SalesLogs Pty Limited ABN 69 161 409 132 (“SalesLogs” “we” “us” or “our”) provides cloud hosted, software-as-a-service sales recording, tracking and reporting services (“SalesLogs Services” for automotive dealerships. Users interact with SalesLogs Services using facilities that SalesLogs makes available from time to time, which may include thewww.saleslogs.comwebsite and mobile device apps (each a "SalesLogs Portal").
in relation to a party, means all knowledge, information or know-how pertaining to or concerning that party or any of its related entities, including that party’s or related entities’ business, systems, processes, data, customers, properties, assets and affairs, which is disclosed to the other party.
means a facility owned or operated by a Dealer Principal or another person or entity from which the business of the buying and selling of automobiles and associated goods and services is conducted by or on behalf of the Dealer Principal.
means all Intellectual Property Rights and moral rights owned or licensed by the Dealer Principal in connection with the business of the Dealership, including all Intellectual Property Rights in User Content, logos, branding, trademarks and other materials developed by or on behalf of the Dealer Principal, or that the Dealer Principal is licensed by third parties to use.
"Department Access Fee"
means the monthly fee, as specified and amended by SalesLogs from time to time, payable by the Dealer Principal per Department in respect of use by that Department of the SalesLogs Services.
means a group of Users within a Dealership with related business objectives, including without limitation new car sales, used car sales and vehicle servicing.
"Intellectual Property Rights"
means all intellectual property rights, 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.
means an employee, contractor or other representative of a Dealership that is authorised by the Dealer Principal to use the SalesLogs Services.
means data, material or information deposited, entered or added to SalesLogs Services by a User, or by SalesLogs on behalf of a User or the Dealer Principal, in a manner authorised by this Agreement.
means the financial controller of a Dealership or equivalent person who is authorised by the Dealer Principal to enter into this Agreement on behalf of the Dealer Principal, and who may give irrevocable directions to SalesLogs on behalf of the Dealer Principal.
means all Intellectual Property Rights and moral rights owned or licensed by SalesLogs, including all Intellectual Property Rights in or arising out of SalesLogs Services; all related documentation and marketing material; and all modifications, variations, improvements and/or enhancements in or relating to SalesLogs Services, whether developed by SalesLogs independently or in conjunction with the Dealer Principal or any User.
3. PRINCIPAL REPRESENTATIVE AND AGREEMENT WITH DEALER PRINCIPAL
If you are the Principal Representative:
you warrant that you have full authority to act on behalf of the Dealer Principal, and to bind the Dealer Principal to the Agreement;
you acknowledge that, as the Principal Representative, by registering to use the SalesLogs Services, you are confirming the Dealer Principal agrees to be legally bound by the Agreement; and
On registration by the Principal Representative for use of the SalesLogs Services by a Dealership, SalesLogs agrees to supply, and the Dealer Principal agrees to acquire, the supply of the SalesLogs Services in accordance with this Agreement.
The Dealer Principal acknowledges that every right or obligation of the Dealer Principal under this Agreement may be exercised or satisfied by the Principal Representative.
For the avoidance of doubt, in respect of the Agreement between the Dealer Principal and SalesLogs, any reference to "you", "your" or "yours" in these Terms and Conditions is a reference to the Dealer Principal.
4. DEPARTMENT ACCESS FEES
You acknowledge that the SalesLogs Services are provided on a monthly subscription basis, with all fees for use being due and payable in advance on the first day of the month during which access to the SalesLogs Services is to be provided. Payments are processed through our Secure Encrypted Billing Portal by your preferred payment method of either;
Credit Card (Visa, MasterCard, American Express) or
Direct Debit from an Australian Bank Account
If you are the Principal Representative, you:
must, when initially registering your Dealership for SalesLogs Services, specify the number of Departments at the Dealership to SalesLogs;
must, if at any time after initially registering your Dealership for SalesLogs Services the number of Departments at the Dealership changes, immediately specify the new number of Departments at the Dealership to SalesLogs; and
warrant that you will not deliberately misrepresent the number of Departments at the Dealership to SalesLogs at any time.
By no later than the first day of every calendar month ("Access Month"), the Principal Representative will receive, and the Dealer Principal must pay, a tax invoice for all Department Access Fees payable in respect of the Dealership for access by Users during that Access Month..
The Dealer Principal acknowledges that SalesLogs has no obligation to permit access to the SalesLogs Services by any User if the Dealer Principal fails to pay any Department Access Fee by the due date and SalesLogs will have no liability to any person (including the Dealer Principal or any User) if SalesLogs suspends or cancels access to the SalesLogs Services by any User following any failure of the Dealer Principal to pay any amount due under this Agreement by the date due.
5. LICENCE TO USE SALESLOGS SERVICES
Subject to payment of all applicable Department Access Fees, a Dealer Principal may authorise any person who is an employee, contractor or representative of a Dealership to be registered as a User, and to use the SalesLogs Services in accordance with this Agreement. A person may be authorised as a User:
by the Principal Representative (or any person the Principal Representative gives permission to) using registration facilities provided within the SalesLogs Portals; or
by SalesLogs, if we are directed to do so by the Principal Representative (or any person the Principal Representative has authorised to give directions to SalesLogs).
If you have been authorised to use SalesLogs Services by the Dealer Principal in accordance with clause 5.1, SalesLogs grants to you a licence to access and use the SalesLogs Services, including each SalesLogs Portal (and to the extent necessary, to install a copy of any app or other software associated with a SalesLogs Portal on a relevant computing device), in the normal course of business of the Dealership and subject to this Agreement.
As a User, you acknowledge that your access and use of the SalesLogs Services:
is authorised by, and subject to any restrictions on access specified by, the Dealer Principal;
may be subject at any time without notice to usage restrictions defined by the Dealer Principal (or by SalesLogs acting in accordance with the directions of the Dealer Principal), such that your access to some or all facilities or data within the SalesLogs Services may be restricted or prohibited;
may be limited, suspended or cancelled at any time:
by the Principal Representative or other authorised representative of the Dealer Principal using facilities provided by the SalesLogs Services;
by us if we are directed to do so by the Principal Representative or other authorised representative of the Dealer Principal; or
by us if we reasonably consider a breach of the Agreement has occurred; and
may not be sub-licensed or assigned to any other person without the consent in writing of SalesLogs.
You must not:
make the SalesLogs Services available to any third party, unless explicitly authorised by this Agreement or otherwise by SalesLogs in writing;
resell or resupply the SalesLogs Services to any person or entity;
use the Service in any manner that will, or is likely to, impede or disrupt the supply of services to any other customer of SalesLogs; or
use or permit (whether directly or indirectly) the use of the SalesLogs Services for any illegal purpose.
6. SUPPLY OF SALESLOGS SERVICE AND INTERRUPTIONS
Subject to this clause and this Agreement, SalesLogs will use reasonable commercial efforts to make the SalesLogs Services available to Users at all times.
You acknowledge that:
the SalesLogs Services are supplied over the internet, and may be subject to delay, disruption or loss in transmission which is not within the control of SalesLogs;
SalesLogs may monitor your use of the SalesLogs Services for the purposes of maintaining the integrity of SalesLogs Services for all customers and otherwise ensuring compliance with this Agreement;
SalesLogs does not warrant or represent that the SalesLogs Services will be uninterrupted or error free; and
in the event that the SalesLogs Services are disrupted or degraded for any reason beyond the reasonable control of SalesLogs, SalesLogs will make reasonable efforts to notify you of the problem and of any steps you may take to work around the problem, but SalesLogs otherwise has no responsibility or liability for, or obligation to rectify, such problem. For the avoidance of doubt, reasonable efforts to notify you include giving such notice to the Dealer Principal of any problem.
From time to time, in order to maintain or improve the SalesLogs Services, or rectify defects with the SalesLogs Services (“Maintenance”), SalesLogs may need to disrupt the supply of SalesLogs Services, including to the extent that the SalesLogs Services may temporarily be partially or entirely unavailable.
Where it is commercially practical to do so, prior to performing Maintenance SalesLogs will:
provide reasonable notice of the estimated time of performance, duration, and extent of any interruption to the SalesLogs Services; and
make reasonable efforts to schedule such Maintenance at a time that will minimise the impact of such interruption to the SalesLogs Services on you.
Despite clause 6.4, you acknowledge that where SalesLogs determines in its absolute discretion that Maintenance is required as soon as possible to protect the integrity or quality of the SalesLogs Services (“Emergency Maintenance”), SalesLogs may perform such Emergency Maintenance immediately and without notice to you.
You acknowledge that the SalesLogs Services are provided using cloud-hosted infrastructure operated by a third party service provider, and SalesLogs has no liability to you (unless otherwise explicitly accepted under this Agreement) for any failure or disruption of SalesLogs Services to the extent caused or contributed to by a failure of, or disruption to, any third party supplier or third party system.
You acknowledge that SalesLogs will not be in breach of this Agreement, and will have no liability to you or any other person (including the Dealer Principal or any User) arising from any loss or damage suffered, in connection with any disruption, interruption or degradation of the Services arising from Maintenance.
7. SALESLOGS SERVICE UPDATES
You acknowledge that the SalesLogs Services are being continuously enhanced and improved, and SalesLogs may update the SalesLogs Services at any time without notice to you.
From time to time, at its discretion, SalesLogs may provide you with notice of an update to the SalesLogs Services, either before or after such update is made, in order to provide you with information about the nature and effect of such update.
8. USER CONTENT
SalesLogs acknowledges that User Content is at all times, and will remain, your property.
In order to supply the SalesLogs Services to you and only to the extent necessary to do so, you grant to SalesLogs a licence to use, reproduce, modify and communicate all User Content. SalesLogs may sub-licence these rights to third party suppliers of SalesLogs to the extent necessary or desirable to allow the proper supply of the SalesLogs Services.
Notwithstanding anything else in this Agreement, including if the supply of SalesLogs Services is suspended for any reason, SalesLogs will not refuse to allow you access to User Content prior to termination of this Agreement.
You acknowledge that in the course of your use of the SalesLogs Services, you are solely responsible for complying with all laws, including privacy laws and Intellectual Property Rights laws, of any relevant jurisdiction, and that User Content must not infringe any such laws.
You acknowledge that SalesLogs may be obliged by law to disclose some or all User Content to government or regulatory authorities. If it is legally entitled to do so, SalesLogs will make best efforts to advise you prior to, and where possible consult with you and otherwise use reasonable endeavours to minimise any, such mandatory disclosure.
You acknowledge that you are solely responsible for the accuracy and appropriateness of User Content, including User Content incorporated or entered into the SalesLogs Services by SalesLogs in accordance with your instructions.
You agree that SalesLogs will have no responsibility or liability to you or any other person (including the Dealer Principal or any User) arising from any error, defect or inaccuracy in any User Content, and such responsibility will lie with you at all times.
The Dealer Principal indemnifies SalesLogs, and will keep SalesLogs indemnified from and against any and all liabilities, losses, claims, damages, demands, expenses or costs (including without limitation all consequential or special losses, loss of profit, loss of reputation and all interest, penalties and legal or other professional advisors’ fees) suffered by the Dealer Principal, any User, or any other person, resulting from or in connection with:
User Content (including the accuracy of User Content); and
any infringement of any law arising from or in connection with User Content; or
9. ACCURACY OF SALESLOGS SERVICES CALCULATIONS
The SalesLogs Services may include functions to perform (whether automatically, semi-automatically, or as part of a manual process) certain calculations using data (including User Data) stored in, or processed by, the SalesLogs Services ("SalesLogs Calculations").
You acknowledge that, while SalesLogs will make practical commercial efforts to achieve a reasonable accuracy for SalesLogs Calculations, SalesLogs Calculations:
are estimates only, which are provided as a convenience to you to assist in the efficient conduct of daily business activities of the Dealership;
cannot and must not under any circumstances be relied upon for any accounting, business critical, taxation, commission, salary, wage or regulatory purpose; and
can otherwise only be relied upon if those SalesLogs Calculations are directly cross checked and verified against independent recalculations by facilities unrelated to SalesLogs Services that are known to be reliable.
You acknowledge that:
the legal obligations upon any business, including the business of the Dealership, will vary depending on factors pertinent to that business including without limitation its business activities, geographic location and the laws, regulations and industry guidelines that may apply in any particular circumstance, and you are solely responsible for determining and ensuring your compliance with those laws and obligations;
SalesLogs Services are prepared on a general basis and may not be appropriate or complete for your specific circumstances or requirements, or those of the Dealership; and
SalesLogs does not guarantee or warrant the completeness, accuracy or currency of any part of the SalesLogs Services, including without limitation the SalesLogs Calculations.
The Dealer Principal indemnifies SalesLogs, and will keep SalesLogs indemnified from and against any and all liabilities, losses, claims, damages, demands, expenses or costs (including without limitation all consequential or special losses, loss of profit, loss of reputation and all interest, penalties and legal or other professional advisors’ fees) suffered by the Dealer Principal, any User, or any other person, resulting from or in connection with any error or inaccuracy in SalesLogs Calculations.
You acknowledge that you are solely responsible for the use, supervision, management and control of your access to SalesLogs Services and you will ensure that access to the SalesLogs Services are protected at all times from misuse, damage, destruction or any other form of unauthorised use.
You acknowledge and agree that SalesLogs has no liability to you for any loss or damage suffered by you or any other person (including the Dealer Principal or any User) resulting from any unauthorised use or misuse of SalesLogs Services by any person (other than a representative of SalesLogs).
11. TERM AND TERMINATION
This Agreement starts on the day you first use the SalesLogs Services, and continues until terminated in accordance with this clause.
Either SalesLogs or the Dealer Principal may by notice in writing to the other party terminate their Agreement at the end of the then-current calendar month.
Either SalesLogs or the Dealer Principal may terminate their Agreement immediately if:
the other party breaches any material provision of this Agreement and fails to remedy the breach within 5 business days (for the avoidance of doubt, the obligation to pay Department Access Fees by the due date is a material provision);
The other party breaches a material provision of this Agreement where the breach is not capable of remedy; or
11.3.3 an event of insolvency affecting the other party occurs.
If you are a User, you acknowledge that SalesLogs may terminate your Agreement immediately and without notice to you if SalesLogs' agreement with your Dealer Principal is terminated for any reason.
If this Agreement is terminated for any reason, SalesLogs will provide to the Dealer Principal on request a copy of all User Content in an industry standard electronic format.
Unless instructed to do so sooner by the Principal Representative, SalesLogs will permanently destroy all User Content stored on or in connection with the SalesLogs Services within 12 months of the end of this Agreement.
12. CONFIDENTIAL INFORMATION AND PRIVACY
Each party must maintain the confidentiality of the other party's Confidential Information and will not without the prior written consent of the other, use, disclose, copy or modify the other party's Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement. Each party must take all precautions reasonably necessary to prevent any unauthorised use, disclosure, copying, publication or dissemination of the other party's Confidential Information, including at a minimum those taken by that party to protect its own Confidential Information.
Despite clause 12.1, you acknowledge that the SalesLogs Services are provided using cloud-hosted infrastructure operated by a third party service provider, and all data stored or processed by the SalesLogs Services, including any data incorporating your Confidential Information, will by technical necessity be provided to, and stored by, the third party service provider in accordance with its security and confidentiality protocols. You acknowledge that SalesLogs will have no liability to you under this Agreement if any Confidential Information is disclosed to any person or body due to an act or omission of the third party service provider that provides the infrastructure on which the SalesLogs Services operate.
Any personal information, including personal financial information, collected, used or disclosed by SalesLogs for the purposes of providing Services to you is treated as confidential and will only be collected, used or disclosed in the following manner:
for the purposes of meeting SalesLogs’ obligations under this Agreement (which may include providing personal information to third party suppliers of Services);
to respond to any queries that you or the Dealer Principal may have;
in accordance with thePrivacy Act 1988(Cth).
13. INTELLECTUAL PROPERTY RIGHTS
SalesLogs warrants that no third party Intellectual Property Rights are infringed by SalesLogs’ performance of its obligations or by your use of the SalesLogs Services for the purposes contemplated in this Agreement.
You warrant that:
to the extent any User Content or Dealership IP includes any material in which a third party owns Intellectual Property Rights, including without limitation any third party Intellectual Property Rights in any logos, trade marks or copyright material, you have all rights and licences necessary or desirable to use such material with the SalesLogs Services; and
no third party Intellectual Property Rights are or will be infringed by your use of the SalesLogs Services, including any such third party Intellectual Property Rights in any Dealership IP or User Content.
Each party acknowledges and agrees that:
any Intellectual Property Rights existing prior to the date of this Agreement will not be affected by this Agreement;
all Intellectual Property Rights in SalesLogs IP are owned by SalesLogs (or its licensors as the case may be) and nothing in this Agreement assigns or otherwise transfers any right, title or interest in any of the SalesLogs IP to you; and
all Intellectual Property Rights in Dealership IP are owned by the Dealer Principal (or its licensors as the case may be) and nothing in this Agreement assigns or otherwise transfers to SalesLogs any right, title or interest in any of the Dealership IP.
During the term of this Agreement, you grant to SalesLogs a worldwide, royalty free licence to use, reproduce, modify and adapt Dealership IP and User Content to the extent necessary for SalesLogs to supply the Services.
SalesLogs will be liable for and will indemnify you from and against any liability and/or any loss or damage arising directly from any claim that your use of the SalesLogs Services in accordance with this Agreement infringes the Intellectual Property Rights of any person, except and to the extent that any liability, loss or damage arises as the result of your act or omission, or those of your representatives or any of your subcontractors (other than SalesLogs) or the Dealer Principal or any User.
The Dealer Principal will be liable for and will indemnify SalesLogs against any liability and/or any loss or damage of any kind whatsoever arising directly or indirectly from any claim that the use of Dealership IP or User Content in accordance with this Agreement or any directions of the Dealer Principal, the Principal Representative or any User infringes the Intellectual Property Rights of any person, except and to the extent that any liability, loss or damage arises as the direct result of an act or omission of SalesLogs, its representatives or any of its subcontractors.
Other than express terms of this Agreement and warranties, conditions, rights or guarantees implied by relevant legislation, including the Competition and Consumer Act 2010 (Cth), the exclusion of which from an agreement would contravene a statute or cause part or all of this clause to be void (“Non-excludable Rights”), you agree that SalesLogs excludes all liability arising from any implied or express representations, terms, conditions or warranties that would otherwise apply to the SalesLogs Services.
Except for liability in relation to breach of any Non-excludable Rights and liability under clause 4, SalesLogs’ maximum aggregate liability to you in contract, including for one or more breaches of any express term or terms of this Agreement, tort (including negligence), statute or otherwise, is limited to an amount equal to the Department Access Fees actually paid to SalesLogs by the Dealer Principal in the month during which the event giving rise to the liability occurred.
For breach of any Non-excludable Rights (other than where by law liability for breach of Non-excludable Rights cannot be limited), SalesLog’s liability is limited, at its option to, where the breach relates to goods, repairing or replacing those goods, or paying the cost to have those goods repaired or replaced, and where the breach relates to services, supplying those services again, or paying the cost to have those services supplied again.
Except for liability in relation to breach of any Non-excludable Rights, SalesLogs excludes all liability to you for lost profits, lost revenue, lost savings, lost data (including loss of any User Content) and any consequential or indirect loss arising out of, or in connection with the SalesLogs Services and any claims by any third person (including a User or any customer of the Dealership) or otherwise arising under this Agreement, even if SalesLogs knew that the loss was possible, or the loss was otherwise foreseeable.
These Terms and Conditions (including the Department Access Fee) may be varied by SalesLogs at any time without notice by publishing updated Terms and Conditions on the SalesLogs website atwww.saleslogs.com, or by otherwise providing notice to the Dealer Principal in writing, and the Agreement will be amended in accordance with those varied Terms and Conditions on and from the first day of the calendar month following their publication or written notice. You will confirm your acceptance of, and agreement to, the amended Agreement on and from the date it becomes effective:
if you are the Dealer Principal, by paying Department Access Fees in respect of the month from which the amended Agreement will take effect; or
if you are a User, by accessing the SalesLogs Services on or from the date on which the amended Agreement takes effect.
If you do not accept proposed amendments to the Terms and Conditions published in accordance with clause 15.1, you may terminate this Agreement by ceasing your use of the SalesLogs Services at any time prior to the amended Agreement taking effect.
Other than as permitted by clause 15.1, this Agreement may only be varied by written agreement between SalesLogs and the Dealer Principal.
This Agreement constitutes the entire agreement between the parties in relation to any matter dealt with in this Agreement and supersedes any earlier agreement or understanding between the parties and any earlier condition, warranty, indemnity or representation imposed, given or made by a party, in relation to that subject matter.
Notwithstanding any other provision of this Agreement, SalesLogs will not be liable for any loss or damage caused by its failure or delay to supply the SalesLogs Services due to anything outside the reasonable control of SalesLogs including but not limited to your acts or omissions, breakdown of plant or machinery, shortage of labour, strikes, lockouts, industrial disputes, fire or arson, storm or tempest, theft, vandalism, riots, civil commotions, terrorist actions, wars, government restrictions, intervention and control, transport delays, accidents or embargoes of any kind, network failure or the act or omission of any third party.
You must not assign or novate the benefit of this Agreement without SalesLogs’ prior written consent (which will not be unreasonably withheld).
You agree that SalesLogs may assign or novate this agreement to any person at any time, without further notice to you, and this Agreement constitutes your prior consent in writing to such assignment or novation.
Waiver of any power or right under this Agreement must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver.
If part or all of any clause of this Agreement is found to be illegal or unenforceable, that part of the Agreement will be deemed severed from the Agreement and will not affect the continued operation of the remaining provisions of the Agreement.
The parties agree that:
this Agreement may be formed, and will in all respects be binding on the parties if so formed, by any electronic means; and
any requirement under this Agreement that a document or notice be given “in writing” may be satisfied by a document displayed, stored and retrieved by electronic means.
This agreement is governed by and construed in accordance with the laws in force in the State of New South Wales, Australia, and the parties agree that any legal action will be heard in, and subject to the exclusive jurisdiction of, the courts of New South Wales.