Coretex - Standard Terms & Conditions
These Terms set out the terms on which Coretex USA, Inc (Coretex) provides, and you agree to acquire, Coretex products (Coretex Products). The Coretex Products consist of hardware (Coretex Hardware) and software supplied under license by Coretex and third parties (Coretex Software or Third-party Software, as the case may be, and collectively the Software).
By submitting an application form for the supply of Coretex Products, you agree to be bound by these Terms. Where you submit an application form to Coretex on behalf of another person (e.g. a company); (a) you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms; and (b) you and Customer means both you and the other person on whose behalf you are acting.
Coretex is not bound to supply any Coretex Products to you until Coretex has accepted your application. Coretex’s acceptance occurs when it notifies you by email that it accepts your application form, or commences supply of Coretex Products to you (whichever is the earlier).
If Coretex accepts your application, the agreement between you and Coretex (Agreement) will comprise (a) these Terms; (b) if Coretex is supplying Coretex Software, the license terms set out at www.coretex.com\legal (Coretex License); and (c) your application form. If there is any inconsistency between the documents that form part of the Agreement, the following order of precedence applies: these Terms first, the Coretex License second, and your application form last.
1. CORETEX SERVICES
1.1 The Coretex Services consist of data transmission services (CoretexData Services), certain support services (Coretex Support Services) and a limited warranty for the Coretex Hardware (Limited Warranty) all as set forth below. To be eligible to receive Coretex Services (a) you must sign and return an application form, pay all applicable fees provided under the Agreement and otherwise comply with the Agreement. The Coretex Products in question are listed in Coretex Product and Services Register attached to your application form or otherwise agreed in writing between you and Coretex.
1.2 Any part, component or Coretex product which is replaced by Coretex under this Agreement will become the property of Coretex. All copies of Coretex Software which are replaced, whether or not as an upgrade or bug fix, will, at Coretex's option, be either (i) erased from any media on which it is recorded or otherwise irretrievably destroyed by you or (ii) returned to Coretex. All replacement Coretex Software, whether or not as an upgrade or bug fix, is provided to you under license only and is subject to the terms and conditions of the Coretex License. The Agreement is not an agreement for, and Coretex Support Services and the Limited Warranty do not include or require, the provision of updated or new versions of the Coretex Hardware. Coretex reserves the right at any time to discontinue or change any Coretex Product, or to change the specifications or design of any Coretex Product without notice and without incurring any obligation.
2. CORETEX DATA SERVICES
2.1 Coretex agrees to use reasonable commercial efforts during the Term (as defined below) to provide you with, or have provided for you, the Coretex Data Services described in the remainder of this section 2.1. The Coretex Data Services consist of the reception of the data transmitted by the Coretex Product(s) (Your Data) to which this Agreement applies, the processing of Your Data and the delivery of that processed version of Your Data to you through the Internet, either as a direct feed to your server or through Coretex’s Server or Web site (collectively, Coretex Site). The availability and reliability of the Coretex Data Services and Coretex Site depend on various factors, including without limitation, your location, network availability and continued compatibility, weather and power outages, and are not guaranteed. All use of the Coretex Site is also subject to any terms and conditions which may be from time to time and at any time be posted on that site.
2. 2 You acknowledge that Software is required to be able to access and use the Coretex Data Services. Notwithstanding anything to the contrary in this Agreement, any part of a Coretex Product which is software is supplied only under license by Coretex (on the terms set out in the Coretex License) or the Third-party Software provider (on the terms accompanying the Third-party Software in question), and are not sold and you obtain no right in or to Software other the limited rights granted in such licenses. You agree to all provisions of such licenses (including but not limited to paying any and all license fees for the Coretex Software) and agrees that your right to use Software is conditioned on your compliance with all of its obligations under the license and the Agreement relating to that Software.
2.3 You are responsible for all activities that occur under your password or account, and must keep your password(s) confidential. You agree that you will immediately notify Coretex of any unauthorized use of your password or account or any other breach of security. Without limiting the foregoing, you must not, nor permit others to: (a) use the Coretex Data Services or Coretex Site in a manner or for a purpose contrary to this Agreement or in violation of any applicable law; (b) disrupt the functioning of the Coretex Site or Coretex Data Services, (c) solicit another user’s password, or otherwise act in a way that interferes with other users’ use of the site, (d) use the Coretex Site or the Coretex Data Services in any way to distribute any computer program or other code of any kind that damages, detrimentally interferes with, surreptitiously intercepts, or expropriates any system, data, or personal information, (e) use the Coretex Site or the Coretex Data Services in any manner which could damage, disable, overburden, or impair the Coretex Site and/or the Coretex Data Services or interfere with any other party's use and enjoyment of the Coretex Site or the Coretex Data Services, (f) attempt to gain unauthorized access to the Coretex Data Services or the Coretex Site, other accounts, computer systems or networks connected to or accessed through the Coretex Data Services or the Coretex Site, through hacking, password mining or any other means and/or (g) obtain or attempt to obtain any materials or information through any means not intentionally made available to you through the Coretex Data Services.
2.4 Your Data belongs exclusively to you. You acknowledge and agree that Coretex may retain a copy or copies of Your Data and may use, reproduce and/or modify Your Data and to permit others to do any, some or all of the foregoing, all as may be necessary or desirable for Coretex to fulfill its obligations or exercise its rights under this Agreement. Without limiting the foregoing, Coretex may access, use or disclose Your Data and/or other information about you and/or your account in order to: (a) comply with the law or legal process served on Coretex; (b) enforce and investigate potential violations of this Agreement (including without limitation use of the Coretex Service to participate in, or facilitate, activities that violate the law); (c) protect the rights, property, or safety of Coretex, its employees, its customers or the public; or (d) conduct research or development on the Coretex Products or the Coretex Services and/or (e) provided that any data is disclosed only in aggregate form without identifying you, conduct statistical analysis and identify trends and insights at an industry level and/or market the Coretex Products or the Coretex Services.
3. CORETEX TECHNICAL SUPPORT SERVICES
3.1 Coretex Support Services consist of:
3.1.1 Coretex will make available to you such upgrades and bug fixes to Coretex Software as Coretex makes generally commercially available. Delivery and installation of Coretex Software upgrades and bug fixes will be determined by Coretex. Unless other arrangements have been made in writing Coretex will not be responsible for the installation of any upgrade or bug fix.
3.1. 2 Coretex will provide to you reasonable telephonic and email (through the Coretex help line 888-887-0935 and ELD@coretex.com advice on the use of the Coretex Products and the Coretex Data Services.
3.2 Coretex Support Services are only available (i) during the period for which you have subscribed for the Coretex Data Services as set forth in your application form or otherwise agreed in writing between you and Coretex, (ii) for Coretex Hardware which is under the warranty as set forth in section 4.1 and (iii) for the current version of the Coretex Software or for the immediate previous version of the Coretex Software. You must reimburse Coretex for the costs Coretex incurs to provide any Coretex Support Services requested by you if Coretex determines that Support Services are not available for the problem in question.
3.3 You are responsible for the proper installation of all Hardware according to Coretex’s instructions and specifications. You are responsible for installing the Hardware in compliance with applicable laws and ordinances. Coretex is not responsible for damage caused to any Vehicle and will not be required to restore any Vehicle to its pre-installation condition if the Hardware is removed.
4. LIMITED WARRANTY
4.1 Coretex warrants that the Coretex Hardware, if properly used, will be free from defects in material or workmanship (other than those which do not materially affect the operation of the Coretex Products) for a period of one (1) year from the date of installation. Coretex's sole and exclusive liability under this warranty will be, at Coretex's option, to supply parts to repair or replace the Coretex Hardware in question. If, after a reasonable opportunity and time for the supply of parts for the repair or replacement of any Coretex Hardware which is under warranty, Coretex is unable to do so, Coretex agrees that it will refund to you the purchase price paid for the Coretex Hardware in question less the straight-line depreciation of the hardware from the time of failure over the consumed term of the contract.
You are responsible for, and upon invoice must pay for, any costs or expenses of the labor (at then standard repair labor rate of the Warranty Service Provider in question) necessary to diagnose and make any repairs or replacements during the warranty period. Coretex’s liability and your rights under either this warranty are subject to (a) you promptly notifying Coretex’s Service Help Desk with a description of the deficiency, (b) the vehicle containing the Coretex Product in question being made available for inspection and, if applicable, work by Coretex at one of the approved locations for warranty work and (c) Coretex’s determination that the component in question is defective and under warranty.
This warranty does not cover any Coretex Product which has been subjected to unusual physical or electrical stress, or on which the original identification marks have been removed or altered, or which is damaged due to accident, misuse, neglect, alteration, repair, improper installation or testing or unauthorized modification. You must reimburse Coretex for the costs Coretex incurs to inspect any Coretex Product for which a warranty claim is made (including but not limited to travel expenses or labor charges for the time spent) if Coretex determines that the Coretex Product in question is not covered by this warranty.
TO THE EXTENT ALLOWED BY APPLICABLE LAW, IMPLIED WARRANTIES, IF ANY, ARE LIMITED TO ONE (1) YEAR. SOME STATES/JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
4.2 Third-Party Products. Coretex only warrants its own Hardware. Any third-party products are not considered a part of the "Hardware" for the purposes of this agreement. Coretex does not warrant any third-party products, even if included with other products. Any third-party products ordered from Coretex are without warranty of any kind, and Coretex is not liable or responsible for any service interruptions or failures caused by use of any third-party products. The third-party product manufacturers may provide their own warranties and in that event you shall rely upon such other manufacturers' or suppliers' applicable warranties.
4.3 YOUR RIGHTS AND REMEDIES WITH RESPECT TO THIRD-PARTY SOFTWARE ARE CONTAINED SOLELY IN THE LICENSE(S) FOR THAT SOFTWARE. THE CORETEX SOFTWARE, CORETEX SERVICES AND THE CORETEX SITE ARE PROVIDED “AS-IS.” THE RIGHTS CONTAINED IN SECTION 4.1 EXTEND ONLY TO THE ORIGINAL BUYER OF THE CORETEX PRODUCT IN QUESTION. THESE RIGHTS ARE YOUR SOLE AND EXCLUSIVE REMEDY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, AND THEY ARE IN LIEU OF, AND CORETEX EXPRESSLY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ANY REPRESENTATIONS AND/OR OBLIGATIONS (A) OF ACCURACY, TIMELINESS, RELIABILITY, COMPLETENESS, INTEGRATION, ADEQUACY, TITLE, COMPATIBILITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (B) THAT ANY CORETEX PRODUCT, THE CORETEX SERVICE OR THE CORETEX SITE WILL OPERATE ERROR-FREE, CONTINUOUSLY OR WITHOUT INTERRUPTION OR IS OR WILL BE SECURE AND FREE OF COMPUTER VIRUSES OR OTHER HARMFUL CONTENT, (C) THAT ANY CORETEX PRODUCT, THE CORETEX SERVICE, THE CORETEX SITE AND/OR YOUR DATA WILL BE FREE FROM MANIPULATION AND/OR FRAUD AND (D) THAT MAY ARISE BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
5. YOUR RESPONSIBILITIES; ETC.
5.1 You are solely responsible and liable for all activities undertaken by you using the Coretex Data Services, Coretex Site and any Coretex Product. All such activities are at your own risk. Without limiting the generality of the foregoing, you agree that: (a) you are and will be solely (as between the parties) responsible and liable for the selection, implementation, operation and performance of any and all (i) vehicles on or in which the Coretex Products have been installed, (ii) information processing equipment and software, (iii) telecommunication equipment and services or (iv) other products or services of any kind you use with the Coretex Products, Coretex Data Services and/or the Coretex Site and (b) you will comply with all applicable law, rules and regulations in your use of the Coretex Products, Coretex Data Services or the Coretex Site.
5.2 You represent and agree that you do not intend to and will not use, disseminate or transfer in any way the Coretex Products in violation of any applicable law, rule or regulation of the United States, or any State of the United States or any foreign country of applicable jurisdiction. Without limiting the foregoing, you agree that you will not export or re-export any part of a Coretex Product to any country, person, entity or end user subject to U.S. export restrictions. You specifically agree not to export or re-export any part of a Coretex Product: (i) to any country to which the U.S. has embargoed or restricted the export of goods or services or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any end user who you know or have reason to know will utilize the Coretex Products or portion thereof in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government.
5.3 You hereby agree to indemnify and hold harmless Coretex, its officers, directors, owners, employees and agents from and against any and all loss, cost, expense, damage or liability (including but not limited to reasonable attorneys’ fees and cost of investigation) due to, relating to, arising out of or in connection with a breach of Sections 5.1 and 5.2 of this Agreement.
5.4 You: (i) must promptly make decisions (including approvals) and provide Coretex with all information and resources reasonably required to provide the Coretex Services; (ii) must put in place binding agreements with your independent contractor drivers (if any) that use the Coretex Data Services or Coretex Site that mirror the relevant obligations of this Agreement and allow Coretex to provide the Coretex Services as intended under this Agreement; (iii) must provide trainer resources to support end user use of the Coretex Products, Coretex Data Services and the Coretex Site; (iv) and your end users (including your independent contractors (if any)) must use the Coretex Products, Coretex Data Services and the Coretex Site in accordance with this Agreement solely for your own lawful internal business purposes; and (v) must not resell or make available the Coretex Products, Coretex Data Services and the Coretex Site to any third party other than your employees and independent contractor drivers, or otherwise commercially exploit the Coretex Products, Coretex Data Services and the Coretex Site. A breach of any term of this Agreement by your employees and independent contractor drivers is deemed to be a breach of this Agreement by you.
6.1 Invoices will be issued to you monthly in advance. The first invoice will be issued on the commencement of this Agreement and will contain the upfront hardware price.
The second invoice which will contain the fee for the first month’s use of the Coretex Service and will be issued at the earlier of:
- (a) 30 days from the date that the first unit of Hardware is dispatched to you in order to provide you with time to have the Hardware installed.
- (b) The date that the first Hardware unit is installed in a Vehicle.
Following the issue of the first invoice, Coretex will continue to issue invoices to you on a monthly basis. All invoices are payable within 14 days of the invoice being issued.
6.2. The terms of your payment will be based on your chosen payment method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen payment method. If you have chosen a credit card payment plan you accept responsibility for all recurring charges prior to cancellation. CORETEX MAY SUBMIT MONTHLY CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY CORETEX) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE CORETEX COULD REASONABLY ACT TO TERMINATE THE AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD.
6.3 If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and Coretex shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your payment method. You agree that Coretex may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
6.4 Any invoice disputes must be notified to Coretex within sixty (60) days after the invoice date.
6.5 All prices are exclusive of all taxes and duties. you will be responsible for, and will pay, all taxes and duties applicable to the Hardware and the Services (including any taxes and duties that you, or Coretex on your behalf, is liable to pay but which Coretex has omitted to collect or pay for during the term of the Agreement). Where Coretex is required by law to collect taxes or duties from you, Coretex will collect these from you in addition to the Prices and Fees listed and you will pay the taxes unless you are exempt from doing so and have provided Coretex with a valid exemption certificate.
6.6 If you do not pay any invoice in full Coretex may terminate the Agreement or suspend the Services. Coretex may also charge interest on any balance owing at 1.5% per month or the maximum rate permitted by law if less, from the due date until the date of payment.
7. NOTE ON CERTAIN SPECIFIC USES
THE CORETEX PRODUCTS, CORETEX SERVICES AND THE CORETEX SITE MAY NOT BE FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS OR IN ON‑LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS AND/OR REQUIRING FAIL‑SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE THEREOF COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
8. LIMITATION OF LIABILITY
8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CORETEX OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER OR ANY DAMAGES FOR LOSS OF PROFITS, REVENUE, SAVINGS, BUSINESS, USE, DATA, AND/OR GOODWILL, BUSINESS INTERRUPTION, OR ANY OTHER PECUNIARY LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE ANY CORETEX PRODUCT, THE CORETEX SERVICES OR THE CORETEX SITE, EVEN IF CORETEX HAS BEEN ADVISED OF, OR SHOULD HAVE KNOW OF, THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE AND REGARDLESS OF WHETHER ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE, CORETEX’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO, AS THE CASE MAY BE: (A) THE AMOUNT PAID FOR THE CORETEX PRODUCT IN QUESTION OR (B) THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE CORETEX SERVICES FOR THE MONTH IN QUESTION OR U.S.$5.00. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY IF REQUIRED BY LAW.
8.2 Neither party will be responsible, liable, or held to be in breach of this Agreement for any failure to perform its obligations under this Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under this Agreement, or by the negligence or misconduct of the other party or its personnel.
8.3 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with this Agreement.
9. TERM AND TERMINATION
9.1. The term of this Agreement will be a minimum initial term of 36 months, unless otherwise specified; the term will begin on the 1st day of the month following receipt of the first payment. After the initial term, this Agreement will continue on a month by month basis until terminated by either party in accordance with this Agreement.
9.2 This Agreement will immediately terminate if you liquidate, dissolve, or are adjudicated insolvent, or file a petition in bankruptcy or for reorganization, or take advantage of any insolvency act or proceeding, including an assignment for the benefit of creditors, or commit any other act of bankruptcy. Coretex may terminate this Agreement on sixty (60) days’ advance written notice to you and without any liability of Coretex to you if Coretex terminates the provision of the Coretex Data Services to all customers using the same version of any Coretex Product sold to you in connection with this Agreement. Either party may terminate this Agreement by written notice to the other party, if the other party defaults in the payment or performance of any of its obligations under this Agreement in a material respect and fails to remedy the default within thirty (30) days after notice thereof.
9.3 No termination or expiration of this will (a) effect or give rise to a right by you to rescind any payment previously made or (b) effect or terminate the right of Coretex to collect any price or other charge then due or (c) affect either party’s other rights and obligations accrued before that termination or expiry. Provisions which, by their nature, are intended to survive termination or expiry of this Agreement, including Sections 1.3, 2.2, 2.3, 2.4 and 4.2 and Articles 5, 6, 7, 8 and 9 will survive any termination or expiration of this Agreement.
9.4 If this Agreement is cancelled or terminated for whatever reason before the end of the initial term, Coretex reserves the right to charge you the full Monthly Charges for all Equipment and Services agreed to at the signing of this Agreement, for the outstanding contract period.
10. FEE ADJUSTMENTS
If the cost to Coretex of providing the Coretex Services increases by 5% or more as a result of (a) changes in the USD/New Zealand dollar exchange rate; (b) increases in component costs for the Coretex Hardware; or (c) increases in the costs of third party solutions, systems, networks and telecommunications services used to provide the Coretex Services, Coretex may, by giving at least 30 Business Days’ notice, increase the charges for the Coretex Service to reflect the increase in such costs. Coretex must provide details of the reasons for the increase and provide evidence to justify the increase. If you do not consider that the increase is justified, and the parties are not able to agree to alternative mutually acceptable pricing, you may refer the matter to dispute resolution under Section 9.4.
In addition, by giving at least 30 days’ notice, Coretex may increase the charges under this Agreement (whether for the Coretex Products or the Coretex Services) once per 12 month period (but not the first 12 months after the Effective Date) by an amount that does not exceed the percentage increase in CPI for the period from (a) in the case of the first such increase under this Agreement, the Effective Date; or (b) in the case of any subsequent such increase, the date of the last such increase. In this clause, CPI means the Consumer Price Index for All Urban Consumers (CPI-U published by the U.S. Bureau of Labor Statistics (or similar or equivalent index if that index ceases to be published). For those customers signing up to minimum term agreements the pricing in the original agreement will remain valid for the term of the agreement.
11.1 Neither this Agreement, nor any interest under this Agreement, may be assigned, novated, subcontracted or transferred by you without the prior written consent of Coretex. Any change of control of you is deemed to be an assignment for which Coretex’s prior written consent is required under this Section 9.1. In this Section 9.1, change of control means any transfer of shares or other arrangement affecting you or any member of your group which results in a change in the effective control of you. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the parties' successors.
11.2 The headings and captions used in this Agreement are for convenience only and are not to be used in the interpretation of this Agreement. This Agreement has been entered into, delivered and is to be governed by, construed, interpreted and enforced in accordance with the laws of the State of New York (without giving reference to choice‑of‑law provisions) from time to time in effect. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any of the transactions contemplated by this agreement. This Agreement contains the entire and exclusive agreement of the parties with respect to its subject matter. This Agreement supersedes any agreements and understandings, whether written or oral, entered into by the parties prior to its effective date and relating to its subject matter. No modification or amendment of this Agreement will be effective unless it is stated in writing, specifically refers to this Agreement and is executed on behalf of each party. The failure of either party to require performance of any provision of this Agreement does not affect the right to subsequently require the performance of such or any other provision of this Agreement. The waiver of either party of a breach of any provision will not be taken or held to be a waiver of any subsequent breach of that provision or any subsequent breach of any other provision of this Agreement. If any provision of this Agreement is, or is determined to be, invalid, illegal or unenforceable, all remaining provisions of this Agreement will remain in full force and effect, and no provision of this Agreement will be deemed to be dependent upon any provision so determined to be invalid, illegal or unenforceable unless otherwise expressly provided for in this Agreement. If any provision of this Agreement be found or held to be invalid, illegal or unenforceable, in whole or in part, such provision will be deemed amended to render it enforceable in accordance with the spirit and intent of this Agreement.
11.3 The parties are independent contractors and engage in the operation of their own respective businesses. Neither party is the agent or employee of the other party for any purpose whatsoever. Nothing in this Agreement will be construed to establish a relationship of co‑partners or joint ventures between the two parties. Neither party has the authority to enter into any contracts or assume any obligations for the other party or to make any warranties or representations on behalf of the other party.
11.4 If a dispute arises out of or relates to this Agreement, a breach thereof or your use of any Coretex Product, the Coretex Services or the Coretex Site, before taking any form of proceedings, the parties must use best efforts to resolve the dispute through good faith negotiations. Where the parties fail to resolve a dispute within 14 days of one party giving the other party notice of the dispute, the dispute must be referred to and finally resolved by arbitration before one neutral arbitrator (selected from a panel of persons having experience with and knowledge of computers and the computer business and who are attorneys) in New York City and administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Any provisional or equitable remedy which would be available from a court of law will be available from the arbitrator. The parties consent to the non-exclusive jurisdiction of the courts of the State of New York or to any Federal Court located within the State of New York for any action (a) to compel arbitration, (b) to enforce the award of the arbitrator or (c) at any time prior to the qualification and appointment of the arbitrator, for temporary, interim or provisional equitable remedies and to service of process in any such action by registered mail, return receipt requested, or by any other means provided by law.
11.5 Except as otherwise specified, all notices, payments and reports hereunder will be deemed given and in effect as of the second day following the date of mailing when sent by next day delivery or courier service or one hour after transmission when sent by email (unless a return email is received by the sender within that one hour period stating that the addressee’s email address is wrong or that the message cannot be delivered), addressed to the parties as set forth in the preamble to this Agreement, or to such other addresses as the parties may from time to time give written notice of as herein provided, provided that any notice received after 5 pm on a working day or on any day that is not a working day (in the location of the recipient) will be deemed to have been received on the next working day in that location.
11.6 Coretex will not be liable for any failure to perform due in whole or in part to circumstances or causes beyond Coretex’s control including the third-party services of the telecommunication companies who may choose to shut down cellular service.
11.7 Coretex may change these Terms at any time by notifying you of the change by email. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Coretex Products from the date on which the Terms are changed, you agree to be bound by the changed Terms. These Terms were last updated on 10 November 2017.