Agreement means the Terms and Conditions contained in this End User Licence and Hosting Agreement (EULAHA).

Content means text, data, speech, music or other sounds, visual images (animated or otherwise) in any form, or in any combination of forms as defined in Schedule 7 of Broadcasting Services Act 1992 (Cth).

Designated Agent means the person appointed by the Site owner to respond to allegations of Copyright breaches of Content that appears on the Website.

Documentation means any user operating manual, explanatory notes or memoranda that may or may not be supplied with the Program provided by Actualisation as updated from time to time on its Website.

Hosting means the provision of a virtual host for the End User to serve data of its website using the Program provided by Actualisation.

End User means a person that purchases a Licence to use the Program and the Hosting Account pursuant to the terms and conditions of this Licence Agreement.

Excessive Use Site means an End Users Website that is consuming more usage (including but not limited to bandwidth, disk, e-mail accounts, e-mail sends or CPU utilisation) as classified at the sole discretion of Actualisation in accordance with the limits provided.

Force Majeure means an act of God, fire, lightning, explosions, flood or other natural disaster, subsidence, act of terrorism, insurrection, civil disorder or military operations, power or gas shortage, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected Party's control.

EULAHA means this End User Licence and Hosting Agreement.

Intellectual Property Rights (IP) means all copyright, patents, design rights, trademarks and service marks and Programs for any of the foregoing, together with all trade secrets, know-how, database rights, rights to confidentiality, intellectual and industrial property rights and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration in all parts of the world.

Licence Fee means the amount of money paid on acceptance of this Agreement by an End User in exchange for the right to use the Program and the Hosting services for the Licence Term.

Licence Term means the period(s) during which the End User is licenced to use the Program for the selected Package.

Packages means any of the packages available with the Program.

Program means the Link. and Edge management systems used as a software solution to enable users to track and monitor assets.

Actualisation's Website means the website that the End User may be able to access Documentation from as the case may be located at http://www.actualisation.com

Upgrades means any modifications, new or revised versions of the source code that the Program requires to operate more efficiently or effectively as determined by Actualisation at its sole discretion.

End User's Website means the End User's website which uses one installation of the Program hosted on Actualisation's servers.

Works means the source code embedded in the software that contains all algorithms, source code, and system logic relating to the Program that is subject to this End User Licence and Hosting Agreement.

(a) one gender includes the others;

(b) the singular includes the plural and the plural includes the singular;

(c) a person includes a body corporate;

(d) a Party includes the Party's executors, administrators, successors and permitted assigns;

(e) to an amount of money, to $, $A or dollar is a reference to the currency of Australia;

(f) a statute, regulation or provision of a statute or regulation (a Statutory Provision) includes:

(i) that Statutory Provision as amended or re-enacted from time to time; and

(ii) a statute, regulation or provision enacted in replacement of that Statutory Provision.

(g) including and similar expressions are not words of limitation.

(h) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.

(i) headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation.

(j) a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.

(a) only one End-User's Website per Licence to use the Program is to be used on Actualisation's Servers;

(b) any Documentation that may or may not be provided (as the case may be) with the Program must only for the purpose of which it is provided.

(a) Actualisation retains all right, title and interest in and to all Intellectual Property in the Works embodied in the Program.

(b) End Users acknowledge that they do not acquire any Intellectual Property Rights, either express or implied in the Program or the Hosting and the Documentation beyond the terms contained in this EULAHA.

(a) Actualisation acknowledges that it does not own the data uploaded to its Servers by End Users.

(b) End Users acknowledge that if Actualisation is notified that any information appearing on an End User's Website represents a breach of copyright or other intellectual property infringement, then Actualisation may, at its sole elect to remove and take the End User's Website offline and immediately remove the infringing material without notice to the End User.

(a) provide such support as is necessary to ensure the Program performs in accordance with the Service Levels;

(b) provide the End User with a backup of its End User's data on request;

(c) consult as necessary with the End User in order to provide such information relevant to the Program as the End User reasonably requires concerning the current performance of the Program;

(d) cooperate with any service review procedures reasonably implemented by the End User as described in the schedule; and

(e) implement such recommendations as may reasonably be required in order to ensure the Services continue to comply with the requirements of this agreement.

(a) use the Program for any purpose or in any manner other than as provided in this EULAHA;

(b) use the Program in any way that could damage the reputation of Actualisation or the goodwill or other rights enjoyed by Actualisation;

(c) permit any third party to obtain access to the Program;

(d) reproduce, make error corrections to or otherwise modify or adapt the Works as provided in the Program or create any derivative works based on the Program;

(e) de-compile, disassemble, decrypt, or otherwise reverse engineer the Program or permit any third party to do so; or

(f) transfer, sublicence, rent, lease or lend the Program or use it for commercial time sharing or service bureau use;

(g) modify or remove any copyright or proprietary notices associated with the Program;

(h) cause email to be sent using the Program that is not compliant with the Spam Act 2003 (Cth). Any such emails must include a functioning email unsubscribe facility; and

(i) comply with all local laws in using the Program in their jurisdiction.

(a) To the fullest extent permissible by law, the Program and the Documentation are provided to the End User without any representations or warranties. End Users agree to use the Program and the Hosting services at their sole risk.

(b) Nothing in this EULAHA excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods or services in certain circumstances, each a non-excludable provision.

(c) Subject to Actualisation's obligations under the non-excludable provisions, and to the fullest extent permissible by law, Actualisation expressly disclaims all warranties of any kind with respect to the Program and the Hosting Services, whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title of non-infringement.

(a) for any inability to access to data the End User's Website;

(b) for loss or corruption of data, loss of business, loss of profits, loss of revenue and anticipated savings, business interruption of the like regardless of whether the loss is direct or indirectly caused by use of the Program.

(c) for any indirect, incidental, punitive, special, or consequential loss or damage whatsoever, in each case, arising out of the use or inability to use the Program or Documentation, even if Actualisation has been advised of the possibility of such damages or if such damages are foreseeable. Subject to the obligations of Actualisation under the Non-excludable Provisions and to the fullest extent permissible by law, in no event will Actualisation's liability for all damages exceed the amounts actually paid by End Users to Actualisation for the Program.

(d) To the fullest extent permitted by law, the liability of Actualisation for a breach of a non-excludable condition is limited to:

(i) in the case of the supply of goods:

I. replacement of the goods;

II. supply of equivalent goods;

III. repair of the goods;

IV. payment of the cost of replacing the goods or of acquiring equivalent goods; or

V. the payment of the cost of having the goods repaired.

(ii) in the case of the provision of services:

I. the supplying of the services again; or

II. payment of the cost of having the services supplied again.

(e) Notwithstanding this clause 6.2 or anything else contained in this EULAHA, neither Party's liability for death or personal injury resulting from its own negligence will be limited.

(a) any breach of this Agreement by the End User;

(b) End Users negligent acts or omissions;

(c) The accuracy of the captured data, the quality of GPS tracking history, network coverage issues, satellite coverage issues, missing history data, artificial intelligence failing to coach/alert machine operators or field teams or office teams, incorrect or inaccurate GPS navigation routing; or

(d) End Users use of the Program, including any third party claims made in connection with, or arising out of, your use of the Program and Documentation.

(i) it no longer has the right to provide the Program or provide the Hosting service to End Users for any reason whatsoever;

(iii) the Licence from Actualisation is terminated for any reason;

(iv) the End Users Account's nominated credit card or direct debit account is unable to be charged the Licence Fee on two successive attempts.

(v) the End User commits a breach of any of the material terms and conditions of this Agreement.

(a) If this EULAHA is terminated for any reason whatsoever, then Actualisation may on the provision of a reasonable period of notice, remove the End User's Website after providing the End User with the opportunity of migrating its data.

(b) Although export and backup mechanisms exist in the Software, the End User's Content is stored on the server using a proprietary system and so consequently no guarantees are given that the End User's Content can be migrated to any other system.

(a) All the End User's files, information and mail stored on Actualisation's servers will be preserved for 14 days from the date of default. If full payment is not received within 14 days of default, all the End User's files, information and mail stored on the Actualisation's servers may be deleted.

(b) If the End User wishes to use the service again, the End User must re-apply as a new End User.

(a) their personal information may be provided to third parties in order for the Program to operate effectively.

(b) information about them may be sent between countries to other entities that Actualisation has commercial contracts with.

(c) Any information provided to third parties or sent offshore will be confidential and all reasonable efforts to keep the data confidential will be made by Actualisation.

(a) Actualisation will make backup copies of the End Users' data daily. Actualisation will retain backup copies for a minimum period of seven (7) days.

(b) If the End Users stored data is lost or altered, the End User will bear the direct and indirect costs of restoring the data.

(a) it provides reasonable notice of not less than five (5) days to End Users of a period of outage, which must be scheduled to create minimal interference with End Users' Websites.

(b) the suspension or interruption is caused by any act or omission of the End User or the (including where a circuit breaker is activated);

(c) the suspension or interruption is caused by any act or omission of any third party, or any event, which is out of the reasonable control of the Company including any ISP or local problems (such as Browser or DNS caching), DoS, DDoS attacks, exploits or hacking;

(d) Actualisation is prevented from reinstating the Services due to any act or omission of the End Users Representatives or any third party whom is out of the reasonable control of Actualisation;

(e) the interruption continues for five (5) minutes or less in any calendar month period;

(f) the suspension or interruption is an agreed period of shut-down or outage;

(g) the interruption is due to any requirement of any Authority or Government Body with jurisdiction over the EULAHA; or

(h) a period of shut-down, including any refusal, suspension or termination of the Supply, pursuant to and notified in accordance with, the terms of this Agreement.