Terms and Conditions

1.1 Except to the extent expressly provided otherwise, in this Agreement:

• “Account” means an account enabling a person to access and use the Hosted Services , including both administrator accounts and user accounts;
• “Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
• “Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;
• “Business Day” means any weekday other than a bank or public holiday in Australia;
• “Business Hours” means the hours of 09:00 to 17:00 AEST on a Business Day;
• “Charges” means the following amounts:

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);

“Customer Confidential Information” means:

• “Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;
• “Customer Indemnity Event” has the meaning given to it in Clause 17.3;
• “Customer Personal Data” means Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement;
• “Documentation” means the documentation produced by the Provider and delivered or made available by the Provider to the Customer;
• “Effective Date” means
• “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars]);
• “Hosted Services” means Road Manager which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
• “Hosted Services Defect” means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services but excluding any defect, error or bug caused by or arising as a result of:

2.1 This Agreement shall come into force upon the Effective Date.

2.2 This Agreement shall continue in force until the user cancels their subscription at the beginning of which this Agreement shall terminate automatically subject to termination in accordance with Clause 20.

3.1 The Provider shall provide the Set Up Services to the Customer.

3.2 The Provider shall use reasonable endeavours to ensure that the Set Up Services are provided upon or promptly following the Effective Date;

3.3 The Customer acknowledges that a delay in the Customer performing its obligations in this Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 18.1 the Provider will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under this Agreement.

3.4 Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Provider shall be the exclusive property of the Provider.

4.1 The Platform will automatically generate an Account for the Customer on the Effective Date and will provide to the Customer login details for that Account;

4.2 The Provider grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.

4.3 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:

4.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:

4.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.

4.6 The parties acknowledge and agree that Schedule 3 (Availability SLA) shall govern the availability of the Hosted Services.

4.7 The Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with Schedule 2 (Acceptable Use Policy).

4.8 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

4.9 The Customer must not use the Hosted Services:

4.10 The Customer must not use the Hosted Services to provide services to third parties where they are not permitted to do so under the laws of the territory in which they are located or the territory in which they are providing services to a third party. The Customer must ensure that they have all necessary authorisations, registrations and qualifications to produce Traffic Management Plans.

4.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

4.12 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.

5.1 The Provider shall provide the Maintenance Services to the Customer during the Term.

5.2 The Provider shall provide the Maintenance Services with reasonable skill and care;

5.3 The Provider shall provide the Maintenance Services in accordance with Schedule 4 (Maintenance SLA).

5.4 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

6.1 The Provider shall provide the Support Services to the Customer during the Term.

6.2 The Provider shall provide the Support Services with reasonable skill and care.

6.3 The Provider shall provide the Support Services in accordance with Schedule 5 (Support SLA).

6.4 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days’] written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

7.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:

7.2 The Customer must provide to the Provider, or procure for the Provider, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under this Agreement.

8.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement.

8.2 The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation in any jurisdiction and under any applicable law.

8.3 The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken and shall retain and securely store each such copy for a minimum period of 30 days.

8.4 Within the period of 1 Business Day following receipt of a written request from the Customer the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 8.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

11.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.

11.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 11.2.

11.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated inclusive of any applicable value added taxes OR exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.

11.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days’ written notice of the variation.

12.2 The Customer must pay the Charges to the Provider within the period of 7 days following the issue of an invoice in accordance with this Clause 12.

12.3 The Customer must pay the Charges by debit card, credit card, direct debit, bank transfer or cheque] (using such payment details as are notified by the Provider to the Customer from time to time).

12.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:

(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Reserve Bank of Australia Bank cash rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month);

12.5 If the Customer pays in a currency other than their local currency they are responsible for all bank and other transaction fees charged by its financial institution or bank and any charges incurred by the Provider as a consequence of the payment being made in a currency other than their local currency. 

12.6 The Customer will incur charges after the end of the Free 15 day Trial. By entering credit card details during the login process the customer is agreeing to pay for a subscription after said 15 Day Free Trial ends unless they cancel their subscription.

13.1 The Provider must:

13.2 Notwithstanding Clause 13.1, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.

13.3 This Clause 13 imposes no obligations upon the Provider with respect to Customer Confidential Information that:

13.4 The restrictions in this Clause 13 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.

13.5 The provisions of this Clause 13 shall continue in force indefinitely following the termination of this Agreement.

14.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws.

14.2 The Provider warrants to the Customer that:

14.3 The Provider must notify the Customer promptly if:

14.4 The Provider shall co-operate with the Customer in relation to:

14.5 The Provider shall ensure that access to the Customer Personal Data is limited to those Provider personnel who have a reasonable need to access the Customer Personal Data to enable the Provider to perform its duties under this Agreement; any access to the Customer Personal Data must be limited to such part or parts of the Customer Personal Data as are strictly necessary.

14.6 The Provider shall take reasonable steps to ensure the reliability of any Provider personnel who have access to the Customer Personal Data. Without prejudice to this general obligation, the Provider shall ensure that all relevant Provider personnel are informed of the confidential nature of the Customer Personal Data, have undertaken training in the laws relating to handling Personal Data, and are aware of the Provider’s duties in respect of that Personal Data.

15.1 The Provider warrants to the Customer that:

15.2 The Provider warrants to the Customer that:

15.3 The Provider warrants to the Customer that the Hosted Services when used by the Customer in accordance with this Agreement will not breach any laws, statutes or regulations applicable under Australian law.

15.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

15.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:

15.6 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

15.7 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

16.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

16.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

16.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

16.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

17.1 The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of this Agreement and arising directly or indirectly as a result of the Customer using the Hosted Services to design implement and manage maps or plans. . (a “Customer Indemnity Event”).

17.2 The Provider must:

18.1 Nothing in this Agreement will:

18.2 The limitations and exclusions of liability set out in this Clause 18 and elsewhere in this Agreement:

18.3 The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.

18.4 The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.

18.5 The Provider shall not be liable to the Customer in respect of any loss of revenue or income.

18.6 The Provider shall not be liable to the Customer in respect of any loss of use or production.

18.7 The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.

18.8 The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software providing that this Clause 18.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 8.3 and Clause 8.4.

18.9 The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.

18.10 The liability of the Provider to the Customer under this Agreement in respect of any event or series of related events shall not exceed the greater of:

(a) the total amount paid and payable by the Customer to the Provider under this Agreement in the 12 month period preceding the commencement of the event or events.

18.11 The aggregate liability of the Provider to the Customer under this Agreement shall not exceed the greater of:

(a) the total amount paid and payable by the Customer to the Provider under this Agreement.

18.12 The Customer remains at all times responsible for the accuracy, use and compliance with the legal requirements of the Territory in respect of any plan or map created by the Hosted Services

18.13 The Provider will not be liable to the Customer for any loss, including personal injury occurring from using the Hosted Services on a device while driving, operating equipment, moving or otherwise. The Customer is responsible for being aware of their surroundings at all times when using the Hosted Services.

18.14 Where symbols, signs or objects appear on a plan or map produced using the Hosted Services these are indicative and symbolic only and are not to be relied upon as representing the signage that is required to be used in the Customer’s Territory or the Territory in which the Customer uses the Hosted Services.

20.1 The Provider may terminate this Agreement by giving to the Customer not less than 30 days’ written notice of termination.

20.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

20.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

20.4 The Provider may terminate this Agreement immediately by giving written notice to the Customer if:

22.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 22.2 and Part 4 of Schedule 1 (Hosted Services particulars)):

22.2 The Provider’s contact details for notices under this Clause 22 are as follows: Road Manager, Suite 7A, 35-37 Princes Highway Engadine NSW 2233.

22.3 The addressee and contact details set out in Clause 22.2 and Part 4 of Schedule 1 (Hosted Services particulars) may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 22.