This Software Services Agreement is entered into between:
TrackTreads Pty Ltd (ABN: [insert]) of [insert address] (TrackTreads); and
The customer identified in Schedule 1 (Customer).
Together, the parties agree as follows:
1. Definitions and Interpretation
1.1 Definitions
In this Agreement, unless the context requires otherwise:
Agreement means this Software Services Agreement, including all schedules, annexures, order forms and any written variations agreed by the parties.
Affiliate means, in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party.
Anonymised Data means data derived from Customer Data or use of the Software that has been aggregated and anonymised so that it does not identify, and cannot reasonably be used to identify, the Customer, its Affiliates, personnel, equipment, sites, assets, operations, suppliers or customers.
Authorised Users means the Customer’s employees, contractors, consultants and other personnel authorised by the Customer to access and use the Software.
Business Day means a day other than a Saturday, Sunday or public holiday in Victoria, Australia.
Commencement Date means the commencement date specified in Schedule 1.
Confidential Information means all non-public information disclosed by or on behalf of a party to the other party, whether before or after the Commencement Date, including technical, commercial, financial, operational, strategic, customer, supplier, pricing, software, data, security, system, business and contractual information. Customer Data is Confidential Information of the Customer. The Software, Documentation, pricing model, system design, algorithms, reports, templates, benchmarking methodology and platform architecture are Confidential Information of TrackTreads.
Customer Data means all data, information, images, measurements, inspection records, comments, observations, equipment details, component details, service history, reports and other content entered into, uploaded to, generated from, or stored in the Software by or on behalf of the Customer, excluding Anonymised Data and TrackTreads Materials.
Documentation means any user guides, online help files, technical documents, training material or other documentation made available by TrackTreads in relation to the Software.
Fees means the fees, charges and rates set out in Schedule 1 or otherwise agreed in writing.
GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Initial Term means the initial contract period specified in Schedule 1.
Intellectual Property Rights means all present and future rights in copyright, trade marks, designs, patents, inventions, circuit layouts, domain names, know-how, trade secrets, database rights, confidential information and all other intellectual property rights, whether registered or unregistered, and whether existing in Australia or elsewhere.
Law means any applicable statute, regulation, by-law, ordinance, rule, mandatory code, court order, regulatory requirement or common law principle.
Order Form means any proposal, contract summary, purchase schedule, statement of work, quotation or ordering document agreed in writing by the parties for the supply of Services.
Personal Information has the meaning given to it in the Privacy Act 1988 (Cth), where applicable.
Services means the services described in this Agreement and Schedule 2, including access to the Software, hosting, support, training, reporting, data loading, configuration, integration services and any additional services agreed in writing.
Software means the TrackTreads wear management software platform, including the web portal, mobile applications, reporting tools, APIs, modules, databases, workflows, calculations, templates, dashboards, code, interfaces, configurations, updates and enhancements made available by TrackTreads.
Term means the Initial Term and any renewal period.
TrackTreads Materials means the Software, Documentation, templates, report formats, dashboards, APIs, workflows, algorithms, calculation methods, benchmarking methodology, system architecture, platform configuration, know-how and all materials developed, owned or licensed by TrackTreads, whether before or during the Term.
1.2 Interpretation
In this Agreement:
(a) headings are for convenience only and do not affect interpretation;
(b) a reference to a party includes its successors and permitted assigns;
(c) a reference to writing includes email unless otherwise stated;
(d) words such as “including” do not limit the words that follow; and
(e) if there is any inconsistency between this Agreement and a Schedule, the main body of this Agreement prevails unless the Schedule expressly states otherwise.
2. Term and Renewal
2.1 Commencement
This Agreement commences on the Commencement Date and continues for the Initial Term unless terminated earlier in accordance with this Agreement.
2.2 Renewal
The Agreement may be renewed by written agreement between the parties. Any renewal may include revised Fees, scope, modules, service levels or commercial terms agreed at the time of renewal.
3. Services and Licence
3.1 Services
TrackTreads will provide the Services described in Schedule 2 and any applicable Order Form.
3.2 Licence
Subject to the Customer paying the Fees and complying with this Agreement, TrackTreads grants the Customer a limited, non-exclusive, non-transferable, revocable licence during the Term to access and use the Software for the Customer’s internal business purposes.
3.3 Authorised Users
The Customer is responsible for all use of the Software by Authorised Users and must ensure Authorised Users comply with this Agreement.
3.4 No transfer of ownership
No ownership rights in the Software, TrackTreads Materials or Intellectual Property Rights are transferred to the Customer.
4. Customer Obligations
The Customer must:
(a) ensure that Customer Data is accurate, complete and lawfully provided;
(b) maintain the confidentiality and security of all user credentials;
(c) ensure Authorised Users use the Software only for lawful internal business purposes;
(d) review and verify all Software outputs, reports, calculations, forecasts, recommendations and insights before relying on them;
(e) make all operational, maintenance, safety, commercial and asset management decisions independently; and
(f) provide reasonable cooperation, information and access required by TrackTreads to perform the Services.
5. Fees, Invoicing and Payment
5.1 Fees
The Customer must pay the Fees set out in Schedule 1 and any additional Fees agreed in writing.
5.2 Invoicing
Unless otherwise specified in Schedule 1, Fees are invoiced in advance and payable within fifteen (15) days of the invoice date.
5.3 GST and taxes
Fees are exclusive of GST and any applicable taxes, duties or charges, unless expressly stated otherwise.
5.4 Late payment
Any undisputed overdue amounts may accrue interest at five percent (5%) per annum, calculated daily until paid in full.
5.5 Suspension for non-payment
TrackTreads may suspend access to the Software or Services if any undisputed invoice remains overdue after TrackTreads has provided written notice and a reasonable opportunity to pay.
5.6 Annual pricing review
TrackTreads may review and adjust Fees annually by giving at least thirty (30) days’ written notice, unless otherwise agreed in Schedule 1.
6. Data Ownership, Access and Use
6.1 Ownership of Customer Data
Customer Data remains the property of the Customer.
6.2 Access to Customer Data
TrackTreads may access Customer Data only to the extent required to provide, support, maintain, secure, troubleshoot, improve or administer the Software and Services.
6.3 Customer administrator access
Only Authorised Users nominated or approved by the Customer will have access to Customer Data, except where TrackTreads access is required under clause 6.2.
6.4 Anonymised Data and benchmarking
The Customer acknowledges and agrees that TrackTreads may collect, use and analyse data generated through use of the Software, provided that such data is anonymised and aggregated so that it does not identify, and cannot reasonably be used to identify, the Customer, its personnel, equipment, sites, assets or operations.
TrackTreads may use Anonymised Data for developing, improving and providing the Software, including creating industry benchmarks, performance metrics and comparative insights across generalised operating environments.
TrackTreads will not disclose Customer-specific data to any third party without the Customer’s prior written consent. Any benchmarks or insights provided to a customer will be based on Anonymised Data and will not enable identification of any other customer or operation.
6.5 No sale of Customer Data
TrackTreads must not sell, license or commercially disclose Customer Data to any third party.
7. Data Return and Retention
7.1 Return of Customer Data
Upon termination or expiry of this Agreement, or upon the Customer’s written request, TrackTreads will provide the Customer with a copy of Customer Data held within the Software in a commonly used, machine-readable format, within a reasonable timeframe and in accordance with reasonable written instructions.
7.2 No deletion obligation
The Customer acknowledges that, due to the structure and integrity requirements of the Software, Customer Data forms part of an integrated system record and cannot be deleted without compromising the operation, continuity and integrity of the platform. TrackTreads is not required to delete Customer Data from its systems.
7.3 Continuing protection
TrackTreads must continue to protect retained Customer Data in accordance with this Agreement and applicable Law.
7.4 Withholding data release for unpaid amounts
TrackTreads may withhold release of Customer Data while any undisputed and overdue invoiced amounts remain unpaid.
8. Security, Hosting and Backup
8.1 Security safeguards
TrackTreads must implement commercially reasonable technical, organisational and administrative safeguards designed to protect Customer Data against unauthorised access, loss, misuse, alteration or disclosure.
8.2 Hosting
Unless otherwise agreed in writing, the Software is hosted using third-party cloud infrastructure selected by TrackTreads, including Amazon Web Services or equivalent providers.
8.3 Backups and disaster recovery
TrackTreads will maintain backup and disaster recovery practices consistent with its standard operational procedures for the Software.
8.4 Security incidents
If TrackTreads becomes aware of any actual unauthorised access to Customer Data, TrackTreads will notify the Customer within a reasonable timeframe, provide available details of the incident, and take reasonable steps to mitigate the impact.
9. Confidentiality
9.1 Confidentiality obligations
Each party must:
(a) keep the other party’s Confidential Information confidential;
(b) use the Confidential Information only for the purposes of this Agreement; and
(c) not disclose Confidential Information except as permitted by this Agreement.
9.2 Permitted disclosure
A party may disclose Confidential Information:
(a) to its employees, officers, contractors, advisers and Affiliates who need to know the information for the purposes of this Agreement and are subject to confidentiality obligations;
(b) as required by Law, court order, stock exchange requirement or regulator; or
(c) with the prior written consent of the disclosing party.
9.3 Exclusions
Confidential Information does not include information that is publicly available other than through breach of this Agreement, independently developed without use of Confidential Information, or lawfully obtained from a third party without restriction.
9.4 Survival
This clause survives termination or expiry of this Agreement.
10. Intellectual Property
10.1 TrackTreads IP
TrackTreads owns and retains all Intellectual Property Rights in the Software, TrackTreads Materials, Documentation, report templates, dashboards, configurations, workflows, algorithms, calculation methods, benchmarking methodology, APIs and all improvements, modifications, updates and derivative works.
10.2 Customer Data
The Customer retains ownership of Customer Data.
10.3 Feedback
If the Customer or its users provide suggestions, ideas, feedback or recommendations regarding the Software or Services, TrackTreads may use that feedback without restriction or obligation, provided it does not disclose Customer Confidential Information.
10.4 Custom work
Unless expressly agreed otherwise in writing, any configuration, integration, enhancement, report, dashboard, template, API modification, mobile application change, workflow or other work developed by TrackTreads in connection with the Services forms part of the TrackTreads Materials and is owned by TrackTreads.
11. Restrictions on Use
The Customer must not, and must not permit any third party to:
(a) reverse engineer, decompile, disassemble or attempt to derive the source code, algorithms, architecture or underlying structure of the Software;
(b) copy, reproduce, modify, adapt, translate, frame, mirror, resell, sublicense or commercially exploit the Software;
(c) attempt to extract or replicate embedded Intellectual Property Rights, including proprietary wear limits, calculation methods, benchmarking methodology or report structures;
(d) circumvent technical protections, access controls or licensing restrictions;
(e) use the Software to develop, support or improve a competing product or service; or
(f) access or use the Software other than as expressly permitted under this Agreement.
Any breach of this clause is a material breach of this Agreement.
12. Warranties and Disclaimers
12.1 TrackTreads warranties
TrackTreads warrants that:
(a) it has the right to provide access to the Software;
(b) the Software will substantially perform in accordance with the Documentation; and
(c) TrackTreads will use commercially reasonable efforts to ensure the Software does not contain malicious code introduced by TrackTreads.
12.2 No uninterrupted service warranty
TrackTreads does not warrant that the Software will be uninterrupted, error-free, available at all times, or compatible with all Customer systems, networks, devices or third-party software.
12.3 Customer systems
The Customer is responsible for its own networks, internet connections, devices, operating systems, browsers, security settings and third-party systems used to access the Software.
12.4 Exclusion of implied warranties
To the maximum extent permitted by Law, all warranties, guarantees and conditions not expressly set out in this Agreement are excluded.
13. Software Outputs and Customer Reliance
13.1 Decision-support tool
The Customer acknowledges that the Software provides data analysis, calculations, forecasts, reports, benchmarks, insights and recommendations based on information input into the Software and applicable system logic. The Software is intended to support, but not replace, the Customer’s operational judgment, technical expertise and decision-making.
13.2 Customer verification
The Customer is solely responsible for reviewing, verifying and determining the appropriateness of any outputs, recommendations, forecasts, calculations, reports or insights generated by the Software, having regard to its specific operating conditions, equipment, assets, safety requirements, site conditions and commercial circumstances.
13.3 No sole reliance
The Customer must not rely on the Software as the sole basis for any operational, maintenance, safety, financial, procurement, component replacement, production, asset management or commercial decision.
14. Limitation of Liability
14.1 Liability cap
To the maximum extent permitted by Law, TrackTreads’ total aggregate liability arising out of or in connection with this Agreement, whether in contract, tort including negligence, statute, equity or otherwise, is limited to the total Fees paid by the Customer under this Agreement in the twelve (12) months immediately preceding the event giving rise to the claim.
14.2 Exclusion of indirect and consequential loss
To the maximum extent permitted by Law, TrackTreads is not liable for any indirect, incidental, special, punitive, exemplary or consequential loss, or for any loss of production, loss of revenue, loss of profit, loss of opportunity, loss of goodwill, loss of anticipated savings, business interruption, equipment downtime, site downtime or loss arising from delayed maintenance or component replacement, whether or not such loss was foreseeable.
14.3 Reliance on Software outputs
To the maximum extent permitted by Law, TrackTreads is not liable for loss, damage, cost or expense arising from or in connection with the Customer’s reliance on any output, recommendation, calculation, forecast, report, benchmark or insight generated by the Software.
14.4 Liability carve-outs
The liability cap in clause 14.1 does not apply to liability arising from:
(a) fraud or wilful misconduct;
(b) breach of confidentiality;
(c) infringement of Intellectual Property Rights by the Customer;
(d) misuse of the Software by the Customer or Authorised Users;
(e) unpaid Fees; or
(f) any liability that cannot be limited by Law.
14.5 Australian Consumer Law
Nothing in this Agreement excludes, restricts or modifies any right, guarantee, warranty or remedy that cannot lawfully be excluded, restricted or modified.
15. Indemnities
15.1 Customer indemnity
The Customer indemnifies TrackTreads against all loss, damage, cost, expense, claim or liability arising from:
(a) Customer Data provided in breach of Law or third-party rights;
(b) use of the Software other than in accordance with this Agreement;
(c) decisions made by the Customer based on Software outputs without appropriate independent review;
(d) breach of clause 11; or
(e) acts or omissions of Authorised Users.
15.2 TrackTreads IP indemnity
TrackTreads will defend the Customer against any third-party claim alleging that the Software, as provided by TrackTreads and used in accordance with this Agreement, infringes that third party’s Intellectual Property Rights, and will pay any final damages awarded or settlement agreed by TrackTreads.
15.3 Exclusions from TrackTreads IP indemnity
TrackTreads has no obligation under clause 15.2 to the extent the claim arises from:
(a) Customer Data;
(b) use of the Software in combination with systems, software, data or equipment not supplied by TrackTreads;
(c) modifications not made by TrackTreads;
(d) use contrary to this Agreement or Documentation; or
(e) continued use after TrackTreads has provided a reasonable alternative or workaround.
15.4 IP claim remedies
If the Software is, or in TrackTreads’ reasonable opinion may become, subject to an IP infringement claim, TrackTreads may procure the right for continued use, modify the Software, replace the affected functionality, or terminate the affected Services and provide a pro-rata refund of prepaid unused Fees.
16. Service Levels and Support
16.1 Support
TrackTreads will provide support services in accordance with Schedule 2.
16.2 Service levels as targets
Any response or resolution times are service targets only and do not constitute warranties, guarantees or service credits unless expressly agreed in writing.
16.3 Exclusions
TrackTreads is not responsible for service issues caused by Customer systems, internet connectivity, third-party platforms, force majeure events, misuse, unauthorised modifications or matters outside TrackTreads’ reasonable control.
17. Purchase Orders and Order of Precedence
17.1 Administrative purpose
Any purchase order or similar document issued by the Customer is issued for administrative and invoicing purposes only.
17.2 Agreement prevails
To the extent of any inconsistency between this Agreement and any terms or conditions contained in a purchase order or similar document, this Agreement prevails. Any additional or inconsistent purchase order terms have no force or effect unless expressly agreed in writing and signed by authorised representatives of both parties.
18. Termination
18.1 Termination for convenience
Either party may terminate this Agreement for convenience by giving not less than thirty (30) days’ written notice, unless Schedule 1 specifies otherwise.
18.2 Termination for breach
Either party may terminate this Agreement immediately by written notice if the other party commits a material breach and fails to remedy the breach within fourteen (14) days after receiving written notice requiring it to do so.
18.3 Insolvency
Either party may terminate immediately by written notice if the other party becomes insolvent, enters administration, liquidation, receivership or similar process, or ceases or threatens to cease carrying on business.
18.4 Effect of termination
On termination or expiry:
(a) the Customer’s right to access and use the Software ends;
(b) all outstanding Fees become immediately due and payable;
(c) each party must return or destroy the other party’s Confidential Information on request, except that TrackTreads is not required to delete Customer Data in accordance with clause 7.2; and
(d) clauses intended to survive will continue in effect.
19. Force Majeure
TrackTreads is not liable for delay or failure to perform any obligation, other than payment obligations, caused by events beyond its reasonable control, including natural disasters, industrial action, war, terrorism, pandemic, government action, cyber incidents, telecommunications failures, internet failures, utility failures, cloud infrastructure failures or third-party service disruptions.
TrackTreads will use reasonable efforts to resume performance as soon as practicable.
20. Assignment and Continuity
20.1 Customer assignment
The Customer must not assign, novate or transfer this Agreement without TrackTreads’ prior written consent, not to be unreasonably withheld.
20.2 Continuity of Agreement
This Agreement remains in full force and effect notwithstanding any change in ownership, shareholding or control of TrackTreads. Any such change does not affect the validity, enforceability or performance of this Agreement, and the Customer’s rights and entitlements under this Agreement continue uninterrupted.
21. Notices
21.1 Method of notice
A notice under this Agreement must be in writing and delivered by hand, prepaid post or email to the contact details specified in Schedule 1 or otherwise notified in writing.
21.2 Time of receipt
A notice is deemed received:
(a) if delivered by hand, on delivery;
(b) if posted within Australia, three (3) Business Days after posting;
(c) if posted internationally, seven (7) Business Days after posting; and
(d) if emailed, when sent, unless the sender receives an automated delivery failure notification.
22. Dispute Resolution
22.1 Good faith negotiations
Before commencing legal proceedings, either party must give written notice of the dispute and senior representatives of the parties must attempt in good faith to resolve the dispute within fourteen (14) days.
22.2 Urgent relief
Nothing prevents a party from seeking urgent injunctive, interlocutory or equitable relief.
23. Governing Law and Jurisdiction
This Agreement is governed by and construed in accordance with the laws of the State of Victoria, Australia.
Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and any courts competent to hear appeals from those courts, in respect of any dispute or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination.
24. General
24.1 Entire agreement
This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, discussions, representations, correspondence and agreements relating to its subject matter.
24.2 Variation
This Agreement may only be varied by written agreement signed by authorised representatives of both parties.
24.3 Severability
If any provision of this Agreement is invalid or unenforceable, that provision will be severed to the extent required and the remaining provisions will continue in full force and effect.
24.4 Waiver
A failure or delay in exercising a right is not a waiver of that right. A waiver must be in writing and applies only to the matter for which it is given.
24.5 Relationship
Nothing in this Agreement creates a partnership, joint venture, employment, agency or fiduciary relationship between the parties.
24.6 Counterparts and electronic execution
This Agreement may be executed in counterparts and by electronic signature. Each counterpart is deemed an original and all counterparts together constitute one instrument.
24.7 Survival
Any clause that by its nature is intended to survive termination or expiry survives, including clauses relating to confidentiality, data retention, intellectual property, restrictions on use, limitation of liability, indemnities, payment obligations, dispute resolution and governing law.