ResTrack Lite
Terms and Conditions
Software Subscription Terms: Please read carefully
1. Agreement
These Software Subscription Terms (“Terms”) including any schedules (together, the “Agreement”) form a legal agreement between you and Banlaw Pty Limited ACN 062 044 071 of 19 Metro Court, Gateshead NSW (“Banlaw”).
This Agreement may be accepted by doing either one or more of the following:
- accepting a clickthrough agreement within the Software by checking the box confirming you agree to these Terms; or
- issuing a purchase order or similar request for goods and/or services in response to a Proposal; or
- accessing or otherwise using the Software including without limitation, the registration of a ResTrack Lite Controller.
If you do not agree with these terms, or do not understand any part of this Agreement, then do not access or otherwise use the Software. The Software may not be sold, transferred or further distributed except as authorised by Banlaw.
The Software may include, be bundled with or require installation of other software programs or applications licensed under different terms and/or licensed by a vendor other than Banlaw, including without limitation, the Payment Portal. Use of any software programs or applications with or accompanied by a separate licence agreement is governed by that separate licence agreement. Any third-party software or application that may be used with or provided with the Software is included for use at your option. Banlaw is not responsible for any third party’s software or application and shall have no liability for your use of the third-party software.
2. Meaning of words
In this Agreement and unless the context requires otherwise, the following words have the following meanings:
Business Day carries the same meaning as is given to that term in the Banking Act 1959 (Cth), as amended from time to time.
Business Hours means the hours between 8am and 5pm (AEST) on a Business Day.
Commencement Date means the date of acceptance in accordance with clause 1 above.
Confidential Information means the content of this Agreement, any information of a party which is marked confidential and any information which is by its nature confidential.
Controller means an electronic device, known as a ResTrack Lite Controller.
Data means any information contained on the Software from time to time, which may include your personal or private information.
Fees means the fees payable by you to Banlaw, that are described or calculated in the Payment Portal when you set up your online account.
Grace Period means the 1 month period commencing on expiry of the Term.
Hardware means any hardware supplied by Banlaw pursuant to this Agreement.
Helpdesk means the Software support provided by Banlaw either by email or phone from time to time.
Intellectual Property Rights means all intellectual property rights at any time protected by statute or common law, including patents, copyright and any registered intellectual property rights, registered designs, trademarks, Source Code and goodwill; and any application or right to apply for registration of any of these rights.
IT Infrastructure means your network, servers, cellular coverage, mobile devices, and all peripheral devices (including software installed or used by those devices) connected to the network owned or used by you.
Payment Portal means the third-party payment facility that used by Banlaw to process payments from time to time, which for the avoidance of doubt, will subject to its own terms of use between the third party provider and you.
Proposal means a proposal submitted to you by Banlaw in which these Software Subscription Terms are either referred to or attached in full. A Proposal will be in writing and may be in hard or soft copy, via email, or via the Software itself.
Services means the services as may be described and priced in a Proposal or within the Software.
Site means the site or sites which may be nominated on a Proposal.
Software means the Banlaw Restrack Lite system developed by Banlaw and includes any upgrades of the Software issued or made by Banlaw from time to time.
Software Documentation means all information relating to the operation of the Software, including without limitation user manuals, and material provided at the time of implementation, training or during delivery of any Services.
Source Code means computer programs in un-compiled human-readable English language format, which comprise the Software.
Term means the period set out in the Proposal.
You or your means you the licensee (listed as the “Client” or “Customer” in a Proposal) and any user(s) of the Software permitted by Banlaw from time to time.
Meter Calibration means a process that makes the physical flow meter reading the same as the actual flow meter reading in the System.
Tank Calibration means a process that makes the physical stored volume in a tank reading the same as the actual level reading as a percentage of full capacity in the System.
3. Term and termination
This Agreement will commence on the Commencement Date and will end at the expiry of the Term unless otherwise terminated by a party in accordance with this Agreement.
Either party may terminate this Agreement immediately by giving the other party notice if the other party breaches any provision this Agreement and fails to remedy the breach within 30 days of receiving written notice of the breach.
Banlaw may also terminate this Agreement immediately by giving you written notice if you attempt to assign any of the rights arising out of this Agreement to a third party or if in Banlaw’s opinion you are or may be subject to any form of insolvency administration, proceedings, or other external administrator, liquidator, receiver or manager is appointed.
You may terminate this Agreement by giving Banlaw 30 days’ written notice. You will have access to the Software for the remainder of the period for which you have paid.
On expiry of the Term, you will be permitted to continue to access the Software (including any of your Data in the Software) for the Grace Period. On expiry of the Grace Period, the Agreement will be terminated and all your rights to use the Software will cease. and you must immediately deliver to Banlaw any Software Documentation.
The Software will allow transactions to be made during the Grace Period. However, you will not be able to add more Controllers, vehicles, or users to the Software during the Grace Period if no payment has been made.
If you wish to reactivate the Software during the Grace Period, you must pay all Fees outstanding from the day after the end of the last subscription period to the present date.
If you do not make payment as set out in the preceding paragraph during the Grace Period, your access to the Software will be suspended and all Data associated with your account will be deleted. This will mean your account will be closed and no transactions will be able to be made after that time.
4. Hardware
The first new Controller registered in the System will be sold with a 1-year subscription. Once that initial subscription expires, you will be required to pay the Fees to renew the subscription in order to remain fully functioning. For the avoidance of doubt, you will be required to pay full Fees for any subsequent Controllers that are registered in the System.
In the event a controller fails, you will be able to disable the controller to stop future Fees being added to your account for that controller. For the avoidance of doubt, if a controller is disabled for any reason other than for failure or defect (as determined by Banlaw in its absolute discretion), any associated Fees will not be refunded or suspended.
Existing Controllers will not be able to be connected to a new account without contacting Banlaw via its Helpdesk function. The decision to reconnect existing Controllers will be at Banlaw’s sole discretion.
5. The rights Banlaw grants to you
Banlaw is authorised to grant rights in the Software as set out in this Agreement.
Banlaw grants you a non-exclusive and non-transferable right to use and access the Software during the Term in accordance with the terms of this Agreement.
Subject to you complying with your obligations under this Agreement and in consideration of the payment of Fees by you, Banlaw will allow you to logon to and use the Software as soon as it has been configured for your access. A ResTrack Lite Controller must be added to your account for the subscription to start.
6. Your Responsibilities
You must ensure that your arrangements with contractors and employees who will come into contact with the operation of the Software will include a reference to Banlaw as the Service provider and owner of the Software and that such arrangements include an obligation on their part to ensure that their employees, contractors and visitors are made aware of the scope of the Services, the operation of the Software and the use to which any Data collected from them will be put.
You must:
- (a) ensure the Hardware is installed correctly (at your own cost);
- (b) ensure the Hardware is installed in a non-hazardous location;
- (c) keep all IT Infrastructure used in connection with or required to operate the Software up to date, maintained in good order and repair and safe from damage;
- (d) provide access into your corporate network environment so that services and functions (such as printing and other network functions) required for the proper operation of the Software, are available to the hardware used by you to access the Software;
- (e) provide a facility for unrestricted NBN, ADSL, ISDN, dialup or VPN access to the Hardware used by you to access the Software and otherwise provide reasonable access to your Hardware and network for the purposes of Banlaw performing the Services;
- (f) enter into licences for, maintain and keep current any Third-Party Software for the duration of the Term. You acknowledge that Banlaw cannot properly perform the Services, and the Software will not properly function, if you do not comply with this clause;
- (g) provide the relevant access, licenses and services for integrating the Software with third party software;
- (h) accept all regular updates made to the Software by Banlaw;
- (i) allow Banlaw or its contractors as directed by Banlaw on each occasion to update, make improvements to, and to apply bug fixes to the Software at its discretion, without any further notice or consent being given by you;
- (j) grant Banlaw and its contractors access to the Software and any Data:
- (i) implement all updates, improvements and bug fixes; and
- (ii) analyse the Software and its use by you.
- (k) not provide your logon details and passwords for the Software to any other person;
- (l) not upload or submit any information to the Software where you know, or ought be aware, that the information is incorrect, untrue, misleading or materially incomplete;
- (m) ensure the System undergoes periodic Meter Calibration; and
- (n) ensure the System undergoes periodic Tank Calibration.
Banlaw will not be responsible for poor cellular network coverage, and persons turning cellular coverage off on their devices to evade data propagation to the Software’s cloud administration console.
7. Banlaw Responsibilities
In consideration for payment of the Fees, Banlaw will perform the Services with due care and skill.
Banlaw will collect data (via the Software) on the basis of documents and/or information provided by you. Banlaw does not (and cannot) verify or warrant the validity or accuracy of such documents or information.
To the maximum extent permitted by law, Banlaw bears no responsibility or liability to you for any misuse of Data that was deceitfully, fraudulently or illegally obtained from the Software or any other means.
Banlaw will not be liable for any delayed, partial or total non-performance of the Services arising directly or indirectly from any event outside of Banlaw’s control, including a failure by you to comply with any of your obligations or failure by any Contractor to comply with any of its contractual obligations to you.
Banlaw may (but is not obliged to) develop new and improved versions of the Software.
Banlaw continually monitors the system and applies bug fixes as the need arises. Banlaw reserves the right to prioritise such fixes in a way that in Banlaw’s reasonable opinion has least impact on the Software and all its users as detailed in Schedule 1 – Software Maintenance.
Banlaw reserves the right to refuse the provision of the Additional Services if:
- (a) the Fees are in arrears;
- (b) you or a third party have installed the System incorrectly; or
- (c) the System is being used for activities contrary to the intended use.
8. Fees
You must pay to Banlaw the Fees at the rates or calculated in accordance with the methods set out in the Payment Portal when your account is set up or your subscription to the Software is renewed. Subject to the remaining provisions of this clause 8, Fees must be paid in advance at intervals set out in the Proposal with first payment due prior to the commencement of the use of or access to the Software for the corresponding payment period.
The Fees are non-refundable.
There will be a limit of 10 Controllers for any one account. For any account that has more than 1 Controller, the Fees will be combined and calculated as part of the initial subscription or Proposal, when your account is set up. Fees for the Controllers and subscription are payable separately when your subscription to the Software is renewed.
Banlaw will issue you with at least one notice prior to expiry of the Term, giving you an opportunity to renew your subscription to the Software. If you fail to renew by the expiry of the Term, you will continue to have limited access to the Software during the Grace Period, as set out in clause 3 above.
Banlaw may increase the Fees in its absolute discretion from time to time. Any increase to the Fees will be limited to the greater of a fixed rate increase of 3% per annum based on Fees payable immediately prior to the review, or by an amount equal to the rate of increase of Consumer Price Index (All Groups, Sydney) between the date of last review (or if the first review, then between the Commencement Date) and the date of the current review. Banlaw will give you 3 months’ notice of any price increase.
The Fees are exclusive of all taxes, duties, tariffs, excise and other imposts whether levied by the Commonwealth of Australia or the relevant governing body of any other jurisdiction (Taxes).
If any Taxes are imposed on the Fees or other supplies made under this Agreement, then you will be liable for payment of the Taxes in addition to the Fees or supply, at the same time and in the same manner as the Fees or supply.
If you fail to pay any amount owing under this Agreement by the due date:
- (a) (even if the failure to pay arises out of the operation of the dispute resolution procedure), you will be liable to pay that amount together with interest which will be calculated on that amount from the due date until it has been paid in full at the rate of 12 per cent per annum; and
- (b) Banlaw is at liberty to suspend access to the Software and/or provision of the Services immediately until payment has been made in full or the Agreement has been terminated.
9. Use of names
You must not without Banlaw’s written permission use the name, any trademark or logo associated with the Software or Banlaw.
Banlaw will not without your written permission use the name, any trademark or logo associated with you or your business.
10. Hardware Deliveries
You acknowledge that goods delivered to a courier are outside the control of Banlaw and Banlaw will not be liable for any loss, damage, delay or non-delivery of goods contributed to by any third party, to the extent permitted by law.
Notwithstanding the generality of the preceding paragraph, you acknowledge that any tax invoice issued to you for Hardware that you order by way of a purchase order or via the Software will need to be paid for up front, prior to the actual physical delivery of the Hardware. The actual delivery date for any Hardware is dependent on delivery lead times and other factors outside of Banlaw’ control.
Deliveries shall be made during normal working hours and at your cost. In the event you or your agent is not on Site to accept the delivery, then the driver’s signature denoting the time, date & place of delivery, shall be deemed to be acceptance of the said delivery by you.
If a date for delivery is nominated by you and not otherwise agreed by Banlaw, Banlaw will not be bound to deliver the Hardware by that date unless it expressly agrees to do so in writing. In case of agreement on delivery dates, Banlaw will be deemed to agree to use reasonable endeavours to deliver by the relevant date.
It is your responsibility to carefully inspect the goods immediately after they are delivered. Any claims with respect to damage or defect from delivery/transport must be made in the first instance by phone within 72 HOURS of receipt, and also in writing within 7 days of delivery.
11. Risk and Ownership
All rights title and ownership in the Software (including all Intellectual Property Rights contained within the Software, but excluding the Data you upload into the Software) shall at all times vest with Banlaw (including without limitation any modifications or developments made to the Software either by Banlaw or by you with or without the consent of Banlaw).
Nothing in this Agreement grants to you ownership of the Software or any other rights in respect of the Software other than those expressly granted in clause 4. You must not remove or alter any logo, copyright or other proprietary notices, symbols or labels appearing in any of the user interfaces of the Software.
Risk of use of, loss of or damage to the Software will pass to you on and from commencement of first use of the Software.
Risk in the Hardware will pass to you upon delivery to the Site.
Title to the Hardware will not pass to you until payment of all monies owing to Banlaw by you have been received in full by Banlaw.
Until all monies owed by you to Banlaw with respect to the Hardware are paid in full, you grant to Banlaw unconditional and irrevocable rights of entry into your premises (or the premises of any associated company or agent where goods are located) without liability for trespass or any resulting damage to retake possession of the Hardware.
Banlaw may keep or resell any goods (including the Hardware) repossessed pursuant to the above rights.
12. Intellectual Property Rights
Banlaw owns the Intellectual Property Rights in or holds an exclusive licence to deal in the Software, including any developments or customisation of the Software made at your specific request. Where it holds an exclusive licence, Banlaw also holds on trust for the owner of the Intellectual Property Rights in the Software, any rights to enforce this Agreement for the protection of those Intellectual Property Rights.
In consideration for your compliance with this Agreement, Banlaw grants you access to and use of the Software for the Term.
You agree:
- (a) not to decompile, copy, disassemble, reverse engineer or otherwise attempt to derive or use the Source Code from the Software or any part of it;
- (b) not to copy or engage any third party for the purposes of copying the functional operation of the Software, including without limitation the “look and feel” of the user interface, the logical sequence of operations and commands of the Software and its on screen graphic style, colours, and content;
- (c) not to sell, rent, lease, licence, display, time share or otherwise transfer any part of the Software to, or permit the use of any part of the Software by, any third party;
- (d) to preserve the confidential nature of the Confidential Information (including Intellectual Property Rights contained within the Software), and to use reasonable care to prevent the unauthorised use, copying, publication or dissemination of any part of the Software and/or Banlaw’s Confidential Information;
- (e) not to alter, enhance, adapt, develop or modify any part of the Software or attempt to do any of those things or procure a third party to do or attempt to do any of those things;
- (f) not to knowingly disclose or grant access to the Software or any part of it to any third party who may, or has the capacity to contravene sub clauses (a) to (c) above; and
- (g) not to permit or allow any third party to do anything which, if committed by you, would be a breach of any one or more of the sub clauses (a) to (f) above.
This Agreement does not transfer to you any right, title or interest in the Software, any customisation or development of the Software undertaken at your request, the Source Code, Software Documentation or any user manuals or collateral or supporting documentation.
Title to the Software and any Intellectual Property Rights existing in the Software (including any modifications, enhancements or developments made to the Software whether or not made by you or at your request), remains at all times vested in the original owner of the Software.
Banlaw reserves the right to develop software separate to the Software the subject of this Agreement. Any new software may use other technologies in addition to current technologies. You agree that additional fees for new functionality or modules not available in the current technology-based system may be applicable should you wish to upgrade. In addition to this should you wish to use services and features not included in this Agreement, Banlaw (with the prior approval of Banlaw) may agree in writing to provide these services or features on commercial terms.
13. Your rights and additional responsibilities
You may use the Software strictly in accordance with the terms of this Agreement only.
You will be responsible for protecting the Software from unauthorised access or use to the extent that you must ensure logon details are kept secret and are altered frequently. Banlaw will otherwise make every effort to safeguard the Software from external threats such as hacking and virus. However, you acknowledge that Banlaw cannot guarantee the absolute security of the Software.
You must not copy, modify, reverse engineer, decompile or disassemble the Software. You must not distribute, sell, sub-license or otherwise make the whole or part of the Software available for use by a third party.
You must not use or distribute any part or whole of the Software in conjunction with any product or service for commercial gain unless expressly consented to by Banlaw in writing and you acknowledge Banlaw’s proprietary rights over the Software.
You must not incorporate the Software in any product to be made available commercially unless expressly consented to by Banlaw in writing on terms acceptable to Banlaw in its absolute discretion.
You must not use privileged knowledge or observations of Software operation and controls gained by virtue of your access to the Software to create or assist in creating a competitor system or one that duplicates to large degree the functionality of the Software.
14. Banlaw limits its liability
You are responsible for determining that the Software is suitable for your own use or purpose.
You acknowledge and agree that the Services do not include:
- (a) development of new functionality in the Software;
- (b) Data migration, manipulation, importing / exporting or verifying;
- (c) user training (other than training agreed by Banlaw to be provided upon implementation of the Software).
- (d) contact (including for support, etc) with anyone within your organisation other than the person nominated as your site champion;
- (e) any Software support of any kind other than the Helpdesk and as identified in Schedule 1;
- (f) customisation or modification of any part of the Software;
- (g) your server or network or database administration;
- (h) any IT, communication or related services or fault diagnosis for your network, hardware, or software other than that caused by the Software;
- (i) database recovery (unless the cause of the loss was as a direct result of a fault in the Software); or
- (j) Software upgrade testing using your user acceptance testing system.
Banlaw will not be liable to provide Services which relate to or are in connection with:
- (a) alterations, damage, or modifications to the Software not undertaken by Banlaw;
- (b) your negligence, misuse, misapplication or use of the Software;
- (c) power surges, network connectivity, configuration, capacity or performance testing or problems;
- (d) Meter Calibration;
- (e) Tank Calibration;
- (f) third party software or hardware failure, damage or repairs; or
- (g) issues caused by circumstances beyond the reasonable control of Banlaw.
You assume all risk for any loss or damage resulting directly or indirectly from your use of or inability to use the Software.
To the extent permitted by law Banlaw will not be liable to you in respect of any consequential, indirect, exemplary or punitive damage (including, but not limited to, loss of actual or anticipated profits or revenues, loss by reason of shutdown or non-operation, increased cost of borrowing, capital or financing, or loss of use or productivity, etc.) whether caused by or in relation to breach of contract, warranty, tort, product liability, contribution or strict liability, whether arising under this Agreement, at law or in equity.
The above clause does not apply to Banlaw’s liability in respect of:
- (i) fraud or wilful misconduct; or
- (ii) liability for infringement of Intellectual Property Rights.
To the extent permitted by law, Banlaw’s aggregate liability for any claims made under or in connection with this Agreement will be limited to the average monthly Fee paid by you to Banlaw for the performance of the Support during the Term of the Agreement.
Where any statute or law implies warranties or conditions into this Agreement, which cannot be lawfully modified or excluded under this Agreement (Non-excludable Condition) then this Agreement will be read subject to such Non-excludable Condition. Where such statute or law permits, Banlaw limits its liability to you for breach of such Non-excludable Condition to re-supplying access to the Software or paying for the re-supply.
Each party (Indemnifier) indemnifies the other party against all liability, loss, cost or damage caused by any of the following:
- (a) breach by the Indemnifier of the Agreement;
- (b) any claims arising out of or in any way related to an injury to or death of any person or loss of or damage to any tangible property arising out of or in any way relating to this Agreement and caused by the Indemnifier’s act or omissions; and
- (c) any claim by a third party arising out of or in any way related to the Indemnifier’s wilful, negligent or unlawful act or omission,
provided however that the Indemnifier’s liability under this clause is reduced proportionately to the extent that any negligent act or omission of the other party contributed to the liability.
15. Insurance
Banlaw will be insured in respect of potential liability, loss or damage arising at common law or under any statute in respect of claims for property damage, personal injury, public liability, economic loss and professional indemnify relevant to the performance of Banlaw’ obligations pursuant to this Agreement.
As a minimum, Banlaw shall hold public liability and product liability insurance of at least $20,000,000 for any one occurrence or series of occurrences arising out of one event; and workers compensation insurance in accordance with the requirements of the State of New South Wales.
16. Banlaw makes no warranties or representations
Except as expressly provided in this Agreement and to the extent permitted by law, liability for all representations and warranties, whether implied, express or otherwise, are excluded.
Except as expressly warranted above, Banlaw does not warrant or make any representations:
- (a) that the Software is of merchantable quality, suitable for Your use, or is fit for any other purpose or use;
- (b) that operation of the Software will be-uninterrupted or that the Software is error-free;
- (c) regarding the results of any use of the whole or any part of the Software; or
- (d) as to the accuracy, reliability or content of any data, information, service or goods obtained through any use of the whole or any part of the Software.
Where Banlaw supplies you with Hardware which has been produced, compiled, developed or manufactured by Banlaw, then:
- (a) where Banlaw has made known to you any additional terms and conditions, you must comply with those additional terms and conditions as they relate to such goods or services;
- (b) Banlaw will provide you with a 12-month warranty to repair or replace the Hardware where it is deemed to be defective by Banlaw in its absolute discretion.
Where Banlaw, as part of the supply of the Hardware, or as a pre-requisite to the supply of the Hardware, supplies or requires you to supply any goods or services which have been performed, produced, compiled, developed or manufactured by a third party, then:
- (a) where Banlaw or the third party has made known to you any additional terms and conditions, you must comply with those additional terms and conditions as they relate to such goods or services;
- (b) Banlaw makes no warranties in respect of such goods or services;
- (c) Banlaw will not be responsible for any defects in the goods or services; and
- (d) Banlaw will use reasonable endeavours to procure for you from relevant third parties the benefit of any standard warranties or defect liability periods normally attaching or applying to any such goods or services. However Banlaw will not be responsible for the substance of any such warranty or defect liability period and will not be responsible for negotiating any particular warranties on your behalf.
Except as expressly provided above, and to the extent permitted by law, liability for all representations and warranties, whether implied, express or otherwise, are excluded.
17. Data
You acknowledge that the Data contains information which is protected under the Privacy Act 1988 (Cth) as amended from time to time (Privacy Act) and you agree to protect and otherwise deal with such Data only in accordance with the Privacy Act.
Banlaw is not responsible or liable for unauthorised access to the Software including, without limitation, the unauthorised use of the Software or any Data by you, your employees or any contractor whether currently or previously employed or engaged by you or the Contractor or any third party, as the case may be.
To the fullest extent permitted by law, you indemnify Banlaw for any liability, cost, loss or damage arising out of or in connection with your failure to notify and/or to obtain the consent of any Contractor in relation to their Data being uploaded to the Software and that Banlaw will have access to their Data.
Banlaw will use reasonable endeavours to comply with its obligations under the Privacy Act and will otherwise treat any Data in its control in accordance with its privacy policy, which can be found at https://www.banlaw.com/privacy-policy.
18. Confidential Information
A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
A party will not be in breach of this clause in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party’s Confidential Information.
Notwithstanding any other provision of this clause, a party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
19. Force Majeure
A Force Majeure event means anything outside reasonable control of a party, including but not limited to:
- (a) power, data or communication outages;
- (b) acts of God or the public enemy, national emergencies, radioactive contamination, insurrection, riot, hostile or warlike action or sabotage;
- (c) a transportation embargo;
- (d) industrial action (including a picket); and
- (e) any legislation or regulation and any action or inaction of any government or government agency.
If any party is wholly or partially unable to perform its obligations because of a Force Majeure event except for its obligation to pay money then:
- (a) as soon as reasonably practicable after the Force Majeure event arises, the party must notify the other party of the extent to which the notifying party is unable to perform its obligations, the date of commencement of non-performance and the means proposed to be adopted to remedy or abate; and
- (b) that party’s obligation to perform will be excused for the duration and to the extent of the delay arising directly out of the Force Majeure event of which notice is given under this clause.
20. Dispute Resolution
In any dispute arising out of or in connection with this Agreement, both parties agree to first negotiate in good faith with the other party to resolve it.
If the dispute is not resolved by those negotiations within thirty (30) days, you agree that the matter may be referred to the Resolution Institute for resolution by mediation and if necessary by arbitration in accordance with the relevant rules of the Resolution Institute.
21. Notices
All notices which are required to be given under this Agreement will be in writing and will be sent to the address of the recipient as may be set out in a Proposal or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand, by pre-paid letter, facsimile or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by pre-paid letter) or on transmission by the sender (if sent by facsimile) or upon receipt of delivery confirmation or “read receipt” by the sender (if sent by email).
22. Survival
Clauses 11, 12, 14, 17, 18, 20, 23 and this clause will survive the termination or expiry of the other provisions of this Agreement.
23. General
This Agreement is governed by and construed in accordance with the laws of New South Wales, Australia.
This Agreement overrides the provisions of any other documentation that you may issue in relation to the Software and the Services.
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to its subject matter. No addition to or modification of any provision of this Agreement will be binding upon the parties unless made by written instrument signed by a duly authorised representative of both parties.
Banlaw reserves the right to modify this Agreement from time to time on at least 21 days’ notice to you. If you do not provide notice to terminate before the date the modifications to Agreement become effective, your continued access to or use of the Software will constitute acceptance of the revised Agreement.
You must not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of Banlaw.
Banlaw may assign any rights or benefits under this Agreement without your prior written consent. You must do all things and sign all documents to give effect to any assignment by Banlaw.
No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.
Should any part of this Agreement be or become invalid, that part will be severed from this Agreement. Such invalidity will not affect the validity of the remaining provisions of the Agreement.
Schedule 1: Software Maintenance
Banlaw continually monitors the system and applies bug fixes as the need arises (in Banlaw’s opinion). Banlaw reserves the right to prioritise such fixes in a way that has least impact on the Software and all its users.
Banlaw prioritises support calls and commits to the following response times to resolve or reduce the severity of any problems arising directly out of a defect or bug in the Software (an anomaly):
Severity
Critical Priority
- Initial Response Timeframe – Ticket logged / response issued within 2 Business Hours of receipt of request. Work around within 4 Business Hours.
- Resolution Targets – Within 3 Business Days
- Description – Critical faults or errors that prevent operation of the Software.
High Priority
- Initial Response Timeframe – Ticket logged / response issued within 2 Business Hours of receipt of request. Work around within 1 Business Day.
- Resolution Targets – Within 5 Business Days
- Description – Major faults or errors in the operation of Software that prevent the successful completion of critical tasks, impacting business operations.
Medium Priority
- Initial Response Timeframe – Ticket logged / response issued within 2 Business Hours of receipt of request. Work around within 1 Business Day.
- Resolution Targets – By consultation
- Description – Inconvenient operation of the Software or routine support related to non-urgent issues that are not impacting business operations in any significant way.
Low Priority
- Initial Response Timeframe – Ticket logged / response issued logged within 2 Business Hours of receipt of request.
- Resolution Targets – By consultation
- Description – No loss of functionality or data. Typically, a procedural related enquiry.
ResTrack Lite Software Subscription Terms: Version 1.0 of POL-63