1.1. This End-User License Agreement (“EULA”) is a legal agreement between you (“Licensee”) and GPSI Group Pty Ltd (“GPSI”). This EULA applies to the use of all GPSI firmware or software (“Software”), on any of our hardware devices and any items associated therewith (“Products”) whether delivered by physical or electronic means to you. By using any portion of the Software you accept all the terms and conditions of this EULA as updated and amended and including all other agreements, terms and conditions incorporated by reference. By selecting the “I agree” checkbox for a download of any updates, upgrades or supplements is considered use of the Software.
1.2. If you do not agree to the terms of this EULA, do not use the Software and immediately return the unused Products to the place where you obtained them. If you have already paid for the Software and/or Products you may obtain a refund of the purchase price provided that you (a) do not use the Software and/or Products, and (b) immediately return the Software and/or Products, with proof of payment, to the location from which they were obtained.
1.3. This EULA may be updated and amended by GPSI, without your consent, at any time and without notice. The current version of the updated and amended EULA can be found at https://www.gpsinnovations.com.au/eula . If there is any conflict between the terms contained in this version of the EULA and the terms contained at https://www.gpsinnovations.com.au/eula, then the terms contained at https://www.gpsinnovations.com.au/eula shall supersede and replace the terms contained in this version of the EULA. You understand and agree that if you use the Software after the date on which the terms of this EULA have been changed, your use will constitute acceptance of the updated terms or additional terms.
1.4. To the fullest extent permitted by law, your use of the Software constitutes acceptance that GPSI, its service providers, affiliates, employees, directors, officers, agents and suppliers, hereby expressly limits liability for any claims, damages, losses, costs and expenses incurred by you, however caused and even if such damages were reasonably foreseeable, to a total, maximum aggregate value not to exceed the amount of fees you pay to GPSI. Further information concerning the limitations of liability for use of the Software and the services it provides are set forth below.
1.5. This EULA constitutes the entire agreement between the parties. Any headings are provided for convenience only. You may not assign this EULA or any of your rights or obligations hereunder, GPSI may assign this EULA and any of its rights and obligations hereunder and this EULA shall inure to the benefit of and is binding on GPSI’s respective successors and permitted assigns.
2. USE OF THE SOFTWARE AND/OR PRODUCTS
2.1. You understand and agree that it is your responsibility to familiarise yourself with the operation of the Software and/or Products including reading of instructions, operating manuals and/or other materials as may be made available from time to time at https://www.gpsinnovations.com.au/legals (“Guides”). You agree that you will use the Software and/or Products only in accordance with such guides.
3.1. Subject to the terms and conditions of this Agreement, GPSI hereby grant you a limited, non-exclusive, non-assignable, non-transferable right to use the Software and/or Products (“License”). Such use shall be solely in connection with your use of our web based applications, mobility software products, in-vehicle telematics products, our satellite products and other asset management products we may choose to support from time to time.
3.2. This License does not extend to the Licensee any rights to obtaining future updates or upgrades of the Software and/or Products. If updates or upgrades of the Software and/or Products are obtained, the use of such upgrades or updates is governed by this EULA and any revisions that may go together with them may be subject to additional payment and/or conditions not contemplated herein.
4.1. Licensee agrees that all descriptive materials, electronic depictions, specifications, downloaded information, drawings and any other documents or media relating to the Software and/or Products, whether supplied by GPSI to you over the Internet or by other means, includes valuable Trade Secrets, Confidential Information and Intellectual Property that remains the sole property of GPSI.
4.2. Licensee agrees to treat the Trade Secrets, Confidential Information, and Intellectual Property in strict confidence, using a degree of care no less than that with which Licensee protects its own confidential information, but not less than a reasonable degree of care. Licensee shall not without the prior, express written authorisation of GPSI:
(i) Demonstrate, copy, lend, sell, market, or otherwise dispose of the Trade Secrets, Confidential Information, or Intellectual Property to any third party;
(ii) Publish or otherwise disclose information relating to the Trade Secrets, Confidential Information, or Intellectual Property to any third party; or
(iii) Modify, add to, reuse, disassemble, decompile, reverse engineer or otherwise translate the Trade Secrets, Confidential Information, or Intellectual Property or any portion thereof.
5. RIGHTS OF OWNERSHIP
5.1. All trade names, company names, copyrights, trademarks, service marks patents, inventions, trade secrets, intellectual property rights and other proprietary rights including product and service names and logos in and of the Software and/or Products are the proprietary marks of GPSI, and are protected by law and may not be copied, imitated or used, in whole or in part, without GPSI’s explicit consent. This Agreement does not grant you any rights in respect of any such marks.
5.2. You understand and agree that any advice, input, ideas, suggestions, improvements, changes, specifications or other information that is made available to us arising from or related to your use of the Software and/or Products may be used by us to modify, enhance, maintain and improve our Software and/or Products without any obligation or payment to you.
5.3. You hereby grant to us the right to use any data or information including your registration information:
(i) to maintain, improve or develop new Software, Products and Services;
(ii) to communicate information and notices related to Software, Products and Services;
(iii) as reasonably required for the provision of support, maintenance or other services;
(iv) to manage and develop our business and operations; and
(v) to understand and meet your needs and preferences;
5.4. You agree that GPSI may collect and use de-identified technical data and related information, including but not limited to technical information gathered periodically to facilitate the support and ongoing development of the Software and/or Products.
5.5. You represent, warrant and covenant that you will obtain all necessary consents, if any, required to permit us to collect, use, store, process, transmit, disclose and otherwise handle for our use and the use of related third parties for such purposes.
6. LIMITED WARRANTY
6.1. GPSI does not and cannot warrant that the Software and/or Products will operate free of errors. Above all you should be aware of the fact that calculation errors may occur when using the Software and/or Products that can be caused by a range of issues including but not limited to local environmental conditions, the transmission and/or receipt of incomplete data and/or incompatibilities between vehicles and the Software and/or Products.
6.2. If any, and to the maximum extent permitted by applicable law, GPSI provide the Software and/or Products “AS IS”, and hereby disclaim all other warranties and conditions, whether express, implied or statutory. Your exclusive remedy and GPSI’s entire liability under this limited warranty will be at GPSI’s option to replace Software and/or Products or refund the fee paid for the Software and /or Products. If applicable law requires any implied warranties with respect to the Software and/or Products, all such warranties are limited in duration to 12 months in the case of a standard Warranty.
6.3. In the event that an extended Warranty has been offered and purchased by you, the extended period shall apply with similar affect to the standard Warranty.
6.4. In the event of a failure of a Product during the Warranty period, GPSI’s sole obligation shall be to repair or offer replacement Software and/or a replacement Product in place of the defective Software and/or Product at no charge to the original owner. GPSI’s obligation is exclusive of transport fees, labour charges, de-installation costs, installation costs, Software and/or Product reconfiguration, return shipment and/or handling fees and costs. All such charges, costs and fees shall be at the sole expense of the Licensee.
6.5. Notwithstanding the Warranty Period described in this Section 6, if applicable, should you breach any term(s) of this EULA the Warranty Period will end on the date of such breach.
7. LIMITATION OF LIABILITY
7.1. Notwithstanding any other provision in this agreement and to the maximum extent permitted by applicable law, neither GPSI nor its service providers, affiliates, employees, directors, officers, agents and suppliers shall be, be liable or otherwise responsible for, and you hereby waive the right to make any claim with respect to:
(i) special, incidental, indirect, or consequential losses or damages, including loss of revenue or profits, loss of data, business information or loss of use thereof, failure to realize expected profits or savings, cost of capital, loss of business opportunities, loss of goodwill or any other non-direct, pecuniary, commercial or economic loss or damage of any kind or any claim by any third party;
(ii) any loss or damage arising from or related to:
(a) any changes we may make to the Software and/or Products;
(b) any modification, interruption, suspension, failure or discontinuance of the services;
(c) any loss, deletion, corruption or failure to store or transmit any of your data;
(d) the completeness or accuracy of your data or any other communications;
(e) a third party’s unauthorized access to your data or communications transmitted through the services;
(f) your failure to update your registration information;
(g) your failure to keep your login credentials secure; or
(h) any accident or injury caused by or to a vehicle or operated by you or any other person if the accident resulted from the operation or failure of any product, even if we could foresee or have been advised of the possibility of any such loss or damage.
7.2. You agree that, to the maximum extent permitted by applicable law, and except for our obligations to you pursuant to Section 6 (Limited Warranty), in no event shall the liability of GPSI or its service providers, affiliates, employees, directors, officers, agents and suppliers in respect of the Software and/or Products exceed the amount you have paid for the Software and/or Products. Licensee’s sole recourse in the event of dissatisfaction is to stop using the Software and/or Products and to return any and all Products to GPSI.
8.1. Without prejudice to any other rights, GPSI may immediately terminate this EULA if you fail to comply with any of its terms and conditions. In such event, you must remove all copies of the Software and discontinue use of the Products. Upon termination, the following provisions of this Agreement will remain in effect after termination of this EULA: Sections 3, 4, 5, 6, 7, 9 and 11. GPSI reserves the right, with or without notice, to discontinue the supply of upgrade and update services provided to you or made available to you through the use of the Software and/or Products.
9. USE OF THIRD PARTY PRODUCTS AND SERVICES
9.1. Any reference, use of or links to any third-party products or services does not constitute endorsement or recommendation by GPSI. Liability for third-party product and service information is the sole responsibility of each individual third-party vendor. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties are those of the respective authors and not of GPSI. You understand and acknowledge that GPSI is not responsible for and does not monitor third-party content for accuracy, completeness, timeliness, validity, copyright compliance, authenticity, decency, quality or any other aspect.
9.2. Third party products and services containing proprietary content, information and material may be protected by applicable intellectual property and other laws, including, but not limited to, copyright. You agree to use such proprietary content, information or material only in the manner and for the uses permitted by such third party products and services. You further agree not to use third party products and services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party. You acknowledge that GPSI is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the third party products or services.
10. ENTIRE AGREEMENT
10.1. This EULA (including any addendum or amendment to it), plus the Limited Warranty, if applicable, and any other terms and conditions, if applicable, is the entire agreement between you and GPSI relating to the Software and/or Products and they supersede all prior oral or written communications, proposals and representations with respect to the Software and/or Products or any other subject matter covered by this EULA. To the extent that the terms of any GPSI support services (other than the Limited Warranty) conflict with the terms of this EULA, the terms of this EULA shall govern. If any provision of this EULA is held to be void, unacceptable, unenforceable or illegal, the other provisions shall continue in full force and effect.
11. GOVERNING LAW
11.1. This EULA and any disputes related to this EULA or to the use of the Software and/or Products are subject to the laws of Queensland, Australia without giving effect to any principles that may provide for application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sales of Goods is excluded from application to this EULA. All disputes arising out of this EULA shall be settled in courts of Brisbane, Queensland Australia which will have exclusive jurisdiction in respect of any such disputes.