Transport Toolkit
Service Agreement
Parties
2. (the "Customer").
Background
1. The
Provider is the owner of the Transport Toolkit (“the Service”);
2. The
Customer to use the Service;
3. The
Provider and the Customer enter into this contract to provide for the use of
the Transport Toolkit system.
Agreement
1. Definitions
1.1 Except
to the extent expressly provided otherwise, in this Agreement:
"Account" means an
account enabling a person to access and use the Hosted Services , including
both administrator accounts and user accounts];
"Affiliate" means an
entity that Controls, is Controlled by, or is under common Control with the
relevant entity;
"Agreement" means
this agreement including any Schedules, and any amendments to this Agreement
from time to time;
"Business Day" means
any weekday other than a bank or public holiday in Australia;
"Business Hours"
means the hours of 09:00 to 17:00 AEST on a Business Day;
"Charges" means the
following amounts:
(a) Free
(refer to www.transporttoolkit.com
for currency charge rates)
(b) Silver
(refer to www.transporttoolkit.com
for currency charge rates)
(c) Gold
(refer to www.transporttoolkit.com
for currency charge rates)
(d) Platinum
(refer to www.transporttoolkit.com
for currency charge rates)
"Control" means the
legal power to control (directly or indirectly) the management of an entity
(and "Controlled" should be construed accordingly);
"Customer Confidential
Information" means:
(a) any
information disclosed by the Customer to the Provider during the Term:
(i) was
marked or described as "confidential"; or
(ii) should
have been reasonably understood by the Provider to be confidential; and
(b) the
Customer Data;
"Customer Data"
means all data, works and materials: uploaded to or stored on the Platform by
the Customer; transmitted by the Platform at the instigation of the Customer;
supplied by the Customer to the Provider for uploading to, transmission by or
storage on the Platform; or generated by the Platform as a result of the use of
the Hosted Services by the Customer;
"Customer Indemnity Event"
has the meaning given to it in Clause 17.3;
"Customer Personal Data"
means Personal Data that is processed by the Provider on behalf of the Customer
in relation to this Agreement;
"Documentation"
means the documentation produced by the Provider and delivered or made
available by the Provider to the Customer;
"Effective Date"
means
"Force Majeure Event"
means an event, or a series of related events, that is outside the reasonable
control of the party affected (including failures of the internet or any public
telecommunications network, hacker attacks, denial of service attacks, virus or
other malicious software attacks or infections, power failures, industrial
disputes affecting any third party, changes to the law, disasters, explosions,
fires, floods, riots, terrorist attacks and wars]);
"Hosted Services"
means Transport Toolkit which will be made available by the Provider to the
Customer as a service via the internet in accordance with this Agreement;
"Hosted Services Defect"
means a defect, error or bug in the Platform having a material adverse effect
on the appearance, operation, functionality or performance of the Hosted
Services but excluding any defect, error or bug caused by or arising as a
result of:
(a) any
act or omission of the Customer or any person authorised by the Customer to use
the Platform or Hosted Services;
(b) any
use of the Platform or Hosted Services contrary to the Documentation, whether
by the Customer or by any person authorised by the Customer;
(c) a
failure of the Customer to perform or observe any of its obligations in this
Agreement; and/or
(d) an
incompatibility between the Platform or Hosted Services and any other system,
network, application, program, hardware or software not specified as compatible
in the Hosted Services Specification;
"Hosted Services
Specification" means the specification for the Platform and Hosted
Services set out in Part 2 of Schedule 1
(Hosted Services particulars) and in the Documentation];
"Intellectual Property Rights"
means all intellectual property rights wherever in the world, whether
registrable or unregistrable, registered or unregistered, including any
application or right of application for such rights (and these
"intellectual property rights" include copyright and related rights,
database rights, confidential information, trade secrets, know-how, business
names, trade names, trade marks, service marks, passing off rights, unfair
competition rights, patents, petty patents, utility models, semi-conductor
topography rights and rights in designs);
"Maintenance Services"
means the general maintenance of the Platform and Hosted Services, and the
application of Updates and Upgrades;
"Minimum Term"
means, in respect of this Agreement, the period of 12 months beginning on the
Effective Date;
"Mobile App" means
the mobile application known as Transport Toolkit that is made available
by the Provider through;
"Permitted Purpose"
means the management of transport services, traffic and road usage;
"Personal Data" means
data provided by you;
"Platform" means the
platform managed by the Provider and used by the Provider to provide the Hosted
Services , including the application and database software for the Hosted
Services, the system and server software used to provide the Hosted Services,
and the computer hardware on which that application, database, system and
server software is installed;
"Provider Indemnity Event"
has the meaning given to it in Clause 17.1;
"Schedule" means any
schedule attached to the main body of this Agreement;
"Services" means any
services that the Provider provides to the Customer, or has an obligation to
provide to the Customer, under this Agreement;
"Set Up Services"
means the configuration, implementation and integration of the Hosted Services
in accordance with Part 1 of Schedule 1 (Hosted Services particulars);
"Support Services"
means support in relation to the use of, and the identification and resolution
of errors in, the Hosted Services, but shall not include the provision of
training services;
"Supported Web Browser"
means the current release from time to time of Microsoft Internet Explorer,
Mozilla Firefox, Google Chrome or Apple Safari or any other web browser that
the Provider agrees in writing shall be supported;
"Term" means the
term of this Agreement, commencing in accordance with Clause 2.1 and ending in
accordance with Clause 2.2;
"Update" means a
hotfix, patch or minor version update to any Platform software; and
"Upgrade" means a
major version upgrade of any Platform software.
2. Term
2.1 This
Agreement shall come into force upon the Effective Date.
2.2 This
Agreement shall continue in force until the user cancels their subscription at
the beginning of which this Agreement shall terminate automatically subject to
termination in accordance with Clause 20.
3. Set Up Services
3.1 The
Provider shall provide the Set Up Services to the Customer.
3.2 The
Provider shall use reasonable endeavours to ensure that the Set Up Services are
provided upon or promptly following the Effective Date;
3.3 The
Customer acknowledges that a delay in the Customer performing its obligations
in this Agreement may result in a delay in the performance of the Set Up
Services; and subject to Clause 18.1 the Provider will not be liable to the
Customer in respect of any failure to meet the Set Up Services timetable to the
extent that that failure arises out of a delay in the Customer performing its
obligations under this Agreement.
3.4 Subject
to any written agreement of the parties to the contrary, any Intellectual
Property Rights that may arise out of the performance of the Set Up Services by
the Provider shall be the exclusive property of the Provider.
4. Hosted Services
4.1 The
Platform will automatically generate an Account for the Customer on the
Effective Date and will provide to the Customer login details for that Account;
4.2 The
Provider grants to the Customer a worldwide, non-exclusive licence to use the
Hosted Services by means of a Supported Web Browser for the internal business
purposes of the Customer in accordance with the Documentation during the Term.
4.3 The
licence granted by the Provider to the Customer under Clause 4.2 is subject to
the following limitations:
(a) the
Hosted Services may only be used by the officers, employees, agents and
subcontractors of either the Customer or an Affiliate of the Customer;
(b) the
Hosted Services may only be used by the named users identified in Schedule 1
(Hosted Services particulars, providing that the Customer may change, add or
remove a designated named user in accordance with the procedure set out
therein; and
(c) the
Hosted Services must not be used at any point in time by more than the number
of concurrent users specified in Schedule 1 (Hosted Services particulars)
4.4 Except
to the extent expressly permitted in this Agreement or required by law on a
non-excludable basis, the licence granted by the Provider to the Customer under
Clause 4.2 is subject to the following prohibitions:
(a) the
Customer must not sub-license its right to access and use the Hosted Services;
(b) the
Customer must not permit any unauthorised person to access or use the Hosted
Services;
(c) the
Customer must not use the Hosted Services to provide services to third parties;
(d) the
Customer must not republish or redistribute any content or material from the
Hosted Services; and
(e) the
Customer must not make any alteration to the Platform, except as permitted by
the Documentation.
4.5 The
Customer shall use reasonable endeavours, including reasonable security
measures relating to administrator Account access details, to ensure that no
unauthorised person may gain access to the Hosted Services using an
administrator Account.
4.6 The
parties acknowledge and agree that Schedule 3 (Availability SLA) shall govern
the availability of the Hosted Services.
4.7 The
Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure
that all persons using the Hosted Services with the authority of the Customer
or by means of an administrator Account comply with Schedule 2 (Acceptable Use
Policy).
4.8 The
Customer must not use the Hosted Services in any way that causes, or may cause,
damage to the Hosted Services or Platform or impairment of the availability or
accessibility of the Hosted Services.
4.9 The
Customer must not use the Hosted Services:
(a) in
any way that is unlawful, illegal, fraudulent or harmful; or
(b) in
connection with any unlawful, illegal, fraudulent or harmful purpose or
activity.
4.10 The Customer must not use the Hosted Services
to provide services to third parties where they are not permitted to do so under
the laws of the territory in which they are located or the territory in which
they are providing services to a third party.
The Customer must ensure that they have all necessary authorisations,
registrations and qualifications to produce Plans.
4.11 For
the avoidance of doubt, the Customer has no right to access the software code
(including object code, intermediate code and source code) of the Platform,
either during or after the Term.
4.12 The
Provider may suspend the provision of the Hosted Services if any amount due to
be paid by the Customer to the Provider under this Agreement is overdue, and
the Provider has given to the Customer at least 30 days written notice,
following the amount becoming overdue, of its intention to suspend the Hosted
Services on this basis.
5. Maintenance Services
5.1 The
Provider shall provide the Maintenance Services to the Customer during the Term.
5.2 The
Provider shall provide the Maintenance Services with reasonable skill and care;
5.3 The
Provider shall provide the Maintenance Services in accordance with Schedule 4
(Maintenance SLA).
5.4 The
Provider may suspend the provision of the Maintenance Services if any amount
due to be paid by the Customer to the Provider under this Agreement is overdue,
and the Provider has given to the Customer at least 30 days written notice, following the amount
becoming overdue, of its intention to suspend the Maintenance Services on this
basis.
6. Support Services
6.1 The
Provider shall provide the Support Services to the Customer during the Term.
6.2 The
Provider shall provide the Support Services with reasonable skill and care.
6.3 The
Provider shall provide the Support Services in accordance with Schedule 5
(Support SLA).
6.4 The
Provider may suspend the provision of the Support Services if any amount due to
be paid by the Customer to the Provider under this Agreement is overdue, and
the Provider has given to the Customer at least 30 days' written notice, following the amount
becoming overdue, of its intention to suspend the Support Services on this
basis.
7. Customer Obligations
7.1 Save
to the extent that the parties have agreed otherwise in writing, the Customer
must provide to the Provider, or procure for the Provider, such:
(a) co-operation,
support and advice;
(b) information
and documentation; and
(c) governmental,
legal and regulatory licences, consents and permits,
as
are reasonably necessary to enable the Provider to perform its obligations
under this Agreement.
7.2 The
Customer must provide to the Provider, or procure for the Provider, such access
to the Customer's computer hardware, software, networks and systems as may be
reasonably required by the Provider to enable the Provider to perform its
obligations under this Agreement.
8. Customer Data
8.1 The
Customer hereby grants to the Provider a non-exclusive licence to copy,
reproduce, store, distribute, publish, export, adapt, edit and translate the
Customer Data to the extent reasonably required for the performance of the
Provider's obligations and the exercise of the Provider's rights under this
Agreement, together with the right to sub-license these rights to its hosting,
connectivity and telecommunications service providers to the extent reasonably
required for the performance of the Provider's obligations and the exercise of
the Provider's rights under this Agreement.
8.2 The
Customer warrants to the Provider that the Customer Data will not infringe the
Intellectual Property Rights or other legal rights of any person, and will not
breach the provisions of any law, statute or regulation in any jurisdiction and
under any applicable law.
8.3 The
Provider shall create a back-up copy of the Customer Data at least daily, shall
ensure that each such copy is sufficient to enable the Provider to restore the
Hosted Services to the state they were in at the time the back-up was taken and
shall retain and securely store each such copy for a minimum period of 30 days.
8.4 Within
the period of 1 Business Day following receipt of a written request from the
Customer the Provider shall use all reasonable endeavours to restore to the Platform
the Customer Data stored in any back-up copy created and stored by the Provider
in accordance with Clause 8.3. The Customer acknowledges that this process will
overwrite the Customer Data stored on the Platform prior to the restoration.
9. Mobile App
9.1 The
parties acknowledge and agree that the use of the Mobile App, the parties'
respective rights and obligations in relation to the Mobile App and any
liabilities of either party arising out of the use of the Mobile App shall be
subject to separate terms and conditions, and accordingly this Agreement shall
not govern any such use, rights, obligations or liabilities.
10. No assignment of Intellectual Property Rights
10.1 Nothing
in this Agreement shall operate to assign or transfer any Intellectual Property
Rights from the Provider to the Customer, or from the Customer to the Provider.
11. Charges
11.1 The
Customer shall pay the Charges to the Provider in accordance with this
Agreement.
11.2 If
the Charges are based in whole or part upon the time spent by the Provider
performing the Services, the Provider must obtain the Customer's written
consent before performing Services that result in any estimate of time-based
Charges given to the Customer being exceeded or any budget for time-based
Charges agreed by the parties being exceeded; and unless the Customer agrees
otherwise in writing, the Customer shall not be liable to pay to the Provider
any Charges in respect of Services performed in breach of this Clause 11.2.
11.3 All
amounts stated in or in relation to this Agreement are, unless the context
requires otherwise, stated inclusive of any applicable value added taxes OR exclusive
of any applicable value added taxes, which will be added to those amounts and payable
by the Customer to the Provider.
11.4 The
Provider may elect to vary any element of the Charges by giving to the Customer
not less than 30 days' written notice of the variation.
12. Payments
12.1 The
Provider shall issue invoices for the Charges to the Customer from time to time
during the Term.
12.2 The
Customer must pay the Charges to the Provider within the period of 7 days
following the issue of an invoice in accordance with this Clause 12.
12.3 The
Customer must pay the Charges by debit card, credit card, direct debit, bank
transfer or cheque] (using such payment details as are notified by the Provider
to the Customer from time to time).
12.4 If
the Customer does not pay any amount properly due to the Provider under this
Agreement, the Provider may:
(a) charge
the Customer interest on the overdue amount at the rate of 8% per annum above
the Reserve Bank of Australia Bank cash rate from time to time (which interest
will accrue daily until the date of actual payment and be compounded at the end
of each calendar month);
12.5 If the Customer pays in a currency other than their
local currency they are responsible for all bank and other transaction fees
charged by its financial institution or bank and any charges incurred by the
Provider as a consequence of the payment being made in a currency other than their
local currency.
13. Provider's confidentiality obligations
13.1 The
Provider must:
(a) keep
the Customer Confidential Information strictly confidential;
(b) not
disclose the Customer Confidential Information to any person without the Customer's
prior written consent.
(c) use
the same degree of care to protect the confidentiality of the Customer
Confidential Information as the Provider uses to protect the Provider's own
confidential information of a similar nature, being at least a reasonable
degree of care;
(d) act
in good faith at all times in relation to the Customer Confidential Information;
and
(e) not
use any of the Customer Confidential Information for any purpose other than the
Permitted Purpose.
13.2 Notwithstanding
Clause 13.1, the Provider may disclose the Customer Confidential Information to
the Provider's officers, employees, professional advisers, insurers, agents and
subcontractors who have a need to access the Customer Confidential Information
for the performance of their work with respect to the Permitted Purpose and who
are bound by a written agreement or professional obligation to protect the
confidentiality of the Customer Confidential Information.
13.3 This
Clause 13 imposes no obligations upon the Provider with respect to Customer
Confidential Information that:
(a) is
known to the Provider before disclosure under this Agreement and is not subject
to any other obligation of confidentiality;
(b) is
or becomes publicly known through no act or default of the Provider; or
(c) is
obtained by the Provider from a third party in circumstances where the Provider
has no reason to believe that there has been a breach of an obligation of
confidentiality.
13.4 The
restrictions in this Clause 13 do not apply to the extent that any Customer
Confidential Information is required to be disclosed by any law or regulation,
by any judicial or governmental order or request, or pursuant to disclosure
requirements relating to the listing of the stock of the Provider on any
recognised stock exchange.
13.5 The
provisions of this Clause 13 shall continue in force indefinitely following the
termination of this Agreement.
14. Data Protection
14.1 The
Customer warrants to the Provider that it has the legal right to disclose all
Personal Data that it does in fact disclose to the Provider under or in connection
with this Agreement, and that the processing of that Personal Data by the
Provider for the Permitted Purpose in accordance with this Agreement will not
breach any applicable data protection or data privacy laws.
14.2 The
Provider warrants to the Customer that:
(a) it
will act only on instructions from the Customer in relation to the processing
of Customer Personal Data;
(b) it
has in place appropriate security measures (both technical and organisational)
against unlawful or unauthorised processing of Customer Personal Data and
against loss or corruption of Customer Personal Data;
(c) it
will only process the Customer Personal Data for the purposes of performing its
obligations and exercising its rights under this Agreement;
(d) it
will process the Customer Personal Data in compliance with all applicable laws;
and
14.3 The
Provider must notify the Customer promptly if:
(a) any
of the Customer Personal Data is lost or destroyed, or becomes damaged,
corrupted or unusable;
(b) the
Provider receives any complaint or regulatory notice which relates to the
processing of any of the Customer Personal Data; or
(c) the
Provider receives a request from a data subject for access to any of the
Customer Personal Data.
14.4 The
Provider shall co-operate with the Customer in relation to:
(a) any
request from the Customer to amend or delete any of the Customer Personal Data;
(b) any
complaint or regulatory notification relating to the processing of any of the
Customer Personal Data; and
(c) any
request from a data subject for access to any of the Customer Personal Data,
at
the cost and expense of the Customer.
14.5 The
Provider shall ensure that access to the Customer Personal Data is limited to
those Provider personnel who have a reasonable need to access the Customer
Personal Data to enable the Provider to perform its duties under this
Agreement; any access to the Customer Personal Data must be limited to such
part or parts of the Customer Personal Data as are strictly necessary.
14.6 The
Provider shall take reasonable steps to ensure the reliability of any Provider
personnel who have access to the Customer Personal Data. Without prejudice to
this general obligation, the Provider shall ensure that all relevant Provider
personnel are informed of the confidential nature of the Customer Personal
Data, have undertaken training in the laws relating to handling Personal Data,
and are aware of the Provider's duties in respect of that Personal Data.
15. Warranties
15.1 The
Provider warrants to the Customer that:
(a) the
Provider has the legal right and authority to enter into this Agreement and to
perform its obligations under this Agreement;
(b) the
Provider will comply with all applicable legal and regulatory requirements
applying to the exercise of the Provider's rights and the fulfilment of the
Provider's obligations under this Agreement; and
(c) the
Provider has or has access to all necessary know-how, expertise and experience
to perform its obligations under this Agreement.
15.2 The
Provider warrants to the Customer that:
(a) the
Platform and Hosted Services will conform in all material respects with the
Hosted Services Specification;
(b) the
Hosted Services will be free from Hosted Services Defects;
(c) the
application of Updates and Upgrades to the Platform by the Provider will not
introduce any Hosted Services Defects into the Hosted Services;
(d) the
Platform will be free from viruses, worms, Trojan horses, ransomware, spyware,
adware and other malicious software programs; and
(e) the
Platform will incorporate security features reflecting the requirements of good
industry practice.
15.3 The
Provider warrants to the Customer that the Hosted Services when used by the
Customer in accordance with this Agreement will not breach any laws, statutes
or regulations applicable under Australian law.
15.4 The
Provider warrants to the Customer that the Hosted Services, when used by the
Customer in accordance with this Agreement, will not infringe the Intellectual
Property Rights of any person in any jurisdiction and under any applicable law.
15.5 If
the Provider reasonably determines, or any third party alleges, that the use of
the Hosted Services by the Customer in accordance with this Agreement infringes
any person's Intellectual Property Rights, the Provider may at its own cost and
expense:
(a) modify
the Hosted Services in such a way that they no longer infringe the relevant
Intellectual Property Rights; or
(b) procure
for the Customer the right to use the Hosted Services in accordance with this
Agreement.
15.6 The
Customer warrants to the Provider that it has the legal right and authority to
enter into this Agreement and to perform its obligations under this Agreement.
15.7 All
of the parties' warranties and representations in respect of the subject matter
of this Agreement are expressly set out in this Agreement. To the maximum
extent permitted by applicable law, no other warranties or representations
concerning the subject matter of this Agreement will be implied into this
Agreement or any related contract.
16. Acknowledgements and warranty limitations
16.1 The
Customer acknowledges that complex software is never wholly free from defects,
errors and bugs; and subject to the other provisions of this Agreement, the
Provider gives no warranty or representation that the Hosted Services will be
wholly free from defects, errors and bugs.
16.2 The
Customer acknowledges that complex software is never entirely free from
security vulnerabilities; and subject to the other provisions of this
Agreement, the Provider gives no warranty or representation that the Hosted
Services will be entirely secure.
16.3 The
Customer acknowledges that the Hosted Services are designed to be compatible
only with that software and those systems specified as compatible in the Hosted
Services Specification; and the Provider does not warrant or represent that the
Hosted Services will be compatible with any other software or systems.
16.4 The
Customer acknowledges that the Provider will not provide any legal, financial,
accountancy or taxation advice under this Agreement or in relation to the
Hosted Services; and, except to the extent expressly provided otherwise in this
Agreement, the Provider does not warrant or represent that the Hosted Services
or the use of the Hosted Services by the Customer will not give rise to any
legal liability on the part of the Customer or any other person.
17. Indemnities
17.1 The
Customer shall indemnify and shall keep indemnified the Provider against any
and all liabilities, damages, losses, costs and expenses (including legal
expenses and amounts reasonably paid in settlement of legal claims) suffered or
incurred by the Provider and arising directly or indirectly as a result of any
breach by the Customer of this Agreement and arising directly or indirectly as
a result of the Customer using the Hosted Services to design implement and
manage maps or plans. . (a "Customer
Indemnity Event").
17.2 The
Provider must:
(a) upon
becoming aware of an actual or potential Customer Indemnity Event, notify the
Customer;
(b) provide
to the Customer all such assistance as may be reasonably requested by the
Customer in relation to the Customer Indemnity Event;
(c) allow
the Customer the exclusive conduct of all disputes, proceedings, negotiations
and settlements with third parties relating to the Customer Indemnity Event;
and
(d) not
admit liability to any third party in connection with the Customer Indemnity
Event or settle any disputes or proceedings involving a third party and
relating to the Customer Indemnity Event without the prior written consent of
the Customer,
without
prejudice to the Customer's obligations under Clause 17.1.
18. Limitations and exclusions of liabilities
18.1 Nothing
in this Agreement will:
(a) limit
or exclude any liability for fraud or fraudulent misrepresentation;
(b) limit
any liabilities in any way that is not permitted under applicable law; or
(c) exclude
any liabilities that may not be excluded under applicable law.
18.2 The
limitations and exclusions of liability set out in this Clause 18 and elsewhere
in this Agreement:
(a) are
subject to Clause 18.1; and
(b) govern
all liabilities arising under this Agreement or relating to the subject matter
of this Agreement, including liabilities arising in contract, in tort
(including negligence) and for breach of statutory duty, except to the extent
expressly provided otherwise in this Agreement.
18.3 The
Provider shall not be liable to the Customer in respect of any losses arising
out of a Force Majeure Event.
18.4 The
Provider shall not be liable to the Customer in respect of any loss of profits
or anticipated savings.
18.5 The
Provider shall not be liable to the Customer in respect of any loss of revenue
or income.
18.6 The
Provider shall not be liable to the Customer in respect of any loss of use or
production.
18.7 The
Provider shall not be liable to the Customer in respect of any loss of
business, contracts or opportunities.
18.8 The
Provider shall not be liable to the Customer in respect of any loss or corruption
of any data, database or software providing that this Clause 18.8 shall not
protect the Provider unless the Provider has fully complied with its
obligations under Clause 8.3 and Clause 8.4.
18.9 The
Provider shall not be liable to the Customer in respect of any special,
indirect or consequential loss or damage.
18.10 The
liability of the Provider to the Customer under this Agreement in respect of
any event or series of related events shall not exceed the greater of:
(a) the
total amount paid and payable by the Customer to the Provider under this
Agreement in the 12 month period preceding the commencement of the event or
events.
18.11 The
aggregate liability of the Provider to the Customer under this Agreement shall
not exceed the greater of:
(a) the
total amount paid and payable by the Customer to the Provider under this
Agreement.
18.12 The Customer remains at all times responsible
for the accuracy, use and compliance with the legal requirements of the
Territory in respect of any plan or map created by the Hosted Services
18.13 The Provider will not be liable to the Customer
for any loss, including personal injury occurring from using the Hosted
Services on a device while driving, operating equipment, moving or otherwise. The Customer is responsible for being aware
of their surroundings at all times when using the Hosted Services.
18.14 Where
symbols, signs or objects appear on a plan or map produced using the Hosted
Services these are indicative and symbolic only and are not to be relied upon as
representing the signage that is required to be used in the Customer’s
Territory or the Territory in which the Customer uses the Hosted Services.
19. Force Majeure Event
19.1 If
a Force Majeure Event gives rise to a failure or delay in either party performing
any obligation under this Agreement (other than any obligation to make a
payment), that obligation will be suspended for the duration of the Force
Majeure Event.
19.2 A
party that becomes aware of a Force Majeure Event which gives rise to, or which
is likely to give rise to, any failure or delay in that party performing any
obligation under this Agreement, must:
(a) promptly
notify the other; and
(b) inform
the other of the period for which it is estimated that such failure or delay
will continue.
19.3 A
party whose performance of its obligations under this Agreement is affected by
a Force Majeure Event must take reasonable steps to mitigate the effects of the
Force Majeure Event.
20. Termination
20.1 The
Provider may terminate this Agreement by giving to the Customer not less than
30 days' written notice of termination.
20.2 Either
party may terminate this Agreement immediately by giving written notice of
termination to the other party if:
(a) the
other party commits any breach of this Agreement and the breach is not
remediable;
(b) the
other party commits a breach OR material breach of this Agreement and the
breach is remediable but the other party fails to remedy the breach within the
period of 7 days following the giving of a written notice to the other party
requiring the breach to be remedied; or
(c) the
other party persistently breaches this Agreement (irrespective of whether such
breaches collectively constitute a material breach).
20.3 Either
party may terminate this Agreement immediately by giving written notice of
termination to the other party if:
(a) the
other party:
(i) ceases
to conduct all (or substantially all) of its business;
(ii) is
or becomes unable to pay its debts as they fall due;
(iii) is
or becomes insolvent or is declared insolvent; or
(iv) convenes
a meeting or makes or proposes to make any arrangement or composition with its
creditors;
(b) an
administrator, administrative receiver, liquidator, receiver, trustee, manager
or similar is appointed over any of the assets of the other party;
(c) an
order is made for the winding up of the other party, or the other party passes
a resolution for its winding up (other
than for the purpose of a solvent company reorganisation where the resulting
entity will assume all the obligations of the other party under this
Agreement); or
(d) if
that other party is an individual:
(i) that
other party dies;
(ii) as
a result of illness or incapacity, that other party becomes incapable of
managing his or her own affairs; or
(iii) that
other party is the subject of a bankruptcy petition or order.
20.4 The
Provider may terminate this Agreement immediately by giving written notice to
the Customer if:
(a) any
amount due to be paid by the Customer to the Provider under this Agreement is
unpaid by the due date and remains unpaid upon the date that that written
notice of termination is given; and
(b) the
Provider has given to the Customer at least 30 days' written notice, following
the failure to pay, of its intention to terminate this Agreement in accordance
with this Clause 20.4.
21. Effects of termination
21.1 Upon
the termination of this Agreement, all of the provisions of this Agreement
shall cease to have effect, save that the following provisions of this
Agreement shall survive and continue to have effect (in accordance with their
express terms or otherwise indefinitely).
21.2 Except
to the extent that this Agreement expressly provides otherwise, the termination
of this Agreement shall not affect the accrued rights of either party.
21.3 Within
7 days following the termination of this Agreement for any reason:
(a) the
Customer must pay to the Provider any Charges in respect of Services provided
to the Customer before the termination of this Agreement; and
(b) the
Provider must refund to the Customer any Charges paid by the Customer to the
Provider in respect of Services that were to be provided to the Customer after
the termination of this Agreement,
without
prejudice to the parties' other legal rights.
22. Notices
22.1 Any
notice from one party to the other party under this Agreement must be given by
one of the following methods (using the relevant contact details set out in
Clause 22.2 and Part 4 of Schedule 1 (Hosted Services particulars)):
(a) delivered
personally or sent by courier in which case the notice shall be deemed to be
received upon delivery; or
(b) sent
by post in which case the notice shall be deemed to be received 4 Business Days
following posting,
providing that, if the stated time of
deemed receipt is not within Business Hours, then the time of deemed receipt
shall be when Business Hours next begin after the stated time.
22.2 The
Provider's contact details for notices under this Clause 22 are as follows: Transport
Toolkit, 310 Rapleys Loop Road Werombi
NSW 2570.
22.3 The
addressee and contact details set out in Clause 22.2 and Part 4 of Schedule 1
(Hosted Services particulars) may be updated from time to time by a party
giving written notice of the update to the other party in accordance with this
Clause 22.
23. Subcontracting
23.2 The
Provider shall remain responsible to the Customer for the performance of any
subcontracted obligations.
23.3 Notwithstanding
any other provision of this Agreement, the Customer acknowledges and agrees that
the Provider may subcontract any third party hosting business the hosting of
the Platform and the provision of services in relation to the support and
maintenance of elements of the Platform.
24. Assignment
24.1 The
Customer agrees that the Provider may assign, transfer or otherwise deal with
the Provider's contractual rights and obligations under this Agreement.
24. No Waivers
25.1 No
breach of any provision of this Agreement will be waived except with the
express written consent of the party not in breach.
25.2 No
waiver of any breach of any provision of this Agreement shall be construed as a
further or continuing waiver of any other breach of that provision or any
breach of any other provision of this Agreement.
26. Severability
26.1 If
a provision of this Agreement is determined by any court or other competent
authority to be unlawful and/or unenforceable, the other provisions will
continue in effect.
26.2 If
any unlawful and/or unenforceable provision of this Agreement would be lawful
or enforceable if part of it were deleted, that part will be deemed to be deleted,
and the rest of the provision will continue in effect.
24. Third Party Rights
27.1 This
Agreement is for the benefit of the parties, and is not intended to benefit or
be enforceable by any third party.
27.2 The
exercise of the parties' rights under this Agreement is not subject to the
consent of any third party.
28. Variation
28.1 This
Agreement may not be varied except in accordance with this Clause 28.
28.2 This
Agreement may be varied by means of a written document signed by or on behalf
of each party.
28.3 The
Provider may vary this Agreement by giving to the Customer at least 30 days'
written notice of the proposed variation, providing that if the Provider gives
to the Customer a notice under this Clause 28.3, the Customer shall have the
right to terminate this Agreement by giving written notice of termination to the
Provider at any time during the period of 14 days following receipt of the
Provider's notice.
29. Entire agreement
29.1 The
main body of this Agreement and the Schedules shall constitute the entire
agreement between the parties in relation to the subject matter of this
Agreement, and shall supersede all previous agreements, arrangements and
understandings between the parties in respect of that subject matter.
29.2 Neither
party will have any remedy in respect of any misrepresentation (whether written
or oral) made to it upon which it relied in entering into this Agreement.
29.3 The
provisions of this Clause 29 are subject to Clause 18.1.
30. Law of Jurisdiction
30.1 This
Agreement shall be governed by and construed in accordance with the law of
Australia.
30.2 Any
disputes relating to this Agreement shall be subject to the exclusive
jurisdiction of the courts of New South Wales.
31. Interpretation
31.1 In
this Agreement, a reference to a statute or statutory provision includes a
reference to:
(a) that
statute or statutory provision as modified, consolidated and/or re-enacted from
time to time; and
(b) any
subordinate legislation made under that statute or statutory provision.
31.2 The
Clause headings do not affect the interpretation of this Agreement.
31.3 References
in this Agreement to "calendar months" are to the 12 named periods
(January, February and so on) into which a year is divided.
31.4 In
this Agreement, general words shall not be given a restrictive interpretation
by reason of being preceded or followed by words indicating a particular class
of acts, matters or things.
Execution
The parties have indicated their
acceptance of this Agreement by executing it below.
EXECUTED by Transport Toolkit )
By authority of Section 127 of the )
Corporations Act 2001: )
Schedule 1 (Hosted Services
particulars)
1. Set Up Services
2. Specification of Hosted Services
3. Financial provisions
4. Contractual notices
Schedule 2 (Acceptable Use Policy)
1. Introduction
1.1 This
acceptable use policy (the "Policy") sets out the rules
governing:
(a) the
use of www.transporttoolkit.com.au any successor website, and the services
available on that website or any successor website] (the "Services");
and
(b) the
transmission, storage and processing of content by you, or by any person on
your behalf, using the Services ("Content").
1.2 References
in this Policy to "you" are to any customer for the Services and any individual
user of the Services (and "your" should be construed accordingly);
and references in this Policy to "us" are to the Provider (and
"we" and "our" should be construed accordingly).
1.3 By
using the Services, you agree to the rules set out in this Policy.
1.4 We
will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise
use the Services].
1.5 You
must be at least 18 years of age to use the Services; and by using the
Services, you warrant and represent to us that you are at least 18 years of age.
2. General usage rules
2.1 You
must not use the Services in any way that causes, or may cause, damage to the
Services or impairment of the availability or accessibility of the Services.
2.2 You
must not use the Services:
(a) in
any way that is unlawful, illegal, fraudulent or harmful; or
(b) in
connection with any unlawful, illegal, fraudulent or harmful purpose or
activity.
2.3 You
must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content
must not be illegal or unlawful, must not infringe any person's legal rights,
and must not be capable of giving rise to legal action against any person (in
each case in any jurisdiction and under any applicable law).
3.2 Content
and the use of Content by us in any manner licensed or otherwise authorised by
you must not:
(a) be
libelous or maliciously false;
(b) be
obscene or indecent;
(c) infringe
any copyright, moral right, database right, trade mark right, design right,
right in passing off, or other intellectual property right;
(d) infringe
any right of confidence, right of privacy or right under data protection
legislation;
(e) constitute
negligent advice or contain any negligent statement;
(f) constitute
an incitement to commit a crime, instructions for the commission of a crime or
the promotion of criminal activity;
(g) be
in contempt of any court, or in breach of any court order;
(h) constitute
a breach of racial or religious hatred or discrimination legislation;
(i) be
blasphemous;
(j) constitute
a breach of official secrets legislation; or
(k) constitute
a breach of any contractual obligation owed to any person.
3.3 You
must ensure that Content is not and has never been the subject of any
threatened or actual legal proceedings or other similar complaint.
4. Graphic material
4.1 Content
must be appropriate for all persons who have access to or are likely to access
the Content in question and in particular for children over 12 years of age]].
4.2 Content
must not depict violence in an explicit, graphic or gratuitous manner].
4.3 Content
must not be pornographic or sexually explicit].
5. Factual accuracy
5.1 Content
must not be untrue, false, inaccurate or misleading.
5.2 Statements
of fact contained in Content and relating to persons (legal or natural) must be
true; and statements of opinion contained in Content and relating to persons
(legal or natural) must be reasonable, be honestly held and indicate the basis
of the opinion].
6. Negligent advice
6.1 Content
must not consist of or contain any legal, financial, investment, taxation,
accountancy, medical or other professional advice, and you must not use the
Services to provide any legal, financial, investment, taxation, accountancy,
medical or other professional advisory services.
6.2 Content
must not consist of or contain any advice, instructions or other information
that may be acted upon and could, if acted upon, cause death, illness or
personal injury, damage to property, or any other loss or damage.
7. Etiquette
7.1 Content
must be appropriate, civil and tasteful, and accord with generally accepted
standards of etiquette and behaviour on the internet.
7.2 Content
must not be offensive, deceptive, threatening, abusive, harassing, menacing,
hateful, discriminatory or inflammatory.
7.3 Content
must not be liable to cause annoyance, inconvenience or needless anxiety.
7.4 You
must not use the Services to send any hostile communication or any
communication intended to insult, including such communications directed at a
particular person or group of people.
7.5 You
must not use the Services for the purpose of deliberately upsetting or
offending others.
7.6 You
must not unnecessarily flood the Services with material relating to a
particular subject or subject area, whether alone or in conjunction with others.
7.7 You
must ensure that Content does not duplicate other content available through the
Services.
7.8 You
must ensure that Content is appropriately categorised.
7.9 You
should use appropriate and informative titles for all Content.
7.10 You
must at all times be courteous and polite to other users of the Services.
8. Marketing and spam
8.1 You
must not without our written permission use the Services for any purpose
relating to the marketing, advertising, promotion, sale or supply of any
product, service or commercial offering.
8.2 Content
must not constitute or contain spam, and you must not use the Services to store
or transmit spam - which for these purposes shall include all unlawful
marketing communications and unsolicited commercial communications.
8.3 You
must not send any spam or other marketing communications to any person using
any email address or other contact details made available through the Services
or that you find using the Services.
8.4 You
must not use the Services to promote or operate any chain letters, Ponzi
schemes, pyramid schemes, matrix programs, "get rich quick" schemes
or similar letters, schemes or programs.
10. Monitoring
10.1 You
acknowledge that we may actively monitor the Content and the use of the
Services.
11. Data mining
11.1 You
must not conduct any systematic or automated data scraping, data mining, data
extraction or data harvesting, or other systematic or automated data collection
activity, by means of or in relation to the Services.
12. Hyperlinks
12.1 You
must not link to any material using or by means of the Services that would, if
it were made available through the Services, breach the provisions of this
Policy.
13. Harmful software
13.1 The
Content must not contain or consist of, and you must not promote or distribute
by means of the Services, any viruses, worms, spyware, adware or other harmful
or malicious software, programs, routines, applications or technologies.
13.2 The
Content must not contain or consist of, and you must not promote or distribute
by means of the Services, any software, programs, routines, applications or
technologies that will or may have a material negative effect upon the
performance of a computer or introduce material security risks to a computer.
Schedule 3
(Availability SLA)
1. Introduction to availability SLA
1.1 This
Schedule 3 sets out the Provider's availability commitments relating to the
Hosted Services.
1.2 In
this Schedule 3, "uptime" means the percentage of time during a given
period when the Hosted Services are available at the gateway between public
internet and the network of the hosting services provider for the Hosted
Services.
2. Availability
2.1 The
Provider shall use reasonable endeavours to ensure that the uptime for the
Hosted Services is at least 99.9% during each calendar month.
2.2 The
Provider shall be responsible for measuring uptime, and shall do so using any
reasonable methodology
4. Exceptions
4.1 Downtime
caused directly or indirectly by any of the following shall not be considered
when calculating whether the Provider has met the uptime guarantee given in
Paragraph 2.1:
(a) a
Force Majeure Event;
(b) a
fault or failure of the internet or any public telecommunications network;
(c) a
fault or failure of the Customer's computer systems or networks;
(d) any
breach by the Customer of this Agreement;
(e) scheduled
maintenance carried out in accordance with this Agreement, or
(f) a
failure of the Customer to utilize an operating system that is compatible with
the software.
Schedule 4
(Maintenance SLA)
1. Introduction
1.1 This
Schedule 4 sets out the service levels applicable to the Maintenance Services.
2. Scheduled Maintenance Services
2.1 The
Provider shall where practicable give to the Customer at least 10 Business Days' prior written
notice of scheduled Maintenance Services that are likely to affect the
availability of the Hosted Services or are likely to have a material negative
impact upon the Hosted Services, without prejudice to the Provider's other
notice obligations under this Schedule 4.
2.2 The
Provider shall provide all scheduled Maintenance Services outside Business
Hours.
3. Updates
3.1 The
Provider shall give to the Customer written notice of the application of any
security Update to the Platform and at least 10 Business Days' prior written
notice of the application of any non-security Update to the Platform.
3.2 The
Provider shall apply Updates to the Platform as follows:
(a) third
party security Updates shall be applied to the Platform promptly following
release by the relevant third party, providing that the Provider may acting
reasonably decide not to apply any particular third party security Update;
(b) the
Provider's security Updates shall be applied to the Platform promptly following
the identification of the relevant security risk and the completion of the
testing of the relevant Update; and
(c) other
Updates shall be applied to the Platform in accordance with any timetable
notified by the Provider to the Customer or agreed by the parties from time to
time.
4. Upgrades
4.1 The
Provider shall produce Upgrades at least once in each calendar year during the
Term.
4.2 The
Provider shall give to the Customer at least 10 Business Days' prior written
notice of the application of an Upgrade to the Platform.
4.3 The
Provider shall apply each Upgrade to the Platform within any period notified by
the Provider to the Customer or agreed by the parties in writing.
Schedule 5 (Support
SLA)
1. Introduction
1.1 This
Schedule 5 sets out the service levels applicable to the Support Services.
2. Helpdesk
2.1 The
Provider shall make available to the Customer a helpdesk in accordance with the
provisions of this Schedule 5.
2.2 The
Customer may use the helpdesk for the purposes of requesting and, where
applicable, receiving the Support Services; and the Customer must not use the
helpdesk for any other purpose.
2.3 The
Provider shall ensure that the helpdesk is accessible by telephone and email.
2.4 The
Provider shall ensure that the helpdesk is operational and adequately staffed
during Business Hour during the Term.
2.5 The
Customer shall ensure that all requests for Support Services that it may make
from time to time shall be made through the helpdesk.
3. Response and resolution
3.1 Issues
raised through the Support Services shall be categorised as follows:
(a) critical:
the Hosted Services are inoperable or a core function of the Hosted Services is
unavailable;
(b) serious:
a core function of the Hosted Services is significantly impaired;
(c) moderate:
a core function of the Hosted Services is impaired, where the impairment does
not constitute a serious issue; or a non-core function of the Hosted Services
is significantly impaired; and
(d) minor:
any impairment of the Hosted Services not falling into the above categories;
and any cosmetic issue affecting the Hosted Services.
3.2 The
Provider OR Customer shall determine, acting reasonably, into which severity
category an issue falls.
3.3 The
Provider shall use all reasonable endeavours to respond to requests for Support
Services promptly, and in any case in accordance with the following time
periods:
(a) critical:
4 Business Hour;
(b) serious:
10 Business Hours]
(c) moderate:
4 Business Day; and
(d) minor:
10 Business Days.
3.4 The
Provider shall ensure that its response to a request for Support Services shall
include the following information (to the extent such information is relevant
to the request): an acknowledgement of receipt of the request, where
practicable an initial diagnosis in relation to any reported error, and an
anticipated timetable for action in relation to the request.
3.5 The
Provider shall use all reasonable endeavours to resolve issues raised through
the Support Services promptly, and in any case in accordance with the following
time periods:
(a) critical:
4 Business Hours;
(b) serious:
10 Business Hours;
(c) moderate:
4 Business Days; and
(d) minor:
10 Business Days.
4. Provision of Support Services
4.1 The
Support Services shall be provided remotely, save to the extent that the
parties agree otherwise in writing.
5. Limitations on Support Services
5.1 If
the total hours spent by the personnel of the Provider performing the Support
Services during any calendar month exceed amount then:
(a) the
Provider will cease to have an obligation to provide Support Services to the
Customer during the remainder of that period; and
(b) the
Provider may agree to provide Support Services to the Customer during the
remainder of that period, but the provision of those Support Services will be
subject to additional Charges.
5.2 The
Provider shall have no obligation to provide Support Services in respect of any
issue caused by:
(a) the
improper use of the Hosted Services by the Customer; or
(b) any
alteration to the Hosted Services made without the prior consent of the
Provider.