CUSTOMER AGREEMENT: TERMS AND CONDITIONS
It is agreed
In this Agreement:
Approved Installer means a person approved by SIMPLY UNIFIED PTY 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 SIMPLY UNIFIED PTY to sell SIMPLY UNIFIED PTY hardware or software.
Documentation means any instruction manuals, user guides and other information relating to the System.
Financier means any third party who purchases the SIMPLY UNIFIED PTY hardware or software from SIMPLY UNIFIED PTY 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, trademarks, 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 modifications relating to the same.
Monthly Service Fee means the monthly service fee set out in the Customer Agreement
Schedule payable by the Customer to Simply Unified Pty
SIMPLY UNIFIED PTY Software means the vehicle satellite tracking software for use with the SIMPLY UNIFIED PTY hardware or software and on the Customer’s computer system, as described further in the Customer Agreement
Passwords means any passwords used by the Customer, its officers, employees or agents to access or use the System.
Services means the provision of the Tracking Services working in conjunction with the
Service Provider means a third party authorised by SIMPLY UNIFIED PTY 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 SIMPLY UNIFIED PTY during the Warranty Period to correct faults in the System or to assist the Customer in operating the System.
System means the SIMPLY UNIFIED PTY hardware or software, the Simply Unified Pty Software and any enhancements and modifications to the same.
Tracking Services means the SIMPLY UNIFIED PTY service [please consider whether a more descriptive definition is appropriate] relevant to the SIMPLY UNIFIED PTY hardware or software (s) described in the
Customer Agreement Schedule.
SIMPLY UNIFIED PTY hardware or software means the Customer’s, or the Financier’s (as the case may be) SIMPLY UNIFIED PTY vehicle satellite-tracking unit described in the Customer Agreement Schedule.
Lifetime Product Warranty
In the event that our product fails as a result of manufacturing defect or breakdown, we’ll repair or replace free of charge for as long as device remains active on our system. Lifetime replacement product warranty applies where monthly service fee remain in place and uninterrupted. 12 months standard warranty applies outside of these terms.
2. Scope of Agreement
2.1 SIMPLY UNIFIED PTY 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 SIMPLY UNIFIED PTY 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 SIMPLY UNIFIED PTY Approved Installer installs the System in accordance with SIMPLY UNIFIED PTY’s reasonable instructions and testing procedures.
3.2 In consideration of the Monthly Service Fees, SIMPLY UNIFIED PTY grants the Customer a non-exclusive, non-transferable licence to use the SIMPLY UNIFIED PTY Software and Documentation solely for the Customer’s internal business purposes.
3.3 SIMPLY UNIFIED PTY is not responsible for the provision or maintenance of the SIMPLY UNIFIED PTY hardware or software and any damage to, destruction or theft of, the SIMPLY UNIFIED PTY 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 first been approved, in writing, by SIMPLY UNIFIED PTY.
4.3 The Customer will comply with the reasonable directions of SIMPLY UNIFIED PTY from time to time regarding the use of the System and Documentation.
4.4 The Customer will indemnify SIMPLY UNIFIED PTY against any claims, loss or damage (on a solicitor and own client basis and whether incurred by or awarded against Simply Unified Pty) that SIMPLY UNIFIED PTY suffers or incurs, whether directly or indirectly, as a result of any breach of this clause 4.
5.1 If the Customer requires support for the System, the Customer will call SIMPLY UNIFIED PTY’s customer support number 1300 599 540
5.2 SIMPLY UNIFIED PTY will use all reasonable efforts to provide Support Services for the System during the
5.3 Should the Customer wish to receive Support Services after the Warranty Period, the Customer will enter into a new agreement with SIMPLY UNIFIED PTY 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
(b) unauthorised attempts to repair, replace, modify or maintain the System by persons other than SIMPLY UNIFIED PTY or its authorised service providers.
6. Fees and Payment
6.1 The Customer will, unless mutually agreed between the parties, pay to SIMPLY UNIFIED PTY, the Monthly
Service Fees on the 1st of each month following issue of an invoice.
6.2 If the Customer fails to pay any amount when due, SIMPLY UNIFIED PTY 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 SIMPLY UNIFIED PTY’s bankers from time to time plus 10%; and/or
(b) suspend any Services provided under this Agreement.
6.3 SIMPLY UNIFIED PTY 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 specified in this Agreement Include GST. If GST is or becomes payable in respect of any supply made by SIMPLY UNIFIED PTY to the Customer, the payment for that supply shall be increased by an amount equal to the GST payable so that SIMPLY UNIFIED PTY 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 defined in the A New Tax Act System (Goods and Services Tax) Act 1999 (Cth).
7. Warranties and Limitation of Liability
7.1 SIMPLY UNIFIED PTY warrants to the Customer that:
(a) it has full power and authority to license the SIMPLY UNIFIED PTY 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 SIMPLY UNIFIED PTY Software will function in accordance with its specifications but the Customer acknowledges that the Simply Unified Pty Software is of a complicated and technical nature and may have minor or inherent defects. SIMPLY UNIFIED PTY 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 SIMPLY UNIFIED PTY 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 SIMPLY UNIFIED PTY 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 fitness for any particular purpose of the System or the Documentation) are expressly excluded.
7.3 SIMPLY UNIFIED PTY 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 profits) suffered or incurred by the Customer arising out of or in connection with this Agreement.
7.4 SIMPLY UNIFIED PTY’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 SIMPLY UNIFIED PTY under this Agreement in the three months prior to the time such liability arises.
8. Intellectual Property and Confidentiality
8.1 The Customer acknowledges that the Intellectual Property Rights in the System and Documentation are owned by SIMPLY UNIFIED PTY or its licensors.
8.2 The Customer acknowledges that this Agreement does not transfer to the Customer any Intellectual Property Rights in or on 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
SIMPLY UNIFIED PTY Software, the System generally or the Documentation other than to make such reasonable number of copies of the SIMPLY UNIFIED PTY 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, officers and agents to use the SIMPLY UNIFIED PTY Software in accordance with this Agreement.
8.4 The Customer will:
(a) take all reasonable steps to prevent, and will ensure that its officers, employees and agents take all reasonable steps to prevent, any unauthorised access to the SIMPLY UNIFIED PTY Software and the System and to ensure the non-disclosure and confidentiality 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 officers, 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 SIMPLY UNIFIED PTY. The Customer must notify SIMPLY UNIFIED PTY in writing immediately if it has knowledge of the existence of any circumstanceswhich 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 SIMPLY UNIFIED PTY at least 30 days’ prior written notice. Minimum service period is 30 days.
9.2 SIMPLY UNIFIED PTY 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 SIMPLY UNIFIED PTY or its authorised representative requiring thebreach to be remedied;
(b) suffers an Insolvency Event,
(c) fails to maintain the SIMPLY UNIFIED PTY 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 SIMPLY UNIFIED PTY Software and all Documentation and deliver to SIMPLY UNIFIED PTY all copies of the SIMPLY UNIFIED PTY Software and Documentation in the Customer’spossession or control.
9.4 Within 30 days of termination, the Customer must certify to SIMPLY UNIFIED PTY, 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.
10.1 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 notified 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 SIMPLY UNIFIED PTY 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 SIMPLY UNIFIED PTY.
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, fire 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.