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ACCESS AGREEMENT - TFM FLEET ONLINE

SOME THINGS A USER SHOULD KNOW

TFM Fleet Online is provided by Toyota Fleet Management, a division of Toyota Finance Australia Limited (ABN 48 002 435 181, AFSL and Australian Credit Licence number 392536) (TFM).

This Access Agreement – TFM Fleet Online (this Agreement) applies to any use by a User of TFM Fleet Online.

This Agreement may be accessed by visiting the TFM web site at https://www.tfmfleetonline.com.au. When first accessing TFM Fleet Online, the User will be prompted to confirm acceptance of this Agreement.

If a User believes that a Password has become known to another person, please immediately refer to clause 5.3 which outlines the action which the User must take to limit the Customer’s liability.

If a User is unable to access TFM Fleet Online or TFM Fleet Online does not function properly for any reason, contact the Customer’s TFM Relationship Manager or phone 1300 888 870 or email smallbusiness@toyota.com.au, from 8:30am - 5pm (AEST) on Normal Working Days. Please see clause 6 (support services) for further information.

1. DEFINITIONS

In this Agreement, unless the contrary intention appears:

Confidant means a User or TFM.

Confidential Information means the confidential information of a Disclosing Party, including information which:

(a) is by its nature confidential;

(b) is designated by a Disclosing Party as confidential; or

and includes without limitation information relating to:

(d) TFM Fleet Online, including without limitation its design, specification and functionality;

(e) the TFM Fleet Online Materials; and

(f) this Agreement.

Customer means each person named as a Customer in (or who is a lessee, hirer, renter, borrower or service user in or under) a Facility Agreement.

Disclosing Party means:

(a) where a User is the Confidant, TFM; and

(b) where TFM is the Confidant, the Customer or the Portal Administrator.

Facility Agreement means a Master Fleet Facility Agreement or any other master agreement (however described) between TFM and the Customer existing at the date of this Agreement or otherwise entered into during the term of this Agreement. It includes any individual finance, lease or rental agreement (however described) relating to a vehicle which is entered into pursuant to any such master agreement.

Intellectual Property Rights means any intellectual property rights including without limitation copyright, trademark, design and patent, whether created before, on, or after the date of this Agreement.

Loss means any cost, expense, payment, charge, loss, damage, liability, claim, action, proceeding, penalty, fine, judgment, order or other action. It includes legal costs on a full indemnity basis but excludes loss of profits and indirect, consequential, special or punitive damages.

Normal Working Days means Monday to Friday, excluding public holidays, in New South Wales.

Password means a specified alphanumeric combination set by a User in accordance with clauses 5.1 and 5.2 to allow access to TFM Fleet Online.

Portal Administrator means the authorised representative of the Customer provided with access to TFM Fleet Online in accordance with clause 2.

TFM Fleet Online means the online fleet portal operated by TFM and provided to the User in accordance with this Agreement for the purposes referred to in clause 3.1

TFM Fleet Online Materials means any user guides, training materials, specifications or other documents relating to TFM Fleet Online which TFM makes available to the Customer.

User means each of the following who has accepted this Agreement:

(a) the Portal Administrator;

(b) each employee, agent and contractor of the Customer who needs to use or uses TFM Fleet Online for the purposes referred to in clause 3.1;

2. CUSTOMER ACCEPTS TFM FLEET ONLINE

2.1. When TFM and the Customer enter into a Facility Agreement, TFM will ask the Customer to nominate an authorized representative as its Portal Administrator and TFM will provide that representative with a User name and Password to access and use TFM Fleet Online on behalf of the Customer as its Portal Administrator.

2.2. When the Portal Administrator first accesses TFM Fleet Online, that access will constitute the Customer’s acceptance of this Agreement.

The Portal Administrator warrants that it is authorised by the Customer to accept, and bind the Customer to, this Agreement.

2.3. The Customer acknowledges and agrees that each use by a User of TFM Fleet Online is at its own risk and the Customer takes full responsibility for all transactions, acts and requests that occur within TFM Fleet Online.

3. ACCESS TO TFM FLEET ONLINE

3.1. From the time when a User accepts this Agreement, TFM agrees to provide that User with access to TFM Fleet Online for the purpose of:

(a) accessing, requesting and managing information about the Customer’s Facility Agreements; and

(b) facilitating the operation of transactions pursuant to those Facility Agreements.

3.2. The User acknowledges and agrees that its access to and use of TFM Fleet Online is governed by:

(a) this Agreement; and

(b) any additional terms, conditions, instructions or notices contained within TFM Fleet Online.

3.3. While TFM will use all reasonable endeavours to ensure that TFM Fleet Online operates efficiently and is available for access and use by the User between the hours of 8:30am to 5:00pm (AEST) on Normal Working Days, TFM makes no guarantee as to the availability of TFM Fleet Online during these hours.

3.4. The User acknowledges and agrees that:

(a) TFM Fleet Online may be unavailable from time to time due to scheduled maintenance and upgrades;

(b) TFM Fleet Online may be unavailable from time to time due to unforeseen events such as power outages or failures resulting from third party service providers, including third party internet service providers;

(c) it is solely responsible for procuring or obtaining at its own expense all hardware, equipment, internet services and facilities necessary or required to operate TFM Fleet Online;

(d) the quality of the TFM Fleet Online service will be determined by the Customer’s own hardware, equipment, internet services and facilities; and

(e) TFM may use the services of third parties or subcontract some or all of its obligations to third parties in conjunction with this Agreement or TFM Fleet Online.

4. USE OF TFM FLEET ONLINE

4.1. The Portal Administrator will be principally responsible for managing each User’s use of TFM Fleet Online, including the provision of User names and Passwords to a User who needs to use TFM Fleet Online for the purposes referred to in clause 3.1.

4.2. The User acknowledges and agrees that the User is able to conduct and perform transactions, acts or requests within TFM Fleet Online which will be binding on the Customer. The User warrants that it:

(a) has been provided with a User name and Password pursuant to this Agreement, either by the Portal Administrator or TFM; and

(b) is authorised by the Customer to conduct and perform transactions, acts or requests on behalf of the Customer using TFM Fleet Online.

4.3. The Customer is liable for any transaction, act or request using TFM Fleet Online which is carried out with its knowledge and consent, in addition to any Loss which arises in connection with any of the following:

(a) a mistake by a User in relation to a transaction, act or request, including where the User enters incorrect information;

(b) voluntary disclosure of a User’s Password to anyone else (including any other User);

(d) any failure by a User to comply with clause 5 (User identification and Passwords);

(e) any unreasonable delay by a User in failing to notify TFM of a matter in clause 5.3. However, in this case, the Customer’s liability extends only to Losses which occur between the time when the User actually became aware, or ought to have become aware, of the relevant matter and the time that TFM is notified of that matter.

The Customer is not liable for any Loss which arises in connection with any of the following:

(f) any error made by, or any fraudulent or negligent conduct of, TFM, its employees or agents;

(g) an expired or cancelled Password;

(h) any use of TFM Fleet Online by a User which occurred before that User received its identification and/or Password;

(i) any unauthorised transaction, act or request which takes place after a User has notified TFM of a matter in clause 5.3.

4.4. The information available on TFM Fleet Online regarding transactions and any other information relevant to a Facility Agreement may not always be completely up to date. However, in most cases the information will reflect transactions and information up to the close of business on the previous Normal Working Day.

4.5. Where a Facility Agreement requires an act, notice, request, demand, transaction or communication to be made or performed in writing, and that act, notice, request, demand, transaction or communication is capable of being made or performed within TFM Fleet Online, then that act, notice, request, demand, transaction or communication will be taken to have been made in writing by an appropriately authorised officer of the relevant party.

4.6. The User must ensure that it accesses and uses TFM Fleet Online only in accordance with this Agreement and the User will at all times prevent unauthorised and unlawful access and use of TFM Fleet Online.
The Customer warrants that each User who is provided with a User identification and Password pursuant to this Agreement, either by the Portal Administrator or TFM, is authorised by the Customer to use TFM Fleet Online on behalf of the Customer.
The Customer accepts that, subject to this Agreement, it is taken to have authorised any access to TFM Fleet Online which is carried out using a User’s identification and Password.

5. USER IDENTIFICATIONS AND PASSWORDS

5.1. The User must:

(a) set its Password when it first accesses TFM Fleet Online and at any subsequent time whenever TFM requires it to do so;

(b) not choose a Password which is the same as another Password which is known to anyone else (including another User);

(c) not choose a Password which contains any part of its date of birth, any recognisable part of its name or any part of its home, business or mobile telephone number;

(d) take proper care when accessing TFM Fleet Online to ensure that its Password is not disclosed to anyone else (including another User);

(e) always keep its identification and Password for TFM Fleet Online confidential and secure;

(f) change its Password as soon as it knows or suspects that it may have been disclosed to another person (including another User).

5.2. The User must apply the following rules to set a Password:

(a) it must not contain the User’s identification;

(b) it must be between 8 and 16 characters long;

(i) uppercase characters (A - Z);

(ii) lowercase characters (a - z);

(iii) digits (0 - 9);

(iv) non-alphabetic characters (e.g. !, $, #, %); and

(d) it must be different from any of the User’s last 6 Passwords.

5.3. The User must notify TFM immediately if:

(a) the User becomes aware or suspects that its identification or Password has become known to any other person (including another User);

(b) a computer which the User uses or has used to access TFM Fleet Online is lost, stolen, fraudulently used, adversely disclosed or in any way compromised;

(c) the User becomes aware of any apparent discrepancy, unauthorised transaction, act or request or error on a Facility Agreement which arises in connection with TFM Fleet Online; or

(d) the User believes that it has been fraudulently induced to make a transaction, act or request on a Facility Agreement using TFM Fleet Online.

Contact the Customer’s TFM Relationship Manager or phone 1300 888 870 or email smallbusiness@toyota.com.au, from 8:30am - 5pm (AEST) on Normal Working Days.

5.4. The Portal Administrator must immediately deactivate the User identification and Password of a User where that User leaves the employ of the Customer, wishes to terminate its use of TFM Fleet Online or is no longer permitted to use TFM Fleet Online.

5.5. The Portal Administrator or the Customer will immediately notify TFM (as set out in clause 5.3) if:

(a) it becomes aware of any event specified in any of clauses 5.3(a) to (d); or

(b) the Portal Administrator leaves the employ of the Customer or is no longer permitted by the Customer to use TFM Fleet Online in that capacity.

5.6 TFM may suspend or cancel a User’s access to TFM Fleet Online at any time without notice to that User if TFM believes that any event specified in any of clauses 5.3(a) to (d) has occurred or that the User has failed to comply with this Agreement.

5.7 Where the Portal Administrator or the Customer requests TFM to create a User for the Customer that cannot be created by the Portal Administrator, TFM will endeavour to create that User by no later than 5.00pm on the next Normal Working Day.
Where the Portal Administrator or the Customer requests TFM to deactivate a User which has been created for or by the Customer and deactivation cannot be undertaken by the Portal Administrator, TFM will endeavour to deactivate that User by no later than 5:00pm on the next Normal Working Day.

6. SUPPORT SERVICES

6.1. TFM will provide the User will telephone and email support services for TFM Fleet Online between the hours of 8:30am to 5:00pm (AEST) on Normal Working Days. While TFM will provide support services with the aim of minimising any disruption to the User’s use of TFM Fleet Online and will address problems, faults and requests using its best endeavours and as soon as reasonably possible, taking into account the nature and severity of that problem, fault or request, the User acknowledges that TFM does not guarantee any response or rectification times in conjunction with the support services.

6.2. The telephone and email support services provided by TFM will include:

(a) notification of work around and rectification timeframes;

(b) provision of suitable work around solutions to user problems and faults with TFM Fleet Online;

(d) provision of ad hoc advice and training on the proper use of TFM Fleet Online;

(e) provision of User identifications which have been lost or forgotten by the authorised User; and

(f) provision of new Passwords where existing Passwords have been lost or forgotten by the authorised User, or if the User’s account has been locked out for some reason,

but do not include:

(g) rectification of faults in any end-user equipment, programs or systems used by the User in conjunction with TFM Fleet Online; or

(h) the set up or configuration of any end-user equipment, programs or systems of the User.

7. INTELLECTUAL PROPERTY RIGHTS

7.1. All Intellectual Property Rights in TFM Fleet Online and the TFM Fleet Online Materials are and will remain vested in TFM or TFM’s third party licensors.

7.2. The User must not, during or at any time after the termination of this Agreement, permit any act which infringes the Intellectual Property Rights of TFM or TFM’s third party licensors in TFM Fleet Online or the TFM Fleet Online Materials.

7.3. TFM grants to the User a non-transferable, non-assignable, non-exclusive licence to use:

(a) TFM Fleet Online for the purposes referred to in clause 3.1; and

(b) the TFM Fleet Online Materials for the purpose of using TFM Fleet Online in accordance with clause 7.3(a).

7.4. The User must not:

(a) use TFM Fleet Online or the TFM Fleet Online Materials for any purpose other than as specified in this Agreement;

(b) make TFM Fleet Online or the TFM Fleet Online Materials available to persons other than other Users of the Customer who have been issued with User identifications and Passwords pursuant to clause 5;

(c) copy or use TFM Fleet Online or the TFM Fleet Online Materials in any way not specifically permitted under this Agreement;

(d) reverse assemble or reverse compile, alter, modify, disassemble, decrypt or create derivative works of TFM Fleet Online or the TFM Fleet Online Materials;

(e) rent, sell, transfer or sub-license all or part of TFM Fleet Online or the TFM Fleet Online Materials to any person; or

(f) remove any copyright, trademark, confidentiality or other proprietary notices or labels on TFM Fleet Online or the TFM Fleet Online Materials.

7.5. This clause 7 survives the termination of this Agreement.

8. CONFIDENTIALITY

8.1. A Confidant must not, without the prior written approval of the Disclosing Party, disclose Confidential Information of the Disclosing Party to any person other than to the Confidant’s Users or employees, agents or contractors who need to know or use the Disclosing Party’s Confidential Information for the purpose of this Agreement and where such Users or employees, agents or contractors have been made aware of the Confidant’s obligations of non-disclosure and confidentiality.

8.2. The obligation of the Confidant under clause 8.1 will not be taken to have been breached where the Confidential Information is legally required to be disclosed, or is in the public domain other than as a result of a breach of this Agreement.

8.3. On the termination of this Agreement, each Confidant will, where the Confidential Information is no longer required for the purpose of a Facility Agreement or any other agreement between TFM and the Customer which remains on foot:

(a) immediately cease all use of the Confidential Information of the Disclosing Party; and

(b) promptly return to the Disclosing Party, all Confidential Information of the Disclosing Party in its custody, possession or control, or if directed in writing, destroy all copies of that Confidential Information.

9. TERMINATION

9.1. The Customer may terminate its use of TFM Fleet Online for any reason by providing TFM with 30 days’ written notice of its intention to terminate.

9.2. TFM may cease providing TFM Fleet Online or suspend access to TFM Fleet Online to the Customer for any reason by providing 90 days’ written notice to the Customer of its intention to do so.

9.3. The Customer or TFM (each a Terminating Party) may terminate this Agreement by notice in writing to the other party if:

(a) the other party is in breach of any term of this Agreement and such breach is not remedied within 14 days’ written notice by the Terminating Party, where such notice specified the breach and requested rectification of that breach;

(b) the other party is in breach of any term of this Agreement and such breach is not capable of being remedied; or

9.4. For the avoidance of doubt, the User acknowledges and agrees that a breach of clause 7 (Intellectual Property Rights) by a User will constitute a material breach of the Agreement which is not capable of being remedied and for which TFM may immediately terminate the Agreement in accordance with clause 9.3(b).

9.5. The termination of this Agreement does not have any effect on any Facility Agreement.

9.6. The termination of all Facility Agreements will result in the immediate termination of this Agreement.

9.7. Upon the cessation or termination of the Customer’s use of the TFM Fleet Online or this Agreement for any reason, the Customer will:

(a) return to TFM all TFM Fleet Online Materials and any other material provided by TFM; and

(b) cease all use of TFM Fleet Online,

and TFM will deactivate all User identifications and Passwords that have been created for or by the Customer or the Portal Administrator for TFM Fleet Online.

10. LIABILITY

10.1. So far as the law permits, TFM will not be liable to the User for any Loss arising directly or indirectly from:

(a) the reliance by any User on any information obtained through the use of TFM Fleet Online;

(b) any breach of this Agreement by the User;

(c) any request to perform a transaction, act or request which is not accepted or received by TFM Fleet Online for any reason including as a result of any technical, processing or User error;

(d) the User’s use of or inability to use the TFM Fleet Online Materials;

(e) any transaction, act or request which takes place within TFM Fleet Online, whether authorised by the Customer or not;

(f) the processing of any transaction, act or request on the next Normal Working Day after the User has requested it;

(g) any failure or delay of TFM Fleet Online to provide information or perform a requested transaction, act or request which is caused by any matter beyond TFM’s control.

10.2. Nothing in this Agreement excludes, restricts or modifies any condition, guarantee, warranty or liability which may at any time apply or be implied in relation to this Agreement where to do so is illegal or would render any provision of this Agreement void. In such cases and where permitted by the legislation TFM’s liability in respect of any such provision is limited to:

(a) in the case of TFM Fleet Online, the repair or rectification of any fault or error in TFM Fleet Online;

(b) in the case of the TFM Fleet Online Materials and at the option of TFM, the replacement of the TFM Fleet Online Materials or the supply of equivalent materials; and

(i) the supply of the service again; or

(ii) the payment of the cost of having the services supplied again, but only where the User has paid TFM a fee for that service.

11. INDEMNITY

The User indemnifies TFM against all Loss suffered by TFM in connection with or as a result of the User’s fraud or gross negligence in connection with its use of TFM Fleet Online or the User’s failure to comply with any of its obligations under this Agreement.

12. ABOUT THIS AGREEMENT

12.1. In the event of any inconsistency between:

(a) any terms, conditions, instructions or notices contained within TFM Fleet Online and notified to the Customer and:

(i) the terms of this Agreement; or

(ii) the terms of a Facility Agreement,

the terms, conditions, instructions or notices contained within TFM Fleet Online and notified to the Customer shall prevail to the extent of any inconsistency; or

(b) the terms of this Agreement and the terms of a Facility Agreement, the terms of this Agreement shall prevail.

12.2. TFM may, at any time, add to, remove or change the functionality of TFM Fleet Online, or change this Agreement without any User’s consent.
TFM will notify each User of any changes to this Agreement by displaying a notice detailing those changes when the User logs in to TFM Fleet Online. Before the User can enter the secure pages of TFM Fleet Online, the User will be required to accept those changes before it will be able to proceed. If the User does not accept those changes, the User will be denied any further access to TFM Fleet Online.

13. GOVERNING LAW

This Agreement and each transaction carried out or contemplated by TFM Fleet Online will be governed by the law in force in New South Wales. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Courts exercising jurisdiction there.

I agree to the conditions set out in this Access Agreement.

You must accept the Access Agreement in order to proceed.