This Agreement is made between the parties listed below:
Vanua Investments Pty Ltd (ACN 136 408 216) trading as trackapprovals.com of Unit 1 B2, 335 Hillsborough Road,Warners Bay, New South Wales, Australia, 2282.
You, being the person described in the Confirmation Statement
By accessing or using the Portal or the Software, You are indicating that you agree to the terms and conditions set out in this Agreement. If you do not agree with these terms and conditions, You must not access or use the Portal or the Software.
These terms and conditions of use explain Our obligations as a service provider and Your obligations as a customer.
This Agreement is effective as of the Effective Date.
If You are entering into this Agreement on behalf of a company or legal entity, You represent that you have the authority to bind such entity to these terms and conditions, in which case the terms You and Your will also refer to that entity.
1. Definitions and Interpretation
1.1. In this Agreement, unless the contrary intention appears:
Agreement meansthis agreement between You and Us for the access to, and use of, the Portal and the Software,and which incorporates the Confirmation Statement.
Business Day means a day that is not a Saturday, Sunday or public or bank holiday in New South Wales, Australia.
Confirmation Statement means the online document made available by Us to You during the subscriptionordering process, or as emailed to You, or as otherwise agreed between You and Us, that specifies Youridentity and other important matters relating to thisAgreement.
Customer means the person(s) registered to access and use the Portal and the Software and, where the context permits, includes any entity on whose behalf aperson registers to use the Portal and the Software.
Customer Materials means all data and materials that originate from You and which areuploaded to, stored on, processed using or transmitted through the Portal or the Software by You or on Your behalf or by any person or application or automated system using Your account.
Effective Date means the date upon which You agree to the terms and conditions of this Agreement, or the date that We first provide You with access to the Portal and the Software, whichever is the earlier.
a. the same as in the GST Law; and
b. any other Australian goods and services tax, or any tax applying to this Agreement in a similar way.
GST Law meansthe A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means all intellectual property rights, whether or not now existing, both registered and unregistered, protected by statute, common law or equity in Australia or elsewhere in the world, including copyright, trade marks, designs, patents, patentable information, circuit layouts and plant varieties, licences and other rights to possess and use the works and other subject matter of intellectual property rights, but excluding moral rights.
Portal means the internet portal that is owned and operated by Usand that is or will be made available to You as a service via the Website pursuant to thisAgreement.
Reserve Bank Cash Rate means the overnight money market interest rate as set out on the Reserve Bank Website – http://www.rba.gov.au/statistics/cash-rate/
Software means the automated document approval and trackingprograms, and any related documentation,accessible via the Portal.
Subscription Fee means the fee payable by You in accordance with the fee schedule set out on the Website (which We may change from time to time) and in the Confirmation Statement (as updated from time to time as the number of users change). This includes a monthly or yearly amount and is dependant on the number of users selected by You.
Term means the term of thisAgreement commencing on the Effective Date and ending on the date this Agreement is terminated in accordance with paragraph 10.
Trial Periodmeans the first 30 days of Your subscription commencing from the Effective Date.
Use Information means information or documentation produced by Us and supplied or made available to You on the Website or the Portal specifying how to use the Portal and the Software.
Website means the Internet site at the domain www.trackapprovals.com or any other site operated by Usand notified to You.
We, Our and Us means Vanua Investments Pty Ltd trading as trackapprovals.com.
Vanuameans Vanua Investments Pty Ltd (ACN 136 408 216) trading as trackapprovals.com.
You means the same as Customer. Your has a corresponding meaning.
1.2. In this Agreement, unless the contrary intention appears:
a. the paragraph headings are for ease of reference only and are not relevant to interpretation;
b. a reference to a paragraph number is a reference to all sub-paragraphs;
c. words in the singular include the plural and vice versa;
d. words in one gender shall include all other genders;
e. a reference to a person includes bodies corporate and unincorporated associations and partnerships;
f. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; and
g. monetary references are references to Australian currency.
2. Agreement formation
2.1. The advertising of the Portal and the Software on the Website is an “invitation to treat”, and Your order subscribing to use the Portal and the Software is a contractual offer.
2.2. No contract will come into force between You and Us unless and until We accept Your order in accordance with the procedures set out in this paragraph 2.
2.3. In order to enter into this Agreement, You must take the following steps:
a. select the subscription period and the desired payment option from the Website;
b. set up an account on Our Website and login to that account. Once logged in, You must confirm Your order and consent to the terms and conditions of this Agreement; and
c. submit Your credit card payment details. After payment has been submitted, We will send a Confirmation Statement via email to signify Our acceptance of Your offer.
2.4. This Agreement will continue for the Trial Period and thereafter, unless or until terminated in accordance with paragraph 10.
2.5. The Portal will automatically generate an account and log on details for You that will be sent via email following the Effective Date, thereby giving You access to, and use of, the Portal and the Software.
3. Right to Access and Use Portal and Software
3.1. Subject to the terms and conditions of this Agreement, including the payment of the Subscription Fee, We grant You a limited, non-exclusive, non-transferable, non-sub-licensable right to access and use the Portal and the Software solely for Your internal business operations and in accordance with the Use Information during the Term.
3.2. The right granted by Us to You under paragraph 3.1 is subject to the following limitations:
a. the Portal and the Software may only be used by the named users identified in the Confirmation Statement, providing that You may change, add or remove a named user in accordance with the procedure set out in the Confirmation Statement; and
b. the named users referred to in paragraph 3.2.amay only selected from Your employees, agents or contractors, and:
3.2.b.1. where You are a company, Your officers; and
3.2.b.2. where You are a partnership, Your partners.
3.3. There must be a minimum of 2 named users at all times.
3.4. Except to the extent permitted by applicable law (that cannot be excluded by agreement) or expressly permitted in this Agreement, the right granted by Us to You under paragraph 3.1 is subject to the following restrictions:
a. You must not:
3.4.a.1. sub-license Your right to access and use the Portal or the Software, or allow any unauthorised person to access or use the Portal or the Software;
3.4.a.2. alter, modify, adapt or edit the Portal or the Software;
3.4.a.3. modify or remove any copyright or proprietary notices on the Portal or the Software;
3.4.a.4. create derivative works based on the Portal or the Software;
3.4.a.5. sell, resell, licence, rent, lease, lend or otherwise transfer for value, the use of the Portal or the Software; and
3.4.a.6. reproduce, distribute, sub-license, transmit, give access to, reverse engineer, decompile or disassemble the Portal or the Software.
b. You have no right to access or use the source code of the Portal or the Software either during or after the Term;
c. You must ensure that no unauthorised person will or could access the Portal or the Software using Your account;
d. You must not use the Portal or the Software in any way that causes, or may or could cause, damage to the Portal or the Software or impairment of the availability or accessibility of the Portal or the Software or any of the services available via the Portal or the Software; and
e. You must not use the Portal or the Softwarein any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.5. You must immediately notify Us of any unauthorised use of Your passwords or any other breach of security of which you become aware.
3.6. You must indemnify Us from and against all claims, liabilities, proceedings, costs, damages, losses, or expenses incurred by Us caused by, or in any way connected with, Your use of the Portal or the Software, breach of this Agreement or any negligent or wrongful act by You.
4. Trial Period
4.1. When You sign up for access to, and use of, the Portal and the Software, a Trial Period will commence. During the Trial Period, You can evaluate the Portal and the Software under the defined trial usage conditions, with no obligation to continue to access and use the Portal or the Software.
4.2. No Subscription Fee is payable by You in respect of the Trial Period.
4.3. If You choose to continue using the Portal and the Software after the Trial Period, You will be charged the Subscription Fee from the day that the Trial Period expires.
5. Subscription Fee
5.1. Subject to clause 4.2, You must pay the Subscription Fee to Us by credit card in advance at the times specified in Your Confirmation Statement.
5.2. The Subscription Fee is GST inclusive unless otherwise expressly stated.
5.3. You authorise Us to charge the credit card you provided to Us at the time you placed Your order or as otherwise agreed in writing with Us from time to time.
5.4. You will have no right to any refund of any Subscription Fee paid under this Agreement, including on termination of this Agreement.
5.5. If You do not pay any amount properly due to Us under or in connection with this Agreement, we may:
a. charge You interest on the overdue amount at the rate of 5% above the Reserve Bank Cash Rate which interest will accrue daily and be compounded monthly; and
b. We may suspend access to the Portal and the Software if any amounts due to be paid by You under this Agreement are overdue by more than 7 days.
5.6. You indemnify Us for the full cost of collection of any overdue debt, including legal fees on a full indemnity basis.
5.7. We may vary the Subscription Fee payable from time to time by amending the fee schedule on the Website and notifying You of the change.
6. Warranties and Representations
You warrant and represent to Us that:
6.1. You have the legal right and authority to enter into and perform Your obligations under this Agreement; and
6.2. where You have registered to use the Portal and the Software on behalf of another person, You have the authority to agree to these terms and conditions on behalf of that person and agree that, by registering to use the Portal and the Software, You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of this Agreement, without limiting Your own personal obligations under this Agreement.
7.1. You acknowledge that You are responsible for determining the suitability of the Portal and the Software for Your purposes.
7.2. We do not make any representations or warrant that the Portal or the Software will meet Your particular needs or requirements. Nor do we make any representations or warrant that any use of the Portal or the Software will uninterrupted or error free.
8. Intellectual Property
8.1. You acknowledge that We (or Our licensors) own all Intellectual Property Rights in the Portal and the Software and that, except as expressly specified in this Agreement, You have no licence or right to access or use the Portal and Software.
8.2. We acknowledge that You own all Intellectual Property Rights in the Customer Materials.Youagree to grant to usa royalty-free, non-exclusive licence to use the Customer Materials for the purpose of fulfilling Our obligations to You under this Agreement.
8.3. You grant to Us a royalty-free, non-exclusive licence to reproduce Your trademark, business name or other mark or logo for Your business, for the purpose of advertising that You are a current or past customer of Ours.
8.4. You acknowledge:
a. We are not obliged to maintain backup copies of the Customer Materials; and
b. We, to the extent permitted by law, will not be liable (whether in contract, tort (including negligence), statute or otherwise) for any unauthorised access, misuse,corruption or loss of any of the Customer Materials.
10.1. Without prejudice to any other rights, We may immediatelyterminate this Agreement if:
a. You fail to comply, at any time, with any of the terms and conditions of this Agreement; or
b. You or Your business becomes insolvent, goes into liquidation or has a receiver or manager appointed to any of its assets or if You become or make any arrangements with Your creditors or become subject to any similar insolvency event in any jurisdiction.
10.2. You may terminate this Agreement by notifying Us in writing at any time or by failing to make payment of the next Subscription Fee when due.
10.3. Termination of this Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement, You will:
a. remain liable for any accrued charges and amounts which become due for payment before or after termination; and
b. immediately cease to access and use the Portal and the Software.
10.4. Subject to paragraph 10.5, within 30 days following the termination of the Agreement, We willdelete from the Portal and the Software all Customer Materials.
10.5. We may retain any Customer Materials after the termination of this Agreement if:
a. We are obliged to retain such material by any law or regulation or other rule enforceable against us; or
b. the document in question is a letter, email or similar document addressed to Us.
11.Limitation of Liability
11.1. Subject to any condition, warranty or right implied by, or any statutory consumer guarantee contained in, any law (including the Competition and Consumer Act 2010 (Cth)) which cannot by law be excluded by agreement:
a. We give no warranties, and You have no other rights, apart from those, if any, expressly set out in this Agreement; and
b. all implied conditions, warranties and rights are excluded.
11.2. Where any condition, warranty or right is implied by law, or any statutory consumer guarantee applies, and cannot be excluded, We limit Our liability for breach of, or other act contrary to, that implied condition, warranty or right or statutory consumer guarantee, to the extent permitted by law.
11.3. Subject to the provisions of clauses 11.1 and11.2, and despite any implication arising from any other provisions of this Agreement, We are not, and will not be, liable to You in contract, in tort (including negligence), under any statute (to the extent permitted by law) or otherwise for, or in respect of, any:
a. indirect or consequential loss or damage; or
b. loss of profits, sales, turnover, reputation (or damage to it), production, anticipated savings, goodwill, business opportunities, customers, software or data, or loss of use of any software or data, or loss under, or in relation to, any other contract; in each case, whether of a direct, indirect or consequential nature,suffered by You or any other person and arising out of any breach or other act or omission in connection with this Agreement.
11.4. Subject to this clause 11 and despite any implications arising from any other provisions of this Agreement, Our total liability in contract, in tort (including negligence), under statute (to the extent permitted by law) or otherwise for, or in respect of, any direct loss or damage arising out of any breach or other act or omission in connection with this Agreement, will not exceed the amount of the Subscription Fee paid by You in the immediately preceding 12 months period.
If any part of the Agreement is for any reason unenforceable, that part must be read down to the extent necessary to preserve the Agreement’s operation. If it cannot be read down, it must be severed.
13.1. Any notice given under this Agreement by either party to the other party must be in writing by email and is deemed to have been sent on transmission.
13.2. Notices to Us must be sent to email@example.com or to any other email address notified by Us by email to You.
13.3. Notices to You will be sent to the email address that You provided when setting up Your access to the Portal and the Software.
Unless the contrary intention appears, the Agreement constitutes the entire Agreement between the parties and supersedes all prior representations, agreements, statements and understandings, either verbal or in writing.
15.1. We may change these terms and conditions at any time by posting an updated version of these terms and conditions on the Website. We will notify You whenever an updated version is posted.
15.2. You are responsible for regularly reviewing these terms and conditions. Continued use of the Portal and the Software after any such changes will constitute your consent to such changes.
16.1. The law in force in New South Wales governs thisAgreement. The parties submit to the jurisdiction of the courts of New South Wales.
16.2. If you use the Portal or theSoftware outside of Australia, then local laws may apply. In the event that thisAgreement conflicts with any law under which any provision may be held invalid by a court with jurisdiction over the parties, such provision will be interpreted to reflect the original intentions of the parties in accordance with applicable law and the remainder of the Agreement will remain valid.
16.3. The provisions of paragraph 16 will survive the termination or expiration of this Agreement.
Last updated: SEPTEMBER 2018