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. |
