Standard Terms and Conditions for Supply of Products and/or related Services (Standard Terms)
Supply of Products and/or related Services by the Supplier is expressly subject to acceptance of these Standard Terms by the Customer. Any acceptance of the Supplier’s Estimate in writing or otherwise, or failing that the Supplier’s commencement of supply of the Products or performance of Services shall constitute the Customer’s acceptance of these Standard Terms.
1. Precedence of terms
1.1 The Standard Terms shall apply notwithstanding:
(a) any previous communications, representations, inducements, undertakings, agreements and arrangements between the parties;
(b) any standard terms and conditions of the Customer; or
(c) any terms and conditions proposed by the Customer, whether by counter-offer or within or annexed to any purchase order issued by the Customer.
2.1 90DSG Claim Form means the form of that name available for download and/or completion on the Supplier’s website;
2.2 Asset means the vehicle, vehicles or other assets owned, managed or operated by the Customer in Australia (or any other jurisdiction or location agreed by the parties in writing).
2.3 Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
2.4 Business Day means a day that is not a Saturday, Sunday or public holiday generally observed in the place where an act is to be performed or a payment is to be made.
2.5 Contract means the agreement between the Supplier and the Customer that arises pursuant to the Estimate and the Customer’s order and is subject to these Standard Terms unless otherwise agreed in writing by the parties.
2.6 Corporations Act means the Corporations Act 2001 (Cth).
2.7 CPI means the consumer price index Perth Capital City (All Groups) index published each quarter by the Australian Bureau of Statistics.
2.8 Customer means the party who has contracted with the Supplier for the Supplier to provide Products and/or Services to that party, pursuant to the Contract and includes that party’s employees, subcontractors, representatives or agents.
2.9 Customer Data means any data provided by the Customer to the Supplier in accordance with this Contract or for or in connection with the provision of the Products and Services.
2.10 Delivery Location means the location for the Customer to accept delivery of the Products from the Supplier as specified in the Estimate upon notification by the Supplier that the Products are ready for dispatch and after payment of any outstanding amounts under any tax invoice has been received by the Supplier in full.
2.11 Documentation means any instruction manuals, user guides and other information relating to the supply of any Products and/or Services in connection with the Contract.
2.12 Estimate means the Supplier’s written estimate issued to the Customer stating, among other things, the Price for supply of the Products and/or Services, the type and quantity of Products and the scope of the Services.
2.13 Event of Default means:
(a) the Customer not paying on the due date any amount payable pursuant to the Contract;
(b) any representation or statement made or deemed to be made by the Customer being shown to have been incorrect or misleading in any material respect;
(c) it becoming unlawful for a party to perform its obligations under the Contract;
(d) a party repudiating, or evidencing an intention to repudiate, the Contract;
(e) a party breaching its obligations under Clause 29.2;
(f) the merger with or the takeover of the Customer by another person; or
(g) a party suffering an Insolvency Event.
2.14 Force Majeure Event means any occurrence arising from contingencies, circumstances or causes which are outside the reasonable control of a party and which, by the exercise of reasonable diligence, that party is unable to prevent or remedy, including but not limited to, the following circumstances: accident, explosion, acts of terrorism, revolt, war, famine, epidemic, pandemic, industrial action except where such action is limited to the affected party’s business or personnel, compliance with any law, regulation, decree, order or request of any government or acts of God.
2.15 Guarantee Amount means:-
(a) the amount of money paid by the Customer to the Supplier for the outright purchase of Qualifying Products;
(b) the amount of money paid by the Customer to the Supplier for Subscription Fees relating to the Qualifying Products;
and expressly excludes:
(a) any monies paid by the Customer to the Supplier or any other person in relation to the installation and removal of the Qualifying Products; and
(b) the costs incurred by the Customer in relation to the delivery to, or return from, the Customer of Qualifying Products ; and
- any other monies, losses, costs, expenses, fees, fines, penalties or other amounts paid or incurred by the Customer in relation to the Qualifying Products whatsoever and howsoever arising.
2.16 GST and GST Law each means the same as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2.17 Insolvency Event, in relation to a party, occurs where:
(a) that party becomes an externally administered body corporate for the purposes of the Corporations Act or an external insolvency administrator is appointed to any such party under the provisions of any companies or securities legislation of another jurisdiction;
(b) a controller, as that term is defined in the Corporations Act, or mortgagee in possession is appointed to the assets that party, or any such appointment is reasonably likely;
(c) that party fails to comply with a statutory demand in the manner specified in section 459F of the Corporations Act, and has not made an application to set aside such demand under section 459G of the Corporations Act; or
(d) that party is unable to pay its debts as and when they fall due.
2.18 Intellectual Property Rights means all intellectual property rights, including but not limited to patents, copyright (including all copyright in software), registered designs, registered and unregistered trademarks, rights to have information kept confidential, processes, inventions, improvements, innovations, modifications and discoveries, whether or not capable of being secured, registered or protected by any means.
2.19 Law means:
(a) any legislation, ordinance, regulation, by-law, order, award, proclamation or Australian industry standard applicable to the provision of the Products and Services including without limitation the Privacy Act 1988 (Cth); and
(b) any certificates, licences, consents, permits, approvals and requirements of any authority and fees and charges payable in connection with the foregoing.
2.20 Nominated Payment Method means the debit card, credit card, bank account, electronic fund transfer or other payment method approved by the Supplier in its absolute discretion as nominated by the Customer and provided to the Supplier before commencement of the Subscription Period (as applicable).
2.21 Price means the fees and charges payable by the Customer to the Supplier for purchase of the Products and/or related Services provided to the Customer by the Supplier as stated in the Supplier’s Estimate. For the avoidance of doubt, the fees and charges payable for the Products do not include the Services and any Services are provided at an additional cost.
2.22 Products means the products referred to in the Estimate including any Documentation.
2.23 Qualifying Products means Products supplied by the Supplier to the Customer pursuant to the first order ever placed by the Customer with the Supplier. To avoid doubt:-
- all subsequent or additional orders placed by the Customer after the Customer’s first order ever placed with the Supplier (that is accepted by the Supplier) will not be eligible for the Satisfaction Guarantee; and
- all orders placed by entities or persons related to the Customer (as determined by the Supplier in their discretion) which occur subsequently to the Customer’s first order will not be eligible for the Satisfaction Guarantee regardless of whether it is the first order placed with the Supplier by that entity or person(s).
2.24 Satisfaction Guarantee means the guarantee provided by the Supplier to the Customer on the terms of which are set out in clause 12;
2.25 Satisfaction Guarantee Period means the period of time commencing on the date that is the earlier of the Customer signing the Customer Agreement and the Customer returning the Customer Agreement to the Supplier and ending on the expiry of ninety (90) days thereafter unless otherwise agreed.
2.26 Security Interest means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of any obligation, or that gives a creditor priority over unsecured creditors.
2.27 Services means the services provided by the Supplier as detailed in the Estimate including but not limited to installation, Subscription Services and support services including any associated Documentation.
2.28 SIM cards means the SIM card(s) provided by the Supplier to the Customer for use with the Products and Services during the Subscription Period.
2.29 Site means the location, stated in the Contract or otherwise notified by the Customer, that the Supplier is required to provide the Services at and/or deliver Products to if the Services have been ordered in addition to supply of the Products.
2.30 Subscription Fee means the fee set out in the Estimate payable by the Customer to the Supplier one (1) month in advance during the Subscription Period.
2.31 Subscription Period is the period of time set out in the Estimate for subscription. If no subscription period is stipulated in the Estimate, the subscription period will be taken to be commence on the first day of the month following delivery of the Products.
2.32 Subscription Services means the subscriptions services provided by the Supplier as detailed in the Estimate including any associated Documentation.
2.33 Supplier means GPS Tracking Systems Pty Ltd T/A Fleetware ABN 29 612 079 268 and includes that party’s employees, subcontractors, representatives or agents.
2.34 Support Services means the support services offered by the Supplier during the Subscription Period to correct faults or assist the Customer in operating the Products or Services which may be offered at an additional cost.
2.35 Transmission Services means the mobile electronic transmission services, which may include GSM/GPRS, Iridium or other satellite, SigFox, LoRa and RFID data transmissions.
2.36 Variation means a change to the scope of Services or the type or quantity of Products, or to any other obligation of the Supplier under the Contract, which is requested by either party pursuant to Clause 19.
2.37 Warranty Period means a period of thirty six (36) months following delivery of the Products in accordance with the Contract or as otherwise agreed by the parties in writing.
3. Estimate and order
3.1 An Estimate is valid for thirty (30) days from the date of the Estimate.
3.2 All orders are subject to acceptance by the Supplier and are subject to these Standard Terms. The Supplier reserves the right not to supply the Products and/or Services to the Customer.
4. Price and payment
4.1 The Supplier will issue tax invoices that are compliant with GST Law for all or part of the supply of the Products and/or Services in accordance with the dates and amounts stipulated in the Estimate.
4.2 Within fourteen (14) days of the date of any tax invoice, unless otherwise stated in the Estimate or on that tax invoice, the Customer shall pay the amount shown as payable on that tax invoice in full by electronic funds transfer to the Supplier’s bank accounts as specified in the Estimate. For the avoidance of doubt, the Subscription Fee associated with provision of the Services is payable one (1) month in advance commencing on the first day of the month following delivery of the Product for duration of the Subscription Period.
4.3 The Customer consents and agrees that:
(a) if the Customer has purchased less than ten (10) Products, the monthly Subscription Fee shall be charged to the Customer’s nominated debit or credit card on the date that payment is due; or
(b) if the Customer has purchased more than ten (10) Products, the Customer shall pay the amount shown as payable on any tax invoice in full by electronic fund transfer to the Supplier’s bank accounts as specified in the Estimate,
unless another Nominated Payment Method has been agreed by the parties.
4.4 If the Nominated Payment Method is dishonoured or refunded, the Customer will be charged all bank fees incurred by the Supplier together with an administration fee of no more than fifty-five dollars ($55.00) as set by the Supplier in its absolute discretion from time to time.
4.5 To the maximum extent allowable at law, fees paid for each Subscription Period are non-refundable and there will be no refunds or credits for partial Subscription Periods or for adjustments made to the Products or Services agreed in the Estimate. If the Supplier elects to terminate the Contract, and the Customer is not in breach, then the Supplier agrees to refund the portion of the Subscription Fees paid in advance for the Subscription Period remaining as at the date of termination.
4.6 If a Customer disputes an invoice rendered in accordance with this Contract, a notice of dispute must be provided to the Supplier within ten (10) days of receipt of the invoice. Any dispute in relation to any invoiced amounts will be resolved in accordance with clause 25. Any amount which is undisputed remains due and owing as at the date provided on the invoice. To the maximum extent allowable at law, if notice of the dispute as to any amount owing is not provided to the Supplier within ten (10) days of receipt of the invoice, then the Customer agrees to waive any rights to dispute the invoiced amount.
4.7 The Customer will be sent a final invoice upon termination of the Agreement in accordance with clause 21.
4.8 The Subscription Fee set out in the Contract is subject to price increases at the end of the Subscription Period for any extension of the Subscription Services up to a total increase of CPI plus five (5) per cent.
5.1 The Price does not include GST. In addition to paying the Price and any other amount payable in connection with supply of the Products and/or the Services, the Customer shall:
(a) pay to the Supplier an amount equal to any GST payable in respect of the Price or any other amount payable; and
(b) make such payment by the due date of the relevant tax invoice.
6. Default in payment
6.1 If the Customer fails to make any payment by the due date required pursuant to Clause 4.2, the Supplier may:
(a) charge interest on the overdue amount at the rate of two (2) per cent per annum above the then prevailing base lending rate of the Australia and New Zealand Banking Group Limited accruing daily;
(b) suspend or cancel any Services and repossess the Products; and/or
(c) terminate the Contract pursuant to Clause 21.
7. Delivery schedule
7.1 The Supplier will use reasonable endeavours to meet any completion or delivery date stated in its Estimate but such a date is not to be construed as a fixed date unless agreed to by the Supplier in writing.
8.1 Installation of any hard-wired Products (i.e., any Products permanently connected to an Asset by electrical wires) must be installed and de-installed by an auto electrician or GPS installer authorised by the Supplier to carry out the installation and set up of the Products.
8.2 If such Products are not installed and de-installed in accordance with clause 8.1, then the warranties provided in clause 15 will be rendered null and void in their entirety.
9. Site access and work on Site
9.1 The Customer will provide access to the Site on such dates and for such periods as is reasonably required by the Supplier to perform the Services.
9.2 The Customer will provide free of charge to the Supplier all utilities required for performance of the Services on Site.
9.3 The Supplier may charge the Customer an additional fee if the Customer fails to provide the Supplier with satisfactory all-weather access to the Site, or provide a Site suitable for delivery and/or installation, or fails to make the Asset available at the agreed installation date and time.
10. Products and Services
10.1 The Supplier will supply the Products to the Customer in good working order.
10.2 The Supplier will exercise care and diligence in providing the Services to the Customer.
10.3 Subscription Services will be supplied to the Customer on a non-exclusive and non-transferable basis during the Subscription Period.
10.4 The Supplier may provide the Customer with SIM cards for the Products that the Customer is licensed to use solely in connection with the Products and Services and for transmitting data in accordance with the purposes set out in clause 145.
10.5 The Supplier may direct the Customer to return or destroy the SIM cards (at the Supplier’s election and in its absolute discretion) upon expiry or termination of the Contract or a reduction in the quantity required for the Products.
10.6 Transmission Services are provided in accordance with an agreed data allowance and the Customer acknowledges and agrees that it may incur additional charges for any data usage which exceed this data allowance.
10.7 The Supplier reserves the right to suspend any of the Services at any time without notice for any reason including but not limited to technical reasons, network repairs, issues with the Head Licence, or to comply with any Law or order including from any emergency service or government authority.
11. Support Services
11.1 During the Subscription Period, the Supplier will use its best endeavours to provide the Customer with access to Support Services.
11.2 The cost associated with the provision of any Support Services maybe charged to the Customer, including without limitation any costs associated with:
(a) removal or reinstallation of the Products from any Assets nominated by the Customer;
(b) any freight or transportation costs incurred;
(c) any travel cost for callouts; and/or
(d) time incurred in callouts.
11.3 If the Customer requires Support Services during the Subscription Period, the Customer must contact the Supplier as follows, or using any other form of communication or contact details as otherwise notified to the Customer in writing from time to time:
Telephone: 1300 88 36 79
11.4 Support Services are only available during the hours of 7.00AM to 5.00PM (AWST) Monday to Friday in the State of Western Australia or as otherwise agreed in writing between the Customer and the Supplier in the Suppliers absolute discretion.
11.5 Support Services do not include services that are required as a result of:
(a) misuse of the Products or Services, or failure to use the Products or Services in accordance with clause 14;
(b) unauthorised attempts to repair, replace, modify or maintain the Products; or
(c) damage to Products that occur during or subsequent to a breach of the terms of this Contract by the Customer.
11.6 Support Services are only available where Products have been installed in accordance with clause 8 of this Contract.
12. Satisfaction Guarantee
12.1 All terms and conditions of the Contract apply for the Satisfaction Guarantee Period unless otherwise agreed in writing by the parties or expressly stated in this clause 12.
12.2 Subject to the terms and conditions set out in this clause 12, the Customer may, at any time before the expiration of the Satisfaction Guarantee Period file a 90DSG Claim Form with the Supplier for a refund of the Guarantee Amount if the Customer is not satisfied with the Qualifying Products.
12.3 The process to make a claim under the Satisfaction Guarantee is as follows:-
- the Customer must sign and file the 90DSG Claim Form prior to 5pm (WST) on the last day of the Satisfaction Guarantee Period and ensure it is received by the Supplier by that time;
- the Supplier will then have a period of up to 5 business days after the date the 90DSG Claim Form is received to assess the claim, accept or reject it and notify the Customer of the outcome of its assessment;
- if the claim is accepted, then the Customer must ensure that the Qualifying Products are received by the Supplier at the Supplier’s head office (or such other location as the Supplier may direct the Customer) within 10 business days of the date that the Supplier notifies the Customer of acceptance of the claim;
- on receipt by the Supplier of the Qualifying Products, the Supplier will confirm receipt with the Customer;
- the Supplier will then have a period of 10 business days following the date of receipt of the Qualifying Products to assess their condition complies with clause 12.4;
- if the Qualifying Products comply with the condition required by clause 12.4, then the Supplier will refund the Guarantee Amount to the Customer within 3 business days.
12.4 The Customer is liable for all costs of returning the Qualifying Products to the Supplier and is solely responsible for using appropriate packaging and tracking to ensure the Qualifying Products are returned in an as new condition (subject only to reasonable fair wear and tear during the Satisfaction Guarantee Period).
12.5 If any of the Qualifying Products are not returned in the condition required by clause 12.4, then the Supplier will not be obliged to pay to the Customer any of the Guarantee Amount in relation to the Qualifying Products that do not meet the required condition.
- The Customer will not be entitled to the benefit of the Satisfaction Guarantee if:-
(a) an Event of Default has occurred in relation to the Customer or is reasonably likely to occur in relation to the Customer before the expiration of the Satisfaction Guarantee Period; and/or
(b) the Customer fails to sign and return the Customer Agreement before the Products are shipped to the Customer; and/or
(c) the Customer fails to ensure a signed 90DSG Claim Form is received by the Supplier by 5pm (WST) on the last day of the Satisfaction Guarantee Period.
- This clause 12 does not apply to claims under a warranty provided by the Supplier (refer to clause 15 for warranty claims.)
13. Subscription Period
13.1 All terms and conditions of the Contract apply for the duration of the Subscription Period unless otherwise agreed in writing by the parties.
13.2 The Customer guarantees the minimum Subscription Period as stated in the Contract. Notwithstanding the date of cancellation or return of the Products and/or Services, the Subscription Fee is payable for the full Subscription Period unless otherwise agreed by the parties in writing.
13.3 The Subscription Services will automatically renew for additional Subscription Periods until either the Supplier or the Customer explicitly cancel the Subscription Services in accordance with clause 21.
14. Customer undertakings
14.1 The Customer will use the Products in the manner for which they were designed and will:
(a) use the Products and Services strictly in accordance with any applicable Laws and regulations;
(b) use the Products and Services strictly in accordance with any Documentation and reasonable instructions provided by or on behalf of the Supplier before or at any time during the Subscription Period;
(c) use the Products and Services strictly for the purposes of:
(i) collecting data, images and video footage in relation to any Asset;
(ii) collecting data in relation to the geographical position of any transmission device purchased or otherwise supplied to the Customer by or on behalf of the Supplier;
(iii) tracking and tracing any Asset; and
(iv) reporting, planning and messaging purposes associated with each of the above purposes;
(d) ensure that all other persons or entities using or accessing the Products and/or Services do so in compliance with this clause 14 and this Contract generally;
(e) obtain consent or authorisation at the Customer’s own expense for use of the Products on the Assets if required.
14.2 The Customer must not:
(a) use the Products for any illegal or illegitimate purpose including without limitation any unauthorised tracking or monitoring of a person or entity without their consent; and
(b) use any equipment in connection with the Products or Services which has not first been approved by the Supplier in writing; and
(c) alter or modify the Products without prior written approval from the Supplier.
15.1 The Supplier warrants to the Customer that:
(a) it has full power and authority to licence the Products and Services under its Head Licence;
(b) to the best of its knowledge and belief the Products and Services do not infringe any intellectual property rights of a third party;
(c) during the Warranty Period the Products will be free from defect and any defective Products will be replaced or repaired (in the Supplier’s absolute discretion) provided that:
(i) the Products have been installed and de-installed (as applicable) in accordance with clause 8.1;
(ii) the Products have not been altered or modified other than in accordance with clause 14.2(c); and
(iii) a claim is made to the Supplier in writing before the expiration of the Warranty Period.
15.2 The Customer will be responsible for delivery of any faulty Products to the Supplier at Unit 4, 39 Cedric Street, Stirling WA 6021 or to any other address of the Supplier or its agents within Western Australia as nominated by the Supplier from time to time.
15.3 For the avoidance of doubt, the Supplier provides no warranty in relation to uptime and availability of the Products and/or Services. The Customer acknowledges that the Services rely on location information, network coverage and satellite signals which are outside the control of the Supplier. The Customer expressly agrees to indemnify and hold harmless the Company with respect to any resulting loss that is attributable to the Products and/or Services not working, malfunctioning or otherwise failing.
16.1 The Supplier may repossess the Products pursuant to Clause 6.1(b) for default in payment.
17.1 The Customer is solely responsible for insuring the Products for their replacement value during the Subscription Period.
18. Title and risk associated with Products
18.1 Title to any Products shall vest with the Customer upon delivery of the Products to the Delivery Location. For the avoidance of doubt, title will only vest once payment for the Products has been received by the Supplier in full, as is a precondition for delivery.
18.2 The Customer does not have any express or implied right to sell, charge, encumber, grant any right, interest or lien in or over the Products until the Products have been delivered to the Customer and title has vested with the Customer.
18.3 Title to any SIM cards always remains with the Supplier and the SIM cards are the Supplier’s own property. The Customer does not have any right, interest, or claim in or over the SIM cards except as expressly set out in these Standard Terms.
18.4 The Customer does not have any express or implied right to sell, charge, encumber, grant any right, interest or lien in or over the SIM cards at any time.
18.5 Risk of destruction or loss of the Products during the Subscription Period passes to the Customer upon delivery of the Products to the Delivery Location.
19. Variations and cancellations
19.1 A Variation may arise from:
(a) the Customer requesting a Variation by written notification to the Supplier; or
(b) the Supplier independently determining that a Variation is necessary.
19.2 Within ten (10) Business Days of such notification or determination, the Supplier will provide the Customer with an Estimate in which the price and schedule for the Variation will be stated.
19.3 The Supplier is not obligated to proceed with any such Variation until the Estimate issued pursuant to Clause 19.2 is accepted in writing by the Customer or the price and schedule for the Variation has otherwise been agreed in writing by the parties.
19.4 For avoidance of doubt, any change in the scale or scope of Services becoming necessary due to ambiguous information provided by the Customer, including but not limited to in relation to compliance, or misinterpretation of regulations by the Customer, shall be deemed to be a Variation pursuant to Clause 19.1(b).
19.5 Once the Estimate has been accepted by the Customer, the order cannot be cancelled unless otherwise agreed in writing by the parties. The Supplier is not obligated to accept any such cancellation.
20. Liability and indemnity
20.1 To the maximum extent allowable at law, the total liability of the Supplier for all claims, whether by way of indemnity, guarantee, breach of contract, tort (including negligence), statutory duty or any other legal principle or doctrine arising from or related to the performance, or breach, by the Supplier of its obligations under the Contract, or from the Products and/or Services shall not exceed the Price.
20.2 To the maximum extent allowable at law, the Customer indemnifies the Supplier and holds the Supplier harmless against all claims, actions, suits, demands, costs and expenses, including all legal costs and expenses:
(a) arising from the supply and/or use of the Products, Services and/or SIM cards, whether by negligence of the Customer or by any other person or legal entity; or
(b) arising out of the condition of the Products and/or Services or the use to which the Products, Services and/or SIM cards are put;
(c) arising out of any breach by the Customer of this Contract including without limitation any breach of clauses 26 and 27 and including without limitation any claims from the licensors under any Head Licence; or
(d) arising from any suspension or termination of the Contract in accordance with clauses 21, 22, and 23.
20.3 Without limiting clause 20.1 and 20.2, the Supplier will not be liable for any loss or damage caused from failure or delay in delivery of the Products, including without limitation consequential loss.
20.4 To the maximum extent allowable at law, the Customer indemnifies the Supplier against any destruction or loss of the Products during the Subscription Period.
20.5 In Australia, products and services come with the following consumer guarantees:
(a) guarantee as to due care and skill;
(b) guarantee as to fitness for a particular purpose; and
(c) guarantee as to reasonable time for supply.
20.6 Where we fail to provide services to you in accordance with these consumer guarantees then you may have a right to seek a remedy in accordance with the Australian Consumer Law. Nothing in this Contract excludes or restricts the application of such consumer laws to the extent that they apply.
21. Suspension of Services
21.1 The Supplier may suspend the use of any Services, and/or the Customer’s access to location, tracking or monitoring information via the Products at any time and without any notice if:
(a) the Services or any platform used in accessing the Services requires maintenance or upgrading;
(b) the Supplier has a reasonable belief that the Products and/or Services are being used unlawfully, or contrary to any Law or regulation;
(c) as a result of any Force Majeure Event or any other event outside of the Supplier’s reasonable control; or
(d) the Customer is in breach of any term of this Contract and that breach continues for a period of seven (7) days without remedy.
22.1 Either party may terminate the Contract effective immediately upon written notice to the other party (Defaulting Party) if:
(a) the Defaulting Party commits or is subject to an Event of Default; or
(b) an event of Force Majeure Event extends for longer than one hundred and twenty (120) days.
22.2 The Supplier may terminate the Contract effective immediately upon written notice to the Customer if:
(a) the Customer breaches any term or condition of this Contract including without limitation any failure to pay any amount owing under or in connection with this Contract including any Subscription Fee and does not remedy the breach within fourteen (14) days of receiving written notice from the Supplier of such a breach;
(b) the Supplier believes any Products and/or Services to be at risk for whatever reason including the manner or use of the Services or that the Customer is unable to, or might be unable to, make any payment under or in connection with this Contract;
(c) any suspension under clause 21 is not remedied within fourteen (14) days; or
(d) the Head Licence comes to an end.
22.3 The Customer may terminate the Contract by giving written notice of termination to the Supplier more than thirty (30) days before the end of the current Subscription Period with effect from the end of the current Subscription Period.
22.4 The Supplier may terminate the Contract by giving at least thirty (30) days written notice of termination to the Customer. If the Supplier elects to terminate the Contract in accordance with this clause 22.4 and the Customer is not in breach, then the Supplier agrees to refund the portion of any pre-paid fees, including the Subscription Fees paid in advance for the Subscription Period remaining as at the date of termination.
22.5 Any termination of the Contract will not affect any accrued rights or liabilities of either party, nor will it affect any provision of the Contract which is expressly or by implication intended to continue in force after such termination.
22.6 Without limiting the application of clause 21, if the Head Licence is terminated for any reason before or during the Subscription Period this Contract will immediately terminate with no further liability to the Supplier.
23. Consequences of termination
23.1 Upon termination of this Contract, the Customer will:
(a) immediately cease use of any Services and deliver to the Supplier any copies of the Documentation in the Customer’s possession or control; and
(b) pay all moneys due under or in connection with this Contract that become due for payment either before or after termination of this Contract.
23.2 Upon termination of this Contract, any licence to use the Intellectual Property Rights granted by the Supplier to the Customer, and any licence to use the Services including the Subscription Services shall be deemed to be immediately revoked without any further notice. The Customer acknowledges that upon termination, no further Products or Services will be supplied by the Supplier or any of its agents or partners engaged to provide the Products or Services.
23.3 Within thirty (30) days of termination, the Customer must:
(a) fully comply with its obligations under clause 23.1; and
(b) certify its compliance to the Supplier in writing.
23.4 To the extent that the Customer has not complied with clause 23.2 for any reason whatsoever, the Supplier reserves its rights to continue to charge the Subscription Fees until such time as the Customer complies with all unresolved obligations, and may charge interest in accordance with clause 6.1(a).
24. Force Majeure
24.1 A party shall not be liable for non-performance or delay in the performance of its obligations under the Contract, other than any obligation to make payments, where such non-performance or delay is caused by a Force Majeure Event.
24.2 The affected party shall notify the other party of such Force Majeure Event within five (5) days of the party affected becoming aware of the Force Majeure Event.
25. Dispute resolution
25.1 If there is a dispute between the parties arising out of, or in connection with the Contract, or regarding the Products and/or Services then:
(a) the party claiming a dispute must provide written notice to the other party specifying the nature and details of the dispute (“Dispute Notice”);
(b) within five (5) Business Days of a Dispute Notice being received by a party, senior managers of each party must meet and shall endeavour, in good faith, to resolve the dispute; and
(c) if resolution of the dispute pursuant to Clause 25.1(b) is not achieved within thirty (30) days of the date of receipt of the Dispute Notice, either party may refer the dispute to mediation in accordance with Clause 25.2.
25.2 Mediation of any dispute under the Contract will be conducted in accordance with, and subject to, the Resolution Institute’s Rules for Mediation (2016).
25.3 If the parties fail to achieve resolution within thirty (30) days of commencement of mediation, either party may issue proceedings to have the dispute determined.
25.4 This Clause 25 does not prevent a party applying for urgent interlocutory relief.
26. Intellectual Property Rights
26.1 The Customer acknowledges and agrees that the Intellectual Property Rights in the Products and Services are owned by the Supplier or its licensors under Head Licences.
26.2 The Customer acknowledges and agrees that nothing in this Contract transfers or otherwise assigns to the Customer any Intellectual Property Rights in the Products and Services other than the limited rights granted in accordance with clause 10.
26.3 In using the Products and Services, the Customer must not engage or attempt to engage in any activities that:
(a) use any Products other than in conjunction with the Services, or copy, modify, reverse engineer or decompile the Products or any software used or accessed or accessible via the Services or any part of the same (save to the extent expressly permitted by law) nor allow any other third party to do the same;
(b) violate the rights of any third party (including, without limitation abusing, stalking, threatening or otherwise, infringement of copyright, trademark, or other intellectual property right, misappropriation of trade secrets, confidential information, electronic fraud, invasion of privacy);
(c) introduce or allow the introduction, transmission, distribution or uploading of any, virus, worm, Trojan horse, zombie, keylogger, time bomb, cancelbots, Easter eggs, spyware, mail bombing, flashing, spamming, flooding, or other potentially harmful programs, materials, information or malicious code into the Products or Services or any related network;
(d) gain unauthorised access to the Products or Services;
(e) restrict or inhibit any other visitor from using the Services, including, without limitation, by means of “hacking” or defacing a portion of the Services or website from which the Services may be accessed; or
(f) harvest or collect information about other users of the Services without their express written consent.
27.1 The Customer must keep the username(s), password(s) and any other information provided to the Customer for the purpose of accessing the Products and Services confidential.
27.2 Unless expressly authorised by the Supplier, the Customer must not share the Documentation with any other person.
28. Customer Data
28.1 The Customer acknowledges that the Supplier may generate, and/or require use of existing Customer Data. The Customer grants the Supplier the right to use, copy, modify, store and disclose the Customer Data to the extent necessary so that they can supply the Products and/or Services, and any enhancements or modifications to the same to the Customer. The Supplier will not make this information available to any current or future competitors but will make the information available to Head Licensors and authorised installers to enable those persons to deliver certain components of the Products and Services on behalf of the Supplier.
28.2 The Customer will, to the extent that the Customer Data contains personal information (as defined in the Privacy Act 1988) about an individual (including an employee or contractor of the Customer), procure from that individual all necessary consents required by law to enable that information to be lawfully used by the Supplier.
28.3 The Customer grants to the Supplier a non-exclusive, royalty-free, perpetual, irrevocable, fully paid-up, worldwide license, with the right to sublicense, to use, modify, reproduce, adapt, communicate, display, perform, anonymise and distribute Customer Data and user statistical information such as usage, traffic patterns, or user activities for any purpose, provided that such Customer Data will be (a) de-identified such that no person or entity (including but not limited to you) can be identified, and (b) combined with the data of other users or additional data sources.
28.4 In addition to any other indemnity provided in this Contract in favour of the Supplier and without derogating from the generality of such indemnities, the Customer indemnifies the Supplier (and will continue to indemnify the Supplier notwithstanding termination or expiration of this Contract for all losses which the Supplier may suffer or incur (whether in relation to the Privacy Act 1988 or otherwise) by reason of the Customer’s failure to comply with this clause 28.
28.5 The Customer acknowledges that the Products and Services utilise cloud-based technology and accordingly the use of same by the Customer has all the risks associated with cloud-based technology including the transmission of Customer Data across borders. The Supplier shall not be liable to the Customer for any inadvertent disclosure of Customer Data attributable to the use of the cloud-based technology howsoever arising.
29. General provisions
29.1 Entire agreement
- These Standard Terms, the Supplier’s Estimate and any other document endorsed or agreed to in writing by the parties and annexed to the Contract comprise the entire agreement between the parties and replace all previous communications, representations, inducements, undertakings, agreements and arrangements between the parties in respect of its subject matter.
- The Customer may not assign, whether in whole or part, the Contract or any rights or obligations under the Contract, without the prior written consent of the Supplier.
- No changes may be made to the terms of the Contract unless agreed to by the parties in writing.
29.4 Governing law
- The Contract shall be governed by the laws of Western Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of Western Australia.
29.5 No waiver
- Failure to exercise, or any delay in exercising, any right, power or remedy by a party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
- If a clause of the Contract is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions of the Contract.
30. Customer’s acceptance
30.1 The Customer or its representative warrants that it has the power to enter into the Contract and has obtained all necessary resolutions and approvals to do so.
30.2 Signature by or on behalf of the Customer provided above represents acceptance of the Standard Terms contained herein.