Free User And Invited User Terms
Last update: 17 May 2021
Welcome: Matrak Enterprises Pty Ltd ABN 92 636 521 232 (we, us or our), provides the Matrak cloud-based materials and logistics tracking software specifically designed for the construction industry, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software as described at www.matrak.com.au and as may also be available through other addresses and channels (together, the Services).
In these Terms “you” means the individual: (1) accessing the Services as a free user (Free User); or (2) accessing the Services as an invited user (Invited User) of an account holder who has a paid account for our Services (Paying User).
Acceptance: You accept these Free User and Invited User Terms (Terms) by clicking a box indicating your acceptance. These Terms set out the terms and conditions upon which we agree to grant you a right to access and use the Services and are binding on you from the date you accept these Terms and will continue until the date these Terms are terminated in accordance with the “Termination” clause below (Term).
By accepting these Terms you: (1) warrant and agree that you have the legal capacity to enter into a legally binding agreement and you are over 18 years old (or have your parent or legal guardian’s permission); (2) warrant and agree that you have all hardware, software and services which are necessary to access and use the Services; (3) warrant and agree that you will use the Services in accordance with these Terms; (4) warrant and agree that any information you provide to us is complete and accurate and you are authorised to provide this information to us; and (5) agree that you are bound by and will use the Services only in accordance with these Terms and that the benefit received by you in connection with the Services is adequate consideration for the performance of your obligations under these Terms.
You are responsible for all activity in connection with your access and for ensuring that any activities in connection with your access comply with these Terms.
Account / Log-in: As a Free User you must create an account. As an Invited User you must create a log-in. When you create an account or a log-in, you will be required to choose a username and password. You must ensure that any information you provide to us, or we request from you, for your account and/or log-in, is complete and accurate and you are authorised to provide this information to us. Your account and/or log-in is personal and you must not transfer it to others, except with our written permission. It is your responsibility to keep your account/ log-in details confidential. You are responsible for all activity on your account/ log-in and for ensuring that any activities on your account/ log-in comply with these Terms.
Changing user types: You may sign up for the Services as one type of user and then convert to another user type. For example: (1) you may join as a Free User and convert to a Paying User to access further features. Where you convert to a Paying User you must agree to our Paying User SaaS Agreement; or (2) you may join as a Free User and convert to an Invited User if a Paying User invites you to join and access their account for the Services. These Terms will apply to you based on your user type, from time to time.
Please note that as an Invited User, all personal data collected from your use of the Services is controlled by and will be disclosed to the Paying User. The Paying User acts as a data controller for the purpose of the GDPR and we act as their data processor and enter into a data processing addendum with them (as part of the Paying User SaaS Agreement) for the processing of your personal data.
Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it: (1) does not contain identifying information; and (2) is not compiled using a sample size small enough to make the underlying personal data identifiable. We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
Our Intellectual Property: In consideration of your compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable, personal and revocable licence to access and use the Services during the Term: (1) as a Free User, for the purpose of accessing and using the limited free features of the Services; and (2) as an Invited User, for the purpose using the Services as they are made available to you by a Paying User (Licence).
All Intellectual Property Rights in the Services, the Analytics and intellectual property developed, adapted, modified or created by us or our personnel (including in connection with these Terms, the Services and any machine learning algorithms output from the Services) is and will remain owned exclusively by us or our third party service providers.
You must not access or use the Services except as permitted by the Licence, including in any way which: (1) is in breach of our Intellectual Property Rights; (2) is in breach of any applicable laws or which infringes any person’s rights or interferes with any person’s privacy; (3) is defamatory, offensive, abusive, indecent or menacing; or (4) damages, interferes with or interrupts the supply of the Services.
Support: We may, at our sole discretion during the Term, provide you with support services in respect of any technical issues which arise in respect of the Services (Support). If you would like to request such Support: (1) as a Free User, contact us and request the Support; or (2) as an Invited User, contact the Paying User and ask them to pass on your request for Support or email us with the details of your request and the provision of that Support will be subject to these terms of the Paying User SaaS Agreement we entered into with the Paying User. You agree, where we agree to provide any Support to you, to assist us in investigating and ascertaining the cause of any issues and provide us with access to all necessary information relevant to the issue (including what you have done in relation to the issue).
Consumer protection laws: Certain consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms attempts to exclude, restrict or modify your Statutory Rights, including, if applicable, as a consumer under the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth). Any and all other warranties or conditions which are not guaranteed by Statutory Rights are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
General disclaimer:The Services is provided to you on an “as is”, and “as available” basis and subject to your Statutory Rights, without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance, merchantability, fitness for a particular purpose, or title. We will not be liable for delays, interruptions, service failures and other problems inherent with the use of the internet and electronic communications or other systems outside of our reasonable control. To the maximum extent permitted by law, we do not make any representation, warranty or guarantee that: (1) the use of the Services will be secure, timely, uninterrupted or error-free; (2) the Services will operate in combination with any other hardware, software, system, or data; (3) the Services will meet your requirements or expectations; (4) any data sent by you or stored by us will be accurate or reliable or that any data sent by you or stored by us will not be lost or corrupted; (5) errors or defects will be corrected; or (6) the Services will be free of viruses or other harmful components.
Liability: Despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for: (1) any failure or delay in providing the Services; (2) breach of these Terms or law by you; (3) your or (if applicable) the Paying User’s acts or omissions; (4) any works, services, data, hardware, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us; (5) any third parties, other customers’ use of the Services, suppliers, or other subcontractors; (6) any event beyond our reasonable control, including a force majeure event; or (7) your or (if applicable) the Paying User’s data or computing environment.
Despite anything to the contrary, to the maximum extent permitted by law: (1) our maximum aggregate Liability arising from or in connection with these Terms (including the Services or the subject matter of these Terms) will be limited to, and must not exceed USD $100; (2) a party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other party, including a failure to mitigate that Liability; and (3) we will not be liable to you for any Consequential Loss.
Ending these Terms: These Terms will terminate if: (1) as a Free User, you terminate your account with us; (2) as an Invited User, you email us requesting to terminate these Terms; (3) as an Invited User, the Paying User terminates their account with us or removes you from their account; (4) as a Free User, we cease offering a free option for our Services; or (5) as a Free User or an Invited User, we provide you notice that these Terms have been terminated because we have reason to believe you are misusing the Services or are in breach of these Terms.
On termination of these Terms you must cease to access the Services.
What happens if there is a dispute? A party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding their existence, validity or termination) (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute. If the parties cannot agree how to resolve the Dispute at that initial meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, either party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the parties.
Nothing in this section will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
(1) Assignment: You must not assign any rights or obligations under these Terms without our prior written consent. We may without restriction assign, transfer or delegate our rights and obligations under these Terms with prior notice to you.
(2) Amendment: We may update these Terms at any time. Where we update these Terms we will notify you via a notification on the Services or via email. If you do not agree with any amendment you must terminate these Terms in accordance with the “Termination” clause above.
(3) Severance: The provisions of these Terms are severable and if any provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
(4) Survival: Any provisions which should by their nature survive termination of these Terms will survive.
(5) Entire agreement: These Terms contain the entire understanding between the parties, and supersede all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of their subject matter.
(6) Governing law: These Terms are governed by the laws of Victoria, Australia. Subject to the dispute resolution procedure above, each party irrevocably submits to the exclusive jurisdiction of the courts operation in Victoria, Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the body of these Terms and:
Consequential Loss includes any indirect loss, incidental loss, consequential loss, real or anticipated loss of profits, loss of revenue, loss of production, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, loss of use, abnormal or unforeseeable loss, loss of use and/or loss or corruption of data, any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with these Terms whether under statute, contract, equity, tort (including negligence), indemnity or otherwise and whether involving a third party, a Paying User or a party to these Terms or otherwise;
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of any copyright, registered and unregistered trade marks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, confidential information, trade secrets or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing; and
Liability means any expense (including legal fees), cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise; and
Paying User SaaS Agreement means the agreement paying customers must accept and comply with, available here: https://matrak.com/saas-agreement/
For any questions and notices, please contact us at:
Matrak Enterprises Pty Ltd ABN 92 636 521 232
Address: 10 St Andrews Place, East Melbourne, VIC 3002, AUSTRALIA
Email: [email protected]