Aerotrack Systems – Terms of Use

Aerotrack MRO Software

 

1. Background
    1. Aerotrack Systems Pty Ltd ACN 121 081 767 (Aerotrack):

      1. provides the Aerotrack Software;
      2. provides services associated with the use of the Aerotrack Software by the Client.
    2. Aerotrack has agreed to grant the Client Access to the Aerotrack Software in accordance with this Agreement.

2. Nature of Agreement
    1. These Aerotrack Software Terms (Terms), the Proposal (if any), Service Level Agreement and any Special Conditions collectively form the entire agreement between Aerotrack and the Client.
    2. In the event of any inconsistency between these Terms, the Proposal, any Service Level Agreement entered into with the Client and any Special Conditions, the order of priority in which the respective documents are to be read is as follows:

      1. firstly, any Special Conditions;
      2. secondly, the provisions of the Proposal (other than Special Conditions);
      3. the provisions of these Terms; and
      4. lastly, the provisions of any Service Level Agreement entered into with the Client.
    3. The terms of this Agreement may be accepted by the Client by:

      1. executing the Proposal;
      2. installing, downloading, accessing or otherwise using the Aerotrack Software after receiving a copy of the Proposal and these Terms;
      3. the Client otherwise indicating to Aerotrack, whether directly or indirectly (such as by way of continuing to provide instructions), that the Client has accepted the terms of this Agreement.
    4. Any person that accepts this Agreement on behalf of a Client represents and warrants to Aerotrack that:

      1. they are duly authorised to accept this Agreement and bind the Client to this Agreement;
      2. to the extent they purport to accept this Agreement on behalf of a Client and are not duly authorised to do so, that person will be liable in their personal capacity and will indemnify Aerotrack against any loss, damage, expense or cost suffered as a result of such purported acceptance.

3. Term

This Agreement will commence on the Agreement Date and will terminate upon expiry of the Agreement Term, or as otherwise terminated in accordance with these Terms.


4. Grant of License

Upon acceptance of this Agreement by the Client, Aerotrack grants to the Client a non-exclusive, non-transferrable, revocable Licence to access and use the Aerotrack Software in accordance with this Agreement.


5. Delivery and Access

5.1 Access
    1. Subject to clause 5.2, Aerotrack will provide the Client Access to the Aerotrack Software on and from the Commencement Date.
    2. Where Aerotrack has granted the Client a Licence to use the Aerotrack Software, the Client may grant access to the Aerotrack Software to its Individual Active Users subject to the number of Concurrent Session Licences held by the Client.
    3. The Client must procure that any Individual Active User complies with the terms of this Agreement and is responsible for any breach thereof by an Individual
      Active User.
    4. Aerotrack reserves the right to refuse an Individual Active User that has been nominated by the Client where, at its sole discretion, Aerotrack deems it necessary to protect its rights under this Agreement, its rights in the Aerotrack Software, any third-party rights or where Aerotrack otherwise considers it reasonable to do so.
    5. Unless specified in the Proposal, Aerotrack is not obligated to download and install any additional software or applications required by the Client to access
      the Aerotrack Software.
    6. From time to time Aerotrack may (but is not obligated to) update the Aerotrack Software. Where practicable Aerotrack will provide the Client with Notice of any
      such update. Once the Aerotrack Software has been updated the licence and provision of the updated software by Aerotrack to the Client will be governed in accordance with the terms of this Agreement.
5.2 Client Responsibillties
    1. The grant of Access to the Client to use the Aerotrack Software pursuant to clause 5.1 is conditional upon the Client:

      1. ensuring the compliance of all of its Individual Active Users with the terms of this Agreement; and
      2. payment by the Client of all Fees and other amounts rightfully due and owing to Aerotrack pursuant to this Agreement.
    2. In accessing and using the Aerotrack Software the Client must:

      1. comply with these Terms, the Proposal and any Special Conditions;
      2. use the Aerotrack Software in accordance with any Specifications provided by Aerotrack;
      3. comply with all reasonable and lawful directions that Aerotrack may give from time to time with respect to the Client’s use of the Aerotrack Software;
      4. only use the Aerotrack Software in the ordinary operation of its business and must not grant or purport to grant, or convey, any right to any third party, to use or commercialise the Aerotrack Software; and
      5. cooperate with Aerotrack in any remediation of any security breach, unauthorised use or misuse of the Aerotrack Software and promptly report to Aerotrack all such matters of which the Client becomes aware.
    3. In accessing and using the Aerotrack Software the Client must not:

      1. allow or engage any third party to work on the Aerotrack Software without first obtaining Aerotrack’s written consent, which Aerotrack may withhold in its sole discretion;
      2. interfere or disrupt the operation of the Aerotrack Software, nor attempt to do the same;
      3. grant access to the Aerotrack Software to anyone other than its Individual Active User, unless Aerotrack has provided express written consent;
      4. access or use any data other than the Client’s own data or data to which it has a right to access and use; and
      5. subject to any right under sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth), either directly or indirectly, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Aerotrack Software.

 


6. Training, Software Support and Maintenance
    1. Aerotrack will provide the Client with the installation and training services as specified in the Proposal.
    2. Aerotrack will provide the Client with ongoing support in the use of the Aerotrack Software on the basis specified in the Proposal.
    3. The Client may at any time request that Aerotrack provide additional maintenance, software support and training services (Additional Services). The fees for such services will be made available on the Website, within the Aerotrack Software or otherwise provided by Aerotrack upon specific request by the Client.
    4. For the avoidance of doubt, Aerotrack is under no obligation to provide Additional Services, unless otherwise designated in the Proposal.
    5. If Aerotrack has agreed to provide Additional Services, it will provide the Additional Services in accordance with the terms of this Agreement and in a professional manner with due care, skill and diligence.

7. Client Responsibilities
7.1 Data
    1. When using the Aerotrack Software the Client is responsible for uploading the Client Data.
    2. Aerotrack uses a Data Host. The Client acknowledges that uploaded Client Data and Outputs when stored at rest in the cloud environment are not encrypted. However, all Client Data and Outputs transferred from the Aerotrack Software to the Data Host are encrypted.
    3. The Client acknowledges and agrees that the Client Data and Outputs will be stored on third party servers which may be located outside of Australia.
    4. Where the Client has uploaded Client Data to the Aerotrack Software, Aerotrack will backup that Client Data and any Outputs.
    5. The Client acknowledges that in order to utilise the Aerotrack Software the Client Data must conform to any Data Specifications prescribed by Aerotrack.
    6. Aerotrack will not be liable to the Client for any Loss suffered due to the services available through the Aerotrack Software not being provided or not being available or effective.
    7. The Client acknowledges and agrees that Aerotrack may take such action as it considers necessary, including suspension or termination of the Client’s Access to the Aerotrack Software, or the Access of an Individual Active User, where the Client or an Individual Active User uses the Aerotrack Software in a manner that is inconsistent with the terms of the Agreement between Aerotrack and the Client.
    8. Aerotrack will not be liable and the Client releases and holds Aerotrack harmless from any Loss the Client may suffer as a result of Aerotrack exercising its rights in accordance with clause 7.1(g)
    9. The Client, acknowledges that Aerotrack will entitled to use any Client Data that has been uploded to the Aerotrack Software by the Client for the purpose of fulfilling service requests made by the Client (which may include backing up data), improving the functionality of the Aerotrack Software and otherwise assiting the Client.This right is subject to Aeortack complying with its confidentially obligations under clause 12.,.
    10. To the extent any Intellectual Property Rights created in Outputs vest in the Client, acknowledges that Aerotrack will be entitled to use the Outputs, provided such use is in accordance with this Agreement, the purpose of the use is to give effect to the Aerotrack Software and Aerotrack complies with all of its confidentiality obligations under clause 12.
    11. Aerotrack acknowledges and agrees that:

      1. it does not obtain ownership of any Intellectual Property Rights in the Client Data; and
      2. where the Client Data is held or stored by Aerotrack, it is held on the Client’s behalf.
7.2 Client Warranties

The Client represents, warrants and undertakes that:

    1. the Client owns or has an unrestricted right to use all Client Data that is uploaded by the Client or on the Client’s behalf, including the right to authorise Aerotrack to store and use the data in the performance of its obligations under this Agreement or as otherwise permitted pursuant to the terms of this
      Agreement;
    2. Aerotrack is authorised to use and store the Client Data that has been uploaded for the performance of its obligations under this Agreement or as otherwise permitted pursuant to the terms of this Agreement;
    3. the Client has the capacity and authority to enter into and to perform its obligations under this Agreement; and
    4. the terms of this Agreement have been accepted by a Duly Authorised Representative of the Client and accordingly the terms of this Agreement legally bind the Client.
7.3 Client Acknowledgements
    1. The Client acknowledges and agrees that:

      1. computer and telecommunications services are not fault free and occasional periods of downtime may occur;
      2. Aerotrack has not made any representations or warranties that the Aerotrack Software will be error free, free of viruses or available without interruption;
      3. the Aerotrack Software and any Additional Services provided by Aerotrack are intended only as a tool to assist the Client and in no way are to be relied upon or used instead of, or in substitution for, any compliance or record keeping obligations that are imposed upon the Client by any relevant Law or regulatory authority.
    2. In addition to any other rights or remedies Aerotrack may have, Aerotrack may suspend or terminate any Individual Active User’s access to the Aerotrack Software at any time and without any liability to the Client in the event the Client or any Individual Active User breaches any provision of this Agreement.

8. Aerotrack’s Responsibilities

Aerotrack will:

    1. comply with the Privacy Act 1988 (Cth);
    2. meet its obligations under any Service Level Agreement entered into with the Client;
    3. provide reasonable notice of scheduled maintenance to the Aerotrack Software;
    4. use appropriate security systems and procedures to safeguard and to prevent unauthorised third party access to the Client Data and Outputs; and
    5. ensure that the Aerotrack Software will be provided in accordance with this Agreement.

9. Intellectual Property Rights
    1. Each Party retains all right, title and interest in and to its pre-existing Intellectual Property Rights.
    2. Nothing in this Agreement is to be construed as an assignment of ownership of Intellectual Property Rights subsisting in Client Data from the Client to Aerotrack.
    3. Nothing in this agreement affects the ownership of Moral Rights in the Aerotrack Software by Aerotrack.
    4. Aerotrack owns all Intellectual Property Rights to the Aerotrack Software.
    5. The Client acknowledges that all Intellectual Property Rights in any improvement, modification or alteration (Improvement) made to the Aerotrack Software vest in Aerotrack, even where such Improvement has been undertaken at the request or instruction of the Client, including where the Client has paid for such Improvements.
    6. To the extent that the Intellectual Property Rights in an Improvement are unable to vest in Aerotrack and instead vest in the Client, the Client hereby grants to Aerotrack a free, transferable, sublicensable, non-revocable, worldwide and perpetual licence to use and commercialise the Improvement.
    7. For the avoidance of doubt nothing in this Agreement prohibits Aerotrack from using its pre-existing Intellectual Property Rights to provide services to third parties, even if such services are the same or substantially the same as those provided to the Client.

10. Fees, Charges and Payments

10.1 Fees
    1. In consideration of Aerotrack granting the Client Access and the Licence, the Client will pay to Aerotrack the Fee.
    2. Aerotrack will issue Tax Invoices to the Client for the payment of the Fees and the Client must attend to payment of such Tax Invoices in the manner specified in the Proposal, or as otherwise expressly stated in the Tax Invoice, without set-off, counterclaim, holding or deduction.
    3. The Client acknowledges and agrees that Aerotrack may increase the Fees from time to time. Where Aerotrack is increasing the Fees it will provide the Client with at least thirty (30) days’ Notice of the fee increase.
    4. If the Client does not agree to the increase in Fees proposed by Aerotrack, the Client may terminate this Agreement as at the effective date of the proposed increase and in accordance with clause 13.1 of these Terms.
    5. Where the Client has requested and Aerotrack has agreed to provide Additional Services, Aerotrack will undertake the Additional Services at the rates specified on the Website, within the Aerotrack Software or as otherwise quoted by Aerotrack to the Client. The Client must pay to Aerotrack any additional fees for those services in the manner directed by Aerotrack.
10.2 Expenses

Any costs and reasonable out-of-pocket expenses which are necessary to provide Access to the Aerotrack

Software or Additional Services (Expenses) will be paid or reimbursed (as the case may be) by the Client where Aerotrack has received prior written approval from the Client. Aerotrack will upon request submit documentation and evidence as is reasonably required by the Client to verify the Expenses that have been incurred.

10.3 Disputed Fee
    1. If the Client disputes any part of a Tax Invoice it must pay the portion not in dispute and provide Notice to Aerotrack within seven (7) days of receiving the Tax Invoice of the Client’s reasons for the dispute.
    2. Within a reasonable time of receiving the Notice, Aerotrack will address the Client’s reasons of dispute, to enable a prompt and amicable resolution.
    3. If the dispute cannot be resolved within seven (7) days of Aerotrack providing a written response to the Notice received under paragraph 10.3(a), then the dispute must be referred to the dispute resolution procedure contained in  clause 16.
10.4 Late Payment

If the Client fails to pay any Fees or other amounts rightfully due and owing to Aerotrack in accordance with this Agreement within the time required, Aerotrack may:

    1. charge interest on the overdue amount at the Default Rate as from the first day that payment is overdue; and
    2. charge the Client for all costs and expenses incurred by Aerotrack in recovering Aerotrack’s outstanding Fees from the Client, including legal fees (on a solicitor and own client basis) and court costs, which the Client must pay upon demand.
10.5 GST

Unless otherwise expressly stated, all amounts under this Agreement are exclusive of all taxes, duties and customs. If any taxes, duties or customs are imposed on any supply made under or in accordance with this engagement and such taxes, duties or customs have not been accounted for in determining the consideration payable for the supply, then Aerotrack may recover from the Client an amount on account of those taxes, duties or customs.


    11. Representatives
    11.1 Duly Authorised Representative
      1. The Client must appoint a Duly Authorised Representative who will be responsible for the oversight of this Agreement (Representatives’ Purpose).
      2. The Client must ensure its Duly Authorised Representative co-operates with any request made by Aerotrack in respect of anything related to this Agreement.
    11.2 Authority

    The Client:

      1. covenants that the Duly Authorised Representative has full authority to act on the Client’s behalf in any way relating to the Representatives’ Purpose;
      2. acknowledges and agrees that Aerotrack may rely on any written representation, direction or communication made by the Duly Authorised Representative that relates to the Representative’s Purpose, as if the Duly Authorised Representative were the Client; and
      3. must release and hold Aerotrack harmless from Aerotrack relying upon or following all and any such direction or representation.

    12. Confidentiality and restrictions
    12.1 Recipient must keep Confidential Information confidential

    Each party must keep confidential all Confidential Information and only use any Confidential Information for the purpose of giving effect to and utilising the Aerotrack Software in the manner contemplated by this Agreement.

    12.2 Disclosure exceptions

    The obligations in clause 12.1 do not apply:

      1. to the extent necessary to enable a party to make any disclosure required by law;
      2. to the extent necessary to enable a party to perform its obligations under this Agreement;
      3. to any disclosure agreed in writing between the parties; or
      4. in respect of any portion of the Confidential Information which has entered the public domain other than as a result of a breach of this Agreement.

    13. Termination
    13.1 Termination Generally
      1. This Agreement will expire upon expiry of the Agreement Term, unless otherwise renewed in writing by the parties.
      2. The Client may terminate this Agreement by Notice to Aerotrack in the event the Client does not agree with a proposed Fee increase by Aerotrack in accordance with clause 10.1(c).
      3. Notice provided in accordance with clause 13.1(b) bust be given at least fourteen (14) days prior to, and becomes effective from, the effective date of the proposed fee increase. The Client remains bound by all of its obligations under this Agreement, including its obligations to pay to Aerotrack the Fees, up until the termination date (being the effective date of the increased fees).
    13.2 Termination for breach

    Either party may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect by written notice to the other party, in the event of:

      1. any material breach of the Agreement by the other party which is not remedied within 30 days after the service on the party in default of a written Notice specifying the nature of the breach and requiring that the same be remedied; or.
      2. the other party becoming Insolvent.
    13.3 Effect of termination

    Upon termination or expiry of this Agreement:

      1. Aerotrack may at its discretion retain the Client’s account and associated data (including Client Data and Outputs) to enable the Client to renew its License and recommence using the Aerotrack Software;
      2. Aerotrack may, at its discretion, delete all Client Data and Outputs stored by Aerotrack. In the event that the Client has requested that Aerotrack provide a copy of the Client Data and Outputs to the Client, Aerotrack will be entitled to charge the Client a reasonable fee for the provision of such Client Data and Outputs;
      3. the Client must pay all outstanding Fees and any other payments due to Aerotrack under this Agreement;
      4. subject to 13.3(a) each party must, upon request from the other party, destroy the other party’s Confidential Information received under the Agreement (unless this Agreement expressly provides such Confidential Information can be retained post termination). The Client acknowledges that back-up and disaster recovery information is stored in multiple data centres and that Aerotrack cannot destroy archival copies immediately upon request. However, such backup and disaster recovery information will be deleted as a matter of course; and
      5. any accrued rights or liabilities of either party or any provision of the Agreement which is expressly or by implication intended to come into or continue in frce on or after such termination will not be affected.

    14. Indemnity
    14.1 Client indemnity
      1. The Client agrees to indemnify Aerotrack and keep Aerotrack indemnified against any Loss that may be incurred by Aerotrack arising from or in connection with:

        1. any breach or default by the Client of this Agreement (including any breach of warranty);
        2. a negligent act or omission by the Client or by a party the Client is responsible for;
        3. the Client’s failure to comply with any Law or the direction of any regulatory authority;
        4. the Client’s failure to comply with its contractual obligations to any third party insofar as such obligations arise or relate to the use by the Client of
          the Aerotrack Software;
        5. the failure of a party the Client is responsible for in complying with any Law or the direction of any regulatory authority; or
        6. any Claim made against Aerotrack by any third party as a result of an act or omission by the Client, or resulting in any way from the upload of Client
          Data.
      2. The indemnity provided to Aerotrack by the Client in accordance with clause 14.1 will be reduced proportionately to the extent that any Loss incurred by Aerotrack is contributed to by the negligent acts or omissions of Aerotrack.
    14.2 Aerotrack indemnity
      1. Subject to clause 14.2(b), Aerotrack will indemnify the Client with respect to any Loss suffered as a result of any Claim made against the Client by a third party alleging that the Aerotrack Software infringes the Intellectual Property
        Rights of that third party.
      2. Aerotrack will not be liable to Client under sub clause 14.2(a) if:

        1. the Client does not provide Notice to Aerotrack of the other person’s Claim within 10 Business Days after becoming aware of it;
        2. Aerotrack ability to defend the claim has been prejudiced by the Client’s non-compliance with any of the Client’s obligations under this Agreement;
        3. the Client does not give Aerotrack reasonable assistance in the circumstances in defending the Claim;
        4. the Client has attempted or offered to settle any Claim with a third party; or
        5. the Client does not permit Aerotrack to have control of the defence of the Claim and all related settlement negotiations.
    14.3 Exclusion of liability

    To the maximum extent permitted by Law, Aerotrack will not be liable for any ordinary, incidental, consequential or special loss or damage (including but not limited to loss of profits, loss of data and loss of personnel) arising out of this Agreement or the use of the Aerotrack Software even if Aerotrack was appraised of the likelihood of such loss or damage occurring.

     

    14.4 Limit of liability
      1. Except as expressly provided by this Agreement, the Aerotrack Software is provided on an “as is” basis without any representation, warranty or guarantee as to quality, condition or fitness for purpose and Aerotrack does not warrant that the Aerotrack Software will be free of defect,
        uninterrupted, accurate, complete, current, stable, bug free, error free or available at any time in respect of its operation.
      2. Except in relation to liability for personal injury (including sickness and death), property damage or an infringement of confidentiality or Intellectual Property Rights, Aerotrack’s liability in damages (including special, indirect or consequential damages, which damages will be deemed to include loss of revenue, loss of profit and opportunity loss) in respect of any act or omission of Aerotrack in connection with its obligations under this Agreement will not exceed the total Fees received by Aerotrack from the
        Client in the immediately preceding six (6) months from when the cause of action arose.
      3. Aerotrack has no responsibility or liability whatsoever as a consequence of any Loss suffered by the Client as result of:
        1. any of the Client Data or Outputs being lost, destroyed or damaged by the Aerotrack Software or a third-party provider of cloud based storage or hosting;
        2. any third party software malfunctions; or
        3. malfunctions in the Aerotrack Software caused as a result of interactions or integrations with third party software.

     

    14.5 Exclusion of other Terms
      1. Subject to clause 14.5(b), any condition, guarantee or warranty which would otherwise be implied in this Agreement is hereby excluded.
      2. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at Aerotrack’s election) to Aerotrack providing the Aerotrack Software again or the payment of the cost of having the Aerotrack Software supplied again.
      14.6 Survival

      The provisions of this clause 14 survive the termination of this Agreement.


      15. Notices

      Any notices given under or in connection with this Agreement:

        1. must be in legible writing and in English;
        2. in the case of Aerotrack, sent to the contact address specified for Aerotrack in the Proposal, or as otherwise updated by Aerotrack to the Client;
        3. must be:

          1. delivered to the party’s address as specified in the Proposal;
          2. issued via the Aerotrack Software to the Duly Authorised Representative; or
          3. sent by email to that party’s email address;
        4. will be deemed to be received by the addressee:

          1. if delivered by hand, at the time of delivery;
          2. if sent by post, on the third Business Day after the day on which it is posted, the first Business Day being the day of posting;
          3. if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth); or
          4. if sent via the Aerotrack Software at the time it is sent.

      16. Disputes
        1. If a dispute arises out of or relates to this Agreement (Dispute) a party to the Agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with this clause, except where the party seeks urgent interlocutory relief.
        2. A party claiming that a Dispute has arisen must give a Notice (Dispute Notice) to the other party or parties to this Agreement specifying the nature of the Dispute. The parties must then negotiate in good faith to resolve the
          Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed to
          by them.
        3. If the Parties do not resolve the Dispute within fourteen (14) days of receipt of the Dispute Notice (or such further period as agreed in writing by them) any party to the Dispute may refer the Dispute to mediation by a mediator
          nominated by the President or the nominee of the President for the time being of the Queensland Law Society Incorporated.
        4. Each party must bear its own costs in connection with resolving the Dispute and the Parties must bear equally the costs of any mediator engaged.
        5. Any information or documents disclosed by a party under this clause must bekept confidential and may not be used except to attempt to resolve the dispute.

      17. General matters
      17.1 Essential terms

      Clauses 7.1, 10, 11 , 12 and 14 are essential terms of this Agreement and tothe extent applicable will survive its termination.

      17.2 Amendments

      This Agreement may only be varied by a further written agreement signed by or on behalf of each of the parties.

      17.3 Force majeure

      Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force
      Majeure, the performance of that party’s obligations will be suspended. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds thirty (30) days, either party may immediately terminate this Agreement on providing Notice to the other party.

      17.4 Assignment
        1. Aerotrack may, upon Notice in writing to the Client, assign, novate or otherwise transfer the benefit of all or any part of this Agreement to any other person or entity.
        2. Neither any rights, benefits or liabilities relating to this Agreement may be assigned, novated or otherwise transferred by the Client without Aerotrack’s prior consent, which will not be unreasonably withheld.
      17.5 Attorneys

      Each person who executes this Agreement on behalf of a party under a power of attorney declares that he is not aware of any fact or circumstance that might affect his authority to do so under that power of attorney.

      17.6 Consents

      Unless this Agreement expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this Agreement. To be effective any consent under this Agreement must be in writing.

      17.7 Entire Agreement

      This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect. The Client warrants that it has not relied on any representation made by Aerotrack which has not been stated expressly in this Agreement.

      17.8 Further acts

      Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.

      17.9 Jurisdiction

      This Agreement is governed by the law in force in the State of Queensland and each party submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this Agreement.

      17.10 No Merger

      No right or obligation of any party will merge on completion of any transaction contemplated by this Agreement.

      17.11 Severability

      Any provision of this Agreement that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of this Agreementwhich shall remain in force.

      17.12 Waiver
        1. Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under this Agreement by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under this Agreement.
        2. Any waiver or consent given by any party under this Agreement will only be effective and binding on that party if it is given or confirmed in writing by that party and no waiver of a breach of any term of this Agreement will operate as a waiver of another breach of that term or of a breach of any other term of this Agreement.

      18. Definitions and Interpretation
      18.1 Definitions

      In this Agreement:

      Access means a grant of access to the Client for it to use the Aerotrack Software on the terms of the Agreement between the parties.

      Additional Services has the meaning given to that term in clause 6(a).

      Aerotrack Software means the software package designed specifically for aviation maintenance allowing for the management of personnel, inventory, workshop tooling and other functionalities relating to aviation maintenance. Agreement means the Proposal, these Terms, any Service Level Agreement and any Special Conditions, collectively forming the entire agreement between the parties.

      Agreement means the Proposal, these Terms, any Service Level Agreement and any Special Conditions, collectively forming the entire agreement between
      the parties.

      Agreement Date means the date the Proposal is executed by the Client. Agreement Term means the period commencing upon the Commencement Date and expiring upon the final day of the Licence Term granted by Aerotrack to the Client as specified in the Proposal.

      Agreement Term means the period commencing upon the Commencement Date and expiring upon the final day of the Licence Term granted by Aerotrack
      to the Client as specified in the Proposal.

      Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

      Duly Authorised Representative means the person appointed by the Client as specified in the Proposal to oversee this Agreement in accordance with clause 11.1 of these Terms.

      Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in the location of Aerotrack’s address specified in the Proposal.

      Claim includes a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.

      Client means the client under this Agreement as specified in the Proposal.

      Client Data means all information belonging to the Client, including but not limited to employee information, contractor information, parts and maintenance information and other aircraft information uploaded to the Aerotrack Software
      by the Client (or on the Client’s behalf).

      Commencement Date means the date on which the Licence commences as specified in the Proposal.

      Concurrent Session Licence means a licence purchased by the Client to allow Individual Active Users to access and use the Aerotrack Software in accordance with the terms of this Agreement.

      Confidential Information means information that is by its nature confidential, or is designated by a party as confidential, or that a party knows or ought to know is confidential, other than information which is or becomes public knowledge otherwise than by breach of this Agreement or any other confidentiality obligation.

      Corporations Act means the Corporations Act 2001 (Cth).

      Data Host means a third party provider of cloud-based data hosting that owns and maintains (either itself or through its providers) a remote, virtual network of connected hardware, services and data centres located worldwide required
      for web application hosting.

      Data Specifications means Aerotrack’s requirements as to the standard and volume of Client Data (including as to the quality, integrity and format of data) required in order to upload the Client Data to the Aerotrack Software, as determined (and revised and amended) by Aerotrack from time to time.

      Default Rate means 10% per annum accruing from and including the date that payment is one day overdue and ceasing to accrue on the date Aerotrack receives payment in full of all overdue Fees or other payments rightfully due and owing to it under the Agreement.

      Fees mean the fees payable to Aerotrack under this Agreement for the provision of Access to the Aerotrack Software and in consideration of the Licence as specified in the Proposal.

      Force Majeure means any cause beyond the reasonable control of a party and which that party is unable to overcome by the exercise of reasonable diligence and at a reasonable cost, including an act of God, fire, earthquake, storm or flood, and the failure of third-party equipment, software, technology or other services necessary for the performance of a party’s obligations under this Agreement.

      GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.

      GST Law has the meaning given to it in the A New Tax System (Goods and Development Services Tax) Act 1999 (Cth).

      Individual Active User means any person to whom the Client has provided access to use the Aerotrack Software by way of a Concurrent Session Licence.

      Insolvent means if a person is insolvent or an insolvent under administration, or has a controller appointed (each as defined in the Corporations Act), are in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction whilst solvent) or otherwise unable to pay debts when they fall due.

      Intellectual Property Rights means all intellectual property rights, including the following rights:

          1. copyright, patents, rights in circuit layouts, trademarks, designs, trade secrets, know how, and any right to have confidential information kept confidential;
          2. any application or right to apply for registration of any of the rights referred to in paragraph (a); and
          3. all rights or a similar nature to any of the rights in paragraphs (a) and (b) which may subsist,
          4. whether or not such rights are registered or capable of being registered.

      Law includes any requirement of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise.

      Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.

      Licence means the non-exclusive, non-transferable licence granted by Aerotrack to the Client to use the Aerotrack Software on the terms of this Agreement.

      Licence Term means the duration of the Licence as specified in the Proposal.

      Moral Right means moral rights as defined in the Copyright Act 1968 (Cth).

      Notice means a notice given under or in connection with this Agreement that adheres to the requirements in clause 15.

      Outputs means any source text, documents, information, reports or other content created or generated howsoever by the Aerotrack Software from the Client Data.

      Proposal means the written document provided to the Client by Aerotrack containing at least the:

          1. Client details;
          2. Fees for the License of the Aerotrack Software;
          3. Licence Term, including Commencement Date; and
          4. any Special Conditions.

      Service Level Agreement means an agreement entered into between the Client and Aerotrack (if applicable) regarding the minimum functionality and availability requirements of the Aerotrack Software and any Additional Services or general support services to be provided by Aerotrack.

      Special Conditions means the special conditions of the Agreement set out in the Proposal.

      Specifications means any document or material provided to the Client or made available on the Website or through the Aerotrack Software by Aerotrack prior to the Commencement Date, or as updated or uploaded from time to time, containing technical information regarding the use of the Aerotrack Software.

      Tax Invoice means an invoice issued by Aerotrack for payments required under this Agreement.

      Website means the Aerotrack website located at http://aerotrack.com.au/.