Terms of service

01The agreement

These terms of service form a binding agreement between OMBR Systems Pty Ltd (OMBR, we, us, our) and the business that subscribes to the OMBR software (you, your, the Customer).

You accept these terms when you create an account, sign an order form or quotation referring to them, or use the service. If you are accepting on behalf of a company, you confirm you are authorised to bind it.

These terms, our privacy policy and any order form or written quotation we agree with you make up the whole agreement between us. Where an order form we have both signed conflicts with these terms, the order form prevails for that customer.

02Definitions

• Service — the OMBR software provided over the internet, including the web application, the field application and any related support.
• Customer Data — all data, records, documents and files you or your Users put into the Service, or that the Service generates from them.
• User — a person you authorise to use the Service under your account, including your employees and contractors.
• Office User — a User who works in the Service from an office role, such as scheduling, estimating, payroll, accounts or management.
• Field Personnel — a person on your roster who works on site, such as a traffic controller or supervisor, whether or not they sign in to the Service.
• Plan — the subscription tier you select, and the capacity and features it includes as published at ombr.com.au/pricing.
• Subscription Period — the month or year for which you have paid, as applicable to your Plan.

03Eligibility and accounts

The Service is provided to businesses, not to consumers for personal use. To subscribe you must be a business or other organisation, and the person creating the account must be at least 18 years old.

You are responsible for your account: for the Users you create, for what they do in the Service, and for keeping credentials secure. Accounts are for named individuals and must not be shared between people. Tell us promptly at support@ombr.com.au if you believe an account has been compromised.

You must give us accurate registration and billing information, including a valid ABN if you are registered for GST, and keep it up to date.

04The service we provide

Subject to these terms and to payment of the fees, we grant you a non-exclusive, non-transferable right for you and your Users to use the Service during your subscription, for your own business purposes.

OMBR is multi-tenant software. Your data is held in your own tenant and is not visible to other customers. We provide the Service as a hosted product: you do not receive a copy of the software, and we may update it from time to time.

05Plans and capacity

Plans are sized by the capacity of your operation — Field Personnel, vehicles and plant, and bookings per month — together with allowances for AI actions and document storage. The capacity included in each Plan is published at ombr.com.au/pricing and forms part of this agreement.

Office Users are unlimited on every Plan. We do not charge per seat, and you never need to leave someone out of the system to control cost.

If your usage exceeds the capacity of your Plan, we will let you know and work out with you which Plan fits. We would rather move you to the right Plan than cut off access. We may restrict the creation of new records that exceed a Plan’s capacity, but we will not delete or withhold access to data you have already entered because of a capacity limit.

You may move up a Plan at any time, taking effect immediately with the difference charged pro rata. You may move down a Plan effective from the start of your next Subscription Period, provided your usage fits within the lower Plan.

06Fees, GST and payment

Fees are those published for your Plan at ombr.com.au/pricing, or as set out in an order form we have agreed with you. All amounts are in Australian dollars and exclude GST, which is added where it applies.

Monthly Plans are billed in advance each month and continue until cancelled. Annual Plans are billed in advance for the year. Enterprise subscriptions are billed as set out in the applicable order form.

Fees are payable within the terms shown on the invoice. If an amount is unpaid past its due date we may charge interest at the rate published by the Reserve Bank of Australia for overdraft facilities, and after reasonable notice we may suspend the Service under section 19.

Except where the Australian Consumer Law or another law requires otherwise, fees already paid are not refundable, including where you cancel part way through a Subscription Period. If you cancel, you keep access until the end of the period you have paid for.

We may change our prices. For monthly Plans we will give at least 30 days’ notice before a change takes effect. For annual Plans a change takes effect at your next renewal, with at least 30 days’ notice before that renewal. If you do not accept a price change you may cancel before it takes effect.

07The free plan

We offer a free Plan with the capacity published on the pricing page. It is a real plan rather than a timed trial: there is no expiry, and no card is required.

The free Plan is provided as is. Support for it is community support, and we may change its capacity or withdraw it on 30 days’ notice. Sections 16 and 17 apply to it, and nothing in this section limits rights you have under the Australian Consumer Law.

08Your data

Customer Data is yours. You own it and all intellectual property rights in it. We claim no ownership of it.

You grant us a licence to host, copy, transmit, display and process Customer Data only to the extent needed to provide, support, secure and maintain the Service for you, and to meet our legal obligations. We do not use Customer Data for any other purpose. We do not sell it, and we do not use it to train machine-learning models for other customers.

Where the Service uses AI features, the relevant data is processed to produce the output you asked for. We use providers under terms that prohibit them using your content to train their models.

You can export your Customer Data at any time while your subscription is active. After termination we retain it for 60 days so you can export it or reactivate, then delete it from active systems within a further 30 days. Backups are cycled out on their normal schedule. If you need a full export after termination, ask us within the 60-day window and we will provide one.

You are responsible for the Customer Data you put into the Service: for having the right to provide it, and for meeting your own obligations to the individuals it concerns, including under the Privacy Act 1988 (Cth). Our privacy policy explains how we handle personal information.

09Acceptable use

You must not, and must not permit anyone else to:

• use the Service to break the law, or to store or transmit anything unlawful;
• upload material that infringes someone else’s intellectual property or privacy rights;
• upload malware, or anything designed to disrupt or damage systems or data;
• attempt to gain unauthorised access to the Service, to another customer’s tenant, or to the systems the Service runs on;
• probe, scan or load-test the Service without our written consent, other than a good-faith security report made to us;
• copy, reverse engineer, decompile or attempt to derive the source code of the Service, except to the extent that restriction is prohibited by law;
• resell, sublicense or provide the Service to a third party as a bureau service, unless we have agreed to it in writing;
• circumvent the capacity of your Plan, including by creating additional accounts to split usage; or
• use the Service to send unsolicited commercial electronic messages (see section 10).

If you breach this section we may suspend access under section 19. Where the breach is serious or continuing, we may suspend immediately and tell you straight afterwards.

10Messages sent through OMBR

The Service sends email and other messages on your behalf — quotes and invoices to your clients, purchase orders to your suppliers, shift notifications to your crews, portal invitations, and similar. Those messages are transactional: they relate to work you are already doing with the recipient.

You must comply with the Spam Act 2003 (Cth) in respect of every message sent through the Service. In particular you must not use the Service to:

• send commercial electronic messages to people who have not consented to receive them, where consent is required;
• send messages to addresses obtained from a purchased, rented, scraped or harvested list;
• send bulk marketing campaigns — the Service is not a marketing tool and must not be used as one;
• send messages that misrepresent who they are from, or that conceal the sender’s identity; or
• ignore a request from a recipient to stop sending them messages.

You are responsible for the accuracy of the recipient addresses you enter and for the content of what you send. We monitor delivery health, including bounce and complaint rates, to protect the deliverability of every customer’s mail. We may throttle or suspend sending from an account where those rates indicate a problem, and we will contact you about it.

11Your responsibilities

OMBR is a record-keeping and operations tool. It helps you run your business; it does not run it for you, and it does not replace your own judgement or your own compliance obligations. In particular:

• You remain responsible for work health and safety, for traffic management being carried out in accordance with the applicable standards, approvals and traffic management plans, and for the competence and ticketing of your personnel.
• You remain responsible for obtaining and complying with permits and road occupancy licences. Tracking a permit in OMBR is a record of it, not the approval itself.
• You remain responsible for your obligations as an employer, including pay, entitlements and applicable awards or agreements. Payroll figures produced by the Service are a calculation from the data you enter and should be reviewed before a pay run is made.
• You remain responsible for your tax and reporting obligations. The Service is not accounting, legal or tax advice.

12Availability, maintenance and support

We aim to keep the Service available at all times, and we know crews work nights and weekends. We do not, however, promise uninterrupted availability on standard Plans.

We schedule planned maintenance for low-usage windows and give reasonable notice of any that will cause an outage. Emergency maintenance may be carried out without notice where it is needed to protect the Service or its data.

Support is provided at the level included in your Plan, during our business hours of 8:00am to 5:00pm Australian Eastern Time on business days. Enterprise customers may agree a service level commitment with us in an order form.

13Third-party services

The Service can connect to systems operated by other parties, such as accounting packages. If you connect one, you authorise us to exchange the relevant data with it on your behalf. Those services are governed by their own terms, we do not control them, and we are not responsible for what they do or for their availability.

14Confidentiality

Each of us may receive information from the other that is confidential. Each of us must keep the other’s confidential information confidential, use it only for the purposes of this agreement, and disclose it only to people who need it and are bound to keep it confidential.

This does not apply to information that is public through no fault of the receiving party, was already known to it, or is required to be disclosed by law — in which case the party must, where lawful, tell the other first.

15Intellectual property

We own the Service and all intellectual property rights in it, including the software, its design and the OMBR name and marks. Nothing in this agreement transfers those rights to you. You own your Customer Data, as set out in section 08.

If you give us feedback or suggestions about the Service, we may use them to improve it without any obligation to you. Feedback is not confidential and we acquire no rights in your underlying business information by receiving it.

We may aggregate and de-identify usage data to analyse and improve the Service. Anything produced that way must not identify you, your Users, your clients or any individual.

16Warranties and the Australian Consumer Law

We warrant that we will provide the Service with due care and skill, and that we have the right to provide it to you.

Where we are permitted to limit our liability for failing to comply with a consumer guarantee, our liability is limited, at our option, to resupplying the services or paying the cost of having them resupplied.

Apart from those guarantees and the warranties in this section, and to the extent the law allows, the Service is provided as is, and we exclude all other warranties, whether express or implied.

17Liability

Subject to section 16, and to the extent permitted by law:

• neither party is liable to the other for indirect or consequential loss, loss of profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of goodwill, or loss or corruption of data (other than our obligation to restore data from backup in accordance with our normal procedures); and
• our total aggregate liability arising out of or in connection with this agreement, whether in contract, tort (including negligence), under statute or otherwise, is limited to the fees you paid us for the Service in the twelve months immediately before the event giving rise to the liability. For the free Plan, that limit is one hundred Australian dollars.

Each party’s liability is reduced to the extent the other party’s act or omission caused or contributed to the loss. Nothing in this section limits your obligation to pay fees that are properly due.

18Indemnity

You indemnify us against loss, damage and reasonable costs we suffer arising from a third-party claim that your Customer Data, or your use of the Service in breach of section 09 or section 10, infringed that party’s rights or breached the law. This does not apply to the extent the claim was caused by our breach of this agreement or our negligence.

We will tell you promptly of any claim we seek to be indemnified for, let you take conduct of its defence, and give you reasonable assistance at your cost.

19Suspension and termination

You may cancel at any time from within the Service or by writing to us. Your subscription then ends at the end of the Subscription Period you have paid for.

We may suspend your access where fees are more than 14 days overdue and we have given you notice, where you breach section 09 or section 10, or where suspension is necessary to protect the Service, its data or other customers. We will restore access once the cause is resolved.

Either of us may terminate this agreement:

• on 30 days’ written notice for a monthly Plan, or effective at the end of the current term for an annual Plan;
• immediately, if the other party materially breaches this agreement and does not remedy it within 14 days of written notice; or
• immediately, if the other party becomes insolvent, has an administrator or liquidator appointed, or something equivalent happens.

On termination your right to use the Service ends, any fees owing become payable, and your Customer Data is dealt with as set out in section 08. Sections 08, 14, 15, 16, 17, 18 and 21 survive termination.

20Changes to the service and these terms

We improve the Service continuously, and features change. We will not make a change that materially reduces the core functionality of the Plan you are paying for during a Subscription Period you have already paid for.

We may amend these terms. We will publish the amended terms on this page and, where the change is material, give you at least 30 days’ notice by email or in the product before it takes effect. If you do not accept a material change you may terminate before it takes effect, and we will refund any fees paid for the unused part of your Subscription Period.

21General

Governing law. This agreement is governed by the laws of New South Wales, Australia. Both parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts able to hear appeals from them.

Disputes. Before starting proceedings, each party must give the other written notice of the dispute and a senior representative of each must meet, in person or by video, to try to resolve it in good faith. This does not prevent either party seeking urgent injunctive relief.

Force majeure. Neither party is liable for a failure to perform caused by something beyond its reasonable control, including natural disaster, failure of telecommunications or power infrastructure, or the acts of a government authority. This does not excuse an obligation to pay money.

Assignment. Neither party may assign this agreement without the other’s written consent, which must not be unreasonably withheld, except that either may assign it to a purchaser of its business as a going concern.

Notices. Notices to you may be sent to the email address on your account or shown in the Service. Notices to us go to hello@ombr.com.au or to our address below.

No waiver. A failure to enforce a term is not a waiver of it.

Severance. If a term is unenforceable, it is read down to the extent needed, or severed, and the rest of the agreement continues.

Relationship. Nothing in this agreement creates a partnership, joint venture, employment or agency relationship between us.