payment as provided for in 16.1 above and therefore the Customer will not need to make another advance payment until the beginning of month four of the Term unless other amounts are owed by the Customer to PANACHE TELEMATICS during that period.
    4. Incremental charges and other service charges, including, without limitation, Overage Charges and warranty charges are billed in arrears and shall be paid on 30 days terms.
    5. If PANACHE TELEMATICS makes a charge for installation it will be billed separately as specified in the Plan if not inclusive in the plan or Agreement.
    6. Except for the amount, if any, of any tax or fee included in the Agreement, the prices set forth therein are exclusive of VAT / Service Charges / any other applicable Government levies and the Customer agrees to pay when due any amount for VAT / Service Charges / any other applicable Government levies.
    7. Save for Paragraphs 10 and 7.12.2, no advance payments made by the Customer for the Services and/or VMU are refundable.

  23. INFORMATION
    1. The Customer warrants that it will advise any employee or other authorized user of a Vehicle that the:
      1. Vehicle may be tracked
      2. The Customer and employees will be able to view details relating to Vehicle(s) using the Software; and
      3. The Customer will be able to produce historical reporting of Vehicle(s) for a period of up to 1.5 months prior to the date on which the report is requested or for the period from when the Services were active if less.
    2. The Customer acknowledges that for quality control, security reasons and training, telephone calls between PANACHE TELEMATICS and the Customer and/or its employees may be recorded.
    3. The Customer consents to PANACHE TELEMATICS tracking and tracing the location, time and speed of Vehicles via the VMU for the purposes of the Agreement.
    4. The data produced by use of the Services is the property of the Customer however; PANACHE TELEMATICS reserves the right to use and to allow third parties to use anonymized location, time, speed and other information obtained from Vehicles for traffic information, journey data analysis, mapping, fleet benchmarking or other related purposes. PANACHE TELEMATICS will retain such data for 3 years save that access by the Customer with charge may be shorter if detailed in the Plan or if otherwise advised to the Customer. Customers which have OEM lease and maintenance and/or insurance or leasing related services detailed in the Agreement (or otherwise agreed in writing) consent to the provision by PANACHE TELEMATICS during the Term of data produced by the use of the Services, or access to said data, identified as the Customer’s data, to the OEM, insurance and/or leasing company designated in the Agreement. If such data is required by Government Agencies for any purpose PANACHE TELEMATICS reserves the right to hand over such data to Government Agencies without permission of Customer even though it is not mentioned in the Agreement.
    5. PANACHE TELEMATICS and its agents, its business partners and/or carefully selected companies may use the Customer’s information to keep the Customer informed by post, telephone, e-mail, SMS or other means about VMU products and services. By providing PANACHE TELEMATICS with contact details, the Customer consents to being contacted by these parties for these purposes. If the Customer does not wish to receive marketing information, the Customer must state this in writing to PANACHE TELEMATICS.

  24. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
  25. The liability obligations of PANACHE TELEMATICS to the Customer or any 3rd party under the Agreement are strictly controlled and limited by the laws, and regulations which from time to time have jurisdiction. In any event, the Customer acknowledges and agrees that:

    1. PANACHE TELEMATICS shall have no liability for any single isolated failure of the Services, or delay.
    2. The liability and obligations of PANACHE TELEMATICS or a PANACHE TELEMATICS Agent to the Customer herein may be strictly controlled and limited by the laws, rules and regulations of Governmental Authorities which from time to time have jurisdiction. In any event, regardless of the form of action, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise, the Customer’s exclusive remedy and the total liability of PANACHE TELEMATICS to Customer arising in any way in connection with the Agreement, for any cause whatsoever including but not limited to any failure or disruption of Services provided, shall be limited to the right of repair or replacement of defective VMU(depending on warranty conditions) and payment by PANACHE TELEMATICS of damages in an amount equal to the amount charged to Customer for undelivered Services provided under the Agreement and in no event shall PANACHE TELEMATICS’s liability exceed the amount paid by the Customer for the Services in question in the 12 months preceding the beginning of such failure or disruption to the Services, nor shall any action be brought for any breach more than one year after the accrual of such cause of action or for any breach where PANACHE TELEMATICS was not first afforded the opportunity to investigate and/or verify any defect relating to installation, VMUs and/or the Software in accordance with the warranty provisions herein. PANACHE TELEMATICS shall not be liable for property damage or any damages or loss of any kind, whether increased costs, lost profits or goodwill, lost revenues or data or incidental, special, punitive, indirect, incidental, exemplary or consequential damages, arising from the use of the Services even if PANACHE TELEMATICS has been advised of the possibility of such damages.
    3. PANACHE TELEMATICS and its suppliers shall not be liable to any other person or entity or third party for any loss or damages caused by any interruption of Services, regardless of cause.
    4. Customer agrees to indemnify, defend and hold PANACHE TELEMATICS and its licensors harmless from and against any liability, loss, injury (including injuries resulting in death), demand, action, cost, expense or claim of any fees (including reasonable legal fees) arising out of or in connection with any use or possession by Customer of the data produced by the Services and/or the improper or unauthorized use of the Services or the failure to use the same properly or as directed by PANACHE TELEMATICS from time to time.
    5. If the Customer becomes aware of any matter which might give rise to a claim against PANACHE TELEMATICS or the Customer concerning the potential infringement by PANACHE TELEMATICS, and/or the Services of any patent, copyright or other intellectual property rights of any third party or the potential misappropriation or unlawful disclosure or use of a third-party’s trade secrets (an “Infringement Claim”); or any infringement or suspected infringement of PANACHE TELEMATICS’s IPR and/or the IPR relating to the Services by a third party, the following provisions shall apply:
      1. The Customer shall immediately give written notice to PANACHE TELEMATICS of the matter (stating in reasonable detail the nature of the matter). If the matter has become the subject of any court proceedings the Customer shall deliver the notice of such proceedings within sufficient time to enable PANACHE TELEMATICS to contest the proceedings before any material time limits have passed.
      2. The Customer shall provide PANACHE TELEMATICS and its professional advisers reasonable access to premises and personnel and to any relevant assets, documents and records within its possession or control (and at PANACHE TELEMATICS’s expense take copies of any of the documents or records, and photograph any premises or assets) for the purposes of investigating the matter; and
      3. Customer shall:
        1. Take such action and institute such proceedings, and give such information and assistance, as PANACHE TELEMATICS may reasonably request to:
          1. Dispute, resist, appeal, compromise, defend, remedy or mitigate the matter; or
          2. Enforce against any person (other than PANACHE TELEMATICS) the rights of the Customer in relation to the matter
        2. In connection with any proceedings related to the matter (other than against PANACHE TELEMATICS) use professional advisers nominated by PANACHE TELEMATICS and, if PANACHE TELEMATICS so requests, allow PANACHE TELEMATICS the exclusive conduct of the proceedings
      4. The Customer shall not admit liability in respect of or settle any matter without the prior written consent of PANACHE TELEMATICS, such consent not to be unreasonably withheld or delayed; and
      5. In addition, if any of the Services provided by PANACHE TELEMATICS hereunder are, or in PANACHE TELEMATICS’s reasonable judgment are likely to become, the subject of an Infringement Claim, whether or not due to notification by Customer, PANACHE TELEMATICS shall be at liberty to immediately cease providing those elements of the Services that are subject to the actual or potential Infringement Claim and at its expense will use commercially reasonable efforts to: (A) procure for Customer the right to use and continue using the Services; or (B) replace the Services with a non-infringing equivalent; or (C) modify the Services to make its use hereunder non-infringing; provided however, in the event that PANACHE TELEMATICS agrees to commercial terms with the relevant third party to obtain for the Customer the right to use the Services, the Customer will pay, in addition to the fees for the Services listed in the Plan, a monthly amount equal to the Customers proportionate share of the amounts payable to such third party for the use of the Services during such month. If none of (A), (B), or (C) of the preceding sentence are available on commercially reasonable terms in PANACHE TELEMATICS’s good faith judgment, PANACHE TELEMATICS will so notify the Customer, whereupon: (A) the Customer will cease use of the Services, if requested by PANACHE TELEMATICS, return to PANACHE TELEMATICS the VMUs and Associated Devices containing the allegedly infringing technology in accordance with the terms hereof; and (B) PANACHE TELEMATICS will equitably adjust the charges to reflect the discontinuation of the applicable portion of the Services. In such event, the PANACHE TELEMATICS and Customer will seek to establish mutually acceptable alternative arrangements and to make any appropriate adjacent to their respective obligations under this Agreement though the execution of an amendment; and
      6. Nothing in this Paragraph 18.5 shall in any way restrict or limit the general obligation at law of the Customer to mitigate any loss which it may incur as a result of any matter related to this Paragraph 18.v
    6. The provisions of this Paragraph limiting and excluding the liability of PANACHE TELEMATICS are reasonable given the complex nature ofthe technology involved in the provision of Services and the many other factors affecting the Services outside PANACHE TELEMATICS’s reasonable control.

  26. GENERAL
    1. PANACHE TELEMATICS (or its associated companies) is the proprietor of the “PANACHE TELEMATICS”, names, derivatives, associated symbols and trademarks and all documentation relating thereto and any use is specifically prohibited unless under the Agreement or by separate written agreement with PANACHE TELEMATICS.
    2. If any provision of the Agreement shall be unlawful, void, or unenforceable, then that provision shall be deemed limited to the extent required to make it enforceable, or, if necessary, severed from the Agreement. Such a provision shall not affect the validity and enforceability of the remaining provisions of the Agreement.
    3. The Agreement (and for the avoidance of doubt including these Terms) constitutes the entire agreement and understanding between the parties as to the subject matter of the Agreement and supersede all previous and contemporaneous communications, representations or agreements, written or oral relating to the Services purchased under the Agreement. Any amendments to these Terms must be in writing and authorized and signed by a Director of PANACHE TELEMATICS or its Financial Controller or CEO and are not otherwise binding.
    4. Any waiver of a breach of the Agreement shall not be a continuing waiver and shall not prevent any claim of a breach of the same terms or any other term of the Agreement.
    5. In these Terms, words incorporating the masculine gender only include the feminine and neuter genders and words incorporating the singular number only include the plural and vice versa.
    6. The Customer agrees to observe and abide by all applicable laws, ordinances, rules and to hold PANACHE TELEMATICS harmless from liability or loss by reason of any asserted or established violation of the same by Customer, its employees, agents or representatives.
    7. The Customer acknowledges and agrees that the Services must not be used in any way which would or may affect the ability of any driver of the Vehicle to drive safely and in accordance with local laws and regulations. The Customer or its employees or other authorized users are ultimately responsible for the Vehicle under his/her control and they should be aware of their surroundings at all times. In certain geographic areas one way streets, turn restrictions and entry prohibitions (e.g. pedestrian zones) are not recorded or displayed. PANACHE TELEMATICS is not liable for any loss or damage caused by the acts or omissions of the driver of the Vehicle. Users of the Vehicle remain at all times responsible for observing all relevant laws and codes of safe driving and PANACHE TELEMATICS is not liable for any fine, penalty, or punishment issued to the Customer or any user of the Vehicle.
    8. The Agreement is fully assignable and transferable by PANACHE TELEMATICS to any person or entity and shall inure to the benefit of such assignee or successor, Customer may not assign the Agreement without the prior written consent of PANACHE TELEMATICS, except that Customer may, without PANACHE TELEMATICS’s consent, assign the Agreement: (a) to Customer’s parent company, a subsidiary, or an affiliate; (b) to any successor corporation by consolidation or merger; or (c) to any corporation with the authority to carry on a business of a nature transacted by Customer and to which Customer has sold all or substantially all of its assets, provided that Customer has advised PANACHE TELEMATICS in writing of such assignment and Customer remains liable for any obligations or liabilities arising under the Agreement.
    9. The headings used herein are for convenience only and are not to be used in the interpretation of the Agreement.
    10. All notices and other communications required or permitted to be given under the Agreement shall be in writing and addressed to the Directors and shall be delivered or transmitted by the Customer to PANACHE TELEMATICS at the address specified on the Agreement or such other address as PANACHE TELEMATICS may notify to the Customer for this purpose from time to time. Notices by PANACHE TELEMATICS to the Customer shall be to the customer's address listed on the Agreement or as provided by the Customer to PANACHE TELEMATICS from time to time and it is the responsibility of the Customer to advise PANACHE TELEMATICS of any change of address expeditiously. Any notice shall be treated as having been served on delivery if delivered by hand or email, 4 working Days after posting if sent by pre-paid registered mail, 2 working Days after dispatch if sent by courier and on confirmation of transmission if sent by E-mail.
    11. The construction, validity and performance of this Agreement shall be governed by the laws of India and the parties submit to the exclusive jurisdiction of the Mumbai courts to resolve any disputes between them.
    12. Where any provision of this Agreement refers to an affiliated company or licensor of VMU, it shall be enforceable by that company in accordance with the Contracts (Rights of Third Parties), but otherwise no provision in this Agreement is intended for the benefit of any third party.
    13. Each signatory is duly authorized and has the necessary power and authority to execute and deliver this Agreement on behalf of the applicable party and to bind such party, and each party has the necessary power and authority to deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby.

  27. Customers covered under the SOS on road assist scheme, the emergencies covered are any life threatening situations faced by CLIENT and or Passengers present in the Vehicle while utilizing their vehicles fitted with (GPS Vehicle Tracking Device) VMUs services like Medicalemergencies (including but not limited to Physical Attack, Heart Attack, Asthma Attack, Blood Pressure, etc.), and other Emergencies (including but not limited to Intrusion, Burglary, Fire, Accidents, Gas Leakage, Short Circuit, etc.) hereinafter referred to as “the Services” within the geographical area specified in Para 21 below. Points from sr. no 20 to 25 should read togather.

  28. The area of operation of the SOS on road assist scheme shall be Mumbai City, Thane City, Mira Road and Navi Mumbai till CBD Belapur, The emergency covered FOR the CLIENTS Vehicles plying in the above mentioned region of operations only.

  29. In case of any emergency,(Definition of Emergency is if the Client meets accident and physically injured and requires immediate hospitalization (please note minor injuries are not covered) , life threatening situation of CLIENT , Female molestation etc.) the SERVICE PROVIDER of PANACHE TELEMATICS will take the Vehicle Owner/ driver & passenger to the nearest hospital and will call up the necessary agencies for taking action. Note all charges of hospitalization if any will be directly paid by CLIENT.

  30. A consent form shall be signed by the representative of the ' CLIENT' before taking the patient on the brigade. The SERVICE PROVIDER or PANACHE TELEMATICS does not take any responsibility for the loss of life during transit. (Pressing of Panic Switch /Emergency call from the END CLIENT / CLIENT is treated as consent).

  31. The CLIENT has agreed to take emergency evacuations service totally at its own risk of any kind arising from the nature of service. The SERVICE PROVIDER deputed by PANACHE TELEMATICS shall perform duty diligently, to the best of its ability and shall protect the interested of CLIENT to its best ability limited to the constraints on the site.

  32. In case of complete or partial failure to provide SOS rescue, the CUSTOMER cannot claim any compensation as this service is complimentary service and can be terminated at any point of time by PANACHE TELEMATICS at its own discrete.

  33. GENERAL EXCLUSIONS
  34. The following shall be excluded while defining performance as being formed due to extraneous reasons / technical limits.Devices means Vehicle Mount Unit having GPS & GPRS.

    1. Devices not operational due to reasons attributable to Customer /Vehicle vendors, due to which the unit is not able to provide the data at predetermined intervals.
    2. Devices not operational will not relate to deliberate and intentional damage to the units installed in the vehicle used
    3. Negligent or willful action/inaction of the Customer /Vehicle driver & /Vehicle Vendor’s Personnel,
      1. Negligent or willful action/inaction of Commuters in the vehicle
      2. Natural Risks like Riots, Malicious Damage, Fire, Lightening, Thunderstorm, Tempest, Road Accident, Third party accident etc.
    4. Failure of the vehicle Battery for a continuous period exceeding 4 hours and or degradation in vehicle Battery power feeding capacity i.e. to offer specified current, while maintaining the minimum output DC level of 12 Volts.
    5. Unauthorized tampering /removal of SIM cards from the DEVICES for any reason by person other than authorized by PANACHE TELEMATICS.
    6. DEVICES not operational will not include Vehicles undergoing maintenance/service as carried out by Customer / Vehicle VENDORS.
    7. Vehicles parked in Basement and/or under shelters for long periods inhibiting open sky view necessary for GPS location fixed.
    8. Units under Repairs/replacement lying with PANACHE TELEMATICS talk arising out of an act of willful/deliberate/intentional/unintentional damage to the units not attributable to PANACHE TELEMATICS fault and not paid for by Customer / Vehicle VENDORS in advance for repair/restoration/replacement.
    9. Problems due to deterioration in service levels of GSM/GPRS SERVICE PROVIDER for GSM/GPRS, SMS and Voice services.
    10. Problems due to the broadband / internet connectivity issues, which is essential for communication.
    11. Problems due to static IP related issues, configured in vehicles for sending and receiving information packets.
    12. Performance Estimation shall not include outage due to non availability of hardware, peripherals, software or network, internet bandwidth, other failures caused due to force majeure conditions or deliberate acts of vandalism, or virus attack/invasion in the PANACHE TELEMATICS web setup.
    13. GSM/GPRS SERVICE PROVIDER led deactivation of SIM cards or failure of SIM cards supplied by GSM/GPRS SERVICE PROVIDER due to reasons attributable to GSM/GPRS SERVICE PROVIDER.
    14. By placing order with PANACHE TELEMATICS Customer agrees that Customer is fully responsible for use of SIM card supplied with VMU. Any unauthorized use of SIM is responsibility of Customer and PANACHE TELEMATICS is no way responsible for the same. It is the policy of PANACHE TELEMATICS always to try to give our best possible service to you, but if you have any questions or concerns about the product or service, please contact PANACHE TELEMATICS.