TERMS & CONDITIONS
These Terms and Conditions set out the agreement between you (the “Customer”) and Eurolink Motorway Operation Limited (the “Operator”) in relation to the supply and use of the Tag.
1 INTERPRETATION
1.1 In the Agreement the following words and expressions shall have the following meanings unless the context otherwise requires:
“Account” means the Customer’s account with the Operator;
“Account Application Form” means the application form to be completed by the Customer prior to opening an Account;
“Account Maintenance Charges” means Late Payment Charges and such other handling charges as the Operator may from time to time levy in accordance with this Agreement which charges will be calculated by reference to and will depend upon the Toll payable by the Customer and which may be increased by the Operator at any time upon prior notice to the Customer;
“Agreement” means the agreement between the Customer and the Operator for the maintenance of an Account and for the use of the Tag by the Customer on the terms and conditions set out herein, as may be amended by the Operator and published from time to time.
“Consumer” has the meaning set out in Section 3 of the Sale of Goods and Supply of Services Act, 1980;
“Customer” means the person issued with the Tag by the Operator;
“Deposit” means a deposit payable by the Customer on the opening of an Account which may be increased by the Operator at any time upon prior notice to the Customer;
“ETC” means Electronic Toll Collection;
“Equipment” means all equipment used by the Operator to operate the ETC system other than the Tag;
“Inter-operability” means that a customer of a Toll Road will be able to effect the discharge of a Toll by means of ETC in respect of a Toll Road to discharge the Tolls for a different Toll Road operated by another Operator;
“Late Payment Charges” means the charges that the Operator may from time to time levy in respect of the failure by a Customer to make a Payment within the time specified by the Operator;
“Misuse” means the Customer’s failure to act in accordance with the provisions of clause 2.1, including such other acts or omissions that the Operator may specify and notify to Customers from time to time;
“Operator” means the operator of the Toll Road known as M4/M6 Kilcock to Kinnegad;
“Payment” means the payment by the Customer using the stated Payment Method;
“Payment Method” means a payment made by credit card or such other payment method as the Operator may from time to time accept;
“Permitted User” means any person permitted by the Customer to use the Customer’s Tag;
“Rejected Payment” means a Payment which is rejected for any reason and not received by the Operator;
“Roaming Fee” means the interoperability management fee payable to the Operator by the Customer, as announced by the Operator, which may be increased by the Operator at any time on the giving of 14 days prior notice to Customers;
“Statement” means the Account statement for the period as the Operator may from time to time decide showing amounts received from the Customer including the amount of Tolls, charges (including the Roaming Fee and Account Maintenance Charges) and other sums charged by the Operator and such other information as the Operator may deem appropriate from time to time;
“Tag” means the device to be affixed to the Customer’s vehicle to facilitate the electronic collection of Tolls under the terms of the Agreement in respect of the use of one or more Toll Facilities;
“Tag Charge” means the price payable by the Customer for the supply of the Tag;
“Toll Bye-laws” means the bye-laws made pursuant to the Roads Act, 1993 in respect of any Toll Scheme;
“Toll” means the tolls leviable by the Operator under the terms of the relevant Toll Bye-laws and/or toll or charge payable in respect of the use of a Toll Road which tolls will be calculated by reference to the particular class to which a Customer’s vehicle belongs and which may be increased by the Operator at any time upon prior notice to the Customer. The term ėTolls” shall be construed accordingly.
“Toll Road” means any Toll Scheme or other service which may be used or accessed with a Tag as notified by the Operator from time to time;
“Toll Scheme” means any toll scheme operated in accordance with the Roads Act, 1993;
1.2 References to statutes or statutory provisions or regulations include references to any orders or regulations made thereunder and references to any statute, statutory provision, orders or regulations made there under include that statute, statutory provision, order or regulation as amended, modified, re-enacted or replaced from time to time. References to persons shall include bodies corporate and unincorporated, associations, partnerships and individuals. References to the masculine gender shall, unless the context otherwise requires, include the feminine gender and vice-versa. References to cent, euro or ¤, shall mean the lawful currency for the time being of Ireland. Headings to clauses are for information only and shall not form part of the operative provisions of this A greement and shall be ignored in construing it.
2 SUPPLY AND USE OF THE TAG
Subject to clause 3, the Operator shall provide the Customer with the Tag and the Customer shall:
(i) install and use the Tag in the vehicle in accordance with the Operator’s instructions;
(ii) only use the Tag in accordance with the Agreement for the vehicle(s) listed in the Account Application Form and in respect of which the Tag was issued;
(iii) not transfer, sell, dispose of, damage or tamper with the Tag or use the Tag fraudulently or illegally.
2.2 The Tag shall be the property of the Customer who may allow a Permitted User to use it subject to the terms of this Agreement which shall be brought to the attention of any Permitted User by the Customer. The Customer remains responsible for any use made of the Tag by a Permitted User. The Customer shall not do anything or permit anything to be done which may constitute a Misuse of the Tag. The use of the Tag by the Customer or any Permitted User is solely at the risk of the Customer.
2.3 The Tag may only be used to pay the applicable Toll in accordance with the conditions applying generally to the use of a Toll Road. The Customer acknowledges that for the Tag to operate correctly, it must be installed in accordance with the Operator’s instructions and that the failure to properly install the Tag will prevent it from operating properly. The Operator shall not be responsible for the Customer’s failure to install the Tag properly.
2.4 Customers shall be responsible for notifying the Operator of a malfunctioning or defective Tag. To the extent required by the Operator, a Tag may be tested at the Operator’s office to determine if it is functioning properly. A malfunctioning or defective Tag that, in the opinion of the Operator, is defective for reasons other than abuse or improper use shall be replaced at no cost to the Customer.
3 ACCOUNT
3.1 A Customer shall apply to the Operator, using an Account Application Form and the Customer shall specify:
(i) the relevant details relating to the proposed Payment Method; and
(ii) the class of vehicle to which the Tag relates.
3.2 The Operator reserves the right to refuse any application for an Account.
3.3 The acceptance of an Account Application Form by the Operator is subject to receipt by the Operator of the Deposit, the Tag Charge and any Account Maintenance Charges then payable. Once the Deposit, Tag Charge and any Account Maintenance Charges then payable are received by the Operator and the Account Application Form has been accepted by the Operator, the Operator will issue the Tag directly to the Customer or post the Tag to the address provided on the Customer’s Account Application Form.
3.4 The Customer acknowledges that:-
(a) The Account Maintenance Charge will be paid in accordance with clause 3.3 in respect of those Account Maintenance Charges payable on the opening of an Account by a Customer and thereafter any Account Maintenance Charges will be payable at the beginning of each month. Such Account Maintenance Charges will be payable in accordance with the Payment Method.
(b) The Tolls will be payable in accordance with the Payment Method and will be payable following each time a Customer uses a Toll Road.
(c) The Toll payable in respect of the use of any Toll Road may be increased from time to time by the Operator and any such increases shall become immediately binding upon him/her and the Operator may request the Customer to increase the amount paid by him/her each month;
(d) If he/she cancels or alters his/her payments or does not intend to continue making payments he/she shall within 24 hours notify the Operator of such cancellation, alteration or intention;
(e) He/she is not entitled to interest on any sums received by the Operator pursuant to the terms hereof;
(f) A Tag may only be used for the vehicle class for which it is issued;
(g) He/she must notify the Operator of any change of vehicle classification or of his/her name or address or registered office, as the case may be whether seven days of the occurrence of the change.
(h) He/she must notify the Operator of any changes with respect to his/her credit card details as set out in the Account Application Form; and
(i) The Operator can unilaterally change the class of vehicle to which a Tag relates and charge the Customer the appropriate Toll applicable to this new classification in the event that a Customer is using a Tag for a class of vehicle which is inconsistent with the class of vehicle to which the Tag relates.
3.5 The Customer acknowledges that with respect to inter-operability:
(a) He/she will be able to effect the discharge of a Toll by means of ETC in respect of a particular Toll Road to discharge the toll for a different Toll Road operated by another operator;
(b) The Operator shall be entitled to payment of the Toll in accordance with clause 3.4(b) above;
(c) The Operator shall also be entitled to payment of the Roaming Fee;
(d) The Operator shall notify the Customer from time to time of the identity of the Toll Roads;
(e) In the event that a Customer purchases a tag from another operator of a Toll Road and proposes to utilise this tag along with the Tag, it is the responsibility of the Customer to ensure that the Tag is read by the Operator’s ETC system. In the event that a tag not being the Tag is read by the Operator’s ETC system, the Customer will be charged the Roaming Fee.
4 PAYMENT OF TOLL AND CHARGES
4.1 The Operator shall be entitled to a Payment in respect of any Tolls, the Roaming fee, Account Maintenance Charges and other sums and charges due to it pursuant to the terms hereof, as the same shall be incurred. The charges which the Operator may deduct under this clause shall (without prejudice to the generality of the foregoing) include such charges as the Operator may notify from time to time in connection with Misuse, the misuse of a Toll Road or the issue of additional statements or reports to the Customer.
4.2 The Operator may on request from the Customer provide, a Statement to the Customer setting out the transaction history for the stated period. The Operator shall notify the Customer of any charges applicable to the provision of such Statement which shall be made by a Payment to the Operator.
4.3 Each time the Tag issued to a Customer is used to pay a Toll, whether by the Customer or by anyone else, authorised or not, a Payment shall be made to the Operator of the applicable Toll.
4.4 Where a Rejected Payment occurs, the Operator may deduct the amount owing from the Deposit. In such circumstances, a Payment shall be made to the Operator within 14 days of the Rejected Payment equal to the amount of the Rejected Payment to increase the Deposit to its previous amount balance.
5 CONSUMERS
Where a Customer is a Consumer, he or she may cancel the Agreement within 10 days of the date of the Agreement. Where the right of cancellation applies and is exercised by the Customer, the Customer will immediately return the Tag to the Operator within 10 days of receipt whereupon the Operator will reimburse the Deposit Account, the Tag Charge and any Account Maintenance Charges paid by the Customer. Where the Tag is used within the [10] day period, the Customer shall not be entitled to exercise his/her right to cancel the Agreement.
6 TERMINATION
6.1 This Agreement may be terminated by the Operator with immediate effect:
(i) if a petition is presented for a bankruptcy order in respect of the Customer or the Customer is otherwise unable to pay his/her debts as they fall due or, as appropriate, an encumbrance lawfully takes possession (and does not relinquish possession within 30 days) or a receiver is validly appointed in respect of the assets of the Customer or a petition is presented from the appointment of an examiner or an examinership order is made in respect of the Customer or a petition is presented for the winding-up of the Customer or an order or an effective resolution is made or passed for the winding-up of the Customer; or
(ii) if the Customer is in material breach of any of the terms of the Agreement if such breach is incapable of remedy or, if capable of remedy, such default continues unremedied for 30 days after notice thereof has been given by the Operator to the Customer;
(iii)where the Customer fails to use the Tag in accordance with this Agreement or has made or purported to make use of the Tag in an unauthorised or unlawful manner;
(iv)where in the opinion of the Operator, the Customer has ceased to make payments required in accordance with this Agreement and fails to discharge an amount owing to the Operator within 7 days of a request for payment.
6.2 This Agreement may be terminated by either party by giving 10 days notice to the other party.
6.3 This Agreement shall automatically terminate following the termination of any agreement to which the Operator is a party relating to the provision of the Toll Facilities by the Operator.
7 CONSEQUENCES OF TERMINATION
Following termination, the Customer will remain responsible for the payment of any amounts owing by the Customer under this Agreement. Any such amount shall be payable out of the Deposit and any remaining credit balance shall be refunded to the Customer. If the Deposit is insufficient to cover all charges payable, the Customer will remain liable for all such amounts. If such unpaid charges are not promptly paid to the Operator, the Customer may become liable for additional service charges, fines, or penalties, in accordance with applicable law.
8 LOST/STOLEN TAGS
8.1 In the event that a Tag is lost or stolen, it is the responsibility of the Customer to notify the Operator. The Customer shall continue to be liable for any use made of the Tag until the Operator has been notified of the Tag being lost or stolen and the Tag has been cancelled by the Operator.
8.2 Following notification to the Operator in accordance with Clause 9.1 above, the Operator shall cancel or otherwise disable the Tag and no further use may be made of the Tag.
8.3 Where a Customer loses a Tag, the Customer shall not be entitled to a replacement Tag but may re-apply for a new Tag and shall be liable for the Tag Charge in respect of the issue of the new Tag.
9 RETURN OF TAG
9.1 The Customer agrees to return the Tag to the Operator:
(i) upon request by the Operator;
(ii) where the Tag is defective or is found following a notification that the Tag is lost or stolen;
(iii)following the termination of the Agreement for whatever reason in which case the Customer will be refunded the Tag Charge subject to an appropriate deduction by reference to an amortization table and the amount referable to the Tag Charge after a period of two years from the date of issuance. Where the Customer is liable for any Toll, Account Maintenance Charges or any other charges in these circumstances and the amount of the Deposit is insufficient to cover these Tolls, charges, such Toll, charges will be deducted from the reduced Tag Charge.
9.2 Where a Customer fails to return a Tag in accordance with this Agreement, within 15 days of being obliged to do so, the Operator may impose a charge in respect of the Tag on the Customer, such charge to be payable out of the Deposit or within 15 days of a request for payment by the Operator.
10 MISUSE OF THE TAG
In the event that the Operator is of the opinion that the Tag is or has been subject to Misuse, the Operator will be entitled to cancel or otherwise disable the Tag so that no further use may be made of the Tag. The Operator shall not be liable to the Customer for any cancellation of the Tag due to any actual or reasonably suspected misuse of the Tag.
11 AMENDMENTS TO AGREEMENT
The terms and conditions of the Agreement may be changed by the Operator at any time and any such changes will be notified to the Customer prior to coming into effect. The Customer will be deemed to have accepted any such changes within 14 days of the notification or when the Customer uses his/her Tag after the date of notification, whichever is the shorter.
12 DISCLOSURE OF INFORMATION
12.1 The Customer confirms that the Operator may use, hold, maintain or disclose any information (including personal data as defined in the Data Protection Acts, 1988-2003) relating to the Customer (including, without limitation, the fact of any Rejected Payment) to any person wherever located in connection with this Agreement and/or in connection with any Toll Scheme.
12.2 The Operator shall be entitled to disclose information concerning a Customer or a Customers’ Account without prior reference to a Customer (including as to late payments) to any credit bureau, credit rating agency or to any other person the Operator reasonably believes to be seeking a reference or credit reference in good faith.
13 ASSIGNMENT
13.1 The Operator may assign, transfer or otherwise dispose of its rights, obligations and interest in or under the Agreement to any person at any time.
13.2 The Customer may not assign, transfer or otherwise dispose of its rights, obligations and interest in or under the Agreement.
14 FORCE MAJEURE
If the use of the Tag or any Toll Road is prevented or hindered by any matter beyond the control of the Operator including but not limited to acts of God, acts of government, strikes, lockouts, industrial disputes, winds, fire, lightning, aircraft, explosion, flooding, drought, riots, civil commotions, acts of war, malicious mischief or theft then the performance of the Agreement shall be suspended without any liability on the part of the Operator until such prevention or hindrance comes to an end.
15 LIABILITY
This clause sets out the Operator’s liability to the Customer under the Agreement. THE CUSTOMER’S ATTENTION IS DRAWN TO THE PROVISIONS OF THIS CLAUSE IN PARTICULAR.
15.1 To the maximum extent permitted by law, any and all liabilities of the Operator (whether under contract, tort (including negligence) or otherwise) arising out of or in connection with a Tag (including without limitation, the Tag failing to function, being deactivated or the Misuse of the Tag) are hereby excluded.
15.2 Neither the Operator nor its agents will have any obligation or liability with respect to the Customer’s use or the performance of the Tag. The Customer’s sole and exclusive remedy from the Operator and its agents will be the replacement of any defective Tag(s).
15.3 The Operator shall not be liable to the Customer for any loss of profits, goodwill, business opportunity or any type of special, indirect or consequential loss incurred by the Customer, whether directly or indirectly.
16 MISCELLANEOUS
16.1 The terms and conditions set out herein constitute all the terms and conditions of the Agreement. The Customer acknowledges that he/she has not relied upon any representation save for any set out in these terms and conditions.
16.2 The interpretation of the Agreement shall be governed by Irish Law and the Irish courts have jurisdiction to resolve any dispute in relation to the Agreement.
16.3 There shall be no waiver of any terms or conditions unless such waiver is evidenced in writing and signed by the waiving party. No omission or delay on the part of either party in exercising any right, power or privilege hereunder shall operate as a waiver, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof of any other right, power or privilege.
16.4 The rights and remedies herein are cumulative with and not exclusive of any rights or remedies provided by law. Except as expressly stated in this Agreement, any and all representations, warranties and undertakings, express or implied are hereby excluded.
17 PROVISIONS SEVERABLE
Each of the provisions contained in these Terms and Conditions shall be severable and distinct from one another and if any one or more of such provisions is now or hereafter become invalid, illegal or unreasonable, the validity, legality and enforceability of the remaining such provisions shall not in any way be affected, prejudiced or compared thereby.
18 NOTICES
18.1 Where either the Customer or the Operator is required to notify the other pursuant to this Agreement, or otherwise wishes to communicate with the other, such notice or communication may be served, in the case of the Operator by posting by recorded delivery post or delivering the same or sending the same by facsimile transmission to:
Customer Service Department: Eurolink Motorway Operation Limited, Meadowbrook, Cloncurry, Enfield, Co Meath. Fax number: 046 954 0269
or in the case of the Customer by posting by recorded delivery post or delivering the same or sending the same by posting, by recorded delivery post or delivering the same to the address last notified by the Customer.
18.2 Any notice or communication so served shall be deemed duly served 48 hours after posting or upon delivery or at the time of transmission or sending depending on whether it is sent by post, delivered, or sent by facsimile respectively.
18.3 If notification is by telephone or in person, it will only be effective if confirmed by written notice served in accordance with this clause 18 within seven days of such notification by telephone or in person.
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