Terms and Conditions

GENERAL
1. TRACit Pty Ltd (ACN 642 319 560) (“TRACit”, “us”, “our” or “we”) maintains this APP and website TRACit.com.au (including its subdomains) (this “Website” or “APP” ), the related websites and APP (including but not limited to any RTO from whom TRACit receive correspondence) (each, a “Related Website”), the content located at the domain names and subdomain names of this Website and APP and the Related Websites and any and all associated software, application(s), media and electronic documentation made available by us that support and facilitate their operation (together, the “Platforms”) and administers the services offered through these Platforms (the “Services”) and our content uploaded to third party sites.
2. Information about how to subscribe to any of the Services via an order form advised by us from time to time on this App or Website (“Subscription Order”) and to use the Platforms generally forms part of the TRACit Subscription Services Terms & Conditions (“Terms & Conditions”). Please carefully read these Terms & Conditions. Each time you, as the party identified in a Subscription Order as subscribing to any of the Services (“Subscriber”, “you” or “your”), place a Subscription Order, the Subscription Order and these Terms & Conditions together constitute an agreement between you and us for the supply of the Services the subject of that Subscription Order (“Agreement”).
3. Each Subscription you place is subject to these Terms & Conditions, including the relevant Schedules, unless these Terms & Conditions are modified by an express, contrary intention stated by us on the relevant Subscription Order or otherwise agreed in writing by us. If you do not agree to these Terms & Conditions, you must not place a Subscription Order.
4. These Terms & Conditions include any terms set out in any additional forms, documents, materials, or other information supplied by us to you from time to time in relation to a Subscription Order (“Additional Information”). These Terms & Conditions will prevail to the extent of any inconsistency between any Additional Information and these Terms & Conditions.
5. TRACit may revise these Terms & Conditions at any time by updating them on this Website. Revisions will take immediate effect and may affect your ability to subscribe to the Services and to access and use all or part of the Platforms. As you are bound by the most current version of these Terms & Conditions each time you use the Platforms, you should periodically check these Terms & Conditions. Your subscription to the Services and/or use of the Platforms generally following the posting of any revisions to these Terms & Conditions by us constitutes acceptance of those revisions. TRACit also reserves the right to apply any upgrade, enhancement, change or modification to the Services, the content on the Platforms, our content on third party sites and/or the Platforms generally at any time in our absolute discretion.
6. These Terms & Conditions are in addition to our Collection Statement and Privacy Policy. You acknowledge that you have, in addition to these Terms & Conditions, read our Collection Statement and Privacy Policy and to the extent they apply or are incorporated by reference herein, you agree to be bound by them. These Terms & Conditions will prevail to the extent of any inconsistency between our Collection Statement and/or Privacy Policy and these Terms & Conditions.
7. When you access and use a Platform or a third-party site as part of your subscription to the Services, you accept and agree to be bound by any terms and conditions of use of that Platform or third-party site (as applicable) (“Other Terms & Conditions”). You acknowledge that you have, in addition to these Terms & Conditions, read these Other Terms & Conditions and to the extent they apply or are incorporated by reference herein, you agree to be bound by them. These Terms & Conditions will prevail to the extent of any inconsistency between any Other Terms & Conditions and these Terms & Conditions in relation to the Agreement.
8. A reference to a “Schedule” refers to a schedule to these Terms & Conditions. A Schedule forms part of the Agreement to the extent that you subscribe to any of the Services particularised in that Schedule and a reference to these “Terms & Conditions” includes the Schedule(s) relevant to the Agreement. You must comply with the terms set out in the Schedule(s) applicable to the Agreement as operative terms of the Agreement. These Terms & Conditions will prevail to the extent of any inconsistency between any applicable Schedule and these Terms & Conditions. Capitalised terms used in a Schedule have the meaning given to those terms in these Terms & Conditions unless otherwise defined in the Schedule.
PLACING SUBSCRIPTION ORDERS
1. You must place a Subscription in order to subscribe to any of the Services. When you place a Subscription Order, you represent and warrant that:
  1. you are an individual, partnership, corporation and/or other entity in Australia in a trade eligible to subscribe to the Services as stated on the Subscription Order (which may include, but is not limited to, real estate agents, banks, valuers, councils, government departments and/or private investors);
  2. you are not an individual, partnership, corporation and/or other entity engaged in the business of providing services that are the same as or similar to these services in Australia.
  3. you have full legal capacity to accept and agree to be bound by these Terms & Conditions; and
  4. if your employee/ employer; Franchisor; network association or other person/entity subscribing on your behalf, that such employee / employer or other person/ Franchisor has full legal authority to bind you in this way.
2. All details requested for a Subscription must be set out in the manner required in the relevant Subscription or as otherwise advised by us in writing from time to time. Each Subscription must be submitted to us in the manner advised by us from time to time. Each Subscription is binding upon our receipt and acceptance of the Subscription and cannot be modified, altered, or varied unless agreed by us in writing.
3. TRACit reserves the right to reject a Subscription at any time in our absolute discretion. Without limitation, this includes if the Services are unavailable, if there is an error in the description or price of the requested Services as advertised on the Platforms, if there is an error in your Subscription, or if TRACit knows or suspect that the Subscription is being made by or on behalf of any person or entity whose previous Subscription was rejected, whose access to and/or use of this Website has been suspended or terminated for breach of these Terms & Conditions, or who has been suspended or terminated from a Platform for breach of its Other Terms & Conditions, or for vexatious, illegal, or inappropriate behaviour. Whilst TRACit will attempt to ensure that all details, descriptions, and prices appearing on the Platforms are accurate, errors may occur. TRACit accepts no responsibility for errors occurring on the Platforms. Subject to condition 15 of these Terms & Conditions, TRACit also accepts no responsibility for any services or content that is unavailable on the platforms or our content on third party sites.
4. If a Subscription request is rejected, TRACit will endeavour to notify you by email of our rejection at the time you place the Subscription or within a reasonable time thereafter and give you the option of reconfirming your Subscription, changing your Subscription or cancelling your Subscription. If TRACit are unable to contact you, TRACit will treat the Subscription as cancelled. If your Subscription is cancelled and you have already paid any Charges for the Services the subject of that Subscription, you will NOT receive a full refund of those Charges.
5. TRACit reserves the right to request you produce (within the requested time) appropriate identification or other documentation (to our satisfaction, in our absolute discretion) in order to confirm your identity and eligibility to be a Subscriber, and any information submitted by you in submitting a Subscription, before accepting your Subscription. If TRACit does not receive the requested documentation or your details have not been verified or validated to our satisfaction within the time requested, your Subscription will be invalid. TRACit will only confirm a Subscription following any Subscriber validation and verification that TRACit requires in its absolute discretion.
REGISTRATION OF SUBSCRIPTION ACCOUNT
1. Once TRACit has processed and accepted your first Subscription, you will be issued with a user ID and password, in your name as the Subscriber of the Services set out in that Subscription, for your account on this APP and Website. You can then subscribe to any further Services by placing subsequent Subscriptions using the supplied user ID and password for your account on this Website. Depending on your subscription, Tracit may also issue individual user ID(s) and password(s) for your employee(s) and/or employer such other person(s) that TRACit grants access to and who may use the Services to which you are subscribed under your account. You (and any such other individuals, if applicable) must use your (or their, as applicable) user ID(s) and password(s) to log-in to access and utilise the Services.
2. Unless agreed in writing by TRACit Pty Ltd, you are only able to register and maintain one (1) account on this App and Website and the account must be in your own name. You are able to manage your account via both App and Website, including changing any of the details provided. All information provided by you in a Subscription and registered on your account on the App or Website must be and remain current, correct, and complete. You must immediately notify us in writing of any changes to your details or current Licence.
3. You are responsible for maintaining the strict confidentiality of your user ID(s) and password(s) and for any activity under your account. It is your sole responsibility to ensure that you log-out at the end of each session, to control the dissemination and use of your user ID(s) and password(s), to control access to and use of your account and to give written notice to us when you desire to cancel your account and/or terminate any Services. Should you choose to re-engage at a later stage, there may be a fee incurred to reinstate all the archived contents and Certificates under your previous Account and identity. You must not use another subscriber’s account without their permission. You agree to immediately notify us of any unauthorised use of your user ID(s) and password(s) or any other breach of security. You acknowledge and agree that TRACit shall not be responsible or liable for any loss, damage, liability, charge, expense, or cost (including all reasonable legal and other professional costs on a full indemnity basis) of any nature or kind (“Losses”) that you suffer arising from your failure to comply with this condition.
PAYMENT OF SUBSCRIPTION CHARGES
1. The amounts payable by you for the Services you select on a Subscription are set out in that Subscription or as otherwise advised by us in writing (“Charges”). TRACit reserves the right to change the charges after you enter into the Agreement with TRACit for those Services at the end of the term of the Agreement and will notify you of such change in the charges when TRACit invites you to enter into a further term.
2. You must pay all charges in the manner set out in the relevant Subscription or as otherwise advised by TRACit in writing from time to time. If no manner for payment is stated, the payment must be made by direct debit or credit card. TRACit reserves the right to charge a credit card surcharge with the current minimum surcharge being one percent (1%) for Visa and MasterCard (including GST) and one and a half percent (1.5%) for American Express (including GST), subject to increases in the surcharges that TRACit may charge.
3. When you place a Subscription, you undertake that you are an authorised user of the account (as applicable) nominated on the Subscription to pay the charges, that the account (as applicable) details provided are current, correct, and complete and that your nominated account (as applicable) will cover the full amount of the Charges. You must not pay, or attempt to pay, any charges through any fraudulent or unlawful means. Upon receiving your Subscription, TRACit may carry out a standard pre-authorisation check of your nominated card or account (as applicable) to verify the details provided and to ensure there are sufficient funds to fulfil the transaction. The relevant Services may not be provided until this pre-authorisation check has been completed.
4. If your Subscription is accepted by TRACit, you authorise TRACit to debit the amount that is payable for the services selected on that Subscription from your nominated card or account (as applicable) in order to pay the Charges. You must pay all charges in full strictly within the timeframe set out in the relevant Subscription or as otherwise advised by TRACit in writing from time to time. If no timeframe for payment is stated, the payment must be received by TRACit no later than thirty (30) days from the date of the corresponding tax invoice for those Services.
5. If you fail to pay any charges or TRACit is unable to successfully process your payment of any charges within the timeframe required (as applicable), TRACit reserves the right to charge a late payment fee calculated at a rate of ten percent (10%) per annum but no less than $30.00 per month. This amount represents a genuine and reasonable estimate of such costs and expenses associated with managing and processing late payments. TRACit also reserves the right to withdraw credit facilities (where applicable) at any time and only provide the Services on a cash-on-delivery basis thereafter. You may also be liable to pay interest on any amount outstanding at the rate of two percent (2%) over the base rate for $100,000.00 + overdrafts quoted by Commonwealth Bank of Australia in Sydney on the date the payment becomes due, and you may also be responsible for all reasonable expenses incurred by TRACit as a result of such late payment (including but not limited to costs incurred by TRACit to recover any unpaid amounts). Without limiting the rights of TRACit, in the event you fail to pay any Charges within the timeframe and in the manner required, TRACit reserves the right to suspend performance of our obligations under the Agreement (including but not limited to suspending your subscription to the Services and/or your use of all or part of the Platforms) or terminate the Agreement.
GST
1. Words or expressions used in this condition which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this condition. You shall pay all taxes, duties, and other government charges payable or assessed in connection with a Subscription Order whether applying as at the date of the Subscription Order or in the future, including without limitation goods and services tax, other value added tax, sales or use taxes, stamp duty and turnover tax, but excluding taxes, duties and government charges assessed on our income or the income of our related parties. If GST has application to any supply made by a party under a Subscription Order, then the party making that supply may, in addition to any other amount or consideration expressed as payable in that Subscription, recover from the other party an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by that other party for the supply by the prevailing GST rate. Unless GST is expressly included, the consideration expressed to be payable under the Subscription for any supply made under or in connection with an applicable Subscription does not include GST.
SUBMISSION OF SUBSCRIBER MATERIAL
1. Any material or content, including without limitation, information, data, literary works (including compilations of information, text, data, scripts, interactive features, applications, files, software and computer programs), dramatic works, musical works, artistic works (including drawings, paintings, computer generated graphics, tags, designs and photographs), sound recordings, cinematograph films (including video games) and any other material of a nature or type that can be uploaded to or generated on any of the Platforms via the Internet or any other technology (“Content”), which is provided to TRACit or uploaded to any of the Platforms by you or at your direction (“Subscriber Material”), must be in the manner and format required by TRACit.
2. If you fail to provide Subscriber Material in the manner and/or format required by us, TRACit may in our absolute discretion reject the Subscriber Material and/or refuse to publish the Content to which the Subscriber Material relates on the relevant Platform(s) without any liability to you. Any such rejection or refusal to publish by TRACit will be deemed to constitute a rejection of the relevant Subscriber Material but does not constitute a breach of the Agreement or otherwise entitle you to any legal remedy.
3. You agree that TRACit may, in its absolute discretion and without notice to you, remove any Content generated by you (including Subscriber Material) from the Platforms that TRACit reasonably believes to be in breach of:
  1. these Terms & Conditions;
  2. any applicable laws or requirements or directions of relevant regulators;
  3. any industry codes of conduct or practice that may be applicable to you or your business activities and includes any industry codes of conduct that are prescribed by any laws or by virtue of your membership of an industry body or professional association (or similar), including but not limited to the codes administered by the Advertising Standards Bureau, the advertising self-regulation codes of practice prescribed and promoted by the Australian Association of National Subscribers and any codes of practice amending or superseding these codes (“Industry Codes”); or
  4. any present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trademarks, service marks, trade names, domain names, designs, confidential information, trade secrets and know-how and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing in Australia or otherwise (“Intellectual Property Rights”) of any third party, or otherwise contains a trademark, trade name, company name, product name or brand name belonging to or claimed by a third party.
4. If TRACit receives any notice, request, direction or instruction sent by a regulator to us in respect of Subscriber Material and/or a Certificate or Licence generated by you on the Platform(s) (“Notification”) in respect of any Content generated by you on the Platform(s), and the Notification requires a response or action from TRACit, TRACit may, without any liability to you, take any steps necessary in order to respond or comply with the Notification (to the extent that TRACit is legally authorised and obliged to do so) to ensure compliance with any relevant regulatory requirements and/or laws (as applicable) and TRACit may take these steps at any time and without further notice to you.
TRACit MATERIAL
1. All right, title and interest in all Intellectual Property Rights in and relating to TRACit brands, logos, images, buttons, codes, layout, text, content, products and services as displayed on the Platforms and anywhere else by TRACit (including on third party sites) (“Brand Features”), the Services and the media and property (in draft or final form) and material purchased, prepared, created, developed or acquired by TRACit (including material acquired by us from a sub-contractor or third party) (“TRACit Material”), including the collective industry experience, information or know how gained and owned by TRACit through the conduct of its business by its owners, employees and contractors (whether written or unwritten) including but not limited to the TRACit systems, methods, technologies and affairs; financial approaches, strategies, directions, concepts, plans; research, development, operational, legal, marketing or accounting information, concepts plans, strategies, directions or systems; technology, inventions, discoveries, improvements, processes, formulae, techniques, understandings & insights, manuals, instructions, source & object codes for computer software; supplier information; and proprietary computer software and systems (“Know How”), will remain or be vested in TRACit and/or the TRACit licensors and may not be used by you except as permitted in these Terms & Conditions. Nothing in these Terms & Conditions will be taken to constitute a transfer, assignment or grant of any ownership rights in the Brand Features, the Services or the TRACit Material including Know How.
2. During the term of the Agreement, TRACit may grant you, on a case-by-case basis and to the extent required, a limited, personal, revocable, non-exclusive, non-transferrable and non-assignable licence to access and use the Brand Features, the Services and the TRACit Material at a single site solely for the purpose, and to the extent necessary, to enable you to use the Platforms and obtain the benefit of the Services in accordance with the Agreement. The rights granted under the Agreement are restricted to your use only. You may not copy or distribute the Brand Features, the Services or the TRACit Material except to the extent that copying is necessary solely for backup purposes. You must not permit simultaneous use of the Platforms by more than the allowed number of users, use the Platforms as a means to transfer data to another computer or use the Platforms in a manner inconsistent with the Agreement or the Other Terms & Conditions of the Platforms.
SUBSCRIBER ACKNOWLEDGEMENTS
1. 8.1 You acknowledge and agree that:
  1. TRACit is are under no obligation to monitor or censor content uploaded by you to the Platforms but may do so at any time;
  2. TRACit is not responsible for any errors or omissions in any Subscriber Material, or any other content generated by you through your use of the Services and/or the Platforms;
  3. you are responsible for and must pay the cost of all telecommunications and Internet access and data charges incurred when using the Services and the Platforms; and
SUBSCRIBER OBLIGATIONS
1. Acceptable Use. Without limiting any other provision of these Terms & Conditions, you must
  1. only use a Platform for the bona fide purpose(s) of the Platform (“Permitted Purpose”);
  2. only use a Platform in accordance with the Agreement or as otherwise permitted by the Platform’s Other Terms & Conditions;
  3. only use a Platform in a commercially responsible manner and in accordance with all applicable laws, the requirements and directions of relevant regulators and applicable Industry Codes;
  4. comply with all directions, instructions and/or requests issued by TRACit in respect of your subscription to the Services and/or your use of a Platform, including but not limited to submission and management of Subscriber Material, SMS Messaging and email reminders; and
  5. not make, arrange, or authorise any reference to TRACit, the Services or any Platform in any media, material or document (including but not limited to promotional or merchandising material) without first obtaining prior written consent from TRACit, unless you are using a direct output from the Services or as otherwise permitted by the Platform’s Other Terms & Conditions.
2. Prohibited Use. Without limiting any other provision of these Terms & Conditions, you must not:
  1. use a Platform for any purpose other than its Permitted Purpose, including but not limited to the prohibited uses set out in these Terms & Conditions;
  2. upload or otherwise submit any Subscriber Material or generate any Content on the Platforms that is not in accordance with these Terms & Conditions and/or any other written instruction, direction or request issued by TRACit;
  3. re-sell, assign or transfer your subscription to any third party at any time;
  4. except as expressly permitted by TRACit for the purpose of the Services, allow any third party that is not your employee or officer to access and use any Platform or the Services; or
  5. use your subscription to advertise or promote your business in any way other than specifically stated and permitted by us in these Terms & Conditions or otherwise in writing.
USE OF THE PLATFORMS GENERALLY
1. Subject to your compliance with the Agreement, you are granted a limited, non-exclusive, revocable, and non-transferrable Membership to access and use the TRACit Material and/or the Platforms generally required for you to obtain the benefit of the Services the subject of the corresponding Subscription Order. Any costs associated with accessing and using the TRACit Material and/or the Platforms generally remains your responsibility and is dependent on the service provider used. You are responsible for ensuring that your computer system or mobile device (as applicable) is compatible with the TRACit Material and/or Platforms and meets all relevant technical specifications necessary to obtain the benefit of the TRACit Material and/or use of the Platforms. The Platforms are data specific to New South Wales, Australia. TRACit makes no representation that the TRACit Material and/or Platforms are appropriate or available for use in all locations.
2. The Platforms may contain links to other sites not maintained by TRACit (“Linked Sites”). TRACit is not responsible for the content of any linked sites, whether or not TRACit is affiliated with the linked sites. TRACit does not in any way endorse any linked sites and are not responsible for the quality or delivery of any products or services offered, accessed, or advertised by such linked sites. To the extent that these linked sites collect personal information or contributions from you, TRACit shall bear no responsibility or liability for the manner in which such information or postings are used or exploited. The linked sites are for your convenience only and you agree to access them at your own risk.
3. The Platforms may also utilise social network or share functionality and may contain social media links, applications, or features (including but not limited to Facebook, Twitter, Google+, LinkedIn, YouTube and blogs). Your use of any social media platforms is subject to the particular social media platform’s prevailing terms and conditions of use. By using any social media applications or features on the Platforms, you consent and agree to be bound to the particular terms and conditions of use of the social media platform. You also acknowledge and consent to the Platforms accessing information you may have shared with the particular social media platform and contacting you via the social media platform or via the information you have shared (for example, sending an email directly to you to the email address provided to the social media platform), in accordance with the permissions you have granted the Platforms via the social media platform. You are encouraged to review the terms and conditions of use of each social media platform before engaging or interacting with the social media links, applications or features on the Platforms. The platforms are in no way sponsored, endorsed, or administered by, or associated with, any social media platform.
TERM AND TERMINATION
1. The Agreement shall commence on the date of the corresponding Subscription and shall continue for the term set out in that Subscription. If no term is specified in the Subscription, the Agreement shall remain in force until terminated pursuant to this Agreement. If a Subscription states that you are entitled to a seven (7) day evaluation period, these Terms & Conditions shall apply to the evaluation period for its duration, and you shall pay TRACit the evaluation period subscription Charges (if any) set out on the relevant Subscription in respect of the evaluation period.
2. If the term of the Agreement is an annual contract, unless and until the Agreement expires or is terminated in accordance with these Terms & Conditions, TRACit will require you to confirm your acceptance of the Agreement in advance of every calendar year in the manner required, by no later than thirty (30) days prior to the conclusion of the present year during the term of the Agreement. TRACit will provide advance notice of the new annual term and Charges for acceptance. TRACit will also provide notice of a month-to-month subscription option and the Charges for this option. If TRACit does not receive your confirmation of acceptance of either option in the required manner and time, the term of this Agreement will automatically hold over month to month and the Charges will automatically increase to the month-to-month subscription Charge notified. You may then terminate the month-to-month subscription option on 1 months’ written notice to TRACit and the term of the Agreement will end at the end of the subsequent month billing cycle from the month in which notice was given (for example if you give notice in May then the Agreement will end on 30 June). You must continue to pay all applicable Charges during the notice and up to the end of the term of the Agreement. Your documentation being retained and stored by TRACit, including copies of Certificates, licences and/ or certified material will be archived or deleted and a fee will be incurred to re-instate these records (if possible) at a later date should you require TRACit to do so.
3. You may terminate the Agreement for any reason upon written notice to TRACit. If the term of the Agreement is annual or any other stated term (paid monthly or otherwise) and if for whatever reason the Agreement is terminated prior to expiry of its term, payment of the Charges for the balance of the term of the Agreement will become due and payable immediately.
4. TRACit may terminate the Agreement for any reason by providing you with seven (7) days’ prior written notice. TRACit also reserves the right to suspend or terminate the Platforms (or any aspect of the Platforms) or TRACit content on third party sites at any time without prior notice. TRACit will not be liable for the suspension or termination of the Platforms or its content on third party sites on any account whatsoever.
5. TRACit may terminate the Agreement immediately upon written notice to you if you breach the Agreement, any of the warranties or indemnities given by you in these Terms & Conditions or if you fail to pay any Charges in the manner required. In addition to TRACit’s termination rights, TRACit may suspend the Agreement pending rectification of any breach of the Agreement by you. Where your breach is a failure to pay all Charges under the Agreement and/or the charges under any other agreement that you may have with TRACit, the Services under the Agreement and/or the services under any such other agreement may be suspended on the 15th day after the due date for payment. TRACit reserves the right to recover from you, in addition to the outstanding amount, any reasonable costs incurred by TRACit in collecting the outstanding amount. This may mean that you may be required a pay a fee to download all of your current Certificates held by TRACit at that time.
6. TRACit reserves the right to monitor all subscription activity. If your subscription shows signs of fraud, abuse, or suspicious activity, TRACit may close or freeze your subscription immediately and you may stop receiving the services and/or be unable to access and use all or part of the Platforms. TRACit may suspend or terminate the Agreement immediately upon written notice to you if TRACit believes that you have abused any privilege accorded to you as a Subscriber to the Services and/or user of the Platforms, supplied misleading information or made any misrepresentations to us in connection with the Services and/or the Platforms, tampered with the Services, the TRACit Material and/or the Platforms in any way or engaged in any unlawful or other improper misconduct calculated to jeopardise the proper administration of the Services, the TRACit Material and/or the Platforms. TRACit’s legal rights to recover damages or other compensation from you are reserved.
7. The use of any automated software or any other mechanical or electronic means allowing you to automatically subscribe to the Services, the TRACit Material and/or the Platforms is prohibited. You must not decompile, reverse engineer, disassemble, convert or authorise any third party to decompile, reverse engineer, disassemble or otherwise convert, the Services, the TRACit Material and/or the Platforms to a human perceivable form, distribute or republish the Services, the TRACit Material and/or the Platforms in any way (except as expressly permitted by us for the purpose of the Services), or resell, rent, lease, lend or transfer the Services, the TRACit Material and/or the Platforms to any third party. You must not alter or modify any disabling mechanism that may be resident on the Services, the TRACit Material and/or the Platforms. We reserve the right to suspend or terminate the Agreement if we believe you are engaging in such activity, and therefore delete or Archive all your records.
8. Should the Agreement expire or be suspended or terminated for whatever reason in accordance with these Terms & Conditions, you will have no further access to and use of the Services and/or all or part of the Platforms the subject of the Agreement for the duration of the suspension or at all in the event of termination or expiry. You agree that TRACit shall have no liability or responsibility to you for any such suspension or termination.
9. You acknowledge that in the event of expiration or termination of the Agreement for any reason, you must remove all copies of TRACit Material and all of its components from all of your systems and destroy all related material received during the course of the Services, if any. You also agree that, to the fullest extent permitted by law, any Charges already paid are not refundable and you will be required to pay all Charges outstanding at the effective date of any termination or expiration of the Agreement (and any applicable early termination charges and/or reasonable costs incurred by us in collecting the outstanding amounts).
10. Termination or expiration of the Agreement will not affect your payment obligations of the Charges or any other accrued rights or liabilities of either party or any provision of the Agreement that is expressly or by implication intended to continue in force after expiration or termination, including but not limited to the warranties and indemnities provided by you under these Terms & Conditions, which will survive and remain in full force and effect in respect of the performance of all your relevant obligations.
SUBSCRIBER WARRANTIES
1. You warrant and represent that:
  1. you have full power and authority to place a Subscription and perform and observe all of the terms and conditions set out in the Agreement;
  2. each Subscription has been duly executed and submitted by you and constitutes a legal and binding agreement between you and TRACit;
  3. TRACit’s use of any Subscriber Material or any logo, trademark or indicia of the Subscriber (“Subscriber Brand”) in accordance with these Terms & Conditions will not infringe the rights (including Intellectual Property Rights) of any third party; and
  4. the Subscriber Material and Subscriber Brand will not contain:
    1. any information or subject matter that is illegal or contrary to any applicable laws, the requirements or directions of relevant regulators or any Industry Codes;
    2. any information or subject matter that is false, misleading or deceptive or likely to mislead or deceive, indecent, obscene, threatening, discriminatory, harassing, in breach of any confidence, defamatory, libellous, offensive or objectionable;
    3. any Content (including but not limited to photographs or film clips) of any property or individuals where required consents (whether from the relevant property owners and/or the individuals or their parents or legal guardians, as applicable) have not been obtained;
    4. any viruses, Trojans or other malicious code;
    5. any misrepresentations or suggestion that any entity has the approval or sponsorship of any other entity which it does not have; or
    6. any Content that relates to financial matters and would require TRACit to hold any particular financial services licence.
2. You also warrant and represent to us that each website represented by any website address (URL) shown or embedded in any Subscriber Material:
  1. is controlled and operated by you, your independent contractor or your client;
  2. will be functional and accessible at all times;
  3. will at all times operate in compliance with all applicable laws, applicable Industry Codes and the requirements or directions of relevant regulators; and
  4. is suitable in all respects including the type of subject matter to be linked to and from the relevant Platform(s) containing the relevant advertisement (or simply referred to on the relevant Platform(s) containing the relevant advertisement, as applicable).
3. TRACit may test all relevant URLs, and may remove any URL included in any Content uploaded to the Platforms by you which, in its absolute discretion, fails to comply with the any of the above requirements in condition 12.2 of these Terms & Conditions or any other provision of these Terms & Conditions at any time.
SUBSCRIBER INDEMNITIES
1. You agree to indemnify, and must defend and hold harmless, TRACit and its related corporations, including its personnel, servants and agents, from and against any Losses arising from:
  1. your breach of any provision of the Agreement, including these Terms & Conditions and your warranties in condition 12 of these Terms & Conditions;
  2. any third party claim arising directly or indirectly from your breach of any of your obligations under the Agreement;
  3. any negligent, wilful, fraudulent, dishonest or otherwise wrongful act or omission by you or your personnel;
  4. any breach by you of any applicable laws, the requirements or directions of relevant regulators or Industry Codes;
  5. any claim by any third party (including individuals, legal entities and governmental departments or agencies) arising directly or indirectly as a result of us fulfilling our obligations in accordance with the Agreement;
  6. the death of, or personal injury to, any person, to the extent caused by any act or omission of any of your members or personnel;
  7. any damage to, or loss or destruction of, any real or tangible personal property, to the extent caused by any act or omission of any of your members or personnel;
  8. any breach by your of your confidentiality obligations; or
  9. any claim or allegation that the Subscriber Material or the Subscriber Brand infringes a third party’s Intellectual Property Rights or constitutes an unlawful disclosure or misuse or misappropriation of another party’s trade secret or confidential information.
DISCLAIMER
1. This entire condition and any other limitations in the Agreement including these Terms & Conditions do not apply to any Consumer Guarantee under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) (“Australian Consumer law”) or to any of TRACit’s liability for failure to comply with a Consumer Guarantee under the Australian Consumer Law. To the fullest extent permissible by law, the Services, the TRACit Material and the Platforms and their entire contents are provided on an “as is” and “as available” basis without any warranties of any kind either expressed or implied. TRACit disclaims all warranties of merchantability, non-infringement and fitness for a particular purpose. In no event will TRACit, its affiliates and related entities, servants, employees and agents, be liable to you for any form of loss, damage, liability or expense whatsoever arising from any act or omission by you (including where you have failed to deliver the Subscriber Material or other information or documents or instructions in the manner required), a third party service provider or contractor to us or any discrepancy, fault or malfunction of any TRACit or third party telecommunications system, software, system or computer server or any other technology based platform, including but not limited to consequential, indirect, incidental, or special damages, damages for loss of profits, business interruption, loss of or unauthorised access to information, loss of reputation, loss of goodwill, loss of data and the like, even if TRACit has been advised of the possibility of such damages. You agree that you assume total responsibility and risk for your use of the Platforms and your sole remedy against TRACit for dissatisfaction with the Services, the TRACit Material, the Platforms or the content communicated in the course of, or in connection with, the Agreement is to stop using the Services, the TRACit Material, the Platforms or such content. In no event will TRACit, its affiliates and related entities, RTOs and servants, employees and agents, be liable to you for an amount in excess of the total dollar amount actually received by TRACit.
2. TRACit makes no representations, warranties, or guarantees to you and do not provide any undertaking regarding the functionality and performance of the Platforms or our content on third party sites (including but not limited to “up time”), that the Platforms or TRACit content on third party sites will be fault or error free or that any errors or interruptions will be rectified within any particular time period. TRACit assumes no responsibility, and shall not be liable for, any damage to or viruses that may infect your computer equipment or other property on account of your access to and use of the Platforms or TRACit content on third party sites. TRACit also assumes no responsibility, and shall not be liable for any interruptions or errors in gaining access to the Platforms or our content on third party sites, the accuracy, timeliness, completeness, security or reliability of any communications made through or in relation to the Platforms or TRACit content on third party sites, any problems or technical malfunction of any telephone or network or lines, servers or providers, technical problems or traffic congestion on a mobile network (or any combination thereof), or any other technical failures related to, or resulting from, your access to and use of the Platforms or TRACit content on third party sites.
3. If the Agreement constitutes a supply of goods and/or services to a Consumer then, subject to the limitation to this condition below and unless the goods and/or services are Consumer Goods or Consumer Services, TRACit’s liability for a breach of these Terms & Conditions, including any liability for any losses or consequential losses which you may suffer or incur because of a failure to comply with a Consumer Guarantee will be limited as TRACit may elect in its absolute discretion, in the case of services supplied or offered by TRACit, to either: (a) supplying the services again; or (b) paying the cost of having the services supplied again; or, in the case of goods supplied or offered by TRACit: (c) replacing the goods or supplying equivalent goods; (d) repairing the goods; (e) paying the cost of replacing the goods or acquiring equivalent goods; or (f) paying the cost of having the goods repaired. This condition does not apply if it is not Fair or Reasonable for TRACit to rely on it. Words or expressions used in this condition which are defined in the Australian Consumer Law have the same meaning in this condition.
CONFIDENTIALITY
Each party must not, without the prior written approval of the other party, disclose or use the other party’s confidential or secret information relating to a party (or any associated entity or client of a party) its products, business methods, methods of operation, systems, processes, computer programs, finances, trade secrets, lists of clients and prospective clients and other confidential or secret information of a party (or any associated entity or client of a party) which by its nature or the circumstances of its disclosure could reasonably be expected to be regarded as confidential (“Confidential Information”). A party will not be in breach of this condition in circumstances where it is legally compelled to disclose the other party’s Confidential Information, the other party’s Confidential Information was in the public domain at the time it was supplied to the party, the other party’s Confidential Information became part of the public domain after its provision to the party other than through a disclosure by the party (or any person to whom the party had disclosed that information), or the other party’s Confidential Information came lawfully into the possession of the party other than as a result of a disclosure in breach of this condition. Each party must ensure that its employees, employer, agents, and any sub-contractors engaged for the purposes of the Agreement do not make public, use or disclose the other party’s Confidential Information. Notwithstanding any other provision of this condition, each party may disclose these Terms & Conditions to its related companies, solicitors, auditors, insurers, and accountants. This condition will survive expiry or termination of the Agreement.
PRIVACY
For information about how TRACit collects, uses, discloses and handles personal information and about how TRACit may communicate with you (including electronically), please refer to TRACit’s Collection Statement and Privacy Policy.
FORCE MAJEURE
TRACit will make reasonable efforts to keep the Services, the TRACit Material and the Platforms operational, however technical difficulties or maintenance may, from time to time, result in temporary interruptions. TRACit reserves the right, at any time, to modify or temporarily suspend the Services or the TRACit Material or functions or features on the Platforms, with or without notice, all without liability to you for any interruption, modification or suspension of the Services, the TRACit Material or the Platforms or any function or feature thereof. TRACit will not be liable for any problems or failures caused by circumstances outside its control, including but not limited to power outages, surges, data loss, failure to notify and failure from third party software that may occur whilst TRACit is performing its obligations under the Agreement.
WAIVER
TRACit will not be taken to have waived or modified any of term of the Agreement except by an express statement in a document signed by a duly authorised representative of TRACit.
ASSIGNMENT
You may not assign any of your rights in the Agreement without our prior written consent. TRACit may assign the Agreement, including its rights or obligations under it, upon written notice to you, provided that the relevant assignee undertakes to perform all of the obligations herein.
INVALIDITY
If any provision of the Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be taken to be modified to the extent necessary to make them enforceable.
ENTIRE AGREEMENT
1. The Agreement embodies the entire agreement between you and TRACit, and supersedes all prior and contemporaneous agreements, arrangements and understandings between you and TRACit with respect to its subject matter. All existing agreements between you and TRACit (if any) are, by agreement between you and TRACit, hereby terminated and of no further legal effect except for any provisions in such agreements that by their nature are intended to survive termination or expiration. No additional Subscriber originating agreement or other Subscriber terms & conditions may be imposed on TRACit unless agreed by TRACit in writing and in such event, this Agreement shall prevail to the extent of any inconsistency any terms & conditions in a Subscriber originating agreement or other Subscriber terms & conditions and this Agreement. The Agreement does not create a joint venture, partnership, employment, or agency relationship between the parties.
2. Any additional forms, documents, certificates, materials, or other information forms part of the Agreement. New forms, documents, certificates, materials, or other information may be inserted, or forms, documents, certificates, materials, or other information may be amended or updated from time to time by TRACit in its absolute discretion. Any new or amended forms, documents, materials, or other information will then form part of the Agreement. Each party must comply with the terms set out in any additional forms, documents, certificates, materials, or other information to the Agreement as operative terms of the Agreement. This Agreement shall prevail to the extent of any inconsistency any term in any such additional forms, documents, certificates, materials, or other information and this Agreement.
3. TRACit’s decision in relation to all aspects of the Agreement, the Services, the TRACit Material and the Platforms is final and no correspondence will be entered into.
GOVERNING LAW
The Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the jurisdiction of the courts of New South Wales, Australia and the Federal Court sitting in New South Wales, Australia. TRACit may send electronic mail to you for any notices or notifications. All notices to TRACit relating to any legal claims or matters must be made in writing to us at our address in condition 23.2 of these Terms & Conditions.
SUPPORT AND CONTACT DETAILS
1. Support is made available for the Platforms, the TRACit Material and the Services on our support telephone line (1300 872 248) from Monday to Friday (excluding NSW public holidays) between the hours of 8:45am to 6:00pm (AEDT/AEST). During this time, you may contact TRACit’s support line and obtain support limited to the technical use of the Platforms, the TRACit Material and/or the Services. Support does not extend to issues related to the operation of your computer hardware, operating systems, network, firewall or anti-virus solution.
2. Please direct to TRACit any queries you may have regarding your subscription, the Platforms, the TRACit Material and/or the Services. You may contact TRACit via:
  
  telephone: 1300 872 248; and
  email: support@tracit.com.au