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TERMS AND CONDITIONS

CUSTOMER AGREEMENT TERMS AND CONDITIONS

It is agreed

1. Definitions

In this Agreement:

Approved Installer means a person approved by GOTRACK™ to install the System.

Commencement Date means the commencement date set out in the Customer Agreement Schedule.

Communication Services means the mobile communication services to be provided by a Communication Service Provider in respect of the System.

Customer means the Customer described in the Customer Agreement Schedule.

Dealer means a person authorised by GOTRACK™ to sell M Hub hardware or Softwares.

Documentation means any instruction manuals, user guides and other information relating to the System.

Financier means any third party who purchases the M Hub hardware or Software from GOTRACK™ or a Dealer (as the case may be) on the Customer’s behalf pursuant to an agreement between that party and the Customer. Insolvency Event means any insolvency-related event that is suffered by the Customer, including without limitation where:

(a) the Customer ceases to carry on business or be able to pay its debts as they become due;

(b) the Customer disposes of the whole or any substantial part of its assets, operations or business other than in the normal course of business;

(c) any step is taken by a mortgagee to take possession or dispose of the whole or a substantial part of the Customer’s material assets, operations or business;

(d) any step is taken to enter into any arrangement between the Customer and its creditors (other than in the case of a solvent reconstruction or reorganisation); or

(e)any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a

provisional liquidator, a liquidator, an administrator, or other like person of the whole or part of the Customer’s assets, operation or business.

Intellectual Property Rights means the rights to patents, licenses, trade marks, trade names,

inventions, trade secrets, copyrights, and know-how relating to the origin, manufacture,

programming, operating and/or servicing of the System and any enhancements or modi?cations relating to the same.

Monthly Service Fee means the monthly service fee set out in the Customer Agreement

Schedule payable by the Customer to GOTRACK™.

M Zone Software means the vehicle satellite tracking software for use with the M Hub hardware or Software and on the Customer’s computer system, as described further in the Customer Agreement Schedule.

Passwords means any passwords used by the Customer, its officers, employees or agents toaccess or use the System.

Services means the provision of the Tracking Services working in conjunction with the Communication Services.

Service Provider means a third party authorised by GOTRACK™ to provide the Communication

Services to the Customer.

Service Period means the service period set out in the Customer Agreement Schedule.

Support Services means the support services provided by GOTRACK™ during the Warranty Period to correct faults in the System or to assist the Customer in operating the System.

System means the M Hub hardware or Software, the M Zone Software and any enhancements and modi?cations to the same.

Tracking Services means the GOTRACK M Zone™ service [please consider whether a more descriptive de?nition is appropriate] relevant to the M Hub hardware or Software(s) described in the Customer

Agreement Schedule.

M Hub hardware or Software means the Customer’s, or the Financier’s (as the case may be) GOTRACK™ vehicle satellite-tracking unit described in the Customer Agreement Schedule.

Warranty Period means 12 months (or such other period as the parties may agree in writing)

commencing on the Commencement Date.

2. Scope of Agreement

2.1 GOTRACK™ will supply the Services to the Customer on the terms and conditions set out in this Agreement.

2.2 the supply of the Services comprises of:

     (a) the supply of the Tracking Services for the Service Period;

     (b) procuring the supply of Communication Services unless the Customer advises that a

         Dealer has organised appropriate Communication Services on the Customer’s behalf.

     (c) the supply of the Documentation;

     (d) a licence to use the M Zone Software for the Service Period; and

     (e) the supply of the Support Services until the expiry of the Warranty Period.

3. Installation and Licence

3.1 The Customer will ensure that a GOTRACK™ Approved Installer, installs the System in accordance with GOTRACK’s reasonable instructions and testing procedures.

3.2 In consideration of the Monthly Service Fees, GOTRACK™ grants the Customer a non-exclusive, non-transferable licence to use the M Zone Software and Documentation solely for the Customer’s internal business purposes.

3.3 GOTRACK™ is not responsible for the provision or maintenance of the M Hub hardware or Software and any damage to, destruction or theft of, the M Hub hardware or Software.

4. Customer’s Obligations

4.1 The Customer will not, and will ensure that its officers, employees and agents will not, use the System (or any part of it) for any illegal, unlawful or offensive act and will ensure that it is used in accordance with all applicable laws, regulations, standards and industry codes of conduct.

4.2 The Customer must not use any equipment in connection with the System that has not ?rst been approved, in writing, by GOTRACK™.

4.3 The Customer will comply with the reasonable directions of GOTRACK™ from time to time regarding the use of the System and Documentation.

4.4 The Customer will indemnify GOTRACK™ against any claims, loss or damage (on a solicitor and own client basis and whether incurred by or awarded against GOTRACK™) that GOTRACK™ suffers or incurs, whether directly or indirectly, as a result of any breach of this clause 4.

5. Support

5.1 If the Customer requires support for the System, the Customer will call GOTRACK’s™ customer support number 1300 30 22 52

5.2 GOTRACK™ will use all reasonable efforts to provide Support Services for the System during the Warranty Period.

5.3 Should the Customer wish to receive Support Services after the Warranty Period, the Customer will enter into a new agreement with GOTRACK™ for the Support Services.

5.4 The Support Services do not include services resulting from:

         (a) misuse of the System or failure to use the System in accordance with the

             Documentation; or

         (b) unauthorised attempts to repair, replace, modify or maintain the System by persons

             other than GOTRACK™ or its authorised service providers.

6. Fees and Payment

6.1 The Customer will, unless mutually agreed between the parties, pay to GOTRACK™, the Monthly Service Fees on the 20th of each month following receipt of an invoice.

6.2 If the Customer fails to pay any amount when due, GOTRACK™ may without prejudice to its other rights or remedies under this Agreement:

         (a) charge the Customer interest on the amount owing from the due date until the date of

             actual payment at the base rate percentage charged by GOTRACK’s bankers from time to time plus 10%; and/or

         (b) suspend any Services provided under this Agreement.

6.3 GOTRACK™ may vary any amounts payable by the Customer under this Agreement on giving the Customer at least 30 days’ written notice.

6.4 All amounts speci?ed in this Agreement exclude GST. If GST is or becomes payable in respect of any supply made by GOTRACK™ to the Customer, the payment for that supply shall be increased by an amount equal to the GST payable so that GOTRACK™ retains the amount it would have retained but for the imposition of GST. Words or expressions used in this clause have the same meaning as de?ned in the A New Tax Act System (Goods and Services Tax) Act 1999 (Cth).

7. Warranties and Limitation of Liability

7.1 GOTRACK™ warrants to the Customer that:

    (a) it has full power and authority to license the M Zone Software;

    (b) to the best of its knowledge and belief the System does not infringe any Intellectual

        Property Rights of a third party;

    (c) during the Warranty Period the M Zone Software will function in accordance with its

        speci?cations but the Customer acknowledges that the M Zone Software is of a

        complicated and technical nature and may have minor or inherent defects. GOTRACK will

        provide all reasonable programming and remedial services to correct documented code

        errors which are caused by a defect in an unaltered version of the M Zone Software

        at no cost to the Customer. Any such programming and remedial services will be the

        Customer’s sole remedy in respect of the supply of defective M Zone Software.

7.2 Except as expressly set out in this clause 7 and to the maximum extent permitted by law, all

    representations, conditions and warranties (whether express or implied, statutory or  

   otherwise and including warranties as to the merchantable quality or ?tness for any particular

    purpose of the System or the Documentation) are expressly excluded.

7.3 GOTRACK™ will not be liable whether in contract, tort (including negligence) or otherwise for

    any indirect loss or damage (including any consequential loss or loss of pro?ts) suffered or

    incurred by the Customer arising out of or in connection with this Agreement.

7.4 GOTRACK’s™ liability to the Customer arising out of all claims for damages under this Agreement  will not exceed in aggregate the total amount actually paid by the Customer to GOTRACK™ under  this Agreement in the three months prior to the time such liability arises.

8. Intellectual Property and Con?dentiality

8.1 The Customer acknowledges that the Intellectual Property Rights in the System and

    Documentation are owned by GOTRACK™ or its licensors.

8.2 The Customer acknowledges that this Agreement does not transfer to the Customer

    any Intellectual Property Rights in the or the System (other than the limited rights granted in

    accordance with clause 3.2).

8.3 The Customer will not reproduce, translate, adapt, reverse engineer, vary or modify the

    M Zone Software, the System generally or the Documentation other than to make such

    reasonable number of copies of the M Zone Software as is necessary:

        (a) for the Customer’s own backup purposes; or

        (b) subject to clause 8.4, to enable the Customer’s employees, of?cers and agents to use

            the M Zone Software in accordance with this Agreement.

8.4 The Customer will:

        (a) take all reasonable steps to prevent, and will ensure that its of?cers, employees and

            agents take all reasonable steps to prevent, any unauthorised access to the M Zone

            Software and the System and to ensure the non-disclosure and con?dentiality of the

            System and Documentation;

        (c) not transfer, assign or otherwise deal with the System and Documentation or the

            Customer’s rights under this Agreement;

        (d) maintain all copyright notices on the System and Documentation;

        (e) not, and will ensure that its of?cers, employees and agents do not, disclose any

            Passwords and will ensure that all Passwords:

            (i) can not be easily guessed; and

            (ii) are changed regularly and as reasonably as requested by GOTRACK. The Customer

            must notify GOTRACK in writing immediately if it has knowledge of the existence of any

            circumstances which may suggest that any person may have unauthorised knowledge,

            possession or use of the System, Documentation and/or any Password.

8.5The Customer’s obligations under this clause will survive termination of this Agreement.

9. Term and Termination

9.1 The Customer may terminate this Agreement by giving GOTRACK™ at least 30 days’ prior written notice.

9.2 GOTRACK™ may terminate this Agreement, with immediate effect, if the Customer:

    (a) breaches any provision of this Agreement and does not remedy the breach within 14

        days after receiving a written, faxed or emailed notice from GOTRACK™ or its authorised

        representative requiring the breach to be remedied;

    (b) suffers an Insolvency Event,

    (c) fails to maintain the M Hub hardware or Software; or

    (d) the Communication Services are suspended for any reason whatsoever.

9.3 On termination of this Agreement the Customer:

    (a) will remain liable for payment of any charges that become due for payment before or after

        termination; and

    (b) must immediately cease to use the M Zone Software and all Documentation and deliver

        to GOTRACK™ all copies of the M Zone Software and Documentation in the Customer’s

        possession or control.

9.4 Within 30 days of termination, the Customer must certify to GOTRACK™, in writing, that it has fully  complied with its obligations under clause 9.3(b).

9.5 On termination of this Agreement, the licence granted pursuant to clause 3.2 will automatically cease.

10. General

10.1 Any notice given under this Agreement will be in writing delivered to the relevant party

        or sent by post or facsimile or email transmission at such address or number as may be

        noti?ed in writing by each party to the other from time to time. Any such notice will be

        deemed received at the time when the same is handed to or left at the address of the party

        to be served and if served by post two working days (not being Saturday, Sunday or a

        public holiday) after the day of posting and if served by fax on the day of dispatch.

10.2 If any provision of this Agreement is held to be invalid or unenforceable, the remaining

        provisions will remain in force and effect.

10.3 If GOTRACK™ waives any default or breach of this Agreement, this will not constitute a

        Waiver of any other or subsequent default or breach. No waiver will be effective unless       

        made in writing.

10.4 The Customer may not assign, sub-licence or transfer its rights and obligations under this

        Agreement without the prior written consent of GOTRACK™.

10.5 Neither party will be liable for any delay or failure in the performance of its obligations

        under this Agreement if such delay or failure is due to a force majeure event, being any

        cause outside its reasonable control including but not limited to acts of God, natural

        disaster, riot, malicious damage, ?re or acts of any governmental authority.

        This clause 10.5 does not apply to any obligation to pay money for liabilities incurred prior

        to the force majeure event.

10.6 This Agreement is governed by the laws of Australia and the parties agree to submit to the

        exclusive jurisdiction of the Courts of Australia.

 

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