1. Term
1.1. The Agreement will commence on the Commencement Date and will continue for the Initial Term.
1.2. Upon expiry of the Initial Term, the Agreement shall automatically renew for subsequent consecutive periods each of equivalent length to the Initial Term (each a Renewal Term) until and unless either party notifies the other party in writing of its intent not to renew the Agreement at least thirty (30) days prior to the expiry of the Initial Term or the then current Renewal Term (as applicable) (time being of the essence), in which case if such notice is provided the Agreement shall terminate at the end of the Initial Term or then current Renewal Term (as applicable).
2. Non-exclusive relationship
2.1. The relationship between you and us pursuant to the Agreement is non-exclusive. Nothing in the Agreement will prevent us from supplying any goods or services to any third party in our absolute discretion.
3. Implementation Services
3.1. If the Order specifies that we will provide Implementation Services, we will develop an implementation workplan (Implementation Workplan) for the setup, configuration and implementation of the OneStop Terminal Software for you pursuant to the Agreement (Implementation Services). The Implementation Workplan shall establish the time frames for performing the Implementation Services that each party will use its best endeavors to comply with. The Implementation Workplan shall include the following information, as applicable:
(a) identification of all milestone events and interdependent milestone events;
(b) identification of critical path milestones and the commencement and completion dates for such critical path milestones;
(c) a detailed description of all activities to be performed by you, and a detailed description of all activities to be performed by us, with respect to the implementation, and the party responsible for, and the location for performance of, such activities;
(d) identification of all interdependent activities; and
(e) commencement and completion dates for the setup, configuration and implementation of the OneStop Terminal Software.
3.2. We will be entitled to an extension of time for completion of any one or more of the stages of the Implementation Workplan if one or more of the following events occur:
(a) a Force Majeure Event occurs; or
(b) a delay is caused in whole or in part by any third-party supplier’s acts or omissions or your acts or omissions or any acts or omissions of your agents or third-party contractors.
3.3. Each party must provide all cooperation, access to personnel and information reasonably required by the other party to perform its obligations under the Implementation Workplan.
3.4. Without limiting your obligations under clause 3.3, you must provide us with physical access to any relevant computer server at the Hosting Location, at our option (where On-Premise Hosting is specified in the Order), where the Implementation Workplan requires us to perform Implementation Services for the implementation of the OneStop Terminal Software on that computer server at the Hosting Location or where access to the computer server is otherwise required by us to perform our obligations under the Agreement.
4. Training Services
4.1. If the Order specifies that we will provide Training Services, we will provide the allocated number of days of training set out in the Order in the use of the OneStop Terminal Software, to be attended by up to 3 of your employees, at our premises in Sydney, Australia or at such other location as we may agree in writing with you.
4.2. The starting date of the training will be determined by us, but in no case will the start date be later than ninety (90) days after the Commencement Date.
4.3. You will be responsible for all costs and expenses of our personnel and all trainees in connection with travel to and attendance at the training, including with respect to accommodation, meals and transport (Expenses). You must reimburse us for all Expenses that we incur within fourteen (14) days of the date of any invoice we issue to you for Expenses.
4.4. Each trainee shall execute a confidentiality undertaking, in a form approved by us before attending the training.
5. OneStop Terminal Software – Cloud Hosting Option
5.1. If OneStop Cloud Hosting is specified in the Order, subject to your payment of the Fees in accordance with the Payment Terms:
(a) we shall be deemed to have granted you a non-exclusive, non-sublicensable, non-transferable right for the Term for Authorised End Users to access one instance of the OneStop Terminal Software hosted by us or on our behalf for the Permitted Purpose;
(b) we undertake to use reasonable endeavours to host or procure the hosting of that instance of the OneStop Terminal Software during the Term; and
(c) you must not use or permit Authorised End Users to use the OneStop Terminal Software except pursuant to the Permitted Purpose.
5.2. The undertaking in clause 5.1(b) shall not apply if any breach of the Availability Target is caused by your use of the OneStop Terminal Software in breach of the Agreement or contrary to our instructions.
6. OneStop Terminal Software – On-Premise Hosting Option
6.1. If On-Premise Hosting is specified in the Order:
(a) subject to your payment of the Fees in accordance with the Payment Terms and your compliance with the Agreement:
(i) we shall be deemed to have granted you a non-exclusive, non-sublicensable, non-transferable licence to host one Object Code copy of the OneStop Terminal Software on one computer server (On-Premise Server) during the Term at the Hosting Location for the Permitted Purpose for use by your Authorised End Users (Hosting Licence);
(ii) we will, where required by the Implementation Services, install that Object Code copy of the OneStop Terminal Software on the On-Premise Server;
(b) you must not use or permit any person to use the OneStop Terminal Software except for the Permitted Purpose pursuant to the Hosting Licence;
(c) you must not install or permit the OneStop Terminal Software to be installed on any computer server other than the On-Premise Server at the Hosting Location without our prior written consent;
(d) we are not responsible for the security or maintenance of the On-Premise Server;
(e) we are not responsible for any inability of the OneStop Terminal Software to communicate with our data centres or networks caused by any downtime or misconfiguration of the On-Premise Server;
(f) you are responsible for providing or procuring the provision of technical support with respect to the On-Premise Server;
(g) you must:
(i) maintain a firewall to prevent unauthorised access to the OneStop Terminal Software and otherwise ensure the security of any communications made to and from the On-Premise Server;
(ii) control access to and use of any passwords and other access credentials that we provide to you or that you create or configure using the OneStop Terminal Software or with respect to any other software on the On-Premise Server or any firewall;
(iii) take all steps required to prevent the OneStop Terminal Software and the On-Premise Server from being subjected to viruses, hacking, pirating, unauthorised access and denial of service attacks (Attacks);
(iv) if the On-Premise Server becomes subjected to Attacks, you must promptly take all steps required to perform remedial action on the On-Premise Server and to prevent any further Attacks;
(h) you must:
(i) implement and maintain computer and network security at the Hosting Location and on the On-Premise Server;
(ii) ensure that the On-Premise Server is ready, compatible with, configured and maintained in accordance with any written instructions that we provide to you from time to time.
6.2. For the avoidance of doubt, we are not obligated to provide any Source Code to you with respect to the OneStop Terminal Software or otherwise.
7. OneStop Terminal Software – Mobile Software Option
7.1. If Mobile Software is specified in the Order:
(i) subject to your payment of the Fees in accordance with the Payment Terms and your compliance with the Agreement, we shall be deemed to have granted you a non-exclusive, non-sublicensable, non-transferable licence for each of your Authorised End Users to install one Object Code copy of the Mobile Software on one Tablet during the Term for use by your Authorised End Users (Mobile Software Licence);
(ii) you must not use or permit any person to use the Mobile Software except for the Permitted Purpose pursuant to the Mobile Software Licence;
(iii) you must not install or permit the Mobile Software to be installed on any device other than a Tablet without our prior written consent;
(iv) we are not responsible for the security or maintenance of the Tablets upon which the Mobile Software is installed;
(v) we are not responsible for any inability of the Mobile Software to communicate with our data centres or networks;
(vi) you are responsible for providing or procuring the provision of technical support with respect to the Tablets;
(vii) you must:
(i) control access to and use of any passwords and other access credentials that we provide to you or that you create or configure using the Mobile Software or with respect to any other software on the Tablets;
(ii) take all steps required to prevent the Mobile Software and the Tablets from being subjected to viruses, hacking, pirating, unauthorised access and denial of service attacks (Attacks);
(iii) if the Tablets become subjected to Attacks, you must promptly take all steps required to perform remedial action on the Tablets and to prevent any further Attacks;
(viii) you must:
(i) implement and maintain reasonable security with respect to the Tablets;
(ii) ensure that the Tablets are ready, compatible with, configured and maintained in accordance with any written instructions that we provide to you from time to time.
8. Maintenance Releases and New Versions
8.1. You agree and acknowledge that you are not entitled to receive, and that we are not obligated to supply, under the Agreement any version of the OneStop Terminal Software which from time to time is marketed by us as a new version of the OneStop Terminal Software (each, a New Version).
8.2. During the Term, we may release to you updates of the OneStop Terminal Software that corrects faults, adds functionality or otherwise amends or upgrades the OneStop Terminal Software (each a Maintenance Release), but which do not constitute a New Version.
8.3. If OneStop Cloud Hosting is specified in the Order, we may at any time make Maintenance Releases available to you by automatically updating the instance of the OneStop Terminal Software that we make available to you.
8.4. If On-Premise Hosting is specified in the Order, we will make Maintenance Releases available to you by replacing the version of the OneStop Terminal Software on the On-Premise Server via physical or remote access (at our option) to the On-Premise Server, at mutually convenient times. All time spent by us performing any such work referred to in this clause 8.4 and configuring any Maintenance Releases the subject of this clause 8.4 will be payable by you on a time and materials basis at the Ad Hoc Rates within fourteen (14) days of invoice from us.
8.5. The provisions of the Agreement that apply to the OneStop Terminal Software will apply equally to any Maintenance Releases and New Versions that we provide to you.
9. Raw Data
9.1. You:
(a) acknowledge that where the Order specifies OneStop Cloud Hosting, all or any Raw Data will be hosted by us or our suppliers on hardware or infrastructure located at the Data Centre Location, but we may or may not own the infrastructure;
(b) warrant that you are fully entitled and authorised to upload, input, transfer and disclose all Raw Data to us;
(c) warrant that the Raw Data and our collection, use, storage and/or disclosure of that Raw Data in the course of operating our business will not breach any applicable law or right of any person;
(d) acknowledge that it is your responsibility to ensure that the processing of personal information in any Raw Data by the OneStop Terminal Software, does not breach any Applicable Law or any person’s rights, and that prior to uploading or entering any Raw Data into the OneStop Terminal Software, all relevant licences and consents will have been obtained by you as necessary for us to collect, hold, disclose and otherwise process that personal information in the course of performing our obligations or exercising our rights under the Agreement; and
(e) and we agree that where the Order specify OneStop Cloud Hosting, we will follow our archiving procedures for Raw Data hosted by us with respect to the instance of the OneStop Terminal Software.
9.2. You agree to maintain your own independent backups and archives of all Raw Data.
9.3. Each time you and/or any Authorised End User uses the OneStop Terminal Software you shall be deemed to have agreed and warranted and represented to us that:(a) Raw Data will only be uploaded, entered, inputted and transferred into and/or via the OneStop Terminal Software, and Raw Data will only be disclosed to us, which can be uploaded, inputted and transferred into and/or via the OneStop Terminal Software and disclosed to us without contravening any Applicable Laws or the rights of any person;
(b) the Raw Data and our collection, use, holding and/or disclosure thereof in the course of performing our obligations under the Agreement, will not breach any person’s rights or any Applicable Law including the Privacy Act 1988 (Cth).
9.4. As between you and us, you are solely responsible for the accuracy, legality and quality of all Raw Data, for any claims arising in respect of the relevant Raw Data and for obtaining any permissions, consents, licences, rights and authorisations necessary for us and our suppliers to use, host, modify, hold, transmit, store and disclose Raw Data in connection with the Agreement.
9.5. If we receive a request from any person for the provision of personal information held about them in the OneStop Terminal Software, you must provide all assistance that we require in order to comply with our legal obligations in connection with any such request.
9.6. Without limiting any other rights that we have in respect of Raw Data, you hereby grant us a non-exclusive, transferable, assignable and sub-licensable royalty-free worldwide, irrevocable, non-terminable, perpetual licence to collect, retrieve, record, organise, structure, use, store, adapt, modify, alter, retrieve, disclose, reproduce, disseminate, integrate, align, combine, erase, destroy, commercialise, retain and exploit Raw Data in any manner whatsoever (whether now known or hereinafter known, decided or discovered) in our absolute and unfettered discretion (and any statistics and other derivatives of Raw Data):
(a) to perform our obligations under the Agreement;
(b) to comply with our legal obligations; and/or
(c) for any other reason, in our absolute discretion,
and you must:
(d) supply all Raw Data (including all container movement, vessel schedule and vessel routing data) to us; and
(e) provide all cooperation and assistance required by us to retrieve Raw Data and any other System Data from the OneStop Terminal Software.
9.7. We may retain all Raw Data, statistics and other derivatives of Raw Data during and following termination or expiry of the Agreement.
9.8. Each party must:
(a) notify the other party in writing immediately upon becoming aware that:
(i) any disclosure or use of Raw Data may have been made in contravention of any Data Protection Laws or the Agreement; or
(ii) any unauthorised access, use, modification or disclosure of any Raw Data may have occurred or any other data security breach or incident in respect of any Raw Data may have occurred;
(b) implement and maintain appropriate data and physical security practices and procedures in respect of Raw Data; and
(c) provide all cooperation reasonably required by the other party in connection with any data breach or cybersecurity incident involving Raw Data.
9.9. Clauses 9.6, 9.7 and 9.8 and the licence granted under clause 9.6 survive termination of the Agreement.
10. Software Limits and Restrictions
10.1. You may not use or permit any Authorised End User to use the OneStop Terminal Software except for the Permitted Purpose and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with our Intellectual Property Rights in the OneStop Terminal Software. Without limiting the foregoing provisions, you agree and acknowledge that except with our prior written consent, you must not, and must not permit any person or entity to:
(a) use the OneStop Terminal Software who is not an Authorised End User;
(b) license, sublicense, resell, assign, transfer, distribute, or provide others with access to, the OneStop Terminal Software;
(c) “frame”, “mirror” or serve the OneStop Terminal Software on any web server or other computer server over the Internet or any other network (however this paragraph will not prevent you from hosting strictly in accordance with clause 5 if On-Premise Hosting is specified in the Order);
(d) copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the OneStop Terminal Software (except to the extent that this paragraph (d) contravenes applicable law);
(e) store, transmit or distribute any virus or Raw Data or other material using the OneStop Terminal Software that is unlawful, harmful, threatening, defamatory, infringing, offensive or in breach of any person’s rights;
(f) mine any data from the OneStop Terminal Software or any database used by the OneStop Terminal Software;
(g) use the OneStop Terminal Software in any way which is in breach of any right of any person or any Applicable Law; or
(h) use the OneStop Terminal Software or any part of it (or allow it to be used) (including any component of any graphical user interface or the look and feel of the OneStop Terminal Software) for the purpose of developing, or contributing to the development of any software competitive with the OneStop Terminal Software by you or any third party; or
(i) alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the OneStop Terminal Software.
10.2. You acknowledge that the integrity of the OneStop Terminal Software is protected by technical protection measures (TPMs) to prevent Intellectual Property Rights, including copyright, in the OneStop Terminal Software from being misappropriated. You must not attempt in any way to remove or circumvent any TPM from the OneStop Terminal Software.
10.3. You must comply with any security procedures, policies and standards that we notify you of from time to time with respect to your use of the OneStop Terminal Software.
11. Intellectual Property Rights
11.1. Nothing in the Agreement constitutes an assignment of any Intellectual Property Rights.
11.2. As between you and us, we and/or our Related Bodies Corporate own all Intellectual Property Rights in the OneStop Terminal Software, the Documentation and in any updates, upgrades, new versions and other modifications of the OneStop Terminal Software. You must not represent that you own the OneStop Terminal Software, and/or the Documentation.
11.3. Except as expressly stated herein, the Agreement does not grant you or any third party any rights to or in patents, copyright, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other Intellectual Property Rights or other rights or licences in respect of the OneStop Terminal Software or the Documentation.
11.4. You must not directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute our or our licensors’ ownership in or rights with respect to the OneStop Terminal Software.
11.5. You may not do or authorise the commission of any act that would or might invalidate or be inconsistent with our or our licensors’ Intellectual Property Rights in the OneStop Terminal Software or any Documentation.
11.6. You hereby assign to us all and any Intellectual Property rights that you may have in all and any comments in connection with the OneStop Terminal Software or requests for new the OneStop Terminal Software features that you, Authorised End Users or your Personnel may suggest or create (each, an Improvement Suggestion). Each Improvement Suggestion becomes our sole and exclusive property. This assignment is effective as soon as you or your Personnel create any Improvement Suggestion or provide an Improvement Suggestion to us including where applicable under s197 of the Copyright Act 1968 (Cth) and in equity. You further authorise us (or any third parties authorised by us) to infringe any Moral Rights that you have in any Improvement Suggestions. You must execute and procure from your Personnel the execution of any documentation reasonably required by us to give effect to the assignment to us of all Intellectual Property Rights in any Improvement Suggestions and moral rights consents from your Personnel in respect of Improvement Suggestions in our favour.
11.7. You must not:
(a) use any of our trade marks or other marks (Marks) except as provided for in the Agreement; or
(b) contest any Mark, apply for registration of any Mark or use or apply for registration of any trade mark, trade name, business name, company name or domain name which is or incorporates any element that is confusingly similar to any Mark.
11.8. Except as expressly provided in the Agreement, you have no rights in respect of any Marks or their associated goodwill, and you hereby acknowledge that all such rights and goodwill inure for the benefit of, and are (and will remain) vested in, us.
12. Confidentiality
12.1. Each party (the first party) agrees and acknowledges that it may receive information marked as confidential or that has the quality of confidential information of the other party during the Term of the Agreement (Confidential Information).
12.2. The first party agrees and acknowledges that the Confidential Information of the other party will be received and held by the first party in strict confidence and will not be disclosed by the first party, except:
(a) with the prior written consent of the other party;
(b) where disclosed to the Personnel on a confidential basis. The first party must use reasonable endeavours to ensure that its Personnel keep the Confidential Information of the other party that the first party provides to its Personnel confidential;
(c) as required by the rules of any stock exchange; or
(d) as required by a court of competent jurisdiction, and then, only to the extent required, and provided that the first party promptly notifies the other party of such requirement of disclosure and provides full particulars to the other party of the disclosure.
12.3. Confidential Information does not include any information:
(a) that is independently developed, obtained or known by the first party;
(b) that the first party can prove was already rightfully known by it at the time of disclosure to it as shown by contemporaneous records;
(c) which is or becomes available to the first party from a third party lawfully in possession of such information and who has the lawful power to disclose such information to the first party on a non-confidential basis; or
(d) that is in the public domain or which becomes part of the public domain except where due to a breach of the Agreement or any breach of any obligation of confidence.
12.4. Our Confidential Information includes:
(a) the Agreement;
(b) all parts of the OneStop Terminal Software (including any designs, graphical user interface, the layout of any parts of the OneStop Terminal Software and the look and feel of the OneStop Terminal Software);
(c) the Documentation;
(d) all Intellectual Property Rights and any trade secrets, unpatented inventions, discoveries, works, improvements, innovations, ideas, concepts, graphs, flow charts, materials, samples, devices, models, know how, techniques, operations, dealings, processes, procedures, secret formula, software programs and designs, drawings, technology, machinery or equipment used or proposed to be used or developed in connection with the OneStop Terminal Software; and
(e) the Object Code and Source Code in the OneStop Terminal Software,
(collectively, OneStop Confidential Information).
12.5. OneStop Confidential Information is not your confidential information and you must not use, modify, reproduce, release, perform, display or disclose it except as is strictly necessary for you to use the OneStop Terminal Software for the Permitted Purpose.
12.6. Notwithstanding the definition of “Confidential Information” in clause 12.1, Raw Data is not subject to the provisions of this clause 12.
13. Fees and Payment Terms
13.1. You must pay the Fees to us in accordance with the Payment Terms.
13.2. You must pay the Ad Hoc Rates within fourteen (14) days of invoice for services calculated by us in accordance with the Ad Hoc Rates from time to time.
13.3. The Fees and Ad Hoc Rates are exclusive of all GST and you agree to pay to us all GST that we incur in connection with the Agreement. You must pay all applicable GST, at the same time as the Fees in accordance with the Payment Terms.
13.4. If you fail to make any payment due to us under the Agreement by the due date for payment, then, without limiting our remedies, you shall pay interest on the overdue amount at a rate equal to 2% per annum above the current overdraft rate that we have with our principal banker from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment and you shall pay the interest together with the overdue amount upon demand by us.
13.5. If we have not received payment of any Fees by the due date in accordance with the Payment Terms, then without prejudice to any of our other rights and remedies, we may, without liability to you, suspend the operation of the OneStop Terminal Software and/or suspend all or any part of our obligations under the Agreement.
13.6. We may increase the Fees payable under an Agreement:
(a) on or after each anniversary of the Commencement Date by the greater of: [i] 5% per annum; and [ii] the most recently published CPI movement (All Groups CPI, Australia, annual movement (%)) published by the Australian Bureau of Statistics (ABS) or any replacement thereof published by the ABS;
(b) any time in accordance with our standard rates then in effect if you wish to use the OneStop Terminal Software at more locations than the number of locations specified or referred to in the Order;
(c) any time in accordance with our standard rates then in effect if the number of your transactions in the OneStop Terminal Software increases by more than 20% over the previous month; or
(d) as otherwise agreed in writing by the parties at any other time.
14. Change Control
14.1. If you wish to change any part of the Agreement you shall deliver a written notice to us pursuant to clause 24 setting out the details of your requested change (Client Change Request).
14.2. If you issue a Client Change Request, we may elect to provide a written estimate to you (Change Proposal) of:
(a) the likely time required to implement the changes;
(b) any variations to the Fees arising from the changes; and
(c) any other impact of the changes on the terms of the Agreement.
14.3. We have no obligation to proceed with any Change Proposal until and unless you and us have agreed in writing to the Change Proposal by executing the Change Proposal.
14.4. No change to the Agreement shall be effective unless the change is implemented pursuant to this clause 14 or the change is otherwise agreed in writing by the parties.
15. Support Services
15.1. If Support Services are specified in the Order, we will provide the Support Services subject to the SLA.
16. Consulting Services
16.1. If Consulting Services are specified in the Order, we will provide the Consulting Services subject to you and us executing a Statement of Work specifying the consulting services to be provided.
17. Software Development Services
17.1. We have no obligation to provide any software development services under the Agreement. Our provision to you of software development services will be subject to you and us executing a Statement of Work specifying the software development services to be provided.
18. Restriction on Employee Recruitment
18.1. Each party agrees to not employ any person who is or was an employee of the other party during the term of the Agreement.
19. Liability
19.1. You acknowledge and agree that:
(a) the timely delivery of the functionality of the OneStop Terminal Software is dependent on data provided to us by you and/or our third party providers; and
(b) we shall not be liable to you for any damage or loss arising from your failure or the failure of our third party providers to provide the relevant data to us.
19.2. A party is not liable for any indirect, special or consequential loss or damage arising under or in connection with an Agreement, including for any:
(a) loss of profits (other than where caused by your failure to pay the Fees);
(b) loss of sales or business;
(c) loss of production;
(d) loss of agreements or contracts;
(e) loss of business opportunity;
(f) loss of anticipated savings;
(g) loss of or damage to goodwill; and/or
(h) loss of reputation,
whether arising in contract, tort (including negligence) or otherwise, and whether the loss or damage is foreseeable or not. This clause does not apply to limit liability that cannot be excluded by law.
19.3. A party is not liable for any loss or damage caused by any Force Majeure Event.
19.4. To the extent that a party’s (the first party)’s liability is not already excluded, that party’s total aggregate liability for all claims for all and any loss or damage that the other party may suffer or incur due to the first party’s breach of the Agreement is capped at an amount equivalent to the Fees paid or payable under the Agreement.
19.5. The liability of a party for a breach of the Agreement shall be reduced to the extent that the other party, its Personnel or End Users caused, were responsible for, or contributed to, such loss or damage.
19.6. Where liability for breach of any guarantees under the ACL or any other similar Applicable Law can be limited, our liability arising from any breach of those guarantees (if any) is limited, at our option: (i) with respect to the supply of goods, to the replacement or repair of the goods or the cost of resupply or replacement of the goods; and/or (ii) with respect to services, to the supply of services again or the cost of re-supplying the services again.
19.7. Other than any non-excludable guarantees implied into an Agreement under the ACL or other similar Applicable Law (if any), all conditions, warranties and guarantees that would be implied in the Agreement are hereby excluded from the Agreement.
19.8. There may be third party software, applications, products and platforms that you may use in connection with the OneStop Terminal Software that is obtained under a contract between you and a third party (Third Party Software). You agree and acknowledge that:
(a) the suppliers otherwise known as the providers of the applicable Third Party Software, and not us, are the suppliers and publishers of the Third Party Software;
(b) we are not responsible for the accuracy, quality or correctness of any Third Party Software and/or their providers; and
(c) your use of Third Party Software is pursuant to a contract between you and the applicable Third Party Software provider(s), and not pursuant to a contract between you and us;
(d) your use of Third Party Software is at your sole risk, and not our risk;
(e) we do not make any representations or warranties with respect to any Third Party Software (whether as to their performance, availability, compatibility with the OneStop Terminal Software and/or otherwise) and/or with respect to any providers of Third Party Software;
(f) we are not responsible for the practices, and/or terms and/or policies of Third Party Software providers;
(g) you agree that we have no obligation to provide any technical support or other assistance in connection with any Third Party Software and that if we do provide any such technical support or other assistance, you will pay us for all time that we incur in connection therewith at a rate agreed prior to commencement of the technical support or other assistance, to be paid by you into our nominated bank account within fourteen (14) days of invoice by us from time to time;
(h) you shall be deemed to have irrevocably released us from any claims that you may otherwise have had against us with respect to any non-performance of the OneStop Terminal Software, and with respect to any loss, damage or corruption of any Raw Data or System Data, caused by Third Party Software and/or the interfacing between any Third Party Software and any Raw Data and/or System Data and/or the OneStop Terminal Software; and
(i) except where we otherwise expressly specify in writing to the contrary, the providers of Third Party Software are not our partners, co-joint venturers, representatives or agents and any link to any Third Party Software from the OneStop Terminal Software and/or interfacing and/or integration of the OneStop Terminal Software with a Third Party Software does not imply that we are affiliated with or sponsor, endorse or approve the Third Party Software and/or its provider.
19.9. Notwithstanding any other provisions of the Agreement, except to the extent expressly specified in the Order, we:
(a) do not warrant that your use of the OneStop Terminal Software will be uninterrupted or that the OneStop Terminal Software will be error-free; or that the OneStop Terminal Software, the Documentation and/or information that you obtain using the OneStop Terminal Software will meet any requirements other than the Specifications;
(b) are not responsible for any errors or downtime of your On-Premise Server;
(c) are not responsible and do not accept responsibility for any delays, delivery failures, or for any other loss or damage resulting from any incompatibility, error, downtime, loss of connectivity, degradation or non-performance of your or any other person’s computer systems, devices, servers, networks and/or equipment; and
(d) are not responsible for any downtime in the OneStop Terminal Software that occurs because a third party who operates software that the OneStop Terminal Software connects to (via API or otherwise) modifies any part of that software (however, we will use our best endeavours to resolve any problem referred to in this paragraph (d) as soon as possible).
20. Warranties
20.1. Each party warrants that:
(a) it has full capacity, authority and all necessary consents to enter into and to perform the Agreement and to grant the rights referred to in the Agreement and that the Agreement is executed by its duly authorised representative and represents a binding commitment on it;
(b) it shall comply with all Applicable Laws in the performance of its obligations under this agreement; and
(c) if it is not subject to the Privacy Act 1988 (Cth), it will comply with the Privacy Act 1988 (Cth) as if it were an APP Entity for the purposes of that legislation.
21. Insurance
21.1. Each party must obtain and maintain during the Term and for two (2) years thereafter, the following insurances for all and any claims arising in connection with the performance of the Agreement:
(a) public liability insurance in the sum of twenty million dollars ($20,000,000) in respect of each claim;
(b) cyber liability insurance in the amount of five million dollars ($5,000,000) in respect of each claim covering losses for unauthorised access to data and systems, business interruption, data breaches, any damage to or loss of data, cyber extortion and network security events.
22. Suspension and Termination
22.1. We may temporarily and/or permanently suspend and/or disable the performance of the whole or any part of the OneStop Terminal Software and/or any Authorised End User access to or use of the OneStop Terminal Software by way of TPM or otherwise if we know or reasonably suspect that:
(a) you or they are in breach of your obligations under the Agreement;
(b) any Authorised End User has not used or is not using the OneStop Terminal Software in compliance with the Permitted Purpose;
(c) we determine that you or any Authorised End User’s use of the OneStop Terminal Software is likely to lead to any third party instituting or threatening legal proceedings against us or any other person.
22.2. Either party may terminate the Agreement at any time at its convenience by providing thirty (30) days written notice to the other party.
22.3. A party may terminate the Agreement by written notice to the other party (the defaulting party) if the defaulting party is in material breach of the Agreement which is not remediable, or if capable of remedy and the defaulting party fails to remedy the breach within seven (7) days of written notice from the other party requiring the remedying of the breach.
22.4. A party may terminate the Agreement by written notice to the other party if the other party suffers an Insolvency Event, except where such termination would contravene the Corporations Act 2001 (Cth).
22.5. If the Agreement is terminated or expires for any reason:
(a) any rights or obligations that, by their nature, survive termination shall so survive;
(b) each party shall promptly return to the other party all copies of any Confidential Information of the other party in its possession or control, and shall delete all remaining copies thereof in its possession or control, except any copies that it must retain under Applicable Law; and
(c) your and your Authorised End Users’ rights to use and access to the OneStop Terminal Software and Documentation immediately cease.
23. Personal Property Securities Act
23.1. You are expressly prohibited from registering a security interest on the Personal Property Securities Register established under section 147 of the Personal Property Securities Act 2009 (Cth) in respect of the OneStop Terminal Software and/or licences granted under the Agreement.
23.2. Without limiting our rights, if you or any person on your behalf records a security interest of any type on the Personal Property Securities Register in respect of the OneStop Terminal Software and/or licences, we may immediately terminate the Agreement and/or the Licence granted hereunder without notice.
24. Notices
24.1. All notices required or permitted to be made under the Agreement shall be in writing and shall be considered properly given if:
(a) delivered in person;
(b) sent to the respective addresses identified in the Order by post; or
(c) sent by email.
24.2. Notice given under subclause (a) above shall be effective upon delivery.
24.3. Notice given under subclause (b) above shall be effective 6 Business Days after posting if posted domestically in Australia, or 20 Business Days after posting if posted to or from Australia from any other country.
24.4. Notice under subclause (c) above shall be deemed to have been given on the day on which it is transmitted if the sender receives a read or delivery receipt confirming delivery or receipt of the email or a reply to the email.
24.5. Any party may change its address for notice hereunder by giving seven (7) days’ written notice to the other party.
24.6. Text messages, instant messages, messages sent through social media websites, and similar messages are not considered “written” or “in writing” for the purposes of the Agreement.
25. Dispute Resolution
25.1. If a dispute arises between the parties out of or relating to the Agreement (Dispute), each party must seek to resolve it strictly in accordance with the provisions of this clause 25. Compliance with the provisions of this clause is a condition precedent to seeking relief in any court in respect of the Dispute, except as otherwise provided in this clause.
25.2. A party seeking to resolve a Dispute must notify the existence and nature of the Dispute to the other party (Notification). Upon receipt of a Notification, each party must refer resolution of the Dispute to their chief executives (or nominees).
25.3. If the Dispute has not been resolved within one (1) calendar month of the Notification, then each party will be entitled to pursue such course of action as it determines.
25.4. Nothing in this clause 25 shall limit either party’s right to seek urgent interlocutory relief from any court of competent jurisdiction at any time.
26. General
26.1. Subject to clause 26.2, a party may not assign, transfer, license or novate its rights or obligations under the Agreement without the prior written consent of the other party (not to be unreasonably withheld).
26.2. A party may by notice, assign or novate its obligations under the Agreement at any time in connection with a restructure or sale of all or part of its business.
26.3. No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
26.4. If any provision of the Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of the Agreement and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law.
26.5. Nothing contained in the Agreement creates any relationship of partnership, employment, joint venture or agency between the parties.
26.6. This Agreement constitutes the entire agreement of the parties about the OneStop Terminal Software and supersedes all other contracts between the parties about its subject matter. Each contract, other than the Agreement, is hereby terminated by your and our mutual consent.
26.7. Without limiting clause 26.6, you must ensure that each of your Authorised End Users comply with any product or service-specific terms and conditions that apply to the use of any of our products and services, including:
(a) any online platform terms of service, end user agreement or end user licence agreement that we publish from time to time;
(b) in respect of submissions of electronic transmissions of export Pre-Receival Advices (PRAs), the terms and conditions at https://www.1-stop.biz/terms-and-conditions/;
(c) in respect of the use of our website at https://msic.1-stop.biz/, the terms and conditions at https://www.1-stop.biz/terms-and-conditions-msic/;
(d) in respect of the issue and use of Maritime Security Identification Cards (MSICs), the terms and conditions at https://www.1-stop.biz/the-issue-and-use-of-an-msic/; and
(e) in respect of the use of our OneStop Modal Vehicle Book System, the terms and conditions at https://www.1-stop.biz/1-stop-modal-vbs-terms-and-conditions/.
26.8. Except as set out in clause 14, the Agreement may be amended only by a written document signed by all parties and a provision of or a right under the Agreement may not be waived or varied except in writing signed by the party to be bound.
26.9. This Agreement is governed by the laws of New South Wales and each party irrevocably submits to the exclusive jurisdiction of the courts located in New South Wales, and the courts of appeal from them in relation to any dispute concerning the Agreement.
27. Definitions and interpretation
27.1. In this Agreement, terms in bold font in brackets have the meanings given thereto as set out in the applicable clauses in which they are defined and any word starting with a capital letter that is not otherwise defined in this Agreement, shall have the meaning given to it in the Order. In addition, in this Agreement the following words have the following meanings:
‘Ad Hoc Rates’ means the hourly and daily rates set out in the Order or specified by us from time to time.
‘Agreement’ means the Order and these Terms and Conditions.
‘Applicable Law’ means any applicable legislation, rule of the general law, including common law and equity, judicial order or consent or requisition from, by or with any governmental agency, including any Data Protection Law in any applicable jurisdiction.
‘ACL’ means schedule 2 to the Competition and Consumer Act 2010 (Cth).
‘Authorised End User’ means:
(a) any of your officers and employees; and
(b) any third party who we authorise in writing to use or access the copy or instance of the OneStop Terminal Software that we supply or make available to you.
‘Business Days’ means Monday to Friday in New South Wales, excluding public and bank holidays in New South Wales.
‘Business Hours’ means 9:00AM – 5:00PM on Business Days.
‘Commencement Date’ means the date specified in the Order, or if the Order does not specify a commencement date, the Agreement will commence on the date we receive the Order.
‘Data Centre Location’ means the location specified in the Order where Raw Data will be hosted.
‘Data Protection Law’ means all applicable data protection and privacy laws in any applicable jurisdiction, including the Privacy Act 1988 (Cth).
‘Documentation’ means any information, materials or documents (whether in electronic form or not) referring to or describing the OneStop Terminal Software that we provide to you.
‘Fees’ the fees, rates and charges that are payable by you to us under the Agreement, as set out in the Order or as amended pursuant to clauses 13, 14 or 26.7.
‘Force Majeure Event’ means any act, event, omission, accident or circumstance beyond a party’s reasonable control.
‘GST’ has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
‘Hosting Location’ means the location(s) of your computer server specified in the Order.
‘Insolvency Event’ means, in respect of a party:
(a) the party ceases to carry on business, is unable to pay its debts as and when they fall due, or is deemed to be insolvent or bankrupt;
(b) a receiver or a liquidator or provisional liquidator or an administrator is appointed to the party, or an application (including voluntary application filed by that party) is lodged or an order is made or a resolution is passed for the winding up (whether voluntary or compulsory) or reduction of capital of that party;
(c) the party enters into an arrangement with its creditors;
(d) where the party is a partnership, the partnership is dissolved or an application is made for its dissolution;
(e) the party suspends payment of its debts to the other party or a third party, or the party takes the benefit of any law for the relief of insolvent debtors; or
(f) anything analogous or having a substantially similar effect to any of the events described in (a) through (e) above occurs under the law of any applicable jurisdiction.
‘Initial Term’ means 1 month from the Commencement Date.
‘Intellectual Property Rights’ means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, and other rights of a similar nature and all other rights to intellectual property as defined under Article 2 of the convention establishing the World Intellectual Property Organization, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application, anywhere in the World.
‘OneStop Terminal Software’ means the software product(s) developed by or on our behalf that is specified in the Order as further described at https://www.1-stop.biz and includes any content, images, text and other information appearing on any page or screen of such software and any Source Code and Object Code in that software, and also refers to the Mobile Software.
‘Moral Rights’ has the meaning given in the Copyright Act 1968 (Cth).
‘Mobile Software’ means the OneStop Terminal Software that is customised by us for use via a Tablet, if any, as specified in the Order.
‘Object Code’ means computer code in a form that a computer can execute, when compiled or converted from its Source Code version.
‘Order’ means a document entitled “Order”, “Proposal”, “Quotation”, “Invoice” or similar issued by us to you that you confirm to us you accept (either by signing it and returning it to us, or by otherwise indicating your acceptance of it including by paying any amount specified in the document). Upon such confirmation, you will be deemed to have provided the Order to us.
‘Payment Terms’ means any payment terms and conditions set out in the Order.
‘Permitted Purpose’ means the use of the OneStop Terminal Software at the sites and for the purpose referred to in the Order.
‘Personnel’ means employees, subcontractors or professional advisors of the first party.
‘Privacy Policy’ means our Privacy Policy, a copy of which is available at https://www.1-stop.biz/privacy-policy/.
‘Raw Data’ means System Data that Authorised End Users upload or enter into the OneStop Terminal Software, other than System Data that is created by us and/or obtained by us from any third party.
‘Related Body Corporate’ has the meaning given in the Corporations Act 2001 (Cth).
‘Scheduled Outage’ means any downtime of the OneStop Terminal Software scheduled by us or any of our suppliers in advance with respect to the hosting of the OneStop Terminal Software.
‘Service Level Agreement’ or ‘SLA’ means a document entitled “Service Level Agreement (SLA)” that we issue from time to time.
‘Source Code’ means computer code in human-readable form, that when compiled becomes Object Code.
‘Specifications’ means any written specifications for the OneStop Terminal Software that we provide to you from time to time.
‘Statement of Work’ means a document entitled “Statement of Work” issued by us to you.
‘System Data’ means all:
(a) Raw Data; and
(b) any other data that the OneStop Terminal Software processes, including, for the avoidance of doubt, System Data that is created by us and/or obtained by us from any third party and any data that a third party enters into the OneStop Terminal Software or any third party software that the OneStop Terminal Software communicates or is integrated with.
‘Tablet’ means an iPad or tablet approved in writing by us, and that is used in connection with the Mobile Software.
‘Term’ means the Initial Term and any applicable Renewal Terms.
‘Terms and Conditions’ means this webpage entitled “Terminal Software Terms and Conditions”.
‘we’, ‘our’ and ‘us’ means 1-Stop Connections Pty Ltd ABN 58 102 573 544.
‘you’, ‘your’ means the terminal referred to in the Order.
27.2. In the Agreement, the following rules of construction shall apply:
(a) clause, schedule and paragraph headings shall not affect the interpretation of the Agreement;
(b) unless the context otherwise requires:
(i) words in the singular shall include the plural and in the plural, shall include the singular;
(ii) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
(iii) a reference to a ‘party’ is a reference to you or us, as the context dictates, and a reference to ‘parties’ is a reference to you and us;
(iv) a reference to currency is to the lawful currency of Australia; and
(v) the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as, nor are intended to be, interpreted as words of limitation and shall be interpreted as if the words “but not limited to” immediately followed them in each case;
(c) a person includes a natural person, corporate or unincorporated body;
(d) a provision of the Agreement shall not be construed against a party merely because the party or its solicitors prepared the provision;
(e) the phrase “specified in the Order” means specified as being applicable or in the affirmative in the Order;
(f) to the extent of any inconsistency between:
(i) the Order; and/or
(ii) these Terms and Conditions.
(iii) the inconsistency will be resolved by giving priority to the item listed first in this paragraph (f).
These Terms and Conditions were most recently updated on 28 March 2023.