Terms of Service (NowGo)

A. Shippit is the owner of, or has a licence to use, the Software.

B. Pursuant to the Agreement Shippit wishes to grant, and Customer wishes to take, a licence to use the Software and agrees to provide the Services to Customer.

1.1. In these Terms, unless the contrary intention appears:

Additional Fee means any Additional Fees stated at Item 6 the Subscription Agreement.

Agreement means the NowGo Subscription Agreement and these Terms.

Article means an ‘Article’ as defined by the Software, typically comprising a physical item with a specified delivery address (for example, a parcel, letter, document, package or box).

Article-Stop means an ‘Article-Stop’ as defined by the Software, typically comprising a number of tasks (involving one or more Articles) planned to be completed by a person at a single location at a point in time whether on behalf the Customer or an individual third party.

Availability Target Table means the table in Item 13 of the Subscription Agreement.

Brand Features means trade names, trademarks, logos, domain names, and other distinctive brand features.

Business Days means Monday to Friday of each week, excluding public holidays in New South Wales.

Commencement Date means the date specified in Item 3 of the Subscription Agreement.

Confidential Information means any information in any form whatsoever (including oral, written, and electronic information) of a personal, technical, business, corporate or financial nature of a Party that has either been marked as confidential or due to its character or nature, or manner of its disclosure, a reasonable person would consider to be confidential.  Without limitation, confidential information of Shippit includes details of the Shippit’s business, technical processes and the business of Shippit’s customers and the terms of the Agreement.

CPI means the All Groups consumer price index published by the Australian Bureau of Statistics for Sydney, or if the Australian Bureau of Statistics stops publishing the CPI, then CPI means the index recommended by the Property Council of Australia as the index that most appropriately replaces the CPI.

CPI Rate means the change, expressed as a percentage, in the CPI measured from the CPI for the quarter ending immediately before the last date on which the Licence Fee or the Services Fee was reviewed (or the Commencement Date if there has been no intervening review) to the CPI for the quarter ending immediately before the relevant review date.

Driver means a ‘Driver’ as defined by the Software, typically comprising a person who, acting for or on behalf of the Customer, performs a Job (or an Article-Job), where the Job (or Article-Job) in any way makes use of the Services. 

Emergency Interruption means a disruption or suspension of use of the Software or any Services immediately necessary to maintain the integrity, security, safety or quality of any part of the Software or Services for Customer, Shippit or any other customer of Shippit.

Force Majeure means a circumstance beyond the reasonable control of the Parties which directly results in a Party being unable to observe or perform on time an obligation under the Agreement. Such circumstances will include but will not be limited to natural disasters, acts of war, acts of government, epidemics, terrorism, civil commotion, industrial action, malicious software or hardware attack or failure of third party network facilities or infrastructure.

‍GST includes amounts defined as ‘GST’ under the GST law and:

(a) amounts payable on account of a notional liability under Division 177 of the GST Act; and

(b) ‘GST equivalents’ payments under the Intergovernmental Agreement Implementation (GST) Act 2000 (NSW) (or similar payments under corresponding legislation of any other State or Territory);

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

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

Initial Term means the period specified as such in Item 4 of the Subscription Agreement. 

Intellectual Property Rights means all intellectual property rights, whether registered or unregistered anywhere in the world, including patents, copyright, rights in circuit layouts, registered designs, trademarks and the right to have confidential information kept confidential, and any application or right to apply for registration of any of those rights.

Job means a ‘Job’ as defined by the Software, typically comprising one or more Stops or Article-Stops.

Licence Fee means the fee or fees specified in Item 6 of the Subscription Agreement, payable to Shippit for the licence of the Software.

Shippit Material means any material that Shippit supplies to Customer in order for Shippit to licence the Software and supply the Services, in which Shippit owns or is licensed to use Intellectual Property Rights. 

Non-excludable Condition means an implied condition or warranty the exclusion of which from a contract would contravene any statute of any relevant jurisdiction or cause any part of the Agreement to be void.

Onboarding and Implementation Fee means the fee stated in Item 6 of the Subscription Agreement.

Party means Shippit or Customer as the context requires, and Parties means all of Shippit and Customer.

Payment Terms means the terms specified in Item 7 of the Subscription Agreement.

Personal Information means any information collected in the course of the license or use of the Software, or the supply of Services, which can be used to identify an individual or renders the individual reasonably identifiable.

Shippit Material means any material: 

(a) in which Intellectual Property Rights exist, that was or is created, written or otherwise brought into existence by or on behalf of Customer in the course of, or in connection with, the licence of the Software (including the data output referred to in clause 3.1(b) of Schedule 1) or the supply of Services;

(b) used by Customer in the course of licensing the Software or supplying Services in which Shippit owns or is licensed to use Intellectual Property Rights; or

(c) developed by or on behalf of Shippit independently of the Agreement. 

Related Entity has the meaning given to it in the Corporations Act 2001 (Cth).

Renewal Term means the period specified as such in Item 5 of the Subscription Agreement. 

Review Percentage means the percentage stated in Item 9 of the Subscription Agreement.

Schedule means a schedule to these Terms.

Scheduled Interruption means a disruption or suspension of the use of the Software or any Services in respect of which Shippit has given notice to Customer, including for maintenance or improvement to the Software or any Services.

Service Level Targets means the targets specified in Schedule 2.

Services means all services specified in Schedule 2.

Software means the software described in clause 1 of Schedule 1.

Special Condition means a term set out in Subscription Agreement.

Stop means a ‘Stop’ as defined by the Software, typically comprising a number of tasks (not involving an Article) planned to be completed by a person at a single location at a point in time whether on behalf of Customer or an individual third party.

Subscription Agreement means a Shippit subscription agreement in relation to a licence to use the Software.

Support means the support services specified in Item 12 of the Subscription Agreement.

Terms means these terms of service and any variations thereof.

Third Party Licensee means a third party that has entered into agreements with Shippit for a licence to use the Software, and the supply of corresponding services.

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1.2. In these Terms, unless the contrary intention appears:

• (a) clause headings are for ease of reference only and will not be relevant to interpretation;
• (b) words in the singular number include the plural and vice versa;
• (c) words importing a gender include any other gender;
• (d) a reference to a person includes bodies corporate and unincorporated associations and partnerships;
• (e) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; and
• (f) monetary references are references to Australian dollars, unless otherwise stated.

2.1. The Initial Term of the Agreement will commence on the Commencement Date.

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2.2. The Agreement will be renewed automatically at the end of the Initial Term and any Renewal Term, unless terminated in accordance with clause 14.

3.1. During the Term, Shippit:

• (a) agrees to grant Customer a licence to use the Software in accordance with this Agreement; and
• (b) agrees to provide the Services in accordance with this Agreement.

4.1. From time to time, Shippit may determine that a Scheduled Interruption or Emergency Interruption may be necessary or desirable to improve, maintain, protect or secure the Software or some or all of the Services. 

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4.2. Customer acknowledges that Shippit may subject the Software or the Services to a Scheduled Interruption or Emergency Interruption at any time provided that with respect to a Scheduled Interruption, Shippit will provide Customer with at least 14 days' notice of the expected start time, duration, scope and nature of the interruption or disruption to use of the Software or Services; and

5.1. On and from the Commencement Date, Shippit will charge the Customer the Licence Fee and any Additional Fees.

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5.2. The Onboarding and Implementation Fee will be paid in accordance with the terms stated in the Subscription Agreement.

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5.3. Shippit may reasonably vary any Fee where the variation is required to reflect an increase in fees Shippit must pay to any third party supplier of services required for the ongoing provision of the licence, or the proper supply of the Services, to the Customer in accordance with the Agreement, immediately from when the third party supplier increases its fees, provided that Shippit must provide notice to Customer of the amended Licence Fee or Additional Fees as soon as reasonably practicable.

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5.4. Shippit will invoice Customer for the Licence Fee and any Additional Fees, and Customer must pay each invoice, in accordance with the Payment Terms. 

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5.5. If Customer disputes the whole or any portion of an amount claimed in an invoice issued by Shippit, Customer will pay the portion of the amount stated in the invoice which is not in dispute and will notify Shippit in writing (within seven days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was invoiced, then Customer will immediately pay the amount finally resolved.

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5.6. All amounts payable or other consideration provided in respect of supplies made in relation to the Agreement are exclusive of GST (if any).  Where a supply is a taxable supply, all amounts payable or other consideration provided must be increased by the amount of GST payable in relation to the supply.

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5.7. All GST must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued for the supply).  Where any GST payable is not referable to an actual payment, then it must be paid within ten (10) days of a tax invoice being issued by the party making the supply.

6.1. Each year on the anniversary of the Commencement Date, the Licence Fee will increase by the Review Percentage.

7.1. All Intellectual Property Rights in the Software are the exclusive property of Shippit or its licensors and nothing in the Agreement assigns or vests any Intellectual Property Rights in the Software to Customer or any other person.  For the avoidance of doubt, any material created in the course of licensing the Software or supplying the Services, including any adaptation or modification of any existing material, will on creation be deemed Shippit Material and all Intellectual Property Rights in such material are assigned on creation to Shippit.  

7.2. Customer must not claim any right or title to use the Shippit Material except use permitted under this Agreement.  Customer must not dispute or challenge the entitlement of Shippit to the Shippit Material or join any third parties to challenge or contest the validity of Shippit Material. 

7.3. Customer must not attempt to reverse engineer, disassemble, decompile or circumvent the Software or any part of the Software, and will ensure that its 3PL Provider and any other person who obtains exposure to the Software or the Services in connection with this agreement does not do so.

7.4. Customer agrees to notify Shippit promptly of any infringement, or suspected or threatened infringement, of the Shippit Material.

8.1. Unless otherwise stated in a Special Condition, the Customer must conspicuously display the Shippit logo (or other Brand Features as required by a separate attribution agreement) on or adjacent to any content published by the Customer through any medium, including but not limited to the Customer’s website, social media accounts, advertising material, presentations or proposals, where such content relates to:

• (a) automated routing or dispatching of vehicles or fleets;
• (b) dynamic rerouting of vehicles or fleets;
• (c) predictions of delivery times, fleet capacities, parking times;
• (d) calculation of the efficiency of a driver or fleet;
• (e) predictions of consumer demand in relation to a product or service; or
• (f) systems to improve the efficiency of a vehicle or fleet.

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8.2. The Customer understands and agrees that Shippit has the sole right and discretion to reasonably determine whether any attribution(s) by the Customer meets the requirements in clause 8.1.

9.1. Each Party:

• (a) may use Confidential Information of the other Party solely for the purposes of exercising its rights and performing its obligations under the Agreement;
• (b) except as explicitly permitted by this clause 9, must keep confidential all Confidential Information of the other Party;
• (c) may disclose Confidential Information of the other Party only:
  
  • (i) to employees and subcontractors who:
    
    • (A) are bound by written obligations of confidence at least as stringent as those under the Agreement;
    • (B) are aware and agree that Confidential Information of the other Party must be kept confidential; and
    • (C) either has a need to know (and only to the extent that each has a need to know), or have been specifically approved by the other Party; or
  • (ii) to persons other than those referred to in clause 9.1(i) who have entered into a confidentiality agreement on substantially similar terms to the confidentiality requirements specified in this clause 9.1.

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9.2. A Party must promptly notify the other Party upon discovery of any unauthorised access, use or disclosure of the other Party’s Confidential Information and take all reasonable steps to regain possession or control of the Confidential Information and prevent further unauthorised access, use or disclosure.

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9.3. A Party will not be in breach of clause 9.1 in circumstances where it is compelled by the law of a relevant jurisdiction to disclose the other Party’s Confidential Information.

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9.4. Without limiting clause 9.1, each Party will take all reasonable steps and do all things prudent or desirable to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other Party’s Confidential Information, including establishing and maintaining reasonably necessary safeguards against the destruction, loss, alteration of, or unauthorised access to any of the other Party’s Confidential Information.

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9.5. Notwithstanding any other provision of this clause, a Party may disclose matters arising from the Agreement (other than Confidential Information of a technical nature) to its related companies, lawyers, auditors, insurers and accountants. Subject to clause 9.6, within 10 days following the earlier of:

• (c) return to the other Party all of that Party’s Confidential Information (including all copies/derivatives of such Confidential Information); or 
• (d) destroy all of the other Party’s Confidential Information and certify in writing to the discloser that such Confidential Information (including all copies/derivatives of such Confidential Information) has been permanently destroyed in such a manner that it cannot be retrieved. 

a Party must, as directed by the other Party, either: 

• termination of the Agreement; or 
• upon written request by either Party as to that Party’s Confidential Information, 

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9.6. Each Party may retain 1 archival copy of the other Party’s Confidential Information for regulatory and internal audit compliance purposes, provided that the obligations of confidentiality specified in the Agreement will continue to apply to that archival copy.

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9.7. Each Party acknowledges that:

• the other Party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information, and that monetary damages would be an insufficient remedy; and
• in addition to any other remedy available at law or in equity, the other Party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of, this clause 9.

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9.8. The rights arising under this clause 9 do not exclude any other rights of either Party.

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9.9. If either Party is uncertain as to whether any information is Confidential Information, it must treat the information as Confidential Information and not in the public domain unless and until the other Party agrees in writing that the information is in the public domain.

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9.10. This clause will survive the termination of the Agreement.

10.1. Each Party will, with respect to its collection, disclosure and use of Personal Information:

• (a) comply with the Privacy Act 1988 (Cth) (Privacy Act);
• (b) only collect Personal Information in a manner permitted by the Privacy Act; and
• (c) securely destroy or de-identify Personal Information where and when required to do so in order to comply with applicable law.

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10.2. Customer acknowledges that the Software may, if directed to do so by Customer, undertake automatic inspection, data analysis and processing of information about the businesses of customers of Customer, and that Customer has sole responsibility for ensuring that it has provided all notice to, and secured all consents from, its customers necessary or desirable to permit the Software to perform such inspection, data analysis and processing.

11.1. Except as expressly provided in the Agreement, Shippit excludes from the Agreement all conditions, warranties and terms implied by statute, general law or custom, except any Non-excludable Condition.

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11.2. Subject to clause 11.1, Customer warrants that it has not relied on any representation made by Shippit which has not been stated expressly in the Agreement, or upon any descriptions, illustrations or specifications contained in any document including any proposal, catalogues or publicity material provided by Shippit, except and only to the extent such documents are expressly incorporated in the Agreement. 

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11.3. Customer acknowledges that to the extent Shippit has made any representation which is not otherwise expressly stated in the Agreement, Customer has been provided with an opportunity to independently verify the accuracy of that representation.

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11.4. Each Party warrants that it must not use, or knowingly allow another person to use, any part of the Software in a manner contrary to any law of a relevant jurisdiction.

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11.5. Each Party warrants that it:

• (a) will not purport to act on behalf of the other Party;
• (b) must comply with any reasonable direction of the other Party to assist in complying with any legal obligation;
• (c) will comply with all directions and orders of any relevant regulator or other legal authority; and
• (d) must comply with all applicable laws, regulations and legal obligations.

12.1. Customer acknowledges that the Software and the Services utilise automatic data processing and analysis technologies which rely on heuristics and other similar techniques, the accuracy and efficiency of which may vary or be affected by variables beyond Shippit’s knowledge or control, and accordingly Customer acknowledges and agrees that:

• (a) while Shippit will do all things technically possible to maximise the accuracy and efficiency of the output of Software and the Services, the output of the Software or the Services may contain errors and inaccuracies from time to time; 
• (b) while Shippit will make reasonable efforts to minimise any loss of data from the output of the Software, Shippit will not be responsible for any such loss of data;

• (c) Shippit will not be responsible for the amount (or cost) of data used by: 
  
  • (i) Customer in using the Software (including as a result of any errors or inefficiencies in the Software); or 
  • (ii) any Shippit employee, officer, agent or contractor at Customer’s premises;
• (d) the Software and the Services are not designed to be used in isolation, and Customer must employ techniques independent of the Software and the Services, including manual analysis and verification of the output of the Software and the Services, to verify or contradict the accuracy of the output of the Software and the Services;
• (e) Shippit is under no obligation to verify the accuracy of the output of the Software or the Services;
• (f) Shippit does not guarantee that the output of the Software or the Services will be constantly available or error-free;
• (g) the technology that enables the Software and the Services will continue to be developed by Shippit, and the accuracy item and efficiency of the Software and the Services may change during the Term; and
• (h) Customer will not (whether directly or through any third party) deliberately disrupt or interfere with:
  
  • (i) the supply of any Shippit services to any other customer of Shippit; or
  • (ii) any computer network, system or infrastructure that affects the supply of Shippit services to any person.

13.1. Except for liability in relation to breach of any Non-excludable Condition and liability under clause 13.3, Shippit’s total liability to Customer in contract, including for one or more breaches of any express term or terms of the Agreement (in aggregate), tort (including in negligence), statute, or otherwise, is limited to an amount equal to the total amount actually paid by Customer to Shippit under the Agreement during the 12-month period before the liability arose.

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13.2. Shippit’s total liability to Customer for a breach of any Non-excludable Condition (other than a Non-excludable Condition in respect of which, by law, liability cannot be limited) is limited, at Shippit’s option to any one of resupplying, replacing or repairing, or paying the cost of resupplying, replacing or repairing the goods in respect of which the breach occurred, or supplying again or paying the cost of supplying again, the Software or the Services in respect of which the breach occurred. 

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13.3. Except for liability in relation to breach of any Non-excludable Condition Shippit excludes all liability to Customer for lost profits, lost revenue, lost savings, lost business, loss of opportunity, lost data or any consequential or indirect loss arising out of, or in connection with, any Software or Services, and any claims by any third person (including any sub-licensee of Customer or any customer of Customer), or the Agreement, even if:

• (a) Shippit knew that loss was possible; or
• (b) the loss was otherwise foreseeable.

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13.4. Subject to the limitations of liability in the Agreement, each Party (Indemnifying Party) indemnifies the other Party and its directors, officers, employees and agents from and against all losses, damages, liabilities, claims and expenses incurred (including but not limited to reasonable legal costs) arising as a result of:

• (a) any negligent or malicious act or omission of the Indemnifying Party or any of its employees, consultants, contractors, agents or representatives relating to the Agreement; and
• (b) any claim by any third party (including any customer or associate of the Indemnifying Party) arising from the manner in which the licensing of the Software or the supply of Services in accordance with the Agreement affects that third party.

14.1. The Agreement starts on the Commencement Date and will continue until: 

• (a) either party gives notice in accordance with clause 14.2; or
• (b) a party otherwise exercises an explicit termination right under the Agreement. 

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14.2. Either Party may terminate the Agreement effective at the end of the Initial Term and, thereafter, the end of any Renewal Term by giving notice in writing to the other Party not later than 20 Business Days prior to the end of the respective term.

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14.3. Without limiting the generality of any other clause in the Agreement, a Party may terminate the Agreement immediately by notice in writing if:

• (a) the other Party is in breach of any term of the Agreement and such breach is not remedied within 30 days of written notice requiring it to do so;
• (b) a Party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or
• (c) a Party ceases or threatens to cease conducting its business in the normal manner.

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14.4. Without prejudice to its termination rights under the Agreement, Shippit may suspend Customer’s right to use the Software, or the supply of any or all Services to Customer, and Customer acknowledges that Shippit will have no liability to Customer (under this Agreement or otherwise) arising from such suspension if:

• (a) Customer fails to pay any correctly issued invoice by its due date; 
• (b) Shippit reasonably considers such suspension to be necessary to comply with any law or direction of a regulator or relevant authority; or
• (c) Customer is in breach of any term of the Agreement for five Business Days after receiving a notice from Shippit to remedy the breach.

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14.5. The parties acknowledge that clauses 7, 9, 10 and 13 and each clause required to make them effective continue after termination of the Agreement.

15.1. Shippit may charge interest to Customer on any late payment by Customer at a rate equivalent to the prime overdraft rate for the time being applied by the Commonwealth Bank of Australia (Bank) for overdraft limits greater than $100,000 (or if the Bank ceases to quote that rate, the rate as in the Bank’s opinion is equivalent for similar overdraft accommodation extended to prime borrowers) plus 2% per annum from the date the payment was due, such amount to be calculated on a daily basis.

16.1. Neither Party will be liable for any delay or failure to perform its obligations pursuant to the Agreement if such delay is directly due to Force Majeure.

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16.2. If a delay or failure of a Party to perform its obligations is directly due to Force Majeure, the performance of that Party’s obligations will be suspended. 

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16.3. If a delay or failure by the Party to perform its obligations due to Force Majeure exceeds sixty (60) days, either Party may immediately terminate the Agreement on providing notice in writing to the other Party.

17.1. Shippit may, at its discretion, subcontract any of its obligations under the Agreement, or engage any third party to perform its obligations.

18.1. The Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

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18.2. The provisions of this Agreement may not be varied except by agreement in writing signed by the Parties.

19.1. Any notice required under the Agreement to be supplied in writing must be delivered to the contract manager of the other Party:

• (a) by hand, in which case the notice will be taken to be received at the time it is delivered;
• (b) by express international courier, in which case the notice will be taken to be received 10 business days after it is sent; or
• (c) by email or other electronic means agreed between the Parties from time to time, in which case the notice will be taken to be received on receipt of a return message from the recipient acknowledging delivery (which receipt must be sent immediately on receiving the notice, and must not be knowingly withheld).

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19.2. The parties acknowledge that any requirement under the Agreement that a notice be given ‘in writing’ may be satisfied by a document delivered by electronic means, provided each Party has agreed in advance to the use of the specific electronic means being used.

20.1. Any dispute arising in connection with the Agreement must be dealt with in accordance with this clause before a Party may commence any form of litigation or legal proceedings.

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20.2. A Party must give notice in writing to the other Party of the matter in dispute, and nature of the dispute.  Within 5 days of issuing such notice:

• (a) each Party must appoint a representative with full decision making authority to negotiate on behalf of, and bind, their Party to resolution of the dispute, and those representatives must meet personally (or via videoconference or other direct medium as both Parties agree) to consider and seek to resolve the dispute;
• (b) if the respective representatives are unable to resolve the dispute within 5 days of their first meeting (or other such period as is agreed between the Parties), refer the dispute to the respective chief executive officers (or equivalent) of each Party, who must meet personally (or via videoconference or other direct medium as both Parties agree) within 7 days to discuss and seek to resolve the dispute; and
• (c) if the respective chief executive officers are unable to resolve the dispute within 7 days of their first meeting, either Party is free to commence such process, including alternative dispute resolution or litigation, as they see fit to resolve the dispute.

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20.3. Nothing in this clause will prevent a Party from seeking urgent equitable relief before an appropriate court.

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20.4. During the continuance of any dispute, each Party must continue to perform its obligations under the Agreement.

21.1. Customer may not assign or transfer part or all of the Agreement without the prior approval of Shippit (which must not be unreasonably withheld).

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21.2. Shippit may assign or novate part or all of the Agreement to any party at any time, including (but not limited to) by replacing Shippit with a Related Entity, and Customer:

• (a) hereby acknowledges its consent to such assignment or novation to any party; and
• (b) agrees to do all things reasonably required by Shippit, including executing an appropriate deed of assignment or novation, as Shippit reasonably requires to give full effect to such assignment or novation.

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21.3. A party does not waive any right or relieve the other party of any obligation under the Agreement unless explicitly stated by the waiving party in writing.

22.1. If any provision of the Agreement is held invalid, unenforceable or illegal for any reason, the Agreement will remain otherwise in full force apart from such provisions which will be deemed deleted.

1. Software
   
   • 1.1. The Software is the NowGo Routing Engine, an online tool to manage runs for vehicles and to optimise their utilisation. The tool is composed of a number of modules within a platform layer which is accessible through an API, a management dashboard and a mobile app.
   • 1.2. The tool is composed of multiple modules accessible through the NowGo API at https://docs.nowgo.io/.
2. Licence to use SOFTWARE
   
   • 2.1. Subject to payment of the Licence Fee, Shippit grants a non-exclusive licence to Customer to use the Software during the Term in accordance with the Agreement.  
   • 2.2. The licence granted to Licence may not be transferred to any party without Shippit’s prior written consent, and Customer acknowledges that Shippit may immediately terminate this agreement without liability to Customer if any unauthorised transfer of the licence is made or attempted to be made.
   • 2.3. Shippit will make reasonable efforts to make the Software available for use by the Customer at all times, but Customer acknowledges Shippit will not be responsible for the Software not being available in circumstances where:
     
     • (a) there is a Scheduled Interruption or Emergency Interruption; or
     • (b) any event beyond the reasonable control of Shippit disrupts the availability of the Software, including without limitation any interruption to any third party service used by Shippit in the supply of the Software.

3. SOFTWARE Output
   
   • 3.1. During the Term:
     
     • (a) the output of the Software will be available for use by Customer as Customer deems fit; and
     • (b) subject to clause 9 of the Terms, the output of the Software will be available for use by Shippit for the purposes of improving the Software in particular to enhance the functionality to provide for predictive outcomes, identification of risks and opportunities, and producing industry specific reports.
   • 3.2. Customer acknowledges that it uses the output of the Software at its own risk, and Customer indemnifies Shippit against any claim, loss, cost or liability suffered by Customer or any other person arising from the use or reliance by Customer or any other person on any output of the Software.

4. Reports
   
   • 4.1. Shippit may access the Software at any time to extract data on the Jobs processed by the Software during any period.
   • 4.2. Shippit will use the data extracted pursuant to clause 4.1 of this Schedule 1 to produce the monthly invoices under clause 5.3 of the Terms and to improve the Software.
5. Excessive Use
   
   • 5.1. Customer must not engage in excessive use of any of the following components of the Software or the Services:
     
     • (a) administrator accounts;
     • (b) dispatch accounts;
     • (c) channels;
     • (d) open Jobs, Stops or plans;
     • (e) plans;
     • (f) Stops during a Driver shift;
     • (g) sequences – sequence events triggered, sequences per day, or concurrent sequences
     • (h) solves – solve events triggered, solves (full or allocated) per day, concurrent solves (full or allocated), or duration of a solve
     • (i) web hooks;
     • (j) frequency of estimated time of arrival web hook; 
     • (k) web-views;
     • (l) unique workflows; or
     • (m) unique actions.
   • 5.2. If Shippit reasonably determines that Customer is engaging in excessive use of any of the above components, then Shippit has the sole right and discretion to:
     
     • (a) set a limit for Customer’s use of that component; and
     • (b) if Customer’s use of that component exceeds the limit:
       
       • (i) charge Customer for any use of that component beyond the limit; or
       • (ii) suspend Customer’s use of that component for the remainder of the period applicable to the limit,
     • provided that Shippit must provide notice to Customer of the applicable limit and fee as soon as reasonably practicable.

1. Services
   
   • 1.1. On and from the Commencement Date, or as soon thereafter as is commercially practical, Shippit will make reasonable efforts to provide the Services in accordance with the Agreement, including:
     
     • (a) provisioning of the Software;
     • (b) hosting and Support services; and
     • (c) additional services, including customisation, onboarding and implementation, where specified in the Subscription Agreement.
   • 1.2. During the Term of the Agreement, Shippit will provide the Services with all due care and skill.

2. Service Level Targets
   
   • 2.1. Subject to clause 2.2 of this Schedule 2, Shippit will make reasonable efforts to attain the Service Level Targets.
   • 2.2. Customer acknowledges that Shippit will not have failed to attain a Service Level Target to the extent Shippit is disrupted or prevented from achieving such Service Level Target by:
     
     • (a) an act or omission of Customer or any third party acting under the direction of Customer (including Customer’s subcontractors);
     • (b) any failure, defect or problem in any system or network that is not within the immediate control of Shippit, including any third party infrastructure or service on which any part of the Services is dependant; or
     • (c) any Scheduled Interruption or Emergency Interruption affecting the Services.

3. Software Uptime Target
   
   • 3.1. During any month, Shippit will, in accordance with the Agreement, maintain availability of the Software for the times specified in the Availability Target Table.
   • 3.2. If, during a month, Shippit fails to maintain availability of the Software for the time specified for Key Hours in the Availability Target Table, then the Licence Fee for that month will be discounted by a percentage calculated as follows:‍
   • Discount % = (Availability Target – Availability) x percentage of Drivers affected by the failure where:
   • where:‍
     
     • (a) Availability Target means the time specified for Key Hours in the Availability Target Table; and‍
     • (b) Availability has the meaning given in Item 14 of the Subscription Agreement, adjusted to include only Key Hours during the month.