Terms and Conditions

This Agreement applies when we, TracPlus Global Limited ("TracPlus Global") agree to provide access to you for use of our TracPlus global tracking solution, an internet based service that allows you to track certain assets and store that data centrally. As part of our TracPlus solution, we may also sell you third party tracking terminals and arrange for air time for you (to allow the tracking terminals to operate and communicate), and we may provide you with our TracPlus application software (together, "TracPlus" or the "TracPlus solution").

DEFINITIONS
1. References in this Agreement to "we" or "us" are to TracPlus Global Limited. In completing the application for TracPlus, you have told us your legal name and your contact details. You confirm these are correct. References to "you" refers to you, the customer who has completed our application form.
2. In this Agreement, the following words mean the following:
  
  "Fee" means the sums we charge for set up of the TracPlus solution, including fees for provision of terminals and software, and fees we charge for your use of the TracPlus solution or associated support of it. Our fees may include air-time usage fees.
  
  "Intellectual Property Rights" means all rights in the TracPlus solution, and in our website through which you use TracPlus and in the application software we provide, including rights to patents, trade marks, service marks, inventions, copyright, know how whether or not registered, and any related enhancement or modifications.
Access and Use of TracPlus Solution
1. We agree to provide, and you agree to accept, set up and ongoing access to the TracPlus solution in accordance with the terms of this Agreement.
2. You acknowledge that:
  1. You are responsible for all computer equipment, communications channels and links, and Internet or other access you require to access and use the TracPlus solution (other than where we agree to provide terminals to you, or to arrange for air-time for you), and for all charges in relation to those things - other than the Fees;
  2. Your selection of the terminals, other equipment and software, communication channels, plans and links, and the quality of the installation that you arrange, will affect your access to the TracPlus solution, the performance of TracPlus and the solution offered to you, and the quality of the data that you receive from TracPlus. For example, if transmission of data is affected by location of your assets, the data you receive will only be the data that we have been able to gather from your assets. Suitability of your selections are your sole responsibility and risk;
  3. You must follow all the guidelines, user guidelines, instructions and manuals we give you for use of the TracPlus solution and the equipment and services that are used to provide it to you.
3. You must always use TracPlus, associated equipment and services and the data that TracPlus provides you with in compliance with all relevant laws and regulations in your areas of use including without limitation applicable laws and regulations relating to the use of any of them for aeronautical use specifically and for the avoidance of doubt, if you elect to install or otherwise use equipment that is not certified or approved for aeronautical use, you are responsible for ascertaining whether the terminal is suitable for that purpose and that it is installed in compliance with all relevant laws and regulations of all relevant authorities in your areas of use.
4. You confirm that you understand that TracPlus is a solution ordinarily used by businesses or that you will be using TracPlus for the purposes of a business. The provisions of the New Zealand Consumer Guarantees Act 1993 therefore do not apply to your use of TracPlus.
Software Licence; Support
1. As part of the TracPlus solution, we may provide you with the TracPlus application software. We retain ownership of the software. We licence you to use it only while you use the TracPlus solution and pay the Fees. You must not:
  1. Transfer the software to anyone else;
  2. Copy, modify, alter, translate, vary, decompile, disassemble or reassemble it in any way;
  3. Use it for any other purpose other than in conjunction with your use of the TracPlus solution, or use it to resell or otherwise provide TracPlus in any way to any third party.
2. We will provide you with support for your use of TracPlus as follows:
  1. We will provide you with reasonable telephone or email advice (at our discretion) to assist in your use of TracPlus.
  2. We may update or upgrade the TracPlus solution (including the application software) with new versions or updates at our discretion. There may be a fee for upgrades that incorporate enhanced functionality. If we require you to, you must install new updates or upgrades if we require and you acknowledge that if you do not do so, your use of the TracPlus solution might be impaired or suspended.
3. We may charge you additional fees at our then current hourly rates for support that results from:
  1. You using new hardware; or
  2. You requiring additional configuration or additional access to TracPlus;
  3. Any unauthorised access, attempted modification, or alteration you make in any way to TracPlus.
4. We may charge you for our reasonable travel and accommodation expenses we incur in visiting your site for the purpose of providing support, and where we are making a charge under clause 3.3 above, this may include our travelling time.
Service; Warranties
1. We warrant that:
  1. We have the power and authority to allow you to use TracPlus;
  2. To the best of our knowledge, our TracPlus solution and database configuration does not infringe any patent, copyright, trade secret or other proprietary right of any third party;
  3. When we provide services relating to your use of TracPlus to you, we will do so to the standard of care and skill reasonably expected of a professional in the provision of such services;
  4. We will use our best endeavours to ensure the entire TracPlus solution is available 24 hours a day, 7 days a week, excepting outages for planned updates, new versions, updates and upgrades and routine maintenance; but we do not guarantee this.
  5. The TracPlus database server will have an uptime availability of 99.999%. You acknowledge that the availability of the internet, your communication links and your equipment are integral to the availability of the TracPlus and will affect your use of it, including your access to the database server.
  6. If we have agreed to provide an alert service to you, we will use our best endeavours to contact you in the way we have agreed, but we do not guarantee that we will be able to do so. You must notify us immediately if any of the contact numbers you have provided us with change or are unavailable or unattended for any reason.
2. Where we provide terminals or other third party equipment or services (including airtime) to you:
  1. We will endeavour to give you the benefit of any manufacturer's or provider's warranty that we receive, but you must follow any specific instructions we give you in relation to that warranty. This may include returning equipment to us at your cost if it fails to perform in accordance with that warranty;
  2. We will do our best to meet the timeframes that we indicate to you, but we do not guarantee that we can meet those timeframes and we have no liability should we be unable to do so;
  3. Title in that equipment does not pass to you until we have received payment in full for all equipment.
3. In order to receive the benefit of these warranties, you must follow all storage, installation, maintenance and user guides related to installation and use of the TracPlus solution.
4. Except for the warranties explicitly set out in these terms, all other warranties are expressly excluded to the extent permitted by law.
Commencement Date, Term and Termination
1. This Agreement commences on the date we agree to provide access to TracPlus to you, and continues in force until terminated in accordance with the remainder of this clause.
2. Either of us may terminate this Agreement:
  1. By giving the other 30 days notice in writing;
  2. If the other party breaches any of its obligations under this Agreement and fails to remedy the breach within 14 days after notice requiring it to be remedied; or
  3. The other party becomes bankrupt or is put into liquidation or has a receiver or statutory manager appointed over any of its assets, or becomes insolvent or ceases to carry on its business or otherwise makes any composition or arrangement with its creditors.
3. If any amounts due and payable by you to us or to anyone else involved in providing the TracPlus solution to you remain unpaid, or you are in breach of any term of this agreement, we may immediately disable or suspend your ability to use TracPlus.
4. On termination of this Agreement:
  1. You must destroy all documentation related to TracPlus;
  2. You must immediately cease using the application software we provide you and you must delete it from any system or machine that you use it on
  3. We will transfer copies of your data from our database server to you in the standard form we usually transfer such data provided that:
    1. You pay our reasonable costs and expenses on a time and materials basis; and
    2. You have paid all sums due to us under this Agreement
    However you acknowledge that our systems retain data logs that may contain copies of that data.
Ownership and Restrictions; Data
1. You understand that the Intellectual Property Rights in TracPlus, the software and services we use to provide TracPlus, the website and servers associated with the solution (other than relating to data or information which is input from your assets as a result of your use of the solution) belong to us or to third parties who provide equipment or services to us, and you will not dispute ownership of any of us in them.
2. You must use TracPlus as we direct you from time to time. Your right to use it is non-exclusive, and non-transferable. You must not:
  1. Attempt to bypass any security mechanism in place on any system we use to make TracPlus available to you or in TracPlus itself;
  2. Gain or attempt to gain unauthorised access to TracPlus, our systems, or any other customers' systems, information or data;
  3. Resell TracPlus.
3. Access to TracPlus is by way of usercode and/ or password. You are responsible for the use and safekeeping of usercodes allocated to you and all associated passwords. You are responsible for all use or access of TracPlus by anyone using your usercodes, and for payment of charges arising from that use. You must change your password if we request you to do so, and we may change any of your usercodes at any time if we elect to do so. You must contact us immediately if you suspect any unauthorised use or disclosure of any passwords or if you would like any usercodes changed. We may charge you for change of usercodes.
4. You are responsible for all use of the terminals that are associated with your access to the TracPlus solution and for payment of all charges associated with use of those terminals and data generated by them.
5. You must not attempt to make any copy of TracPlus or any part of it except as we explicitly authorise as part of the use of the solution. You must not share your access (including without limitation the passwords you use to access) to TracPlus with any third party, except with our prior consent. You must tell us immediately if you become aware of any circumstances that cause you to believe any person may have unauthorised knowledge, possession or use of TracPlus.
6. We acknowledge that the data or information uploaded from your use of the TracPlus solution is your confidential information. We will not knowingly disclose such information unless the information is already in the public domain or we reasonably believe we are required to do so by law (this may include for example if anyone has a warrant to access any of the data or other information). However, if you are using TracPlus as part of a publicly hosted site, you acknowledge that the data is publicly available, and that we have no responsibility for the use the public make of the data.
7. You will not make media or other public statements about your use of TracPlus without our prior written consent.
Limitation Of Liability
1. We are not liable to you, whether in tort, contract or otherwise, for any loss of profits, indirect, special, incidental, consequential or punitive damages (including without limitation, loss of use, loss of data, loss of anticipated savings, loss of goodwill) however caused, arising out of or in connection with your use of the TracPlus solution or this Agreement.
2. To the fullest extent permitted at law, our liability to you arising out of all claims for damages under this Agreement:
  1. In respect of terminals under warranty is limited to replacement of the terminal or refund of the price paid;
  2. In respect of any breach of the uptime commitment regarding the TracPlus database server, to 5% of your monthly Fee attributable to hosting services per continuous 30 minute period of failure; and
  3. In all other cases, will not exceed 50% of the Fees paid by you and attributable to TracPlus Global services (excluding terminal fees, airtime and other third party charges) ("TracPlus Global Fees") during the year preceding the date of your claim, but limited in aggregate to 100% of the TracPlus Global Fees in any one year.
3. We are not in default or liable to you by reason of any failure or delay in performing our obligations under this Agreement caused by any act or event beyond our reasonable control. In the event of such an event, we will use all reasonable endeavours to resume our obligations under this Agreement as soon as reasonably possible. Without limitation, the technology that is used to provide TracPlus may be subject to intermittent outages outside our reasonable control, for instance; such as weather conditions or failure of third party networks or equipment.
4. All claims under this Agreement must be made within 12 months of the cause of action arising.
Charges And Payments
1. You agree to pay our Fees and charges plus GST (if any) for use of TracPlus and for any ancillary services. We will tell you if our fees and charges are in currency other than New Zealand dollars.
2. We may change fees and those charges from time to time. Any review of those fees and charges takes effect 30 days from the date we notify you of them.
3. We will send you invoices setting out our Fees and charges. You must pay us in full and without deduction or set off within 21 days of the date of invoice.
4. If we provide services such as implementation or training for you, we will tell you how much those services will cost, and you must pay us our charges for them, plus GST (if any).
5. If any duties including import duties, taxes or other levies (Duties) are imposed in relation to the provision of TracPlus or on any equipment or services we provide to you, you must pay us those Duties in addition to the Fees. We will send you a bill for any such Duties.
6. If you not pay an invoice or bill by the due date for payment, we may charge you interest on the unpaid amount from the due date for payment until the date you pay it; the interest rate will be 2% above our bank's then standard business overdraft rate.
7. We may use personal information you provide to us to obtain a credit report about you from time to time. The information gathered by the credit reporter may be used by that credit reporter to generate subsequent credit reports and given to other of their customers. If you default on any obligation information about the default may (without prejudice to any other remedies) be provided to credit reporters.
Disputes
1. If a dispute arises out of this Agreement, a party may not commence court or arbitration proceedings unless it has complied with the remainder of this clause.
2. A party claiming a dispute has arisen must give written notice to the other party specifying the nature of the dispute. On receipt of that notice, the parties will use all reasonable endeavours to resolve the dispute by discussion, consultation, negotiation or other informal means.
3. If the dispute is not resolved within 15 business days of notice being given, either party may commence proceedings against the other party.
4. Nothing in this clause 9 prevents a party seeking urgent interlocutory relief.
General
1. We may give you notice by email, post or by fax to the address you gave us when you registered. Any communication by email or fax is deemed to be received when transmitted to the correct email or fax address of the recipient. Communication in writing is deemed to be received 3 days after posting, or when left at the specified address.
2. New Zealand law governs this Agreement. New Zealand courts have the exclusive jurisdiction over this Agreement. If you wish to bring a claim against us, you must do so in a New Zealand court.
3. This Agreement constitutes the entire agreement between us in relation to TracPlus.
4. We may change any of these terms from time to time by giving you notice in writing. Changes are effective from the date we notify you they apply from.
5. You may not assign or transfer this Agreement, or your access or use of TracPlus, or any of your other rights and obligations under this Agreement without our prior written consent. We may transfer our rights and obligations under this Agreement to any company that is related to us.
6. The provisions of clauses 5.4, 6, 7, and this clause 10 will survive termination or expiry of this Agreement.
7. If any provision of this Agreement is invalid or unenforceable the remaining provisions of this Agreement are not affected and continue in full force.
8. Any unlawful provision in this contract may be severed, and the remaining provisions remain enforceable.
9. The word "including" or "for example" or any examples given in this agreement do not have a limiting effect.
10. No delay or failure to act is a waiver of any other or any subsequent breach. The failure of a party to enforce a provision of this Agreement is not to be interpreted as a waiver of that provision. No waiver is effective unless it is in writing.
11. The singular includes the plural and vice versa.
12. The Parties unconditionally and irrevocably waive their rights to object that New Zealand Courts are not the most suitable forum for all Parties' instrests and the ends of justice in proceedings related to this Agreement.