Matrak Software as a Service Agreement
Last update: 14 October 2021
Our complete terms and conditions are set out below, but some important points for you to know before you become a customer are set out below:
- We are a subscription service, and by placing an order with us, you are agreeing to order products from us on an ongoing basis. A minimum term applies to your subscription, as set out in your Account. Your subscription will renew unless you terminate this Agreement in accordance with clause 16.
- We may need to change the Price from time to time. If we change the price, we will provide you with 30 days notice of the change. After 30 days, we will apply the new Price to your existing payment details for all future billing cycles. If you do not agree with the new Price, you may cancel your subscription in accordance with these terms;
- We may amend these Terms at any time by publishing updated terms on our Site; and
- We will have no liability for loss of, or damage to, the products, any injury or loss to any person, failure or delay in providing the products or a breach of the Terms or any law, where such loss was caused or contributed to by any event or circumstance beyond our reasonable control or act or omission of you or your related parties.
Nothing in these terms limit your rights under any applicable consumer laws.
Matrak is a cloud-based materials and logistics tracking software specifically designed for the construction industry. It allows every company on a single project to track and share real-time information at every stage including, however not limited to, manufacture, shipping, installation, QA and defects.
The definitions and interpretation section in this Agreement are set out in clause 20 (Definitions and interpretation).
3. Parties and agreement
This Agreement is between you, our customer (referred to as you or your) and Matrak Enterprises Pty Ltd ABN 92 636 521 232, its successors and assignees (referred to as us, we or our) and each a Party and collectively the Parties. This Agreement is available at www.matrak.com (Site).
This Agreement forms the agreement under which we provide you with the Services. Please read this Agreement carefully. If you have any questions, please contact us using the contact details before you access the Site.
You have requested the Services. We will supply the Services, whether ourselves or through our Personnel, as set out in this Agreement.
You accept this Agreement by clicking a box indicating your acceptance on the Site.
If you are agreeing to this Agreement on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then “you” means that Entity and you are binding that Entity to the terms of this Agreement. If you are accepting this Agreement on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so. If the Entity is converting from a free user to a paid user, this Agreement will replace the Free User and Invited User Terms for the Entity. For any individual accepting this Agreement on behalf of the Entity and for all Authorised Users of the Entity’s Account, the invited user portion of the Free User and Invited User Terms will apply.
5.3 This Agreement Term
This Agreement commences on the date you accept this Agreement in accordance with clause 5.1 (Acceptance) and continue on a month-to-month, quarter-to-quarter or year-to-year basis (depending on your chosen billing cycle) until the date on which this Agreement is terminated in accordance with clause 16 (Termination)(Agreement Term).
6.1 Create Account
We may create an account for you (Account), in order for you and your Authorised Users to access and use the Services. You must ensure that any information you provide to us, or we request from you as part of the creation process is complete and accurate.
6.2 Account Owner
You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account as set out in this Agreement. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account in a form acceptable to us.
6.3 Usernames, passwords and administration of Authorised Users
We or the Site will provide you with certain Account details (such as usernames and passwords) when an Account is created for you. It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account, including activity by Authorised Users and for ensuring that any activities on your Account comply with this Agreement. We are not responsible for the management or administration of your Account or your Authorised Users.
7. Licence and restrictions on use
In consideration for payment of the Fees, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under this Agreement), personal and revocable licence to access and use the Services for the Agreement Term (Licence).
7.2 Licence Restrictions
You must not (and must ensure your Authorised Users do not) access or use the Services except as permitted by the Licence and you must not and must not permit any other person to:
(a) use the Services in any way which is in breach of any applicable Laws or which infringes any person’s rights, including Intellectual Property rights;
(b) use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
(c) use the Services in any way that damages, interferes with or interrupts the supply of the Services;
(d) introduce malicious programs into our hardware and software or Systems, including viruses, worms, trojan horses and e-mail bombs;
(e) reveal your Account’s password to others or allow others to use your Account (other than Authorised Users);
(f) use the Services to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
(g) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services;
(h) send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
(i) use the Services to circumvent user authentication or security of any of our networks, accounts or hosts or those of our members or suppliers.
7.3 You must obtain necessary approvals
For us to provide the Services to you, you must promptly obtain and provide to us any required licences, approvals or consents necessary for our performance of the Services.
8. Authorised Users
8.1 Authorised Users
If set out on the Site or as otherwise agreed between the Parties, you agree that the Licence permits you to access and use the Services in accordance with the number of Authorised Users, as set out on the Site or as otherwise agreed between the Parties. All of your Authorised Users will be required to agree to our Free User and Invited User Terms.
8.2 Increasing Authorised Users
You may, at any time, increase the number of Authorised Users by requesting the increase by email or via your Account and we will apply new Fees (and support fees if relevant) which will be applicable as of the effective date of the increase of the number of Authorised Users.
9. Third Parties
9.1 Third-Party Inputs
You acknowledge and agree that:
(a) the provision of the Services may be contingent on, or impacted by, third parties, other customers’ use of our services, suppliers, other subcontractors (Third Party Inputs); and
(b) despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any default or breach of this Agreement or law, if such default or breach was caused or contributed to by any Third Party Inputs.
9.2 Interoperability with Third-Party Inputs
(a) You acknowledge that the Services include certain optional functionality that may interface or interoperate with third-party software or services.
(b) To the extent that you choose to use such functionality and they are not a part of the Services, you are responsible for:
(i) the purchase of;
(ii) the requirements; and
(iii) the licensing obligations,
related to the applicable third party software and services.
(c) It is your responsibility to ensure these requirements are met in order for you to benefit from the specific functionality made available to you.
10. Setup Services, Data Load, Variation and Support Services
10.1 Setup Services and Data Load
If applicable, we will provide the Setup Service and the Data Load as set out on the Site or as otherwise agreed between the Parties.
If you require any changes to the scope, functionality or nature of the Services you may request such changes and at our discretion, we may provide you with written notice in the form of a statement of work, including any variation in fees for us to undertake such changes. We have no obligation to perform any request which is outside the scope of the Services, unless the Parties have signed a statement of work setting out such varied or additional services and any fees. On signing a statement of work, any services set out therein will form part of the Services and any fees set out therein will form part of the Fees, and the statement of work will be incorporated into and governed by this Agreement.
We will provide you with technical support services as set out on the Site or as otherwise agreed between the Parties.
11.1 Data Processing Addendum
We will at all times handle Customer Data that contains or is Personal Data in accordance with the Data Processing Addendum attached to and incorporated into this Agreement, and which sets out how we will process Personal Data in accordance with the GDPR and Privacy Act.
11.2 Your obligations
(a) Except as set out in clause 11.1 (Data Processing Addendum), you are responsible for the collection, use, storage and otherwise dealing with Personal Data related to your business and all matters relating to the Customer Data.
(b) You must and must ensure that all of your Personnel and Authorised Users comply, with the requirements of all applicable Privacy Laws in respect of all Personal Data collected, used, stored or otherwise dealt with under or in connection with this Agreement.
(c) Without limiting this clause 11 (Your obligations), you must:
(i) notify Authorised Users, Personnel, or other natural persons from whom Personal Data is collected about any matter prescribed by applicable Privacy Laws in relation to the collection, use and storage of their Personal Data;
(ii) ensure that any Personal Data transferred to us is complete, accurate and up to date;
(iii) notify us immediately upon becoming aware of any breach of applicable Privacy Laws that may be related to the use of the Personal Data under this Agreement; and
(iv) ensure any processing of Personal Data by you or instructions provided to us will not cause us to breach applicable Privacy Laws.
(d) Without limiting this clause 11 (Your obligations), you may only disclose Personal Data in your control to us if:
(i) you are authorised by applicable Privacy Laws to collect the Personal Data and to use or disclose it in the manner required by this Agreement; and
(ii) you have informed the individual to whom the Personal Data relates, that it might be necessary for you to disclose their Personal Data to third parties and, if necessary, you have obtained their consent to do so and/or provided them with any required notices.
12. Fees and payment
We will invoice you for any Fees and any other amounts payable to us under this Agreement in advance of each billing cycle based on the billing cycle chosen by you and you must pay such invoiced amount within 30 days of the invoice date, unless otherwise agreed between the Parties in writing (the, Payment Terms).
12.2 Failure to pay invoices
If any payment has not been made in accordance with the Payment Terms, we may (in our absolute discretion):
(a) immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you any additional costs of doing so;
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 5% per month, calculated daily and compounding monthly, on any such amounts unpaid after the due date; and
(c) engage debt collection services and/or commence legal proceedings in relation to any such amounts.
12.3 Recommencement of services
If you rectify such non-payment after the Services have been suspended, then we will recommence the provision of the Services as soon as reasonably practicable.
You must pay us the Fees and any other amount payable to us under this Agreement, without set off or delay, via credit card or any other payment method set out on the Site or as otherwise agreed between the Parties. If you do not pay by credit card or direct debit, we may apply an administrative fee to that payment.
The Fees are subject to change upon 30 days’ notice from us to you and will apply to the next billing cycle. Such notice may be provided at any time by posting the changes on our Site, via email or via a notification to your Account.
The Fees and any other amount payable exclude GST (unless expressly stated otherwise). You must pay GST at the same time as you pay the Fees or any other amount payable, and it must be paid in addition to the Fees or other amount payable.
14. Intellectual Property Rights
14.1 Our Intellectual Property
All Intellectual Property in the Software, Services and all Intellectual Property developed, adapted, modified or created by us or our Personnel (including in connection with this Agreement, the Software and the Services and any statistical algorithms output from the Services) is and will remain owned exclusively by us or our third-party service providers.
You must not, without our prior written consent:
(a) copy or use, in whole or in part, any of our Intellectual Property;
(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
(c) reverse assemble, reverse engineer, reverse compile or enhance the Services;
(d) breach any Intellectual Property Rights connected with the Software or the Services, including altering or modifying any of our Intellectual Property;
(e) cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;
(f) resell, assign, transfer, distribute or make available the Services to third parties;
(g) “frame”, “mirror” or serve any of the Services on any webserver or other computer servers over the Internet or any other network;
(h) alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Services or Software;
14.3 Non identifying analytics
Despite anything to the contrary in this Agreement or elsewhere, 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:
(a) does not contain identifying information; and
(b) is not compiled using a sample size small enough to make the underlying Customer Data identifiable.
14.4 Rights in Analytics
We and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all Intellectual Property rights in the foregoing.
14.5 Your Intellectual Property
As between you and us:
(a) all Customer Data is and remains your property; and
(b) you retain any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works.
14.6 Services Licence
You grant us a limited licence to copy, use, transmit, store and back-up or otherwise access the Customer Data during the Agreement Term solely to:
(a) supply the Services to you (including to enable you and your Personnel to access and use the Services);
(b) diagnose problems with the Services;
(c) enhance and otherwise modify the Services; and
(d) develop other services, provided we de-identify the Customer Data, as reasonably required to perform our obligations under this Agreement.
14.7 Publicity Licence
Unless you provide written notice explicitly advising us otherwise, you also grant us a non-exclusive, worldwide, royalty free, non-sublicensable and non-transferable right and license to use your name and logo (including any trade mark) to advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material for the Agreement Term and 12 months following the Agreement Term.
14.8 Customer Data and compliance
(a) You must, at all times, ensure the integrity of the Customer Data and that your use of the Customer Data is compliant with all Laws.
(b)You acknowledge that Customer Data will be available to all users with access to your project on the Software unless you choose to limit access. You can limit access to certain Customer Data to selected users at the point of uploading the Customer Data to the Software, or at any stage after uploading the Customer Data
(c) You represent and warrant that:
(i) you have obtained all necessary rights, releases and permissions to provide all your Customer Data to us and to grant the rights granted to us in this Agreement; and
(ii) the Customer Data (and its transfer to and use by us) as authorised by you, under this Agreement does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property rights, rights of privacy, or rights of publicity; and
(iii) any use, collection and disclosure authorised in this Agreement is not inconsistent with the terms of any applicable privacy policies.
14.9 Customer Data
We assume no responsibility or Liability for the Customer Data. Subject to clause 11.1 (Data Processing Addendum), you are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it.
Despite anything to the contrary, to the maximum extent permitted by law:
(a) the maximum aggregate Liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and must not exceed in the aggregate for all claims the total amount of Fees you paid to us in the 12 month period directly preceding the date on which such Liability arose; and
(b) we will not be liable to you for any Consequential Loss, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
15.2 Exclusions to Liability
Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you waive and release us from and against, all Liability (whether under statute, contract, negligence or other tort, indemnity, or otherwise) arising from or in connection with any:
(a) loss of, or damage to, any property or any injury to or loss to any person;
(b) failure or delay in providing the Services;
(c) breach of this Agreement or any Laws; or
(d) the Computing Environment,
where caused by where caused or contributed to by any:
(e) Force Majeure Event;
(f) a fault, defect, error or omission in the Computing Environment or Customer Data; or
(g) act or omission by you, your related parties, Authorised Users, Personnel or any third party (including customers, end users, suppliers, providers or subcontractors),
and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services.
To the maximum extent permitted by law, you indemnify and continue to indemnify us against all Liability we suffer or incur arising from or as a consequence of a breach by you or your Authorised User of clause 11 (Privacy), clause 14 (Intellectual Property Rights), clause 18 (Confidential Information).
15.4 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 this Agreement attempts to exclude, restrict or modify your Statutory Rights, including, if applicable, as a consumer under the Australian Consumer Law in 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 this Agreement.
You acknowledge and agree that:
(a) you are responsible for all users using the Services, including your Personnel and any Authorised Users; and
(b) your use the Services and any associated programs and files at your own risk;
(c) the technical processing and transmission of the Services, including your Customer Data, may be transferred unencrypted and involves:
(d) transmissions over various networks; and
(e) changes to conform and adapt to technical requirements of connecting networks or devices;
(f) we may use third-party service providers to host the Services. If the providers of third-party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;
(g) the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;
(h) we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used;
(i) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you or your Authorised Users; and
(j) we may pursue any available equitable or other remedy against you if you breach any provision of this Agreement.
16.1 Mutual Termination
The Parties may terminate this Agreement by a mutually signed agreement.
16.2 Termination without cause
Either Party may terminate this Agreement at any time by giving not less than 30 days’ notice in writing and this Agreement will terminate on the last day of the billing cycle which is at least 30 days after the date of such notice. For the avoidance of doubt, this means that if, when notice is provided, there are less than 30 days before the end of the current billing cycle then this Agreement will extend for one further billing cycle and terminate on the last day of that further billing cycle.
16.3 Termination for cause
To the extent permitted by law, either Party may terminate this Agreement, with written notice, if the other Party:
(a) has breached a material term of this Agreement and has failed to remedy such breach within 20 Business Days of receiving notice to do so, subject to any other express right of termination;
(b) ceases operation without a successor; or
(c) is unable to pay its debts as they fall due.
16.4 Termination for failure to pay
Without limiting clause 16.3 (Termination for cause), we may terminate this Agreement by providing you with five Business Days’ notice, in our sole discretion, if you fail to pay an invoice within 30 days of the invoice payment date.
16.5 Termination for amendment
You may terminate this Agreement with written notice if we issue you with a notice under clause 19.1 (Amendment) that this Agreement is being amended and within 30 days of the date of the notice you choose to terminate this Agreement in accordance with clause 19.1 (Amendment).
16.6 Effect of termination
On termination of this Agreement:
(a) you must cease using the Services and we will cease to provide the Services;
(b) you agree that any payments made are not refundable;
(c) you must pay for all Services provided under this Agreement including Services which have been performed and have not yet been invoiced to you, and all other amounts due and payable under this Agreement, including under an indemnity, within 5 Business Days of termination;
(d) you must promptly return (where possible) or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property;
(e) we must promptly return (where possible) or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property unless we are required by Law or regulatory requirements to retain such information;
(f) for the avoidance of doubt, any provisions of this Agreement that by their nature survive the termination of this Agreement will remain in force after this Agreement Term; and
(g) we will delete or return Personal Data in accordance with the terms of the Data Processing Addendum.
16.7 Removal of Customer Data
You must, within 3 months of the date of termination or expiry of this Agreement, copy all Customer Data and we will allow you access to the Services during this time solely for that purpose. After this time, subject only to the terms in the Data Processing Addendum, we will be entitled to retain or permanently delete all Customer Data.
16.8 Accrued rights
The accrued rights, obligations and remedies of the Parties are not affected by the termination of this Agreement.
17. General Warranties
17.1 Our warranties
We warrant and agree that:
(a) we are properly constituted and have the right and authority to enter into this Agreement;
(b) we will provide the Services in accordance with all applicable Laws; and
(c) we will use reasonable effort to ensure all of our obligations under this Agreement will be carried out:
(i) by suitably competent and trained Personnel; and
(ii) in an efficient and professional manner.
17.2 Your warranties
You warrant and agree that:
(a) you have the legal capacity to enter into a legally binding agreement and there are no legal restrictions preventing you from agreeing to this Agreement;
(b) you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the Services, and as otherwise requested by us, from time to time, and in a timely manner;
(c) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;
(d) you will inform us if you have reasonable concerns relating to our provision of the Services under this Agreement, with the aim that the Parties will use all reasonable efforts to resolve your concerns;
(e) you are responsible for obtaining any consents, licences, authorities and permissions from other Parties necessary for the Services to be provided in accordance with this Agreement, at your cost, and for providing us with the necessary consents, licences, authorities and permissions;
(f) you will maintain the confidentiality and security of any of your Account details or passwords;
(h) you have all hardware, software and services which are necessary to access and use the Services.
18. Confidential Information
Each Party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other Party (Discloser) except:
(a) where permitted by this Agreement;
(b) with the prior written consent of the Discloser;
(c) where the Confidential Information is received from a third Party, except where there has been a breach of confidence;
(d) on a confidential, “needs to know” basis to the Recipient’s Personnel, auditors, insurers, agents and professional advisors; or
(e) where the Recipient is compelled to do so by Law, provided that it gives the other Party written notice prior to disclosure.
The Recipient must only use the Confidential Information of the Discloser for the purpose for which it was disclosed and in connection with this Agreement.
We may amend this Agreement at any time with not less than 30 days’ notice to you via an in-Account notification or via email. If you can demonstrate that any such amendment will have a material adverse effect on you and you do not agree with it, you may terminate this Agreement within 30 days of the date of the notice in accordance with clause 16.5 (Termination for amendment).
Neither Party may assign, transfer or otherwise deal with all or any of its rights or obligations under this Agreement
without the prior written consent of the other Party. Any purported dealing in breach of this clause is of no force or
(a) If the provision of the Services depends upon or includes the provision of information, materials, consents or approvals by you or your Personnel, or requires your cooperation, action or response (or that of your Personnel), you must provide that information, cooperation and those materials, consents or approvals in a timely manner.
(b) If you breach this obligation, we will be entitled to an extension of time in respect of any deadline or milestone to the extent of the delay caused by you and we will have no Liability for a failure to perform the Services caused by you.
(c) If we are delayed from performing our obligations due to such a circumstance for a period of at least two months, we may terminate this Agreement with you by giving you five Business Days’ notice in writing.
19.4 Disputes and notices
(a) Neither Party may commence court proceedings relating to any dispute arising from, or in connection with, this Agreement without first meeting with a senior representative of the other Party to seek (in good faith) to resolve that dispute (unless that Party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).
(b) Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to the Party at the address as set out on the Site or as otherwise agreed between the parties. A Party may change its notice details by written notice to the other Parties. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
19.5 Entire agreement
This Agreement (including the Data Processing Addendum) and the Free User and Invited User Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations,
understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
19.6 No Exclusivity
The Services will be provided to you on a non-exclusive basis.
19.7 Feature sets
We reserve the right at any time and from time to time to change or remove features of the Services provided that, where there is any material negative alteration to the functionality of the Services in accordance with this clause, we will provide you with 20 Business Days’ notice and you may terminate this Agreement by written notice without Liability to us.
19.8 Overseas access
The Services may be accessed in Australia and overseas. We make no representation that the Services complies with the Laws (including Intellectual Property laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Services.
Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to this Agreement does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.
If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions.
19.11 Governing law
This Agreement is governed by the laws of Victoria, Australia.
20. Definitions and interpretation
Unless defined on the Site or as otherwise agreed between the Parties, the following words will mean:
Account is defined in clause 6 (Accounts);
Agreement means the terms and conditions in this document and all documents attached to, or referenced in, this document, including the Data Processing Addendum and any other addendums, annexures, schedules or
Authorised User means a user permitted to access and use the Services under your Account;
Business Day means a day which is not a Saturday, Sunday or bank or public holiday in the Victoria;
Business Hours means 9am to 5pm on a Business Day;
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;
Confidential Information includes confidential information about a Party’s business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know-how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential” but does not include any
information which is in the public domain other than through a breach of confidence. Our Confidential Information includes our Intellectual Property including the Software. Your Confidential Information includes the Customer Data;
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 this Agreement whether under statute, contract, equity, tort (including negligence), indemnity or otherwise and whether involving a third party or a Party to this Agreement or otherwise;
Customer Data means the information, logos, documents and other data inputted by you, your Personnel or
Authorised Users into the Software or stored by the Services or generated by the Services as a result of your use of the Services;
Data Load means the loading of required drawings including material take-off and drawing digitization;
Data Processing Addendum means the addendum which sets out how we process Personal Data in accordance with the GDPR and Privacy Act, available here https://matrak.com/privacy-policy/;
Fees means the fees set out on the Site or as otherwise agreed between the Parties, including the Development
Fees, Subscription Fees and Setup Fees;
Force Majeure Event means an event which is beyond a Party’s reasonable control including a fire, storm, flood,
earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage,
epidemic, pandemic, COVID-19, quarantine restriction, transportation embargo, and strike by employees of a third
Free User and Invited User Terms means the terms and conditions for free users and invited users, available here
GDPR means the EU General Data Protection Regulation 2016/679;
GST has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, customer names or internet domain names.
Our Intellectual Property includes the Software;
Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory and includes the Privacy Act and the Spam Act 2003 (Cth); 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 this Agreement or otherwise;
Personal Data means ‘personal data’, ‘personal information’ or any equivalent term as defined in applicable Privacy Laws; Personnel means, in relation to a Party, the officers, employees, contractors, sub-contractors and agents of that Party;
Personnel means, in relation to a Party, the officers, employees, contractors, sub-contractors and agents of that Party;
Privacy Act means the Privacy Act 1988 (Cth);
Privacy Laws means all privacy and data protection laws and may include the GDPR and Privacy Act;
Services means the Matrak cloud-based materials and logistics tracking software specifically designed for the construction industry and any Setup Services, Development Services or support services we agree to provide to you.
Setup Service means (if applicable) the services as described on the Site or as otherwise agreed between the Parties to set up the Services.
Setup Fees means the setup fees set out on the Site or as otherwise agreed between the Parties;
Software means the software used to provide any of the Services, and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered
into by the Parties;
Subscription Fees means the fees as set out on the Site or as otherwise agreed between the Parties; and
System means all hardware, software, networks and other IT systems used by a Party from time to time, including a
In this Agreement, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) headings are for convenience only and do not affect interpretation;
(c) if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
(d) the word “month” means calendar month and the word “year” means 12 months;
(e) the words “in writing” include any communication sent by letter or email or any other form of communication capable of being read by the recipient;
(f) the word “includes” and other similar words mean “includes without limitation”;
(g) a reference to $ or dollars refers to the currency of Australia from time to time; and
(h) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body.
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]
Last update: 17 May 2021