1. 1.   Agreement: Each Order Form accepted by us is a separate contract between you and us for the Deliverables described in that Order Form (Agreement) comprising (a) the Order Form; (b) the Service Schedules and/or Statement of Work; (c) this document; and (d) any documents incorporated by reference.  To the extent of any inconsistency, the document listed first in this clause will prevail.
2. 2.   Definitions: Terms defined in an Agreement have the meaning given them there, and otherwise:

Authorised User means a member of your Personnel who has been granted access to the Dashboard;

Dashboard means – data interface for reports & alerts

Data means all data collected by us, or on our behalf, as a result of this Agreement;

Deliverable means each Product and Service to be supplied by us as specified in the Order Form;

ExcludedLoss means any indirect or consequential Loss; any Loss of profits, revenue, savings, goodwill, reputation or opportunity; any Loss as a result of a claim against you by a third party; and any Loss that could not fairly be considered to have arisen from the event that gave rise to that Loss.

Fees means all amounts to be paid by you as specified in the Order Form, as adjusted in accordance with the Agreement.

Intellectual Property Rights means all intellectual property rights and related rights, anywhere in the world, registered or unregistered.

Interest Rate means the greater of: (i) 12% per annum; and (ii) the rate awarded under a judgment.

Losses meansall liabilities, losses, damages, costs and expenses suffered or incurred by any person howsoever caused, whether arising in contract or tort (including negligence) or under any statute or under any other cause of action, and Loss has a corresponding meaning;

Order Form means an order form in a form specified by us and which is executed by the parties;

Personnel means the officers, employees, directors, contractors and professional advisors;

Service means each service included in Part C of the Order Form and as updated from time to time in accordance with the Agreement;

ServiceSchedule means any document titled ‘Service Schedule’ attached to an Order Form providing details as to the Services.

Statement of Work means any document titled ‘Statement of Work’ attached to an Order Form that sets out the scope of any custom Deliverables.

Supplier IPR means any and all Intellectual Property Rights subsisting in the Deliverables (and any enhancements thereof), whether created before or after the date of this Agreement.

We, us and our means Remember Engineering Ltd t/as Trackster.

You and your means the entity specified in the Order Form as the ‘customer’.

• : The Agreement commences on the date we confirm acceptance of the Order Form and continues until we are no longer obliged to supply any Deliverable to you under the Agreement (Term).
• Deliverables: We must supply the Deliverables to you during the Term in a professional and competent manner, with the degree of skill, care and diligence expected of a professional providing such Deliverable and in accordance with this Agreement.
• Products: The Devices are and remain at all times our property and you hold the Products as bailee for us.  You must, at your expense, install and maintain the Products safely and in proper working order and in good repair (fair wear and tear excepted) and in accordance with our instructions.

You must maintain comprehensive insurance for the Products, naming us as a co-insured on each policy.

You agree that we may register a security interest in respect of the Products on the personal property securities register.  You must do anything that we reasonably request to protect our rights in respect of the Products.  To the extent permitted, you waive all rights you may have under the Personal Property Securities Act in respect of the Products.

• Services: You acknowledge and agree that the Data and/or the Dashboard (together, Software) may contain errors and that your access to the Software may not be continuous or uninterrupted and from time to time the Software will be unavailable (including for the purposes of planned maintenance).  We will use reasonable endeavours to advise you of anything that will impact your access to the Software in accordance with the relevant Service Schedule.

• Acceptance: Upon receipt of the Deliverables, you must promptly (and in any event within five business days) provide us with written notice of any material defect in the Deliverables, in which case we shall redeliver or rectify the Deliverables.  You will be deemed to have accepted the Deliverables if you fail to provide notice in accordance with this clause.
• 8.   Changes to the Deliverables: We may, from time to time, change the Deliverables, provided such changes do not materially reduce the scope, features or functionality of the Deliverables that you have access to, unless we have your prior written agreement (which you must not unreasonably withhold or delay).
• The Deliverables are for your exclusive use and are only to be used for your internal business functions in accordance with this agreement and all laws.  You acknowledge that the supply of Deliverables is non-exclusive, including as to your competitors.

You must not exceed the maximum number of Authorised Users (if any).  You are solely responsible for any unauthorised access to the Software under the accounts of your Authorised Users.  You must ensure that login details of your Authorised Users are kept confidential.

You must in a timely manner provide all information and assistance as set out in a Statement of Work or Service Schedule or that we request (acting reasonably).

You represent and warrant that all information and assistance you provide to us is accurate, complete and not misleading. You must promptly inform us if you become aware that you have, or reasonably suspect that you have, breached this warranty.

You must not sell, sublicense or otherwise provide access to the Deliverables to any other party.

You must not interfere with, disrupt, reverse engineer, modify, attempt to gain unauthorised access, or build a competitive product or service, to the Deliverables or any part of them.

We may (without liability to you) revoke, suspend or limit one or more Authorised Users’ access to any of the Deliverables if you or any of your Authorised Users breach any obligation under this Agreement.  You must continue to pay the Fees for any such period of revocation, suspension or limitation.

1. The security bond specified in the Order Form must be paid before delivery of the Deliverables.  We may retain all or part of the Security Bond if we believe it is necessary to repair or replace any of the Products (fair wear and tear excepted).
2. You must pay us the Fees specified in an invoice within 14 days after the date of invoice in the manner set out in the Order Form.
3. Where the Term is greater than 12 months, on or after the anniversary of this Agreement, we may increase the Fees by giving you 10 business days’ notice by a percentage amount no more than the greater of CPI and 5%.  At any other time, we may increase the Fees by giving you at least 20 Business Days’ notice, during which period you may terminate this Agreement.
4. If you do not pay us any amount specified in an invoice in the time frame specified in clause 12 (Outstanding Amount), then:

(a) you must pay us interest on the Outstanding Amount calculated at the Interest Rate from the due date until the date the Outstanding Amount is paid; and (b) we may (without liability to you) suspend the supply of the Deliverables until you pay the Outstanding Amount (and interest thereon).  You must continue to pay the Fees during any such suspension period.

1. : Any moneys payable under this Agreement have been calculated without regard to GST (as that term is defined by A New Tax System (Goods and Services Tax) Act 1999 (Cth)).  Any amount which is payable on account of GST is to be paid to the party making the supply at the same time as payment is made for the relevant supply.
2. 15. Confidentiality: A party may not disclose, and must keep confidential, any confidential information, including the contents of this Agreement, of a party to any person except: (a) with that party’s prior written consent; (b) to its Personnel on a need-to-know basis; or (c) as required by law.

1. 16. Intellectual Property Rights:  You acknowledge that we and our licensors own the Supplier IPR and all Data.  To the extent that you own any Intellectual Property Rights in the Supplier IPR and/or Data, you assign to us those Intellectual Property Rights to us on and from creation.

During the Term, we grant you a non-exclusive, non-transferable licence to use the Supplier IPR to the extent needed to use the Deliverables in accordance with the terms of the Agreement.

We grant you a non-exclusive, perpetual licence to use the Data.  On termination or expiry of this Agreement for any reason, you will have [30 business days] within which to obtain a copy of the Data at your cost.

1. 17. Data: We maintain appropriate physical and technical safeguards to protect the security of the Data.  You acknowledge that, to the extent such Data includes ‘personal information’ (as defined in the Privacy Act) we may use aggregated and de-identified Data, including for the purposes of providing deliverables to other entities from time to time.
2. We exclude liability to you for all Losses that you suffer or incur to the extent that it is an Excluded Loss or was caused by (a) your breach of this Agreement; (b) any act or omission by you; (c) an error in, or unavailability of, the Software.  Otherwise, we limit our liability to you for all aggregate Losses to an amount equal to the Fees you have paid.  Nothing in this clause restricts our liability to you to the extent it would cause us to contravene any law (including any applicable consumer guarantee) or cause this clause to be void; or for our criminal or fraudulent acts or omissions.
3. : You indemnify us from and against all Losses that we suffer or incur as a result of a breach by you of the Agreement or your acts or omissions.
4. Exclusion of implied terms: Except to the extent that it would contravene any law or cause this clause to be void, each party excludes all terms implied into the Agreement.
5. We will not be liable to you to the extent that such liability arises as a result of an event beyond our reasonable control.  Any relevant due dates will be automatically extended to reflect the length of the delay (if any).

• Termination by either party: Either party (Terminating Party) may terminate the Agreement with immediate effect by giving the other party notice if the other party commits a material breach of the Agreement and that breach is not capable of being remedied, or has not been remedied within 30 days of receipt of a notice from the Terminating Party.
• Termination by us: We may terminate the Agreement with immediate effect by giving you notice if: (a) you fail to pay any Fee within 30 days after the due date for payment; (b) any arrangements with our suppliers are terminated; or (c) there is an event or series of events beyond our reasonable control (including a change in law) that prevents us from providing any of the Deliverables to you.
• : If the Agreement is terminated or expires: (a) you must pay us all outstanding Fees that you are liable to pay as at the date of termination or expiry; (b) you must return all Deliverables to us as set out in the Order Form; and (c) your right or licence to use the Deliverables automatically terminates (except the licence of the Data under clause 16).  Any clause intended to survive termination of the Agreement survives termination.
• : The Agreement is the entire agreement between the parties relating to its subject matter and supersedes all prior communications between the parties in relation to its subject matter.
• Assignment: You must not transfer, assign or novate the Agreement without our prior written consent.  We may assign the Agreement to any person without your prior written consent.
• : If any of the terms of the Agreement are not legally enforceable then that term or the relevant part of it will be either amended as appropriate to make it enforceable or ignored, but in all other respects the Agreement will have full effect.
• : The Agreement is governed by the laws of the State of NSW and the parties irrevocably submit to the jurisdiction of the courts of NSW.
• Counterparts: This Agreement (or any part thereof) may be executed in any number of counterparts.