Terms of Service

Spatula.io

by Fleet ENGINEERING Pty Ltd ACN 167 527 862

 

INTRODUCTION

1.1           Fleet Engineering Pty Ltd ACN 167 527 862 provides the Spatula.io system, comprising web & mobile systems (Spatula).

Important TERMS

A              key definitions

A.1          The following terms are used regularly throughout these Terms of Service and have a particular meaning (additional definitions are found in the General Conditions):

(a)            Account means a registered User account.

(b)            Agreement means these Terms of Service.

(c)            Company means Fleet Engineering Pty Ltd ACN 167 527 862.

(d)            Customer means a customer or other user of an Organisation’s service.

(e)            Driver means an employee or contractor of an Organisation that holds a Driver Account.

(f)              End User means a person or entity that is not an Organisation or a Driver, and holds a registered End User Account or accesses a driver tracking page from the Customer’s account.

(g)            Fee means any fee payable by a User for access to, or use of Spatula.

(h)            Fleet means a fleet of Vehicles.

(i)              Spatula means the:

i                 Web application accessible from app.spatula.io ; and/or

ii               The Company’s published mobile application(s) available from the Apple® App Store®, Google Play® and other mobile application marketplaces.

iii              Driver tracking pages accessed by an End User

(j)              Order means a job order comprising of one or more tasks.

(k)            Organisation means (without limitation) a person, organisation, business or entity that is a User that holds an Organisation Account.

(l)              Personal Information has the same meaning as used in the Privacy Act 1988 (Cth)

(m)           Privacy Policy means Company’s privacy policy as updated from time-to-time, which can be found at https://fleeteng.com.au/privacy/

(n)            Third Party means any person that is not a User.

(o)            User means an Organisation, Driver or End User that uses Spatula.

B              Agreement

B.1          This Agreement governs the use of Spatula by any User and limits the liability of the Company to Users. This Agreement has specific terms of use (in addition to the General Conditions) that apply to:

(a)            Organisations (Item C)

(b)            Drivers (Item D)

(c)            End Users (Item E)

B.2          In addition to any other express or implied consents, by using Spatula the User accepts and agrees to the terms of:

(a)            This Agreement; and

(b)            The Privacy Policy.

C              Organisation terms of use

C.1          The Organisation agrees and accepts that:

(a)            The Organisation is solely responsible for ensuring that its use of Spatula and storage of Personal Information in Spatula is compliant with the local laws of the Organisation and/or the Organisation’s Drivers; and

(b)            The Organisation must ensure that its own privacy policy and other statements about how it handles the Personal Information of Drivers and End Users are accurate in respect of the Organisation’s use of Spatula.

C.2          Spatula may enable an Organisation to:

(a)            Create and manage an Organisation Account;

(b)            Create a record of each Order including information on:

i                 Name of Customer;

ii               Customer contact details;

iii              List of tasks and locations for those tasks;

iv              Other Order attributes;

(c)            Communicate with a Driver including:

i                 Assigning an Order;

ii               Setting a route;

iii              Send and receive documents, notes, images and signatures;

iv              Reviewing Driver status;

v               Updating Order details.

(d)            Monitor Drivers, including live updates of:

i                 Location;

ii               Driver status;

iii              Order status;

iv              Images and documents relative to the Driver;

v               Speed;

vi              Hours used;

(e)            Automate workflow including:

i                 Generating Orders;

ii               Delegating Orders to Drivers;

iii              Generating delivery reports;

(f)              Make estimates of Driver fatigue;

(g)            Create, manage and send notifications to other Users via:

i                 SMS;

ii               Email; and

iii              Spatula;

(h)            Create Driver user Accounts for Spatula and assign permissions and restrictions on that Driver Account relative to the Organisations Account.

(i)              Grant access to End User’s and assign permissions and restrictions on that End User’s access to the information associated with the Organisations Account.

C.3          The Organisation agrees and warrants that:

(a)            It is responsible for the conduct of each Driver connected with the Organisation’s account in relation to an Order.

(b)            To the extent permitted by law the Organisation indemnifies and will hold the Company harmless against all costs, claims damages and expenses for any:

i                 Penalty imposed upon the Organisation;

ii               Injury, illness or death caused to a Driver, End User or Third Party;

iii              Damage to the property of any Driver or Third Party;

iv              Claim of infringement of intellectual property rights made by a Third Party;

v               Claim of breach of confidentiality by any Third Party;

As a result of the Organisation’s use of Spatula.

(c)            It shall be directly responsible to each of its Customers whose Orders are managed using Spatula. In no circumstance will the Company be responsible to a Customer, End User or a Third Party for an Organisations use of Spatula.

(d)            It shall not store or record any Personal Information that it can access through Spatula unless it is fully compliant with the Privacy Act;

(e)            It shall ensure that all information that it makes available through Spatula is accurate and up to date, including (but not limited to) information supplied for:

i                 Creating an Account;

ii               Creating records;

iii              Updating records;

iv              Notifying Users; and

v               Any other information that may be accessed by the Organisation or a Driver;

(f)              It shall ensure all personal information it has access to through its use of Spatula is kept and used in accordance with applicable privacy laws in the jurisdiction;

(g)            It shall only use Spatula for its intended purpose as set out in this Agreement;

(h)            It shall comply with all anti-SPAM legislation in its jurisdiction;

(i)              It’s licence to use Spatula, as provided for in the General Conditions, is subject to the payment of all necessary Fees.

(j)              The Company makes no representation or warranty as to the accuracy of any estimate provided on Driver fatigue via Spatula. This feature is provided as a rough guide only, and is not intended as a definitive statement on a Driver’s ability to safely operate a Vehicle. The Organisation remains responsible for ensuring that it exercises all due care and diligence in monitoring the fitness of each Driver associated with the Organisation’s Account to operate a Vehicle.

C.4          Any person who registers as an Organisation in Spatula warrants that he or she is an authorised representative of that Organisation with the requisite authority to bind the Organisation to this Agreement.

D              Driver terms of use

D.1          Spatula may enable a Driver to:

(a)            Take control of an Account created for them by an Organisation;

(b)            Create a Driver Account;

(c)            Manage a Driver Account;

(d)            Connect the Driver’s account to multiple Organisations;

(e)            Receive Order requests/instructions;

(f)              Navigate using GPS services integrated with Google Maps;

(g)            Update Order status;

(h)            Record signatures;

(i)              Take photographs and upload images;

(j)              Upload documents;

(k)            Monitor, record and update;

i                 Travelling speed;

ii               Location;

iii              Hours worked;

iv              Hours driven;

v               Order information;

vi              Orders completed;

(l)              Communicate with other Users, depending on the permissions and restrictions set by the relevant Organisation.

D.2          A Drivers access to features and information associated with an Organisation’s Account within Spatula may be created, limited and cancelled by the Organisation at the Organisation’s discretion.

D.3          The Driver agrees and accepts that:

(a)            The Driver uses Spatula at its own risk. To the extent permitted by law, under no circumstance will the Company be liable for any injury, illness, death or damage to property resulting from the Driver’s use of Spatula.

(b)            Any claim based on injury, illness, death or damage to property that results from a Driver’s use of Spatula must be directed to the Organisation.

(c)            The Driver remains responsible at all times for ensuring that it holds all requisite qualifications to Drive a vehicle and complies with any laws and policies governing the services they provide. Under no circumstance will the Company be responsible for a Driver’s failure to comply with any law or policy.

(d)            In no circumstance will the Company be responsible for a Driver’s operation of a Vehicle. The Driver remains responsible for safely operating a Vehicle, including:

i                 Using the GPS functions offered by Spatula; and

ii               Managing their own health and fatigue.

(e)            To the extent permitted by law, the Company accepts no liability for the accuracy of any information made available using Spatula, including route or location information supplied by Google Maps. Any reliance on the information available through Spatula is at the Driver’s own risk.

(f)              The Driver indemnifies Spatula against all costs, claims damages and expenses for any injury or damage caused to the person or property of another User, a Customer, or a Third Party as a result of the Driver’s use of Spatula;

(g)            All information about a Driver is used and controlled by the Driver or Organisation, not Spatula;

(h)            All information input into Spatula about a Driver is provided with that Driver’s consent.

(i)              Spatula may share the Personal Information collected by Spatula on the Driver with:

i                 Each Organisation connected to the Driver’s account, for the purposes of tracking an Order, monitoring a Vehicle or any other matter pertaining to the engagement of the Driver by the Organisation; and

ii               Each End User for the purposes of tracking an Order as controlled by the Organisation.

(j)              Any concerns that the Driver may have regarding an Organisation’s use of, and the granting of access to the Driver’s Personal Information via Spatula must be directed to the relevant Organisation

(k)            Any information shared by Spatula with an Organisation may be retained by the Organisation for the purpose of updating their administrative records;

(l)              Spatula may send the Driver emails, text messages, documents, images, push notifications, Order details and other alerts on behalf of Organisations;

(m)           Any consent or statement made by a Driver through Spatula is valid and binding unless and until revoked by the Driver, and an Organisation may rely on a consent or statement made through Spatula without any need to further verify the veracity of that consent;

E               End User Terms

E.1          Spatula may enable an End User to:

(a)            Book an Order.

(b)            Access information and features that an Organisation has granted them access to, including:

i                 Order details;

ii               Vehicle Location;

iii              Vehicle Speed;

iv              Identity of Driver;

v               Contact details of Driver;

(c)            Receive proof of delivery of an Order;

(d)            Supply a signature on receipt of an Order.

(e)            Such other features as the Company may make available from time to time, depending on the access that an Organisation grants an End User.

E.2          Spatula is free to use for End Users.

E.3          Spatula does not currently accept payments from End User’s on behalf of Organisations. Payments to Organisations must be made in accordance with the relevant Organisation’s usual payment terms.

E.4          Each End User agrees and accepts that:

(a)            The End User uses Spatula at its own risk.

(b)            The Company holds no duty of care to an End User to ensure ongoing access to Spatula.

(c)            The Company may share Personal Information regarding the End User with each Organisation and Driver that the End User engages with via Spatula, on the terms of this Agreement, and in compliance with the Company’s Privacy Policy.

(d)            The Company makes no warranty or representation as to the quality or fitness-for-purpose of any service offered or managed by an Organisation via Spatula, including in relation to an Order.

(e)            The Company makes no warranty or representation as to the qualifications or character of any Driver.

(f)              The Company shall not be responsible to an End User relative to an Order under any circumstance.

(g)            The Company takes no responsibility for any harm or loss suffered by an End User as a result of using Spatula.

(h)            If an End User suffers loss or harm as a result of using Spatula, the End User agrees that:

i                 The End User shall have no recourse against the Company; and

ii               The responsible Organisation that the End User was engaging with via Spatula remains responsible for any such loss or harm under Australian Consumer Law.

E.5          For the avoidance of doubt an End User shall have no claim against the Company for its use of, or reliance on any information provided via Spatula. Any claim that an End User may have arising from its access to, or reliance on information accessed via Spatula shall be between the End User and the Organisation that provided the information, and not involve the Company under any circumstances.

F               General USAGE Terms

F.1           To the extent permitted by law, the Company accepts no liability for the accuracy of any information made available using Spatula. Any reliance on the information available through Spatula is at the User’s own risk. A User’s recourse for reliance on inaccurate, fraudulent or otherwise false information shall only be against the User that supplied that information, and not against the Company.

F.2           Any dispute that may arise between Users must be dealt with strictly between those Users and not involve the Company in any way. Under no circumstance will the Company perform a dispute resolution role for a dispute between Users.

F.3           Spatula may be hosted on servers located outside Australia and may also use email servers and SMS services located outside of Australia.

G              Fees

G.1          Fees apply as advertised to the use of Spatula, and the terms of those Fees are set out in the General Conditions.

G.2          Where a Fee is paid for pre-paid credit for Spatula, the User shall not be entitled to a pro-rata refund of any Fees if it elects to stop using Spatula before that credit is spent.

H              Electronic transactions

H.1          The User agrees that when it provides any consent, authority or agreement through Spatula it does so as an electronic transaction and warrants that such transaction shall be binding on the party.

I                 Verification

I.1            The User is solely responsible for verifying the identity of a signatory to any electronic transaction it is a party to.

I.2            The Company does not guarantee the validity of any electronic transaction.

J               Term & limitations

J.1           Term.

The User’s licence to access Spatula shall be ongoing until terminated by the Company in accordance with this Agreement.

J.2           Limitations on Use.

The Company may limit or restrict access to Spatula from time-to-time as it sees fit, including (but not limited to):

(a)            Entities. The Company may restrict access only to reputable and/or registered organisations; and

(b)            Location. The Company may restrict access to Spatula to certain jurisdictions where it is able to offer Spatula.

(c)            Acceptable Use. The Company may restrict access to any organisation that is found to be using Spatula for unacceptable use cases, including but not limited to activities that are illegal.

 

K              registration

K.1          Registration.

(a)            The User must register an account in Spatula to use Spatula.

(b)            By registering an account in Spatula, the User accepts these Terms of Service.

(c)            The Company may set any registration requirements in its absolute discretion.

L               confidential information

L.1           The Company will keep confidential all information that it becomes aware of regarding the User’s:

(a)            Personal Information (notwithstanding any provision of this Agreement to the contrary); and

(b)            Business, employees and contractors;

M              Termination

M.1          This Agreement may be terminated at any time by:

(a)            Written notice of one party to the other; or

(b)            By cancelling or otherwise terminating your account through Spatula.

M.2          Deleting Spatula does not constitute termination of this Agreement, although the Company may terminate this Agreement in the event it determines in its reasonable discretion that Spatula has been deleted and the User’s intention is to cancel or terminate their account and this Agreement.

M.3          The User agrees and accepts that deletion of Spatula may result in loss of data for which the Company is in no way liable.

N              disclaimer – third party INFORMATION & services

N.1          The User acknowledges that Spatula:

(a)            Is dependent on third-party services, including but not limited to:

i                 Banks, credit card providers, Stripe;

ii               GPS navigation services;

iii              Telecommunications services;

iv              Hosting services;

v               Email services; and

vi              Analytics services.

(b)            May provide links to third party websites containing (without limitation) health information.

N.2          The User agrees that the Company shall not be responsible or liable in any way for:

(a)            Interruptions to the availability of Spatula due to third-party services; or

(b)            Information contained on any linked third party website.

O              General

O.1          Governing Law. Western Australia, Australia

O.2          Reference City. Perth.

 

 

General conditions

1               Background

1.1           The User wishes to access Spatula provided by The Company.

1.2           The terms and conditions in this Agreement govern the provision of Spatula to the User by the Company.

2               INTERPRETATION

2.1           The following definitions apply in this document:

(a)           ABN means Australian Business Number.

(b)           ACN means Australian Company Number.

(c)           Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City set out in item O of the Important Terms.

(d)           Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:

i                 All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;

ii               All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;

iii              All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;

iv              All information concerning any employee, customer, contractor, supplier or agent of the relevant party;

v               The party's policies and procedures; and

vi              All information contained in this document,

But excludes information that the other party can establish:

vii            Is known by or is in the other party's possession or control other than through a breach of this document and is not subject to any obligation of confidence; or

viii           Is in the public domain other than by a breach of this document or any obligations of confidence.

(e)           Corporations Act means the Corporations Act 2001 (Cth).

(f)            Fees mean the fees and charges as set out in the Important Terms.

(g)           Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure.  It includes each of the following, to the extent it is beyond the reasonable control of that party:

i                 Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;

ii               Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;

iii              The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and

iv              Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.

(h)           General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.

(i)             GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(j)             Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;

(k)           Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.

(l)             Health Information has the meaning given to it in the Privacy Act.

(m)         Moral Rights means:

i                 Moral rights pursuant to the Copyright Act 1968 (Cth);

ii               Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).

(n)           Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.

(o)           Pricing means the Spatula pricing published at spatula.io/pricing 

(p)           Privacy Act means the Privacy Act 1989 (Cth).

(q)           Solution means the solution called Spatula described in the Important Terms.

(r)            Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.

(s)           Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(t)            User Content means data that is uploaded or input into Spatula by the User or that forms part of the User’s Intellectual Property.

2.2           Headings are only for convenience and do not affect interpretation.  The following rules apply unless the context requires otherwise:

(a)            The singular includes the plural and the opposite also applies.

(a)            If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

(b)            A reference to a clause refers to clauses in this Agreement.

(c)            A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.

(d)            Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.

(e)            A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).

(f)              A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.

(g)            A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

3               APPLICATION of this agreement

3.1           This Agreement applies to use of and access to Spatula.

3.2           Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using Spatula.

3.3           This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of Spatula at the User’s next login after the User receives written notice of the update(s).

4               Spatula product

4.1           Spatula is the product described in the Important Terms.

4.2           Spatula is only accessible to the User for the term set out in the Important Terms.

4.3           The User agrees and accepts that Spatula is:

(a)           Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and

(b)           Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to Spatula is available to the User unless expressly agreed in writing.

4.4           As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features and Exercises, redesign, improve or otherwise alter Spatula.

4.5           The Company shall not exercise its rights under clause 4.4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of Spatula to the User, other than in accordance with the terms of this Agreement.

5               LICENCE

5.1           By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use Spatula for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.

5.2           The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.

5.3           The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users.  The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.

6               USE

6.1           The User agrees that it shall only use Spatula for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.

7               AUTHORISED USERS

7.1           The User shall authorise users to access Spatula in its absolute discretion. The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.

7.2           The User is solely responsible for the security of its username and password for access to Spatula.

7.3           The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Spatula account.

8               User Content

8.1           The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.

8.2           The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.

8.3           Despite clause 8.1 the Company shall be authorised to permanently delete User Content where outstanding Fees remain unpaid in accordance with clauses 10 and 11.

8.4           The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for Spatula).

9               PRIVACY

9.1           The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the User and other customers.

9.2           The Privacy Policy does not apply to how an Organisation handles personal information.  It is the Organisation’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.

9.3           The Company makes no warranty as to the suitability of Spatula in regards to the Organisation’s privacy obligations at law or contract, and it is the Organisation’s responsibility to determine whether Spatula is appropriate for the Organisation’s circumstances.

9.4           Spatula website may use cookies (a small tracking code in your browser) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.

10            FEES

10.1        Spatula is a pre-paid service and an Organisation’s account must have sufficient pre-paid credit to create Orders in Spatula.

10.2        Charges are applied to an Organisation account upon actions taken by Users as advertised. This includes, but is not limited to, creation of an Order in Spatula and sending of an SMS to a driver.

10.3        Where an Organisation account is set to automatically add credit, the full top up amount will be automatically charged to the Organisation account whenever the Organisation account balance falls below the specified level.

10.4        Fees are non-cancellable and/or non-refundable once ordered or paid.

10.5        The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.

10.6        The Company shall notify the User of any changes to existing Fees no less than 30 days before changes come into effect.

10.7        Where the Company:

(a)           Is required to perform any services for the User outside of what is set out in this Agreement or otherwise in writing; and

(b)           Is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of this Agreement); then

The User agrees that the Company shall be entitled to charge the User an additional amount that is reasonable for the service performed.

10.8        All transactions are processed in US dollars and conversion rates may apply for foreign currencies.

10.9        GST is applicable to any Fees charged by the Company to Users within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide the User with a Tax Invoice for its payment.

10.10     No refunds of Fees are offered other than as specified in this Agreement or as required by law.

11            INVOICING & PAYMENTS

11.1        The Company shall deduct payment from the User’s supplied credit card upon confirmation from the User and any time an automatic top up is triggered as agreed by the User on the billing page.

11.2        Should the User dispute a payment, the User must notify the Company of the disputed item within 3 Business Days of the payment.  

11.3        If the User wishes to purchase credit by bank transfer rather than through the Spatula website, it is the User’s responsibility to notify the Company that payment has been made to trigger a manual credit to be applied. An administration fee of $9 applies for any manual transfer of less than $1,000. The User should allow up to 1 working day for credit to be applied following a bank transfer to avoid running out of credit.

12            DATA

12.1        Security.  The Company takes the security of Spatula and the privacy of its users very seriously.  The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.

12.2        Transmission.  The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards.  It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.

12.3        Storage.  The Company may limit the amount of data that the User stores in Spatula, and shall advise the User of such.  Data that is stored with Spatula shall be stored according to accepted industry standards.

12.4        Backup.  The Company shall perform backups of Spatula in as reasonable manner at such times and intervals as are reasonable for its business purposes.  The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.

13            ACCESS

13.1        By accepting the terms of this Agreement the User agrees that the Company shall provide access to Spatula to the best of its abilities, however:

(a)           Access to Spatula may be prevented by issues outside of its control; and

(b)           It accepts no responsibility for ongoing access to Spatula.

13.2        Users may prepare for unscheduled unavailability of Spatula by:

(a)           Printing hard copies of reports.

14            INTELLECTUAL PROPERTY

14.1        Trademarks.  The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.

14.2        Proprietary Information.  The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally.  The User warrants that it shall not infringe on any third-party rights through the use of Spatula.

14.3        Spatula Application.  The User agrees and accepts that Spatula is the Intellectual Property of the Company and the User further warrants that by using Spatula the User will not:

(a)           Copy Spatula or the services that it provides for the User’s own commercial purposes; and

(b)           Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Spatula or any documentation associated with it.

14.4        Content.  All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, Exercises, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Spatula.

15            CONFIDENTIALITY

15.1        The information and classes of information set out in the Important Terms are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.

15.2        Each party acknowledges and agrees that:

(a)           The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);

(b)           It owes an obligation of confidence to the Discloser concerning the Confidential Information;

(c)           It must not disclose the Confidential Information to a third party except as permitted in this Agreement;

(d)           All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and

(e)           Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy.  Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.

15.3        A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

(a)           Any actual, suspected, likely or threatened breach by it of clause 15.1;

(b)           Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or

(c)           Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.

15.4        The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:

(a)           Any actual, suspected, likely or threatened breach of a term of this Agreement; or

(b)           Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

16            LIABILITY & INDEMNITY

16.1        The User agrees that it uses Spatula at its own risk.

16.2        The User acknowledges that Spatula does not provide occupational health and safety, or compliance advice.

16.3        The User agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.

16.4        The User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.

16.5        The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Spatula, including any breach by the User of these Terms.

16.6        In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Spatula or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.

16.7        Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified.  Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law.  To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:

(a)           The re-supply of services or payment of the cost of re-supply of services; or

(b)           The replacement or repair of goods or payment of the cost of replacement or repair.

17            BREACH

17.1        Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:

(a)           The nature of the breach;

(b)           The provisions of the Agreement that are alleged to have been breached;

(c)           A reasonable timeframe to remedy the breach in no less than 10 Business Days; and

(d)           The action required to remedy the breach.

17.2        Where a party issues a compliant Breach Notice in accordance with clause 17.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice.  Failure to respond in writing setting out:

(a)           The steps taken to remedy the breach; or

(b)           Why the party believes it is not in breach as put forward in the Breach Notice,

(c)           Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.

17.3        Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).

18            TERMINATION

18.1        Breach.  Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.

18.2        Insolvency.  Either party may terminate this Agreement immediately by notice, if either party:

(a)           Stops or suspends or threatens to stop or suspend payment of all or a class of its debts;

(b)           Is insolvent within the meaning of section 95A of the Corporations Act;

(c)           Fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) unless:

i                 The debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or

ii               The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;

(d)           Has an administrator appointed in respect of it;

(e)           Has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;

(f)            Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;

(g)           Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or

(h)           Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.

18.3        Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.

18.4        The rights and obligations under the relevant provisions of clauses 7, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21 and 21.6 survive termination of this Agreement.

19            DISPUTES

19.1        All disputes shall be handled in accordance with the Company’s dispute resolution policy.

19.2        Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:

(a)           Negotiation.  If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;

(b)           Mediation.  If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 19.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;

(c)           Arbitration.  If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia.  The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and

(d)           Court proceedings.  A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.

20            FORCE MAJEURE

20.1        If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly.  The notice must:

(a)           Specify the obligations and the extent to which it cannot perform those obligations;

(b)           Fully describe the event of Force Majeure;

(c)           Estimate the time during which the Force Majeure will continue; and

(d)           Specify the measures proposed to be adopted to remedy or abate the Force Majeure.

20.2        Following a notice of Force Majeure in accordance with clause 20.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.

20.3        The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.

20.4        The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.

20.5        The term of this Agreement will not be extended by the period of Force Majeure.

21            ELECTRONIC COMMUNICATION, amendment and assignment

21.1        The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

21.2        The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement.  The Company will notify the User of a change of details from time-to-time.

21.3        The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.

21.4        A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

21.5        Notices must be sent to the parties’ most recent known contact details.

21.6        The User may not assign or otherwise create an interest in this Agreement.

21.7        The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.

22            general

22.1        Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.

22.2        Prevalence. To the extent that the Important Terms are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.

22.3        Disclaimer.  Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.

22.4        Relationship.  The relationship of the parties to this Agreement does not form a joint venture or partnership.

22.5        Waiver.  No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

22.6        Further Assurances.  Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

22.7        Governing Law.  This Agreement is governed by the laws of the state set out in item O of the Important Terms.  Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

22.8        Severability.  Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.

 

END GENERAL CONDITIONS