Terms of Service

These Software Terms of Service (Terms) govern your access to and use of the Consignmate freight and transport management software platform and related services (Services). By signing up, clicking “accept”, or using any of the Services, you agree to be bound by these Terms.

Definitions and Interpretation

In these Terms, unless the context requires otherwise:

Acceptable Use Policy means the policy set out in clause 6 (as amended or updated by Consignmate from time to time) that governs your access to and use of the Services.

ACL means the Australian Consumer Law set out in schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time.

Aggregated Data means data or information derived from Customer Data that has been anonymised and aggregated so that it does not identify any individual or you and cannot reasonably be re-identified, and that is used by Consignmate for analytics, product improvement, benchmarking or similar purposes.

API means any application programming interfaces, webhooks, tools, keys, credentials, documentation and related resources that Consignmate makes available to you (whether directly or via a third party) for the purpose of enabling programmatic access to, or integration or interoperation with, the Services.

Applicable Law means all applicable laws, statutes and regulations, including the ACL, the Data Protection Laws, and any transport, logistics or safety laws (including the Heavy Vehicle National Law and Chain of Responsibility requirements) that apply to your use of the Services.

Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for business in Melbourne, Victoria, Australia.

Change of Control means any transaction or event resulting in a person who immediately prior to such transaction or event did not have Control of you acquiring Control of you.

Confidential Information has the meaning given to that term in clause 13.1.

Control has the meaning given to that term in section 50AA of the Corporations Act.

Consignmate means Consignmate Pty Ltd ACN 638 468 096 and includes any of its related bodies corporate and any assignee.

Consignmate Platform means the online portal, website, applications (including mobile and driver apps) and interfaces through which you access and use the Services.

Corporations Act means the Corporations Act 2001 (Cth).

Customer Data means all data, information and content input into, stored in or otherwise processed through the Services by or on behalf of you or any User (including via any Third-Party Systems), including Personal Information, consignment, shipment, customer, carrier, driver, vehicle, GPS and billing data, and any other operational, configuration, usage, log or metadata associated with your use of the Services, but excluding any Aggregated Data and any Consignmate Materials.

Data Protection Laws means all applicable data protection and privacy laws, regulations and binding codes of practice, including the Privacy Act, together with any subordinate legislation, statutory instruments, mandatory guidelines or regulatory guidance issued by any competent supervisory authority in relation to Personal Information.

Documentation means any user guides, manuals, onboarding materials, technical specifications, support articles and other documentation relating to the Services that Consignmate makes available to you (in any form and by any means), as updated from time to time.

EULA means the Consignmate End User Licence Agreement governing the installation and use of any installed or mobile software components of the Services, as made available at https://consignmate.com/eula/ and as updated from time to time.

Event of Default means, subject to Applicable Law and where not trivial, any of the following:

(a) you committing a material breach of these Terms which, if capable of remedy, is not remedied within 14 days after receiving written notice specifying the breach and requiring that it be remedied;

(b) you committing a breach of clause 5.1 or clause 6.2 and, in the case of a breach of clause 6.2, failing to remedy that breach within 14 days after receiving notice from Consignmate requiring you to do so;

(c) you committing repeated breaches of these Terms which, taken together, have a serious adverse effect on Consignmate’s rights or benefits under these Terms;

(d) you undergoing a Change of Control without first obtaining Consignmate’s prior written consent (not to be delayed or withheld unreasonably);

(e) you intentionally misusing the Services, including by using the Services in a way that is misleading, likely to cause harm to another person, in furtherance of a crime or in a way that could reasonably be expected to damage, disable or interfere with the operation, integrity or security of the Services;

(f) an Insolvency Event occurring in respect of you, other than an event in relation to which enforcement of contractual rights is stayed under section 451E of the Corporations Act; or

(g) you, by virtue of your activities or as a result of a Change of Control (whether or not consented to by Consignmate), engaging in conduct that, in Consignmate’s reasonable opinion, could bring Consignmate into disrepute or otherwise damage its reputation.

Fees means the fees and charges payable by you to Consignmate for the Services, as shown in your subscription plan in the Consignmate Platform, in your onboarding email or as otherwise notified to you in writing.

Force Majeure Event has the meaning given to that term in clause 12.6.

GST has the meaning given to that term in the GST Law.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.

GST Law has the same meaning as in the GST Act.

Initial Subscription Period means the initial subscription period shown to you when you sign up for the Services or as otherwise notified to you in writing.

Insolvency Event means, in respect of a party, the occurrence of any of the following events (other than for the purpose of a solvent restructure, amalgamation or reorganisation):

(a) the party is unable to pay its debts as and when they fall due;

(b) an application is made, or a resolution is passed, for the winding up of the party, or an order is made for its winding up or dissolution;

(c) a liquidator, provisional liquidator, receiver, receiver and manager, administrator, controller, trustee in bankruptcy or similar officer is appointed to the party or any of its assets;

(d) the party enters into, or takes any step to enter into, any compromise, arrangement or composition with any of its creditors or any class of them, or a moratorium is declared in respect of its debts; or

(e) any event occurs in relation to the party in any jurisdiction that has a substantially similar effect to any of the events specified in paragraphs (a) to (d).

Intellectual Property Rights means all intellectual property rights, whether registered or unregistered and whether existing now or in the future, including copyright, patents, trademarks, service marks, Documentation, designs, domain names, database rights, circuit layout rights, rights in computer software, inventions, discoveries, know-how, trade secrets, techniques, methodologies, algorithms, models, moral rights and rights in Confidential Information, customer and supplier lists and other proprietary knowledge and information, any applications for and rights to apply for registration, renewal, extension, division or continuation of any of those rights, and all rights of a similar nature or having equivalent or similar effect to any of those rights, which subsist or may subsist anywhere in the world, in each case for their full period of protection (including any extensions, revivals or renewals).

Liabilities means any and all losses, liabilities, costs, charges, damages, penalties, fines, interest, expenses and other obligations of any kind, whether actual, contingent, direct or indirect, arising in contract, negligence, tort, equity, statute or otherwise and that a party pays, suffers or is liable for, including all legal and other professional fees and expenses on a full indemnity basis and other costs incurred in connection with investigating, defending or settling any claim and all amounts paid in settlement of any claim.

Personal Information has the meaning given to that term in the Privacy Act.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Policy means Consignmate’s privacy policy as amended or replaced from time to time, as made available at https://consignmate.com/privacy/.

Subscription Period means the Initial Subscription Period and any Subscription Renewal Period(s).

Subscription Renewal Period has the meaning given to it in clause 2.2.

Term has the meaning given to it in clause 2.1.

Third-Party Systems means any systems, platforms or services that are not part of the Services, including any third-party accounting, telematics, GPS, EDI, customs, carrier, logistics, payment, label printing or other freight, transport or business systems.

User means your employees, contractors, carriers, drivers and any other category of permitted end user authorised by you to be granted access to the Services, subject to any user limits set out in your subscription plan details.

You means the customer entity or individual that accepts these Terms, and your has a corresponding meaning.

References to interpretation:

References to clauses are to clauses of these Terms.
The terms include, including, such as or similar expressions are to be construed as if followed by the words “without limitation”, and do not limit the generality of the words preceding those terms.
A reference to the singular includes the plural, and vice versa.
References to a person include an individual, a corporation, other body corporate, partnership, unincorporated association, firm, government, government authority, state or any other organisation.
Headings are inserted for convenience only and do not affect the interpretation or construction of these Terms.

Term and Subscription

2.1 Commencement and Term

These Terms commence on the date you accept them (by online sign-up, tick-box acceptance, signature or first use of the Services) and will continue until the expiry of the Subscription Period (Term), unless terminated earlier in accordance with clause 14.

2.2 Subscription Renewals

Following the Initial Subscription Period, these Terms will automatically renew for successive periods (each a Subscription Renewal Period) unless either party provides written notice of termination to the other party at least 30 days prior to the expiry of the Initial Subscription Period or any Subscription Renewal Period.

2.3 Subscription Renewal Terms

(a) If your Initial Subscription Period is on a month-to-month basis, the subscription will renew for consecutive one-month Subscription Renewal Periods until terminated by either party on 30 days’ written notice.

(b) If your Initial Subscription Period is for a fixed term (for example, 12 months), the subscription will renew for a further fixed term of the same duration unless you elect to move to a month-to-month basis at least 30 days prior to expiry of the Initial Subscription Period. If you do not elect to move to a month-to-month basis in accordance with this clause 2.3(b), your subscription will renew for a further fixed term of the same duration.

The Services

3.1 Description of Services

The Services comprise cloud-based freight and transport management software solutions accessed over the internet, including any modules, add-ons or mobile applications made available to you from time to time. The Services may include functionality for:

(a) job and consignment management (create, import via EDI, track, dispatch, export);

(b) freight management and live GPS tracking;

(d) mobile driver applications;

(e) live dispatch board and carrier management;

(f) transport billing and invoicing;

(g) customer, job, manifest and reporting functionality; and

(h) web access from any device and integration with Third-Party Systems,

as described on the Consignmate website (consignmate.com) and in the Documentation.

3.2 Setup, Onboarding and Support

(a) Subject to you complying with these Terms (including clause 9), Consignmate will provide reasonable setup and onboarding assistance to enable you and your Users to access and use the Services.

(b) If and to the extent specified in your subscription plan details or as otherwise agreed in writing, Consignmate will provide support and maintenance services in relation to the Services during the Term, on the basis set out in those plan details or any applicable support policy referenced in them.

3.3 Acknowledgements

(a) You acknowledge that the Services have not been designed or configured to meet the individual requirements of any particular customer or use case and that the Services are provided on a general, “as is” and “as available” basis, subject to any non-excludable rights you have available to you under the ACL or other Applicable Law.

(b) You acknowledge and agree that your purchase of the Services is not contingent on the delivery of any future functionality, features or services, or on any public statements made by Consignmate regarding future plans or features for the Services, including any statements made on the Consignmate website.

Nature of the Services and Your Responsibilities

4.1 Freight Software Tool Only

(a) You acknowledge that the Services are freight and transport management software tools only. Consignmate does not carry, handle, store or transport any freight or goods, and has no possession or control of any goods.

(b) The Services do not provide, and must not be used as providing, transport, logistics, safety, regulatory, legal or other professional advice, and are not a substitute for your own independent operational, safety or compliance systems.

4.2 Your Sole Responsibility

You acknowledge and accept that you retain sole and absolute responsibility for:

(a) all transport operations, including the transport, handling, storage, safety and delivery of all freight and goods;

(b) all decisions made using the Services, including dispatch, routing, scheduling, pricing, carrier selection and driver allocation;

(c) compliance with all transport and safety laws, including the Heavy Vehicle National Law, Chain of Responsibility requirements, fatigue management, mass and dimension limits, vehicle standards, load restraint, dangerous goods requirements and any other applicable transport, road safety or workplace health and safety obligations;

(d) all consignment data, pricing, customer information and other operational data you input into or generate through the Services; and

(e) independently reviewing and validating any outputs, reports, templates, workflows or other materials made available by or generated through the Services before using or relying on them.

4.3 No Liability for Freight Loss or Damage

To the maximum extent permitted by Applicable Law and subject to clause 12.1, Consignmate has no liability whatsoever for any loss, damage, delay, theft, deterioration or non-delivery of any freight or goods, whether arising from incorrect or incomplete data in the Services, system outages, integration errors, user error or any other cause.

4.4 Chain of Responsibility

You acknowledge that the Services are a software tool only and do not discharge, satisfy or assume any of your Chain of Responsibility obligations or primary duties under the Heavy Vehicle National Law. You remain solely responsible for identifying, assessing and controlling all safety risks in your transport activities as far as reasonably practicable.

4.5 Data Accuracy and Outputs

You acknowledge that the Services may generate outputs (including reports, summaries, invoices, manifests, tracking data and other materials) that are based on data provided by you, your Users or Third-Party Systems. Consignmate does not warrant or represent that any output is accurate, complete, appropriate or fit for any particular purpose or context, and all reliance on any output is at your own risk.

Your Obligations

5.1 General Obligations

You must:

(a) comply with all Applicable Law in your access to and use of the Services;

(b) obtain and maintain all necessary licences, permits, registrations, insurances and consents required for your transport operations and for your use of the Services;

(d) in good faith, cooperate with Consignmate and provide such data, information, access and assistance as Consignmate may reasonably require in providing the Services to you and your Users, in a timely manner and in the format reasonably specified by Consignmate; and

(e) comply with the Acceptable Use Policy set out in clause 6 and ensure that all Users comply with the Acceptable Use Policy.

5.2 Account Security

(a) You are solely responsible for maintaining the confidentiality and security of all usernames, passwords and other credentials used to access the Services.

(b) You must promptly notify Consignmate of any actual or suspected unauthorised access, disclosure or use of any such credentials.

(c) You are responsible for all access to and use of the Services by or on behalf of you, including by Users and any other person using your or a User’s credentials to access the Services, whether authorised or unauthorised.

Acceptable Use Policy

6.1 General Use Requirements

You must, and must ensure that all Users, access and use the Services only:

(a) in accordance with these Terms (including this Acceptable Use Policy) and any reasonable written instructions issued by Consignmate from time to time;

(b) in accordance with the Documentation;

(c) for your legitimate internal business purposes in connection with your freight, transport or logistics operations; and

(d) in compliance with all Applicable Laws.

6.2 Prohibited Content

You must not, and must ensure that Users do not, use the Services to display, store, process, generate or transmit any content that is:

(a) in breach of any Applicable Law;

(b) infringing or misappropriating of any third party Intellectual Property Rights, confidentiality, privacy or other rights;

(c) defamatory, threatening, harassing, hateful, discriminatory, exploitative, deceptive, fraudulent, obscene, sexually explicit or otherwise offensive or inappropriate;

(d) related to self-harm, suicide, violence, terrorism, exploitation of children or vulnerable persons, or other high-risk harmful conduct; or

(e) false or misleading in a way that is reasonably likely to cause harm.

6.3 Prohibited Actions

You must not, and must ensure that Users do not:

(a) attempt to gain unauthorised access to, test, probe or scan the vulnerability of, or circumvent any security or authentication measures for, the Services or any related systems or networks;

(b) interfere with or disrupt the integrity, availability or performance of the Services or any data of Consignmate or any other customer, including by imposing an unreasonable or disproportionately large load on the underlying infrastructure;

(c) use any robot, scraper, crawler or other automated means to access the Services other than as expressly permitted in writing by Consignmate or through documented APIs;

(d) share, sell, resell, rent, lease, sublicense, timeshare or otherwise provide access to the Services to any third party (other than Users authorised under these Terms);

(e) copy, modify, adapt, translate, reverse-engineer, decompile, disassemble or create derivative works of the Services or any underlying software, except to the limited extent that such restriction is prohibited by Applicable Law;

(f) use the Services or any outputs to train, create or improve any product, service or dataset that competes with Consignmate or the Services; or

(g) bypass or attempt to bypass any user limits, safety controls or content safeguards implemented in the Services.

6.4 Third-Party Systems

(a) You must ensure that any Third-Party Systems that you connect to, or use in connection with, the Services are used in a manner that is consistent with this Acceptable Use Policy.

(b) You must not use the Services in any way that would cause Consignmate to be in breach of the terms, conditions or policies of any Third-Party System provider.

6.5 Monitoring and Enforcement

(a) Consignmate may (but is not obliged to) monitor use of the Services to verify compliance with this Acceptable Use Policy and to operate, maintain, secure and improve the Services.

(b) You must indemnify Consignmate against any Liabilities suffered or incurred by Consignmate arising out of or in connection with any breach of this Acceptable Use Policy by you or any User, to the extent caused by that breach and to the extent permitted by Applicable Law, except to the extent such Liabilities are directly caused by Consignmate’s fraud or negligence.

Access and Licence

7.1 Grant of Licence

Consignmate grants you a non-exclusive, non-transferable, non-sub-licensable licence, for the Subscription Period, to permit you and your Users to access and use the Services through the Consignmate Platform in accordance with these Terms and any applicable user limits set out in your subscription plan details.

7.2 User Access

(a) Consignmate will provide Users with access to the Services via the Consignmate Platform, subject to each User generating a unique username and password.

(b) You are solely responsible for ensuring that all Users keep their usernames and passwords secure and confidential at all times.

7.3 EULA

Your use of any installed or mobile software (including driver apps) is also subject to the EULA available at https://consignmate.com/eula/. In the event of inconsistency, these Terms prevail to the extent of the inconsistency, except where the EULA deals solely with licensing of installed software.

7.4 Suspension

Without limiting any other rights or remedies available to it, Consignmate may suspend (in whole or in part) your and/or any User’s access to the Services, without liability, if Consignmate knows or reasonably suspects that you or any User has breached the Acceptable Use Policy or any other provision of these Terms, or where Consignmate reasonably considers it necessary to protect the security, integrity or availability of the Services. You remain liable to pay all Fees that accrue or are payable during any period of suspension under this clause 7.4.

Third-Party Systems

8.1 Integration and Interoperation

(a) Although the Services are designed to interoperate with certain Third-Party Systems, you acknowledge that the proper functioning of the Services may depend on the availability and correct configuration of such Third-Party Systems.

(b) Third-Party Systems are not part of the Services and are not provided by Consignmate. Consignmate does not control the Third-Party Systems and makes no representations, warranties or guarantees of any kind in respect of any Third-Party System, whether or not it is integrated with, or can be used in connection with, the Services.

8.2 Your Responsibility for Third-Party Systems

(a) Any procurement of, subscription to, access to or use of a Third-Party System by you, and any integration or interoperation between the Services and that Third-Party System, is solely between you and the relevant Third-Party System provider.

(b) You are solely responsible for:

(i) ensuring you have and maintain any licences, consents and rights necessary to use the relevant Third-Party System and to connect it to the Services; and

(ii) complying with all terms, conditions and policies applicable to that Third-Party System.

8.3 Authorisation to Access Third-Party Systems

If you connect, enable or permit any Third-Party System to interoperate with the Services, you:

(a) represent and warrant that you have all rights, permissions and authority necessary to do so; and

(b) authorise Consignmate to access, receive, use and process data (including Customer Data) from, and to transmit data to, that Third-Party System as reasonably required to enable the integration or interoperation of the Services with that Third-Party System. Consignmate is not responsible for any access to, or any disclosure, modification, loss or deletion of, data (including Customer Data) by or on behalf of any Third-Party System.

8.4 Changes to Third-Party Systems

Consignmate does not guarantee the continued availability of, or compatibility or interoperation with, any Third-Party System. Consignmate may modify, suspend or discontinue any integration or interoperation between the Services and a Third-Party System, or restrict, suspend or disable access to any Third-Party System, at any time (for example, if the Third-Party System provider ceases to make it available, changes its API or terms, or if Consignmate considers that the Third-Party System or its integration with the Services presents a security, legal, commercial or operational risk to Consignmate or the Services).

8.5 No Liability

To the maximum extent permitted by Applicable Law and subject to clause 12.1, your use of any Third-Party System in connection with the Services is entirely at your own risk, and Consignmate shall have no liability whatsoever arising out of or in connection with any Third-Party System, any integration or interoperation with the Services, or any unavailability, defect or change in a Third-Party System.

Fees and Payment

9.1 Fees

You must pay the Fees for your chosen subscription plan as set out in the Consignmate Platform at the time you subscribe or as otherwise notified to you in writing.

9.2 Billing and Payment Terms

(a) Unless otherwise specified in your subscription plan details, Fees are payable monthly in advance using the payment method nominated by you and accepted by Consignmate.

(b) You authorise Consignmate (or its payment processor) to charge your nominated payment method for the Fees on the applicable billing date and to continue to charge that payment method on each subsequent billing date until these Terms are terminated or you change your payment method.

(c) You must ensure that your payment details are current and accurate at all times and notify Consignmate promptly of any changes.

9.3 Overdue Payments

(a) If any Fees remain unpaid after the due date, Consignmate may:

(i) charge interest on the overdue amount at the rate of 10% per annum (calculated daily and compounding monthly) from the due date until payment is received in full; and

(ii) suspend your access to the Services in accordance with clause 7.4 until payment is received in full (and may later terminate these Terms under clause 14 if the non-payment becomes an Event of Default).

(b) You must not set off or withhold any amount payable to Consignmate under these Terms against any amount you claim is owed to you by Consignmate or otherwise.

9.4 Fee Increases

(a) Consignmate may increase the Fees no more than once in any 12-month period by giving you at least 30 days’ prior written notice.

(b) If Consignmate increases the Fees by more than 10% in any 12-month period, you may terminate these Terms by giving written notice to Consignmate within 14 days of receiving the notice of the increase, and the termination will take effect at the end of your then-current billing period.

(c) If you continue using the Services after the effective date of any fee increase, you are taken to have accepted the new Fees.

9.5 GST

(a) All Fees are expressed exclusive of GST unless otherwise stated.

(b) If GST is payable on any supply made under these Terms, you must pay to Consignmate an additional amount equal to the GST payable on that supply, at the same time and in the same manner as the Fees are payable.

Data Protection and Privacy

10.1 Customer Data Ownership

You retain all ownership and Intellectual Property Rights in and to Customer Data. Subject to these Terms, you grant Consignmate a non-exclusive, worldwide, royalty-free licence to use, store, process, reproduce and transmit Customer Data solely to the extent necessary to provide the Services to you.

10.2 Privacy and Data Protection

(a) Consignmate will process Personal Information in accordance with Applicable Law and its Privacy Policy available at https://consignmate.com/privacy/, as updated from time to time.

(b) You are solely responsible for obtaining any consents and providing any notices required under Data Protection Laws for the collection, use, disclosure, processing and accuracy of Personal Information through the Services, including any Personal Information relating to your customers, drivers, carriers, employees and other individuals.

(c) You represent and warrant that you have all necessary rights, consents and authorisations to provide Customer Data to Consignmate for processing through the Services.

10.3 Security

(a) Consignmate will implement and maintain reasonable technical and organisational measures designed to protect Customer Data from unauthorised access, use, disclosure, alteration or destruction, including:

(i) encryption of data in transit and at rest where appropriate;

(ii) access controls and authentication mechanisms; and

(iii) use of reputable infrastructure providers.

(b) You acknowledge that no system is completely secure and that Consignmate cannot guarantee absolute security of Customer Data.

10.4 Data Retention and Deletion

(a) Consignmate will retain Customer Data for the duration of the Term and for such additional period as may be required by Applicable Law or as reasonably necessary for backup, disaster recovery or audit purposes.

(b) Following termination of these Terms, Consignmate will delete or anonymise Customer Data within 90 days, except for Aggregated Data or any data Consignmate is required to retain by Applicable Law, or where you request an export of Customer Data in accordance with clause 10.5.

10.5 Data Export

You may export Customer Data from the Services at any time during the Term using the export functionality provided in the Consignmate Platform. Following termination, you may request an export of Customer Data by written notice to Consignmate within 30 days of termination, and Consignmate will use reasonable efforts to provide the export in a standard format within a reasonable timeframe.

10.6 Aggregated Data

Consignmate may use, retain and disclose Aggregated Data for any purpose, including product improvement, analytics, benchmarking and marketing. You acknowledge that Consignmate owns all rights, title and interest in and to Aggregated Data.

Intellectual Property

11.1 Consignmate IP

(a) Consignmate retains all ownership and Intellectual Property Rights in and to the Services, the Consignmate Platform, the Documentation and any software, models, algorithms, methodologies, templates, improvements, enhancements, modifications or derivative works created by or on behalf of Consignmate, whether or not based on feedback, suggestions or other input from you.

(b) Nothing in these Terms transfers any Intellectual Property Rights to you, except for the limited licence expressly granted in clause 7.1.

11.2 Customer Materials

You grant Consignmate a non-exclusive, worldwide, royalty-free licence to use, reproduce, modify, display and transmit any branding, logos, trademarks or other materials you provide to Consignmate solely to the extent necessary to provide the Services to you and to display your name and logo as a customer reference (unless you opt out by emailing [Insert Email] and requesting that your name and logo not be used for this purpose).

11.3 Feedback

If you provide any feedback, suggestions, ideas or other input to Consignmate regarding the Services (Feedback), you grant Consignmate a perpetual, irrevocable, worldwide, royalty-free licence to use, incorporate and exploit that Feedback for any purpose, including to improve, develop and market the Services, without any obligation to you.

11.4 Intellectual Property Indemnity by Consignmate

(a) Consignmate will indemnify you against any Liabilities suffered or incurred by you arising out of or in connection with any third-party claim that your use of the Services in accordance with these Terms infringes any third party’s Intellectual Property Rights, provided that:

(i) you notify Consignmate promptly in writing of the claim;

(ii) Consignmate has sole control of the defence and settlement of the claim; and

(iii) you provide reasonable assistance to Consignmate in defending the claim, at Consignmate’s expense.

(b) Consignmate’s obligations under clause 11.4(a) do not apply to the extent the claim arises from:

(i) your modification of the Services or use of the Services in combination with any Third-Party System or other software, hardware or data not provided or approved by Consignmate;

(ii) your breach of these Terms; or

(iii) Customer Data or any other materials provided by you.

(c) If a claim is made or Consignmate reasonably believes a claim may be made, Consignmate may, at its option and expense:

(i) procure for you the right to continue using the Services;

(ii) modify or replace the Services so that they become non-infringing; or

(iii) terminate these Terms on written notice and refund any prepaid Fees for the unused portion of the Subscription Period, subject to the limitations in clause 12.

11.5 Intellectual Property Indemnity by Customer

You will indemnify Consignmate against any Liabilities suffered or incurred by Consignmate arising out of or in connection with any third-party claim that Customer Data or any other materials provided by you, or your instructions to Consignmate, infringe any third party’s Intellectual Property Rights or other rights, to the extent permitted by Applicable Law.

Warranties, Disclaimers and Liability

12.1 Consumer Guarantees

(a) Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the ACL or any other Applicable Law that cannot be excluded, restricted or modified by agreement (Non-Excludable Rights).

(b) To the extent that the ACL or any other Applicable Law applies and Consignmate is liable for a failure to comply with a Non-Excludable Right, Consignmate’s liability is limited, at Consignmate’s option, to supplying the services again or paying the cost of having the services supplied again.

12.2 Disclaimers

(a) Subject to clause 12.1, the Services are provided “as is” and “as available” without warranty of any kind.

(b) To the maximum extent permitted by Applicable Law, Consignmate disclaims all warranties, representations and conditions, whether express, implied, statutory or otherwise, including any warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, reliability, uninterrupted or error-free operation, or that the Services will meet any particular compliance standard or business outcome.

(c) Consignmate does not warrant that the Services will be uninterrupted, error-free, secure or free from viruses or other harmful components, or that any errors or defects will be corrected.

(d) You acknowledge that your use of the Services is at your own risk and that you bear sole responsibility for your transport operations, regulatory compliance and all decisions made using the Services.

12.3 Exclusion of Certain Losses

To the maximum extent permitted by Applicable Law, in no event will Consignmate be liable to you for any indirect, incidental, special, consequential or punitive losses or damages, or for any loss of profits, revenue, data, goodwill, business opportunity, anticipated savings or reputation, whether or not Consignmate has been advised of the possibility of such losses or damages. For the purposes of this clause, “indirect” or “consequential” losses means losses that are consequential, special or remote under general law.

12.4 Cap on Liability

(a) Subject to clause 12.1, Consignmate’s total aggregate liability to you under or in connection with these Terms, whether arising in contract, tort (including negligence), statute or otherwise, will not exceed, in aggregate, the total Fees paid by you to Consignmate in the 12-month period immediately preceding the event giving rise to the liability.

(b) The exclusions and limitations in this clause 12 do not apply to:

(i) death or personal injury caused by Consignmate’s negligence;

(ii) fraud or fraudulent misrepresentation by Consignmate; or

(iii) any other liability that cannot be excluded or limited by Applicable Law.

12.5 Basis of Bargain

You acknowledge that the exclusions and limitations set out in this clause 12 are reasonable and reflect the allocation of risk between the parties and form an essential basis of the bargain between the parties. The Fees reflect this allocation of risk and would be substantially higher if Consignmate were to assume greater liability.

12.6 Force Majeure

(a) Neither party will be liable for any failure or delay in performing its obligations under these Terms (other than payment obligations) to the extent that such failure or delay is caused by circumstances beyond that party’s reasonable control (Force Majeure Event), including acts of God, fire, flood, earthquake, pandemic, war, terrorism, civil unrest, labour disputes, telecommunications failures, power outages, failures of third-party hosting providers or internet service providers, or changes in law.

(b) The affected party must promptly notify the other party of the Force Majeure Event and use reasonable efforts to mitigate its effects.

(c) If a Force Majeure Event continues for more than 30 consecutive days, either party may terminate these Terms by written notice to the other party.

Confidentiality

13.1 Definition

Confidential Information means all confidential, proprietary or non-public information disclosed by one party (Disclosing Party) to the other party (Receiving Party) under or in connection with these Terms, whether disclosed orally, in writing, electronically or by any other means, including technical, commercial, financial and operational information, software, Documentation, Customer Data, business plans, pricing, customer lists and the terms of these Terms, but excluding information that:

(a) is or becomes publicly available through no breach of these Terms by the Receiving Party;

(b) was rightfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party, as evidenced by the Receiving Party’s written records;

(c) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information; or

(d) is rightfully received by the Receiving Party from a third party without breach of any confidentiality obligation.

13.2 Obligations

(a) Each party must:

(i) keep the other party’s Confidential Information confidential and not disclose it to any third party except as permitted by these Terms or as required by Applicable Law;

(ii) use the other party’s Confidential Information only for the purposes of performing its obligations or exercising its rights under these Terms; and

(iii) protect the other party’s Confidential Information using at least the same degree of care it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care.

(b) A party may disclose the other party’s Confidential Information:

(i) to its employees, officers, directors, contractors, advisers and service providers who have a legitimate need to know and who are bound by confidentiality obligations no less protective than those set out in these Terms; or

(ii) to the extent required by Applicable Law, court order or regulatory authority, provided that the disclosing party gives the other party reasonable prior written notice (where legally permitted) and cooperates in seeking confidential treatment.

13.3 Survival

The obligations in this clause 13 will survive termination or expiry of these Terms for a period of five years, and any obligations relating to Customer Data and Personal Information in clause 10 will survive for so long as Consignmate retains such data.

Termination and Suspension

14.1 Termination for Convenience

(a) If your subscription is on a month-to-month basis, either party may terminate these Terms by giving at least 30 days’ prior written notice to the other party.

(b) If your subscription is for a fixed term, you may terminate these Terms at the end of the Initial Subscription Period or any Subscription Renewal Period by giving at least 30 days’ prior written notice to Consignmate before the end of that period. If you do not give notice under this clause, your subscription will renew in accordance with clause 2.2.

14.2 Termination for Default

Either party may terminate these Terms immediately by written notice to the other party if an Event of Default occurs in respect of the other party.

14.3 Termination for Insolvency

Either party may terminate these Terms immediately by written notice to the other party if an Insolvency Event occurs in respect of the other party.

14.4 Effect of Termination

(a) On termination or expiry of these Terms:

(i) your licence to access and use the Services immediately terminates;

(ii) you must immediately cease all use of the Services;

(iii) Consignmate will cease providing the Services to you; and

(iv) you must pay all outstanding Fees and other amounts owing to Consignmate up to the date of termination.

(b) Termination or expiry of these Terms does not affect any rights or obligations that have accrued prior to termination or expiry.

(c) Any provisions of these Terms that by their nature are intended to survive termination or expiry (including clauses 10, 11, 12, 13 and 15) will continue in full force and effect.

14.5 No Refunds

Except as required by Applicable Law or as expressly provided in these Terms and subject to clause 12.1, no refund of prepaid Fees will be given on termination of these Terms for any reason.

General

15.1 Notices

(a) Any notice, consent or other communication under these Terms must be in writing and may be delivered by email, prepaid post or courier to the address set out in your account details (in the case of notices to you) or to [Insert Email] (in the case of notices to Consignmate), or to such other address as a party may notify to the other party from time to time. Consignmate may also give you notice by displaying a prominent notice within the Consignmate Platform or sending an in-app notification.

(b) A notice is deemed to be received:

(i) if sent by email, on the Business Day the email is sent (or the next Business Day if sent after 5:00 pm or on a day that is not a Business Day);

(ii) if sent by prepaid post, three Business Days after posting; or

(iii) if delivered by courier, on delivery.

15.2 Assignment

(a) You must not assign, transfer, novate or otherwise deal with these Terms or any of your rights or obligations under these Terms without Consignmate’s prior written consent.

(b) Consignmate may assign, transfer, novate or otherwise deal with these Terms or any of its rights or obligations under these Terms without your consent:

(i) to any of its related bodies corporate; or

(ii) in connection with a sale, merger, acquisition, reorganisation or other transfer of all or substantially all of its business or assets.

15.3 Amendments

(a) Consignmate may amend these Terms (including the Acceptable Use Policy, Privacy Policy and EULA) by giving you at least 30 days’ prior written notice. Any such amendments will not have retrospective effect.

(b) If an amendment materially and adversely affects your rights under these Terms, you may terminate these Terms by giving written notice to Consignmate within 14 days of receiving the notice of amendment, and the termination will take effect at the end of your then-current billing period.

(c) If you continue using the Services after the effective date of any amendment, you are taken to have accepted the amended Terms.

15.4 Entire Agreement

These Terms (including the EULA and Privacy Policy) constitute the entire agreement between the parties in relation to their subject matter and supersede all prior agreements, understandings, representations and negotiations between the parties.

15.5 Severability

If any provision of these Terms is found to be invalid, illegal or unenforceable, that provision will be severed and the remaining provisions will continue in full force and effect.

15.6 Waiver

No waiver of any provision of these Terms will be effective unless it is in writing and signed by the party granting the waiver. No failure or delay by a party in exercising any right or remedy under these Terms will operate as a waiver of that right or remedy.

15.7 Independent Contractors

The parties are independent contractors. These Terms do not create any partnership, joint venture, agency, employment or fiduciary relationship between the parties.

15.8 Third-Party Rights

These Terms are for the benefit of the parties only and do not confer any rights on any third party.

15.9 Governing Law and Jurisdiction

(a) These Terms are governed by the laws of the State of Victoria, Australia.

(b) Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and any courts that may hear appeals from those courts in relation to any dispute or claim arising out of or in connection with these Terms.

15.10 Dispute Resolution

(a) If a dispute arises out of or in connection with these Terms, either party may give written notice to the other party specifying the dispute.

(b) Within 14 days of such notice, senior representatives of each party must meet (in person or by video conference) and attempt in good faith to resolve the dispute by negotiation.

(d) Nothing in this clause prevents a party from seeking urgent injunctive or other equitable relief from a court.