End-User License Agreement (“Agreement”)
This Agreement is between You and Locate2u Pty Ltd (ACN 636 392 035) (‘Locate2u’ or ‘our’ or ‘we’) and governs the use of the Platform, Products and Services offered by Locate2u.
Locate2u is in the business of providing software and other technological products and services for the purpose of delivery and field service management (Platform) which is licensed to You.
Any Product or Service description displayed on the Platform is incorporated into this Agreement by reference. In the event of inconsistency, this Agreement prevails.
By using, browsing and/or reading the Platform, this signifies that You have read, understood and agree to be bound by this Agreement. If You do not agree with the any terms or conditions, You must cease usage of the Platform or any of the Products and Services immediately.
In order to use the Platform, You may be required to register for an Account through the Platform.
As part of the registration process, or as part of Your continued use of the Platform, You may be required to provide personal information about Yourself (such as identification or contact details), including:
- first and last name;
- an email address;
- preferred username;
- a mailing address;
- a telephone number;
- Your entity or company name;
- Your IP address; and
- a password.
You warrant that any information You give to Locate2u in the course of completing the registration process will always be accurate, correct and up to date.
You may not use the Platform and procure the Products and Services if:
- You are not of legal age to form a binding contract with Locate2u; or
- You are a person barred from receiving the Services under the laws of Australia or other countries including the country in which You are resident or from which You use the Services.
Your Obligations as a User
As a user of the Platform, in addition to clause 8, You agree to comply with the following:
You will use the Platform and any Products and Services only for purposes that are permitted by:
- this Agreement
- policies, procedures and/or guides as made available via the Platform from time to time; and
- any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
You are responsible for all costs and expenses associated with downloading, installing, running, accessing or using the Platform, Services and any Products You purchase, including, without limitation, any costs associated with computing hardware, maintenance, server and data storage and internet access;
You have sole responsibility for protecting the confidentiality of Your password and/or email address;
any use of Your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Locate2u of any unauthorised use of Your password or email address or any breach of security of which You have become aware;
You must not expressly or impliedly impersonate another user or use the profile or password of another user at any time;
Your Data will always be accurate, correct and up to date and You will maintain reasonable records of Your Data;
You agree not to harass, impersonate, stalk, threaten another user of the Platform (where interaction with other users is made available to You);
You agree not to broadcast, publish, upload, transmit, post or distribute on the Platform abusive or objectionable content, including but not limited to discriminatory, racist, pornographic, threatening or abusive material;
access and use of the Platform is limited, non-transferable and allows for the sole use of the Platform by You;
You will not use the Platform for any illegal and/or unauthorised use which includes collecting email addresses of users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Platform;
You will not use the Platform in connection with or for any unauthorised use such as the collection of images, videos or data from the Platform for any use not otherwise authorised by Locate2u;
You acknowledge and agree that any automated use of the Platform or its Platform Services is prohibited;
You agree that we may charge You for all Products and Services that we agree to supply to You that have been ordered by You or using Your account through the Platform.
You must not tamper with or hinder the operation of the Platform, Services or Products, nor transmit any viruses, worms, defects, trojan horses or similar disabling or malicious code to the Platform or via the Services or Products.
You shall have in place daily back-up and disaster recovery measures in respect of its systems and data with which the Platform and Services are used, and effective firewall together with virus protection measures, with all associated costs to be borne by You. As between You and Locate2u, in the event of any dispute as to the accuracy of any stored data (including Your Data and/or Company Content), the data held and stored by Locate2u will be preferred.
Locate2u Breach of this clause 3 may result in immediate termination or suspension of the User Licence without liability to You.
- purchasing the Products and/or Services via the Platform;
- payment of the license fee for the Products and/or Services at the point of purchasing the licence for the Products and/or Services;
- using the Products and/or Services; or
- executing the Enterprise Agreement with Locate2u (whichever comes first),
You are granted a User Licence.
If You do not agree to this Agreement, You must not install, use, or copy the Products and/or Services.
The User Licence will be for the term applicable to the particular Products and/or Service as detailed on the Platform, Enterprise Agreement, Invoice or otherwise notified to You prior to or at the point of Your order being accepted.
Subject to the Enterprise Agreement, the applicable Licence Term will expire automatically at the conclusion of the Licence Term, unless terminated earlier in accordance with this Agreement.
You agree and acknowledge that by agreeing to this Agreement You agree to use the Platform, Products and/or Services fairly and not for an improper purpose. You acknowledge that Locate2u may, in its sole discretion, determine the scope of Your fair use of the Platform, Products and/or Services against the typical usage across its network of accounts. In the event that out of the ordinary usage is detected, Locate2u may contact You to discuss potential alternatives. In the event that any alternatives are not complied with, then this shall constitute a breach of this Agreement and Locate2u may, in addition to its other rights in this Agreement, terminate Your User Licence and/or this Agreement upon providing no less than 7 days notice.
In its sole discretion, Locate2u may grant You a temporary User Licence on a trial basis for a period of seven days or any other period as otherwise determined by Locate2u (Trial Licence).
Notwithstanding anything stated to the contrary herein, for the duration of any Trial Licence, Locate2u reserves the right to limit, suspend and/or stop providing the Platform, Products and/or Services at any time or from time to time, with or without prior notice to You.
You agree and acknowledge that Locate2u shall not be liable to You or any third party for any modification or cessation of the Platform and that that Locate2u has no obligation (express or implied) to provide or to continue to provide the Platform (or any part thereof) now or in the future.
On the last day of the Trial Licence period, unless You have cancelled your Trial Licence, You will be automatically charged the applicable fees for the type of licence you have selected.
If for any reason You are not satisfied with the Platform, Products and/or Services, You may, within the first 60 days of this Agreement, terminate this Agreement and claim a refund for fees already paid by You for that period.
To be eligible for a refund, You must:
- contact Locate2u in writing and provide all details reasonably requested by Locate2u to validate your refund claim;
- return, at Your cost in respect of delivery and handling charges, all Equipment (if any) to Locate2u in the same condition as it was supplied to You (subject to fair wear and tear); and
- provide Locate2u with the reason that You are claiming the refund.
Your refund will be credited to the credit card that You initially provided to Locate2u. If You used a payment method other than credit card, the refund will be paid into Your nominated bank account by electronic funds transfer.
Any decision of Locate2u relating to the refund (including Your eligibility) will be final.
Delivery of Products and Services
Delivery will occur via electronic means in the manner Locate2u deems appropriate in its sole discretion. This may include, without limitation, delivery by way of Locate2u making a link available to You to access the Products and/or Services to Your computer or similar device. In order to access the Platform, You may be required to create an account via the Platform. For the avoidance of doubt, delivery will be completed and Locate2u’s obligations in respect thereof satisfied upon Locate2u making the Products and/or Services available.
In consideration of You complying with this Agreement, Locate2u leases (as applicable) the Equipment to You for Your use for the purpose of using the Platform.
You must return the Equipment to Locate2u within 14 days of this Agreement and/or the Enterprise Agreement ending.
Locate2u will use best endeavours to repair and/or replace the Equipment as soon as practicable in the event of default or malfunction.
Delivery and handling charges in respect of the Equipment are payable by the dispatching party (e.g. Locate2u upon initial dispatch and You upon return).
Risk in each piece of Equipment passes to You upon delivery of the Equipment by Locate2u or its agent or representatives.
Until Locate2u has received payment in full under this Agreement and the Equipment is returned to Locate2u in the same condition as it was supplied to You (subject to fair wear and tear):
- title to the Equipment shall remain with Locate2u;
- You hold the Equipment as bailee for Locate2u; and
- the Equipment shall, so far as practicable, be kept separate from Your other goods, so as to be readily identifiable as the property of Locate2u.
Upon Your default of the due performance or observance of any other obligation under this Agreement and/or the Enterprise Agreement, including an event of insolvency, Locate2u may by notice in writing to You immediately demand possession of the Equipment from You and You shall afford Locate2u all reasonable assistance to locate and take possession of the Equipment.
You acknowledges that Locate2u has or will have a Security Interest in the Equipment and the proceeds from the sale of the Equipment for the purposes of the PPSA. Locate2u may do anything reasonably necessary, including but not limited to registering its Security Interest on the personal property securities register established under the PPSA in order to perfect this Security Interest and comply with the requirements of the PPSA. You agree to do all things reasonably necessary to assist Locate2u to achieve perfection of this Security Interest under the PPSA.
You agree to use and possess any Equipment at Your own risk. You agree that Locate2u bears no responsibility or liability for any Loss to any of Your property (including the Equipment).
To the fullest extent permitted by law, You release and discharge Locate2u and its agents and employees from:
- all Claims and demands on Locate2u; and
- any Loss whatsoever and whenever caused to You or Your agents or employees or any third party whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial Loss or otherwise,
arising directly or indirectly from or incidental to a breakdown of, or defect in any Equipment or any accident to or involving any Equipment or its use, operation, repair, maintenance or storage (whether occasioned by Locate2u’s negligence or otherwise) or which may otherwise be suffered or sustained in, upon or near any Equipment. You indemnify and hold Locate2u harmless to the full extent permitted by law for any Loss whatsoever arising in connection with the supply of and operation of the Equipment by You, including any breach of this Agreement and/or the Enterprise Agreement.
As an individual user, this Agreement entitles You to access and obtain the Products and/or Services from the Platform.
This Agreement permits the installation and/or use of the Locate2uProducts and/or Services pursuant to the number of User Licences as may be granted by Locate2u pursuant to the terms of Your subscription. For the avoidance of any doubt, the Products and/or Services must not be used at any point in time by more than the number of users than the number of User Licences granted by Locate2u under this Agreement or any Enterprise Agreement, unless You agree to purchase additional User Licences.
You may not assign Your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer Your rights to the Products or Services.
You may not:
- share the User Licence with others;
- permit the use of the Services by more than one user,
unless You hold multiple valid licenses.
You may not:
- decompile, “reverse engineer”, disassemble, decompile, or otherwise attempt to derive the source code for the Products;
- broadcast, transmit or otherwise display in a public forum or any venue not restricted to You, the Products and Services or any part of the Products and Services;
- post the Products and or Services or part of the Products and or Services on any website, unless otherwise expressly (in writing) agreed to by Locate2u;
- use the Products or Services for commercial purposes, including a service bureau;
- modify the Products or create any derivative work of the Products and Services or its accompanying documentation. Derivative works include but are not limited to translations;
- alter any files or libraries in any portion of the Products; or
- copy any part of the Products and/or Services except to the extent that the licensed use inherently demands the creation of a temporary copy stored in the computer memory and not permanently affixed on storage medium.
You agree and acknowledge that Locate2u may, from time to time, modify the Platform (including the Products and/or Services), including (without limitation) by adding or removing features or functions (Platform Update). Nothing in this Agreement prohibits Locate2u from implementing a Platform Update, provided that the Platform Update, in the reasonable opinion of Locate2u, does not materially reduce the functionality of the Platform.
In the event a Platform Update is implemented by Locate2u, You agree and acknowledge that You may be required to subscribe to access those additional elements of the Platform, Products and/or Services. Such additional subscription may render an adjustment or increase to the fees and/or price payable for the Products and/or Services.
Price and Costs
The price of the Products and Services is stated in the Enterprise Agreement, or, where You have purchased from the Platform, the price stated at the point of sale.
Unless stated otherwise in the Enterprise Agreement, Locate2u may amend the price:
- on 1 July each year by CPI (being the Consumer Price Index – Australia (All Groups), weighted average of eight capital cities, as published by the Australian Bureau of Statistics, or any successor index); or
- at any other time by providing 90 days notice in writing to you.
Locate2u will invoice You in advance for Products and Services supplied, or where purchased via the Platform You will be provided with a receipt.
The subscription price of the Products and Services is in Australian dollars and is exclusive of GST, or any other tax or charge imposed by any governmental entity upon the sale, use or receipt of the Products and Services.
Where You have been issued with an invoice for Products and Services supplied via the Platform by way of subscription, Locate2u will debit the outstanding amount prior to the commencement of each billing period (as applicable). In the event You have not supplied direct debit details, payments of any invoice issued by Locate2u must be made within fourteen days of issue.
If the debit at clause 10.5 is not successful, Locate2u will attempt a further debit of the invoiced amount.
If the subsequent debit at clause 10.6 is not successful, Your access to the Products and Services will be terminated and any amounts owing under this Agreement will be a debt due and payable to Locate2u.
You must pay all amounts due to the Locate2u:
- without set-off, deductions counter-claims or conditions; and
- in available cleared funds.
If You owe any amount to Locate2u, Locate2u may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:
- withhold all future supplies of Products and Services until that amount has been paid in full;
- set-off that amount against any amount owing by Locate2u to You; and/or
- immediately demand all amounts due and payable under this Agreement.
If an amount due under this Agreement is paid after the due date You must pay Locate2u, in addition to the overdue amount, and without prejudice to any other remedy Locate2u may have:
- interest at the rate of 10% per annum or the maximum rate allowed by applicable law, whichever is lower;
- all costs and expenses incurred by Locate2u in collecting the overdue amount.
Your obligation to pay an amount owing applies notwithstanding any delay in the delivery of the Services or Products.
Unless specified otherwise in this Agreement or otherwise agreed by the parties in writing:
- Intellectual Property Rights owned by you in Your Data will remain your property, and Locate2u acknowledges that nothing in this Agreement transfers title in or ownership of any Your Data to Locate2u;
- Intellectual Property Rights owned by Locate2u in the Platform and Company Content will remain the property of Locate2u, and you acknowledge that nothing in this Agreement transfers title in or ownership of any content or data in the Platform or the Company Content to you; and
- Intellectual Property Rights in all content developed by Locate2u in connection with the Services or Platform will vest on creation in Locate2u.
You grant to Locate2u an irrevocable, non-exclusive, non-transferable, royalty free licence to make such use of Your Data as is, in the reasonable opinion of Locate2u, necessary to provide the Services as set out in this Agreement and for any other purpose set out in the Agreement and/or the Enterprise Agreement. You shall indemnify Locate2u against all Claims made by third parties that the use of Your Data by Locate2u infringes its Intellectual Property Rights.
Locate2u grants to you an irrevocable, non-exclusive, non-transferable, royalty free licence to make such use of the Platform during the term of this Agreement and the Enterprise Agreement as is, in the reasonable opinion of Locate2u, necessary to complete use of the Services.
Locate2u maintains a lien over the Products, Services and any Developed Content until such time as You have paid all monies owing and have remedied any breach of the Agreement.
Locate2u and its agents, contractors and employees may access under a royalty free, non-exclusive perpetual licence the Developed Content for the purpose of providing, updating and/or developing the Services and undertaking market research, advertising Our Products and Services and publishing generic statistics which do not identify You or Your contributors.
Locate2u accepts no liability in respect of the Developed Content whatsoever or howsoever arising.
Locate2u is under no obligation to maintain, back-up or store the Client Data and/or the Developed Content and you are responsible for regular back-ups and data extraction.
In the event Locate2u maintains, backs-up or stores the Client Data and/or Developed Content, You acknowledge that Locate2u will do so in a location convenient to Locate2u, unless alternate arrangements have been made or expressly agreed.
During the term of this Agreement and/or any Enterprise Agreement, if You send or transmit any communications or materials to Locate2u by mail, email, telephone or otherwise, providing feedback or suggesting or recommending changes to the Products, Services and/or the Platform or any Locate2u Intellectual Property Rights (Feedback), You hereby assign to Locate2u all right, title, and interest in, and Locate2u is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Locate2u is not obliged to use any Feedback.
Hyperlinks and programming interfaces
The Platform, Products or Services may from time to time contain hyperlinks to other websites. Such links are provided for convenience only and Locate2u takes no responsibility for the content and maintenance of or privacy compliance by any linked website. Any hyperlink on our website to another website does not imply Locate2u’s endorsement, support, or sponsorship of the operator of that website nor of the information and/or products or services which they provide.
At Locate2u’s discretion, the Platform, Products or Services may provide programming interfaces or other software interfaces (API) which may include applications of third parties (Third-party Software) that can communicate with the Products and/or Services or respectively the servers of Locate2u.
Locate2u may change or switch off APIs at any time without any obligation or liability to you. The respective provider shall be responsible for the Third-party Software. The provisions of this Agreement shall not apply to any such Third-party Software and Locate2u shall have no liability for any Third-party Software.
Locate2u may use Your Data and personal information in de-identified form (de-identification being a process by which a collection of data or information is altered to remove or obscure personal identifiers and personal information) to assist it in the running of its business. Locate2u may also provide, including by way of sale, de-identified data and/or information in aggregated form, to third parties. This data and/or information may included, but is not limited to:
- trends in customer purchases;
- geo-location statistics; and
- such other data and/or information that is collected via the Platform and/or Services and is not capable of identifying You.
When your personal information is included in de-identified, aggregated data and/or information, it is not possible to identify you or anything about you from that data and/or information.
Warranties and exclusions
Everything on the Platform and incorporated in the Equipment, Products and/or Services is provided to You “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Locate2u make any express or implied representation or warranty about the Platform, Equipment, Products or Services. This includes (but is not limited to) Claims or Loss or damage you might suffer as a result of any of the following:
- failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records; or
- the accuracy, suitability, suitability or currency of any information on the Platform, Equipment, Products, Services, or any of its related products and services (including third party material and advertisements on the Platform).
No express or implied guarantees, warranties, representations, conditions and/or obligations are provided to you as to the Platform up-time and, pursuant to clause 15 of this Agreement, Locate2u will not be liable for any down time of the Platform for the duration of the Licence Term.
Provisions of the Competition and Consumer Act 2010 (Cth) and other laws in force from time to time in Australia may imply guarantees, warranties, conditions, and impose obligations on Locate2u and its subsidiaries, affiliates, and suppliers (Implied Terms). If these Implied Terms apply, Locate2u’s liability will be limited at its option to resupply, repair or replacement of the Equipment, Products or Services (as applicable), or the cost of such resupply, repair or replacement, to the extent permitted by law. Nothing in this Agreement excludes, restricts or modifies Your rights under an Implied Term.
Limitation of liability
Subject to any Implied Term, and to the extent permitted by law, Locate2u or any of its officers, employees, contractors or agents will not be liable to You for any Losses incurred by You or Claims made by You as a result of using the Platform, Products, Services, deficiencies in data acquisition and any documentation provided to You.
Locate2u’s liability is reduced proportionately in the event that You contributed to any Claim or Loss suffered by You.
In addition to the limitations in clauses 15.1 and 15.2, Locate2u’s liability in connection with this Agreement, the Platform, Products, Services and any documentation provided to You is limited to the price of the Products and Services charged under this Agreement.
In addition to the limitations in clauses 15.1 and 15.2, Locate2u’s liability in connection with this Agreement, the Platform, Products, Services and any documentation provided to You does not extend to any consequential loss (including loss of opportunity profits).
You agree and acknowledge that Locate2u will not be liable for any Losses or Claims arising from the use of the Platform, the Developed Content or any of Your Data generated via the use of the Platform or Services by you or any third parties.
You agree and acknowledge that Locate2u provides a Platform for the presentation and/or tool for the displaying of Your Data and/or Developed Content and it is no way liable for any Losses or Claims arising from the prior and/or subsequent capture, process, display and/or analysis of Your Data.
You agree and acknowledge that you will be responsible for all analysis of Your Data and will indemnify and hold Locate2u harmless for any Loss, Claim or damage in connection with the analysis of Your Data.
Subject to anything contrary in this clause 15, you indemnify and hold Locate2u harmless to the full extent permitted by law for any Loss, Claim or damage whatsoever or howsoever arising in connection with the supply to You of the Platform, Services, Products, Equipment, Your Data, Company Content and/or Developed Content.
Variation of Terms
Locate2u reserves the right to amend this Agreement from time to time. Such amendments will be either:
- published on the Platform from which the Products and or Services were purchased;
- notified to You via email directing You to a link; or
- notified to You by post.
The effect of any amendments will come into force from the date the amendments are published or you are notified pursuant to clause 16.1 or unless stated otherwise by Locate2u in any notification.
Upon notification of the variation and/or amendment as outlined in clause 16.1, You are at liberty to terminate this Agreement notwithstanding the conditions as set out in clause 17.
Locate2u may at any time, terminate this Agreement and the User Licence:
- at its discretion upon thirty days written notice;
- if you have breached any provision of this Agreement or intend to breach any provision; or
- if Locate2u is required to do so by law.
Locate2u reserves the right at any time to modify or discontinue, temporarily or permanently, the Platform, Products and/or Services (or any part thereof) with or without notice, in which event You shall be given a pro rata refund for that portion of the fee already paid for at the time of discontinuation and which cannot be used after discontinuation.
On termination, You must permanently remove and return or destroy all software Products from Your computers or other electronic devices.
Unless specified otherwise in the Enterprise Agreement, You will provide Locate2u with at least one month written notice should You wish to change your User Licence in any way, including cancellation of the User Licence. You agree and acknowledge that in the event of any cancellation of the User Licence pursuant to this clause 17.4, any amounts paid by You up until the conclusion of any term of this Agreement or the Enterprise Agreement, will be non-refundable.
Subject to the terms of this Agreement and any Enterprise Agreement:
- during the Licence Term and for a period of 30 days thereafter, You will be entitled to undertake a data extraction of Your Data from Locate2u’s Platform, in such form made available by Locate2u (e.g. CSV), at no additional cost; and
- in the event that Locate2u retains Your Data after the term, subject to clause 17.5(a), Locate2u may charge a fee, at its discretion, for data extraction requested by You.
In addition to any other right exercisable by Locate2u pursuant to this Agreement or any Enterprise Agreement, in the event that you fail to extract Your Data and any Developed Content from the Platform, Service and/or Product, you will lose access to Your Data which Locate2u may, in its sole discretion, permanently erase or delete.
Locate2u may subcontract the performance or provision of any part of the Services and/or Platform without obtaining the prior written consent from you.
Where Locate2u subcontracts the performance or provision of any part of the Services and/or Platform, Locate2u acknowledges and agrees that:
- it will be responsible for ensuring the suitability of any subcontractor appointed by it and that the work performed by such subcontractor meets the requirements of this Agreement; and
- it will be liable for any conduct, omission or neglect by any subcontractor appointed by Locate2u as fully as if such conduct, omission or neglect were the conduct of Locate2u, its employees or agents under this Agreement.
Related Party Services
You acknowledge and agree that:
- Locate2u may procure the services of its Associates from time to time, including but not limited to, for the purposes of data collection, data processing, quality control and/or other related services;
- Locate2u’s services are limited to the provision of the Platform and Services;
- despite clause 8, Locate2u does not engage its Associates as sub-contractor/s and is in no way liable for the acts or omissions of its Associates;
- you release, indemnify Locate2u and hold it harmless to the full extent permitted by law for any loss or damage whatsoever arising in connection with the supply of the Services to you by its Associates.
Any provision of, or the application of any provision of this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
Any provision of, or the application of any provision of this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
The failure, delay, relaxation or indulgence by a party in exercising, in part or whole, any power, right or remedy conferred upon that party by this Agreement shall not operate as a waiver of that power, right, or remedy.
This Agreement contains the entire Agreement between the Parties and supersedes any previous understandings, commitments or agreements, oral or written.
If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia.
If a dispute arises out of or relates to this Agreement, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sort).
A party to this Agreement claiming a Dispute has arisen, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute.
On receipt of that notice by that other party, the Parties must:
- Within 14 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
- If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the Chair of the Resolution Institute (ABN 69 008 651 232);
- The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The parties must each pay their own costs associated with the mediation;
- The mediation will be held in Sydney, Australia.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
Termination of Mediation
If 8 hours have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
Definitions and interpretation
In this Agreement unless the context otherwise requires:
Account means an account on the Platform as described in clause 2.1;
Agreement means this agreement, all schedules and, if the Products or Services were not purchased on the Platform, the Enterprise Agreement;
Associate means an associate entity as defined in Section 50AAA of the Corporations Act 2001 (Cth);
Claim includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including reasonable legal costs), investigation or judgment of any nature, whether known or unknown;
Company Content means all documents, instructions, specifications, codes, requirements, samples, measurements and other information and materials provided by Locate2u to You in relation to the performance of the Services.
Default Rate means 10% per annum, or the maximum rate allowed by applicable law, whichever is lower;
Developed Content means all content developed by the Parties in connection with the Products and/or Services as set out in clause 11.1(c);
Dispute means a dispute between the Parties as described in clause 21.2;
Enterprise Agreement means the enterprise agreement between Locate2u and You (or an entity related of You, as the case may be).
Equipment means tracking equipment supplied by Locate2u to You under or in connection with this Agreement, and includes any equipment described in an Enterprise Agreement (as applicable).
Implied Terms means those terms as specified in clause 14.3;
Intellectual Property Rights means all current and future registered and unregistered rights and all renewals and extension of those rights in respect of copyright, marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation 1967.
Invoice means an invoice issued by Locate2u to You;
Licence Term means the term of the User Licence as described at clause 4.3;
Loss means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental;
Notice means a notice of Dispute as specified in clause 21.2;
Parties means the parties to this Agreement;
Platform(s) means any Locate2u website, social media accounts, applications, software and other technological platform;
Platform Update means an update to the Platform (including the Products and/or Services) as described in clause 9.6;
PPSA means the Personal Property Securities Act 2009 (Cth);
Products means any products as detailed on the Platform or Enterprise Agreement;
Security Interest has the meaning given in the PPSA;
Service means the Locate2u software as a service provided by Locate2u as detailed on the Platform or Enterprise Agreement;
Trial Licence means a temporary trial User Licence as described in clause 5.1;
User Licence means a revocable, non-transferable, non-sub licensable, non-exclusive and limited licence to use the Products and/or Services strictly in accordance with this Agreement as described at clause 4.1;
You means the person named on the Enterprise Agreement, or where the Products are purchased via the Platform, the person who has purchased the Products and/or Services.
Your Data means any content and/or data that You broadcast, publish, upload, transmit, post or distribute on the Platform.
In this Agreement unless the context otherwise requires:
- the singular includes the plural and vice versa;
- where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
- a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
- a reference to any thing is a reference to the whole and each part of it;
- a reference to a group of persons is a reference to all of them collectively and to each of them individually; and
- a reference to a document includes all amendments or supplements to, or replacements or novation of, that document.
Version Date: October 2020