Terms And Conditions: TW Freight
1. GRANT OF LICENCE/ RIGHT TO ACCESS
- The Client and its Permitted Users agrees, warrants and accepts that the right to use the Software is restrictive and Client and Permitted Users must not:
- use the Software and Documentation for any purpose or in any manner other than as set out in his Agreement;
- use the Software and Documentation in any way that could damage the reputation of the Service Provider, or the goodwill or other rights associated with the Software;
- upload any Client Data or any content, data or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy or right of publicity, hateful, or racially, ethnically or otherwise Objectionable;
- license, sell, rent, lease, lend, transfer, outsource, sublicense or otherwise provide access to the Software or Documentation to a third party or utilise the Software or Documentation for the benefit of a third party permit any third party to use the Software;
- reproduce, make error corrections to or otherwise modify, copy or adapt the Software or the Documentation or create any derivative works based upon the Software or the Documentation;
- de-compile, reproduce, decipher, mirror, disassemble or otherwise reverse engineer the Software or permit any third party to do so; or
- modify or remove any copyright or proprietary notices on the Software or the Documentation or otherwise attempt to access, imitate, derive or discover the source code thereof or permit any third party to do so.
- The Client must procure each Permitted User’s compliance with clause 1(b) and any other reasonable condition notified by the Service Provider to the Client. A breach of any term of the Agreement by the Client’s Permitted Users is deemed to be a breach of the Agreement by the Client.
- The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Software and Documentation, including to use, store and input Data into, and process and distribute Data.
- The Client accepts that any breach of Clauses 1 and 2 shall entitle the Service Provider to immediately terminate this Agreement without prejudice to its rights in respect of prior or continuing breaches of the copyright or the misuse of the Confidential Information of the Service Provider and such termination shall not relieve the Client of its obligation to pay the Fees accrued and due for the entire term of the Agreement.
2. ACCESS RIGHT AND RIGHT TO RESTRICT
- Access to the Software and Documentation is subject to the payment of the Fees and access will de-activate automatically on non-payment of the Fees.
- This Access Right entitles the Client to:
- receive a Registration Key which will grant the Client access to the Software together with the necessary Documentation for use by the Client; and
- use the Software in accordance with the provisions of this Agreement.
- For the purpose of this Agreement, “use” shall mean access to and utilisation of the Software for the processing of instructions or statements contained in such Software.
- Without limiting any other right or remedy available to the Service Provider, the Service Provider may restrict or suspend the Client’s access and/or delete, edit or remove any relevant Data if the Service Provider considers that the Client (including any of the Permitted Users) has:
- undermined, or attempted to undermine, the security or integrity of the Software; or
- used, or attempted to use, the Service for improper purposes; or in a manner, other than for normal operational purposes or in violation of clause 1; or
- transmitted, inputted or stored any Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
- otherwise materially breached the Agreement and the breach has not been remedied in accordance with clause 12.
3. INITIAL SET-UP
- Initial Set-Up of the Software on the Initial Set-Up date will proceed only upon receipt of:
- a duly executed Sales Order Confirmation by the Client; and
- the full payment of the Fees as set out in the Sales Order Confirmation on the Effective Date.
- Initial Set-Up will commence on the agreed Initial Set-Up Date. The Client will have five (5) Business Days from the date of completion of the installation (as notified by the Service Provider) to complete testing and to provide the Service Provider with written notice of any Defect in the Software as identified by the Client (Reportable Errors). The Service Provider will, for no charge to the Client, rectify such Reportable Errors. A failure to report a Reportable Error within the time frame set out in this clause means that the Reportable Error will not be addressed by the Service Provider. For the avoidance of doubt, the Service Provider is not under any obligation to rectify any error or defect in the Software which is not a Reportable Error. Nothing in this Agreement prevents the Service provider from rectifying any Reportable Errors later.
- Following rectification of the Reportable Errors (if any) by the Service Provider, the Service Provider will notify the Client that the Software has been fully set up after which initial training will commence.
4. INTELLECTUAL PROPERTY RIGHTS
- The Service Provider retains ownership of the Intellectual Property Rights, and nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
- The Client acknowledges that the Service Provider owns all Intellectual Property Rights in the Software and Documentation, including all corrections, fixes, enhancements, updates, improvements, inventions, designs and modifications to all such materials and technology (including the data, methodologies and concepts therein) and related materials and all derivatives of the foregoing.
- The Client must not directly or indirectly do anything that would or might invalidate or put in dispute the Service Provider’s title in the Software or any of the Service Provider’s registered or unregistered trademarks (Trademarks).
- The Client must comply with the Service Provider’s reasonable usage guidelines and directions with respect to the Software and the Trademarks as notified to the Client from time to time.
5. DATA AND PRIVACY
The term of this Agreement begins on the Effective Date and will continue for a period of three (3) months (Initial Term) and shall thereafter continue for successive 3-month periods (Renewal Term), unless terminated pursuant to clause 12. The Service Provider may implement revised pricing for any Renewal Term by giving written notice of the new pricing to Client at least sixty (30) days prior to the commencement of a Renewal Term and the pricing will apply to the Renewal Term unless Client provides written notice of non-renewal in accordance with clause 6(g). Collectively the Initial Term and each Renewal Term (if any) constitute the “Term.”
6. FEES AND PAYMENT
- Fees: The Sales Order Confirmation is only valid for a period of fourteen (14) Business Days from the Issue Date. Payment of the Fees as set out in the Sales Order Confirmation must be paid on the Effective Date before the Initial Set-Up will commence. The Client covenants to pay to the Service Provider all the Fees as set out in the Sales Order Confirmation and invoiced to the Client in accordance with the terms set forth in this Section 6.
- Installation Fee / Initial Set-Up Fee: The Service Provider shall be entitled to a non-refundable Initial Set-Up Fee as set out in the Sales Order Confirmation, which Fee must be paid in full by the Client on the Effective Date, before the Initial Set-Up shall commence. The Service Provider shall be entitled to charge a separate, non-refundable fee for online training (Initial Training Fee), which Fee must be paid in full by the Client on the Effective Date before the Initial Set-Up will commence.
- Rental Fee: The Service Provider shall charge a non-refundable Rental Fee for the use of the Software, as set out in the Sales Order Confirmation which Rental Fee is due and payable by the Client three (3) months in advance. The Client must pay the Rental Fee in full at least seven (7) days before the Registration Key expires to ensure continued Service.
- Related Services Fee: Where the Sales Order Confirmation provides that a Related Service Fee is payable in relation to any specific Service, that Related Service Fee at the rate as specified in the relevant Sales Order Confirmation, is payable within 20 days of the end of the calendar month in which the invoice is provided to the Client by the Service Provider.
- Invoicing and payment: The Service Provider will provide the Client with valid GST tax invoices on the dates set out in the Sales Order Confirmation, or if there are none, monthly in arrears for the Fees due in the previous month. All Fees and charges are inclusive of all taxes, (including income tax) duties or such other additional sums including, (but not limited to) Customs, Import Duty or Sales Tax, but excluding GST. There is an administration fee payable on all rental invoices, which will be credited back to the Client if the Rental Fee payment is received seven (7) days after receipt of the invoice by the Client. The Client must pay the Fees:
- within 20 days of the end of the calendar month in which the invoice is provided to the Client by the Service Provider; and
- electronically in cleared funds without any set-off or deduction.
- Overdue amounts: The Service Provider may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the Service Provider’s primary trading bank as at the due date (or, if the Service Provider’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus two percent (2%) per annum.
- Increases: By giving at least (30) days’ notice, the Service Provider may increase the Fees and if the Client does not wish to pay the increased Fees, it may terminate the Agreement on no less than ten (10) days’ notice, provided the notice is received by the Service Provider before the effective date of the Fee increase.
7. SUPPORT AND MAINTENANCE
- Software maintenance support services (Support) are included in the Fees and will be provided by the Service Provider between 08:30 and 17:30 Monday to Friday (excluding public holidays) in the relevant jurisdiction of the principal place of business of the Service Provider. Support is limited to:
- reports of errors and fixes; as notified by the Client;
- updated patches, and minor versions of the Software, as they become available;
- corrections to any standard program which does not perform, excluding programs modified for the Client by parties other than the Service Provider;
- a reasonable amount of telephone and email support; and
- installation of any changes to Documents, which will be provided by e-mail, phone, remote access, or on-site visits.
- Support does not include:
- chargeable professional services such as education, any training or re-training, installation or upgrade assistance, systems analysis and programming, unless specified in any covering documentation;
- any hardware and network support;
- maintenance required as a result of loss or damage caused directly or indirectly by the Client’s error or omission;
- travelling time or associated expenses, unless explicitly agreed to in writing between the Parties;
- re-installation of the Software after any malfunction as a result of any action by the Client or any third party acting on behalf of the Client;
- writing or modifying documents or specialised reports for the Client;
- writing or modifying specialised SQL queries for the Client;
- managing a Client’s email server or tracking messages through their email system; or
- any other maintenance requests not covered under clause 7(a).
- No obligation after-hours support is available, subject to the rates of the Service Provider.
- Each Party warrants that:
- it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting Party;
- it will comply with all Relevant Law;
- it will not infringe any person’s rights (including Intellectual Property Rights and Moral Rights); and
- neither it nor any of its officers, employees, agents, subcontractors or any person acting on its behalf has offered, given or agreed to give any person any inducement or reward (or anything which might be considered an inducement or reward) in connection with the Parties entering into this Agreement.
- the Service Provider warrants that it:
- will use reasonable care and skill in providing the Service; and
- will use reasonable commercial endeavours in accordance with good industry practice to keep the Software free of viruses and other harmful code;
- has the full power and right to grant to the Client each of the software licenses outlined in this Agreement
- the Client warrants that it will comply with the restriction of use and warranties as set out in the Agreement.
- Except as specifically provided in this section, and to the maximum extent permitted by Relevant Law, the Service Provider disclaims all warranties, whether express, implied or statutory, including any warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, reliability or security standard or non-infringement or un-interruption. The Service Provider makes no warranty that the Software or any information or Data accessed or stored therein will meet the Client’s requirements or be accurate, complete, error-free, reliable, or available or that the use of the Software will fulfil or meet any statutory role or responsibility of the Client. To the extent that a particular jurisdiction does not allow for the exclusion of a warranty, that warranty will be limited to the minimum period of time required by law starting as of the Effective Date, and the invalidity of the disclaimer will not affect any other disclaimer or limitation contained in this Agreement.
- The Client furthermore agrees that it is relying entirely upon its own judgment in entering into this Agreement and not upon any warranty or other representation either expressed or implied by the Service Provider that the Software is fit for the purpose as required by the Client or for any particular purpose.
- The Client acknowledges that the Service Provider may require access to the Data to exercise its rights and perform its obligations under the Agreement; and to the extent that this is necessary, the Service Provider may authorise a member or members of its personnel to access the Data for this purpose.
- The Client shall arrange all consents and approvals that are necessary for the Service Provider to access the Data as described in clause 9(a).
- The Client acknowledges and agrees that the Service Provider may:
- use Data and information about the Client’s and the Client’s end-users’ use of the Service to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
- use Analytical Data for the Service Provider’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights.
- The Service Provider’s rights under clause 9(c) above will survive termination or expiry of the Agreement; and title to, and all Intellectual Property Rights in, Analytical Data is and remains the Service Provider’s property.
- If the Client provides the Service Provider with ideas, comments or suggestions relating to the Service or Software (Feedback), all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Service Provider; and the Service Provider may use or disclose the Feedback for any purpose.
- A Party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
- A Party may:
- use the Confidential Information of the other Party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
- disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
- Each Party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other Party’s Confidential Information whilst it is in the receiving Party’s possession or control.
- Each Party must return, or at the other Party’s option destroy, all Confidential Information of the disclosing Party in the receiving Party’s possession or control, on the earlier of the Service Provider’s request on termination of this Agreement for any reason.
11. LIABILITY AND INDEMNITIES
- To the fullest extent permitted by law, the Service Provider shall not be liable for any lost profits, lost savings, loss of reputation, loss of goodwill, loss of Data, interruption of business or for any indirect, incidental, punitive, special or consequential loss or damages whatsoever, under, arising out of or in connection with this Agreement, the Software and Documentation or any services provided by the Service Provider or the use thereof whether or not such damages are based on tort (including negligence), warranty, contract or any other legal theory – even if has been advised, or is aware, of the possibility of such damages. This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, the Service Provider limits its liability in respect of any claim to, at the Service Provider’s option, in the case of Services:
- the supply of the Services again; or
- the payment of the cost of having the services supplied again.
- The Client agrees to defend, indemnify and hold harmless the Service Provider from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, fines, late fees, cancellation fees and expenses (including attorney’s fees) arising directly or indirectly from:
- the Client’s use of the Software and Documentation (or any part thereof);
- breach of these Terms and Conditions by the Client;
- any damage of any sort, whether direct, indirect, special or consequential, that the Client may cause to any third party which relates to the Clients use of (or inability to use) of the Software and Documentation;
- the violation by the Client of any third party intellectual property rights, privacy rights or other rights through the Client’s use of the Software and Documentation; and
- the Client’s violation of any Relevant Law.
A Party may terminate this Agreement by written notice to the other if any of the following events has occurred in respect of the other Party:
- a material breach of this Agreement which is not remediable or if capable of remedy, where the other Party fails to remedy within fourteen (14) days of written notice; or
- an Insolvency Event occurs; or
- pursuant to clauses 1(e), 6(g) and 14(h).
13. CONSEQUENCES OF TERMINATION
If this Agreement is terminated or expires for any reason, then, in addition, and without prejudice to any other rights or remedies available:
- the Parties are immediately released from their obligations under the Agreement except for those obligations in clauses 4, 6, 8, 9, 10, 11 and 14 and any other obligations that, by their nature, survive termination;
- each Party retains the claims it has against the other;
- the Clients right to access and use the Software and the Trademarks immediately ceases, and all right and licences granted under this Agreement immediately terminates; and
- the Client must immediately pay to the Service Provider all arrears or fees, charges or any other payments arising in respect of the Software, this Agreement or otherwise, and any costs and expenses including legal and other fees incurred by the Service provider in relation to such arrears as well as any costs or expenses incurred as a result of such termination.
- The Client must not assign, sublicence or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of the Service Provider (at the Service Provider’s sole discretion).
- Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.
- If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
- Each Party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
- This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no Party has relied on any representation made by or on behalf of the other.
- This Agreement may be amended only by a document signed by all Parties.
- A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.
- A Party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a force majeure event, provided that the Party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation. Without limiting any other right to terminate under this Agreement, if a force majeure event affects a Party’s performance under this Agreement for more than sixty (60) consecutive days, the other Party may immediately terminate this Agreement by written notice.
- This Agreement is governed by the laws of the country of principal place of business of the Service Provider and each Party submits to the jurisdiction of the courts of such country.
- A notice given by a Party under the Agreement must be delivered to the other Party via email using the email address set out in the relevant Statement of Work and/or Pricing Schedule or otherwise notified by the other Party for this purpose.
- The Service Provider is granted a limited right during the term of the Agreement to use the names, images, logos, trademarks, service marks or any other Intellectual Property of the Client in any advertising, marketing, promotional material, publicity, press release, presentation or proposal; or to express or to imply any endorsement of the Service Provider or its equipment or services by any member of the Client.
15. DEFINITIONS AND INTERPRETATIONS
Agreement means the Statement of Work and/or Pricing Schedule read together with the Terms and Conditions.
Affiliate with respect to any legally recognisable entity, any other entity Controlling, Controlled by, or under common Control with such entity. “Control” means direct or indirect (i) ownership of more than fifty percent (50%) of the outstanding shares representing the right to vote for members of the board of directors or other managing officers of such entity, or (ii) for an entity that does not have outstanding shares, more than fifty percent (50%) of the ownership interest representing the right to make decisions for such entity. An entity will be deemed an Affiliate only so long as Control exists.
Business Day means Monday to Friday and excludes all public or other holidays as recognised in the relevant jurisdiction of the Service Provider.
Confidential Information means all information provided by one Party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably to be considered confidential based on its content, nature or the manner of its disclosure, but excluding: (a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement; and (b) information developed independently by a Party.
Data means (a) all data, content, text, drawings and information and other material, in whatever form that information may exist which: (i) are owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Software, including any Personal Information of the Client as defined in Relevant Law.
Defect means a genuine error, fault or failure within the source code of the Software which prevents the Software from operating as intended and excludes any other defect which may cause the Software to malfunction.
Documentation means any and all proprietary documentation made available to the Client by the Service Provider for use with the Software, including any documentation available online.
Effective Date means the day of acceptance of the Agreement by the Client.
Fees mean, in respect of each Service, the fees set out in the Statement of Work and/or Pricing Schedule relating to that Service, as updated from time to time in accordance with clause 6.
Force Majeure Event means any event beyond the control of the relevant Party, including, without limitation, any act of God; any action or inaction of any government or competent authority; strike; failure, or malfunction of power; storm; fire; accident; an outbreak of hostilities (in all cases whether war has been declared or not) or an escalation of existing hostilities; act of terrorism; closing of any stock exchange; a general moratorium on banking activities or material disruption in commercial banking; and any material or fundamental changes (or escalation of a material or fundamental change) in national or international, financial, economic or political conditions affecting capital markets or financial markets.
GST means the relevant tax law in the applicable jurisdiction of the principal place of business of the Service Provider.
Initial Set-Up means the initial installation and configuration of the Software by the Service Provider including the initial online training provided after the installation on the use of the Software as provided by the Service Provider to the Client.
Insolvency Event means an entity: (a) enters into receivership or liquidation; (b) is removed from the relevant companies register or has a liquidator, receiver, administrator or statutory manager appointed; (c) becomes (or is deemed to be) insolvent or is unable to pay its debts when they become due or is presumed under any applicable Relevant Law to be unable to pay its debts; or (d) makes or proposes any assignment to, or enters into any arrangement for the benefit of, all or some of its creditors (other than for the purposes of a solvent restructuring with written notice to the other Party).
Intellectual Property Rights includes copyright and all rights existing anywhere in the world and databases, confidential information, know-how, all, copyrights, inventions, trade secrets, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning and includes any enhancement, modification or derivative work of the Intellectual Property.
Moral Rights has the meaning given under the Copyright Act in the country of jurisdiction of the Service Provider and includes any similar rights existing in other countries.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
Permitted Users means those personnel of the Client who are authorised to access and use the Licensed Software on the Client’s behalf and for which a licence for the Licensed Software has been reserved as set out in the Statement of Work and/or Pricing Schedule.
Registration Key means the unique number provided by the Service Provider to the Client to access the Software.
Related Services means any related service described in a Statement of Work and/or Pricing Schedule or any further services that the Service Provider agrees to provide to the Client under the Agreement.
Relevant Law means any statute, ordinance, code or other law including regulations under them and any code of practice, membership rules or standards issued by relevant regulators or industry bodies, whether or not having the force of law, applicable to this Agreement, the Confidential Information and any other obligations performed under this Agreement.
Service means the provision of Licenced Service/s, Subscription Service/s and/or any Related Service/s as described in the Statement of Work and/or Pricing Schedule.
Service Provider means the Service Provider as fully set in in the Statement of Work and/or Pricing Schedule.
Software means the Software as set out in the Sales Order Confirmation as owned by the Service Provider and delivered to the Client by the Service Provider pursuant to this Agreement.
System means the operating computer system of the Client.
Third Party means, without limitation, any person (juristic or natural), who is not a party to this Agreement.
Use means the limited right of use of the Service as set out in clause 2 of these Terms and Conditions.
15.2 Interpretation: Unless the context requires otherwise:
- a reference to a person includes a corporation or any other legal entity;
- the singular includes the plural and vice versa;
- headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
- the term “includes” (or any similar term) means “includes without limitation”; and
- a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it;
- a reference to dollars or $ is the local currency unless expressly stated otherwise; and