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Terms and Conditions

Time for The Good Stuff

STANDARD TERMS AND CONDITIONS FOR CUSTOMER AGREEMENTS

1.                 DEFINITIONS AND INTERPRETATIONS

 

1.1               Definitions

“Business Day” means a day which is not a Saturday, a Sunday, or a public or bank holiday in Perth, Western Australia;

“Claim” means any cost, expense, loss, damage, claim, liability, action or proceeding whether or not presently ascertained, immediate, future or contingent and includes legal costs on a full indemnity basis;

“Commencement Date” means the date referred to as such in the Summary Terms;

“Confidential Information” means:

  • any information disclosed, directly or indirectly, by one Party to another Party before, on or after the Commencement Date under or in connection with matters which are the subject of the Agreement, including information that is designated as “confidential” or in some other manner to indicate its confidential nature or any Intellectual Property Rights; and
  • all or any of the following as it relates to Rand Platform or the Platform generally:
    • technical, financial, operational, legal and other information, including any Intellectual Property Rights, systems, technology, ideas, concepts, know-how, techniques, specifications, blueprints, tracings, diagrams, models, functions, capabilities and designs (including computer software, manufacturing processes or other information embodied in drawings or specifications);
    • information derived or produced partly or wholly from any information the subject of (i) above, including any calculation, conclusion, summary or computer modelling;
    • trade secrets or information which is capable of protection at law or in equity as confidential information; and
    • any information and Intellectual Property Rights owned by Rand McNally which are concerned with or connected to the Services,

but does not include information which is independently known by the other relevant party or becomes publicly available, in each case unless occurring in circumstances which involve a breach of confidence.

“Corporations Act” means the Corporations Act 2001 (Cth);

“CPI” means the Consumer Price Index All Groups (Perth) published from time to time by the Australian Bureau of Statistics. If the CPI is suspended or discontinued it will be substituted with an index which in the opinion of the Dean for the time being of the Faculty of Economics at the University of Western Australia is most similar to the CPI;

“Customer Data” means the Location Data, Vehicle Data, and any other data obtained by Rand McNally in connection with the performance of the Services;

“Fleet Vehicles” means the vehicles or other assets owned, managed or operated by the Customer in the Territory;

“Rand McNally Policies” means Rand McNally’s policies applicable to the provision of the Services, including its Privacy Policy (in the form available on the Website from time to time);

“GPS” means the global positioning system;

“GST” means any consumption tax imposed by the Australian government which operates during the term of this Deed or any renewal or holding over period and includes (without limitation) a Goods and Services Tax within the meaning of the GST Law;

“GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and all related statutes and any other law related to or in furtherance of the GST;

“Hardware Transmission Unit” means a hardware device purchased by or otherwise supplied to the Customer by or on behalf of Rand McNally which must be connected with Fleet Vehicle diagnostic ports, for the purpose of:

  • obtaining, sending and receiving one or more of Location Data and Vehicle Data; and
  • communicating with the Platform via Mobile Communication Services;

“HTU Services” means Services which can only be provided by Rand McNally in conjunction with the supply of Hardware Transmission Units by Rand McNally to the Customer;

“Input Tax Credit” has the meaning given to it in the GST Law, and in relation to a supply refers to a credit under the GST Law for the GST payable by the recipient in respect of the supply; “Insolvency Event” means the happening of one or more of the following to a Party:

  • the Party is insolvent or states that it is insolvent as defined in the Corporations Act;
  • a controller (as defined in the Corporations Act) is appointed to any part of the Party’s property;
  • the Party is in receivership, receivership and management, in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property;
  • the Party is subject to an arrangement, assignment, moratorium or compensation protected from creditors under statute, dissolved (other than to carry out reconstruction or amalgamation while solvent on terms approved by the other Party to the Agreement);
  • an application or order has been made against the Party (and in the case of an application it is not withdrawn or dismissed within 30 days), resolution passed, proposal put forward or any other action taken, in each case in connection with that Party which is predatory or could result in any of the circumstances detailed in paragraphs (a) to (d) above;
  • the Party is taken under section 459(F)(1) of the Corporations Act or is the subject of an event described in section 459(C)(2)(b) or section 585 of the Corporations Act (or it makes a statement from which the other Party to the Agreement reasonably deduces);
  • the Party is otherwise unable to pay its debts when they fall due; or
  • something having a substantially similar effect to the circumstances detailed in paragraphs (a) to (g) happens in connection with that Party under the law of any jurisdiction;

“Intellectual Property Rights” means:

  • the various rights and property conferred under statute, common law and equity in and in relation to patents, inventions, designs, copyright, trademarks, service marks, trade names, logos and get up, circuit layouts, know-how, scientific discoveries, trade secrets and confidential information and the right to have trade secrets and confidential information kept confidential and all other intellectual property rights;

and includes:

  • all applications for registration, extension, renewal or otherwise for the rights and property referred to in paragraph (a) of this definition; and
  • all rights of action for the rights or property referred to in paragraph (a) of this definition; “Law” means any law or legal requirement, including at common law, in equity, under any statute, regulation or by-law;

“Location Data” means data on the geographical position of a Hardware Transmission Unit, including GPS data;

“Login Information” means the username(s), password(s) and any other information provided to or created by the Customer for the purpose of accessing the Platform or Website; “Mapping Data” means third party GPS location maps;

“Mobile Communications Device” means a mobile device supplied by the Customer which is connected to GPS and Mobile Communications Services, including without limitation mobile phone or tablets;

“Mobile Communication Services” means mobile electronic communication services, including GSM/GPRS data transmissions.

“Money Payable” means any money payable by the Customer to Rand McNally under the Agreement from time to time, including any Subscription Fee, Purchase Fee or any other fee payable pursuant to the Agreement;

“Non-HTU Services” means Services which are not dependent on (and do not involve) the

supply of Hardware Transmission Units by Rand McNally to the Customer;

“Notice” has the meaning given in clause 22.1;

“Party” means Rand McNally or the Customer according to the context and “Parties” means both of them;

“Platform” means the proprietary software application known as “Rand McNally” developed by or on behalf of, and owned by, Rand McNally, together with all adaptations, modifications, amendments, extensions, revisions, updates, upgrades and other changes made thereto, which allows the Customer to monitor the location of, and other data relating to Fleet Vehicles, including by facilitating the transmission of Location Data and Vehicle Data between the Platform and the Hardware Transmission Units via a Mobile Communications Service; “Privacy Act” means the Privacy Act 1988 (Cth);

“Products” means the products supplied by Rand McNally to the Customer from time to time under the Agreement, including Hardware Transmission Units and SIM Cards;

“Purchase Fee” means the applicable fee payable by the Customer to purchase a Purchased Hardware Transmission Unit;

“Purchased Hardware Transmission Unit” means a Hardware Transmission Unit purchased by the Customer from time to time in accordance with the Agreement;

“Related Party” has the meaning given in the Corporations Act;

“Services” means services provided by Rand McNally to enable the Customer to access the Platform and the Customer Data;

“SIM Card” means a SIM Card provided by Rand McNally to the Customer pursuant to clause 2.3;

“State” means the jurisdiction referred to in the Summary Terms;

“Subscription” means a subscription by the Customer for Services to be provided in accordance with the Agreement for a particular Fleet Vehicle (and “Subscribe” means the action of the Customer in taking out such a Subscription);

“Subscription Commencement Date” has the meaning given in clause 3.1(a);

“Subscription Fee” means the applicable annual fee payable by the Customer for each relevant Subscription made by it (and the total amount of Subscription Fees payable by the Customer as at the Commencement Date, having regard to the number and type of Subscriptions involved, is set out in the Summary Terms);

“Subscription Period” means a period of 12 months;

“Summary Terms” means the summary terms document to which these Terms and Conditions are attached, which sets out details of the key variables relevant to the specific agreement between Rand McNally and the Customer;

“Supplied Software” has the meaning given in clause 2.3;

“Tax Invoice” in relation to a supply means an invoice for the supply required by the GST Law to support a claim by the recipient for an Input Tax Credit for the GST on the supply;

“Term” means has the meaning given in the Summary Terms and, if applicable, includes any Further Terms;

“Terms and Conditions” means these standard terms and conditions, as in force from time to time;

“Third Party Service Providers” has the meaning given in clause 18(a);

“Vehicle Data” means data relating to a Fleet Vehicle; and

“Website” means Rand McNally’s website available at www.Rand McNally.com (or any successor or replacement website or location, as the case may be).

1.2               Interpretation

In an agreement of which these Terms and Conditions form part, unless the context otherwise requires:

  • headings are for convenience only and do not affect its interpretation;
  • an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally;
  • a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all

ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;

  • words importing the singular include the plural (and vice versa) and words indicating a gender include every other gender;
  • reference to clauses or Schedules are references to clauses of, or Schedules to, the Agreement and a reference to the Agreement includes any Schedule to it;
  • where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
  • a reference to any agreement or document (including the Agreement) is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
  • a reference to “$” or “dollars” is a reference to the lawful currency of Australia;
  • the word “includes” in any form is not a word of limitation;
  • a reference to a right, power or thing includes a part of it; and
  • references to “agree”, “approve” or “consent” are to agreement, approval or consent (as the case may be) in writing.

2.                

 
  

PROVISION OF PRODUCTS AND SERVICES

 

2.1               Products and Services

  • Rand McNally agrees to provide the Products and Services to the Customer during the Term and the Customer agrees to accept and pay for such Products and Services (including paying all Subscription Fees and any relevant Purchase Fees when due) in accordance with the Agreement.
  • The Customer acknowledges that the Services are provided on a “software as a service” basis and, accordingly, the Customer will not have any ongoing rights with respect to the licence of any component software forming part of the Platform or the Services (nor any ability to use such software independently of the Services).

2.2               Supply and installation of Products

  • As soon as practicable after the Commencement Date, Rand McNally will procure the dispatch and delivery to the Customer’s address of one Hardware Transmission Unit and one corresponding SIM Card for each Fleet Vehicle in respect of which the Customer has Subscribed for HTU Services
  • Risk of loss or damage in the Hardware Transmission Units and SIM Cards passes to the Customer with effect from their delivery to the Customer, provided that title in those items remains at all times with Rand McNally (other than as regards Purchased Hardware Transmission Units, in respect of which title also passes to the Customer on delivery).
  • The Customer must use each SIM Card supplied under clause 2.2(a) in combination with a Hardware Transmission Unit (and on no other device) and strictly for the purposes of transmitting Location Data and Vehicle Data between the applicable Fleet Vehicle and the The Customer must either return to Rand McNally or destroy a SIM Card which is not being used in combination with a Hardware Transmission Unit, or if it is otherwise directed to do so for whatever reason by Rand McNally.
  • The Customer indemnifies, defends and holds Rand McNally and its affiliates harmless from and against any Claims suffered or incurred by, or brought, made or recovered by any person, in particular the underlying wireless service carrier, against Rand McNally in connection with any use of a SIM Card which is in breach of the Agreement.

2.3               Supplied Software

  • Rand McNally may from time to time during the Term provide software to the Customer for the purpose of allowing the Customer to access the Services (“Supplied Software”), by making the Software available for download or by email to the email address provided by the Customer.
  • The Customer agrees and acknowledges that:
    • all Supplied Software is made available by Rand McNally strictly on the terms and

conditions of the Agreement; and

  • the Customer’s use of the Supplied Software may be subject to additional terms and conditions which the Customer must agree to prior to using the Supplied

2.4               Customer set-up responsibilities

The Customer acknowledges it is responsible for:

  • installing and equipping each Fleet Vehicle with a properly working Hardware Transmission Unit, including in compliance with any reasonable directions or instructions of Rand McNally and applicable Law and ensuring that each Hardware Transmission Unit provided to it is connected to the applicable Mobile Communications Services, so as to activate the relevant Fleet Vehicle on the Platform;
  • ensuring the Customer has properly functioning browser software and internet access to the Website and the Platform of sufficient bandwidth to enable the Services to be properly provided;
  • correctly configuring the Services and Mobile Communications Devices; and
  • ensuring that all Supplied Software is installed and operated on compatible and appropriate Mobile Communications Devices, including without limitation in accordance with minimum specifications that may be provided by Rand McNally from time to time.

2.5               Service level target

During the Term, Rand McNally will provide the Services in accordance with the Service Level Agreement and the provisions of these Terms and Conditions, provided that:

  • in the event of any inconsistency between the Service Level Agreement and these Terms and Conditions, these Terms and Conditions prevail; and
  • nothing in the Agreement creates or will be deemed to create any guarantee on the part of Rand McNally as regards the extent to which the Services will be available to the Customer during a particular period of time.

3.                

 
  

SUBSCRIPTION AND PAYMENT

 

3.1               Initial Subscription Period and Service activation

  • The initial Subscription Period:
    • for HTU Services for which the Customer has Subscribed will be deemed to commence on and from the date on which Rand McNally’s delivery service provider notifies Rand McNally that the relevant Hardware Transmission Units and SIM Cards contemplated in clause 2 have been delivered to the Customer; and
    • for Non-HTU Services for which the Customer has Subscribed will be deemed to commence on the activation date agreed between Rand McNally and the Customer and confirmed in writing by Rand McNally to the Customer,

with such relevant commencement date to be the Subscription Commencement Date.

  • Notwithstanding clause 3.1(a), Rand McNally will not be liable to the Customer to activate any Fleet Vehicle on the Platform until such time as the Customer has paid to Rand McNally:
    • all relevant Subscription Fees for the initial Subscription Period; and
  • (ii) all Purchase Fees relating to any Purchased Hardware Transmission

Subscription and Purchase Fees

  • Subject to these Terms and Conditions, the total aggregate amount of Subscription Fees payable by the Customer for:
    • the initial Subscription Period is the amount specified in the Summary Terms; and
    • each subsequent Subscription Period is the amount calculated by multiplying the number of Subscriptions as at the commencement of that Subscription Period by the relevant fee for the corresponding Services specified in Schedule 1 (as adjusted in accordance with clause 3.2(d)), with such Subscription Fees to be payable on each relevant anniversary of the Subscription Commencement Date.
  • The Purchase Fee for:
    • Hardware Transmission Units purchased as at the Commencement Date will be the relevant fee specified in the Summary Terms; or
    • in any other case, the relevant fee specified in Schedule 1 (as adjusted in accordance with clause 3.2(d)).
  • Subject to the terms of the Agreement, the Subscription Fees and Purchase Fees are non-refundable.
  • Rand McNally may, at any time and in its absolute discretion, increase any Subscription Fee with respect to future Subscription Periods, as well as any other fees payable by the Customer in connection with the Services, by an amount equal to the percentage difference between the most recently published CPI figure and that applicable as at the date on which any previous increase in the Subscription Fee was made (or, if no such previous increase has been made, as at the Commencement Date), plus 2.5%. Any such change:
    • may be notified by e-mail to the Customer or posted to the Website; and
    • will take effect as at the commencement of the Subscription Period to which it relates.

3.3               Timing and method of payment

  • Without limiting any other provision of the Agreement, Money Payable specified in a Tax Invoice provided by Rand McNally to the Customer must to be paid in full by the Customer within 14 days from the date of receipt of that Tax Invoice.
  • The Customer must, at the direction of Rand McNally pay Money Payable by:
    • direct debit;
    • credit card; or
    • electronic funds
  • If the Customer pays for Products and/or Services by continuing credit card installment payments, the Customer acknowledges that Rand McNally is authorized to deduct all due payments on the dates on which they are required to be made and the Customer will continue to remain liable for all payments due and owing under the
  • The Customer must ensure that all billing information supplied by it to Rand McNally is accurate at all times during the Term.

Direct debit authority

If any Money Payable is to be paid by the Customer by direct deposit, the Customer must sign a direct debit authority in a form required by Rand McNally, which must be in place on and from the Commencement Date for the payment of the Subscription Fee and any other Money Payable.

Interest and late payment fee

Without affecting the rights, powers and remedies of Rand McNally under the Agreement, the Customer must pay to Rand McNally on demand:

  • interest at the rate of 5% per annum (calculated daily); and
  • a late payment fee corresponding to the costs incurred by Rand McNally in recovering any payment not made by the Customer on the due or scheduled date for payment, including but not limited to administrative costs,

in respect of any Money Payable which is unpaid for 14 days computed from the due date for payment until payment in full.

4.                

 
  

LICENSING

  • With effect from the Commencement Date, Rand McNally grants to the Customer a non- exclusive and non-transferable license, for the duration of the Term only, to:
    • access the Platform;
    • use any Supplied Software; and
    • use the Services,

strictly for the purposes, and subject to the terms and conditions, of the Agreement.

  • Rand McNally confirms to the Customer that nothing in the relevant terms and conditions

under which it licenses software from any third parties in connection with the provision of the Services operates to prevent Rand McNally from granting to the Customer the license rights contemplated in clause 4(a).

5.                

 
  

INCREASE OR DECREASE IN SUBSCRIPTIONS

5.1               Increase in Subscriptions

The Customer may by notice in writing to Rand McNally at any time and from time to time during the Term request to increase its Subscriptions (providing details of the additional

number of Hardware Transmission Units required), provided that any such increase will be subject to:

  • Rand McNally’s written consent (which it will use reasonable endeavors to provide

within 14 days, but may be withheld in Rand McNally’s sole discretion); and

  • such consent having been obtained, the payment by the Customer of

any corresponding additional Subscription Fees, in respect of which the Customer will immediately make the upfront payment to Rand McNally which is calculated under clause 5.2.

5.2               Upfront payment for remaining portion of Subscription Period

The upfront amount payable by the Customer under clause 5.1(b) will be calculated by aggregating the total amount of Subscription Fees payable with respect to those additional Subscriptions and multiplying that amount by:

  • the number of days between the date of Rand McNally’s written consent under clause 5.1(a) and the next anniversary of the Subscription Commencement Date;
  • divided by

5.3               Timing for subsequent Subscription Fee payments

Other than as contemplated under clause 5.2, the Subscription Fees as regards any additional Subscriptions to which clause 5.1 relates will be payable by the Customer on each applicable anniversary of the Subscription Commencement Date.

5.4               Reduction in Subscriptions

  • The Customer may by notice in writing to Rand McNally at any time and from time to time during the Term elect to reduce its Subscriptions (providing reasonable details of the number and type of Subscriptions to be reduced and all applicable Fleet Vehicles to which those Subscriptions relate), in which case:
    • the Customer will nonetheless remain liable to Rand McNally to continue to pay Subscription Fees in connection with those Subscriptions in relation to any Subscription Periods for which the Customer had previously committed to those Subscriptions; and
    • the Customer must within 14 days after its relevant notice under clause 4(a) return to Rand McNally all Hardware Transmission Units (other than Purchased Hardware Transmission Units) and SIM Cards which relate to the Fleet Vehicles listed in that notice (and if the Customer fails to comply with its obligations under this clause 5.4(ii), or any such Hardware Transmission Units are returned in a state whereby they are faulty, damaged or inoperative, Rand McNally will be entitled to charge the Customer for the replacement cost of those Hardware Transmission Units).
  • For the avoidance of doubt, clause 5.4(a) does not apply to the situation where the Customer wishes to reduce to zero its number of Subscriptions (in respect of which the Customer must instead exercise its rights under clause 14.2).

6.                
USAGE OF PRODUCTS AND SERVICES

 

6.1               No unauthorized use or activity

The Customer must not engage or attempt to engage in any activities that:

  • use any Products other than in conjunction with the Services, or copy, modify, reverse engineer or decompile the Products, Platform, Website or any Supplied Software used or accessed or accessible via the Services or any part of the same (save to the extent expressly permitted by Law) nor allow any other third party to do the same;
  • violate the rights of any third party (including abusing, stalking or threatening, actual or threatened infringement of Intellectual Property Rights, misappropriation of trade secrets, confidential information, electronic fraud or invasion of privacy);
  • introduce or allow the introduction, transmission, distribution or uploading of any, virus, worm, Trojan horse, zombie, keylogger, time bomb, cancelbots, Easter eggs, spyware, mail bombing, flashing, spamming, flooding, or other potentially harmful programs, materials, information or malicious code into the Products, the Platform, the Website, Supplied Software or any related network;
  • use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Platform, Website, Supplied Software, Services, or their contents;
  • involve the unauthorized use of any machine or network, denial of service attacks, falsification of header information or user identification information, monitoring or scanning the networks of others;
  • gain unauthorized access to the Products, Website, Platform, Supplied Software or Services;
  • disrupt, impair, alter or otherwise interfere with the functions, features or content of the Products, Website, Platform, Supplied Software or Services;
  • restrict or inhibit any other person from using the Products, Website, Platform, Supplied Software or Services, including, without limitation, by means of “hacking” or defacing a portion of the Platform or Website;
  • modify, adapt, decompile, reverse engineer, disassemble or otherwise reduce the Products, Website, Platform or Services to a human-perceivable form;
  • harvest or collect information about users of the Products, Website, Platform, Supplied Software or Services without their express written consent;
  • use any meta-tags or any other “hidden text” utilizing Rand McNally’s name or content of the Website without Rand McNally’s express written permission; or
  • frame the Website, or utilize framing techniques on any part of the Website or the Services, without Rand McNally’s express written permission.

6.2               Care and maintenance of Products

  • The Customer must maintain all Products provided to it pursuant to the Agreement in good and serviceable condition and use them strictly in accordance with any directions of Rand McNally and applicable Law.
  • If any Product (other than a Purchased Hardware Transmission Unit) is or becomes faulty, damaged or inoperative, the Customer will notify Rand McNally as soon as practicable, providing reasonable details of the applicable circumstances and will arrange the return of the relevant item at its cost to Rand McNally. Rand McNally may (in its sole discretion) elect either to repair or replace the relevant Product and reserves the right to charge the Customer a reasonable fee (up to the replacement cost of the Product in question) in that regard, other than to the extent Rand McNally is satisfied that such Product was faulty, damaged or inoperative at the time of its delivery to the Customer.
  • Within 14 days after the termination or expiry of the Agreement (however occurring), the Customer must return to Rand McNally all Products (other than Purchased Hardware Transmission Units) in its possession or control and, to the extent that:
    • the Customer fails to comply with its obligations under this clause 2(c); or
    • any Products are returned in a state whereby they are faulty, damaged or inoperative,

Rand McNally will be entitled to charge the Customer for the replacement cost of all relevant Products.

6.3              Customer indemnity

The Customer indemnifies, defends and holds Rand McNally and its affiliates harmless from and against any Claims suffered or incurred by, or brought, made or recovered by any person against, Rand McNally n connection with a breach by the Customer of this clause 6.

6.4               Survival

This clause 6 survives the termination of the Agreement.

7.                

 
  

SUPPORT SERVICES

 

  • Rand McNally reserves the right to charge additional fees for any support it may provide to the Customer in relation to the Services [in excess of that contemplated in clause 7(a) above].
  • Any support provided by Rand McNally to the Customer will be solely offered on an online basis through the Website via a ticket lodgment system.

8.                
CUSTOMER OBLIGATIONS

 

  • The Customer must use the Products and the Services strictly in accordance with any instructions provided by Rand McNally as to use, the Privacy Act and all other applicable Laws. The Customer must also ensure that all other persons using the Products and the Services act in accordance with the Privacy Act and any other applicable Laws and any instructions provided by Rand McNally as to use. The Customer and those parties it allows to use the Products and the Services have the sole responsibility to obtain any necessary consent from the users of all devices or assets or vehicles where the Hardware Transmission Units are installed and must not use the Products or the Services to track or monitor any person without consent. To the extent permitted by Law, the Customer indemnifies and holds Rand McNally harmless in relation to any Claims arising in connection with the use or operation of Products and the Services in breach of the terms of the Privacy Act or any other Law, or contrary to any instructions provided by Rand McNally as to use.
  • The Customer must keep all Login Information secure and confidential. Unless expressly permitted by the Agreement, or otherwise authorized in writing, the Customer must not share any Login Information with any person.
  •  
 
  
  • The Customer agrees to notify Rand McNally in writing as soon as possible of any change to its Login Information or other account details, including its business address and applicable banking information.

9.                 CUSTOMER ACKNOWLEDGEMENTS

The Customer acknowledges and accepts that:

  • due to the intermittent nature of the internet and mobile networks, all or any of the Products, Website, Platform, Supplied Software or Services may be temporarily unavailable from time to time;
  • Rand McNally does not warrant that GPS or the Mobile Communication Services will continue to support the functionality offered by the Services or Hardware Transmission Units nor that the Customer will be able to successfully use the Products or Services for the purposes of the Agreement, due to the fact that such use depends partly on circumstances beyond Rand McNally’s reasonable control, including circumstances for which the Customer is responsible pursuant to clause 2.4;
  • to the extent permitted by Law, all descriptive specifications, illustrations, samples, data and dimensions provided by Rand McNally or otherwise contained in advertising material or on the Website are approximate only and are intended to be a general description of the Products and Services and are not incorporated into the Agreement or any other agreement with the Customer unless Rand McNally otherwise agrees in writing;
  • the Website may contain information or advertisements provided by third parties and Rand McNally accepts no responsibility whatsoever for any information or advice provided to the Customer directly by third parties in this regard;
  • Rand McNally reserves the right to at any time change the look and feel of the Website, the Platform and the way in which Customer Data is displayed on the Platform;
  • Rand McNally may suspend access to the Platform at any time in order to undertake planned or unplanned upgrading or maintenance works to the Platform (provided that it will use reasonable endeavors to minimize any resultant period of unavailability);
  • Rand McNally will use reasonable endeavors to address any material error, flaw, failure or fault in relation to the Website, Platform, Supplied Software or Services in a timely manner, but will have sole discretion regarding any actions to be taken in that regard;
  • the Customer will comply at all times with the Rand McNally Policies (and the Customer acknowledges that the Services are provided on that basis);
  • Mobile Communication Services may be delayed or not delivered from time to time;
  • there may be location errors due to the GPS data or typographical errors in the Mapping Data used;
  • the Customer’s access to and use of the Platform is dependent on Hardware Transmission Units having access to the Mobile Communication Services or a GPS signal. If a Hardware Transmission Unit is in a location where it cannot get coverage from Mobile Communication Services or a GPS signal, then the Platform will not be able to locate the Hardware Transmission Unit until such time as it moves into an area with network coverage or capable of receiving such signal;
  • Rand McNally is not liable to the Customer or any other person for faults or defects that arise in connection with services and products other than the Products or the Services (even if they are connected, with Rand McNally’s consent, to the Products or Services) which are due to incompatibility with the Services, including without limitation Mobile Communications Services and Mobile Communications Devices;
  • the Products and the Services are not failsafe and are not to be used for emergency use where failure of the Products or the Services or inaccurate location information could lead to property damage, personal injury or death;
  • while Rand McNally will use reasonable efforts to ensure the accuracy, correctness and reliability of the Products and Services, Rand McNally makes no representations or warranties as to the accuracy, correctness or reliability of any content, product, service or data supplied by Rand McNally (including the Products, Website, Platform, Supplied Software or Services). Rand McNally is not liable for the consequences of the Customer’s failure to independently check such information, including for any wasted expenditure, personal injury or loss of, or damage to, tangible property that results from the Customer’s reliance on the Products, Website, Platform, Supplied Software or Services;
  • to the extent that unexpected faults arise in connection with the Website, Platform, Supplied Software or Services, Rand McNally will use reasonable endeavors to ensure that it is restored to full functionality as soon as However, Rand McNally does not promise that any of the Products, Website, Platform, Supplied Software or Services will operate in a manner that is error free or uninterrupted; and
  • Rand McNally will use reasonable endeavors to ensure that the Website, Platform, Supplied Software or Services are free from viruses and harmful code but Rand McNally cannot and does not guarantee that files which a Customer downloads will be free of contamination or destructive properties.

10.  GST

GST exclusive

10.1

10.2

If a Party makes a taxable supply under the Agreement, except where the Agreement states otherwise, the amount payable by the Party for the taxable supply represents the GST exclusive value of the supply and the recipient of the supply must, in addition, pay to the supplier the GST payable in respect of the supply.

Tax Invoice

A Party’s obligation under clause 10.1 to pay the GST on a taxable supply to it of goods and/or services by another Party only arises on the delivery by the supplier of a Tax Invoice for supply.

The Tax Invoice must comply with the requirements of the GST Law including the provision of the supplier’s Australian Business Number (if applicable).

11.             

 
  

CUSTOMER DATA

 

  • The Customer’s use of the Services and Products may generate Customer Data which is stored by or on behalf of Rand McNally and accessible by the Customer via the Platform and the Website. The Customer agrees that Rand McNally may:
    • use and analyze Customer Data for the purpose of improving the Services and including the Customer Data in aggregated anonymous databases; and
    • access Customer Data to service or respond to technical issues which may arise in connection with the Services or Products.
  • Within 7 days after the termination of the Agreement, the Customer may request a copy of the Customer Data, in which case:
    • Rand McNally will provide the Customer with a single [data file containing a] copy of the Customer Data, in a format determined by Rand McNally in its sole discretion (and without any obligation to reformat, interpret or process the Customer Data);
    • the Customer Data will no longer be accessible to the Customer; and
    • Rand McNally will have no further obligation to the Customer in connection with the Customer Data.
  • Nothing in this clause 11 shall limit the application and effect of Rand McNally’s Privacy
  • The Customer hereby:
    • grants to Rand McNally a non-exclusive, royalty-free, perpetual, irrevocable, fully paid-up, worldwide license, with the right to sub-license to use, modify, reproduce, adapt, communicate, display, perform, anonymize and distribute Customer Data and user statistical information such as usage, traffic patterns, or user activities for any purpose, provided that such Customer Data will be:
      • de-identified such that no person or entity (including but not limited to the Customer) can be identified, and
      • combined with the data of other users or additional data sources; and
    • represents and warrants that Customer Data does not infringe any third party Intellectual Property Rights and that the Customer owns or otherwise controls all of the rights to the information contained in the Customer Data or that the Customer has obtained all necessary authorizations and consents to upload, store, communicate, send and/or transmit Customer Data, that Customer Data is accurate, that the use of Customer Data does not violate the Agreement and will not cause any loss or injury to any person.
  • This clause 11 survives the termination of the agreement

12.              CONFIDENTIALITY

12.1            General obligation of confidence

  • Subject to clause 12.1(e), each Party (“Receiving Party”) agrees, in respect of the Confidential Information of the other Party (“Disclosing Party”):
    • the Confidential Information is strictly confidential;
  • it must not disclose or publish (and must use its best endeavors and take all necessary or desirable measures to prevent the disclosure or publication of) the Confidential Information to any third party, other than where disclosure occurs:
  1. to their professional advisers in relation to their rights under and performance of the terms of the Agreement;
  2. their respective officers, employees, agents or contractors for the sole purpose of complying with the Agreement; or
  3. With the prior written consent of the other Party,

and the recipient agrees to be bound by the same obligation of confidence as applies to the Receiving Party;

  • it must immediately notify the other party of any infringement, misuse or misappropriation of the Confidential Information of which they may become aware of;
  • the Confidential Information and all information relating to the Confidential Information must be stored in a place which is safe and secure; and
  • the Confidential Information will at all times remain the sole, absolute and exclusive property of the Disclosing Party (and nothing in the Agreement constitutes the grant of any right, title or interest of any kind to the Receiving Party in or relating to the Disclosing party’s Confidential Information).
  • The Customer must not make any use of Rand McNally’s Confidential Information or any part of it to the competitive disadvantage of Rand McNally or in a manner otherwise adverse to the business interests of Rand McNally.
  • Notwithstanding any clause in the Agreement, the Customer acknowledges and agrees that any analytics, reports, analyses, data compilations and any other data and information that relate to the Platform constitute Confidential Information of Rand McNally, which Rand McNally may disclose, use and exploit for any business purpose in its sole discretion.
  • A Receiving Party may disclose Confidential Information of a Disclosing Party to the extent disclosure is required:
    • by Law or to a court;
  • to enforce the Agreement; or
  • to give effect to the terms of the
  • The Receiving Party acknowledges a breach by it of this clause 12 may cause the Disclosing Party irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies which may be available, the Disclosing Party may seek and obtain injunctive relief or other urgent interlocutory relief against such a breach or threatened or suspected breach.
  • The Receiving Party will, immediately following termination of the Agreement (or, within 14 days after a request at any other time by the Disclosing Party) return, or at the option of the Disclosing Party, destroy and certify the destruction of, all documents and other materials (including copies) provided directly or indirectly to the Receiving Party relating to or containing Confidential Information of the Disclosing Party.

12.2            Survival

The obligations of confidence pursuant to this clause 12 shall survive the expiration or termination of the Agreement.

13.             

 
  

REPRESENTATIONS AND WARRANTIES

 

Each Party represents and warrants in favor of the other Party as at the Commencement Date that:

  • it has full power and lawful authority to execute and deliver the Agreement and to consummate and perform or cause to be performed its obligations under the

Agreement;

  • it is duly incorporated and validly exists under the laws of its place of incorporation;
  • no Insolvency Event has occurred in relation to it;
  • the execution and delivery by it of the Agreement has been properly authorized by all necessary corporate action on its part; and
  • the Agreement constitutes a legal, valid and binding obligation of that Party enforceable in accordance with its terms by appropriate legal remedy.

14.             

 
  

SUSPENSION AND TERMINATION

 

14.1            Suspension by Rand McNally

Rand McNally may suspend the use of the Services and the Customer’s access to the Platform at any time without notice in the following circumstances:

  • the Platform or the Website requires maintenance or upgrading;
  • Rand McNally reasonably believes that the Products or Services are being used contrary to any Law or the Agreement; or
  • as a result of the occurrence of an event outside of Rand McNally’s reasonable

control. Termination by either Party

  • Unless earlier terminated as provided herein, the initial term of this Agreement shall commence on the Effective Date and shall continue until the Service Term expires. Thereafter, the Agreement shall automatically renew for successive one (1) year periods until either Party gives written notice of termination to the other Party not less than ninety (30) days in advance of the end of the initial Service Term or any subsequent renewal period.
  • Upon termination of the Agreement pursuant to clause 14.2(a), the Customer will remain responsible for the timely payment of all Money Payable which relates to the then-current Subscription Period.
  • If the Customer terminates the Agreement under clause 14.2(a), the Customer will within [21] days of the date on which such termination occurs, pay to Rand McNally a lump sum amount equating to all fees which the Customer would otherwise have been liable to pay under the Agreement had it not been terminated prior to the expiry of the Term (or Further Term, as the case may be).

14.2            Immediate Termination by Rand McNally

Rand McNally may terminate the Agreement immediately by written notice to the customer

  • if m o n e y Payable remains unpaid by the Customer to Rand McNally for 7 days after the date on which Rand McNally gives notice to the Customer of the relevant unpaid Money Payable being due;
  • the Customer is in breach of any obligations under the Agreement and the breach is not remedied within 14 days from the date written notice of the breach is given by Rand McNally to the Customer;
  • an Insolvency Event occurs in relation to the Customer; or
  • the Customer ceases or threatens to cease conducting its business in the normal

14.3            Consequences of termination

  • If notice is given to the Customer pursuant to clauses 14.4 or 14.3, Rand McNally will be discharged from all future obligations under the Agreement and may, in addition to terminating the Agreement:
    • retain any monies paid by the Customer to Rand McNally up to the date of termination;
    • charge the Customer for any unpaid amounts which would have been payable to Rand McNally if the Agreement had not been terminated due to the Customer’s default; and
    • pursue any additional or alternative remedies against the Customer provided by
  • Upon the termination of the Agreement (howsoever occurring), the rights and obligations of the Parties shall, except as otherwise provided in the Agreement, be at an end and the Parties shall be released and discharged from all liabilities under the

Agreement save for the performance of those obligations (if any) which should have been performed and all damages for breach of any of the same.

15.             
LIMITATION OF LIABILITY

 

15.1            Exclusion of liability

To the maximum extent permitted by Law and unless expressly stated to the contrary in the Agreement:

  • all terms, conditions, warranties, undertakings, inducements or representations, whether express, implied, statutory or otherwise relating in any way to the provision by Rand McNally of the Services, or to the Agreement or the transactions contemplated by it, are excluded; and
  • Rand McNally excludes all terms, guarantees, conditions and warranties in relation to the provision and delivery of the Services.

15.2            Limitation where liability incapable of exclusion

If any liability under clause 15.1 cannot be excluded, Rand McNally’s liability for any breach of any term, guarantee, condition or warranty implied by Law shall be limited, at its option, to any one or more of the following:

  • if the breach relates to Products:
    • the replacement of the Products or the supply of equivalent products;
    • the repair of such Products;
    • the payment of the cost of replacing the Products or of acquiring equivalent products; or
    • the payment of the cost of having the Products repaired; and
  • if the breach relates to the Services:
    • the supplying of the relevant Services again; or
    • the payment of the cost of having the relevant Services supplied

15.3            No liability for indirect, special or consequential loss

Rand McNally is not liable in any way to the Customer for any indirect, special or consequential loss or damage suffered or incurred by the Customer, including any loss of revenue, loss of production, loss of product, loss of contract, loss of opportunity, loss of profit, damage to reputation, economic loss, whether in contract, tort, under any Law or otherwise, arising out of or in any way connected to the Services or the Agreement.

16.             
GENERAL INDEMNITY

 

The Customer will indemnify and keep indemnified at its expense and to the maximum extent permitted by Law, Rand Mc Nally against any and all Claims suffered or incurred by, or brought, made or recovered by any person against Ra n d Mc N all y and its affiliates arising out of or in connection with:

  • any negligent act or omission or willful misconduct of the Customer in relation to the use or operation of the Product or Services;
  • any use of the Products, Website, Platform, Supplied Software or Services;
  • any breach by the Customer of any term of the Agreement or any Rand McNally Policy; or
 
  
  • any breach of any Law or use or misuse of the Product, Platform or Services, including but not limited to, any breach of privacy or claim of illegality in the use, operation, or access to Products and Services including the collection of location, tracking and monitoring information.

17.              FORCE MAJEURE

To the maximum extent permitted by Law and without limitation to clause 8, Rand McNally is not liable for any:

  • delay in correcting any fault in the Services;
  • failure or incorrect operation of the Services; or
  • other delay or default in performance under the Agreement,

if it is caused by an event beyond Rand McNally’s reasonable control, including but not limited to war, theft, willful or accidental damage, sabotage, act of God, industrial action, pandemic, embargo, delay or failure or default of a Mobile Communications Service, failure of or inability to access the GPS network, or any failure of other suppliers of goods or services to Rand McNally or the Customer.

18.             

 
  

THIRD PARTY SERVICE PROVIDERS

 

The Customer acknowledges and accepts that:

  • Rand McNally may from time to time engage third party service providers in order to provide the Services (“Third Party Service Providers”). The Customer agrees to comply with all requirements and restrictions that these Third Party Service Providers may impose on the Customer directly, or indirectly by imposition on Rand McNally, in relation to their respective products and/or services, at the time of, or subsequent to, entering into the Agreement;
  • without limiting clause 15, Rand McNally’s liability is reduced to the extent that loss or damage of any kind is caused, or contributed to, by Third Party Service Providers;
  • by entering into the Agreement, the Customer agrees to comply with the respective terms and conditions of all Third Party Service Providers, which at the date of the Agreement include but are not limited to Amazon Web Services and HERE Maps; and
  • Third Party Service Providers and their respective terms and conditions may change from time to time during the Term.

19.              INTELLECTUAL PROPERTY RIGHTS

19.1            Retention of ownership

Unless otherwise agreed and specified in writing by the Parties, each Party shall retain ownership of all Intellectual Property Rights owned by it prior to, or developed by it during the course of and in connection with, the Agreement.

19.2            Warranties with respect to intellectual property matters

Each Party warrants in favor of the other Party that:

  • neither it, nor its employees, agents or contractors, shall infringe the Intellectual Property Rights of the other Party, or any other rights of any third party, in connection with the performance of its obligations under the Agreement; and
  • it will notify the other Party promptly in writing if it becomes aware of any such

19.3            Indemnification

  • Each warranting Party under clause 19.2 shall fully indemnify the other Party against any Claim suffered or incurred by, or brought, made or recovered by any person against, that other Party in connection with any infringement by that warranting Party under clause 19.2.
  • The indemnity referred to in clause 19.3(a) above shall apply whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination and not requiring any payment for any entitlement to the indemnity arises.

19.4            Survival

This clause 19 survives the termination of the Agreement.

20.             

 
  

DISPUTE RESOLUTION

 

  • The Parties agree that they will endeavor at first instance to settle as between themselves any dispute, controversy or claim arising under or concerning the Agreement. A Party will not start mediation or court proceedings (except proceedings seeking interlocutory relief) for a dispute arising out of the Agreement (“Dispute”)

unless it has complied with this clause 20(a). A Party claiming a Dispute has arisen must give written notice to the other party detailing the Dispute.

  • For a period ending on the date being 21 days after the date on which notice is given under clause 20(a) (or any longer period agreed to by the Parties in writing) (“Resolution Period”), each Party must use its best endeavors to resolve the Dispute as soon as possible. If the Dispute is not resolved within the Resolution Period, either Party may (at its election depending on the nature of the Dispute) refer it to:
    • LEADR (ACN 08 651 232) to facilitate a mediation of the Dispute in accordance with LEADR’s mediation rules applicable at the date of the referral, in which case the mediation must take place within 14 days after the referral; or
    • an independent expert selected by the President for the time being of the Western Australian branch of the Institute of Chartered Accountants, which expert will act as an expert and not as an arbitrator and will be instructed to deliver its expert determination regarding the Dispute as soon as practicable.
  • Each Party must bear its own costs with complying with this clause 20 and the Parties must bear equally the costs of any mediator or independent expert engaged.

21.             
ASSIGNMENT

 

  • The Customer may not assign any of its rights and obligations under the Agreement without the prior written consent of Rand McNally (which may be withheld in its absolute discretion).
  • Rand McNally may assign its rights and obligations under the Agreement to a related entity of Rand McNally upon notice to the Customer but without the need to obtain the Customer’s consent.

22.             

 
  

NOTICES

 

22.1            Form and delivery of Notices

Any notice, request, consent, demand or application required to be given by either Party to the other pursuant to the terms of the Agreement (“Notice”):

  • must be in English and in writing; and
  • must be delivered personally, sent by pre-paid post or sent by email to the recipient Party at the address specified in clause 22.3 below (or such other address as may be notified by that Party in accordance with this clause 20 from time to time).

22.2            Time for receipt of Notices

Any Notice sent by:

  • post within USA to an USA postal address is deemed to have been received three Business Days after it was posted;
  • post:

is deemed to have been received ten Business Days after the date of posting; and

  • email is be deemed to be received if a delivery confirmation report is received by the sender stating the email was delivered, or if the sender does not receive any message advising the sent email was undeliverable or had failed

but if the Notice is sent after 5 pm or on a day which is not a Business Day in the place of receipt, the Notice is taken as being received at 9 am on the next Business Day in that place.

22.3            Address details

The Parties’ initial details for service of Notices under the Agreement are as specified in the Summary Terms.

23.             
GENERAL

 

23.1            Entire agreement

The Agreement is the entire agreement and understanding between the Parties as to its subject-matter and supersedes any prior contract, arrangement or understanding.

23.2            Variation

The Agreement may only be amended or varied by a written document signed by the Parties.

23.3            Further assurances

The Parties shall execute all documents and do all such acts and things necessary or desirable to implement and give full effect to the provisions and purposes of the Agreement and the transactions contemplated herein.

23.4            Severability

In the event of any part of the Agreement being or becoming void or unenforceable then that part shall be severed from the Agreement to the intent that all parts that shall not be or become void or unenforceable shall remain in full force and effect and unaffected by any severance.

23.5            Relationship

The relationship of the Parties under the Agreement is that of independent contractors and nothing in the Agreement will be deemed to give rise to a partnership, joint venture or other fiduciary relationship as between them.

23.6            No merger

The covenants, conditions and provisions of the Agreement that are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.

23.7            Waivers

A waiver by a Party of any power or right it has under the Agreement:

  • must be in writing; and
  • does not constitute a future waiver of that power or right, nor a waiver of any other power or right that such Party may have.

23.8            Costs

Each Party shall bear its own costs in relation to the preparation and finalization of the Agreement and the performance of that Party’s obligations under it.

23.9            Counterparts

The Agreement may be executed in a number of counterparts (including by means of facsimile signature). Each counterpart is an original but the counterparts together are one and the same instrument.

23.10         Governing law and jurisdiction

The Agreement shall be governed by the laws in force in the State from time to time and the Parties submit to the non-exclusive jurisdiction of the courts of the State (and all courts entitled to hear appeals therefrom) for all disputes arising in connection with the Agreement.