Software & Hardware Licence Agreement
TELETRACK PTY LTD
SOFTWARE & HARDWARE LICENCE AGREEMENT
(a) You will be taken to have accepted these terms and conditions if you sign these terms and conditions or if you order, accept or pay for any services provided by Teletrack after receiving or becoming aware of these terms.
(b) In the event of any inconsistency between these terms and conditions and any Order Form, the clauses of these terms and conditions will prevail to the extent of any inconsistency, except that any “Special Conditions” (being terms set out and described as such in an Order Form) will prevail over the other terms of this agreement to the extent of any inconsistency.
(c) Words used in this agreement have the meaning given to them in the Order Form, or by the words immediately preceding the word when bolded and in brackets.
(a) In consideration for the payment of the Fees, Teletrack will provide the Client with the Services set out in an Order Form.
(b) Unless otherwise agreed, Teletrack may, in its absolute discretion:
(i) not commence work on any Services until the Client has paid any fees or deposit payable in respect of such Services; and
(ii) withhold delivery of the Services (including any Hardware) until the Client has paid the invoice in respect of such Services.
(a) Teletrack grants to the Client a non-exclusive, non-transferable and revokable licence to use the Software during the Term for the Asset(s) and Unit(s) described in the Order Form.
(b) The data collected through the Software is unlikely to be completely accurate as factors such as GPS reception and Hardware issues affect measurements, and Teletrack’s algorithms are approximate. The Client acknowledges and agrees that any measurements or other data provided to the Client are approximate.
(c) The Client must not, and must not encourage or permit any third party to, without Teletrack’s prior written approval:
(i) make copies of any part of the Software;
(ii) adapt, modify or tamper in any way with any part of the Software;
(iii) remove or alter any copyright, trade mark or other notice on or forming part of the Software;
(iv) create derivative works from or translate any part of the Software;
(v) publish or otherwise communicate any part of the Software to the public, including by making it available online or sharing it with third parties;
(vi) sell, loan, transfer, sub-licence, hire or otherwise dispose of any part of the Software to any third party;
(vii) decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;
(viii) attempt to circumvent any technological protection mechanism or other security feature of the Software; or
(ix) permit any other person to use or access the Software.
Where an Order Form states that the Services include the Client purchasing Hardware:
(a) ownership and risk of loss will transfer on delivery of the Hardware;
(b) subject to and without limiting or otherwise affecting clause 13, if issues arise with the Hardware within 6 months of purchase, Teletrack will repair or replace (in Teletrack’s absolute discretion) the Hardware at no cost, after which time the Client will be liable to pay the costs of repairing or replacing the Hardware;
(c) if the battery or power supply of the Hardware is unable to provide adequate power for the Hardware to operate, functionality will be unavailable; and
(d) the Hardware is non-refundable, including if this agreement is terminated for any reason, unless there is a failure or fault of the Hardware not caused by the Client. To avoid doubt, if Hardware is no longer required or is no longer able to support the business operations of the Client, no refund will be provided.
(e) The Client must not adapt, modify, tamper with, or substitute, any Hardware (for the avoidance of doubt, including any QR Codes) provided by Teletrack.
(a) Where an Order Form states that the Services include Teletrack performing Installation Services:
(i) the Installation Services will provide instructions to clients on how the Hardware and Software, including immobilisation functions and pre-start functions, as applicable, should be installed and configured;
(ii) the Client must ensure that the premises are made available to Teletrack at the time that Teletrack nominates, in its absolute discretion, for installation; and
(iii) the Client is responsible for providing Teletrack with all information, furniture and power relevant to Teletrack being able to complete the installation at the time specified.
(b) Where an Order Form states that the Services do not include Teletrack performing Installation Services, Teletrack accepts no responsibility for the successful installation and configuration of the Software and Hardware, including that both are installed and configured correctly and in accordance with Teletrack’s instructions and providing adequate training to users to ensure their proper use.
The Software, when properly installed on the Hardware and when successfully accessing the M2M One network, will allow the Client to use the Tracker to immobilise the Asset. The Client:
(a) acknowledges and agrees that the nature of immobilising the Asset has inherent risks;
(b) must notify their customer that they intend to use the immobilisation function and instruct them to ensure that the Asset is in a safe location prior to using the immobilisation function;
(c) must ensure that the Asset is fitted with a warning label which shows that the Asset is fitted with the Tracker and to ensure that the Tracker does not impact user safety.
7. SUPPORT SERVICES
Where an Order Form states that the Services include Support Services, during the hours of 8:30am to 5:30pm, you may contact Teletrack on the landline number provided in the Order Form. Teletrack will use our best endeavours to assist you as soon as practicable.
8. BACK-UP SERVICES
Where an Order Form states that the Services include the back-up or storage of the Client’s information, data or other electronic materials (Backup Services), the Client acknowledges and agrees that:
(a) (backup location) Teletrack will only use servers located in Australia wherever conveniently possible.
(b) (security) While Teletrack will use its best efforts to ensure that any Client information, data or other electronic materials (Client Data) that is being backed-up or stored as part of the Backup Services will be stored securely, Teletrack will not be liable for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference;
(c) (service quality) Teletrack does not guarantee that:
(i) backups of Client Data will be free from errors or defects; or
(ii) backups of Client Data will be accessible or available at all times; and
(d) (backups & disaster recovery) Teletrack will use its best efforts to create scheduled backups of Client Data stored by Teletrack. In the event that Client Data is lost due to a system failure, Teletrack will attempt to restore the Client Data from the latest available backup but cannot guarantee that this backup will be free from errors or defects.
9. M2M ONE TELCO
(a) Nothing in this clause limits or otherwise affects clause 11.
(b) Where an Order Form states that M2M One applies, we provide a telecommunications service through the Telstra network (M2M One).
(c) The M2M One network:
(i) may be affected by various external factors which could cause the M2M One network to fail or otherwise have limited availability;
(ii) may at times not allow emails to be delivered; and
(iii) does not provide 100% coverage underground, in remote areas, indoors and to many locations, which may affect the availability of the Services.
Such failures are beyond our control.
(d) If your Hardware uses more data than is provided through the M2M One, you may be charged for that extra data usage.
(a) All enhancements made by Teletrack may be taken up or rejected by the Client in its absolute discretion, provided that:
(i) if such enhancements are rejected by the Client, the Client will cease to be entitled to Support Services or other benefits under this agreement; and
(ii) if such enhancements are accepted by the Client, all enhancements:
A. must be installed by the Client as instructed by Teletrack, unless Teletrack agrees to provide installation support;
B. are licensed by Teletrack to the Client upon the same terms as this agreement; and
C. will be taken to be part of the original licensed copy of the Software and subject to this agreement.
(b) If enhancements are provided, the Client acknowledges and agrees that installation of enhancements may cause interruptions to the Services.
11. THIRD PARTY PROVIDERS
(a) The Client acknowledges and agrees that Teletrack relies on Third Parties to deliver the Services. While every effort is made to ensure that the Services are delivered, the failure of third parties to perform activities may cause disruptions to the Services. Where this occurs, Teletrack will use its best endeavours to ensure that disruptions are promptly resolved.
(b) If the Services involve Teletrack acquiring goods and services supplied by a third party on the Client’s behalf or the use of third party providers to provide the Services, third party terms & conditions (Third Party Terms) may apply.
(c) The Client agrees to any Third Party Terms applicable to any third party goods and services that are used in performing the Services, and Teletrack will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
12. CLIENT OBLIGATIONS
12.1 PROVIDE INFORMATION
The Client must provide Teletrack with all documentation, information and assistance reasonably required by Teletrack to perform the Services.
12.2 COMPLIANCE WITH LAWS
The Client agrees that it will not by receiving or requesting the Services:
(a) breach any applicable laws, rules and regulations (including any applicable privacy or stalking laws); or
(b) infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.
The Client must notify all users of the Asset that the Tracker is installed on the Asset and of the purpose and capabilities of the Tracker.
12.3 RESPONSIBLE FOR PERSONNEL
The Client acknowledges and agrees that it is responsible for all acts or omissions of its personnel, including for a breach of these terms.
(a) The Client must pay to Teletrack fees in the amounts and at the times set out in the Order Form (Fees), as well as any additional fees incurred for excess data usage.
(b) The Fees are payable monthly in advance of receiving the Services, or seven days after receiving an invoice form Teletrack, whichever occurs earlier.
(c) Teletrack reserves the right to suspend all or part of the Services indefinitely where the Client fails to pay the Fees in the amounts and times specified in the Order Form.
(d) Unless otherwise indicated, amounts stated in an Order Form do not include GST. In relation to any GST payable for a taxable supply by Teletrack, the Client must pay the GST subject to Teletrack providing a tax invoice.
(e) Teletrack reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement or an Order Form are excluded.
(b) Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, Teletrack’s liability for breach of that non-excludable condition, warranty or guarantee will, at Teletrack’s option, be limited to:
(i) in the case of goods, their replacement or the supply of equivalent goods or their repair; and
(ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
(c) Where an Order Form states that the Services include Hardware, that Hardware may be covered by a manufacturer’s warranty.
15. LIMITATION OF LIABILITY
To the extent permitted by applicable law, Teletrack’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or death or other damage) arising under or in connection with this agreement or an Order Form:
(a) is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill; and
(b) is limited, insofar as concerns other liability, to the total money paid to Teletrack under this agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
To avoid doubt, this clause applies to claims arising from personal injury or death.
The Client indemnifies Teletrack from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
(a) any breach of this agreement by the Client; or
(b) any negligent, fraudulent, criminal or wrongful act or omission of the Client or its personnel.
17. DISPUTE RESOLUTION
(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this agreement prior to commencing any proceedings.
(b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.
(c) The parties acknowledge that compliance with this clause 16 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
(i) in the case of applications for urgent interlocutory relief; or
(ii) a breach by another party of this clause 16.
18.1 TERMINATION BY TELETRACK
Teletrack may terminate these terms or any Order Form in whole or in part immediately by written notice to the Client if:
(a) the Client is in breach of any term of these terms or any part of an Order Form;
(b) the Client becomes subject to any form of insolvency or bankruptcy administration; or
(c) the Client is involved, or Teletrack reasonably suspects that the Client is involved, in illegal activities.
18.2 TERMINATION BY CLIENT
The Client may terminate this agreement:
(a) if Teletrack has committed a material breach of this agreement or an Order Form and has failed to remedy the breach within 30 days written notice by the Client;
(b) if Teletrack consents to such termination, subject to the Client’s fulfillment of any pre-conditions to such consent (e.g. payment of a pro-rata portion of the agreed fees); or
(c) Teletrack becomes subject to any form of insolvency or bankruptcy administration.
18.3 EFFECT OF TERMINATION
Upon termination of this agreement, the Client must promptly pay (at Teletrack’s request):
(a) Teletrack’s expenses to date;
(b) payments required by Teletrack’s suppliers to discontinue their work;
(c) usual time charges for the work of Teletrack’s staff to date;
(d) Teletrack’s standard fees in relation to work already performed; and/or
(e) an equitable amount by way of profit margin on the preceding items.
Any provision of these terms (including in an Order Form) which, by its nature, would reasonably be expected to be performed after the termination, shall survive and be enforceable after such termination.
(a) The parties will not, during or after the Term, disclose Confidential Information directly or indirectly to any third party except:
(i) with the other party’s prior written consent;
(ii) as required by law; or
(iii) to a party’s directors, officers or employees on a need to know basis for the purposes of performing its obligations under this agreement (Additional Disclosees).
(b) If a party becomes aware of a suspected or actual breach of this clause by it or an Additional Disclosee, it will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach.
(c) A party may only use Confidential Information for the purposes of exercising its rights or performing its obligations under this agreement.
(d) A party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause and, upon request by the other party, will arrange for an Additional Disclosee to execute a document in a form reasonably required by that party to protect Confidential Information.
(e) For the purposes of this clause, “Confidential Information” means information of or provided by a party that by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge. For the avoidance of doubt, any information or data relating to Teletrack’s assets, including its Intellectual Property Rights, its business plans and future product initiatives are Confidential Information.
20. INTELLECTUAL PROPERTY
(a) Teletrack retains ownership of all Intellectual Property Rights in Our IP and nothing in these terms transfers ownership of such rights to any person.
(b)All Intellectual Property Rights in any Developed IP are immediately assigned to and vest in Teletrack as those rights are created.
(c) Neither party may alter, remove or otherwise interfere with any Intellectual Property Rights of the other party.
(d) To the extent that the Client has Moral Rights in any Developed IP the Client gives a Moral Rights Consent. To the extent that a person, other than the Client, has Moral Rights in any Developed IP, the Client will obtain a Moral Rights Consent from that person, and provide it on request by and in a form acceptable to Teletrack.
(e) The Client must notify Teletrack, in writing, as soon as it becomes aware of any suspected, threatened or actual infringement of any Intellectual Property Rights in Our IP or any Developed IP.
(f) For the purposes of this clause:
(i) “Developed IP” means any Materials produced by Teletrack in the course of this agreement, including explanatory videos, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with Client or others, and any Intellectual Property Rights attaching to those Materials;
(ii) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, Confidential Information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the date of this agreement, whether registered or unregistered;
(iii) “Material” means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever; and
(iv) “Our IP” means all Materials owned or licensed by Teletrack that is not Developed IP and any Intellectual Property Rights attaching to those Materials, including in relation to the Software and Hardware and all applicable documentation.
21.1 FORM OF NOTICE
A notice or other communication to a party under this agreement must be:
(a) in writing and in English; and
(b) addressed to that party to:
(i) the postal address of that party; or
(ii) the email address of that party that has been regularly used by the parties to correspond during the term of this agreement (unless such email address is known to be inactive by the party giving notice).
21.2 HOW NOTICE MUST BE GIVEN
A notice must be given by one of the methods set out in the table below and is regarded as given and received at the time set out in the table below.
Method When Notice is regarded as given and received
By hand On delivery
By pre paid post in the same country On the third Business Day after the date of posting
By pre paid post in another country On the fifth Business Day after the date of posting by airmail
By email to the nominated email address Unless the party sending the email knows or reasonably ought to suspect that the email and the attached communication were not delivered to the addressee’s domain specified in the email address, 24 hours after the email was sent.
22.1 GOVERNING LAW
This agreement is governed by the law applying in New South Wales, Australia.
Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
This Agreement may only be amended by a document signed by each party.
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
22.6 FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
22.7 ENTIRE AGREEMENT
This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.