The Licensee has signed an Equipment Installer Licence Application that, by reference, incorporates the terms and conditions contained herein and the terms and conditions contained in any URLs within this document. The terms and conditions in the Application, herein and in any URLs herein govern the relationship between Cabcharge and the Licensee for the Licence (collectively, the “
Agreement”). The parties agree in consideration of the mutual promises contained in the Agreement:
1. Definitions and Interpretation
a. For purposes of this Agreement, capitalised terms shall have the meanings set forth below.
Aged Equipment means Equipment that is held by the Licensee for 7 days or more.
Commencement Date means the date specified in the Details Schedule.
Confidential Information means the terms and existence of the Agreement and all information belonging or relating to a party to the Agreement, whether oral, graphic, electronic, written or in any other form, that is:
i. or should reasonably be regarded as, confidential to the party to whom it belongs or relates; or
ii. not generally available to the public at the time of disclosure other than because of a breach of the Agreement.
Consequential Loss means any loss, damage, cost, or expense that does not arise naturally, according to the usual course of things, from the relevant breach, act, or omission. Such losses include, but are not limited to:
i. loss of profit, revenue, or business opportunity;
ii. loss of goodwill or reputation;
iii. loss of anticipated savings;
iv. loss or corruption of data; and
v. any other special, indirect, or consequential loss or damage, whether or not such loss was foreseeable at the time of entering into the contract or specifically contemplated by the parties.
Customer means a person or entity that requests the installation, maintenance or deinstallation of Equipment from the Licensee and meets the Customer Requirements.
Customer Requirements means the requirements set out in the Details Schedule which permits the Licensee to provide Equipment and Services to them.
Details Schedule means the details schedule in this Agreement containing further commercial details.
Equipment means equipment owned by Cabcharge including without limitation payment terminals and any accompanying or related hardware and software.
De-installed Equipment Holding Fees means the fees set out in the Fee Schedule which are payable by the Licensee to Cabcharge under clause 6.10.
Fees means the fees payable by the Licensee under this Agreement as set out in the Fee Schedule.
GST Law means the same as “GST Law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Incoterms means the set of international commercial terms published by the International Chamber of Commerce (ICC) in 2020, which standardise the responsibilities of supplier and receiver for the delivery of goods including obligations relating to transport, risk transfer, insurance, and customs clearance (if any).
Insolvency Event means, in relation to a party to the Agreement, any one or more of the following events or circumstances occurring in relation to that party (or any person comprising the party):
i. being in liquidation or provisional liquidation or under administration;
ii. having a controller (as that term is defined in the Corporations Act 2001 (Cth) or analogous person appointed to it or any of its property;
iii. being unable to pay its debts or being otherwise insolvent;
iv. if the party is a natural person, that person becomes bankrupt in accordance with the relevant provisions of the Bankruptcy Act 1966 (Cth);
vi. entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; and/or
any analogous event or circumstance under the laws of any jurisdiction.
Intellectual Property Rights means patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
Late Deinstall Notification Fee means the fee payable by the Licensee under clause 6.9.
Licence means a licence to take possession of, store and handle Equipment, and provide Services.
Marks means Cabcharge and its other product and service names, trademarks, service marks, branding and logos made available for use in connection with the Equipment pursuant to this Agreement.
Personal Information has the meaning given to it in the Privacy Act.
Personnel means the employees, subcontractors and agents of a party.
Privacy Act means the Privacy Act 1988 (Cth) as updated from time to time.
Privacy Policy means the Cabcharge’s privacy policy as updated from time to time.
Services means the installation, maintenance and/or deinstallation of Equipment by the Licensee.
Publish/Published/Publishing means the making of any Application available to any third-party, e.g. Customers or other users, other than the Licensee or for any purpose other than for use by the Licensee for Internal Use.
Tax means a tax duty, charge, deduction or withholding (including GST), however, it is described, that is imposed by law or by a government agency, together with any related interest, penalty, fine or other charge.
b. A reference to:
vii. Legislative provision or legislation (including subordinate legislation) is to that provision or legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
viii. A policy, document (including this document) or agreement, or a provision of a policy, document (including this document) or agreement, is to that policy, document, agreement, or provision as amended, supplemented, replaced or novated.
ix. A party to this document or to any other document or agreement includes a successor in title, permitted substitute or a permitted assign of that party.
x. A person includes any type of entity or body of persons, whether it is incorporated or has a separate legal identity and any executory, administrator or successor in law of the person; and
xi. Anything (including a right, obligation, or concept=) includes each part of it.
xii. A singular word includes the plural, and vice versa.
xiii. A word that suggests one gender includes any other gender.
xiv. If a word is defined, any other grammatical form of that word or phrase has a corresponding meaning.
xv. If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.
xvi. The words insolvent, related body corporate and subsidiary have the same meaning as in the Corporations Act.
xvii. The expression this document includes the Agreement and the agreement, arrangement understanding, or transaction recorded in this document.
xviii. The word agreement includes an undertaking or other binding arrangement or understanding, whether or not in writing.
xix. A reference to dollars or $ is to an amount in Australian currency.
xx. Terms used in clauses concerning GST have the same meaning as in the GST Law unless the clause states otherwise.
c. In the event of any conflict or inconsistency between the Application and these terms and conditions, the order of precedence shall be as follows:
i. any special conditions in the Application;
ii. other terms and conditions in the Application; then
iii. the terms and conditions herein.
2. Licence and fees
1.1 This Agreement and any and all restrictions and policies implemented by Cabcharge from time to time govern the Licensee’s right to take possession of, store and handle Equipment, and the right to provide Services.
1.2 Subject to this Agreement, including the restrictions set forth in Section 3, Cabcharge grants to the Licensee a limited, non-exclusive, non-transferable, non-sublicensable, revocable licence during the Term to provide Services and connect to and use the Cabcharge installer app.
1.3 Cabcharge shall have and the Licensee hereby grants to Cabcharge, a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual licence to implement, use, modify, commercially exploit and/or incorporate into Cabcharge’s Equipment and/or products or services and/or otherwise use in any manner any suggestions, enhancement requests, recommendations or other feedback Cabcharge receives from the Licensee or Customers.
1.4 In exchange for the licence to provide Services, the Licensee, the Licensee will pay Cabcharge the fees as set out in this Agreement. Cabcharge will invoice the Licensee and the Licensee will pay such invoices within 30 days of the date of each invoice.
1.5 The Licensee acknowledges and agree that the Fees will be subject to an annual increase on 1 st July by a sum in proportion to any increase in CPI over the preceding 12 months. The Licensee acknowledges and agrees that the Fees will be subject to an annual increase on 1 st of January by a percentage that is equal to any increase in CPI over the preceding 12 months.
2. Goods and services tax
2.1 In addition to paying the Fees or other consideration (which is exclusive of GST), the Licensee must:
a. pay to Cabcharge an amount equal to any GST payable on any taxable supply made by Cabcharge in connection with the Agreement; and
b. make that payment as and when the Licensee must pay or provide the Fees or other consideration, or if the Licensee has already made a payment, within 14 days of receiving a written request from Cabcharge.
2.2 Cabcharge must refund the Licensee any overpayment by the Licensee to Cabcharge in relation to GST within 30 days of Cabcharge becoming aware of the overpayment and Cabcharge must issue the Licensee with an adjustment note or tax invoice in relation to the overpayment.
2.3 If a party has a claim for a cost on which the party must pay GST, the claim is for the cost plus all GST (except any amounts in respect of GST for which that party is entitled to an input tax credit).
3. Invoice dispute
3.1 If the Licensee disputes the whole or any portion of the amount claimed in an invoice submitted by Cabcharge, the Licensee must:
a. pay the portion of the amount stated in the invoice which is not in dispute; and
b. notify Cabcharge in writing within 7 days of receipt of the invoice of the reasons for disputing the remainder of the invoice.
3.2 Once the Licensee has given notice of a disputed amount, the parties must use all reasonable endeavours to resolve any such dispute within 10 days, and;
a. where any such dispute is determined by Cabcharge to be unfounded, the Licensee must pay to Cabcharge in full the amount withheld within 7 days of such determination; or
b. where any such dispute is determined by Cabcharge to be founded and the Licensee has already paid the disputed amount, Cabcharge will repay the relevant amount within 7 days of such determination or issue a credit to the Licensee on its next invoice at Cabcharge’s discretion.
4. Late payment
If Fees are not received by the due date, then without limiting Cabcharge’s rights and remedies:
4.1 Cabcharge may charge interest on the outstanding balance at rate of 2% above the base rate per annum by the Cabcharge principal banker, compounded daily, until the payment is received; and
4.2 The Licensee must also pay any debt collection expenses incurred by Cabcharge in the course of pursuing the outstanding payment and any interest.
5. Suspension of use
5.1 Cabcharge may suspend Equipment access if any amount under the Agreement is overdue, provided Cabcharge has given to the Licensee at least 10 days’ written notice of its intention to suspend Equipment access, until all outstanding amounts (including interest and debt recovery costs) are paid in full.
5.2 If requested by Cabcharge, the Licensee agrees to pay Cabcharge’s costs of suspending and reversing any suspension under this clause.
6. Restrictions and obligations
6.1 The Licensee must comply with this Agreement and the Privacy Policy. If Cabcharge believes, in its sole discretion, that the Licensee has breached, violated or attempted to breach any term, condition or the spirit of this Agreement, the Privacy Policy or any other Cabcharge policies, the licence under this Agreement may be temporarily suspended or permanently revoked without notice to the Licensee.
6.2 The Licensee must not part possession with any Equipment (except for the sole purpose of installation into Customer taxi vehicles), without Cabcharge’s prior written consent.
6.3 The Licensee must not in any way attempt to circumvent the requirement of becoming an Cabcharge Licensee, or assist any third parties in doing so.
6.4 The Licensee must not use the Equipment or any data in any manner that does, or has the potential to undermine the security of the Equipment and/or any data or information stored or transmitted using the Equipment.
6.5 The Licensee must not:
a. interfere with, modify or disable any features, functionality or security controls of the Equipment;
b. defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Equipment; or
c. reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organisational form from the Equipment.
6.6 The Licensee acknowledges that the Licensee is solely responsible for, and that Cabcharge has no responsibility or liability in relation to, the Services.
6.7 Without limiting the foregoing, the Licensee will be solely responsible for:
a. the Services;
b. storage, security and protection of Equipment in its possession;
c. any damage to or loss off Equipment in its possession;
d. ensuring that its Services do not violate or infringe applicable laws, regulations or the Intellectual Property Rights of any third party; and
e. ensuring that it and its Personnel have all necessary approvals, licences and/or accreditations to provide the Services.
6.8 The Licensee will respect and comply with the technical and operational limitations of the Equipment and any restrictions in providing Services, as advised by Cabcharge from time to time.
6.9 The Licensee must notify Cabcharge, via the relevant app or such other notification channels directed by Cabcharge, immediately after Equipment is deinstalled from a Customer’s taxi. If the Licensee fails to do so, then Licensee will be liable to pay Cabcharge the Late Deinstall Notification Fee. Notwithstanding this clause, if the Licensee is a taxi network, then this clause does not apply to any Equipment that is deinstalled from taxis within its taxi network. Notwithstanding this clause, if the Licensee is a taxi network, this fee does not apply.
6.10 Cabcharge will notify the Licensee from time to time of Aged Equipment. However, if the Licensee holds post-deinstallation Aged Equipment, then the Licensee will be liable to pay De-installed Equipment Holding Fees. Notwithstanding this clause, if the Licensee is a taxi network, then this clause does not apply to any Equipment that is deinstalled from taxis within its taxi network. Notwithstanding this clause, if the Licensee is a taxi network, these fees do not apply to Equipment deinstalled from taxis within its network.
7. Modifications
7.1 The Licensee acknowledges and agrees that Cabcharge may modify this Agreement, the Equipment, the Privacy Policy, or any other policies from time to time ( Modifications).
7.2 Any communications in relation to Modifications may be made through the Equipment, on any other website owned and operated by Cabcharge and/or through a form of direct communication such as email.
8. Ownership, delivery and risk
8.1 The Equipment shall always remain the sole property and title of Cabcharge, regardless of who has possession of it.
8.2 Subject to the limited licence expressly provided in this Agreement, nothing in this Agreement transfers or assigns ownership of any Equipment, Cabcharge’s Intellectual Property Rights in its Equipment, software, services, applications, the Marks or other technology.
8.3 Cabcharge shall deliver Equipment to the agreed destination specified in the Details Schedule or as otherwise agreed in writing between Cabcharge and the Licensee, under the Incoterms 2020 rule DAP ( Delivered at Place). Delivery shall occur when the Equipment is placed at the disposal of the Licensee at the named place of destination, ready for unloading.
8.4 Cabcharge will:
a. arrange and pay for transportation to the named place of destination;
b. bear all risks and costs associated with the Equipment until delivery at the agreed location; and
c. provide all necessary documentation for import clearance (excluding duties and taxes).
8.5 The Licensee will:
a. Be responsible for unloading the Equipment at the destination; and
b. bear all costs and risks from the point of delivery, including import duties, taxes, and any local handling charges.
8.6 Risk of loss or damage to the Equipment passes from Cabcharge to the Licensee upon delivery at the named place of destination, prior to unloading.
8.7 The Licensee must inspect the Equipment upon delivery and notify Cabcharge in writing of any discrepancies or damage within 24 hours. Failure to do so will be deemed acceptance of the Equipment in good condition.
9. Intellectual property
9.1 The Licensee acknowledges and agrees that the Intellectual Property Rights are owned or entitled to be owned by Cabcharge or its related body corporate and the Licensee has no right, title or interest in the Intellectual Property Rights, other than as set out in the Agreement.
9.2 The Licensee must:
a. only use the Intellectual Property Rights to provide Services in accordance with this Agreement and the written directions of Cabcharge;
b. not sublicense its Licence or the use of any Intellectual Property Rights to or allow the use of any of the Intellectual Property Rights by any other person in any circumstances without the prior written approval of Cabcharge;
c. immediately notify Cabcharge of, and comply with Cabcharge’s directions in relation to, any issue, claim, demand, threat, notice of proceedings or cause of action (whether contingent, accrued or otherwise) against or involving the Licensee relating to any Equipment or Intellectual Property Rights; and
d. do all other acts and things that may be reasonably required by Cabcharge to ensure the protection of its Equipment and its Intellectual Property Rights.
10. Support
10.1 This Agreement does not entitle the Licensee to any support for the Equipment, unless the Licensee makes separate arrangements with Cabcharge for such support.
10.2 The Licensee is solely responsible for providing all support and technical assistance to Customers in relation Equipment. The Licensee acknowledges and agrees that Cabcharge has no obligation to provide support or technical assistance to Customers.
11. Privacy
11.1 Where the Licensee collects or has access to any Personal Information, the Licensee must:
a. if requested by Cabcharge, provide a notice to the individual in the form and manner advised by Cabcharge when collecting Personal Information; and
b. without limiting the generality of the foregoing, and unless required or authorised by law:
i. not use Personal Information other than for the purposes of the Agreement;
ii. not disclose Personal Information without the prior written consent of Cabcharge, or any other persons authorised in writing by Cabcharge; and
iii. not transfer Personal Information outside Australia without the prior written consent of Cabcharge.
c. The Licensee must comply with all applicable data privacy laws and regulations while using the Equipment and must implement and maintain appropriate technical and organisational measures or other protections for Personal Information, data and Confidential Information.
d. If the Licensee suspects or believes (acting reasonably) that Personal Information has been subject to misuse, interference or loss, or unauthorised access, modification or disclosure ( Data Breach), the Licensee must:
i. as soon as reasonably practical;
ii. take all reasonable steps to contain the Data Breach; and
iii. notify Cabcharge of the Data Breach in writing and provide it with all the information that the Licensee has about the Data Breach,
unless required by law, comply with Cabcharge’s directions in relation to the steps taken to respond to the Data Breach including any notification requirements under the Privacy Act.
12. Confidentiality
12.1 The Licensee may from time to time, gain access to Confidential Information. The Licensee may use Confidential Information only to the extent necessary to exercise its rights under this Agreement.
12.2Subject to the express permissions set forth herein, the Licensee may not disclose any Confidential Information to a third party without the prior express consent of Cabcharge, provided in writing or by email.
12.3 Without limiting any other obligation of the Licensee under this Agreement, the Licensee agrees that it will take all reasonable steps to protect Confidential Information from unauthorised use, access, or disclosure in the same manner that the Licensee would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
13. Disclaimer of warranties
13.1 Unless the Licensee makes separate arrangements either with Cabcharge, the Licensee acknowledges and agrees that:
a. that the Equipment and any Equipment specifications are provided “as is,” without warranty of any kind, and may not always be fully operational;
b. to the extent permitted by applicable law, Cabcharge disclaims all warranties relating to the Equipment, express or implied, including, but not limited to, any warranties against infringement of third party rights, merchantability, and fitness for a particular purpose;
c. Cabcharge makes no representations or warranties regarding the suitability of the Equipment or any Equipment specifications for the intended requirements or purposes, including for use with the Licensee’s Services or any Customer vehicles. All aspects of the Equipment, including all server and network components are provided on an “as is” and “as available” basis, without any warranties of any kind to the fullest extent permitted by law, and Cabcharge expressly disclaims any and all warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement; and
d. Cabcharge does not warrant that the Equipment will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software, and no information or advice obtained by the Licensee from Cabcharge and/or Cabcharge or through the service shall create any warranty not expressly stated in this Agreement.
14. Liability and indemnity
14.1 Notwithstanding anything to the contrary in this Agreement, the aggregate liability of Cabcharge, each on his own, to the Licensee or any third party arising out of this Agreement, shall in no event exceed the fees paid under this Agreement in the 12 months preceding the relevant cause of action. Notwithstanding anything to the contrary in this Agreement, the aggregate liability of Cabcharge, each on his own, to the Licensee or any third party arising out of this Agreement, shall in no event exceed the fees paid under this Agreement in the 3 months preceding the relevant cause of action.
14.2 Any claim arising out of or relating to this agreement must be brought within 6 months of the first event or occurrence giving rise to the claim.
14.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to the Licensee. In these jurisdictions, the liability of Cabcharge will be limited to the greatest extent permitted by law. The limitations set forth in this Section 14 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
14.4 Notwithstanding anything else in this Agreement, Cabcharge will not be liable for any Consequential Loss.
14.5 The Licensee and Customer shall each indemnify, defend, and hold both Cabcharge and its officers, employees, contractors and agents, harmless from and against any and all liability, damages, losses and expenses (including reasonable attorneys’ fees and costs) that arise out of the Licensee’s negligence, breach or other performance of the Agreement, or violation of any law or right of a third party, or that of the Licensee’s/Customer’s officers, employees, contractors, or agents. The Licensee agrees to indemnify, defend, and hold both Cabcharge and its Personnel harmless from and against any and all liability, damages, losses and expenses (including legal fees and costs) that arise out of the Licensee’s negligence, breach or other performance of the Agreement, or violation of any law or right of a third party, or that of the Licensee’s Personnel.
14.6 Subject to clause 8.6 and 8.7, the Licensee agrees to indemnify, Cabcharge for any lost or damaged Equipment.
15. Term and termination
15.1 This Agreement shall commence on the Commencement Date and continue until terminated by either party by providing 30 days prior written notice to the other party.
15.2 Cabcharge may immediately terminate the Agreement with written notice to Licensee and Customer if:
a. the Licensee, or any of its Personnel breach this Agreement which is, in the opinion of Cabcharge, capable of remedy but the breaching party fails to remedy the breach within 14 days;
b. the Licensee, or any of its Personnel breach this Agreement which is, in the opinion of the Cabcharge, not capable of remedy including without limitation payment of fees;
c. the Licensee or Customer is subject to or threatens to become subject to an Insolvency Event. The Licensee is subject to or threatens to become subject to an Insolvency Event.
15.3 Any termination of this Agreement shall also terminate the licences granted to the Licensee hereunder including the Licence. Upon termination of this Agreement for any reason, the Licensee shall cease providing Services and either return to Cabcharge, or destroy all Equipment in its possession, any computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in the Licensee’s possession, and shall each certify to Cabcharge that such actions have occurred. All outstanding fees for services rendered up to the effective date of termination become due and payable within 7 days of the effective date of termination.
16. General
16.1 Assignment by the Licensee: The Licensee and the Customer may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or their rights under this Agreement or delegate performance of their duties under this Agreement without Cabcharge’s prior consent.
16.2 Assignment by the Licensee: The Licensee must not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or its rights under this Agreement, or delegate performance of its duties under this Agreement without Cabcharge’s prior consent.
16.3 Assignment by Cabcharge: Cabcharge may, without the Licensee’s consent, assign this Agreement to any Affiliate or in connection with any merger or change of control of Cabcharge or the sale of all or substantially all of its assets provided that any such successor agrees to fulfil its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
16.4 Entire Agreement: Unless the Licensee or Customer makes separate written arrangements with Cabcharge, this Agreement, together with the Privacy Policy and any other Cabcharge polices, constitutes the entire agreement among the parties with respect to the subject matter of this Agreement.
16.5 Updates: Cabcharge may update these terms from time to time by providing 30 days prior written notice. Notice may be provided in several ways including by email. The continued acceptance of Equipment and provision of Services by the Licensee after the commencement of the updated terms shall be construed as the Licensee’s acceptance and agreement of updated terms. The Licensee may terminate this Agreement by providing written notice to Cabcharge before the commencement of the updated terms.
16.6 Waiver: a party’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
16.7 Severance: if any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
16.8 Relationship: The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
16.9 Applicable Law: This Agreement shall be governed, construed, and enforced in accordance with the laws of New South Wales, Australia. The parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the courts of New South Wales, Australia. The parties shall comply with any and all applicable laws, rules and regulations of the governmental authorities concerned.