Definitions and Interpretation

      1.1  Definitions

      • Acceptance Date: The date when the Customer accepts the Software, as outlined in Clause 5.
      • Business Day: Any day other than Saturday, Sunday, or a public holiday when banks in the State are open for general banking.
      • Commencement Date: The date specified in the Schedule.
      • Confidential Information: Any information that is inherently confidential, except: (a) Information already known to the recipient before disclosure. (b) Information that becomes public through no breach of this agreement.
      • Customer: The party authorized to enter into this agreement as the Licensee.
      • Customer Data: Data provided by the Customer, including but not limited to employee and trade personnel information. 
      • Electronic Communications: Any form of digital communication, such as SMS or emails.
      • GST Law: As defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any amendments.
      • Intellectual Property Rights:  Legal rights over creative works, including copyrights, trademarks, patents, and designs.
      • Licence: The granted right to use the Software under this agreement.
      • Licence Fee: The fee specified in the Schedule.
      • Maintenance Services: Discretionary services provided by the Supplier.
      • Moral Rights: Legal rights related to authorship, including proper attribution and integrity.
      • New Release: Software updates that add new features or improvements.
      • Software: The computer program and related documentation as detailed in the Schedule.
      • Specifications: The set standards outlined in the Manual of Specifications.
      • Supplier: TrackYourKeys Pty Ltd, acting as the Licensor.
      • Update: A software modification intended to fix defects.

      1.2  Interpretation

      1. Singular terms include plural and vice versa.
      2. Headings are for reference only and do not affect interpretation

      2. Definitions and Interpretation

      • The Supplier grants the Customer a non-transferable, non-exclusive licence to use the Software from the Commencement Date.
      • The Customer agrees to pay the Supplier in advance as per the terms of this clause.
      • Payments are processed through a third-party service, and the Supplier is not liable for any related errors or fees.
      • The Supplier will issue invoices monthly or per party agreement. The contract will auto-renew unless terminated under Clause 16.

      3. Conditions of Licence

      • The Supplier guarantees it has the authority to issue the Licence.
      • The Licence is non-transferable and non-exclusive.
      • Only trained personnel may use the Software.
      • Updates, maintenance, and new features are not mandatory but may be provided at the Supplier’s discretion.
      • The Customer may not create security interests over the Software.
      • The Customer must cooperate in diagnosing software issues.
      • The Customer shall provide necessary resources for maintenance services.
      • The Customer must bear telecommunication costs for diagnostics.
      • The Supplier may revoke or suspend the Licence at its discretion.


      4. Data Migration

      • The Customer must provide necessary data to facilitate software implementation

      BACKGROUND

      •  The Supplier is the rightful owner of the Software
      • The Supplier agrees to grant, and the Customer agrees to obtain, a licence to use the Software for business purposes in accordance with the terms of this agreement.


      5. Acceptance

      • The Customer must ensure Software compliance with the Specifications upon installation.
      • The Software is considered unaccepted if it fails to meet Specifications within 10 Business Days.
      • The Supplier will have 14 Business Days to correct defects.
      • If issues persist, the Customer may grant extra time or terminate the agreement.
      • The Software is deemed accepted if it functions as specified within the given period.


      6. Training 

      • The Supplier may provide training online at the Customer’s expense.
      • Training is optional; free user guides are available.
      • Additional training costs will be determined by the Supplier.

      7. Licence Fee

      • The Licence Fee excludes taxes and duties. 
      • Disputed invoice amounts must be settled via the agreement’s dispute resolution process.


      8. Ownership and Intellectual Property Rights

      • The Supplier retains ownership of the Software.
      • Intellectual Property Rights remain with the Supplier.
      • Moral Rights in the Software remain unaffected.


      9. Copies 

      • The Customer may not copy the Software, except for legally permitted instances
      • Backup copies of Customer Data are allowed.
      • All copies must be documented.


      10. Modifications

      •  The Customer may not modify the Software without written consent
      • Approved modifications must follow a submitted written proposal.
      • The Customer indemnifies the Supplier for Intellectual Property violations from modifications.
      • Modified Software remains Supplier property.
      • This agreement applies to all modifications.


      11. Reverse Engineering

      • The Customer is prohibited from reverse engineering the Software, except as permitted by law.


      12. Security

      • The Customer must safeguard the Software from unauthorized access or damage.


      13. Warranties

      • The Supplier guarantees substantial compliance with Specifications for 90 days post-acceptance.


      14. Indemnity and Liability

      • The Supplier warrants the right to grant the Licence.
      • The Supplier indemnifies the Customer against third-party copyright claims, except under certain conditions.
      • Liability is limited to the Licence Fee or specified amount in the Schedule.


      15. Termination

      • The Supplier may terminate this agreement at any time with written notice.
      • Either party may terminate upon insolvency or material breach.
      •  The Customer must destroy all copies of the Software upon termination.
      • The Customer may terminate with 30 days' notice; monthly fees are non-refundable.


      16. Confidentiality

      • Both parties must keep Confidential Information secure.
      • Disclosure is permitted only if legally required.
      • Reasonable steps must be taken to prevent disclosure by employees or contractors.
      • Confidentiality obligations survive contract termination.


      17. Privacy 

      • The Supplier agrees not to use or disclose any Personal Information except as necessary to fulfill its obligations under this agreement. The Supplier must adhere to the Australian Privacy Principles outlined in Schedule 3 of the Privacy Act 1988 (Cth) (or an applicable privacy code approved by the Federal Privacy Commissioner) to the same extent as the Customer would if directly responsible for the relevant act or practice. The Supplier will take all reasonable measures to protect Personal Information from misuse or loss and will return, destroy, orde-identify such information at the Customer’s request or upon termination of this agreement. This clause will remain in effect even after the agreement ends.
      • "Personal Information" refers to information or opinions about an individual, as defined in Section 6 of the Privacy Act 1988 (Cth), that the Supplier collects, uses, discloses, stores, or handles under this agreement.


      18. Customer Data

      • The Supplier assumes no responsibility for the content of Customer Data.
      • The Customer is accountable for the accuracy, quality, and legality of Customer Data and for managing the users who create, access, and use it.
      • The Supplier may permanently delete Customer Data if the Licence Fee remains unpaid for more than 90 days.
      • The Customer may access, use, and modify Customer Data within the Software as specified in the Manual of Specifications.
      • The Customer is solely responsible for backing up and ensuring redundant access to Customer Data, as the Supplier does not bear any responsibility for it.
      • The Supplier will make reasonable efforts to ensure data transmission aligns with industry standards. The Customer is responsible for ensuring compliance with its own operational and legal requirements.
      • The Supplier is not liable for breaches, viruses, corruption, or unauthorized use of Customer Data.
      • Data stored with the Supplier will adhere to general industry standards.
      • The Supplier does not guarantee backups or recovery of specific Customer Data.
      • The Supplier will not sell or distribute Customer Data or personal details to third parties without the Customer's explicit written consent. 


      19. GST

      • Terms defined under GST Law hold the same meaning here unless stated otherwise.
      • In addition to the Licence Fee and other payable amounts (excluding GST), the Customer must: (i) pay the Supplier an amount equal to any GST payable for supplies made under this agreement, and (ii) make such payment either when the Licence Fee is due or within seven days of receiving a tax invoice, whichever is later.
      • The Supplier must provide a tax invoice (or adjustment note) within 28 days of a Customer request.
      • If the Customer overpays GST, the Supplier must apply for a refund and return the amount received, but only after receiving a refund or credit from the Commissioner of Taxation.


      20. General

      • Entire Agreement: This agreement supersedes all previous agreements and constitutes the complete agreement regarding the Software. Any modifications must be in writing and signed by authorized representatives of both parties.
      • Notices: Notices under this agreement must be in writing and sent to the recipient’s designated address. Delivery methods include hand, prepaid letter, or email, with deemed receipt occurring upon delivery, 48 hours after posting, or upon transmission.
      • Assignment: Neither party may assign this agreement without prior written consent from the other party.
      • Governing Law: The agreement is governed by the laws of NSW, Australia, and both parties agree to submit to its jurisdiction.
      • Waiver: Delays or indulgences in enforcing this agreement do not waive rights to enforce future breaches.
      • Variation: Any changes must be in writing and signed by both parties.
      • Severability: If any part of this agreement becomes invalid, it will be severed without affecting the remainder.
      • Dispute Resolution: Any disputes shall be resolved through arbitration as per the Rules for the Conduct of Commercial Arbitrations of the Institute of Arbitrators and Mediators, Australia.


      21. Warranties, Disclaimer, and Remedies

      •  The use of services is at the Customer’s sole risk. TrackYourKeys Pty. Ltd. does not guarantee uninterrupted, accurate, or error-free services and disclaims all express and implied warranties, including merchantability and fitness for a particular purpose.
      • The Customer's sole remedy for service failures is for TrackYourKeys Pty. Ltd. to attempt repairs or provide a refund at its discretion.


      22. Limitation of Liability

      • TrackYourKeys Pty. Ltd. is not liable for any losses, damages, or claims arising from service use, including indirect or consequential losses.
      • Liability exclusions apply regardless of claim type, including contract, tort, or equity.
      • The Customer’s liability will be reduced to the extent of their contribution to any loss.
      • If TrackYourKeys is found liable, its liability is limited to: (i) Replacement, repair, or refund in the case of goods, or (ii) Re-performance or refund for services.


      23. Export Compliance

      • The Customer must not export or re-export the Services in violation of any Australian or applicable international laws.


      24. Miscellaneous

      • If any provision is found invalid, it will be modified or removed to maintain the agreement’s enforceability.
      • This agreement supersedes all previous agreements and modifications must be in writing.
      • No partnership, joint venture, or employment relationship is created.
      • The prevailing party in any enforcement action is entitled to recover costs and legal fees.
      • This agreement is governed by the laws of NSW, Australia.
      • The UN Convention on Contracts for the International Sale of Goods is excluded. 


      25. System Requirements

      • The Services require a modern web browser (Microsoft Edge, Firefox, Safari, or Google Chrome) and a stable internet connection.


      26.  Compliance with Electronic Communications Laws

      • All electronic communications must include an opt-out mechanism and sender contact details.
      • Compliance with disclosure requirements is mandatory.
      • If flagged as spam, the Supplier reserves the right to revoke access.


      27. Electronic Communications and Permissions

      • Only permission-based contact lists may be used.
      • Unsubscribe requests must be processed within five days.
      • Abuse complaints must remain within industry norms, as determined by TrackYourKeys.
      • The Supplier may disable access for violations.


      28. Security

      • The Customer must not attempt unauthorized access or malicious activities.


      29.  Service Availability

      • The Supplier is not liable for service downtime or any resulting damage.


      30. Force Majeure

      • The Supplier is not liable for performance failures due to external factors beyond its control.


      31. Overseas Access

      • The Services comply with Australian and U.S. laws but may not meet legal requirements elsewhere. For inquiries, contact support@TrackYourKeys.com