“This Agreement” means the Agreement between the End User and Ubitrac Ltd comprising of these General Terms and any additional terms contained in the Customer’s order.
1. Grant of the Software Licence Entitles the End User to:
(a) a single account on the Ubitrac platform enabling the End User to download onto differing mobile devices as they see fit.
(b) load, install and Use the Software (as appropriate to the System and as specified in the Schedule) on the Mobile Device;
(c) Use the Software in accordance with the provisions of paragraph 4 of these General Terms;
(d) receive Ubitracs bulletin reports of errors and “patches” and receive such new updates of the Software incorporating the same;
(e) receive information on upgraded versions of the Software and the System at such cost (if any) as may be notified to the End User.
(f) unlimited access to the System (via password protected access) for the purpose of utilising the tracking and other functions of the System.
For the purposes of this Agreement, upgraded versions of the Software or the System shall mean enhancements, improvements or modifications to the Software (or the System, as appropriate).
2. Support Provided under this Agreement shall include:
(a) help Desk facilities between 0900 and 1700 Monday to Friday (excluding national holidays) (Ubitracs standard hours) and email help desk is available at all other times.
(b) correction of critical errors or assistance to overcome problems. Ubitrac may, in its sole discretion, correct errors by “patch” or by new version;
(c) information on availability of new versions of Software;
(d) support shall relate to both the operation of the Software through the Mobile Devices and use of the System.
This Agreement is made
BETWEEN Ubitrac Ltd, incorporated in England and Wales with its principal place of business at Teach House, Gilbert Drive, Endeavour Park, Boston , Lincolnshire, PE21 7TQ (the “Ubitrac” which expression shall include its subsidiaries, agents and assigns)
the “End User” being the person who has subscribed for the Software and to access the System.
4. Issue and Use of Software
(a) Upon payment of the first Licence Fee, Ubitrac shall provide one account, for Use on any suitable Mobile Device, together with access to the System, and together with the necessary documentation to Use the same.
(b) For the purposes of this Agreement “Use” shall mean and include:
(i) utilization of the Software by copying, transmitting or loading the same into each Mobile Device so that the same is compatible with the monitoring, tracking and other functions of the System for the processing of the System instructions or statements contained in such Software;
(ii) access to the System which consists of a website operated by Ubitrac and its servers through which the End User or persons authorised by the End User can monitor the user of the Mobile Device incorporating the Software in accordance with the instructional and operational manuals relating to its software and the System; and
(iii) utilizing the instructional and/or operational manuals relating to the Software and/or the System, which will be provided to the End User electronically.
5. Licence Fee and Support Charges
(a) The Licence Fee is payable in advance unless otherwise agreed in writing by Ubitrac and may be subject to annual review upon thirty (30) days prior written notice from Ubitrac. Such reviewed fee shall take effect on expiry of the period of notice unless the End User has notified Ubitrac within such period, that it wishes to exercise its right to terminate this Agreement. The End User may be subject to an additional charge upon issue to the End User of upgraded versions of the Software. Such additional charge for upgrades shall become payable within thirty (30) days of issue.
(b) All charges hereinbefore referred to are exclusive of and net of any taxes, duties or such other additional sums including, but without prejudice to the foregoing generality, value added or purchase tax, excise tax, tax on sales, property or use; import or other duties, whether levied in respect of this Agreement, the Software, its use or otherwise.
(c) Ubitrac reserves the right to charge interest on overdue invoices at the rate of 2 per cent over Barclays Bank plc base rate from the due date until the total invoice sum has been paid.
(d) For the avoidance of doubt, Ubitrac is not responsible for any ancillary costs in incorporating the Software and/or the System save as set out above including, without limitation, increased data usage costs or broadband charges.
6. Software Support and Enhancement
(a) Ubitrac offers support and enhancement of the Software and the System in accordance with the provisions of this Agreement. As part of such support, Ubitrac may provide the End User with software updates (the “Updated Software”) and in such an event the Updated Software shall be subject to the terms of the licence granted in accordance with clause 1 above and included in the definition of “Software”.
(b) Where the Software is dependent on another software or other products, the End User cannot have updated services in respect of the Software without also having such services with respect to the software or other product upon which it depends.
7. End User’s Undertakings
(a) The End User undertakes:
(i) not to copy the Software (other than for normal system operation and as specified in paragraph 4 above) or the System nor otherwise reproduce the same.
(ii) not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Software including (without limitation) in any manner which prevents the user of the Mobile Device from being aware that the Mobile Device is being tracked.
(b) In addition, the End User undertakes:
(i) to supervise and control use of the Software and the System in accordance with the terms of this Agreement;
(ii) to replace the current version of the Software with the upgraded version forthwith upon receipt;
(iii) to reproduce and include the copyright notice of Ubitrac on all and any copies, whether in whole or in part, in any form, including partial copies or modifications of the Software made herein;
(iv) not to provide or otherwise make available the Software (including Updated Software) in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person other than the End User and persons in respect of whom the End User has parental authority and responsibility without prior written consent from Ubitrac;
(v) that the person using the Mobile Device shall be made fully aware of the tracking capabilities of the Software and the use to which it shall be put;
(vi) that the End User is the parent or guardian of the person using the Mobile Device;
(vii) that the End User is 18 years of age or over;
(viii) to maintain the secrecy of its user name and password (required to activate the System) and to notify Ubitrac immediately if the End User believes that the System is being used by a person without the authority of the End User.
(c) Within fourteen (14) days after the date of termination or discontinuance of the Agreement for whatever reason (other than with respect to support only) Ubitrac shall take steps to ensure that the Software is not operable from the Mobile Devices and that the End User ceases to have access to the System.
(d) The End User warrants, represents and undertakes to Ubitrac that:- (i) the End User shall fully inform the user or likely users of the Mobile Device about the effect of the Software on the Mobile Device and the fact that the location of the Mobile Device can be monitored while the Mobile Device is switched on (“User Notification”); and (ii) where the Mobile Device user is under 16 years of age, the End User is the user’s parent or legal guardian.
(f) The End User shall indemnify and keep indemnified Ubitrac against all loss, damage and liability arising to the Ubitrac as a result of (i) any failure by the End User to provide User Notification to the user or likely users of the Mobile Device and (ii) any failure by the End User to meet the requirements of clause 7(e)(ii) above.
8. Support not Included and which shall be Charged for:
8.1 The following support is not included in the Licence Fee and shall be charged in addition:
(a) support of other software, accessories, attachments, machines, systems or other devices not supplied by Ubitrac nor listed in the Schedule;
(b) rectification of lost or corrupted data arising for any reason other than Ubitracs own negligence;
(c) support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Software or the Mobile Devices or their operating environment;
(d) attendance to faults caused by using the Software or the System outside design or other specifications or outside the provisions laid down in any documentation or manual supplied with the Software/System; or caused by operator error or omission;
(e) diagnosis and/or rectification of problems not associated with the Software or the System.
8.2 For the avoidance of doubt, all costs incurred in respect of the Mobile Network operator or the provider of the End User’s broadband, and other third party costs incurred by the End User in running the Software and the System shall be the sole responsibility of the End User.
9.1 Ubitrac warrants that the Software and System shall:
(a) conform in all material respects with the manufacturer’s specification subject to any qualification or representation contained in the brochures, advertisements or other documentation;
(b) be of satisfactory quality;
(c) be fit for any purpose Ubitrac says that the Software and the System are fit for or for any reasonable purpose for which the End User uses the Software and/or the System; and
(d) comply with all applicable statutory and regulatory requirements for selling the Software and System in the United Kingdom.
9.2 This warranty is in addition to the End User’s legal rights in relation to the Software or System which are faulty or which otherwise do not conform with these General Terms. Advice about your legal rights is available from your local Citizen’s Advice Bureau or trading standards office.
9.3 This warranty does not apply to any defect in the Software or System arising from wilful damage, tampering, accident, negligence by the End User or any third party, if the End User uses the Software or System in a way that Ubitrac does not recommend, the End User’s failure to follow Ubitracs instructions, or any alteration or repair or Software reconfiguration which the End User carries out without Ubitracs prior written approval.
9.4 The End User acknowledges that software in general may not be free of bugs or errors but that Ubitrac will use reasonable endeavours to ensure the software is as far as reasonable practicable error/bug free and where an error/bug comes to the attention of Ubitrac to fix such error as soon as reasonable practicable in accordance with clause 9.6. The End User agrees that the existence of such minor errors/bugs shall not constitute a breach of this Agreement.
9.5 The End User shall notify Ubitrac of any failure or difficulty in operating the Software or the System immediately upon becoming aware of the same.
9.6 In the event that the End User discovers a material error which substantially affects the End User’s use of the same and notifies Ubitrac of the error within 90 days from the date of this Licence (the “warranty period”) Ubitrac shall at its sole option either refund the licence fee or use all reasonable endeavours to correct by patch or new release (at its option) that part of the Software which does not so comply PROVIDED THAT such non-compliance has not been caused by any modification, variation or addition to the Software not performed by the Ubitrac or caused by its incorrect use, abuse or corruption of the Software or by use of the Software with other software or on equipment with which it is incompatible.
(d) To the extent permitted by the applicable law, Ubitrac disclaims all other warranties with respect to the Software and the System, either express or implied.
(e) Although the Ubitrac does not warrant that the Software supplied hereunder shall be free from all known viruses it has used commercially reasonable efforts to check for the most commonly known viruses prior to packaging.
10. Ubitracs Liability
(a) Ubitrac shall not be liable to the End User for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this Agreement, the Software, the System, its use, support or otherwise, except to the extent to which is unlawful to exclude such liability under the applicable law.
(b) Notwithstanding the generality of (a) above, Ubitrac expressly excludes liability for consequential loss or damage which may arise in respect of the Software, its use, Ubitracs use of the System or but not limited to, in respect of other equipment or property, or for loss of profit, business, revenue, goodwill or anticipated savings or any waste of time. However, this clause 10(b) shall not prevent claims for foreseeable loss or damage. Losses are foreseeable where they could be contemplated by either party at the time the Agreement is entered into
(c) In the event that any exclusion contained in this Agreement shall be held to be invalid for any reason and Ubitrac becomes liable for loss or damage that may lawfully be limited, such liability shall be limited to the Licence Fee paid.
(d) In particular, without prejudice to the generality of the foregoing, Ubitrac does not accept liability for any error or failure of the Mobile Devices or failing of the GPSsatellite system or mobile network or End User’s internet connection or any other external media which enable the Software to operate.
(e) Ubitrac does not exclude liability for (i) death or personal injury to the extent only that the same arises as a result of the negligence of Ubitrac, its employees, agents or authorised representatives; (ii) under section 2(3) of the Consumer Protection Act 1987; (iii) for fraud or fraudulent misrepresentation; or (iv) for any matter for which it would be illegal for Ubitrac to exclude or attempt to exclude its liability.
(f) The End User acknowledges that use of the Software and the System by the End User will constitute the processing of personal data about the user of the Mobile Device to the Data Protection Act 1998 (“DPA”). Ubitrac shall have no liability to the End User with respect to its obligations under the DPA. The End User shall be responsible for ensuring that it deals with users in accordance with its obligations under the DPA, and shall indemnify and keep indemnified Ubitrac from any costs, damages and liabilities arising under the DPA.
(g) Although Ubitrac shall use all reasonable steps to ensure that the System is secure, the End User acknowledges that Ubitrac cannot guarantee that the internet is fully secure and accordingly Ubitrac cannot guarantee the privacy of the System.
(h) Ubitrac does not warrant that the System, or the server upon which the System operates will be continuously available, but will use it reasonable endeavours to keep downtime to a minimum.
11. Copyright, Patents, Trade Marks and Other Intellectual Property Rights
(a) The End User acknowledges that any and all of the copyright, trade marks, trade names, patents and other intellectual property rights subsisting in or used in connection with the Software or the Updated Software or the System shall be and remain the sole property of the Ubitrac or such other party as may be identified therein or thereon (the “Owner”). The End User shall not during or at any time after the expiry or termination of this Agreement (whether in whole or with respect to support only) in any way question or dispute the ownership by Ubitrac or the Owner thereof.
(b) In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement, the End User acknowledges the same shall be the property of Ubitrac unless otherwise agreed in writing by the Ubitrac.
(c) The End User shall indemnify Ubitrac fully against all liabilities, costs and expenses which the Ubitrac may incur as a result of work done in accordance with the End User’s specifications involving infringement of any patent or other proprietary right.
(a) Ubitrac agrees to indemnify and save harmless and defend at its own expense the End User from and against any and all claims of infringement of copyright, patents, trade marks, industrial designs, or other intellectual property rights affecting the Software PROVIDED THAT (i) the End User shall not have done, permitted or suffered to be done anything which may have been or become an infringement of any rights in any copyright, patent, trade mark or other rights as hereinbefore provided, and (ii) the End User shall have exercised a reasonable standard of care in protecting the same; failing which the End User shall indemnify Ubitrac or the Owner against all actions, proceedings, costs, claims and expenses incurred in respect thereof.
(b) The End User undertakes that Ubitrac shall be given prompt notice of any claim specified in (a) above that is made against the End User and Ubitrac shall have the right to defend any such claims and make settlements thereof at its own discretion and the End User shall give such assistance as Ubitrac may reasonably require to settle or oppose any such claims.
(c) In the event that any such infringement occurs or may occur, Ubitrac may at its sole option and expense:
(i) procure for the End User the right to continue using the Software or infringing part thereof; or
(ii) modify or amend the Software or infringing part thereof so that the same becomes non-infringing; or
(iii) replace the Software or infringing part thereof by other software of similar capability; or
(iv) repay to the End User the licence fee relating to the whole or the infringing part of the Software.
13. Confidential Information
(a) All information, data, drawings, specifications, documentation, software listings, source or object code which Ubitrac may have imparted and may from time to time impart to the End User relating to the Software (other than the ideas and principles underlying the same) the System or support documentation or procedures is proprietary and confidential. The End User hereby agrees that it shall use the same solely in accordance with the provisions of this Agreement and that it shall not at any time during or after expiry or termination of this Agreement (in whole or with respect to support only), disclose the same, whether directly or indirectly to any third party without Ubitracs prior written consent.
(b) The End User further agrees that it shall not itself or through any subsidiary, agent or third party modify, vary, enhance, copy, sell, lease, license, sub-license or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or any supporting software or have any software or other program written or developed for it based on any confidential information supplied to it by Ubitrac.
(c) The foregoing provisions shall not prevent the disclosure or use by the End User of any information which is or hereafter, through no fault of the End User, becomes public knowledge or to the extent permitted by law.
14. Force Majeure
Ubitrac shall be under no liability to the End User in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely, circumstances beyond the control of Ubitrac which shall include (but shall not be limited to) acts of God, internet downtime outside the control of Ubitrac, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; inability to supply the Software, materials or support; the breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer).
15. Termination or Expiry
(a) Subject to clause 5(b) this Agreement shall continue until terminated by either party giving the other no less than 1 months prior written notice of termination (“the Licence Term”).
(b) This Agreement shall expire at the end of the Licence Term as determined in accordance with clause 15(a) above. In addition to any other provisions for termination as herein provided, Ubitrac may by notice in writing to the End User terminate this Agreement, if any of the following events shall occur, :
(i) if the End User is in breach of any term, condition or provision of this Agreement or required by applicable law and fails to remedy such breach (if capable of remedy) within 30 days of having received written notice of such breach from Ubitrac; or
(ii) if the End User, being a body corporate shall present a petition or have a petition presented by a creditor for its winding up, or shall convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation) shall call a meeting of its creditors, or shall have a receiver of all or any of its undertakings or assets appointed, or shall be deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts; or
(iii) if the End User, being a natural person is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or being a partnership has any partner to whom any of the foregoing apply; or
(iv) Ubitrac reasonably believes that the Mobile Device and/or the Software and/or the System is being misused by the End User or any third party using the Mobile Device or the System with Ubitracs user name and password.
(c) Upon termination, the End User shall pay to Ubitrac all costs and expenses, including legal and other fees incurred and all arrears of fees, charges or other payments arising in respect of the Software, the System, modem or support generally, this Agreement or otherwise.
(d) Upon termination for any reason, (i) all rights granted to the End User shall cease; (ii) the End User must cease all activities authorised by this Licence; (iii) the End User must immediately delete or remove the Software from the Mobile Device (as applicable).
(e) Termination, howsoever or whenever occasioned shall be subject to any rights and remedies Ubitrac may have under this Agreement or in Law.
(f) For the avoidance of doubt, Ubitrac shall not be obliged to repay to the End User any deposit or advance payment upon termination of this Agreement.
The End User shall not assign or otherwise transfer all or part of the Software or this Agreement without the prior written consent of Ubitrac.
Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice that party’s rights to take subsequent action.
18. Set Off
All amounts due from the End User under this Agreement shall be paid in full without any deduction or withholding other than as required by law. The End User shall not be entitled to assert any credit, set off or counterclaim against Ubitrac in order to justify withholding payment of any such amount in whole or in part.
The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of these terms and conditions of this Agreement.
In the event that any of the terms, conditions or provisions contained in this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
Any notice to be given by either party to the other may be sent by recorded delivery to the address of the other party as appearing herein or such other address as such party may from time to time have communicated to the other in writing and if so sent shall be deemed to be served 3 days following the date of posting.
22. Details of Third Parties
Nothing in this agreement is intended to confer a benefit upon any person who is not a party to it, and the Contracts (Rights of Third Parties) Act 1999 shall not apply.
The parties hereby agree that the Agreement concluded between them and constituted on these terms and conditions shall be construed in accordance with English Law and subject to the exclusive jurisdiction of the English courts.
The notice period for cancellation is 30 (thirty) days. Cancellation can be initiated by email to email@example.com.
If the software provided by Ubitrac is found to be at fault, a refund of the previous months subscription may be made at the company’s discretion. Any refund is limited to the previous months subscription.