KargoLogic - Software as a Service (‘Saas’) User Agreement
This User Agreement is effective from 4 August 2019. From time to time, an updated User Agreement may be uploaded onto our website which will apply to all users, existing, current and new users. By continuing to use our services after any changes to this user agreement become effective, you agree to comply with those changes. If you do not agree with any changes to this user agreement, do not access or use the service.
This User Agreement is a legally binding contract between you and BT Tech Pty Ltd trading as KargoLogic.
By accessing or using the service, you agree to comply with all of the terms and conditions in this user agreement. You also agree to comply with any additional policies that are uploaded onto the website from time to time.
Please read carefully all of the terms and conditions of this user agreement, the terms of any policies and each of the other agreements that apply to you.
Terms and conditions
This agreement begins on the Commencement Date stated in the Sales Order.
2. THE SERVICE
2.1 Terms of Engagement
(a) The Customer appoints the Service Provider (BT Tech Pty Ltd trading as KargoLogic) as its provider of the Services specified in the Sales Order, and the Service Provider accepts the appointment and agrees to provide the Services to the Customer, in accordance with the terms and conditions of this Agreement.
(b) The Service Provider hereby grants the Customer a non-transferable, non-exclusive License to use the Service by means of a Supported Web Browser from any computer or mobile device and a phone application during the Term.
(c) The Customer will provide the Service Provider with such information, resources and authorities that the Service Provider reasonably requires to carry out the Services.
2.2 Service Provider Warranties
The Service Provider warrants to the Customer that, in connection with the provision of the Services:
(a) It is legally able to enter into this Agreement;
(b) It will comply with all applicable laws;
(c) It will use reasonable skill and diligence;
(d) The use of the Software and any documentation in accordance with this agreement will not result in a breach of any law or mandatory code of conduct;
(e) the provision of the Software and the Services to the Customer and the use of any documentation by the Customer, will not:
(i) infringe any person’s rights (including Intellectual Property Rights and Moral Rights); or
(ii) constitute a misuse of any person’s Confidential Information.
(f) It will adhere to best practice policies and procedures to prevent data loss, including a system data back-up regime.
2.3 Customer Warranties
The Customer warrants to the Service Provider that, in connection with the provision of the Services:
(a) It represents, covenants, and warrants that it will comply with all terms and conditions and policies of the Service Provider and will ensure that all persons using the Service with its authority or by means of an Account will comply with all policies and agreements binding upon the customer
(b) It is solely responsible for obtaining and maintaining all equipment, computer hardware and software and all telecommunications services required by it to access and use the Services and will ensure that all such equipment and services comply with the technical specifications provided by the Service Provider.
(c) It will take all reasonable precautions to ensure the security of access to the Services and must not, under any circumstances, allow any third party or any person other than an authorised user to access or use the Services for any purpose without the prior written consent of the Service Provider.
(d) It will be solely responsible and liable for maintaining its commercial fleet, its drivers and all associated operations. The customer will ensure compliance with all relevant legislations and requirements for occupational health and safety, NHVR regulations and warrants that it will abide by the laws relevant for the type of work being carried out by the logistics companies.
(e) It agrees to inform the Service Provider immediately if it becomes aware of any unauthorised use of the Services by any person.
(f) It acknowledges and accepts that the information provided in the App, including the navigation directions or routes may not always be accurate or appropriate for its drivers. The customer accepts this risk and indemnifies KargoLogic against any claims, actions or suits arising out of the same.
3.1 Payment of Fees
In return for the provision of the Services by KargoLogic, the Customer agrees to pay the Fees as set out in the Sales Order. Any payment made by the Customer is non-refundable
KargoLogic invoices will be generated electronically and transmitted by email to the customer’s nominated email address. The invoice will be due within 7 days of the receipt. The Customer authorises KargoLogic to debit the Credit Card or issue an invoice or debit a bank account as nominated in the Sales Order for the fees payable to KargoLogic.
3.3 New Services Costs
If during the term the products constituting the Services is amended by agreement between the parties, and the provision of any agreed new Services to the Customer may incur a third party or additional cost. In such case the Service Provider will provide the Customer with notice if any of these third party or additional costs (and the amount of such costs) are to be passed on to the Customer.
3.4 Withholding tax
The Customer shall be responsible if a law requires the Customer to deduct an amount in respect of Taxes from a payment under this Agreement, to:
(a) pay a net amount to the Service Provider that the Service Provider would have received if the Tax had not been imposed; and
(b) pay an amount equal to the amount deducted to the relevant Government Agency in accordance with the applicable law.
3.5 Variation of Fees
In the absence for any other agreement in writing between the Customer and the Service Provider, the Service Provider may elect to vary any element of the Fees by giving the customer notice of the variation via the Service or via an email address nominated by the customer.
3.6 Effect of Non-payment
KargoLogic may suspend Customer’s access to the Services without any notice if Customer fails to pay any invoice in full when due. In addition to such other rights as KargoLogic may have, the Customer must continue to pay fees during any suspension. The Customer completely indemnifies KargoLogic and agrees to reimburse any costs or expenses (including, but not limited to, all legal fees) incurred by KargoLogic to collect any overdue amount. KargoLogic may accept any cheque or payment in any amount without prejudice to its right to recover the balance or to pursue any other right or remedy. Customer may not withhold amounts due to KargoLogic under this Agreement for any reason or offset them against amounts that Customer asserts are owed to Customer by KargoLogic. KargoLogic may also seek interest at a rate of 14% per annum, payable on a daily basis, on any overdue invoices.
4. AVAILABILITY OF THE SERVICES
4.1 Enhancements, Updates, New Releases
KargoLogic may, in its sole discretion, make enhancements, updates or new releases of the Software available through the Service from time to time in order to enhance or improve the functionality or operation of the service or comply with legislative requirements.
KargoLogic will use its best endeavours to maintain the reliability and efficiency of the Services subject to unscheduled interruptions to the availability of the Services due to factors beyond the control of KargoLogic- including any actions by the Customer or third parties, including telecommunications providers. In such events, Karologic will not be held responsible and the Customer warrants that it will not bring any claim, action or seek compensation of any form due to the temporary unavailability of the services.
The Customer will communicate any difficulties encountered with the Services to the Service Provider as soon as is reasonably practicable following detection.
5. RIGHTS OF ACCESS AND USE
Subject to the terms of this Agreement, KargoLogic will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s KargoLogic account. KargoLogic reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
5.2 Customer restrictions and responsibilities
Customer will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by KargoLogic or authorized within the Services); or access the Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services.
5.3 Licence to Use
With respect to any Software or application that is distributed or provided to Customer for use on Customer premises or devices, KargoLogic hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to:
(i) use such Software and the application during the term of this Agreement only in connection with the Services; and
(ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for the Customer’s personal, non-commercial use.
Any rights not expressly granted herein are reserved by KargoLogic and KargoLogic’s licensors.
6.1 Confidential information
The Customer agrees and warrants to keep the Confidential Information of KargoLogic confidential and not deal with it in any way that might prejudice its confidentiality. This clause also applies to Confidential Information of the related bodies corporate.
The Customer acknowledges and accepts that some of the information resulting from the activities of KargoLogic pursuant to this agreement will also be regarded as Confidential Information and the Customer agrees that the Customer's obligations extend to this category of information.
The Customer's obligations with regard to the Confidential Information will continue for so long as this information is maintained on a confidential basis by KargoLogic.
The Confidential Information does not include information which:
(a) is generally available in the public domain otherwise than as a result of a breach of this agreement; or
(b) was known by the Customer prior to KargoLogic disclosing the information to the Customer.
6.2 Confidentiality at Termination
At the termination of this agreement, or when earlier directed by KargoLogic:
(a) all Confidential Information must be returned to KargoLogic, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Customer makes and any software that the Customer creates based on the Confidential Information; and
(b) the Customer must erase and destroy any copies of any software containing or comprising the Confidential Information in the Customer’s possession or under the Customer's control or that may have been loaded onto a computer possessed or controlled by the Customer.
6.3 Confidentiality Agreement
The Customer agrees that KargoLogic may require any of the Customers, their employees, directors or associates to sign a confidentiality agreement in a form is approved by KargoLogic.
The Customer agrees to indemnify KargoLogic against all liabilities, costs and expenses which KargoLogic may incur as a result of any breach of this clause by the Customer.
The Customer acknowledges that damages may be an inadequate remedy for breach of this clause and that KargoLogic may obtain injunctive relief against the Customer for any breach of this clause. Thiis clause survives termination or expiry of this agreement.
KargoLogic shall own and retain the sole right, title and interest in and to:
(a) the Services and Software, all improvements, enhancements or modifications thereto
(b) any software, applications, inventions or other technology developed in connection with support; and
(c) all intellectual property rights related to any of the foregoing.
8. RIGHT TO COLLECT AND USE CUSTOMER INFORMATION
KargoLogic shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and KargoLogic will be free (during and after the term hereof) to:
(i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other KargoLogic offerings, and
(ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
KargoLogic may make or release to the public any press release, public announcement or disclosure relating to the existence or subject matter of this Agreement (including using the Customer’s logo and name on the KargoLogic website and marketing materials), which, for the avoidance of doubt, includes any press release, public announcement or disclosure that is required to be made by law or the rules of any Regulatory Authority.
9. TERM AND TERMINATION
This Agreement is for the Initial Service Term as specified in the Sales Order, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless the customer requests termination at least sixty (60) days prior to the end of the then-current term.
9.2 Early Termination
In addition to any other remedies it may have, if the customer materially breaches any of the terms or conditions of this Agreement or its policies, KargoLogic may terminate the contract immediately and cease the customer’s access to its services. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, limitations of liability and indemnity.
10. AUTOMATED PAYMENT PLATFORM
KargoLogic may use a third-party platform to direct all payments. The privacy terms of the payment platform will be linked onto our website in due course.
11. INDEMNIFICATION AND LIMITATION OF LIABILITY
In this section and in this agreement, we use the term KargoLogic to refer to BT Tech Pty Ltd, any ultimate parent, and any affiliates, and each of their respective directors, officers, employees, agents, joint venturers, service providers and suppliers. Affiliates include each entity that we control, we are controlled by or we are under common control with.
The customer, and its associates, indemnify and hold KargoLogic, its affiliates, and each of their officers, directors and employees harmless from any claim or loss (including legal fees) arising out of or in connection with the following, but not limited to:
(a) any breach of any agreements or policies;
(b) any breach of any law by the customer;
(c) any breach of any right of a third party by the customer;
(d) an act or omission of a person the Customer authorises to access the KargoLogic account; or
(e) subject to the ePayments Code, an act or omission of a person not authorised to access the account as a result of the Customer’s negligence.
11.2 Limitation of liability
KargoLogic’s liability is limited with respect to the KargoLogic account and the Customer’s authorise use of the services. To the maximum extent permitted by law (and subject to liability under any Consumer Guarantee), and to the extent that KargoLogic’s liability is not otherwise limited by this part or any other term of this agreement in no event will KargoLogic be liable for Consequential Loss (whether the claim is in relation to the loss or damages arises under statute, in contract or in tort (including negligence) or otherwise) arising out of or in connection with:
(a) the websites, software, systems, apps (including any networks and servers used to provide any of the Services) operated by KargoLogic or on its behalf;
(b) any of the Services; or
(c) This agreement;
(d) error or interruption of use;
(e) any loss or inaccuracy of information;
(f) corruption or data;
(g) cost of procurement of substitute goods, services or technology;
(h) loss of business; or
(i) any matter beyond KargoLogic’s reasonable control
To the maximum extent permitted by law (and subject to the liability under Consumer Guarantee that may apply), in no event will KargoLogic be liable to the Customer for any loss or damage of any kind (including Consequential Loss) arising out of or in connection with:
(a) the customer’s use of, or inability to use, the websites, software, systems (including any networks and servers used to provide any of the Services) operated by KargoLogic or on its behalf, or any of the Services;
(b) delays or disruptions in the websites, software, systems (including any networks and servers used to provide any of the Services) operated by KargoLogic or on its behalf and any of the Services;
(c) viruses or other malicious software obtained by accessing the websites, software, systems operated by KargoLogic or on its behalf;
(d) glitches, bugs, errors, or inaccuracies of any kind in the websites, software, systems or in the information and graphics;
(e) the content, actions, or inactions of third parties;
(f) a suspension or other action taken with respect to the customer’s KargoLogic account; or
(g) the customer’s need to modify its practices, content, or behaviour, or loss of or inability to do business, as a result of changes to this agreement or any other agreements and policies.
To the extent that KargoLogic’s liability is not otherwise limited by this part, and to the maximum extent permitted by applicable law, KargoLogic is not liable for Consequential Loss.
To the maximum extent permitted by law, KargoLogic’s liability for any breach or non-compliance with a Consumer Guarantee is limited to resupplying the services or payment of the cost of their re supply.
12. NO WARRANTY
KargoLogic shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by KargoLogic or by third-party providers, or because of other causes beyond the reasonable control of KargoLogic, but KargoLogic shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, KargoLogic does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND KARGOLOGIC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, EXCEPT FOR THOSE NOT ABLE TO BE EXCLUDED BY LAW.
This Agreement is governed by and construed in accordance with the laws of Australia. Any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement shall be referred to and finally resolved by the Courts of Victoria.
Where an insolvency event occurs, the user is considered to have defaulted under this Agreement. KargoLogic may exercise its discretion in relation to ceasing the provision of Services.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
16. NO ASSIGNMENT
This Agreement is not assignable, transferable or sublicensable by Customer except with KargoLogic’s prior written consent. KargoLogic may transfer and assign any of its rights and obligations under this Agreement without consent.
This Agreement is the complete and exclusive statement of the agreement between the parties and supersedes and voids all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Any waivers and modifications must be in writing signed by both parties, except as otherwise provided herein.
17. RELATIONSHIP BETWEEN PARTIES
No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind KargoLogic in any respect whatsoever.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
19. APPLICATION (APP)
By using the App in any manner, the Customer agrees to be bound by this Agreement, any other agreement or policies uploaded on the website of KargoLogic. KargoLogic reserves the right to modify or terminate the App for any reason, without notice, at any time.
19.1 The App
The Smartphone App is a platform allowing Customers who have registered with the App and have agreed to comply with KargoLogic’s policies to benefit from the Service provided by KargoLogic.
The Customer agrees and accept that the App is merely a platform and as such is not responsible or liable for any content, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by the Customer, other Users, or other third parties on the App (“Content”), and other such information as may be required (eg. receiver’s phone number, comments, promo codes, etc.) (“Information”).
KargoLogic also does not control the Content and Information provided by Users that are made available to KargoLogic. For instance, the App may collect, store and make available data relating to the current or previous locations of its User. It is the Customer’s responsibility to ensure its drivers turn off the App after its use to ensure that the location is not continuing to being tracked. By using the App, the Customer and its drivers agree to accept the risk that location related data may be stored and made available even whilst the drivers are not engaged in work where the drivers fail to switch the App off.
Customers may find some Content or Information to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretences. By using the App, the Customer agrees to accept such risks. The Customer also agrees that KargoLogic is not responsible for any and all acts or omissions of Users on the App.
The App is available only to, and may only be used by, individuals who are 18 years old or older, and who can form legally binding contracts under the applicable laws in Australia. Individuals under the age of 18 must at all times use the App only with and under the supervision of a parent or legal guardian, who is at least 18 years of age. The parent or legal guardian shall be deemed the User and shall be responsible for any and all activities.
The users of the App and our services are solely responsible for acquiring and maintaining relevant permissions, qualifications, insurances and licenses required for the operation of commercial vehicles and for the conduct of such business that may benefit from our services. The users undertake to comply with all relevant laws including various traffic rules, road rules and license authorities’ guidelines, as they may be applicable to the user.
19.3 User Responsibilities
The Customer agrees to abide by this Agreement, any other agreement and such other policies as may be published from time to time, each of which is incorporated herein by reference and each of which may be updated by KargoLogic from time to time without notice to the Customer.
19.4 Privacy and Data Protection Policy
The Customer shall do all things necessary to preserve and maintain the integrity and security of its account, including but not limited to ensuring that there is no unauthorised access and/or use of the account. The username and password shall remain confidential and shall not be shared with any other person, other than KargoLogic without KargoLogic’s express written consent. The customer agrees to immediately notify KargoLogic of any unauthorised use of your password or any breach of security. The customer also agrees that KargoLogic cannot and will not be liable for any loss or damage arising from your failure to keep your password secure.
19.5 Customer’s obligations
The Customer is solely responsible for its conduct and activities on the App, as well as any and all Content that you enter, submit, post, and display on the App. The Content, Information, and/or use of the App shall not:
(a) be false, inaccurate or misleading;
(b) be defamatory, libellous, unlawfully threatening, unlawfully harassing, or intimidating, to any person (including KargoLogic’s staff and other Users);
(c) contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
(d) modify, adapt or hack the App or modify another website or app so as to falsely imply that it is associated with KargoLogic; and
(e) involve any matter that is seditious, or otherwise threatens the national security or public order of Australia