1. General

1.1 Talcasoft Australia Pty Ltd (‘Talcasoft’ or ‘our’ or ‘we’) is in the business of providing software and other technological products and services for the purpose of delivery and field service management (‘Platform’).

1.2 This Agreement is between You and Talcasoft Australia Pty Ltd (‘Talcasoft’ or ‘our’ or ‘we’) and governs the use of the Platform, Products and Services offered by Talcasoft.

1.3 Any Product or Service description displayed on the Platform is incorporated into this Agreement by reference. In the event of inconsistency, this Agreement prevails.

1.4 By using the Platform, Products or Services, You agreed 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.

2. Registration

2.1 In order to use the Platform, You may be required to register for an account through the Platform.

2.2 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).

2.3 You acknowledge that Talcasoft will rely upon any information You give to Talcasoft in the course of completing the registration process always being accurate, correct and up to date (and You will promptly update Talcasoft if such information changes).

2.4 You may not use the Platform and procure the Products and Services if:

  • (a) You are not of legal age to form a binding contract with Talcasoft; or
  • (b) You are a person barred from receiving the Products or Services under the laws of Australia or other countries including the country in which You are resident or from which You use the Products or Services.

3. Your Obligations as a User

3.1 As a user of the Platform, in addition to clause 7, You agree to comply with the following:

  • (a) You will use the Platform and any Products and Services only for purposes that are permitted by:
    • (i) this Agreement
    • (ii) policies, procedures and/or guides as made available via the Platform from time to time; and
    • (iii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
  • (b)  except as expressly agreed by Talcasoft, 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;
  • (c) You have sole responsibility for protecting the confidentiality of Your password and/or email address;
  • (d) access and use of the Platform is limited, non-transferable and allows for the sole use of the Platform by You;
  • (e) 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.

3.2 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.

3.3 Whilst Talcasoft implement protective measures, we cannot guarantee the security of the Platform or that our software will never suffer from any failure or outage.  Data loss is an unavoidable risk and You are responsible for maintaining copies of all data You enter into the Platform.  We will strive to keep the Platform up and running, however no software is perfect and we will not be liable for any disruption or loss You (or anyone else) may suffer as a result of such occurrence.

4. Licence

4.1 Upon the first to occur of You:

  • (a) purchasing the Products and/or Services;
  • (b) using the Products and/or Services; or
  • (c) executing the Enterprise Agreement (if applicable, or otherwise agreeing to be bound by this Agreement) with Talcasoft

You are granted a User Licence.

4.2 If You do not agree to this Agreement, You must not install, use, or copy the Products and/or Services.

4.3 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.

4.4 Unless otherwise expressly agreed by Talcasoft, the applicable Licence Term will  automatically renew for consecutive [30 / 180] day periods at the conclusion of the Licence Term (each a ‘Renewal Period’), unless terminated earlier in accordance with this Agreement. During a Renewal Period, either Talcasoft or You may terminate this Agreement upon providing no less than 30 days notice.

4.5 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 Talcasoft 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, Talcasoft 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 Talcasoft 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.

5. Trial Licence

5.1 In its sole discretion, Talcasoft may grant You a temporary User Licence on a trial basis for a period of 7 days or any other period as otherwise determined by Talcasoft (‘Trial Licence’).

5.2 Notwithstanding anything stated to the contrary herein, for the duration of any Trial Licence, Talcasoft 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.

5.3 You agree and acknowledge that Talcasoft shall not be liable to You or any third party for any modification or cessation of the Platform and that that Talcasoft has no obligation (express or implied) to provide or to continue to provide the Platform (or any part thereof) now or in the future.

5.4 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.

6. Satisfaction guarantee

6.1 If for any reason You are not satisfied with the Platform, Products and/or Services, You may, within the first 30 days of this Agreement, terminate this Agreement by written notice to Talcasoft.

7. Delivery of Products and Services

Delivery will occur via electronic means in the manner Talcasoft deems appropriate in its sole discretion. This may include, without limitation, delivery by way of Talcasoft 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 Talcasoft’s obligations in respect thereof satisfied upon Talcasoft making the Products and/or Services available.

8. Equipment

8.1 In consideration of You complying with this Agreement, Talcasoft leases (as applicable) the Equipment to You for Your use for the purpose of using the Platform.

8.2 You must return the Equipment to Talcasoft within 7 days of this Agreement and/or the Enterprise Agreement ending.

8.3 Talcasoft will use best endeavours to repair and/or replace the Equipment as soon as practicable in the event of default or malfunction.

8.4 Delivery and handling charges in respect of the Equipment are payable by the dispatching party (e.g. Talcasoft upon initial dispatch and You upon return).

8.5 Risk in each piece of Equipment passes to You upon delivery of the Equipment by Talcasoft or its agent or representatives.

8.6 Until Talcasoft has received payment in full under this Agreement and the Equipment is returned to Talcasoft in the same condition as it was supplied to You (subject to fair wear and tear):

  • (a) title to the Equipment shall remain with Talcasoft;
  • (b) You hold the Equipment as bailee for Talcasoft; and
  • (c) the Equipment shall, so far as practicable, be kept separate from Your other goods, so as to be readily identifiable as the property of Talcasoft.

8.7 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, Talcasoft may by notice in writing to You immediately demand possession of the Equipment from You and You shall afford Talcasoft all reasonable assistance to locate and take possession of the Equipment.

8.8 You acknowledges that Talcasoft 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. Talcasoft 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 Talcasoft to achieve perfection of this Security Interest under the PPSA.

8.9 You agree to use and possess any Equipment at Your own risk. You agree that Talcasoft bears no responsibility or liability for any Loss to any of Your personnel or property (including the Equipment).

8.10 To the fullest extent permitted by law, You release and discharge Talcasoft and its agents and employees from:

  • (a) all Claims and demands on Talcasoft; and
  • (b) 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 Talcasoft‘s negligence or otherwise) or which may otherwise be suffered or sustained in, upon or near any Equipment.

9. License Conditions

9.1 As an individual user, this Agreement entitles You to access and obtain the Products and/or Services from the Platform.

9.2 This Agreement permits the installation and/or use of the Products and/or Services pursuant to the number of User Licences as may be granted by Talcasoft 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 User Licences granted by Talcasoft under this Agreement or any Enterprise Agreement, and exceeding such User Licence allocation will result in additional charges to You.

9.3 You must not misuse our Platform, Products or Services, that includes undermining the security or integrity of our systems or networks; access without authorisation; modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of our services; or resell, lease or provide our services in any way not expressly permitted.

9.4 Talcasoft is always looking for ways to improve our Platform which means that new updates, modifications and enhancements happen from time to time.  Where this occurs, we will endeavour to notify you in advance of such changes.

10. Price and Costs

10.1 The price of the Products and Services is stated in the Enterprise Agreement, or, via the Platform (as applicable).

10.2 Talcasoft may invoice You in advance for Products and Services supplied, or where purchased via the Platform You will be provided with a receipt.

10.3 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.

10.4 Where You have been issued with an invoice for Products and Services supplied via the Platform by way of subscription, Talcasoft 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 Talcasoft must be made within fourteen days of issue.

10.5 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 Talcasoft.

10.6 You must pay all amounts due to the Talcasoft:

  • (a) without set-off, deductions counter-claims or conditions; and
  • (b) in available cleared funds.

10.7 If You owe any amount to Talcasoft, Talcasoft may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:

  • (a) withhold all future supplies of Products and Services until that amount has been paid in full;
  • (b) set-off that amount against any amount owing by Talcasoft to You; and/or
  • (c) immediately demand all amounts due and payable under this Agreement.

10.8 If an amount due under this Agreement is paid after the due date You must pay Talcasoft, in addition to the overdue amount, and without prejudice to any other remedy Talcasoft may have:

  • (a) interest at the rate of 10% per annum or the maximum rate allowed by applicable law, whichever is lower;
  • (b) all costs and expenses incurred by Talcasoft in collecting the overdue amount.

10.9 Your obligation to pay an amount owing applies notwithstanding any delay in the delivery of the Services or Products.

11. Intellectual Property

11.1 Unless specified otherwise in this Agreement or otherwise agreed by the parties in writing You acknowledge and agree that all existing and future Intellectual Property Rights in or in relation to the Platform, Product and/or Services are owned by Talcasoft (and vest in, and are assigned to, Talcasoft on creation).  Nothing in this Agreement or your use of the Platform, Product and/or Services is intended to transfer any Intellectual Property Rights of any kind and you must only use, reproduce, modify, publish and adapt our intellectual property with our express prior written consent.

12. Hyperlinks and programming interfaces

12.1 The Platform, Products or Services may from time to time contain hyperlinks to other websites. Such links are provided for convenience only and Talcasoft 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 Talcasoft‘s endorsement, support, or sponsorship of the operator of that website nor of the information and/or products or services which they provide.

12.2 At Talcasoft‘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 Talcasoft.

12.3 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 Talcasoft shall have no liability to You for any Third-party Software.

13. Privacy

13.1 Talcasoft takes your privacy seriously and any information provided through your use of the Platform, Products and/or Services are subject to Talcasoft‘s Privacy Policy, which is available via the Platform.

13.2 Talcasoft 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. Talcasoft 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:

  • (a) trends in customer purchases;
  • (b) geo-location statistics; and
  • (c) such other data and/or information that is collected via the Platform and/or Services and is not capable of identifying You.

13.3 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.

14. Warranties and exclusions

14.1 To the maximum extent permitted by law, 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 Talcasoft make any express or implied representation or warranty about the Platform, Equipment, Products or Services.

14.2 Provisions of the Competition and Consumer Act 2010 (Cth) and other laws in force from time to time in Australia (or in other jurisdictions) may imply guarantees, warranties, conditions, and impose obligations on Talcasoft and its subsidiaries, affiliates, and suppliers (‘Implied Terms’). If these Implied Terms apply, Talcasoft’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.

15. Limitation of liability

15.1 Subject to any Implied Term, and to the extent permitted by law, Talcasoft 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.

15.2 Talcasoft’s liability is reduced proportionately in the event that You contributed to any Claim or Loss suffered by You.

15.3 In addition to the limitations in clauses 15.1 and 15.2, Talcasoft’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.

15.4 In addition to the limitations in clauses 15.1 and 15.2, Talcasoft’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).

16. Variation of Terms

16.1 Talcasoft reserves the right to amend this Agreement from time to time upon reasonable notice (usually [30] days’ prior notice unless we need to make immediate changes for reasons outside of our control). Such amendments will be either:

  • (a) published on the Platform from which the Products and or Services were purchased;
  • (b) notified to You via email directing You to a link; or
  • (c) notified to You by post.

16.2 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 Talcasoft in any notification.

16.3 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.

17. Termination

17.1 Either of Talcasoft or You may terminate these terms by written notice:

  • (a) unless a minimum term is specified at the time of You signing up (including in any Enterprise Agreement), at any time without cause on no less than 30 days’ notice;
  • (b) for a material breach that cannot be remedied, or if capable of remedy, a material breach that is not remedied within 14 days of receiving written notice requiring the material breach to be remedied; or
  • (c) for bankruptcy or other act of insolvency.

17.2 On termination, You must permanently remove and return or destroy all software Products from Your computers or other electronic devices.

17.3 For the avoidance of doubt, unless clause 6 applies or You terminate for Talcasoft’s breach, You will be liable for the balance of the Licence Term if this Agreement is terminated.

18. Sub-Contracting

18.1 Talcasoft may subcontract the performance or provision of any part of the Services and/or Platform without obtaining the prior written consent from you provided such subcontractor is (in the reasonable opinion of Talcasoft) reputable and suitably experienced in providing the relevant services.

18.2 Where Talcasoft subcontracts the performance or provision of any part of the Services and/or Platform, Talcasoft acknowledges and agrees that:

  • (a) 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
  • (b) it will be liable for any conduct, omission or neglect by any subcontractor appointed by Talcasoft as fully as if such conduct, omission or neglect were the conduct of Talcasoft, its employees or agents under this Agreement.

19. Notices

Any notice, consent, information, application or request that may be given to a party under this Agreement is only given if it is in writing and delivered or posted to that party at its notified address, published via the Platform or emailed to that party at its notified email address.

20. General provisions

20.1 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.

20.2 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.

20.3 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.

20.4 This Agreement contains the entire Agreement between the Parties and supersedes any previous understandings, commitments or agreements, oral or written.

20.5 If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.

20.6 This Agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia.

21. Dispute Resolution

21.1 Compulsory

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).

21.2 Notice

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.

21.3 Resolution

On receipt of that notice by that other party, the parties must:

  • (a) 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;
  • (b) 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);
  • (c) 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;
  • (d) The mediation will be held in Sydney, Australia.

21.4 Confidential
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.

21.5 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.

22. Definitions and interpretation

22.1 Definitions
In this Agreement unless the context otherwise requires:

Agreement means this agreement, all schedules and, if the Products or Services were not purchased on the Platform, the Enterprise Agreement;

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;

Dispute means a dispute between the parties as described in clause 21.2;

Enterprise Agreement means the enterprise agreement between Talcasoft and You (or an entity related of You, as the case may be).

Equipment means tracking equipment supplied by Talcasoft 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.

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;

Platform(s) has the meaning described at clause 1.1

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 Talcasoft software as a service provided by Talcasoft 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.

22.2 Interpretation
In this Agreement unless the context otherwise requires:

  • (a) the singular includes the plural and vice versa;
  • (b) 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;
  • (c) 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;
  • (d) a reference to any thing is a reference to the whole and each part of it;
  • (e) a reference to a group of persons is a reference to all of them collectively and to each of them individually; and
  • (f) a reference to a document includes all amendments or supplements to, or replacements or novation of, that document.

Version Date: November 2022