Trackplot Limited Terms and Conditions
February 2024
Contents
- Definitions
- Agreement Terms, Acceptance and Changes
- Limitations
- Orders, price, payment and cancellation
- Goods, Services and Training
- Delivery
- Acceptance
- Title and risk
- Buyer obligations
- Closing and suspending Trackplot Services
- Limitation of liability
- Set off and counterclaim
- Intellectual Property
- Force majeure
- Severability
- Waiver
- Relationship of parties
- Assignment and sub-contracting
- Entire Agreement
- Governing law and jurisdiction
Thank you for using Trackplot. Please read these Terms carefully before using any Services or Goods provided by Trackplot. By accessing or using our Services and Goods, you are agreeing to be bound by these Terms and our Privacy Policy. These Terms apply to all users and organisations who wish to access or use the Service, paid or otherwise. They are a legal agreement between you and us.
Please note each Lone Worker that downloads the Trackplot Mobile App or uses the Trackplot Services will need to read the Trackplot End User Licence Agreement (EULA) before use.
1. Definitions
“Terms”: Shall mean these Terms and Conditions and the Trackplot End User Licence Agreement (EULA). Our EULA is available in the HELP tab in your Trackplot Portal.
“Privacy Policy”: Our Privacy Policy describes how we collect, use, store, and disclose your personal information. Read our Privacy Policy.
“Seller”: “we”, “our” and “us”: Shall mean Trackplot Limited incorporated under the Companies Acts in Scotland (No SC360048) and having our registered office at 17B Graham Street, Edinburgh, Scotland, EH6 5QN.
“Goods”: Shall mean any goods or equipment that the Buyer purchases from Trackplot Limited.
“Services”: Shall mean the Lone Worker Monitoring Service, access to the Mobile App, access to the Service Data, and any documents and/or materials describing the Services and/or any user instructions for the Services, that the Buyer purchases from Trackplot Limited on an annual subscription.
“Training”: Shall mean agreed scheduled courses on how to use the Trackplot lone worker monitoring service provided by Trackplot Limited.
“Additional Services”: Shall mean an order for additional paid-for Services that are not the usual Goods, Services or Training.
“Trackplot Account”: Shall mean the online password protected website known as the Trackplot Portal which provides access to the Service.
“Buyer”: “you” and “your”: Shall mean the organisation or person who purchases Goods, Services and / or Training from Trackplot Limited.
“Device”: Shall mean any computer, mobile or other device, whether or not it is owned by you (“Device”).
2. Agreement Terms, Acceptance and Changes
2.1. These Terms and Conditions are the terms on which the Seller sells to other businesses and supersede all other terms and conditions used by us.
2.2. These Terms and Conditions are available on request by email from the Seller or can be viewed online.
2.3. By accepting a sales order confirmation or Invoice of the Goods, Services and Training or by using the Goods, Services and Training provided by us you accept and agree to be bound by all the Terms and Conditions of this Agreement and this shall be deemed conclusive evidence of your acceptance of these Terms and Conditions.
2.4. Notwithstanding any other provision of this Agreement, nothing herein shall confer or is intended to confer a benefit on any third party for the purpose of the Contract (Rights of Third Parties) Act 1999 or for any other purpose.
2.5. We reserve the right to change these Terms and Conditions from time to time and may impose new or different Terms and Conditions on your use of the Service. These additional terms will be posted on our website available in the link described in 2.2. above and will be effective immediately. Your continued use of the Service will be deemed to constitute your acceptance of all of the new terms. These Terms and Conditions may not otherwise be changed without our written consent.
3. Limitations
3.1. You acknowledge and agree that using the Goods and Services may include utilisation of certain third party products, services, and associated or embedded software. Your use of any such services, products, and/or software in connection with the Trackplot Goods and Services will be governed by the terms and conditions of use of the applicable Service Providers or third party providers/vendors that provide such services, products, and/or software. Additionally, you acknowledge and agree that the functionality of the Goods and Services relies upon the performance of such Service Providers or third party providers/vendors, and any such associated or embedded software. You also acknowledge that there may be disruptions or limitations to the Goods and / or Services as a result of any performance failures of such providers and such disruptions may result in decreased functionality of, and interference with, your use of the Goods and / or Services. Such limitations, interruptions and interferences shall not be attributable to any failure or fault of Trackplot Limited or result in any liability for us.
4. Orders, price, payment and cancellation
4.1. No contract shall come into existence until we confirm the order for Goods, Services or Training in writing to you.
4.2. The Price for Goods, Services, Training or Additional Services shall be the price quoted in an Invoice provided by us.
4.3. The Price is exclusive of VAT or any other applicable costs. All goods are sold ex-works and the carriage shall be paid by you.
4.4. For Goods and Services, payment of the Price shall be made by you before delivery or within 14 days of the Seller Invoice Date subject to approved credit terms. Credit terms can be removed by us without explanation.
4.5. For Training, payment of the Price shall be made by you in advance of the Training course date.
4.6. We shall be entitled to charge interest on overdue invoices from the date when the payment becomes due from day to day until the date of payment at a rate of 8.0% per annum above the base rate of the Bank of England.
4.7. If payment of the Price or any part thereof is not made by the due date, we shall be entitled to:
1. require payment in advance of delivery in relation to any Goods, Services or Training not previously delivered;
2. refuse to make delivery of any undelivered Goods, Services or Training whether ordered under the contract or not and without incurring any liability whatever to you for non-delivery or any delay in delivery;
3. terminate the contract.
4.8. Annual Service subscriptions may be cancelled by you giving notice in writing to us at least 2 weeks before the renewal date, and agreed as cancelled also in writing by us. Refunds will not be given for any unused part of the subscription.
4.9. To cancel scheduled Training we require notice of 5 working days in advance of the Training date. Refunds will not be given for scheduled Training cancelled with less than 5 working days notice from the the Training date.
5. Goods, Services and Training
5.1. The description and quantity of the Goods, Services and Training to be sold shall be as set out in the Invoice provided by us to you.
5.2. We reserve the right to alter prices or withdraw and modify Goods, Services and Training from time to time without directly notifying previous Buyers. Certain updates, upgrades and/or additional features may also be subject to additional payment. Goods, Services and Training illustrated in all of our literature and websites are done so as accurately as modern reproduction methods will allow.
5.3. You accept responsibility in accordance with these Terms for the use of the Trackplot Portal or Mobile App on or in relation to any computer, mobile or other device (“Device”), whether or not it is owned by you.
6. Delivery
6.1. Delivery schedules will be agreed between us and you prior to Goods being shipped, Services being activated and Training or Additional Services being delivered. The delivery period specified by us is an estimate only and shall not be of the essence of the contract.
6.2. We shall deliver the Goods to the address supplied by you. You shall make all necessary arrangements to take delivery of the Goods on the day notified by us for delivery.
6.3. In any event, time of delivery period shall not be of the essence and we shall not be liable for any losses, costs, damages or expenses incurred by you or any third party arising directly or indirectly out of any failure to meet any estimated delivery period or date.
7. Acceptance
7.1. We must be advised in writing by email of any defects in the Goods as soon as they are discovered by you who shall be deemed to have accepted the Goods if they have not been rejected on or before the seventh day after delivery. You shall not be entitled to reject the Goods in whole or in part thereafter.
7.2. Where a claim of defect or damage is made then it shall be our responsibility to either collect the faulty Goods and give you replacement Goods, or we will arrange a repair under a Return to Manufacturer Agreement (RMA). We will not be held responsible for any loss or costs caused to you. Should the reported fault be related to incorrect use of the Goods, or failure to adhere to instructions, we reserve the right to charge a restocking fee for the Goods.
7.3. Goods to be returned must be fully re-packaged and sealed in the original packaging obtained from the Seller. Please ensure that the persons unwrapping the Goods are very careful and keep the inner and outer wrapping of the original packaging intact.
7.4. Where returned Goods are found to be damaged due to the Buyer’s fault you will be liable for the cost of remedying such damage.
8. Title and risk
8.1. Ownership of the Goods passes to you once we have been paid in full for the Goods. The Goods are then held at your own risk and we will not be liable for their loss or destruction.
8.2. If you fail to pay in full we shall have the right to repossess or otherwise recover the Goods. Until title passes you shall hold the Goods as bailee for us and shall store or mark them so that they can at all times be identified as our Goods.
9. Buyer obligations
You must:
9.1. only access the Trackplot Account which has been allocated;
9.2. use the Service (including any materials obtained from the ) solely for legitimate business purposes;
9.3. be responsible for administering the use of and safeguarding the confidentiality of your Account including any passwords created to control access to the Trackplot Account, and acknowledge and agree that internet transmissions are never completely private or secure;
9.4. be responsible for any data or content provided to us or that you send via your Trackplot Portal;
9.5. be responsible for all users, who must be over sixteen years of age to create an account to use the Service;
9.6. consent to us collecting and using technical information about any Device to help improve our products and to provide any Services to you.
You must not:
9.7. do anything which could reasonably be expected to damage, disable, overburden, or materially impair the Service or the Trackplot Account generally or which is likely to interfere with any other party’s use or enjoyment of the Service;
9.8. use the Service for the purpose of accessing any content which a user should reasonably suspect they are not authorised to access;
9.9. question or dispute our ownership of the Intellectual Property Rights in the Service and the Trackplot Account;
9.10. submit any material to us via the Service or otherwise which is or which links to or refers to any material which:
1. is threatening, abusive, malicious, defamatory, obscene, indecent, pornographic or otherwise sexually explicit, blasphemous, profane, intended or likely to incite racial or religious hatred, or is otherwise objectionable or offensive in any way in terms of standards prevailing from time to time in the United Kingdom;
2. is unlawful or which encourages the commission of a criminal offence;
3. contains a virus, worm, trojan or other hostile computer program; or
4. infringes any intellectual property rights or data protection rights of any third party.
10. Closing and suspending Trackplot Services
10.1. Closure of Trackplot Services: We reserve the right to close any Trackplot Account for any reason by giving 24 hours notice for example if you fail to pay any subscription due. We may also discontinue any feature of the Service immediately without notice.
10.2. Suspension of Trackplot Services whilst a breach is investigated: If we reasonably believe that your Trackplot Account is being used in any way which is not permitted by these Terms and Conditions, we reserve the right to suspend your access to the Service until the issue has been resolved to our reasonable satisfaction.
10.3. Closure on breach: If you fail to abide by these Terms and Conditions, we reserve the right to immediately cancel your Trackplot Account(s) without notice. We may also permanently ban you from accessing and using the Service. Upon closure of your Trackplot Account(s), you must promptly destroy all materials obtained via the Service, save where retention is required by law.
11. Limitation of liability
IMPORTANT: This section restricts the extent to which we are liable for any losses which may be suffered in connection with your use of the Goods and / or Service. It also requires you to compensate us for any loss we suffer as a result of your failure to comply with these Terms and Conditions.
11.1. Save in respect of personal injury or death due to any negligence, we shall not be liable to you in respect of any loss suffered by you due to any defect in the Goods, Services or Training.
11.2. Without prejudice to Condition 11.1 we shall not be liable to you or any third party for any loss of profit, consequential or other economic loss suffered by you arising in any way from this Agreement.
11.3. We do not restrict our liability (if any) for:
1. personal injury or human deaths resulting from our negligence;
2. any other matter which it would be illegal to limit or to attempt to restrict.
11.4. Exclusion of our liability: You will use the Goods and Service entirely at your own risk. We exclude all other liability and responsibility for any amount or kind of loss or damage arising in connection with the Goods and Service. For the avoidance of doubt:
1. Errors: We exclude all liability for errors or omissions from information, materials or functions in or of the Service.
2. Service standard: The Service is provided “as is”. We make no guarantee that the Service will be suitable for your intended use, neither do we guarantee that it will be error-free, timely, reliable, entirely secure, virus-free or available, especially since we are dependent on the reliability of the Internet and your use of your own computers to access the Service.
3. Disruptions: We will try to keep disruptions to a minimum. We may suspend the Service from time to time to carry out maintenance and support work and to investigate unauthorised use. We exclude all liability for business interruption resulting from the use or inaccessibility of the Service.
4. Your information and third parties: We exclude liability relating to information provided by you or by other users of the Service which you rely on or otherwise make use of. It is your responsibility to ensure that all information entered by you into your Trackplot Account is accurate and where it should be updated that such updating takes place. We exclude liability for misuse by third parties of information provided to other users of the Service. We also exclude liability relating to your collaboration with any third party as a result of using the Service.
5. Indirect damage: In no event will we be liable to you for loss of profit, indirect or consequential damages.
6. Implied terms: We exclude liability for breach of any conditions implied by law (including without limitation any conditions of accuracy, security, completeness, satisfactory quality, fitness for purpose, non-infringement of proprietary rights outside the United Kingdom and the use of reasonable care and skill) which but for these Terms and Conditions might have effect in relation to the Service.
11.5. Time limit on claims: In the event that our liability cannot be excluded, where permitted, we shall not be liable for any claims which you fail to notify us of within 12 months of the incident occuring.
12. Set off and counterclaim
You may not withhold payment of any invoice or other amount due to us by reason of any right of set-off or counterclaim which you may have or allege to have or for any reason whatsoever.
13. Intellectual Property
All copyright, database rights, trade marks and other intellectual property rights in the Service are either owned by or licensed to us and nothing in these Terms and Conditions shall transfer any ownership rights to you.
14. Force majeure
We shall not be liable for any default due to any circumstance beyond our reasonable control including, but not limited to, Acts of God, war, civil unrest, riot, strike, lock-out, acts of civil or military authorities, fire, flood, earthquake or shortage of supply.
15. Severability
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
16. Waiver
If either you or we ignore any breach of these Terms and Conditions, it does not mean that any further breach cannot be enforced. Similarly, if any part of these Terms and Conditions turns out to be invalid or unenforceable for some reason, then it will be replaced with a provision which, as far as possible, achieves the same purpose as the original, and the remainder of the Agreement will still be binding.
17. Relationship of parties
Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
18. Assignment and sub-contracting
18.1. The contract between us and you for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by you, without our prior written consent.
18.2. We may without your consent sub-licence our rights or obligations or any part of these Terms and Conditions.
19. Entire Agreement
19.1. These Terms and Conditions describe the entire Agreement between you and us regarding the Service, and supersede any prior understandings or agreements. Each of the parties agrees that save in respect of statements made fraudulently it shall have no remedy in respect of any untrue statement upon which it relied in entering this Agreement and that its only remedies shall be for breach of contract.
19.2. The headings in these Terms and Conditions are for ease of reference only and shall not affect the interpretation of any of the Conditions.
20. Governing law and jurisdiction
The laws of Scotland shall govern this Agreement and the parties hereby submit to the exclusive jurisdiction of the courts of Scotland. You are responsible for compliance with any applicable laws of the country from which you use or otherwise access the Service.