Terms and Conditions

Track4Services Limited

Terms and Conditions

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Users: those persons who are entitled to use the products through the Hosting Services under this agreement.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5.
Configuration Services: the planning, customisation, configuration and related work referred to in the Proposal to be performed by Track4Services to configure the Product so that the Product conforms with the Product Specification.
Deliverables: all products and materials developed by Track4Services in relation to the Services to be provided to the Client in any media including without limitation, any computer hardware, computer programs, data, diagrams and specifications (including drafts).
Client Content: any content inputted by the Client or its Authorised Users or by Track4Services on the Client’s behalf.
Commencement Date: the date upon which Track4Services commenced provision of the Services to the Client.
Fee: the fee payable to Track4Services for the Services and Deliverables, as set out in the Proposal or as may be revised in accordance with clauses 8 and 9.
Hosting Services: the services that Track4Services provides to allow Authorised Users to access and use the Product, including hosting set-up and ongoing services, as described in the Proposal.
Maintenance and Support: any error corrections, updates and upgrades that Track4Services may provide or perform with respect to the Product and Hosting Services, as well as any other support or training services provided to the Client under this agreement, as set out in the Proposal.
Proposal: the proposal agreed between the parties setting out details of the Services and the Fee.
Service Level Arrangement: the service level arrangement set out in Schedule 2.
Services: the Configuration Services, Hosting Services and/or Maintenance and Support Services as more specifically set out in the Proposal or such Additional Services as are mutually agreed to in accordance with clause 9.
Software: Track4Services’s proprietary software in machine-readable object code form only as described in Schedule 1, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Client under this agreement.
Software Specification: the functionality and performance specifications for the Software, as set out in Schedule 1.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.8 A reference to writing or written includes faxes and e-mail.

1.9 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.

2. AGREEMENT/TERM

2.1 The Proposal for Services shall be delivered by Track4Servives to the Client and when signed by the Client shall constitute an offer by the Client to purchase the Services in accordance with these terms and conditions.

2.2 This Agreement shall be deemed to have commenced with effect from the Commencement Date and shall continue for such period as set out in the Proposal. (“the Term”).

3. CONFIGURATION SERVICES

3.1 Track4Services shall perform the Configuration Services in accordance with the timetable set out in the Proposal and deliver such agreed Deliverables as set out in the Proposal.

3.2 Track4Services shall use reasonable endeavours to meet the performance dates set out in Proposal, but any such dates shall be estimates only, and time shall not be of the essence in this agreement.

4. HOSTING SERVICES, MAINTENANCE AND SUPPORT

4.1 The Service Level Arrangement shall apply after the Configuration Services have been completed. Track4Services shall perform the Hosting Services and Maintenance and Support services with all due care and skill.

4.2 In relation to Authorised Users:
(a) usage of the Product shall be limited to ‘fair usage’ as shall be determined and managed by Track4Services.
(b) Track4Services will also manage access to data and various inappropriate internet sites will not be available through the Product.

4.3 In relation to the Product:
(a) Track4Services hereby grants to the Client on and subject to the terms and conditions of this agreement a non-exclusive, non-transferable licence to allow Authorised Users to access the Product through the Hosting Services and to use the Product solely for the Client’s business purposes.
(b) the Client shall not, nor shall permit others to, store, distribute or transmit any Virus, or any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
(c) the rights provided under this clause 4.3 are granted to the Client only and shall not be considered granted to any subsidiary or holding company of the Client unless otherwise agreed to by Track4Services in writing.
(d) the Client shall not:
(i) attempt to copy, duplicate, modify or create derivative works from the Product or build a product or service which competes with the Product, or
(ii) use the Product or Hosting Services to provide services to third parties otherwise than as agreed to herein; or
(iii) subject to clause 19.1, transfer, temporarily or permanently, any of its rights under this agreement, and
(e) the Client shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Product and notify Track4Services promptly of any such unauthorised access or use.

5. DATA/CONTENT

5.1 The Client shall own all rights, title and interest in and to all of the Client Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Content.

5.2 Track4Services shall not be responsible for any loss, destruction, alteration or disclosure of Client Content.

5.3 If Track4Services processes any personal data on the Client’s behalf when performing its obligations under this agreement, the parties record their intention that the Client shall be the data controller and Track4Services shall be a data processor and in any such case:
(a) the Client shall ensure that the Client is entitled to transfer the relevant personal data to Track4Services so that Track4Services may lawfully process the personal data in accordance with this agreement on the Client’s behalf.
(b) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

6. TRACK4SERVICES’S OBLIGATIONS

6.1 Track4Services undertakes that the Services will be performed substantially in accordance with the Product Specification and with reasonable skill and care and that the Product complies with all applicable laws and regulations for use of the Product and Services in the United Kingdom.

6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Product contrary to the Track4Services’s instructions or modification or alteration of the Product by any party other than Track4Services or Track4Services’s duly authorised contractors or agents.

6.3 The Client shall also have the benefit of any hardware warranty that is detailed in the Proposal.

6.4 If the Product does not conform with the undertaking in clause 6.1, Track4Services will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.

6.5 Notwithstanding the foregoing, Track4Services does not warrant that the Client’s use of the Product and the Services will be uninterrupted or error-free but that such will be governed by the Service Level Agreement.

6.6 This agreement shall not prevent Track4Services from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this agreement.

7. CLIENT’S OBLIGATIONS

The Client shall:
(a) provide Track4Services with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by Track4Services.
to render the Services, including but not limited to Client Content, security access information and software interfaces to the Client’s other business applications.
(b) provide such personnel assistance, as may be reasonably requested by Track4Services from time to time;
(c) comply with all applicable laws and regulations with respect to its activities under this agreement; and
(d) carry out all other Client responsibilities set out in this agreement or in any of the Schedules or the Proposal in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties Track4Services may adjust any timetable or agreed delivery schedule as reasonably necessary.

8. CHARGES AND PAYMENT

8.1 The Fee shall be payable by the Client in accordance with the provisions set out herein and in the Proposal.

8.2 Track4Services shall issue invoices for the Fee in accordance with agreed payment provisions in the Proposal, which shall be payable by the Client to Track4Services upon presentation of Track4Services invoice.

8.3 The Fee is exclusive of VAT, which shall be due in addition at the prevailing rate.

8.4 If the Client fails to pay any amount payable by it under this agreement, Track4Services shall be entitled but not obliged upon 7 days’ written notice to: (i) charge the Client interest on the overdue amount, payable by the Client forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 8% per annum above the base rate for the time being of The Bank of England. Such interest shall accrue on a daily basis and be compounded quarterly; and/or (ii) suspend provision of the Services until payment of all overdue sums has been made in full.

8.5 The Fee excludes general expenses including but not limited to the cost of subsistence, travelling, printing and couriers and any other ancillary expenses reasonably incurred by Track4Services in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by Track4Services for the supply of the Services or where requested by the Client. All third-party costs not detailed in the Proposal shall be agreed to by the Client in writing before being incurred. Such additional expenses shall be invoiced by Track4Services to the Client and payable in accordance with clause 8.3.

8.6 For the avoidance of doubt use of the Services beyond the Term by the Client shall incur a fee at Track4Services’s then standard plan rates unless otherwise mutually agreed by the parties in writing.

9. ADDITIONAL SERVICES

9.1 If the Client requires Track4Services to provide Additional Services to those outlined in the Proposal, it shall submit details of the requested Additional Services to Track4Services in writing.
9.2 Track4Services shall provide a written estimate to the Client of the likely time required to implement any Additional Services along with any variations to Track4Services’ charges arising from those Additional Services.
9.3 If the Client wishes Track4Services to provide Additional Services Track4Services has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Services and to Track4Services’s Fees.
9.4 Where Additional Services are agreed then they shall be subject to these Terms and Conditions of Agreement.

10. PROPRIETARY RIGHTS

10.1 The Client acknowledges and agrees that Track4Services and/or its licensors own all intellectual property rights in the Product, the Deliverables and the Services. Except as expressly stated herein, this agreement does not grant the Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Product, Deliverables and Services or any related documentation.
10.2 Track4Services confirms that it has all the rights in relation to the Product that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

11. CONFIDENTIALITY

11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party; or
(b) was in the other party’s lawful possession before the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.

11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

11.5 The Client acknowledges that the Product, the results of any performance tests of the Product and the Services constitute the Track4Services’s Confidential Information.

11.6 This clause 11 shall survive termination of this agreement, however arising.

12. INDEMNITY

12.1 The Client shall defend, indemnify and hold harmless Track4Services against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s unauthorised use of the Product or Services, provided that:
(a) the Client is given prompt notice of any such claim.
(b) Track4Services provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and
(c) the Client is given sole authority to defend or settle the claim.

12.2 Track4Services shall defend the Client, its officers, directors and employees against any claim that the Product infringes any United Kingdom patent effective as of the Commencement Date, copyright, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in an adverse judgment or settlement of such claims, provided that:
(a) Track4Services is given prompt notice of any such claim.
(b) the Client provides reasonable co-operation to Track4Services in the defence and settlement of such claim, at Track4Services’s expense; and
(c) Track4Services is given sole authority to defend or settle the claim.

12.3 In the defence or settlement of the claim, Track4Services may obtain for the Client the right to continue using the Product, replace or modify the Product so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement without liability to the Client. Track4Services shall have no liability if the alleged infringement is based on:
(a) a modification of the Product by anyone other than Track4Services; or
(b) the Client’s use of the Product in a manner contrary to the instructions given to the Client by Track4Services; or
(c) the Client’s use of the Product after notice of the alleged or actual infringement from Track4Services or any appropriate authority.

12.4 The foregoing and clause 13.5(b) state the Client’s sole and exclusive rights and remedies, and Track4Services’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

13. LIMITATION OF LIABILITY

13.1 This clause 13 sets out the entire financial liability of Track4Services (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:
(a) arising under or in connection with this agreement.
(b) in respect of any use made by the Client of the Services, the Product, the Deliverables or any part of them; and
(c) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

13.2 Except as expressly and specifically provided in this agreement:
(a) the Client assumes sole responsibility for results obtained from the use of the Product and the Services by the Client, and for conclusions drawn from such use. Track4Services shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Track4Services by the Client in connection with the Services, or any actions taken by Track4Services at the Client’s direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.

13.3 Nothing in this agreement excludes the liability of Track4Services:
(a) for death or personal injury caused by Track4Services’s negligence; or
(b) for fraud or fraudulent misrepresentation.

13.4 The Service Level Arrangement state the Client’s full and exclusive right and remedy, and Track4Services’s only obligation and liability in respect of the performance and/or availability of the Service, or their non-performance and non-availability.

13.5 Subject to clause 13.3 and clause 13.4:
(a) Track4Services shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
(b) Track4Services’s total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to £1,000,000 for which Track4Services has obtained insurance cover.

14. TERM AND TERMINATION

14.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
(a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach: or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to such other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of such other party, or notice of intention to appoint an administrator is given by such other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of such other party, or if any other person takes possession of or sells such other party’s assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or
(h) the other party takes or suffers any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt.

14.2 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and
(c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

15. FORCE MAJEURE

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Track4Services or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Track4Servicess or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate this agreement by giving 30 days’ written notice to the other party.

16. WAIVER

16.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

16.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

17. SEVERANCE

17.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

18. ENTIRE AGREEMENT

18.1 This agreement and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.

18.2 Each party acknowledges that, in entering into this agreement and the documents referred to in it has not relied and does not rely on any statement, representation (whether innocent or negligent), assurance or warranty (representation) of any person (whether a party to this agreement or not) other than as expressly set out in this agreement or those documents.

18.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a representation shall be for breach of contract.

18.4 Nothing in this clause shall limit or exclude any liability for fraud.

19. ASSIGNMENT

19.1 The Client shall not, without the prior written consent of Track4Services (which shall not be unreasonably withheld or delayed), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

19.2 Track4Services may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

20. NO PARTNERSHIP OR AGENCY

Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

21. VARIATION

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

22. THIRD PARTY RIGHTS

This agreement does not confer any rights on any person or party (other than the parties to this agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

23. NOTICES

23.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such as set out in this agreement.

23.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

24. GOVERNING LAW AND JURISDICTION

24.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.

24.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1 Products

The products provide secure connectivity to customers using a mobile network. The main products are: mains powered office hub, vehicle hub and battery powered portable hub. All of these can work in conjunction with high gain antennas allowing access to the internet in poor signal areas or where economical and agile connectivity is required. In each case they connect via a Microsoft Cloud portal providing a fully managed view for each customers devices and usage. Track4Services use the management portal to provide customer support and configuration. All of these products and services use Track4Services Software.

Track4Services also provide professional services related to its products. Site surveys, project planning, installation and maintenance.

A list of products is available on the Track4Services website: www.t4s.com

Schedule 2 Service Level Arrangements

1. SERVICE AVAILABILITY
Track4Services shall provide at least a 95% uptime service availability level (Uptime Service Level). This availability refers to an access point on Track4Services hosting provider’s backbone network. It does not apply to the portion of the circuit that does not transit the hosting provider’s backbone network, as the Client is responsible for its own internet access. Availability does not include Maintenance Events, Client-caused or third party-caused outages or disruptions or outages or disruptions attributable in whole or in part to force majeure events.

2. AVAILABILITY MEASUREMENT
All measurements are performed at one-minute intervals and measure the availability of an availability test page within the Product within sixty seconds. Availability measurement begins on the first day of the first calendar month, beginning not less than 30 days after Client acceptance of all the Deliverables delivered to the Client during the Configuration Services pursuant to clause 2. Availability measurement shall be carried out by Track4Services and is based on the monthly average percentage availability, calculated at the end of each calendar month as the total actual uptime minutes divided by total possible uptime minutes in the month. Track4Services shall keep and shall send to the Client, on request, full records of its availability measurement activities under this agreement.