This Agreement is between 30000feet Pty Ltd, (ABN 18600375022), whose registered address is 200 Crown St Wollongong NSW 2500 (“Licensor”) and the company, partnership, individual, governmental body or other association designated as the “End User” in the Term Sheet (the “End User”). This Agreement is a legally binding agreement between the Licensor and the End User and is effective from the Effective Date for the Term.
In this Agreement, the following words and phrases with their first letter(s) capitalized shall have the meaning ascribed to them as set out below:
“Additions/Options” means the various additional and optional services and features listed in the Additions/Options Schedule, details of which will be provided on request to the End User by the Licensor;
“Additions/Options Schedule” means the table entitled “Additions/Options Schedule”, attached to this Agreement that contains the list of Additions/Options;
“Affiliate” means a related body corporate as defined in section 50 of the Corporations Act 2001 from time to time;
“Agreement” means this agreement, known as the Software Service Agreement for Freight Tracker;
“Agreement Reference Number” means the “Agreement Reference Number” number shown in the Term Sheet;
“Confidential Information” means any data, knowledge or information that is not readily publicly available which is in the control of a party, including any technical, business, financial data, knowledge or information, whether in physical or electronic form, including the Software and the Documentation;
“Data” means all data, information and images added to the Service or the Software during the Term;
“Documentation” means any documentation made available by the Licensor to the End User, whether directly or indirectly, via email or via the Website, from time to time, including, but not limited to information and documentation describing the Service and the Software;
“Effective Date” means the date shown as such in the Term Sheet;
“End User’sNetwork” means the End User’s computer and network;
“Essential Module” means the Freight Tracker Core System + Container Module;
- the Outright Fees;
- Subscription Fees;
- Other Fees; and/or
- Hosting Fees;
“InitialTerm” means the period ending 12 months after the Effective Date or any other period specified in the Term Sheet;
“Hosting Fees” means the monthly fee specified in the Additions/Options Schedule payable for the hosting of the Service by the Licensor;
“Module” means the various modules of the Freight Tracker software system listed in the Module & Charges Schedule;
“Module & Charges Schedule” means the table entitled “Module & Charges Schedule” attached to this Agreement that contains the list of the Modules and their respective charges for their use either on a perpetual (outright) basis or on a monthly (subscription) basis;
“Network Specifications” means the computer and network specifications required to run and operate the Software and use and access the Service;
“Other Fees” means fees payable for any of the Additions/Options selected by the End User from the Additions/Options Schedule;
“Outright Fees” mean the fees payable for each Module for a perpetual licence of the Software and/or continuous access to that Module via the Service, as set out in the Module & Charges Schedule;
“RenewalTerm” means the period specified in the Term Sheet beginning at the end of the Initial Term, or the end of any previous Renewal Term, during which this Agreement shall continue in full force and effect;
“Service” means the Software hosted on the Website;
“Software” means the Essential Module and any other Modules selected by the End User from the Module & Charges Schedule;
“Subscription Fees” means the monthly fees payable for each Module for a monthly licence of the Software or monthly access to that Module via the Service, as set out in the Module & Charges Schedule;
“Term” means the Initial Term or any Renewal Term(s);
“Term Sheet” means table entitled “Term Sheet” attached to this Agreement, that contains various matters referred to in this Agreement;
“Website” means the website located at www.[●], or any other domain name/URL at which the Licensor chooses to use from time to time.
- ACCESS AND USE
2.1 The End User shall select from the Module & Charges Schedule, whether it requires the Software installed on the End User’s Network (the Software) or the Software hosted by the Licensor (the Service).
2.2 The Licensor hereby grants to the End User a non-exclusive, non-transferrable right to use and access the Software, whether by way of the Service or installation on the End User’s Network:
- on a perpetual basis in consideration of the payment Outright Fee(s) for the Software;
- for the Term in consideration of the payment of the Subscription Fee(s) for the Software,
on the terms and conditions set out in this Agreement.
2.3 In consideration of the payment of the Hosting Fees the End User shall be permitted to use and access the Software via the Service.
2.4 The Licensor is not responsible for the failure of the Software to operate as a result of:
- any failures of the End User’s Network or any modifications or alterations to the End User’s Network;
- any failure of the End User’s Network to conform with the Network Specifications; and
- the use of the Service or the Software, other than as described in the Documentation or in accordance with the terms and conditions of this Agreement,
and such failures will not affect the Licensor’s rights to receive any amounts due to it in accordance with this Agreement and the End User’s obligation to pay such amounts in accordance with this Agreement.
2.5 The End User shall keep any user names and passwords confidential and will not disclose them to persons that are not current employees and/or officers of the End User of its Affiliates.
2.6 Except as permitted under this Agreement, the End User shall not:
- attempt to copy, modify, duplicate, create a derivative work from, republish, adapt all or any part of the Software, the Service, the Website and the Documentation;
- reverse engineer, reverse compile or disassemble any or part of the Software, the Service or the Website;
- access all or part of the Software or the Service in any way in order to build a product or service which competes with the Software and the Service;
- licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the Software and/or the Service available to any third parties; and/or
- attempt to obtain, or assist a third party to obtain access to the Service or the Software via the Service.
2.7 The rights granted under this clause 2 are granted to the End User, and may also be used by Affiliates of the End User only for so long as they remain an Affiliate of the End User.
3.1 In consideration of the payment by the End User of any of the Other Fees set out in the Additions/Options Schedule, the Licensor shall provide the corresponding Additions/Options selected.
3.2 In part consideration of the payment by the End User of the Subscription Fees the Licensor shall also provide the Annual Maintenance and Annual Support.
3.3 The Licensor shall use reasonable efforts to make the Service available 24 hours a day, seven days a week except:
- planned maintenance carried out during the maintenance window of 2:00am to 3:00am daily; and
- scheduled maintenance performed by the Licensor’s service providers being between 12:00am and 4am on provided that End User shall be given at least 3 days’ notice; and
- unscheduled maintenance performed outside of normal business hours (being 8:30 am to 5:30pm), provided the Licensor has used reasonable efforts to give the End User at least 2 hours notice in advance.
- END USER OBLIGATIONS
The End User shall:
4.1 obtain all necessary access, data and information required to allow the Licensor to perform its obligations under this Agreement, including such access, data and information relating to the End User’s Network;
4.2 ensure that, at all times, the End User’s Network complies with the Network Specifications;
4.3 permit the Licensor remote access to the End User’s Network to allow the Licensor to perform its obligations under this Agreement.
- END USER DATA
5.1 The End User shall own all right, title and interest in and the Data.
5.2 The End User shall have the sole responsibility for the collection, entry, legality, reliability, integrity, accuracy and quality of the Data that it enters into the Software.
5.3 The Licensor shall use its reasonable efforts to store and back-up the Data and comply with its obligations under the Privacy Act 1988 (Cth), as amended.
5.4 The Licensor shall restore the Data to the latest back-up maintained by the Licensor in its archive in the event of loss or damage to the Data from or on the Service caused by the Licensor, and this shall be the End User’s sole and exclusive remedy in relation to such loss or damage to the Data.
5.5 The Licensor shall not be responsible for any loss, destruction, alteration or disclosure of Data from the Service caused by the End User or its Affiliates or by any third party as a result of the use of the Service other than in accordance with this Agreement.
6.1 The End User shall pay any and all Fees under this Agreement to the Licensor in accordance with this clause 6.
6.2 The Licensor shall invoice the End User for any Subscription Fees relating to the Software and any Hosting / Maintenance Fees at the start of the month prior to the service being provided.
6.3 The Licensor shall be entitled to invoice the End User at any time on or after the Effective Date for any Outright Fees in relation to the Essential Module and any other Modules selected by the End User as at the Effective Date and may invoice the End User for any Outright Fees in relation to any additional Module(s) selected by the End User after the Effective Date on or after the date on which the selected Module(s) are made available by the Licensor to the End User.
6.4 The Licensor shall be entitled to invoice the End User at any time on or after the Effective Date, and any anniversary thereof during the Term, for any Other Fees in relation to Additions/Options selected by the End User as at the Effective Date, and may invoice the End User for any Other Fees in relation to any additional Additions/Options selected by the End User after the Effective Date on or after the date on which the selected Additions/Options are made available by the Licensor to the End User, and any anniversary thereof during the Term.
6.5 The End User shall pay any undisputed invoices rendered under this clause 6 within 30 days of the date of the invoice.
6.6 Where the End User fails to pay any fees referred to in this Agreement before or on the date on which they fall due, the Licensor may after a further 30 days of non-payment, at its sole discretion, suspend the provision of the Service until such time as the Fee(s) is/are paid in full.
6.7 All Fees payable under this Agreement shall be paid in Australia Dollars (AUD$).
6.8 All Fees shown in this Agreement are exclusive of GST, or any other taxes, which shall be added to the Licensor’s invoices at the appropriate rate at the date of the invoice.
6.9 All fees payable under this Agreement are non-cancellable and non-refundable.
- PROPRIETARY RIGHTS AND CONFIDENTIALITY
7.1 The End User acknowledges that the Licensor and its licensors are the owners of the intellectual property rights in the Software, the Service, the Website and the Documentation, and this Agreement grants no right, title or interest in any such rights in the End User, other than as expressly set out in this Agreement.
7.2 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall be deemed not to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party's lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- is independently developed by the receiving party, provided that such independent development can be shown by written evidence;
- is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
7.3 Each party shall hold the other’s Confidential Information in confidence and not make the other Party’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation and performance of its obligations, and enjoyment of its rights, under this Agreement.
7.4 Each party shall make all reasonable efforts and take all reasonable steps to ensure that the other Party’s Confidential Information to which it has access is not disclosed or distributed by its employees, officers or agents in violation of the terms of this Agreement.
8.1 Unless otherwise indicated, this clause 8 sets out the entirety of the Licensor’s liability to the End User and in relation to the End User’s use, or inability to use, the Software, the Service, the Website and the Documentation.
8.2 To the full extent possible by law, and except where expressly indicated in this Agreement, the Licensor expressly and impliedly excludes any and all liability under this Agreement and makes no warranties, guarantees, representations or indemnities in relation to the Software, the Service, the Website and/or the Documentation. Furthermore, the Licensor expressly and impliedly excludes any indirect loss; consequential loss; loss of goodwill; loss of opportunity; loss of business; or loss of profit, whether arising in contract or tort (including negligence, misrepresentation or breach of statutory duty) as a result of breach of this Agreement by the Licensor.
8.3 The Licensor shall have no liability for any costs, expenses, losses or damages incurred by the End User as a result of the suspension or termination of the End User’s access and use of the Software or the Service caused through the Licensor’s exercise of its rights and obligations under this Agreement, including, but not limited to, the right to suspend access to the Software or the Service for non-payment of any Fees in accordance with clause 6 or to conduct maintenance in accordance with the terms of this Agreement.
8.4 The Licensor’s total aggregate liability to the End User under this Agreement and in relation to the End User’s use, or inability to use, the Software, the Service, the Website and/or the Documentation, shall not exceed the total of the amounts paid by the End User to the Licensor in the 12 month period ending on the date on which notice of the liability is received by the Licensor.
- TERMS AND TERMINATION
9.1 This Agreement shall be effective from the Effective Date and shall, continue unless terminated in accordance with clause 9.2, 9.3 and/or 9.4.
9.2 The Licensor may terminate this Agreement:
- immediately upon a material breach by the End User of this Agreement. In this regard, and without prejudice to the foregoing, any breach of clauses 2.5, 2.6, 7 and three or more failures to pay any Fees on time in accordance with clause 6 in any given 12 month period beginning on the due date of the first late payment, shall be deemed to be a material breach for the purposes of this clause giving the Licensor an immediate right to terminate; and/or
- the End User becoming insolvent or being unable to pay its debts as and when they fall due.
9.3 The End User must notify the Licensor of its intention NOT to renew the Agreement for a Renewal Term at least 30 days from the end of the Initial Term or Renewal Term, such notification to be given in writing and signed by a current director of the End User.
9.4 The End User may terminate this Agreement immediately upon material breach by the Licensor.
9.5 Upon termination of this Agreement the End User shall immediately cease any and all use of the Service or the Software, except where it has paid an Outright Fee.
9.6 The Licensor shall, within a reasonable time after termination, and not more than 14 days, return the Data to the End User.
- GOVERNING LAW
This Agreement shall be governed by and construed under the laws and regulations of New South Wales.
11.1 Other than as set out in clause 11.2, the End User may not assign, transfer, pledge or otherwise encumber this Agreement without the prior written consent of the Licensor, which shall be given at the Licensor’s absolute discretion, and any such attempt by the End User to assign this Agreement shall be null and void and confer on the assignee no rights to use the Software, or possess the Documentation.
11.2 The Licensor may assign this Agreement to an Affiliate, or to any third party that acquires the business of the Licensor or the Freight Tracker software.
No Partnership or Agency
11.3 Each party shall be, and shall endeavour to act as, the independent contractor of the other party. Nothing in this Agreement shall create, or be deemed to imply the creation of, any partnership, joint venture, principal and agent, master and servant or other relationship. Neither party shall be the legal agent of the other for any purpose whatsoever and has no right or authority to make or underwrite any promise, warranty, representation or indemnity to execute any contract or otherwise to assume any obligation or responsibility in the name of or on behalf of the other party.
No Waiver and Amendment
11.4 A party’s failure in any one or more instances to insist upon strict performance of any of the provisions of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment of that right or of that party’s right to assert or rely upon the provisions of this Agreement. Any express waiver of a provision of this Agreement shall not be binding and effective unless made in writing and properly executed by the waiving party. Any waiver under this Agreement shall apply only to the party to whom it is addressed and will not survive the transfer of this Agreement.
11.5 This Agreement and any documents expressly incorporated by reference into this Agreement, represent the entire agreement between the parties in relation to the Software, the Service, the Website and Documentation.
11.6 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
11.7 If any provision of this Agreement is found by a competent court, or competent administrative body, to be fully or partially invalid or unenforceable for any reason whatsoever, or found to violate any applicable law, such provisions shall be deemed to be deleted from this Agreement, and the remainder of this Agreement, to the extent permissible shall be valid and binding as if such provisions were not previously included in this Agreement with whatever modifications necessary to give effect to the commercial intention of the parties.
11.8 the Licensor shall have no liability to the End User under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. The Licensor shall use its reasonable efforts to notify the End User of such an event and its expected duration.
11.9 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement,
11.10 or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in the Term Sheet.
11.11 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
11.12 Notwithstanding termination of this Agreement, the following clauses shall survive termination of this Agreement: clause 1 (to the extent necessary to interpret any of the following clauses), clauses 2.5, 2.6, 7, 8, 9, 10, 11.9, 11.10 and 11.11.
Agreement Reference Number
11.13 The parties will ensure that the Agreement Reference Number is clearly stated in all correspondence between the parties in relation to this Agreement and in relation to all payments or invoices made or issued under this Agreement.