1. Definitions and interpretations
1.1 In this Agreement, the following terms have the following meanings:
- 1.1.1 “Additional Charge” means an additional charge, at Techrep Services’ standard rates from time to time, for the supply by Techrep Services of goods or services that are requested by the Customer but are not specified in this Agreement.
- 1.1.2 “Agreement” means this agreement between Techrep Services and the Customer for the provision of products and/or services, which comprises the terms set out in this document, any applicable Schedule(s) and any New Feature Orders.
- 1.1.3 “Australian Consumer Law” means the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Cth).
- 1.1.4 “Charges” means: (a) the charges (such as licence or subscription fees) for any Product; and (b) the charges for any Services, as set out in this Agreement (including Schedule 3), or otherwise as set out in a New Feature Order, and as may be amended by Techrep Services in accordance with this Agreement.
- 1.1.5 “Confidential Information” means all information marked or indicated as confidential to a party to this Agreement or any of its related bodies corporate or which the other party knows or ought reasonably to be aware is confidential to the first mentioned party (regardless of its form and whether the other party becomes aware of it before or after the date of this Agreement) and includes.
- (i) the terms of this Agreement.
- (ii) in the case of Techrep Services, any material comprising a Product, Service, Techrep Services’ data or its intellectual property.
- 1.1.6 “Consulting Services” means any consulting services to be provided by Techrep Services to the Customer, as set out in Schedule 3 or otherwise agreed in writing
- 1.1.7 “Customer” means the customer named in Schedule 1
- 1.1.8 “Customer Data” means data owned or generated by or on behalf of the Customer, where such data relates solely to the Customer, the Customer’s business or Customer Users. Customer Data expressly excludes any material comprising a Product, Service, Techrep Services’ data or its intellectual property
- 1.1.9 “Customer User” means any person whom the Customer permits (whether directly or indirectly or by way of facilitation) to use or obtain the benefit of Products or Services and includes the officers, employees, agents and contractors of any such person and of the Customer
- 1.1.10 “Customer User Terms” means the terms contained in clauses 5.6 and 7.1
- 1.1.11 “Dangerous Goods” includes any goods or substances that may reasonably be considered dangerous or hazardous and includes goods and substances dealt with under Dangerous Goods Laws.
- 1.1.12 “Dangerous Goods Laws” includes any law, regulation, instrument or code relating to the transportation of dangerous goods or substances and includes the Australian Dangerous Goods Code as in force and as amended from time to time.
- 1.1.13 “Defined Abuse” includes misuse of the Service including: (a) giving an unauthorized person the Customer’s account and password details; (b) deliberately or recklessly disrupting Techrep Services’ service; (c) using the Service in an unlawful manner; (d) using the Service to menace or harass others; (e) using the Service to obtain unauthorized access to any network. or (f) as otherwise reasonably determined by Techrep Services.
- 1.1.14 “GST” has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its related impositions
- 1.1.15 “Implied Term” means a term implied into this Agreement by consumer protection legislation and which such legislation prohibits from being excluded, restricted or modified, including for example guarantees provided under the Australian Consumer Law
- 1.1.16 “Licence” means the licence granted in clause 5.4
- 1.1.17 “Machship System” means the hosted software-as-a-service freight management system known as “Machship”.
- 1.1.18 “New Feature Order” means an order by the Customer for new feature(s) to the Machship System, pursuant to clause 6
- 1.1.19 “PCI Standard” means the Payment Card Industry Data Security Standard, which is available at https://www.pcisecuritystandards.org
- 1.1.21 “Product” means a product provided by Techrep Services to the Customer under this Agreement, including the Machship System, and the product, outcome or deliverable of any Services.
- 1.1.22 “Restraint Period” means the period commencing on the date of commencement of this Agreement and expiring 12 months after the termination of this Agreement.
- 1.1.23 “Service Levels” means the service levels (if any) applicable to a Service, as set out in the Service Schedule relating to that Service or Schedule 2
- 1.1.24 “Services” means the services to be provided by Techrep Services pursuant to this Agreement (including where applicable Consulting Services and Support Services), as set out in Schedule 3 or a New Feature Order, or as otherwise agreed in writing.
- 1.1.25 “Supplier” means Techrep Services Pty Ltd ACN 600 286 315, its successors and assigns.
- 1.1.26 “Support Services” mean the support services provided by Techrep Services to the Customer as set out in Schedule 3 or otherwise agreed in writing.
- 1.1.27 “Techrep Services” means Techrep Services Pty Ltd ACN 600 286 315, its successors and assigns.
- 1.1.28 “Techrep Services Group” means the parent company of Techrep Services and (where the context permits) includes any related body corporate of Techrep Services.
1.2 In this Agreement unless the context otherwise requires:
- 1.2.1 headings are for convenience only and do not affect interpretation.
- 1.2.2 the singular includes the plural and vice versa.
- 1.2.3 a reference to a party to a document includes that party’s permitted successors, assigns, administrators and substitutes.
- 1.2.4 no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement.
- 1.2.5 an agreement on the part of two or more persons binds them jointly and severally.
- 1.2.6 in the event of inconsistency between the terms contained in this document and any Schedule, the terms of the Schedule shall prevail to the extent of such inconsistency.
- 1.2.7 use of the word “including” or similar means “including but not limited to.
- 1.2.8 where something is to be done by giving notice to the other party, such notice shall be in writing and shall be given by personal delivery, pre-paid postage or e-mail. In the case of e-mail delivery, the e-mail shall be delivered to the other party’s nominated e-mail address and shall be subject to production of a delivery confirmation receipt.
2.1 This Agreement commences upon execution by the parties and shall continue for the period specified in Schedule 1 (including any subsequent, recurring periods) or until terminated in accordance with its terms.
2.2 The Agreement will automatically renew for any number of further periods of the same duration where no notice of non-renewal has been received by Techrep Services from the Customer at least 3 months prior to the expiry of the then current term.
2.3 Techrep Services shall be under no liability to the Customer or any other person for any delay in the commencement of the supply or the delivery of any product or service.
3. Products and Services
3.1 Techrep Services agrees to provide the Products and perform the Services on the terms of this Agreement in consideration for the Charges.
3.2 The use, benefit and enjoyment of the Products and Services shall be personal to the Customer and the Customer must not re-sell or purport to re-sell the Products or Services. Except as permitted by this Agreement, the Customer must not permit any other person to use the Products or Services.
3.3 The Customer acknowledges that Techrep Services may be a reseller of Services provided by one or more other providers.
3.4 It is the responsibility of the Customer to ensure that all features and functions it requires exist in the relevant Product or Service before placing an order. Features or functions required which are not specified or stated in this Agreement may be included but may attract Additional Charges at Techrep Services’ discretion.
3.5 For the avoidance of doubt, the Customer Data (including all intellectual property rights in the Customer Data) shall be owned by the Customer. Techrep Services will return (and if required Techrep Services will facilitate the return of) a copy of the Customer Data to the Customer, subject to: (a) all of the Customer’s accounts first being paid in full; and (b) the Customer paying Techrep Services’ reasonable Charges for doing so.
4. Service Levels
4.1 The Service Levels shall apply to the Services, subject to the provisions of this Agreement.
4.2 The Customer will not be entitled to a Service Level credit or rebate where Techrep Services’ failure to achieve the relevant Service Levels is caused directly or indirectly by, or arises from or in connection with:
- 4.2.1 an event of force majeure or otherwise outside Techrep Services’ control.
- 4.2.2 a planned outage.
- 4.2.3 the exercise of Techrep Services’ right to suspend a Service under clause 15.
5. Intellectual Property
5.1 The Customer acknowledges that Techrep Services Group owns all intellectual property rights (including present and future intellectual property rights) in the Products and Services and assigns to the Techrep Services Group all rights in and over all intellectual property created pursuant to or in contemplation of this Agreement (excluding Customer Data).
5.2 Neither party shall acquire any rights, title, interest in or to any pre-existing intellectual property rights of the other party including without limitation any tools and any methodologies used by the parties in the performance of this Agreement.
5.3 The Customer acknowledges and agrees that:
- 5.3.1 it acquires no right, title or interest in any intellectual property owned or licensed by Techrep Services, or used or supplied by Techrep Services to the Customer or any other person during the operation of this Agreement, at any time regardless of whether the intellectual property was created prior to or during the term of this Agreement.
- 5.3.2 nothing in this Agreement has the effect of granting, transferring to or vesting in the Customer any right, title or interest in such intellectual property.
- 5.3.3 the Customer shall do all things reasonably required by Techrep Services, and to procure that the Customer’s representatives do so also, to enable Techrep Services to obtain, defend and enforce its rights in such intellectual property.
- 5.3.4 the Customer shall not do or fail to do any act or thing which would or might prejudice Techrep Services’ rights under this clause.
- 5.3.5 this clause 5.3 operates for the benefit of Techrep Services Group.
5.4 Subject to this Agreement, Techrep Services grants to the Customer a non-transferable, non-exclusive and personal licence to use the Products for the duration of this Agreement solely for its own internal business purposes.
5.5 The Licence shall be subject to full compliance with this Agreement and payment in full of all Charges. For the avoidance of doubt, the Licence shall not be deemed a sale, a sale of a copy of a program, a lease, a rental or a loan.
- 5.5.1 Techrep Services warrants that it has the authority to grant the Licence and that the Products do not infringe the intellectual property rights of any person.
5.6 Except as permitted herein or with the Product owner’s written consent, the Customer must not, nor attempt to (and must ensure that each Customer User does not, or attempt to):
- 5.6.1 reverse engineer, disassemble, decompile or re-create the source code from a Product.
- 5.6.2 copy, translate, modify or create derivative works based on a Product or accompanying written materials.
- 5.6.3 distribute, sell, assign, pledge, sublicense, lease, deliver or otherwise transfer or grant access to a Product nor permit any other person to do any of the foregoing.
- 5.6.4 remove from a Product any of the trademarks, trade names, logos, patent or copyright notices or marking or add any other notices or markings or add any other notices or markings to the Product.
5.7 Subject to clause 5.8, Techrep Services shall endeavour to have the relevant intellectual property rights holder (the “Rights Holder”) defend the Customer against any claim, action or proceeding brought against the Customer based upon a substantive allegation that a Product infringes any patent or copyright of any third party (a “Claim”), and shall endeavour to have the Rights Holder indemnify the Customer against, and hold the Customer harmless from, any and all costs and damages finally awarded against the Customer that are directly attributable to such Claim, provided that:
- 5.7.1 the Customer delivers to Techrep Services written notice of the Claim and of any actions taken in connection therewith without undue delay and in no event later than 21 days after the Customer first receives notice thereof.
- 5.7.2 the Customer grants to Techrep Services or the Rights Holder the sole authority to assume the defence thereof, and the sole right to settle the Claim, through lawyers chosen solely by Techrep Services or the Rights Holder.
- 5.7.3 the Customer reasonably cooperates with Techrep Services and the Rights Holder in connection therewith.
5.8 If a Claim would have the result of limiting the Customer’s rights, Techrep Services shall endeavour to have the Rights Holder:
- 5.8.1 modify the Product to the extent required to render it non-infringing.
- 5.8.2 replace it with comparable non-infringing software.
- 5.8.3 obtain any third-party licence required to enable the Customer to use the affected Product.
- 5.8.4 agree to the Customer returning the item to Techrep Services for a refund (less a reasonable deduction for use).
5.9 The Customer shall not enter into any settlement of such Claims or proceedings without the prior written consent of Techrep Services or the Rights Holder.
5.10 Techrep Services shall have no responsibility or indemnification obligation for any Claim by a third party to the extent the claim or loss is based upon any of the following:
- 5.10.1 compliance with plans, specifications or designs furnished by the Customer.
- 5.10.2 use of a Product by the Customer in combination with other products or equipment which are not supplied by Techrep Services.
- 5.10.3 use of a Product by the Customer, other than in accordance with the instructions of Techrep Services.
- 5.10.4 modification of a Product by or for the Customer (except where the relevant modification was performed by Techrep Services).
5.11 The Customer shall defend Techrep Services against any Claim or other infringement claim, and indemnify Techrep Services against, and hold Techrep Services harmless from, any and all costs and damages incurred by Techrep Services arising therefrom, if the alleged infringement arises out of one of the circumstances listed in clause 5.10, in each case to the extent that such Claim would not have arisen had such circumstances not occurred.
5.12 Usage data (including metadata and customer usage) may be generated by the use of the Services, in which case:
- 5.12.1 where applicable, all right, title and interest in such usage data is retained by the Customer.
- 5.12.2 subject to de-identification of personal information and compliance with applicable privacy laws by Techrep Services, the Customer grants Techrep Services a perpetual, non-exclusive, transferable, sub-licensable, royalty-free, worldwide licence to use such data.
- 5.12.3 subject to de-identification of personal information and compliance with applicable privacy laws by Techrep Services, the Customer consents to Techrep Services’ use of such data (and to provide such data to others) for its internal business purposes, for marketing purposes, for market analysis, to analyse customer trends and where required by law.
6. New Feature Orders
6.1 The Customer may request that new feature(s) be added to the Machship System. Techrep Services shall consider eachrequest;however, Techrep Services is not obliged to accept it.
6.2 Techrep Services may in its discretion offer to supply such new feature(s) by giving the Customer a written offer setting out the details and pricing for such new feature(s). If the Customer accepts that offer, it shall constitute a New Feature Order.
6.3 A New Feature Order once accepted shall constitute a variation to this Agreement. Unless otherwise provided in the New Feature Order, the terms of the New Order shall prevail over the terms of the remainder of this Agreement to the extent of any inconsistency.
6.4 For the avoidance of doubt:
- 6.4.1 Techrep Services Group shall own the intellectual property rights in the product, outcome or deliverables of any New Feature Order and Customer assigns to Techrep Services Group all such rights in accordance with clause 5.
- 6.4.2 the Customer acknowledges that Techrep Services may licence the product, outcome or deliverables of any New Feature Order to its other customers.
- 6.4.3 any payment in respect of a New Feature Order shall not give the Customer any exclusive rights or ownership rights in or over the product, outcome or deliverables of any New Feature Order.
7. The Customer’s (and Customer’s users’) responsibilities.
7.1 The Customer must:
- 7.1.2 ensure that the Products and Services are used solely for their intended purpose.
- 7.1.3 ensure there is no unauthorized access, or harm caused, to Techrep Services’ computer system or network or those of Techrep Services’ suppliers.
- 7.1.4 not commit, cause or allow any breach (or do anything which might put Techrep Services in breach) of any law, regulation, government direction or industry standard or code.
- 7.1.5 not use the Service to breach a person’s rights (including committing defamation or infringing a person’s intellectual property rights or privacy).
- 7.1.6 not commit Defined Abuse.
- 7.1.7 notify Techrep Services immediately of any security breach (suspected or otherwise) of the Service, or the Customer’s confidential password or the Customer’s login.
- 7.1.8 initiate, operate and manage the Service on the Customer’s own behalf.
- 7.1.9 be solely responsible for arranging and maintaining all communications services, system resources and other equipment and services needed to access the Services, including adequate bandwidth to support the Customer’s use of the Services.
- 7.1.10 promptly inform Techrep Services of any change to the Customer’s billing or address details.
- 7.1.11 be responsible for the timely and accurate notification to Techrep Services of any defect in the Products or Services or other issue which may give rise to a warranty claim.
- 7.1.12 maintain an up-to-date copy of all of its data at all times, suitable for restoring services in the event of loss or corruption of data on the Customer’s or Techrep Services’ systems.
7.2 The Customer must ensure that each Customer User complies with the Customer User Terms. The Customer shall be vicariously liable and responsible to (and the Customer shall fully defend and indemnify) Techrep Services in respect of each Customer User’s use of any Product or Service (including in circumstances where a Customer User has the benefit of any Product or Service) and compliance with the Customer User Terms.
7.3 The Customer must ensure that each Customer User agree to the Machship End User License Agreement (EULA) before allowing any Customer User to make use of the Machship system.
7.4 If the Customer’s use of Services involves storage, processing or transmission of or access to any credit cardholder data, the Customer warrants that the tools, programmes, processes and technologies it uses to do so comply with the PCI Standard.
7.5 For the duration of this Agreement, the Customer shall provide Techrep Services free of charge with all assistance, information, access, facilities and services reasonably required by Techrep Services to enable it effectively to perform its obligations under this Agreement, including use of Customer’s equipment if required.
8. Charges and Billing
8.1 Payment terms in relation to the Charges are set out in the applicable pricing schedule.
8.2 Charges will increase each year by the greater of 3% or the “Consumer Price Index (CPI)” as published from time to time by the Australian Bureau of Statistics or, if that index number is no longer published, its substitute as a cumulative indicator of the inflation rate in Australia.
8.3 Charges may vary (at Techrep Services discretion) in accordance with exchange rate fluctuations.
8.4 Failure by the Customer to pay any outstanding amount within 30 days of the due date for payment will, in the first instance, be dealt with as a dispute under clause 17.
8.5 Subject to clause 8.4 and the procedure in clause 17, (and without prejudice to Techrep Services’ other rights), any failure by the Customer to pay any outstanding amount will:
- 8.5.1 be deemed a terminating event or, at Techrep Services’ sole discretion, shall entitle Techrep Services to suspend all or any of its obligations under this Agreement.
- 8.5.2 entitle Techrep Services to charge interest on the unpaid amount at a rate equal to 5% per annum above the overdraft rate of the ANZ Bank on the first business day following the due date for payment.
8.6 Where the Customer has failed to pay any amount owing to Techrep Services, Techrep Services may, in addition to any other fees or charges under this Agreement, charge the Customer Techrep Services’ then current fee for suspension, disconnection and/or re-connection of a Service. In addition, the Customer shall indemnify Techrep Services for the cost of exercising and/or pursuing Techrep Services’ right to payment under this Agreement.
8.7 If Techrep Services has agreed to provide a Product or Service over a particular term, then to the extent permitted by law:
- 8.7.1 the whole amount payable for the whole of the term that that Product or Service is to be provided is a debt owing to Techrep Services as at the time of entering into this Agreement for which Techrep Services may bill the Customer even if the Customer cancels the Product or Service before the term ends.
- 8.7.2 if the Customer cancels the Product or Service before the end of the term, the Customer will be liable for the remaining Charges.
8.8 All Charges are non-refundable. The Customer shall pay the Charges in full without any deduction or set-off whatsoever (including whether any Product is used by the Customer or any other person).
8.9 Unless expressly stated otherwise, all references to consideration (including Charges) relating to this Agreement are exclusive of GST.
8.10 Techrep Services may impose an Additional Charge on the Customer in respect of any products or services which are in addition to the Products and Services (and which Techrep Services agrees to supply), or in any other reasonable circumstances.
8.11 Any out of pocket expenses incurred by Techrep Services shall be paid by the Customer. Out of pocket expenses shall include any reasonable expenses incurred in connection with providing services as stated in this Agreement or specified in any proposals accepted by the Customer. Out of pocket expenses shall be approved in advance by the Customer and such approval shall not be unreasonably withheld.
9. Warranty and Maintenance
9.1 Techrep Services will supply the Services with all due care, skill and diligence and all Techrep Services’ employees or contractors will be adequately trained to execute their duties in order to satisfy or exceed the obligations contained in this Agreement.
9.2 Where Products are covered by the manufacturer’s warranty, Techrep Services will pass on to the Customer the benefit of any manufacturer’s warranty. For the purposes of the Australian Consumer Law, Techrep Services otherwise gives no express warranties under this Agreement.
10. [Intentionally Left Blank]
11. Liability and Indemnity
11.1 The liability of Techrep Services in respect of a breach of an Implied Term relating to the supply of any goods or services is to the full extent permitted by law limited to, at Techrep Services’ option:
- 11.1.1 in the case of goods, any one or more of the following: the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; and the payment of the cost of having the goods repaired.
- 11.1.2 in the case of services: the supply of the services again; or the payment of the cost of having the services supplied again.
11.2 Subject to any law to the contrary (including the Australian Consumer Law) and clause 4.
- 11.2.1 The Customer agrees that Techrep Services’ (and any upstream provider’s) maximum aggregate liability in relation to any claim, loss or damage (including without limitation any claim, demand, action, expense, cost, loss, liability, proceeding (including reasonable legal costs)), whether arising under or in relation to this Agreement (including without limitation a dispute as to breach or termination of this Agreement), any tortious act or omission (including without limitation negligence) or under common law or statute, is limited to the Charges actually paid by the Customer in the six months immediately prior to the relevant event occurring.
- 11.2.2 the parties exclude any term, condition, warranty or representation which is not expressed in this Agreement (other than an Implied Term).
- 11.2.3 in no event will a party (including its upstream provider (or its or their respective affiliates, directors, officers, employees, agents, resellers or suppliers)) be liable to the other party or to any other person for any indirect, special, incidental, consequential, punitive or other loss or damage, including loss of profit or loss of data, cost of procurement of substitute goods or services arising out of the use or inability to use any goods or services, whether based in warranty, contract, tort or other legal theory and whether or not such party was advised of the possibility of such damages, in relation to the subject matter of this Agreement.
11.3 Subject to any law to the contrary, the Customer:
- 11.3.1 acknowledges and agrees that all products and services supplied under or in relation to this Agreement are not suitable for (and are not supplied for the purpose of) supporting any application which needs continuous or fault free service.
- 11.3.2 is responsible for making its own assessment and satisfying its own requirements as to whether it needs continuous and fault free services.
11.4 The Customer acknowledges and agrees that
- 11.4.1 Techrep Services shall not be obliged to supply any goods or services on any terms more favourable to the Customer than the terms on which such goods or services are supplied to Techrep Services.
- 11.4.2 Techrep Services may at any time impose on the Customer any term, condition, warranty, limitation or exclusion which Techrep Services’ upstream supplier imposes on Techrep Services.
- 11.4.3 if Techrep Services’ upstream supplier increases the price at which it supplies any necessary or relevant goods or services to Techrep Services, Techrep Services may (subject to consultation with the Customer) alter any applicable charges to reflect such increase.
- 11.4.4 Techrep Services may immediately suspend or terminate this Agreement without any liability to the Customer if for any reason Techrep Services no longer acquires any necessary or relevant goods or services from an upstream supplier.
11.5 The Customer must indemnify and save harmless Techrep Services and its related bodies corporate and their respective officers, employees, contractors and agents (collectively the “Indemnified Parties”) from any claim, loss, injury, damage, fine, penalty, liability, costs or expenses whatsoever suffered or incurred by the Indemnified Parties arising from or in connection with:
- 11.5.1 any breach of, or failure to comply with the terms of, this Agreement by the Customer (including any Customer User).
- 11.5.2 any physical damage to the Indemnified Party’s network or other physical damage to property or persons caused by the Customer or any person having access to its use of any goods or services (including any Customer User) (a “permitted user”).
- 11.5.3 the misuse of any Product or Service by the Customer or a permitted user.
- 11.5.4 the reproduction, broadcast, use, transmission, communication or making available of any material by the Customer or a permitted user, using a Product or Service.
- 11.5.5 any alleged breach of a person’s rights (including, but not limited to, defamation and intellectual property rights or privacy) by a communication, broadcast or transmission, made available by means of a Product or Service by the Customer or a permitted user.
- 11.5.6 any equipment or a facility owned or controlled by the Customer which causes a fault in, or interferes with, the operation of any system owned or operated by Techrep Services.
11.6 The Customer acknowledges and agrees:
- 11.6.1 the Machship System is intended to facilitate the creation, management and booking of consignments. However:
- (i) Techrep Services and its related bodies corporate are independent of freight providers and do not provide freight services.
- (ii) neither Techrep Services nor its related bodies corporate are involved in the consignment of goods.
- 11.6.2 the Customer and the freight provider(s) chosen by the Customer are solely responsible for:
- (i) the consignment (including choosing, classifying, verifying, labelling, documenting, packing, loading, storing, transporting, unloading, receipt and transfer) of all goods, including Dangerous Goods.
- (ii) ensuring that they comply with all Dangerous Goods Laws.
- 11.6.3 the Customer must not use any Product in relation to the transportation of any good or substance described as “goods too dangerous to be transported” (or similar description) under Dangerous Goods Laws.
- 11.6.4 the Customer must fully indemnify and defend Techrep Services and its related bodies corporate and their respective officers, employees, contractors and agents (collectively the “Indemnified Parties”) from any claim, loss, injury, damage, fine, penalty, liability, costs or expenses whatsoever suffered or incurred by the Indemnified Parties arising from or in connection with:
- 11.6.5 a failure to strictly comply with this clause 0
- 11.6.6 all acts and omissions of it, Customer Users and its freight providers in relation to the consignment (including choosing, classifying, verifying, labelling, documenting, packing, loading, storing, transporting, unloading, receipt and transfer) of all goods, including Dangerous Goods.
- 11.6.7 Dangerous Goods Laws.
11.7 All indemnities and limitations or exclusions of liability contained in this Agreement survive termination of this Agreement.
12. Data Backup and Security
12.1 The level and degree of data backup and security measures that Techrep Services takes in relation to any single customer depend upon the service options chosen by that customer; each customer must play an active role in determining and maintaining its own data backup and security. The Customer must ensure that appropriate data backup and security measures are taken in relation to the Customer’s data (including Customer Data), having regard to the criticality of the data, including using appropriate firewall and encryption technologies, applying latest security patches, disabling any unnecessary ports, routine backup, having multiple backups and/or redundant backups, archiving the Customer’s data, and conducting regular security audits.
12.2 Subject to the service options that the Customer has selected, Techrep Services aims to comply with peer industry practice in relation to data backup and security, including in relation to: regular rotating backups; firewalls; encryption; redundancy; access control; and intrusion detection and prevention. Notwithstanding these efforts, however, the Customer acknowledges that servers connected to a network, and particularly those connected to the internet, are subject to security threats and no data is entirely secure and safe from a breach or failure of data backup and security. Accordingly, whilst Techrep Services takes reasonable steps in relation to data backup and security, it excludes all warranties and disclaims to the full extent permitted by law all liability in relation to data backup and security.
13.1 Each party must use the Confidential Information of the other party solely for the purpose of this Agreement and must disclose the Confidential Information of the other party only to each employee, agent or contractor who:
- 13.1.1 has a need to know (and only to the extent that each has a need to know).
- 13.1.2 has been directed to keep the Confidential Information confidential on terms not inconsistent with this clause 13.
13.2 Each party must at its own expense:
- 13.2.1 ensure that at all times it, and the other persons referred to in clause 13.1, safeguard the Confidential Information of the other party from unauthorised use and disclosure.
- 13.2.1 ensure that at all times it, and the other persons referred to in clause 13.1, safeguard the Confidential Information of the other party from unauthorised use and disclosure.
13.3 The obligations of confidentiality under this Agreement do not extend to information that (whether before or after this Agreement is signed):
- 13.3.1 is rightfully known to or in the possession of a party and not subject to an obligation of confidentiality.
- 13.3.2 is public knowledge (otherwise than as a result of a breach of this Agreement).
- 13.3.3 is required by law to be disclosed.
14. Customer’s Warranties
14.1 The Customer warrants to Techrep Services that:
- 14.1.1 the Products and Services are to be used by the Customer solely for the purpose of a business carried on by the Customer and are not to be used by the Customer for any personal, domestic or household use or consumption.
- 14.1.2 it has not relied on any representation made by Techrep Services which is not expressly set out in this Agreement.
- 14.1.3 all information supplied by the Customer in relation to this Agreement is true and correct.
15. Suspension and Termination
15.1 Notwithstanding any provision in this Agreement, all or any part of this Agreement may be immediately suspended or terminated (in Techrep Services’ sole discretion) by Techrep Services:
- 15.1.1 if any charges are not paid in accordance with this Agreement or if the Customer’s payment is refused or dishonoured by the Customer’s nominated financial institution.
- 15.1.2 if there is a significant change or likely significant change in the Customer’s financial position including without limitation bankruptcy, insolvency, a winding-up application or the appointment of a receiver or administrator.
- 15.1.3 if the Customer breaches any provision of this Agreement and (in the event of a remediable breach) such breach is not remedied within 14 days of written notice from Techrep Services.
- 15.1.4 if the Customer (being a natural person) dies or (being a company) is wound up or (being a partnership or association) is dissolved.
- 15.1.5 if the Customer (or any related body corporate or any associate of the Customer) breaches any other agreement with Techrep Services (or any related body corporate or any associate of Techrep Services).
15.2 Techrep Services reserves the right to suspend the Services in an emergency if Techrep Services considers it necessary to do so or for any other reasonable reason.
15.3 Techrep Services may immediately terminate this Agreement if this Agreement is suspended for a continuous period of 14 days or more.
15.4 For the avoidance of doubt, any recurring or fixed fees or charges under this Agreement shall continue to accrue during the pendency of any suspension of this Agreement.
15.5 The exercise by Techrep Services of its right to suspend all or any part of this Agreement shall be without prejudice to its right to terminate all or any part of this Agreement.
16.1 The Customer consents to Techrep Services, its employees and agents making such enquiries as it deems necessary to investigate the creditworthiness of the Customer from time to time including without limitation the making of enquiries of persons nominated as trade referees, the bankers of the Customer or any other credit providers (the “information sources”) and the Customer hereby authorises the information sources to disclose to Techrep Services such information concerning the Customer which is within their possession and which is requested by Techrep Services. The Customer also consents to Techrep Services obtaining a credit report from a credit reporting agency containing personal information (as well as information concerning commercial credit worthiness and activities) for the purpose of assessment by Techrep Services of the Customer’s creditworthiness or for the purpose of the collection of payments which are overdue in respect of any credit provided by Techrep Services, as permitted under the Privacy Act 1988 (Cth).
16.2 The Customer authorizes Techrep Services to provide personal information to its suppliers to the extent necessary to fulfil its obligations under this Agreement.
16.3 Techrep Services may also collect the Customer’s personal information and use it for the following purposes:
- 16.3.1 to provide information about other goods or services which Techrep Services or any of its related bodies corporate may offer.
- 16.3.2 to disclose to credit reference associations and credit reporting agencies for the purpose of providing services or other credit providers providing services.
- 16.3.3 for purposes related to or arising out of Techrep Services’ provision of services and credit or commercial credit, to the Customer.
16.4 The Customer gives its consent to the types of use of information described in this Agreement.
16.5 The Customer gives its consent to Techrep Services sending electronic messages (including commercial electronic messages) within the meaning of the Spam Act 2003 (Cth), to the Customer.
17. Dispute Resolution
17.1 A party will not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this Agreement (“Dispute”) unless it has complied with this clause.
17.2 A party claiming that a Dispute has arisen must notify the other party, giving details of the Dispute, and setting a meeting time within two weeks from the date of such dispute notice. A party claiming that a Dispute has arisen must do so genuinely and in good faith; otherwise, this clause 17 shall not apply.
17.3 A meeting shall be held between officers of the Customer and Techrep Services who have authority to deal with the Dispute within two weeks of the date of the dispute notice. Any resolution reached at such meeting will be (in the absence of manifest error) conclusive and binding on both parties.
17.4 If the parties are unable to resolve the dispute within twenty-one days from the date of the dispute notice, each party expressly agrees to endeavour in good faith to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (“ACDC”) on the basis that each party shall bear its own costs of such mediation, before having recourse to arbitration or litigation.
17.5 The mediation is to be conducted in accordance with ACDC Mediation Guidelines which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and which terms are deemed incorporated.
17.6 The parties agree to keep a mediation arising out of this Agreement including the subject matter of the mediation and the evidence heard during the mediation, confidential.
17.7 Despite the existence of a Dispute, each party must continue to perform its obligations under this Agreement, save only that the Customer is not obliged to make payments for the particular Products or Services under Dispute until the procedures in this clause 17 have been complied with.
18.1 During the Restraint Period, neither party shall without the other party’s consent solicit for employment, either directly or indirectly, any person who is employed or contracted by the other party.
19.1 The Customer grants Techrep Services a licence to use the Customer’s name and logo for the purpose of indicating that the Customer is a customer of Techrep Services, provided that Techrep Services shall not use such name or logo as a trade mark.
19.2 Where a party (the “firstmentioned party”) is required (whether under this Agreement or otherwise) to return data or information to the other party, without limiting:
- 19.2.1 the primary obligation of the firstmentioned party to return such data or information.
- 19.2.2 the firstmentioned party’s obligations under clauses 13.1 and 13.2.1, the parties acknowledge that the firstmentioned party shall be entitled to retain such copies of such data or information as are necessary for data archival, risk management, legal or regulatory compliance purposes.
19.3 Any provision which by its nature would survive termination or expiry of this Agreement (including without limitation any exclusion or limitation of liability or indemnity in this Agreement) shall survive termination or expiry of this Agreement.
19.4 The forbearance on the part of a party from exercising any right under this Agreement (including without limitation any right to suspend or terminate all or any part of this Agreement) on the first date Techrep Services is entitled to do so shall not constitute any waiver of Techrep Services’ rights under this Agreement.
19.5 Techrep Services is not obliged to review or monitor any of the Customer’s use of any Product or Service (including Customer Data), although it may do so if permitted or required by law.
19.6 Techrep Services will not be responsible for any delay or failure to perform its obligations under this Agreement caused by any act beyond its control including without limitation acts of God, wars, strikes, natural disasters, failures of any other provider or network operator’s services and interruptions to power supply.
19.7 This Agreement contains the entire understanding and agreement between the parties as to its subject matter. All previous negotiations, understandings, representations warranties (other than warranties set out in this Agreement), or commitments in relation to the subject matter of this Agreement are superseded by this Agreement and shall be of no force or effect whatever and no party shall be liable to any other party in respect to those matters. No oral explanation or information provided by any party to another shall affect the meaning or interpretation of this Agreement or constitute a collateral agreement, warranty or understanding between the parties.
19.8 The Customer must not assign or purport to assign any of its rights or obligations under this Agreement without the prior written consent of Techrep Services. Techrep Services may assign or novate any of its rights or obligations under this Agreement and the Customer shall be deemed to have consented to such assignment or novation.
19.9 If any clause or part of this Agreement is held to be void, illegal or unenforceable for any reason, it shall be deemed to be severed from this Agreement without affecting any other clause or part of this Agreement.
19.10 Techrep Services may sub-contract its obligations under this Agreement.
19.11 The Customer and Techrep Services agree that the laws of Victoria, Australia shall govern this Agreement and each party irrevocably submits to the jurisdiction of Victoria courts and tribunals.
19.12 Each person who signs this Agreement on behalf of a party warrants to the other party that he or she is duly authorized to sign this Agreement in that capacity.