Trackem Pty Ltd
Terms and Conditions of Trading
These are the terms and conditions on which Trackem Pty Ltd:
(a) Provide IT Support; (b) Licenses the customer to use the Trackem Pty Ltd software; (c) Supplies software to the customer; and (d) Provides installation, training, support, maintenance and any other services to the customer.
1 – Definitions
Customer means the individual, company, or legal entity that has entered into this agreement with Trackem Pty Ltd, as identified in the accompanying proposals, quotes, order form, registration form, online subscription process, or other documentation provided or approved by Trackem Pty Ltd
Hardware means the hardware to be supplied by the Customer under this agreement as identified in the schedule and described in the Documentation and includes any monitoring, improvement, upgrade, fixing or replacement of the Hardware provided by the Customer pursuant to this agreement.
Software means the Trackem Pty Ltd software to be supplied by Trackem Pty Ltd to the Customer under this agreement as identified in the schedule and described in the Documentation and includes any improvement, update, version or adaptation of the Software provided by Trackem Pty Ltd pursuant to this agreement.
Documentation means the Trackem Pty Ltd documentation for the Software to be supplied to the Customer under this agreement as identified in the schedule including any installation and user manuals and guides provided with the Software.
Licence means the licence to use the Software and Documentation set out in this agreement.
Services means any installation, training, support, maintenance or other services to be provided by Trackem Pty Ltd to the Customer as identified in the schedule or as agreed in writing between Trackem Pty Ltd and the Customer.
Term means the term set out in the schedule and any extension to the term agreed in writing between Trackem Pty Ltd and the Customer.
Third Party Software means software which is not owned by Trackem Pty Ltd which is supplied by Trackem Pty Ltd for use with the Software.
Training means the training to be provided by Trackem Pty Ltd to the Customer under this agreement.
2 – Supply
All Software, Third Party Software and Documentation are supplied to the Customer on the terms of this agreement. These terms apply to any additional Software, Third Party Software and Documentation supplied at any time by Trackem Pty Ltd.
3 – Services
Trackem Pty Ltd agrees to provide the Services for the Term. Any Services provided to the Customer will be provided on the terms of this agreement. These terms apply to any additional Services supplied at any time by Trackem Pty Ltd. Trackem Pty Ltd may subcontract the provision of the Services.
4 – License
Trackem Pty Ltd grants to the Customer a non-transferable, non-exclusive licence to use the Software and Documentation in the Customer’s business for the purposes set out in the Documentation. The Saas-licence is subscription-based, subject to payment of any renewal fees or termination of this agreement.
5 – Payment
The Customer will pay for the Software, Documentation, Services and Licence 30 days after the invoice is sent.
6 – Intellectual property
Trackem Pty Ltd retains ownership of all intellectual property rights in the Software and Documentation including (without limitation) the copyright in any Software and Documentation and in any improvement, update, version or adaptation of the Software or Documentation made in providing the Services or otherwise and whether made by Trackem Pty Ltd, the Customer or any other person. The Customer will not remove any notices regarding the ownership of intellectual property from the Software or Documentation.
7 – Ownership of Software
The Customer will not copy, or permit any other party to copy, the Software or any part of it. The Customer must not sell or purport to sell any copies of the Software. All copies of the Software, including copies made by the Customer, are the property of Trackem Pty Ltd. The Customer may not copy or publish the Documentation in whole or in part, except as permitted in writing by Trackem Pty Ltd. The Customer will not reverse engineer, decompile or disassemble the Software, or permit any other party to do any such act. Each of the above terms is subject to the Customer’s rights under Division 4A of the Copyright Act.
The Customer must not disable or attempt to disable any device installed in the Software which controls its use, including (without limitation) any device which controls the number of concurrent users of the Software or the locations at which it can be used.
Where Trackem Pty Ltd develops Software, including any other application or use of the Software, pursuant to a request from the Customer or in fulfilling requirements specified by the Customer, the Customer acknowledges that Trackem Pty Ltd owns the intellectual property rights in such Software and is entitled to license other parties to use such Software.
8 – Source code
Trackem Pty Ltd retains ownership of the source code of the Software which will not be delivered to the Customer. The Customer is not entitled to obtain a copy of the source code or otherwise access the source code.
9 – Non-disclosure
The Customer will take all reasonable steps necessary to ensure that the Software or Documentation or any part of it, is not made available by the Customer, or by any of its employees, agents or sub-contractors, to any other organisations or individuals, except as permitted under this agreement.
10 – Assignment
The Licence is personal to the Customer and the Customer must not sell or sub-license or assign the Licence to any other person (or purport to do any of the said acts) except as set out in the schedule.
11 – Training
All personnel of the Customer who use the Software must: (a) be suitably qualified, experienced and skilled in the use of the Software; and (b) undertake the Training to the reasonable satisfaction of Trackem Pty Ltd.
Without limiting any other provision in this agreement, Trackem Pty Ltd will not be liable to the Customer (whether for breach of contract, negligence or otherwise) for any loss or damage suffered by the Customer or any third party by reason of any failure to comply with the above requirements.
12 – Warranties
Trackem Pty Ltd warrants that the Software will perform substantially in accordance with the Documentation for a period of ninety (90) days from the date of receipt of the Software by the Customer.
Trackem Pty Ltd warrants that the Services will be provided with reasonable care and skill.
To the extent permitted by law, Trackem Pty Ltd does not warrant that the Software is error free or fit for the purpose of use by the Customer. The Customer acknowledges that the Software may contain errors which may affect the operation of the Software and the results or data generated by the Software. The Customer accepts that, to the extent permitted by law, Trackem Pty Ltd accepts no liability for any errors arising out the use or performance of the Software or the data, results or other information generated by the Software.
13 – Third Party Software
Any Third-Party Software is supplied by Trackem Pty Ltd without any warranty by Trackem Pty Ltd. Trackem Pty Ltd will use reasonable endeavours to procure the benefit of any third-party warranties relating to any Third-Party Software.
14 – No other warranties
Except as set out in clauses 12 to 13 above or where implied by law, Trackem Pty Ltd gives no other warranty and makes no representation or undertaking in relation to the Software, Third Party Software, Documentation or Services, or their performance or suitability for any purpose. Except to the extent that any law or statute prohibits the exclusion of any condition or warranty, all other conditions or warranties are excluded. All implied terms, conditions and warranties in any Sale of Goods legislation are excluded.
15 – Non-excludable rights
Where any law or statute implies a term into this agreement, or confers a right or remedy, which cannot be excluded, the liability of Trackem Pty Ltd is limited to the maximum extent allowed under the applicable law or statute.
16 – Remedy for breach of warranty
Trackem Pty Ltd liability and the Customer’s remedy for breach of any express warranty, or warranty or right implied or conferred by law, is limited to, at Trackem Pty Ltd option, one or more of:
In the case of any goods: (a) replacement of the Software, Third Party Software or Documentation or supply of equivalent software or documentation; (b) correction or repair of the Software, Third Party Software or Documentation; (c) payment of the cost of replacing the Software, Third Party Software or Documentation or acquiring equivalent software or documentation; or (d) payment of the cost of repairing or correcting the Software, Third Party Software or Documentation.
In the case of any services: (a) supplying the services again; or (b) payment of the cost of having the services supplied again.
17 – Use of data generated by the Software
Trackem Pty Ltd accepts no responsibility for, and excludes liability for, any interpretation or use of the data, results or other information generated by use of the Software by the Customer. The Customer acknowledges and agrees that such data, results or other information may contain errors or omissions. The Customer acknowledges that the interpretation and use of such data, results or other information involves the skill and judgement of the personnel using the Software over which Trackem Pty Ltd has no control.
Without limiting any other provision in this agreement, Trackem Pty Ltd will not be liable to the Customer (whether for breach of contract, negligence or otherwise) for any loss or damage suffered by the Customer or any third party by reason of the interpretation or use of the data, results or other information generated by use of the Software by the Customer or for any error or omission by any person using the Software.
The Customer will indemnify Trackem Pty Ltd, and keep Trackem Pty Ltd indemnified against any claim by the Customer or any third party arising out any use of the data, results or other information generated by use of the Software by the Customer including (without limitation) any claim arising out of any action taken by the Customer or any third party relying on the data, results or other information generated by use of the Software or any claim alleging a breach of any applicable law, legislation, regulation or code of practice.
18 – Liability
Except as expressly provided elsewhere in this agreement, Trackem Pty Ltd will be under no liability to the Customer (whether for breach of contract, negligence or otherwise) in respect of any loss or damage which may be suffered or incurred by the Customer or which may arise directly or indirectly in respect of the supply or use of the Software or Documentation or provision of the Services under this agreement.
19 – Consequential loss
Without limiting the generality of clause 18 above, Trackem Pty Ltd will be under no liability to the Customer (whether for breach of contract, negligence or otherwise) for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business or profits, loss resulting from business interruption, loss of business information, loss resulting from any claim by any third party or any other pecuniary loss) arising out of the supply of the Software or Documentation or any use of the Software or Documentation supplied or the provision of the Services, even if Trackem Pty Ltd has been advised of the possibility of such damages.
20 – Compliance with laws
The Customer is responsible for complying with any law, legislation, regulation or code of practice applicable to the Software and its use or any action taken by the Customer relying on the data, results or other information generated by use of the Software. Trackem Pty Ltd is not responsible for, and excludes liability for, any breach of any applicable law, legislation, regulation or code of practice by the Customer in relation to use of the Software or action taken by the Customer relying on the data, results or other information generated by use of the Software.
Without limiting the generality of the above, it is the Customer’s responsibility to ensure that any use of the Software or action taken by the Customer relying on the data, results or other information generated by use of the Software does not breach any applicable privacy, telemarketing or data protection laws, any laws relating to the rights of employees; any laws relating to the use or disclosure of confidential information; or result in any claim being made against Trackem Pty Ltd or the Customer.
21 – Customer’s sub-contractors
The Customer will not sub-contract the use of the Software to any third party or permit any third party to access the Software without the prior written consent of Trackem Pty Ltd. Trackem Pty Ltd will not withhold its consent provided that: (a) the sub-contractor engages appropriately qualified, experienced and skilled personnel to use the Software and the interpretation of the data generated by use of the Software; (b) the sub-contractor’s personnel undertake appropriate Training; and (c) the sub-contractor is not considered by Trackem Pty Ltd to be in competition with Trackem Pty Ltd in the supply of software similar to the Software. Where the Customer engages a sub-contractor, in this agreement (where the context permits) a reference to the Customer includes a reference to the sub-contractor.
22 – Co-operation and Access
The Customer will provide any access, co-operation and assistance reasonably required by Trackem Pty Ltd for the purpose of the provision of the Services including (without limitation) the matters specified in the Schedule.
The Customer will provide full and safe access to the Customer’s premises or other facilities as is reasonably required by Trackem Pty Ltd for the purpose of providing the Services including (without limitation): (a) providing any necessary equipment, materials and information to Trackem Pty Ltd; (b) providing all facilities, IT support, services and accessories reasonably required to enable Trackem Pty Ltd to comply with its obligations; (c) providing Trackem Pty Ltd, if requested, a suitably qualified or informed representative, agent or employee to accompany Trackem Pty Ltd and to advise Trackem Pty Ltd on project requirements, access, security procedures and any other matter within the Customer’s knowledge or control which will assist Trackem Pty Ltd in complying with its obligations.
The Customer will take all reasonable steps to ensure the health and safety of all Trackem Pty Ltd employees or contractors while they are on the Customer’s premises to ensure that any equipment provided to such employees and contractors under this agreement is electronically safe for use by such employees and contractors.
23 – Termination
Trackem Pty Ltd may terminate this agreement with immediate effect, including the Licence granted to the Customer, by giving notice to the Customer if: (a) the Customer is in breach of this agreement and fails to remedy the breach within 30 days of receipt of written notice of the breach; (b) the Customer fails to pay any amount due to Trackem Pty Ltd within 14 days of receiving a written demand for payment; (b) the Customer is subject to any application for winding up or liquidation, or for the appointment of a receiver or manager, or is subject to any other form of insolvency administration.
If this agreement is terminated, the Customer must immediately stop using the Software and Documentation and delete the Software from its computer systems. On termination all payments due to Trackem Pty Ltd must be made within 14 days.
24 – Confidentiality
Each party will keep confidential any confidential information belonging to the other party disclosed pursuant to this agreement. Confidential information belonging to Trackem Pty Ltd includes the unpublished content and methodology of the Software, Trackem Pty Ltd dealings with the Customer and any other information relating to the business, operations or products of Trackem Pty Ltd, other than information in the public domain or information which subsequently enters the public domain (except as a result of a breach of this agreement).
25 – Severance
If any term or part of this agreement is, or becomes, for any reason invalid or unenforceable at law, that term or part of this agreement will be and is hereby deemed to be severed from this agreement without affecting the remainder of this agreement and the remainder of this agreement will continue to be valid and enforceable.
26 – Amendment
This agreement may only be amended, varied or replaced by a document duly signed by or on behalf of the parties.
27 – Entire agreement
This agreement constitutes the entire agreement between the parties in respect of the supply of the Software and Documentation. This agreement supersedes all prior representations, warranties, agreements, understandings, negotiations and discussions whether oral or written, express or implied, collateral or otherwise, by or between the parties pertaining to the subject matter of this agreement.
28 – Force majeure
A party will not be liable to the other for any delay or failure to perform its obligations under this agreement by reason of any circumstances beyond its reasonable control.
29 – Governing law and jurisdiction
This agreement is governed by and is to be construed in accordance with the laws of Western Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Western Australia.
30 – Advertisements and Announcements
Trackem Pty Ltd shall be permitted to use the success stories in their marketing collateral (Brochure, Website, Social Media, Case Studies, Press and Media releases etc.), at its own expense, after giving the Client a reasonable opportunity to comment on the form and content thereof.
31 – Poaching
The Customer covenants that, during the term of this agreement and for a period of not less than twelve (12) months following termination of this agreement, it will not, either directly or through its subsidiaries and associated entities, offer employment by way of contract or staff position to any employee or integrated consultant of Trackem Pty Ltd, whether or not such employee or integrated consultant is engaged in the provision of services. The Customer further covenants that should it breach this clause 15 resulting in such offer being taken up, the contractor will pay to the Principal twelve times the monthly salary otherwise payable by the Trackem Pty Ltd in respect of each employee or integrated Contractor the subject of such breach. The Customer agrees that the amount stipulated in this clause 15 is a genuine pre-estimate of the loss that Trackem Pty Ltd will suffer as a result of a breach of this clause.
32- Data Storage and Processing Locations
Customer data is securely stored in Microsoft Azure Australian Data Centres. In addition, we use analytics and error logging tools to enhance performance and resolve issues. Data processed through these services may be stored in Australia or the United States, depending on the service providers used.
