Last Modified: 27th March 2020
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
These Terms of Service are between you (you) and us (Digital TechExec, us or we)
and govern your initial purchase of the Services, any related add-ons or any
support, onboarding services which we agree to provide to you, as well as any
future purchases made by reference to these Terms of Service or your Order.
They are to be read in conjunction with your Order and any policies in
applicable User Agreement, which together comprise our agreement with you
(Agreement). By agreeing to these Terms of Service, or by using or accessing
the Services we provide, you are agreeing to be bound by the terms of that
We periodically update these terms and conditions and will notify you
when they change via email.
Your Order will set out any specific terms and conditions that apply to
the Services you have subscribed to. Please ensure that you read the terms set
out in your Order carefully and in conjunction with the Terms of Service, as
the terms in your Order will prevail to the extent that there is any conflict
between those terms and the Terms of Service below.
available on its website (www.digitaltechexec.com) as amended
from time to time.
“Additional Services” means one-off services which you request us to
provide in relation to the Services beyond the scope of the default services
set out in clause 2.2.
“Add-on” means any product, service, feature and functionality which we
have designed to be used in conjunction with the Services but which are not
automatically included in the Services.
“Applicable Currency” means the currency specified in your Order.
“Applicable Jurisdiction” means: (a) if your principal place of business
is in any part of the world other than New Zealand, Victoria, Australia; and
(b) if your principal place of business is in New Zealand, New Zealand.
“Application” means any mobile application specified in your Order.
“Approved Uses” means the uses approved by the operating instructions
and in support of your legitimate businesses purposes.
“Billing Period” means the period for which you are required to have
pre-paid any Fees.
“Business Day” means a day which is not a Saturday, Sunday or public
holiday in the Applicable Jurisdiction.
“Confidential Information” means information which, by its nature, is
confidential, including without limitation, all information regarding the past,
current and future business interests, methodology or affairs of either party
and includes however stored or recorded: (a) business plans, trade secrets,
research, development and survey information; (b) contracts or arrangements,
whether verbal or written; (c) tender, contractor and employee information; (d)
design and engineering information, programs, systems, techniques, maps and
processes; (e) financial and pricing information; and (f) any other
information designated as confidential by a party from time to time.
“Data” means all information, whether in the form of documents or
otherwise, created, stored or provided by you or your Related Parties utilising
the Services or Portal or otherwise in connection with the Agreement, which may
include Confidential Information, Personal Information and Sensitive
“Device” means any mobile device, tablet, computer, wearable or other
device with which you or any of your Users access the Services and/or
applications connected with the Services.
“Documentation” means any user manuals (including those in electronic
form), handbooks, education materials and other publications containing
specifications that we have agreed to supply to you in order to assist the use,
operation or support of the Services.
“Enrichment Data” means the data we make available to you as part of the
“Fees” means the fees specified in the Order, or any other fees that are
payable in connection with the Agreement from time to time.
“Force Majeure Event” has the meaning given in clause 14(j).
“GST”: (a) where the Applicable Jurisdiction is Victoria, Australia, has
the meaning given in the A New Tax System (Goods and Services Tax) Act 1999
(Cth) (or if that Act does not exist for any reason, any Act imposing or
relating to the imposition or administration of a goods and services tax in
Australia and any regulation made under that Act); or (b) where the Applicable
Jurisdiction is New Zealand, has the meaning given in the New Zealand Goods and
Services Tax Act 1985 (NZ).
“Intellectual Property Rights” includes all right, title and interest
wherever subsisting (now or in the future) throughout the world and whether
registered or not, in and to: (a) copyright, neighbouring rights, Moral Rights
and the protection of databases, circuit layouts, topographies and designs; (b)
methods, inventions, patents, utility models, trade secrets, confidential
information, technical and product information; and (c) trade marks, business
and company domain names and get ups, and includes the right to apply for the
registration, grant or other issuance of the rights described in paragraphs
(a), (b) and (c) above and any other right generally falling within this term.
“Law” means any law or legal requirement, including at common law, in
equity, under any statute, regulation or by-law and any authorisation,
decision, directive, guidance or guideline of a government agency.
“Licensed Users” means the maximum number of Users who are licensed to use
the Services, as specified in your Order (as varied from time to time).
“Loss” means any loss (including, but not limited to direct, indirect,
special, consequential or exemplary damages, loss of profit or revenue, loss of
expected profit or revenue, and loss as a result of business interruption or
corruption of data), claim, action, liability, damage, cost, charge, expense,
outgoing, payment, diminution in value or deficiency of any kind or character
which a party pays, suffers or incurs or is liable for, including: (a) interest
and other amounts payable to third parties; and (b) legal (on a full indemnity
basis) and other expenses incurred in connection with investigating or
defending any claim or action, whether or not resulting in any liability, and
all amounts paid in settlement of any claim or action.
“Moral Right” has the meaning given in the Copyright Act 1968 (Cth of
“Order” means the specific terms that are applicable for the provision
of the Services.
“Payment Method” means the method by which you are to pay for the
Services, as approved by Techexec from time to time.
“Personal Information” has the meaning given in the Privacy Act 1988
(Cth of Australia).
“Portal” means the operational dashboard and administration
functionality (also known as the “Vault Solo Web Portal”) that collates all
data for the users of Techexec’s “Vault Solo” mobile application.
website (www.digitaltechexec.com) as amended from time to time.
“Related Body Corporate” has the meaning given in the Corporations Act
2001 (Cth of Australia).
“Related Party” means a Related Body Corporate, director, officer,
employee, agent, contractor, subcontractor or representative.
“Renewal Date” has the meaning given in clause 6.1(a).
“Renewal Term” has the meaning given in clause 6.1(a).
“Reseller” means a person authorised by us to sell Services.
“Security Breach” means any act or omission affecting us or our systems
that compromises the security, confidentiality or integrity of your Data.
“Sensitive Information” has the meaning given in the Privacy Act 1988
(Cth of Australia).
“Services” means the services to which you have subscribed for as
specified in your Order.
“Standard Support” means an online help system, including online
articles, videos and FAQs and self-help ticketing system (including visibility
and tracking). Support requests can be submitted and will be monitored 24 hours
a day, 7 days a week.
“Subscription” means your right to obtain the Services from us on the
terms set out in the Agreement.
“Tax” means any taxes or assessments of tax of any nature imposed by a
government agency, together with any interest, fine or penalty on such tax,
“Term” means the aggregate of the Trial Period and the duration of the
Agreement as specified in your Order and any extension or renewal of that term
in accordance with clause 6.1, unless the Agreement is terminated before that
time, in which case the Term ends on the date of termination.
“Third Party Service Provider/s” means any elements of the Techexec
Service which is provided by a third party service provider.
“Trial Period” has the meaning given to that term in clause 6.1.
“Updates” means new versions of the Services as they are released to you
that include patches and may include features and enhancements.
“User Agreement” means any user agreement in respect of the Services,
available on Techexec’s website (www.digitaltechexec.com) as amended
from time to time.
“User” means any person whom you have authorised to use the
Subscription, Services and/or Documentation, who must be one of your Related
“Techexec” means the company that you are contracting with to provide
the Services as specified in your Order, being either Techexec Pty Ltd or such
other related body corporate as specified in your Order.
“Techexec Content” means all information, data, text, messages,
software, sound, music, video, photographs, graphics, images, and tags that we
incorporate into the Services, including Enrichment Data.
“Techexec Partner Program” means our Partner Program as described in the
Techexec Partner Program Agreement, available through our website(www.digitaltechexec.com)
or on request, as amended from time to time.
2. Your Order.
2.1 Order Specifications.
a. Your Order will specify: i. the Services which you have subscribed
for; ii. the Billing Period and the periodic subscription fees payable by you;
iii. the number of Licensed Users); iv. the fees payable by you in
relation to the onboarding of the Services (if any) to which you have
subscribed for; and v. any other terms applicable to your Subscription.
b. These Terms of Service apply whether you purchase the Services
directly from us, or from any Reseller or Partner. If you purchase through a
Reseller, the Services which we provide are those stated in the Order placed by
the Reseller with us on your behalf, and the Reseller is responsible to you for
the accuracy of any such Order. Resellers are not authorised to make any
promises or commitments on our behalf, and we are not bound by any obligations
to you other than as specified in the Agreement comprising these Terms of
Service and the Order placed for you by the Reseller.
2.2 Scope of services
a. Your Order will specify the various Services provided by Techexec
which you have agreed to subscribe for.
b. In connection with the Services the subject of your Order, we will
also supply to you: i. Database capacity ii. Standard Support.
c. The following are the default implementation and onboarding services
that we will supply to you: i. we will create an instance of Techexec Solo for
you including: i.i access to your Vault Solo Web Portal, i.ii a number of user
licences as specified by your Order, i.iii We reserve the right to charge you
for our travel costs and other disbursements incurred by us in connection with
the onboarding of the Services to you. These costs are in addition to any
amounts stated in your Order.
d. Any Add-ons or additional onboarding or other implementation,
training or support services other than stated above are specified in your
Order. If you wish to subscribe for additional services outside the scope of
the Agreement, you are able to do this by contacting Techexec. This may incur
3. Your Subscription.
a. In consideration for you paying the Fees as and when they become due,
we will provide the Services to you and we will grant you a non-exclusive,
non-transferable subscription to use the Services for the Approved Uses for the
b. The limits that apply to your Subscription will be specified in your
c. You acknowledge and agree that additional fees will apply if you wish
to increase the number of Licensed Users during the Term.
d. Your Subscription is subject always to the following conditions: i.
you must not on sell your right to use and access the Services (including any
aspect of the Portal system or any Application that you have a right to use and
access), or otherwise transfer, assign, novate, lease, lend or gift your rights
under the Agreement; ii. you must not permit any person who is not one of your
Related Parties to use or access the Services (including any aspect of the
Portal system or any Application that you have a right to use and access); and
iii. you must not use the Services (including any aspect of the Portal system
or any Application that you have a right to use and access) to provide those
same services or similar or competing services to third parties.
3.2 Your obligations.
a. You must not, and you must ensure that any person who uses or
accesses the Services (including any aspect of the Portal system or any
Application that you have a right to use and access) with your authority
(including Users) does not, use those Services: i. in any way that infringes
any applicable Law or the Intellectual Property Rights or other legal rights of
any person; ii. in connection with any unlawful, illegal, fraudulent or
harmful purpose or activity; iii. in any way that causes, or may cause, damage
to the Services or the Portal system or any Application, or impairs the
availability or accessibility of the Services, the Portal system or any
Application; or iv. in any way that breaches the Agreement.
b. You are responsible for: i. ensuring that any person who uses or
accesses the Services (including any aspect of the Portal system or any
Application that you have a right to use and access) under your Subscription
complies with the terms of the Agreement; ii. the acts and omissions of any
person who uses or accesses the Services (including any aspect of the Portal
system or any Application that you have a right to use and access) under your
Subscription and any breaches of the Agreement caused by such persons; iii. the
accuracy and completeness of all user-defined information contained within the
database; iv. all performance criteria that are deemed to be in your control
including Devices, hardware, internet connection and local network access; and
v. obtaining any necessary consents in relation to the disclosure of Personal
Information or Sensitive Information to us.
c. You agree not to, or to procure anyone else to: i. duplicate, copy,
transmit, distribute, licence, sublicense, sell, rent, lease, transfer,
provide, assign, reproduce alter or otherwise commercially exploit the Services,
the Documentation or any aspect of Portal or any Application; ii. adapt or
modify the whole or any part of the Services, the Documentation, Portal or any
Application in any way whatsoever; iii. interfere with any subscription key
mechanism in relation to the Services, Portal or any Application; iv. reverse
engineer, disassemble, decompile or translate the Services, Portal or any
Application, or otherwise seek to obtain or derive the source code, algorithms,
underlying ideas, file formats or non-public APIs to the Services, Portal or
any Application; v. remove or obscure any proprietary or other notices
contained in the Services, Portal or any Applications, or the Documentation;
vi. develop a shell, wrapper or similar environment around the Services or any
of Portal or any Application’s code libraries; vii. on-sell any software
developed using the Services, Portal or any Application (including any software
using, based on or incorporating any aspect of the Services, Portal or any
Application); viii. supply any part of the Services, Portal or any Application,
including any code library, to any third party; ix. create, use, or on-sell any
end-user applications (including any software using, based on or incorporating
any aspect of the Services, Portal or any Application) that allows such
software to run on remote or multiple real or virtual machines or CPUs; x.
combine or incorporate the whole or any part of the Services, Portal or any
Application in any other program, product, system or service; and xi. use the
Services, Documentation, Portal or any Application in any unlawful, illegal or
fraudulent manner or in any way that could harm us, the Services, Portal or any
Application or impair or affect anyone else’s use of the Services, Portal or
d. You must use reasonable endeavours, including implementing reasonable
security measures relating to any account by which you or your Users access the
Services, Portal or any Application, to ensure that no unauthorised person
gains access to the Services, Techexec or any Application.
e. The minimum technical and security requirements will be specified in
your Order. We may vary these minimum technical and security requirements at
any time by notice in writing to you. You acknowledge that you may not be able
to access the Services, or that we may limit your access to the Services, if
you do not meet such minimum requirements (as varied from time to time).
3.3 Services and Documentation.
a. We will provide you access to the Services (including any aspect of the
Portal system or any Application that you have a right to use and access under
the Agreement) and the Documentation in electronic form via the internet. We
may provide some or all elements of the Services through third party service
b. You agree that the Services (including any aspect of the Portal
system or any Application that you have a right to use and access under the
Agreement) and the Documentation will only be used by you and your Related
Parties whom you have authorised to use the Subscription, and then only for the
Approved Uses and in conducting your legitimate business activities. Without
limiting this clause 3.3(b), you must not permit your clients, customers or any
other third party to use the Services, Documentation or any aspect of the
Portal system or any Application.
a. We modify the Services from time to time, including by adding or
deleting features and functions, in an effort to improve your experience. We
will use all reasonable endeavours to seek to ensure that changes to the
Services do not materially reduce the functionality of the Services provided to
you during the Term. We might provide some or all elements of the Services
through third party service providers.
b. We reserve the right, in our sole discretion, to modify these Terms
of Service, and any Fees applicable to the Services, at any time. If we modify
these Terms of Service, or the Fees which we charge for the Services you have
subscribed to, we will provide you with notice of the modification via email
and any such modification will only take effect on the earlier of the day on
which you modify or change the Services (for example, by purchasing an
Application or additional training services) and the calendar day immediately
following the last day of the then Billing Period in which the modification
occurs. If you do not agree with a modification to these Terms of Service, you
must notify us in writing within thirty (30) days after receiving notice of
modification. If you give us this notice, your subscription will continue to be
governed by the terms and conditions of the Terms of Service prior to
modification for the remainder of your current term. Upon renewal, the Terms of
Service published by us on our website will apply. If the modified Fees are not
acceptable to you, your only recourse is to terminate the Agreement in
accordance with clause 6.
4. Data and Intellectual Property Rights.
a. You acknowledge that we can and do access, collect, control, store
Agreement and: i. for diagnostic purposes; ii. to conduct analytics about how
users interact with the Services, the characteristics of our user base and
other data derived from the data we collect from or about the users of the
Services; iii. to test, enhance and otherwise modify the Services; iv. to
improve the Services or develop other services; and v. as reasonably required
for the performance of our obligations under the Agreement.
b. You warrant that you have taken all steps required to enable Techexec
to process any Data in compliance with all applicable laws.
c. We may monitor your partner’s activity within your Portal database
(if any) for the purposes of managing and improving the Techexec Partner Program.
a. We implement measures and maintain safeguards to protect the Data
from unauthorised access and use. However, we cannot make any guarantee that
there will be no loss of Data, such that you must maintain copies of all Data
and other information which you provide to us.
b. Any Personal Information or Sensitive Information will be handled in
c. You acknowledge and agree that: i. subject to clause 4.2(c)(ii), your
Order will specify the server location applicable to the Services that you have
subscribed for and that your Data will be processed and stored in that
location; ii. certain information, including Data, may (unless your Order
specifies otherwise) be held on a temporary basis in Australia and/or New
Zealand during the initial onboarding process associated with setting up the
Services for you; and iii. complex software is never entirely free from
security vulnerabilities and we give no warranty or representation that the
Services or any aspect of Portal, the Portal system or Applications will be
entirely secure. You acknowledge and agree that Techexec will not be liable for
any loss of Data, or for any access by third parties or other disclosure,
modification or deletion of such information, regardless of how it is caused.
4.3 Intellectual Property (IP) Rights.
a. Except as expressly set out in the Agreement, nothing in the
Agreement transfers ownership in, or otherwise grants any rights in, any
Intellectual Property Rights of a party. For the avoidance of doubt, all
Intellectual Property Rights in the Services, Portal and the Portal system, the
Applications and the Documentation, whether in the original or modified form,
are owned by us.
b. Any Intellectual Property Rights arising out of, or connected with,
any modification or alteration of the Services, the Documentation, Portal and
the Portal system or any Application, whether authorised or not, shall vest in
us and the Agreement shall apply to the Services, the Documentation, Portal and
the Portal system and the Applications as modified or altered. You agree to do
all things necessary, including sign any further documentation, to protect our
ownership of any such product as modified.
c. You agree to notify us immediately if you become aware of, or
reasonably suspect: i. any unauthorised use or infringement of our Intellectual
Property Rights; or ii. any potential claim to be brought against us alleging
that the Services infringe the Intellectual Property Rights of a third party,
and agree to fully cooperate with us in relation to such matters.
5.1 You must pay to us all Fees in accordance with the terms of your
5.2 We will invoice you prior to the due date of any Fees (or an
instalment thereof) for the amount of those Fees (or an instalment thereof),
and you must pay the amount of the invoice in accordance with your Order.
5.3 If you wish to increase the number of Licensed Users during a
Billing Period or in any subsequent Billing Period, we reserve the right to
increase the Fees for that Billing Period and each subsequent Billing Period
(if any) to reflect this increase in accordance with the rate set out in your
Order or such other rate as we may notify you from time to time.
5.4 If payment of the whole or a part of a Fee is not made within 14
calendar days of the due date, you will be liable to pay us interest at a rate
of 3% per annum above the then current cash rate published by the Reserve Bank
of Australia on the overdue amount, calculated on a daily basis. Additionally,
we reserve the right to suspend or terminate your access to the Services in
accordance with clause 6.
5.5 If your Order specifies a Payment Method, the applicable Fees (or
portion thereof) will be billed, and you authorise us to charge the relevant
amount to you, in accordance with that Payment Method. In this regard, you
authorise us to use a third party to process payments, and consent to the
disclosure of your payment information to such third party. In some instances, the
timing of billing may change if, for example, the Payment Method has not
successfully settled. We may in our absolute discretion refuse any requests to
change your Payment Method.
5.6 We reserve the right to charge you for all reasonable travel and
related expenses incurred by us in connection with any services, including any
onboarding services, which we provide to you, or any other services which we
render to you in relation to the supply of the Services or any additional
services agreed in relation to your Order. You must pay any such expenses
within 14 days of receipt of the relevant invoice.
5.7 You acknowledge and agree that if you subscribe for new features or
Add-ons, or request a modification of the Services, we may charge additional
5.8 Unless otherwise specified in the Agreement, any amount payable by
reference to the Agreement: i. is non-refundable; ii. must be paid in the
Applicable Currency; and iii. does not include any Tax or duties, which we will
charge you as applicable. In the unlikely event of a dispute regarding the
amount of Fees payable under the Agreement, you must pay the undisputed amount
on the due date. The dispute regarding the remainder may be referred to the
dispute resolution procedure prescribed by clause 13. If it is subsequently
resolved that a further amount is payable, you must pay that amount together
with any interest calculated in accordance with this clause 5.
5.9 You agree to pay to us the amount of any Taxes or duties (including
GST or any applicable value added taxes) payable in connection with the
Services in addition to any Fees payable under the Agreement. If you are
required to deduct or withhold any tax, you must pay the amount deducted or
withheld as required by law and pay us an additional amount so that we receive
payment in full as if there were no deduction or withholding.
5.10 If you are paying by a credit card, you authorise us to charge your
credit card or bank account for all fees payable during the Subscription Term.
6. Trial Period, Subscription Term, Termination, Suspension and
6.1 Trial Period.
a. When you first sign up for access to the Services you can evaluate
the Services for the period of two weeks (Trial Period), with no obligation to
continue to use the Services after the Trial Period. If you choose to continue
using the Services after the conclusion of the Trial Period, you will be billed
in accordance with your Order.
b. If you do not wish to continue using the Services after the
conclusion of the Trial Period, you must notify us of this either before or at
the conclusion of the Trial Period.
c. Notwithstanding anything else in the Agreement, we can terminate the
Agreement immediately at any time without notice during the Trial Period.
a. Subject to clause 6.3, at the end of each Billing Period (Renewal
Date), the Agreement will automatically continue for another period of the same
duration as that Billing Period (Renewal Term), provided that you continue to
pay any Fees in accordance with the terms of your Order.
b. You acknowledge and agree that the Fees for the Renewal Term will
increase if you wish to increase the number of Licensed Users. If you wish
to increase or decrease the number of Licensed Users in respect of a
Renewal Term, you can do this by contacting us at firstname.lastname@example.org no
later than two days before the Renewal Date.
6.3 Termination for Convenience.
a. If the Billing Period is 31 days or less, either party can terminate
the Agreement by contacting us at email@example.com. The Agreement will
then terminate on the next Renewal Date after the expiry of that notice period.
b. If the Billing Period is more than the period specified in clause
6.3(a), the Agreement cannot be terminated for convenience by either party.
c. Notwithstanding anything else in these Terms of Service, you can
terminate the Agreement by providing written notice to us if we have made a
material modification in accordance with clause 3.4(b) which you do not accept,
in which case the Agreement will terminate on the last day of the then current
6.4 Termination for Cause.
Either party may terminate the Agreement: (i) upon thirty (30) days’
notice to the other party (Defaulting Party) if the Defaulting Party commits a
material breach of the Agreement and if such breach remains un-remedied at the
expiration of such period, or (ii) immediately, if the Defaulting Party becomes
the subject of a petition in bankruptcy or any other proceeding relating to
insolvency, liquidation or assignment for the benefit of creditors or is
otherwise unable to pay its debts as and when they fall due. We may terminate
the Agreement immediately if we reasonably suspect that you have infringed or
are infringing our or a third party’s Intellectual Property Rights or are otherwise
in breach of any applicable law or regulation.
6.5 Material Breach.
For the purposes of clause 6.4, a material breach includes:
a. you failing to pay any applicable Fees by the relevant due date in
accordance with the Agreement; and
b. any warranty provided by you under the Agreement being incorrect or
otherwise having been breached.
6.6 Suspension for Prohibited Acts.
We may suspend access to the Services where we consider that the
Services have been used in a manner that may violate applicable law or
regulation or the terms of the Agreement. If the Services are suspended in such
circumstances, we may charge a re-activation fee to reinstate the Services.
6.7 Suspension for Non-Payment.
We will provide you with notice of non-payment of any amount unpaid as
at the due date. Unless the full amount has been paid by the due date or such
later date as specified in the notice of non-payment, we may suspend your
access to the Services without further notice. We will not suspend the Services
where we consider that you are disputing the applicable charges reasonably and
in good faith and are cooperating diligently to resolve the dispute. If the
Services are suspended for non-payment, we may charge a re-activation fee to
reinstate the Services.
6.8 Effects of Termination or Expiration.
a. Upon termination or expiration of the Agreement, you will stop all
use of the Services and Techexec Content, and if we request, you will provide
us written confirmation that you have discontinued all use of Services and Techexec
Content (unless, of course, you have a source other than the Services for such Techexec
Content other than through a breach of the Agreement).
b. If either party terminates the Agreement in accordance with clause
6.3, you will be liable to pay all applicable Fees up to and including the day
of termination of the Agreement.
c. If you terminate the Agreement in accordance with clause 6.4, we will
promptly refund any prepaid but unused Fees covering use of the Services after
d. If we terminate the Agreement in accordance with clause 6.4, you will
promptly pay all unpaid Fees due through the end of the Billing Period in which
the termination occurs. Fees (including any prepaid Fees) are otherwise
6.9 Retrieval of Data.
As long as you have paid all amounts owed to us pursuant to the
Agreement, if you make a written request within thirty (30) days after
termination or expiration of the Agreement, then, if permitted by law, we will
provide you with temporary access to the Services to retrieve, or we will
provide you with copies of, all Data then in our possession or control. If we
provide you with temporary access to the Services, we may charge a
re-activation fee. We may withhold access to Data until you pay any amounts
owed to us. Thirty (30) days after termination or expiration of the Agreement,
we will have no obligation to maintain or provide you the Data and may, unless
legally prohibited, delete all Data in our systems or otherwise in our control.
6.10 Survival of Provisions.
The following provisions survive termination of the Agreement: clause
4.3 (Intellectual Property Rights), clause 5 (Fees), this clause 6 (Trial
Period, Termination, Suspension and Expiration) clause 9 (Indemnity), clause 10
(Acknowledgements), clause 11 (Limitation of liability), clause 12
(Confidentiality) and clause 13 (Dispute Resolution).
7. Standard Support.
7.1 In consideration for the timely payment of the Fees, we will supply
you with the Standard Support in relation to the Services during the Term.
7.2 All requests for support must be submitted online through our
7.3 We will monitor all support requests 24 hours a day, 7 days a week.
7.4 First tier customer support including escalation services is
available 24 hours a day, 7 days a week.
7.5 Support responses are provided during Standard Support hours only
however we do not guarantee any specific response time to a request for
7.6 Support is not a replacement for training services. If further
assistance is required, we offer additional services for a fee in order to
supplement Standard Support services. The additional services include industry
consulting, technical support and additional training.
7.7 If you require support services that exceeds the support included in
the Standard Support, we will need to agree with you separately the terms of
that support and any additional Fees which will be required to be paid by you
in order for us to provide you with that level of support.
a. Each party warrants that it has the legal power and authority to
enter into the Agreement and that the Agreement will be legally binding and
enforceable against it.
b. Save as expressly provided in this clause 8, all warranties and
guarantees provided for by statute or implied which may lawfully be excluded,
are hereby excluded.
8.2 Our Warranties to You.
a. We warrant that we have the right to grant a subscription for the
Services supplied to you.
b. However, we do not warrant that the Services will meet your requirements
or that it will be suitable for any particular purpose. All implied conditions
or warranties are excluded to the extent permitted by law, including (without
limitation) warranties of merchantability and fitness for purpose.
c. We also do not warrant that the use of the Services will be
uninterrupted or error free. Among other things, the operation and availability
of the systems used for accessing the Services, including public telephone
services, computer networks or the internet, can be unpredictable and may from
time to time interfere with or prevent access to the Services. Techexec is in
no way responsible for any such interference or prevention of your access or
use of the Services. We will however use reasonable endeavours to correct any
defect in the Services, Updates or Documentation which are within our control,
provided always that: i. we are notified of the defect via the normal support
channels and where all Fees have been paid; and ii. you have complied with all
of our written recommendations and instructions concerning the installation and
use of the Services or relevant Updates.
d. The warranty in this clause 8.2 is void if the failure of the
Services or the relevant Updates (as the case may be) arises out of or in
connection with your negligence or abuse or misuse of the Services or Update.
8.3 What You Warrant to Us.
a. You warrant to us that you will not, and you will ensure that any
person who accesses the Services or Portal with your authority (including
Users) will not: i. use the Subscription, Services, the Documentation, the
Portal system and any Application for anything other than the Approved Uses; or
ii. infringe our rights or the rights of any other person or entity, including
without limitation, their Intellectual Property Rights, privacy, publicity or
b. You warrant to us that the Data: i. does not infringe, misappropriate
or violate a third party’s Intellectual Property Rights, or rights of publicity
or privacy; ii. does not infringe, violate, or encourage any conduct that
would infringe or violate, any Law or would give rise to criminal or civil
liability; iii. is not fraudulent, false, misleading (directly or by omission
or failure to update information) or deceptive; iv. is not defamatory,
obscene, pornographic, vulgar or offensive; v. does not promote discrimination,
bigotry, racism, hatred, harassment or harm against any individual or group;
vi. is not violent or threatening or will promote violence or actions that are
threatening to any other person; or vii. does not promote illegal or
harmful activities or substances.
c. You warrant to us that the use of the Data by us in accordance with
the Agreement will not: i. breach the provisions of any Law; ii. infringe the
Intellectual Property Rights or other legal rights of any person; or iii. give
rise to any cause of action against Techexec, in each case in any jurisdiction
and under any applicable Law.
d. You warrant to us that you: i. will comply with all applicable
privacy Laws in connection with the disclosure of Data to us, regardless of how
that disclosure occurs; and ii. have obtained any consents necessary prior to
the disclosure of Personal Information and Sensitive Information to us.
e. You warrant to us that each warranty contained in this clause 8.3 is
correct and not misleading on each date between (and including) the date of the
Agreement (being the date that we accept your Order) and the earlier to occur
of the expiry of the Term or Renewal Term (as applicable) and termination of
the Agreement (as if made on each such day).
a. Each indemnity in the Agreement is a continuing obligation, separate
and independent from the party’s’ other obligations and survives the
termination of the Agreement.
b. It is not necessary for a party to incur expense or make a payment
before enforcing any indemnity conferred by the Agreement.
9.2 Your Indemnities.
You will indemnify us and hold us and our Related Parties harmless
a. any and all Loss arising directly or indirectly: i. from you or any
of your Related Parties using or accessing the Services, Portal or the Portal
system or any Application; ii. from a third party’s use or reliance on any Data
provided in connection with the Agreement; iii. from any breach by you of the
Agreement; iv. from you breaching any Law or rights of a third party; and v.
from a breach by you of a warranty given under the Agreement; and
b. any and all Loss arising out of or in connection with any claim: i.
made against us or one of our Related Parties by a third party alleging that
any Data (or the collection or use of that Data by us) infringes a Law or the
Intellectual Property Rights of a third party; and ii. brought against us or
one of our Related Parties by any third party relating to your use of the
Services, the Portal system or any Application.
10.1 You acknowledge that: i. complex software is never wholly free from
defects, errors and bugs and that we give no warranty or representation that
the Services or any aspect of the Portal system or applicable Applications will
be free from any defects, errors and bugs; ii. the availability of the Services
is dependent on the availability of, amongst other things, communication
networks, including without limitation cellular coverage and the internet; iii.
we are not responsible for any delays, delivery failures, or any other loss or
damage resulting from the transfer of data over communications networks and
facilities, including without limitation the internet, and you acknowledge that
the Services may be subject to limitations, delays and other problems inherent
in the use of such communications networks and facilities; iv. in respect of
any Services which you use to monitor or communicate with your Related Parties,
you do not, and will not, rely solely on the Services to monitor or communicate
with those persons and that you have appropriate measures in place to monitor
and communicate with those persons in the absence of the Services; v. we
will supply the Services on a non-exclusive basis; vi. the Services may use
third party products or services; and vii. we do not make any warranty or
representation as to the ability of the facilities or services of any
10.2 It is your sole responsibility to determine that the Services meet
your needs and are suitable for the purposes for which they are used. You
acknowledge that you have made your own evaluation of the Services and the
Portal system and Applications generally, determined that the Services are fit
for purpose and have entered into the Agreement on the basis of that evaluation
and not on the basis of any representations or warranties provided by us.
10.3 We can, at any time and without prior notice, remove or disable
your access to any Data and/or your access to the Services, Documentation, any
aspect of the Portal system or any Application where we, in our sole
discretion, consider any Data to be objectionable for any reason, in violation
of the terms contained in the Agreement, or otherwise harmful to us.
11. Limitation of Liability.
a. To the maximum extent permitted by law, we and our Related Parties
will not be liable to you or any third party in contract, tort (including
negligence) or otherwise, in respect of any Loss or for any loss or corruption
of any Data, database, software or other material resulting directly or
indirectly from: i. using or relying on the Services or Portal; ii. using,
relying on, or action taken as a result of, any information or material
available on, in or through the Services or Portal; iii. any interruption,
failure, suspension or termination of the Services or Techexec in whole or in
part for any reason whatsoever, including failure or suspension of public or
private communication networks; iv. the unavailability, unsuitability and
non-connectivity of third party sites; v. any loss, damage, corruption or
degradation of any data or other material as a result of the use of the
Services or Portal and/or viruses or other technologically harmful material
that may infect your Device(s) due to your use of the Services or Portal; or
vi. a Security Breach.
b. In no circumstances will we or our Related Parties be liable to you
for any special, indirect or consequential damages howsoever caused, which
damages will be deemed to include loss or revenue, loss of profit or loss of
c. Our and our Related Parties’ aggregate liability to you under the
Agreement will in no circumstances exceed the total Fees actually paid by you
under the Agreement in the 12 months preceding the date of the event giving
rise to the claim. This is the case regardless of whether you advise us that
you may incur losses in excess of that amount.
d. You undertake not to bring any claim or action against us or any of
our Related Parties in respect of the matters the subject of the Agreement more
than 2 years after you become aware, or ought reasonably to have become aware,
of the circumstances giving rise to that claim or action.
e. We disclaim all liability with respect to third-party products
that you use.
f. Where legislation implies in the Agreement any guarantee, condition
or warranty, and that legislation avoids or prohibits provisions in a contract
excluding or modifying application of or exercise or liability under such
guarantee, condition or warranty, the guarantee, condition or warranty will be
deemed to be included in the Agreement. However, our liability for any breach
of such guarantee, condition or warranty will be limited, at our option, to one
or more of the following: i. if the breach relates to goods: i.i the
replacement of the goods or the supply of equivalent goods; i.ii the
repair of such goods; i.iii the payment of the cost of replacing the goods or
of acquiring equivalent goods; or i.iv the payment of the cost of having the
goods repaired; and ii. if the breach relates to services: i.i the supplying of
the services again; or i.ii the payment of the cost of having the services
a. Subject to clause 12(b), all information exchanged between us
(whether under the Agreement or during negotiations relating to the Services
contemplated by the Agreement) is to be kept confidential and must not be
disclosed by a party to any other person except: i. as required by law or the
rules of any applicable securities exchange; ii. to its Related
Parties, Third Party service providers and advisers to the extent that
they need to know the information for purposes related to the Agreement and on
the condition that they agree to be bound by the terms of this clause 12; or
iii. with the prior written consent of the party who supplied the information.
b. Clause 12(a) does not apply if: i. the relevant information is in the
public domain at the date of the Agreement, or comes into the public domain
after that date without a breach of the Agreement or other breach of
confidence; ii. the recipient party already knew or had, on a non-confidential
basis, the information before receiving the relevant information; or iii. the
recipient party independently developed or acquired the information, without a
breach of the Agreement or other breach of confidence.
c. Notwithstanding anything in this clause 12, you grant us the right to
add your name and company logo to our customer list and website.
13. Dispute resolution
a. Prior to the commencement of any legal proceedings, any dispute
arising in connection with the Agreement must: i. first be referred to a
director or senior executive of each party to seek a satisfactory resolution to
the dispute in good faith; and ii. if the dispute cannot be resolved by
agreement, referred to mediation in accordance with this clause 13.
b. If such persons described in clause 13(a) are unable to resolve the
dispute within 20 Business Days of the dispute being referred to them, the
dispute must be submitted to mediation in accordance with, and subject to, the
then current mediation rules published by the Institute of Arbitrators and
c. The parties shall continue to perform their obligations under the
Agreement as far as possible as if no dispute had arisen pending the final
settlement of any matter referred to mediation.
d. The costs of mediation shall be shared equally by the parties. Each
party must pay its own costs in connection with the dispute.
e. Nothing in this clause 13 shall preclude either party from taking
immediate steps to seek an urgent injunction or interlocutory relief in
relation to any purported breach of confidentiality, privacy or infringement of
Intellectual Property Rights.
14.1 Communication. Any
communication or notice given pursuant to the Agreement shall be sufficiently
given if it is in writing and delivered, or sent by prepaid post, facsimile or
email to the other party, in accordance with the contact details provided by
14.2 Waiver. No right under
the Agreement shall be deemed to be waived except by notice in writing signed
by both parties.
14.3 Modifications. Any
modification to or variation of the Agreement purported to be made by you must
be in writing and signed by each party.
14.4 Assignment. You will not
assign or transfer the Agreement, including any assignment, novation or
transfer or by reason of merger, reorganisation, sale of all or substantially
all of your assets, change of control or operation of law, without our prior
written consent. We may assign the Agreement in our sole discretion and the
Agreement may be assigned in any way, including by way of merger,
reorganisation, the sale of all or substantially all of our assets, a change of
control of Techexec or by operation of law.
14.5 Survival. The provisions of
the Agreement which are capable of having effect after termination of the
Agreement shall remain in full force and effect following the termination of
14.6 Entire Understanding. The
parties acknowledge that the Agreement contains the whole of the contract and
understanding between them. There are no conditions, warranties or other
understandings affecting the arrangements between the parties other than those
set out herein and the Agreement replaces all prior agreements and
understandings with respect to the subject matter of the Agreement.
14.7 Applicable Jurisdiction. The
Agreement is governed by and is to be construed in accordance with the laws
applicable in the Applicable Jurisdiction. Each party irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts
exercising jurisdiction in the Applicable Jurisdiction and any courts which
have jurisdiction to hear appeals from any of those courts and waives any right
to object to any proceedings being brought in those courts.
14.8 Delay. No forbearance,
delay or indulgence by a party in enforcing the provisions of the Agreement
will prejudice or restrict the rights of that party, nor will any waiver of
those rights operate as a waiver of any subsequent breach.
14.9 Severability. Should any
part of the Agreement be or become invalid, that part will be severed from the
Agreement. Such invalidity will not affect the validity of the remaining
provisions of the Agreement.
14.10 Force Majeure. Neither
party will be responsible for failure or delay of performance if caused by: an
act of war, hostility, or sabotage; act of God; electrical, internet, or
telecommunication outage that is not caused by the obligated party; government
restrictions; or other event outside the reasonable control of the obligated
party (Force Majeure Event). If a Force Majeure Event continues for more than
30 days, either party may terminate the Agreement immediately. The party
affected by a Force Majeure Event must promptly notify the other party of such
an event and each party must use reasonable efforts to mitigate its effect.
14.11 The Agreement between us and you comprises the following
documents. Where there is any ambiguity or discrepancy between these documents,
they must be read in the following order of precedence: i. your Order; ii.
these Terms of Service; and iii. any of our policies in place from time to time
and available on our website (www.digitaltechexec.com), including
14.12 Unless expressed to the contrary, in the Agreement: i. words in
the singular include the plural and vice versa; ii. if a word or phrase is
defined its other grammatical forms have corresponding meanings; iii.
‘includes’ means includes without limitation; iv. no rule of construction will
apply to a clause to the disadvantage of a party merely because that party put
forward the clause or would otherwise benefit from it; and v. a reference to:
i.i a person includes a partnership, joint venture, unincorporated association,
corporation and a government or statutory body or authority; i.ii a person
includes the person’s legal personal representatives, successors, assigns and
persons substituted by novation; and i.iii any legislation includes subordinate
legislation under it and includes that legislation and subordinate legislation
as modified or replaced.
a. WorkMate will periodically access and collect information about
your phone and driving activity that can be detected by the phone, including
the speed of your automobile, braking habits, distracted driving, distances and
precise routes driven, other driving events and behaviour, etc. (such
information will be Techexec’s IP under this Agreement).
WorkMate Vehicle Collision Detection Services.
a. The Service includes driver protection features, which (where
available) may help detect automobile collisions. Do not use Workmate in
a way that distracts you while driving, or that interferes with your ability to
follow traffic laws.
b. The WorkMate protection features will periodically access and
collect information about your phone and driving activity that can be detected
by the phone, including your location, the use and movement of the phone, the speed
of your motor vehicle, etc. such information will be Digital TechExec’s IP under this
Agreement. The WorkMate features may collect this information for any
motor vehicle that you are in, even if you are not the driver. By using
WorkMate in a motor vehicle, you represent and warrant that you are the driver
and have consented, or that have obtained consent from the driver, to use the
c. When you use WorkMate features and the
corresponding application is installed on your phone, the features
may help to detect automobile collisions when you are in an automobile and
your phone is with you. Your phone must be powered on and properly functioning
for WorkMate to work. If a collision is detected, WorkMate may prompt
you to determine whether you need assistance, and it may utilise your phone to
communicate with your Solo Administrator or Manager to help you seek
assistance. In the event of a potential collision, WorkMate may alert your
Solo Administrator or Manager of the incident. By using or subscribing to
WorkMate, you expressly consent to allow Digital TechExec to contact you or your phone
by push notification, text message, or call, including through the use of an
automatic telephone dialling system.
d. While WorkMate features are designed to help you in the event of
an automobile collision, it may not detect all collisions or be able
to communicate with Digital TechExec. For example, the WorkMate features may be
able to detect a particular collision, hardware limitations may
prevent collision detection, limitations or errors in the algorithms
and processes used by SoloDrive may not function properly (including, without
limitation, if the automobile is moving at a slow speed, or is stopped at the
time of a collision), and collisions may not be detected if you are
located outside of your wireless service coverage area for the phone that
the application for the driver protection features is installed on or
if your phone is otherwise not connected to your wireless service provider’s
network. Other factors also may prevent accurate collision detection.
WorkMate features are NOT REPLACEMENT FOR emergency services in the event of a
serious vehicle collision, or one that involves injury. In the event of such a
collision, always dial emergency services immediately.
e. Although it has taken what it believes to be commercially reasonable
efforts to design helpful driver protection features, to the extent permitted
by law Digital TechExec MAKES NO WARRANTIES, EXPRESS OR IMPLIED, ABOUT THE OPERATION,
PERFORMANCE, AVAILABILITY, OR RESULTS OF THE WORKMATE SERVICE, INCLUDING
(WITHOUT LIMITATION) THAT THE DRIVER PROTECTION FEATURES WILL: SUCCESSFULLY
DETECT COLLISIONS, COMMUNICATE WITH YOU OR A COMPANY OR EMERGENCY SERVICES
CENTRE IN THE EVENT OF A COLLISION. Digital TechExec IS NOT LIABLE FOR THE
ACTIONS OR INACTIONS OF ANY USER, EMERGENCY RESPONDERS, OR ANY OTHER THIRD
PARTY. Some jurisdictions do not allow the disclaimer of certain warranties, so
the disclaimers above may not apply to you.
WorkMate Driver Behaviour Monitoring
a. Certain driver behaviour monitoring and tracking features may be
offered as part of the Service. These driver behaviour monitoring and
tracking features track (where available) details about driving behaviour.
Please do not use the WorkMate Driver Behaviour Monitoring services in a
way that distracts you while driving, or that interferes with your ability to
follow traffic laws.
b. For driver behaviour monitoring and tracking features to function,
the corresponding application must be installed on your phone, and your phone
must be with you while you are driving. Your phone must be powered on and
properly functioning for the driver behaviour monitoring and tracking features
to work, and the service may not function if you are driving outside of your
wireless service coverage area for the phone that the application for the
driver behaviour monitoring and tracking features is installed on or if your
phone is otherwise not connected to your wireless service provider’s network.
The driver behaviour monitoring and tracking features may collect this
information for any motor vehicle that you are in, even if you are not the
driver. If you do not have permission from the driver to collect this
information, please be sure to deactivate the driver behaviour monitoring and
tracking features. By using either service in a motor vehicle, you represent
and warrant that you are the driver and have consented, or that have obtained
consent from the driver, to use the driver behaviour monitoring and tracking
Version 1 – 7th September 2018
Current – 28th March 2019