Welcome to FreshTrack Systems! We are FRESHTRACK SYSTEMS PTY LTD, an Australian business with ABN 13 146 508 590 (‘we’, ‘our’ or ‘us’). FreshTrack Systems provides cloud-based traceability and management software known as FreshTrack Cloud accessible via an internet web browser, desktop integrated hardware, and/or via our mobile apps available on the Apple Store and the Google Play Store (Software).

These Terms of Service, Terms and Conditions (Terms) govern your access to the Software and us providing you any other goods and services as set out in these Terms (Subscription). You can view the most updated version of our Terms at https://freshtrack.com/terms-and-conditions (our Website). Please read these Terms carefully before agreeing to proceed with your Subscription.

These Terms are divided into three parts:

Please note that for Subscribers, your Subscription will continue to renew indefinitely, and you will continue to incur Subscription Fees, unless you notify us that you want to cancel your Subscription in accordance with clause 12. Please ensure you contact us if you want to cancel your Subscription.

If you access or download the Software from the Apple App Store or Google Play Store, you agree to Apple’s Licensed Application End User License Agreement and any Usage Rules set forth in the App Store Terms of Service or the Android, Google Inc. Terms and Conditions including the License Agreement and Terms of Application.

a) In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.
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b) By paying your Subscription, ticking the tick box when accessing the Software, checking the “I accept the Terms of Service” check box on our Website when logging in, or otherwise accepting the benefit of any part of your Subscription, you agree to be bound by these Terms which form a binding contractual agreement between you or the company you represent and are acquiring the Subscription on behalf of and us.
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c) We may change these Terms at any time by notifying you, and your continued use of the Software following such an update will represent an agreement by you to be bound by the Terms as amended.

a) By accepting these Terms, you represent and warrant that:
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b) The Software is not intended for unsupervised use by any person under the age of 18 years old or any person who has previously been suspended or prohibited from using the Software. By using the Software, you represent and warrant that you are either:

c) Please do not access the Software if you are under the age of 18 years old and do not have your parent or guardian’s consent, if you are under 16 or if you have previously been suspended or prohibited from using the Software.

d) If you are signing up not as an individual but on behalf of your company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “your” means the Represented Entity and you are binding the Represented Entity to these Terms. If you are accepting these Terms and using our Software on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.

a) Your Subscription and these Terms commence on the date you agree to be bound by these Terms (as set out at the beginning of these Terms) and continues for the Subscription Period and any Renewal Periods applicable, unless terminated earlier in accordance with clause 12.

b) Subject to clause 3(c), upon expiration of the Subscription Period, these Terms will automatically and indefinitely renew on an ongoing basis for a period equal to the Subscription Period (Renewal Period).

c) These Terms will not automatically renew on expiry of the Subscription or Renewal Period (Renewal Date), if either party provides a written cancellation notice at least 30 days prior to the Renewal Date.

d) At least 30 days prior to the expiry of the Renewal Date, we will provide you with advanced written notice of these Terms renewing and any applicable changes to the Subscription Fees or these Terms (Renewal Notice).

a) Your Subscription is for the package selected by you, as outlined within the subscription section of our client portal and agreed between us upon acceptance of these terms (Subscription Tier).

b) We will provide you, to the extent described in your Subscription Tier, access to the Software for the Users.

c) Your Subscription includes:

          (i)  the benefits and limitations of your Subscription Tier as set out on our Website,

          or as otherwise communicated to you when you subscribe for your Subscription

          (and as amended from time to time by notice to you);

          (ii)  access to a Subscription portal, that allows you to view the benefits and

          limitations of your Subscription Tier;

          (iii) if applicable, any Customisations we have made to your subscription pursuant to

          clause 6.6; and

          (iv)  if applicable, any Changes we have made to your Subscription pursuant to

          clause 6.7, each, a ‘Subscription Inclusion’.

d) You may view your specific Subscription Tier, as well as your Subscription Inclusions by logging into the FreshTrack Systems billing portal via this link,  https://portal.freshtrack.com and navigating to the subscription area (Client-Portal).

a) (Accounts) To use the Software, you will be required to sign-up, register and receive an account through the Website (an Account).

b) (User Access) Once you register an Account, FreshTrack Systems will create an Account for the administrator User of the Software upon the request of the Subscriber (Tennant Administrator). Any subsequent User Accounts (Subsequent Account) can be created within the Software by the Tennant Administrator. Each User will be required to agree to Parts B and C of these Terms before being provided access to Software.

c) (Provide Information) As part of the Account registration process and as part of your continued use of the Website, you may be required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, photos and video, audio files, profile information, payment details, ratings and reviews, verified identifications, verified certifications and authentication, and other information as determined by us from time to time.

d) (Warranty) You warrant that any information you give to us in the course of completing the Account registration process is accurate, honest, correct and up-to-date.

e) (Acceptance) Upon the completion of the Account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Website and provide you with an Account.

You acknowledge and agree that:

a) any information provided to you as part of or in connection with the Software or the services is general in nature, may not be suitable for your circumstances and does not constitute financial, legal or any other kind of professional advice; and

b) it is your responsibility to comply with applicable Laws relevant to your business, including, but not limited to, industrial relations Laws and privacy Laws.

a) While your Subscription is maintained, we grant to you a non-exclusive, non-transferable licence to use the Software and Documentation in accordance with your Subscription Limits. If your Subscription Tier on our Client-Portal does not specify any applicable Subscription Limits, your licence to use the Software under this clause will be limited to the Subscription Limit that corresponds with the Subscription Fees you have paid under clause 7 of these Terms.

b) We may from time to time, in our absolute discretion, release enhancements to the Software, meaning an upgraded, improved, modified or new versions of the Software (Enhancements). Any Enhancements to the Software will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime.

c) We may change any features of the Software at any time on notice to you.

We will provide general support where reasonably necessary to resolve technical issues with the Software (Support Services). Unless otherwise agreed in writing:

a) we will take reasonable steps to provide Support Services where necessary in accordance with the Support Services service levels set out on our Website, accessible at: https://freshtrack.com/support-plans (Service Levels) (you must first endeavour to resolve any issues with the Software internally and we will not assist with issues that are beyond our reasonable control or form part of your business standard operating procedures);

b) we will use our best endeavours to respond to requests for Support Services and you acknowledge that we may not be available 24/7 or respond within a particular time frame;

c) you are responsible for all internal administration and managing access, including storing back-up passwords and assisting your Users to access and use the Software; and

d) you will not have any claim for delay to your access to the Software due to any failure or delay in Support Services or a failure to comply with any of the Service Levels.

a) Your Subscription Tier determines the inclusions contained within the Service Levels that FreshTrack Systems will provide to you and all Users (Service Level Inclusions). All Service Level Inclusions are:

          (i) set out on the Service Levels section of our Website, which you can access via this

          link: https://freshtrack.com/support-plans; or

          (ii) will be otherwise communicated to you when you subscribe for your

          Subscription.

b) FreshTrack Systems reserves the right to, from time to time, to change the Service Level Inclusions, by providing you with reasonable notice before implementing any such changes.

c) You acknowledge and agree that Service Levels do not apply to any performance or availability issues arising from:

          (i)   any breach of these Terms;

          (ii) factors outside our reasonable control (for example, natural disaster, war, acts of

          terrorism, riots, government action, or a network or device failure external to our

          data centres, including at your site or between your site and our data centre);

          (iii)  any information technology systems, hardware or software not provided by

          FreshTrack Systems;

           (iv)  your utilisation of the Software in a manner contrary to FreshTrack System’s

           advice on utilisation of the Software (including any policies or guidelines provided

           to you by FreshTrack Systems);

          (v)  during or with respect to a preview, pre-release, beta test or trial versions of the

          Software (including any particular feature);

          (vi)  you or a User’s action or inaction to a reasonable request from FreshTrack

          Systems in relation to an issue; or

           (vii)  you or a User’s failure to maintain and follow appropriate security practices.

d) FreshTrack Systems cannot guarantee that all issues, problems or security threats will be identified.

e) You acknowledge and agree that the Service Levels provided by FreshTrack Systems are indicative only and that you will not be entitled to any refund, fee or other recourse as a result of FreshTrack Systems failure to meet any of the Service Levels listed on our Website.

We will store User Data you upload to the Software using a third party hosting service selected by us (Hosting Services), subject to the following terms:

a) (hosting location) You acknowledge and agree that we may use storage servers to host the Software through cloud-based services, and potentially other locations outside Australia.

b) (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Services will be free from errors or defects or that User Data will be accessible or available at all times.

c) (security) We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

d) (backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.

You agree to:

a) provide us with all documentation, information and assistance reasonably required by us to provide you with the Software; and

b) provide us with access to any third party or other accounts used by you (including log-in details and passwords), as is reasonably required by us to provide you with the Software.

a) You warrant that all information, documentation and other Material you provide to us for the purpose of receiving the Software is complete, accurate and up-to-date.

b) You release us from all liability in relation to any loss or damage arising out of or in connection with the Software, to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided by you being incomplete, inaccurate or out-of-date.

a) You must, and must ensure that all Users, comply with these Terms at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.

b) You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:

          (i)  upload sensitive information or commercial secrets using the Software;

          (ii)  upload any inappropriate, offensive, illicit, illegal, pornographic, sexist,

          homophobic or racist material using the Software;

           (iii)  use the Software for any purpose other than for the purpose for which it was

          designed, including you must not use the Software in a manner that is illegal or

          fraudulent or facilitates illegal or fraudulent activity (including requesting or

          accepting a job which includes illegal activities or purposes;

          (iv)  upload any material that is owned or copyrighted by a third party;

          (v)  make copies of the Documentation or the Software;

          (vi)  adapt, modify or tamper in any way with the Software;

          (vii)  remove or alter any copyright, trade mark or other notice on or forming part of

          the Software or Documentation;

          (viii)  act in any way that may harm our reputation or that of associated or interested

          parties or do anything at all contrary to the interests of us or the Software;

          (ix)  use the Software in a way which infringes the Intellectual Property Rights of any

          third party;

          (x)  create derivative works from or translate the Software or Documentation;

          (xi) publish or otherwise communicate the Software or Documentation to the public,

          including by making it available online or sharing it with third parties;

          (xii)  integrate the Software with third party data or Software, or make additions or

          changes to the Software, (including by incorporating APIs into the Software) other

          than integrating in accordance with any Documentation or instructions provided by

          us in writing;

          (xiii)  intimidate, harass, impersonate, stalk, threaten, bully or endanger any other

          User or distribute unsolicited commercial content, junk mail, spam, bulk content or

          harassment in connection with the Software;

          (xiv) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or

          Documentation to any third party, other than granting a User access as permitted

          under these Terms;

          (xv) decompile or reverse engineer the Software or any part of it, or otherwise

          attempt to derive its source code;

          (xvi)  share your Account or Account information, including log in details or

          passwords, with any other person and that any use of your Account by any person

          who is not the account holder is strictly prohibited. You must immediately notify us

          of any unauthorised use of your Account, password or email, or any other breach or

          potential breach of the Software’s security;

          (xvii)  use the Software for any purpose other than for the purpose for which it was

          designed, including you must not use the Software in a manner that is illegal or

          fraudulent or facilitates illegal or fraudulent activity (including requesting or

          accepting a job which includes illegal activities or purposes);

          (xviii)  make any automated use of the Software and you must not copy, reproduce,

          translate, adapt, vary or modify the Software without our express written consent;

          (xix)  attempt to circumvent any technological protection mechanism or other

          security feature of the Software; or

          (xx)  permit any use of the Software that does not fall within the Subscription Limits

          of your Subscription Tier.

c) If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately using via email at helpdesk@freshtrack.com or by using the contact details on our Website: https://freshtrack.com.

d) You agree, and you must ensure that all Users agree:

           (i)  to comply with each of your obligations in these Terms;

           (ii)  to sign up for an Account in order for you to use the Software;

           (iii)  that Tennant Administrators are solely responsible for the creation of any

           Subsequent Accounts that are required to be registered in order for Users to access

           the Software;

           (iv)  that information given to you through the Software, by us or another User, is

           general in nature and we take no responsibility for anything caused by any actions

           you take in reliance on that information; and

          (v)  that we may cancel your, or any User’s, Account at any time if we consider, in our

          absolute discretion, that you or they are in breach of, or are likely to breach, this

          clause 6.

a) Subject to clause 17, you agree to retain records of any information that you would be reasonably required to maintain for the purposes of managing your business (Retainable Information).

b) You acknowledge and agree that FreshTrack Systems will have no liability for any damage, loss or expense suffered by you in connection with your failure to retain any Retainable Information and will indemnify FreshTrack Systems for any such damage, loss or expense.

a) The Subscriber must, and must ensure that all Users:

          (i)  comply with these Terms (including Part B of these Terms) at all times; and

          (ii)  notify FreshTrack Systems without delay whenever it becomes aware of any case

          of a breach of this clause 6 or otherwise any illegal or unauthorised use of the

          Software.

b) The Subscriber acknowledges and agrees that FreshTrack Systems will have no liability for any act of a User or for damage, loss or expense suffered by a User in connection with the use of the Software and will indemnify FreshTrack Systems for any such damage, loss or expense.

a) From time to time as part of this agreement, you may request specific customisations to the Software or specific features within the Software (Customisations).

b) Upon receiving a request for Customisations, FreshTrack Systems will provide a quote to perform the Customisations with a proposed scope, including an estimation of the customisation fees for approval by you (Customisation Fee).

c) If you approve the proposed scope, FreshTrack Systems will provide the Customisations in accordance with the agreed scope. Any changes to the scope of the Customisations will attract further fees and FreshTrack Systems reserves the right to adjust the Customisation Fee for any such changes.

d) You acknowledge and agree that:

          (i)  FreshTrack Systems does not guarantee or warrant that any Customisations are

          possible or will function with your existing IT systems;

          (ii) FreshTrack Systems will not be liable for the functionality of the Software if any

          Customisations requested by you require integration of the Software with any third

          party software or where any failure is caused or contributed by any third party

          software or hardware; and

          (iii)  the Customisation Fees set out in the proposed scope are indicative only and

          the Customisation Fees to be paid by you for any particular Customisation will

          depend on the time and resources spent by FreshTrack Systems in implementing the

          Customisation in accordance with the agreed scope.

e) Any Customisations to the Software (including Customisations or changes made to the Software to enable integration of the Software with your IT systems) are Software Content and vest in FreshTrack Systems in accordance with clause 17.1.

a) Where you request changes or additions to the Software that fall outside the scope of the Subscription Tier details referred to on our Website (Changes), Subscribers must pay a “add-on fee”, in the amounts specified on the FreshTrack Systems Client-Portal or as otherwise reasonably determined by FreshTrack Systems and notified to you (Add-On Fee).

b) All payment of Add-on Fees must be made via the FreshTrack Systems Client-Portal, which can be access here: https://portal.freshtrack.com

c) FreshTrack Systems may also determine any other terms relating to the Add-On Fee, including the timing for which the Subscriber will be invoiced for the Add-On Fee (Add-On Fee Terms).

d) FreshTrack Systems will only be required to preform Changes, if:

          (i)  both parties agree in writing for FreshTrack Systems to perform the Changes; and

          (ii)  the Subscriber confirms in writing that they accept the relevant Add-On Fee and

          the Add-On Fee Terms.

e) The same standards, warranties, and indemnities apply to the Changes as apply to the original Terms.

f) For the avoidance of doubt, any change to the Software that is reasonably considered by FreshTrack Systems to be a change in the scope of the Subscription Tier details referred to on our Website, will be considered a Change.

a) You must pay subscription fees to us in the amounts specified in our Client-Portal for your Subscription Tier, or as otherwise agreed in writing (Subscription Fees).

b) All Subscription Fees must be paid in advance and are non-refundable for change of mind.

c) All Subscription Fees must be paid via:

          (i)    credit card;

          (ii)   debit card;

          (iii)  direct debit;

          (iv)  Electronic Fund Transfer (EFT); or

          (v)  any other method of payment deemed acceptable by FreshTrack Systems from

          time to time.

d) Unless otherwise agreed in writing, the Subscription Fees are due and payable at the times specified in the Client-Portal (Billing Cycle) on a recurring basis for the duration of your Subscription, with the first payment being due on the first day of the Subscription Period (or immediately after the expiry of any applicable Free Trial Period) and at the beginning of every Billing Cycle thereafter.

e) FreshTrack Systems reserves the right to, from time to time, to change the Subscription Fees. We will provide you with reasonable notice before implementing any such changes and you may cancel your Subscription, in accordance with clause 12, if you do not agree to the changed fees.

a) By paying the Subscription Fees for a specific Renewal Period listed on the Website of FreshTrack Systems (Qualifying Period), you may access to a free trial period of the Software on the terms set out on the Website (Free Trial Period).

b) Eligibility for the Free Trial Period is restricted to new Subscribers who have not previously created an Account to access the Software.

c) No payments will be due during any Free Trial Period and your next payment will be due immediately after the expiry of the Free Trial Period.

d) You accept and acknowledge that offer of this Free Trial Period is entirely discretionary and that we reserve the right to withdraw, or vary this offer at any time.

Subject to clauses 7.4 and 7.5:

a) Your Subscription will continue to renew on an automatic indefinite basis unless you notify us that you wish to cancel in accordance with this clause 12.

b) While your Subscription is maintained, your Subscription Fees will continue to be debited at the beginning of each Renewal Period from the payment method you nominated when you registered for an Account.

c) By signing up for a recurring Subscription, you acknowledge and agree that your Subscription has an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to your cancellation of your Subscription.

a)  If you fail to cancel your Subscription prior to a Renewal Period and you are charged recurring charges, you have up to 10 business days from the date of that renewal to cancel your Subscription by contacting hello+billing@freshtrack.com (Grace Period).

b) If you cancel your Subscription within the Grace Period, please contact us via hello+billing@freshtrack.com to request a refund for any recurring fees charged to you during the Grace Period.

a) We may, from time to time, change our Subscription Fees and provide you with 10 business days’ notice prior to the changes. During this time, you have the opportunity to cancel your Subscription with us. If you do not cancel your Subscription before the new Subscription Fees take effect, the Grace Period in clause 7.4 will apply.

a) If you fail to pay the Fees in accordance with clause 7, we will attempt to retake payment from your nominated payment method each day, for the following 5 days (Payment Attempt).

b) All Payment Attempts will be accompanied by an email notifying you of your failure to pay the Fees.

c) After 6 Payment Attempts, FreshTrack Systems will classify your Account as being in default (Account Default).

d) After 12 days of Account Default, we will advise that access to your Account will be suspended if payment is not received within 3 more days (Account Suspension)

If payment is not received after 14 days of Account Suspension, we reserve the right to terminate or cancel these Terms in accordance with clause 12.

You acknowledge and agree that, if you and FreshTrack Systems have entered into to an additional agreement for the supply of goods and services (including an agreement for the supply and installation of hardware) (Related Agreement), if you fail to make the required payment or otherwise breach any of your obligations under a Related Agreement, FreshTrack Systems reserves the right to suspend your access to the Software under this agreement until the relevant payment is received or the relevant breach is rectified.

Unless otherwise indicated, the Fees are exclusive of GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.

We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

a) We may use third-party online payment partners (Online Payment Partner) to collect Subscription Fees.

b) Provided that we have notified you of such Third Party Terms and provided the Client with a copy of those terms, you acknowledge agree that:

          (i)  the processing of payments by the Online Payment Partner will be, in addition to

          these Terms, be subject to the terms, conditions and privacy policies of the Online

          Payment Partner referred to in clause 7.10(c);

          (ii)  you release us and our Personnel in respect of all liability for loss, damage or

          injury which may be suffered by any person arising from any act or omission of the

          Online Payment Partner, including any issue with security or performance of the

          Online Payment Partner’s platform or any error or mistake in processing your

          payment; and

          (iii)  we reserve the right to correct, or to instruct our Online Payment Partner to

          correct, any errors or mistakes in collecting your payment.

c) The terms and conditions of the third party payment providers referred to in clause 7.10 can be accessed via the following links:

(i) GoCardLess (Direct Debit Service Agreement) [https://freshtrack.com/gocardless/direct-debit-serviceagreement]; and

(ii) eWay: [https://freshtrack.com/eway-terms].

a) If we are required to acquire goods or services supplied by a third party, you may be subject to the terms and conditions of that third party (‘Third Party Terms’).

b) Provided that we have notified you of such Third Party Terms and provided you with a copy of those terms, you agree to any Third Party Terms applicable to any goods or services supplied by a third party that we acquire as part of providing the Software to you and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.

c) The Third Party Terms of current third parties we engage can be accessed via the following links:

          (i)   AWS [https://freshtrack.com/terms-aws];

          (iii)  Xero [https://freshtrack.com/terms-xero]; and

          (iv)  Intercom: [https://freshtrack.com/terms-intercom].

a) You acknowledge and agree that issues can arise when data is uploaded to software, when data is transferred between different software programs, and when different software programs are integrated together. We cannot guarantee that integration processes between the Software and other software programs will be free from errors, defects or delay.

b) You agree that we will not be liable for the functionality of any third party goods or services, including any third party software, or for the functionality of the Software if it is integrated with third party software, changed or augmented, including additions or changes being made to the Software code such as Customisations made by FreshTrack Systems, and including by incorporating APIs into the Software.

c) If you add third party software or software code to the Software, integrate the Software with third party software, or make any other changes to the Software, including the Software code (User Software Changes), then:

          (i) you acknowledge and agree that User Software Changes can have adverse effects

          on the Software, including the Software;

          (ii) you will indemnify us in relation to any loss or damage that arises in connection

          with the User Software Changes;

          (iii) we will not be liable for any failure in the Software, to the extent such failure is

          caused or contributed to by a User Software Change;

          (iv) we may require you to change or remove User Software Changes, at our

          discretion, and if we do so, you must act promptly;

          (v) we may suspend your access to the Software until you have changed or removed

          User Software Change; and/or

          (vi) we may change or remove any User Software Change, in our absolute discretion.

          We will not be liable for loss of data or any other loss or damage you may suffer in

          relation to our amendment to, or removal of, any User Software Change.

a) Except as contemplated by these Terms, a party must not, and must not permit any of its Personnel, use or disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.

b) Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information.

c) The notifying party will investigate each potential, actual or suspected breach of confidentiality and assist the other party in connection with any related investigation.

a) We collect personal information about you, and other individuals you may engage whilst you access the Software (Additional Individuals), in the course of providing you with the Software, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy which can be found at https://freshtrack.com/privacy-policy

b) Our Privacy Policy contains more information about how we use, disclose and store your personal information and details how you can access and correct your personal information.

c) You warrant that you have informed any Additional Individuals that we will collect their personal and that you have their express consent for us to collect this personal information from you.

d) By agreeing to these Terms, you agree to our handling of personal information in accordance with our Privacy Policy.

a) You may notify us that you would like to upgrade or downgrade your Subscription Tier or your Subscription Limits at any time. If you do, we will:

          (i)  take reasonable steps to promptly provide you with access to the new

          Subscription Tier or the additional Subscription Limits; and

          (ii)  upon providing such access, apply the new, relevant Subscription Fees, to the

          Renewal Period immediately following the period in which your access to the new

          Subscription Tier was provided, and you will be charged at the new Subscription Fee

          in every subsequent Renewal Period.

b) If you choose to downgrade your Subscription or Subscription Limits, access to the new Subscription Tier or Subscription Limits and the new Subscription Fees will kick in at the start of the next Renewal Period, unless we notify you otherwise. We generally do not pro-rate downgrades in between Renewal Periods, however we reserve the right to from time to time.

c) If you choose to downgrade your Subscription, you acknowledge and agree we are not liable, and you release us from all claims in relation to, any loss of content, features, or capacity, including any User Data.

a) The Subscriber may cancel or terminate their Subscription at any time during the Free Trial Period by providing 5 business days’ notice to FreshTrack Systems.

b) Outside the Free Trial Period, either party may cancel or terminate your Subscription for convenience by providing 30 days’ notice to the other party.

c) If you wish to cancel or terminate your Subscription for convenience by following the process set out in clause 12, notice must be given to us by contacting hello+billing@freshtrack.com.au

a) Either party may cancel your Subscription immediately by written notice if there has been a Breach of these Terms.

b) A “Breach” of these Terms means:

          (i) a party (Notifying Party) considers the other party (or any of its Personnel or

          Users) is in breach of these Terms and notifies the other party;

          (ii) the other party is given 10 business days to rectify the breach; and

          (iii) the breach has not been rectified within 10 business days or another period

          agreed between the parties in writing.

Upon termination of these Terms:

a) you will no longer have access to the Software, your Account or your User Data and we will have no responsibility to store or otherwise retain any User Data (and you release us in respect of any loss or damage which may arise out of us not retaining any User Data beyond that point);

b) unless agreed in writing, any Subscription Fees that would otherwise have been payable after termination for the remainder of the relevant Renewal Period will remain payable and, to the maximum extent permitted by law, no Subscription Fees already paid will be refundable; and

c) each party must comply with all obligations that are by their nature intended to survive the end of this agreement, including without limitation clauses 8, 9 and 17.

a) This Part B applies to any Users of the Software. You agree to, and will be deemed to have accepted, this Part B when you access the Software.

b) By accessing the Software, you irrevocably consent to the terms of this Part B and represent and warrant that you will comply with the scope and restrictions of the Software provided under this Part B. If you do not accept Part B, you must not access, use or otherwise view the Software.

c) Part B commences on the date the Software is provided to you and will end when written notice is provided to you.

a) You are granted a revocable, worldwide, royalty-free licence to use the Software for the Purpose.

b) You must only use the Software:

          (i)    in accordance with the limitations of the Purpose;

          (ii)   in a manner that is consistent and compliant with clause 14.2; and

          (iii)  in compliance with any other restrictions notified to you in writing by the

          Subscriber or FreshTrack Systems from time to time.

Except in accordance with clause 14.1(b), you must not, without prior written approval from the Subscriber or FreshTrack Systems in their absolute discretion:

a) make copies of the documentation or the Software;
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b) provide the Software to any third party;
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c) adapt, modify or tamper in any way with the Software, other than within the approved scope of use of the Software;
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d) remove or alter any copyright, trade mark or other notice on or forming part of the Software or documentation;
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e) create derivative works from or translate the Software or documentation, other than for your own personal use only;
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f) publish or otherwise communicate the Software or documentation to the public, including by making it available online or sharing it with third parties;
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g) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or documentation to any third party;
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h) decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;
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i) attempt to circumvent any technological protection mechanism or other security feature of the Software.

You acknowledge and agree that:

a) in order to use all the features of the Software, each User must access the Software from a compatible device and may require additional hardware (Compatible Devices);

b) certain features within the Software are only compatible with certain devices or combinations of Compatible Devices (e.g. devices with certain technical capabilities);

c) it is each User’s responsibility to ensure that they have a Compatible Device which will enable the User to access the Software; and

d) FreshTrack Systems will not provide any refunds of any Fees where a User has failed to ensure that they have access to a Compatible Device from which to access the Software or access any particular feature within the Software.

a) FreshTrack Systems does not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information, your computer systems, mobile phones or other electronic devices arising in connection with use of the Software.

b) You must take your own precautions to ensure that the process which you employ for accessing the Software does not expose you to the risk of hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

c) To the maximum extent permitted by applicable law and subject to clause 15(d) below, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to amount paid by the Subscriber to FreshTrack Systems in the 3 months preceding the date of the event giving rise to the relevant liability.

d) Clause 15(c) does not apply to the Subscriber or User’s liability in respect of loss or damage sustained by FreshTrack Systems, arising from the Subscriber or User’s breach of clause 14.

e) All express or implied representations and warranties given by FreshTrack Systems or its Personnel are, to the maximum extent permitted by applicable law, excluded. Where any law implies a condition, warranty or guarantee into this Part B which may not lawfully be excluded, then to the maximum extent permitted by applicable law, our (and our Personnel’s) liability for breach of that non-excludable condition, warranty or guarantee will, at our option, be limited to:

          (i) in the case of goods, their replacement or the supply of equivalent goods or their

          repair; and

          (ii) in the case of services, the supply of the services again, or the payment of the

          cost of having them supplied again.

f) To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by FreshTrack Systems, except:

          (i) in relation to a party’s liability for fraud, personal injury, death or loss or damage

          to tangible property; or

          (ii) to the extent this liability cannot be excluded under the Competition and

          Consumer Act 2010 (Cth).

This Part B will be automatically terminated, and your licence to the Software will be immediately revoked, if Part A of these Terms expires or is terminated.

FreshTrack Systems or the Subscriber (or both) may terminate this agreement immediately by notice to you (as an individual user, without terminating Part A) if:

a) you are in breach of any term of this agreement and have failed to remedy the breach within 10 business days after the notice; or

b) you commit, or FreshTrack Systems or the Subscriber reasonably suspects that you may commit, any breach of this agreement including, without limitation, clause 14.

a) In the event of expiry or termination of this Part B, you must:

          (i) immediately cease using the Software; and

          (ii) remove the Software from all materials in your care, custody or control that

          feature the Software, and, if the Software cannot be removed, then at FreshTrack

          System’s option, return or destroy all such material.

b) Termination of this agreement will not affect any rights accruing to either party to the date of termination nor any obligation performed to the date of termination or any obligation which expressly or impliedly survives termination of this agreement.

You are solely responsible for removing any information you store in the Software prior to termination of this agreement. FreshTrack Systems will not be liable to you for any loss of your or any other user’s data or information upon termination of this agreement.

a) (Our ownership) We retain ownership of all Materials provided to you throughout the course of your Subscription in connection with the Software (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Software Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us in the Software Content not expressly granted to you.

b) (Licence to you) You are granted a licence to the Software Content and you may make a temporary electronic copy of Software Content for the sole purpose of viewing them and using them for the purposes of the Software. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Software Content without prior written consent from us or as otherwise permitted by law.

a) You grant to us (and our Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use any User Data to the extent reasonably required to provide the Software, and for our internal business purposes, including to improve the Software and our other products and services, and including to apply machine learning and other analytics processes to the User Data, to gain commercial insights and other associated learnings, and to improve the Software, our business and our other products and services.

b) If it is determined that you retain moral rights (including rights of attribution or integrity) in any User Data, you release us from any and all claims that you could assert against us by virtue of any such moral rights, and you must ensure that all Users grant an equivalent release.

c) You indemnify us against all damages, losses, costs and expenses incurred by us arising in connection with any third party claim that User Data infringes any third party’s Intellectual Property Rights.

d) We reserve the right to remove any User Data at any time, for any reason, including where we deem User Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.

e) We retain ownership of all Commercial Data. We grant to you, and all Users a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use certain Commercial Data to the extent reasonably required to access and use the Software in accordance with your Subscription Tier.

f) We reserve the right to revoke access to any Commercial Data at any time, for any reason, including where we deem Commercial Data has been used in a manner that we deem to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.

g) You are responsible for ensuring that:

          (i) you share User Data only with intended recipients; and

          (ii) all User Data is appropriate and not in contravention of these Terms.

h) You accept any and all risks associated with sharing User Data to third parties outside of your organisation.

i) You acknowledge and agree that:

          (i) it is solely your responsibility to ensure that you have appropriate commercial

          agreements in place when you share User Data, including non-disclosure

          agreements;

          (ii) FreshTrack Systems is not responsible in the event that any User Data you share is

          subsequently shared in an unauthorised manner with any third party; and

          (iii) FreshTrack Systems will not be liable in the event that you expose Confidential

          Information when you share User Data.

j) You:

          (i) warrant that your use of User Data will not infringe any third-party Intellectual

          Property Rights; and

          (ii) indemnify us from and against all losses, claims, expenses, damages and liabilities

          (including any taxes, fees or costs) which arise out of such infringement.

a) By providing or posting any information, User Data or other content in connection with the Software, you represent and warrant that, and must ensure that all Users make equivalent representations and warranties:

          (i) you are authorised to provide the User Data (including by being authorised to

          provide any services that you represent you provide);

          (ii) the User Data is accurate and true at the time it is provided;

          (iii) any User Data which is in the form of a review or feedback is honest, accurate

          and presents a fair view of the relevant person and/or your experience;

          (iv)  the User Data is free from any harmful, discriminatory, defamatory or

          maliciously false implications and does not contain any offensive or explicit material;

          (v) the User Data is free from any material that may harm our reputation or that of

          associated or interested parties;

          (vi) the User Data is not “passing off” of any product or service and does not

          constitute unfair competition;

          (vii) the User Data does not infringe any Intellectual Property Rights, including

          copyright, trademarks, business names, patents, Confidential Information or any

          other similar proprietary rights, whether registered or unregistered, anywhere in the

          world;

          (viii) the User Data does not contain any viruses or other harmful code, or otherwise

          compromise the security or integrity of the Software or any network or system; and

          (ix) the User Data does not breach or infringe any applicable Laws.

b) We may, in our absolute discretion, review and remove any User Data from the Software at any time without giving any explanation or justification for removing the User Data, including if we determine that the User Data infringes a third party’s Intellectual Property Rights, or is reasonably likely to.

c) Except as otherwise agreed, you agree that you are responsible for keeping and maintaining records of User Data.

d) If you become aware of User Data, or other Material, on the Software that infringes the Intellectual Property Rights of any person, or is reasonably likely to, please contact us immediately using the details set out on our Website.

e) If you submit a complaint on our Website under clause 17.3(d):

          (i) you warrant that the substance of the complaint is accurate, true and involves

          infringement of copyright;

          (ii) you acknowledge and agree that groundless threats of legal proceedings in

          relation to copyright infringement may be prohibited under applicable law (for

          example, Australia’s Copyright Act 1968 (Cth), or equivalent laws wherever you are

          located); and

          (iii) you agree to indemnify FreshTrack Systems in relation to any loss or damage

          that may arise in relation to your complaint, including in relation to any third party

          claim that the complaint contains a groundless threat.

a) (Warranties) We warrant that:

          (i) during the Subscription Period, the Software will perform substantially in

          accordance with the Documentation or as otherwise described on the Website at 

          https://helpdesk.freshtrack.com;

          (ii) during the Subscription Period, the Software will be provided as described to you

          in, and subject to, these Terms; and

          (iii) to our knowledge, the use of the Software in accordance with these Terms will

          not infringe the Intellectual Property Rights of any third party.

b) (Errors) We will correct any errors, bugs or defects in the Software which arise during your Subscription and which are notified to us by you, unless the errors, bugs or defects:

           (i) result from the interaction of the Software with any other solution or computer

           hardware, software or services not approved in writing by us;

           (ii) result from any misuse of the Software; or

           (iii) result from the use of the Software by you other than in accordance with these

           Terms or the Documentation.

c) (Service Limitations) While we will use our best endeavours to ensure the Software is working for its intended purpose, you acknowledge and agree that from time to time, you may encounter the following issues:

          (i) the Software may have errors or defects;

          (ii) the Software may not be accessible at times;

          (iii) messages sent through the Software may not be delivered promptly, or

          delivered at all;

          (iv) information you receive or supply through the Software may not be secure or

          confidential; or

          (v) any information provided through the Software may not be accurate or true.

d) (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in these Terms are excluded.

e) (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

a) To the maximum extent permitted by law and subject to clause 18.2(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with these Terms or the Software is limited to the total Fees paid to us by you in the 3 months preceding the date of the event giving rise to the relevant liability.

b) Clause 18.2(a) does not apply to your liability in respect of loss or damage sustained by us arising from your breach of clauses 4, 6, 7, 9, 10, 14 and 17.

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with these Terms or any goods or services provided by us, except:

a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or

b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.

b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.

c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith.

d) If the dispute is not resolved within a period of 14 days after the date of the notice, a party may by notice to the other party or parties to the dispute refer the dispute for mediation by the Australian Disputes Centre (the ADC) in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter referred to the ADC (Guidelines). The terms of the Guidelines are hereby deemed incorporated into this agreement.

e) If the dispute is not resolved within 28 days after the appointment of the mediatory, any party may take legal proceedings to resolve the dispute.

a) We will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event.

b) If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of:

          (i) reasonable details of the Force Majeure Event; and

          (ii) so far as is known, the probable extent to which We will be unable to perform or

          be delayed in performing its obligations under this agreement.

c) Subject to compliance with clause 20(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.

d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:

          (i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide,

          explosion or fire;

          (ii) strikes or other industrial action outside of the control of us;

          (iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion,

          epidemic, pandemic; or

          (iv) any decision of a government authority in relation to COVID-19, or any threat of

          COVID-19 beyond the reasonable control of us, to the extent it affects our ability to

          perform our obligations.

If you are accessing the Software from the Apple, Inc. (Apple) iOS Store, you acknowledge and agree:

a) this agreement is between you and FreshTrack Systems and not with Apple. Apple is not responsible for the Software or any content available via the Software;

b) Apple has no obligation whatsoever to furnish any maintenance and support services for the Software;

c) in the event of any failure of FreshTrack Systems to conform to any applicable warranty, you may notify Apple, and Apple will refund the price for the Software. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs of expenses attributable to any failure to conform to any warranty will be FreshTrack System’s responsibility;

d) Apple is not responsible for addressing any claims by you or any third party relating to the Software, including, but not limited to:

          (i) product liability claims;
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          (ii) any claim that the Software fails to conform to any applicable legal or regulatory

          requirement; and 
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          (iii) claims arising under consumer protection, privacy, or similar legislation;

e) in the event of any third party claim that the Software or your use of the Software infringes any third party’s intellectual property rights, Apple will not be responsible for the investigation, defence, settlement and discharge of any such claim;

f) that you represent and warrant that:

          (i) you are not located in a country that is subject to a U.S. Government embargo, or

          that has been designated by the U.S. Government as a “terrorist supporting’”

          country; and

          (ii) you are not listed on any U.S. Government list of prohibited or restricted parties;

g) you must comply with applicable third party terms of this agreement when using the Software; and

h) Apple, and Apple’s subsidiaries, are third party beneficiaries of this agreement, and that, upon your acceptance of this agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this agreement against you as a third party beneficiary.

a) A notice or other communication to a party under these Terms must be:

          (i) in writing and in English; and

          (ii) delivered via email to the other party, to the email address specified in the Order,

          or if no email address is specified in the Order, then the email address most

          regularly used by the parties to correspond regarding the subject matter of this

          agreement as at the date of this agreement (Email Address). The parties may update

          their Email Address by notice to the other party.

b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

          (i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a

          public holiday in the state or territory whose laws govern this agreement, in which

          case the notice will be taken to be given on the next occurring business day in that

          state or territory; or

          (ii) when replied to by the other party, whichever is earlier.

This agreement is governed by the law applying in Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

a) (singular and plural) words in the singular includes the plural (and vice versa);

b) (currency) a reference to $; or “dollar” is to Australian currency;

c) (gender) words indicating a gender includes the corresponding words of any other gender;

d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

f)  (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;

h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;

j) (includes) the word “includes” and similar words in any form is not a word of limitation; and

k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.