- ThingsAt offers a device as a service (DaaS) offering which it makes available to customers.
- The Customer wishes to access the DaaS to utilise in the Customer’s Business.
- ThingsAt has agreed to grant the Customer, and the Customer has agreed to accept, non-exclusive access to utilise the DaaS on the terms and conditions of this Agreement.
- The Guarantor(s) has agreed to provide the Guarantee and Indemnity.
DEFINITIONS & INTERPRETATION
|“Authorised Users”||means those employees, of the Customer who are authorised by the Customer to access and use the DaaS in accordance with the terms of this Agreement and provided they are accessing and using the DaaS exclusively on the Customer’s behalf for the Customer’s Business;|
|“Consultancy Fees”||means the schedule of fees chargeable by ThingsAt for the provision of Consultancy Services, which as at the Commencement Date are specified in Addendum 2, and which are subject to revision at ThingsAt’s discretion on an annual basis;|
|“Consultancy Services”||means any consultancy services (which are separate and additional to the provision the DaaS) to be provided by ThingsAt to the Customer as agreed from time to time;|
|“Consultancy Services Work Order”
|means any request by the Customer to ThingsAt for Consultancy Services to be provided in the form set out in Addendum 6;|
|“Customer’s Business”||means the business operated by the Customer;|
|“Customisation”||the process of completing the initial sourcing, configuration, setting-up and customisation of the Devices by ThingsAt as described in the Work Schedule and Financial Proposal;|
|“Customisation Fee”||the fee payable by the Customer to ThingsAt for carrying out and completing the Customisation as described as the ‘Set-up Fee’ in (and payable in accordance with) the Work Schedule and Financial Proposal;|
|“Customisation Requirements”||the requirements of any Customisation as particularised in the Work Schedule and Financial Proposal;|
|“DaaS”||means the subscription services for the provision of access to use the Devices as a service, including Support and Maintenance and Hosting in accordance with the terms and conditions of this Agreement and as more particularly described in the Work Schedule and Financial Proposal and Service Level Agreement;|
|“Deliverables”||means the output of any Customisation or Consultancy Services performed by ThingsAt;|
|“Devices”||means the devices described in the Work Schedule and Financial Proposal;|
|“Documentation”||means the documentation made available to the Customer by ThingsAt via ThingsAt’s web address or other electronic platform as notified to the Customer from time to time;|
|“Early Termination Fee”||means ##% of the estimated remaining Fees to be charged by ThingsAt during the relevant Subscription Term or Renewed Term;|
|“Effective Date”||means the date upon which the party last to sign this Agreement does so;|
|means any confidential or proprietary materials, including but not limited to trademarks, software and documentation in which the Customer or ThingsAt (as the case may be) has pre-existing Intellectual Property Rights;|
|“Fees”||the Subscription Fees and any Customisation Fees and Future Customisation Fees;|
|“Future Customisation”||any replacement, upgrade or changes to the hardware, functionality and/or use of the Devices as requested by the Customer after Go Live;|
|“Future Customisation Fee”||the fees payable by the Customer to ThingsAt for Future Customisation as agreed between ThingsAt and the Customer in a Future Customisation Work Order;|
|Future Customisation Work Order||means a work order for Future Customisation and Future Customisation Fees as agreed by ThingsAt and the Customer;|
|“GDPR”||means the European Union’s General Data Protection Regulation as in force from time to time;|
|“Go Live”||means either: (a) the date on which the Customisation has been completed in accordance with clause 3.4 and the DaaS is available to the Customer for access and use in accordance with the terms of this Agreement; or (b) if there is no Customisation, then the Effective Date;|
|“Guarantee and Indemnity”||means the guarantee and indemnity set out in Addendum 4;|
|“Hosting”||means the data hosting services to be provided by ThingsAt to the Customer during the Term in respect of the Devices in accordance with Service Level Agreement;|
|“Intellectual Property Rights”||means any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including without limitation patents, utility models, trade marks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information and techniques;|
|means the Personal Property Securities Act 2009 (Cth);|
|“PPSR”||means the Personal Property Securities Register, established pursuant to the PPSA;|
|“Service Level Agreement”||the service level arrangements for the DaaS as set out in Addendum 3;|
|“Subscription Fees”||means the subscription fees payable to access and use the DaaS, as set out in the Work Schedule and Financial Proposal;|
|“Subscription Term”||that period from Go Live as specified in the Work Schedule and Financial Proposal, or if there is no Customisation then that period as specified in the Work Schedule and Financial Proposal from the Effective Date;|
|“Support and Maintenance”||means any error corrections, updates and upgrades that ThingsAt may provide or perform with respect to the Devices, as well as any other support services provided to the Customer under this Agreement and in accordance with the Service Level Agreement;|
|“Variation Letter”||means the agreed changes to the customisation, financial (including Fees) and other commercial arrangements agreed by ThingsAt and the Customer in the form set out in Addendum 5;|
|“Work Schedule and Financial Proposal”;||means the customisation, financial (including Fees) and other commercial arrangements agreed by ThingsAt and the Customer as set out in Addendum 1.|
2.1 Access to DaaS
In consideration of payment by the Customer of the Fees and the Customer agreeing to abide by the terms of this Agreement, ThingsAt will undertake the Customisation (if any) and make the DaaS available to the Customer and Authorised Users from the Go Live date for the Subscription Term.
2.2 User Limitations
Limitations on the number of Authorised Users and other limitations on the use of the DaaS are specified in the Work Schedule and Financial Proposal and the Customer must (and must ensure that each Authorised User) abide by the terms of this Agreement. If the Work Schedule and Financial Proposal does not specify a limitation on Authorised Users, then the number of Authorised Users is unlimited, subject to any reasonable fair use policy of ThingsAt in place from time to time.
2.3 Service Levels
ThingsAt will provide the DaaS in accordance with this Agreement and the service levels set out in the Service Level Agreement.
If the parties modify the scope of the DaaS or Customisation by mutual agreement, ThingsAt will perform provide access to the DaaS and perform the Customisation Requirements as modified by the parties, subject to the terms of this Agreement and the agreed modification.
CUSTOMISATION & ACCEPTANCE
ThingsAt will perform the Customisation in accordance with the Work Schedule and Financial Proposal. ThingsAt shall use reasonable endeavours to meet the performance dates set out in the Work Schedule and Financial Proposal (if any) with respect to the Customisation, but any such dates shall be estimates only, and time shall not be of the essence in this Agreement other than in respect of the payment of Fees.
3.2 Completion of Customisation
When ThingsAt considers that the Customisation has been completed and the DaaS is ready for activation it will notify the Customer. Within ten (10) Business Days of such notification the Customer must review the Customisation to confirm that the DaaS materially conforms with the Customisation Requirements. If the DaaS fails in any material respect, the Customer must give ThingsAt a detailed description of any such non-conformance (“Error”) in writing, within the ten (10) Business Day review period.
3.3 Customisation Errors
ThingsAt will use reasonable endeavours to correct any Error within a reasonable time and, on completion, notify the Customer that the DaaS is available to the Customer for reviewing conformance with the Customisation Requirements. The provisions of clause 3.2 and this clause 3.3 will then apply again until any Errors have been corrected. If ThingsAt is unable to correct the Error(s) within sixty (60) Business Days of first being notified by the Customer of the Error(s), either party may terminate this Agreement without further liability to the other.
3.4 Go Live
If the Customer does not provide any written comments in the ten (10) Business Day period described in clause 3.2, or if the DaaS is found to conform with the Customisation Requirements or there are no Customisation Requirements, then the DaaS will be deemed accepted (“Go Live”) and the Customer will be entitled to access and use the DaaS from the Go Live date in accordance with this Agreement and subject to the Customer paying any Fees due by the Go Live date.
This Agreement comes into force on the Effective Date and continues until the end of the Subscription Term unless it is renewed in accordance with clause 4.2, or unless terminated earlier in accordance with these terms of this Agreement.
- After the end of the initial Subscription Term, the Subscription Term shall automatically renew for additional periods of equivalent length to the initial Subscription Term (“Renewed Term”) unless either party gives written notice to the other of non-renewal at least ninety (90) days before the end of the relevant Subscription Term (or relevant Renewed Term).
- Any discounts or incentives offered by ThingsAt in respect of the initial Subscription Term will not carry over into any Renewed Term.
Subscription Fees in respect of the DaaS are as specified and payable monthly in advance, in accordance with the Work Schedule and Financial Proposal.
5.2 Periodic CPI increases
ThingsAt is entitled, not more than once during any twelve month period and by notice to the Customer, to increase the Subscription Fees to reflect any annual increase in the Consumer Price Index as published by the Australian Bureau of Statistics.
5.3 Consultancy Services
The Customer may request, and ThingsAt may provide, Consultancy Services to the Customer on the terms of specified in a Consultancy Services Work Order, provided that such Consultancy Services may be charged:
- in arrears, on a time and materials basis; or
- in arrears, in accordance with the Consultancy Fees.
- Unless otherwise specified in the Work Schedule and Financial Proposal or Consultancy Services Work Order, the Customer must pay all sums due in respect of an invoice raised in accordance with this Agreement within seven (7) days from the end of the month in which the invoice was issued, or by authorising ThingsAt to directly debit the bank account or credit card as notified by the Customer. In this respect, the Customer must sign any documentation ThingsAt reasonably requires to effect the direct debit.
- If the Customer disputes any portion of an invoice, then it must give notice of the disputed portion to ThingsAt and pay all undisputed portions.
5.5 Failure to make payment
If the Customer fails to pay an undisputed portion of an invoice on or before the due date for payment:
- interest on the amount unpaid will accrue from the date such amount was due until the date of payment at the rate of 4% per annum above the rate prescribed in the Penalty Interest Rates Act 1983 (Vic), such interest to be calculated daily; and
- without prejudice to ThingsAt’s right to be paid interest and to terminate this Agreement in accordance with clause 15, ThingsAt may in accordance with clause 13 suspend the delivery of the DaaS until payment in full of such outstanding sums are received.
Unless otherwise specified in the Work Schedule and Financial Proposal or Consultancy Services Work Order, all fees invoiced are exclusive of GST and any other applicable taxes. The Customer agrees to pay all GST and taxes levied in connection with this Agreement.
CONSULTANCY & FUTURE CUSTOMISATION
6.1 Consultancy Services
The Customer may request ThingsAt to provide a proposal for the delivery of Consultancy Services. ThingsAt may, but is not obligated to, provide proposal for Consultancy Services, including an indication of the applicable Consultancy Fees. If the Customer accepts this (either by way of issuing written confirmation, including by email), then ThingsAt will provide the Consultancy Services in accordance with its proposal. Unless the parties agree otherwise, the provision of Consultancy Services is subject to the terms and conditions of this Agreement.
6.2 Future Customisation
- If the Customer requires any Future Customisation it must submit details of the required customisation to ThingsAt. ThingsAt is not be obliged to perform any Future Customisation.
- Any Future Customisation ThingsAt agrees to perform will be on a time and materials basis as agreed between the parties, with travel and other reasonably necessary out-of-pocket expenses invoiced in addition to such fees and deemed accepted upon delivery.
- In relation to any agreed Future Customisation:
- ThingsAt will perform the Future Customisation as directed and requested by the Customer and ThingsAt will use commercially reasonable endeavours to complete the Future Customisation; and
- the Customer must provide support to ThingsAt including but not limited to data, design documentation, statements of business needs, and provide timely access to the Customer’s business experts and planning and project team members to identify and resolve business or technical issues.
6.3 New Devices
- The Customer may request, and ThingsAt may procure, new Devices for the Customer on the terms agreed between the Customer and ThingsAt.
- ThingsAt will issue an invoice to the Customer for the new Devices and the Customer must pay all sums due in respect of such invoice within seven (7) days, or by authorising ThingsAt to directly debit the bank account or credit card as notified by the Customer.
6.4 Intellectual Property
For the avoidance of doubt, any Intellectual Property Rights created in any development undertaken by ThingsAt on behalf of the Customer in the provision of Consultancy Services or Future Customisation will on its creation be the property of ThingsAt. The Customer will have no exclusive right in respect of any such works created by ThingsAt.
a. must not:
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
- attempt to reverse engineer, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Documentation in any form or media or by any means; or
- attempt to reverse compile, disassemble, reverse engineer or otherwise tamper with all or any part of the Devices; or
- access all or any part of the DaaS and Documentation in order to build a product or service which competes with the Service and/or the Documentation;
- use the Devices for any purpose other than for the usual operation of the Customer’s Business;
- license, sell, resell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercialise, or make the DaaS, Devices and/or Documentation available to any third party except the Authorised Users; or
- not use the Devices and/or the DAAS in a manner prohibited by any applicable laws, including but not limited to the Privacy Act 1988 (Cth) and the Anti Money Laundering and Counter Terrorism Financing Act 2006 (Cth).
- comply with instructions provided by ThingsAt or any third party vendor in respect of the use of any Devices or the DAAS;
- obtain and maintain all necessary licences, consents, and permissions necessary for ThingsAt, its contractors and agents to perform their obligations under this Agreement;
- ensure that its network and systems comply with the relevant specifications provided by ThingsAt from time to time; and
- be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the network connections or telecommunications links or caused by the internet.
8.1 ThingsAt Warranties
ThingsAt represents and warrants to the Customer that:
- the DaaS and the Deliverables will conform in all material respects to the descriptions and standards set out in the Documentation and as may be specified in the Work Schedule and Financial Proposal (Addendum 1), and any other specifications agreed to in writing by the parties;
- any Customisation will confirm in all material respects with the descriptions specified in the Work Schedule and Financial Proposal (Addendum 1), and any other specifications agreed to in writing by the parties;
- the execution and performance by ThingsAt of this Agreement does not and will not violate or conflict with or result in a breach of:
- any of the terms, conditions, duties or obligations to which ThingsAt is bound to any third party; or
- any other rights of any third party
- ThingsAt will employ personnel with the skill, knowledge and training required for the performance of any Customisation, Future Customisation or Consultancy Services, which will be performed in a good, workmanlike manner in accordance with accepted industry practices;
- ThingsAt will comply, and ensure that its employees, contractors and officers comply with, all applicable laws, including the Privacy Act 1988 (Cth), the Australian Privacy Principles and (where relevant) the GDPR in its provision of the Customisation, Future Customisation or Consultancy Services;
- ThingsAt is the lawful owner or licensee of any software or programs used in the DaaS, provided the Customer acknowledges and agrees that:
- ThingsAt may as part of the DaaS and at the request of the Customer connect to third party software or systems using application programming interfaces or other similar connections; and
- such third party software or systems, and the application programming interfaces in respect of them, will not be considered software or programs used in the DaaS for the purpose of this warranty; and
- subject to clause 26.1.i.1.1(b), the Customer’s use of the DaaS in the manner permitted under this Agreement will not violate or infringe upon the intellectual property rights of any third parties.
8.2 Customer warranties
The Customer represents and warrants to ThingsAt that:
- the execution and performance by the Customer of this Agreement does not and will not violate or conflict with or result in a breach of:
- any of the terms, conditions, duties or obligations to which ThingsAt is bound to any third party; or
- any other rights of any third party; and
- The Customer is the lawful owner or licensee of any software or programs used in the Customer Business and that ThingsAt, in delivering the DaaS, will not violate or infringe upon the intellectual property rights of any third parties; and
- it has all necessary corporate power and authority to enter into this Agreement and each Work Schedule and Financial Proposal (Addendum 1) and to perform its obligations hereunder and thereunder, and the execution and delivery of this Agreement and Work Schedule and Financial Proposal (Addendum 1) and the consummation of the transactions contemplated hereby and thereby have been duly authorised by all necessary corporate actions.
8.3 Warranty Limitation
The warranty at Clause 8.1(g) will not apply if: (a) the Devices and/or the DaaS is not used in accordance with this Agreement or the Documentation; or (b) the Devices and/or the DaaS or any part thereof have been modified by any entity other than ThingsAt or one of its suppliers, contractors or agents.
INDEMNITY FROM CUSTOMER
9.1 Customer’s Indemnity
The Customer shall be responsible for and shall indemnify ThingsAt against liability for any loss or claim caused by the Customer, or its employees or agents as a result of a breach of this Agreement and/or as a result of the negligent conduct of the Customer or its employees or agents and the amount of all such loss or claim (including without limitation all legal costs incurred by ThingsAt in defending any such claim or proceeding brought against the Customer pursuant to this indemnity) which may be paid, suffered or incurred by ThingsAt in respect of such loss, damage or injury shall be made good at the Customer’s expense.
INTELLECTUAL PROPERTY RIGHTS
10.1 Intellectual Property Rights in Deliverables
Without limiting the generality of clause 6.2, the Customer agrees that all Intellectual Property Rights in Deliverables will on their creation or development become the sole property of ThingsAt and its assigns, unless otherwise specified in the Agreement. ThingsAt grants the Customer a non-exclusive, worldwide, revocable right to use the Deliverables, but only to the extent required to utilise the DaaS.
10.2 ThingsAt’s existing Intellectual Property
To the extent that Existing Materials are incorporated into the DaaS or the Deliverables, ThingsAt grants to the Customer a non-exclusive, worldwide, revocable, right to use such Existing Materials and to use and display such Existing Materials, but only to the extent required to utilise the DaaS. Nothing in this Agreement operates to transfer any Intellectual Property Rights in any of ThingsAt’s Existing Materials to the Customer.
10.3 Customer’s existing Intellectual Property
To the extent that Existing Materials are incorporated into Deliverables(s), the Customer grants to ThingsAt a non-exclusive, irrevocable, royalty-free, perpetual right to use modify and prepare derivative works of such Existing Materials and to use and display such Existing Materials but only to the extent required in the provision of the Deliverables and/or the DaaS in accordance with the ownership rights granted in this Agreement.
THIRD PARTY PROVIDERS
11.1 The Customer acknowledges that the DaaS may (whether by way of application programming interfaces or otherwise) enable or assist it to access the website content of, and correspond with, third parties via third-party websites and/or have access to third party systems and that it does so solely at its own risk.
11.2 ThingsAt makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party websites or systems, or any transactions completed, and any contract entered into by the Customer, with any such third party.
11.3 Any contract entered into and any transaction completed via any third-party website or system is between the Customer and the relevant third party, and not ThingsAt. ThingsAt does not endorse or approve any third-party website or system nor the content of any of the third-party website or system made available via the DaaS.
If the DaaS does not conform with the Documentation or the terms of this Agreement in any material respect, ThingsAt will, at its expense, use reasonable endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of this Agreement relating to non-conformance to the provision of the DaaS. Notwithstanding the foregoing, ThingsAt:
- does not warrant that the Customer’s use of the DaaS will be uninterrupted or error-free; nor that the DaaS, Devices, Documentation and/or the information obtained by the Customer through the DaaS will meet the Customer’s requirements; and
- is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the DaaS, Devices and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
Without prejudice to any other rights of ThingsAt under this Agreement, ThingsAt may suspend the Customer’s (or any Authorised User’s) right to access or use any part of the DaaS immediately upon notice to the Customer and without any liability to the Customer if ThingsAt determines that the Customer’s or any of the Authorised User’s use of the DaaS:
- poses a security risk to the DaaS or any third party;
- may adversely impact the DaaS or the systems or content of any other customer of ThingsAt
- may subject ThingsAt or any third party to liability;
- if the Customer (or any Authorised User) is in breach of the terms of the Agreement, including the Customer’s obligation to pay the Fees under this Agreement for more than seven (7) days; or
- the Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganisation, liquidation, dissolution or similar proceeding.
14.1 This clause 14 sets out the entire financial liability of ThingsAt (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of: (i) any breach of this Agreement, including a warranty; (ii) any use made by the Customer of the DaaS; and (iii) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
14.2 Except as expressly and specifically provided in this Agreement:
- the Customer assumes sole responsibility for results obtained from the use of the DaaS (or any Customisation, Future Customisation or Consultancy Services);
- ThingsAt has no liability for any damage caused by issues or faults in the Devices;
- ThingsAt has no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to ThingsAt by the Customer in connection, or any actions taken by ThingsAt at the Customer’s direction; and
- all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
14.3 Nothing in this Agreement excludes or limits the liability of the Supplier for any other liability which cannot lawfully be excluded or limited.
14.4 The Service Level Agreement states the Customer’s full and exclusive right and remedy, and ThingsAt’s only obligation and liability, in respect of the performance and availability of the DaaS, or their non-performance and non-availability.
14.5 ThingsAt will not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill or similar losses, or pure economic loss, loss of data or for any indirect or consequential loss, costs, damages, charges or expenses however arising.
14.6 ThingsAt’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, in connection with the performance or non-performance of this Agreement is limited to: (i) in respect of the DaaS, the Fees paid or payable by the Customer in respect of the billing period immediately preceding the date on which the claim arose; or (ii) for any Customisation, Future Customisation or Consultancy Services, the relevant fees paid for those services in the billing period immediately preceding the date on which the claim arose.
14.7 In the event that the Competition and Consumer Act 2010 (Cth) (or analogous Australian legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by statute into this Agreement, the liability of ThingsAt is limited, at the option of ThingsAt, to any one or more of the following
- the replacement of the Devices or DAAS or the supply of equivalent Devices or DAAS; or
- the payment of the cost of replacing the Devices or DAAS or of acquiring equivalent Devices or DAAS.
15.1 Termination for Convenience
- The Customer may terminate this Agreement or a Work Schedule and Financial Proposal (Addendum 1) for convenience upon 30 days’ prior written notice to ThingsAt, provided that the Customer pays ThingsAt the Early Termination Fee, which represents a genuine pre-estimate of the loss that will be suffered by ThingsAt in respect of the Customer’s early termination.
- ThingsAt will advise the Customer of the quantum of the Early Termination Fee within 7 days of receipt of the Customer’s notice of termination.
15.2 Termination for Cause
If either party materially breaches this Agreement or any Work Schedule and Financial Proposal (Addendum 1), and such default is not cured within thirty (30) days after written notice is given to the defaulting party specifying the default, then the party not in default may, by giving written notice thereof to the defaulting party, terminate the applicable Work Schedule and Financial Proposal (Addendum 1) and/or this Agreement in its entirety as of a date specified in such notice of termination.
15.3 Termination for Insolvency or Bankruptcy
Either party may immediately terminate this Agreement and all valid Work Schedule and Financial Proposal (Addendum 1) by giving written notice to the other party in the event of (i) the liquidation or insolvency of the other party,(ii) the appointment of a receiver or similar officer for the other party, (iii) an assignment by the other party for the benefit of all or substantially all of its creditors, or (iv) entry by the other party into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations.
15.4 Rights upon Termination
Upon the termination of this Agreement:
- any Devices leased by the Customer from ThingsAt must be returned in good working order;
- each party shall promptly return to the other all data, materials and other properties of the other held by it;
- the Customer must immediately pay any Fees owing to ThingsAt pursuant to and in accordance with this Agreement up to the effective date of termination; and
- the Customer’s (and each Authorised User’s) access to the DaaS will immediately cease.
16.1 Meaning of Confidential Information
“Confidential Information” means all confidential or proprietary information belonging to either party hereto and disclosed to the other party including, but not limited to, strategic, technical, business, operational, financial and marketing information, personally identifiable subscriber or customer information, and the existence, terms and conditions of this Agreement and any Work Schedule and Financial Proposal (Addendum 1). Confidential Information does not include any information that (a) is or becomes generally available to the public without breach of this Agreement through no fault of the receiving party, (b) the receiving party was demonstrably in possession of prior to first receiving it from the disclosing party, (c) the receiving party can demonstrate was developed by the receiving party independently and without use of or reference to the disclosing party’s Confidential Information, or (d) the receiving party receives from a third party without restriction on disclosure and without breach of a non disclosure obligation.
Each party agrees to (a) hold in strict confidence all Confidential Information of the other party, (b) use the Confidential Information solely to perform or to exercise its rights under this Agreement, and (c) not to transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any person or entity other than to the directors, officers, employees, agents, consultants, accountants, auditors and legal and financial advisors of such party as need to know such Confidential Information, who are under confidentiality obligations at least as restrictive as the terms in this Agreement, and whose handling and treatment of such Confidential Information in accordance with this Agreement is the full responsibility of such party. Neither party will use (except as expressly provided in this Agreement) or disclose Confidential Information of the other party without the prior written consent of the disclosing party. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care.
16.3 Permitted Disclosure
The receiving party may disclose the Confidential Information of the other in response to a valid court order, law, rule, regulation (including without limitation any securities exchange regulation), or other governmental action provided that (a) the disclosing party is notified in writing prior to disclosure of the information, and (b) the receiving party assists the disclosing party, at the disclosing party’s expense, in any attempt by the other to limit or prevent the disclosure of the Confidential Information.
16.4 Equitable Relief
Each party agrees that the other party may have no adequate remedy at law if there is a breach or threatened breach of this Section and, accordingly, that either party will be entitled to seek (in addition to any legal or equitable remedies available to such party) injunctive or other equitable relief to prevent or remedy such breach.
16.5 Return of Confidential Information
Upon the termination or expiration of this Agreement or upon the earlier request of the disclosing party, the receiving party shall (a) at its own expense, (i) promptly return to the disclosing party all information that is in tangible form (and all copies thereof) that is the property of the disclosing party (including pursuant to this Agreement) or that contains any Confidential Information (collectively, the “Material Information”), or (ii) upon written request from the disclosing party, destroy such Material Information and provide the disclosing party with written certification of such destruction, and (b) cease all further use of any Material Information, whether in tangible or intangible form.
16.6 Ownership of Confidential Information
The Parties agree that the Confidential Information of the other party is, and will remain, the property of the other party hereto. The receiving party obtains no right, title, interest, or license in or to any of the Confidential Information of the disclosing party except for the rights set forth in this Agreement.
17.1 Meaning of Credit Check
- A credit check involves ThingAt disclosing personal information about the Customer to a credit reporting agency or third-party information providers to obtain and use credit and other reports and information about the Customer. ThingsAt’s request for a credit check may be recorded by the credit reporting agency to create or maintain a credit information file about the Customer.
- ThingsAt will comply with the Privacy Act 1988 (Cth) in conducting any credit check or disclosing information for credit purposes.
17.2 What ThingsAt may do
- request a credit report from a credit reporting agency; and
- disclose information to a credit reporting agency.
PASSING OF TITLE, RETENTION OF TITLE, REGISTRATION UNDER THE PPSA
- The Customer acknowledges and agrees that until payment of all monies owing to ThingsAt in relation to particular Devices has been received, such Devices shall remain the property of ThingsAt and no property in or title to the Devices will pass to the Customer.
- The Customer acknowledges and agrees that this Agreement constitutes a security agreement for the purposes of the PPSA and consents to ThingsAt effecting a registration on the PPSR (in any manner ThingsAt considers appropriate) in relation to any Security Interest arising under or in connection with this Agreement.
- The Customer agrees to supply ThingsAt with any information, provide ThingsAt with all necessary assistance and take any steps ThingsAt requires for the purposes of perfecting and enforcing such registration. The Customer will not allow a security interest to be created or registered over the Devices supplied in priority to the security interest held by ThingsAt. The Customer shall not register or permit to be registered a financing statement or a financing change statement in relation to the Devices supplied in favour of a third party without the prior written consent of ThingsAt.
- The parties agree that where ThingsAt has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply. The Customer contracts out of and waives its rights to receive notices under the following provisions of the PPSA: sections 95, 120, 121(4), 123, 125, 129, 130, 134 and 135(2). The Customer contracts out of and waives its right to receive a statement of account under section 132 of the PPSA. The Customer waives its rights as a grantor and/or a debtor to redeem the Devices under section 142 of the PPSA or reinstate the collateral under section 143 of the PPSA, and to the extent permitted by law waives its right to receive a notice of any verification statement under section 157 of the PPSA.
In the event of an inconsistency between this Agreement, the Work Schedule and Financial Proposal, the Service Level Agreement, any Future Customisation Work Order and any Variation letter, the documents listed higher below will take precedence over the documents listed lower:
- the Work Schedule and Financial Proposal;
- any Future Customisation Work Order;
- any Variation Letter;
- the Service Level Agreement; and
- this Agreement.
- Assignment. The Customer must not assign this Agreement or any of its rights, duties or obligations hereunder, without the prior written consent of ThingsAt.
- Governing Law. The parties expressly agree that these terms are governed by and construed in accordance with the laws of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of State of Victoria, Australia.
- Force Majeure. Neither party shall be liable for any losses arising out of the delay or interruption of its performance of obligations under this Agreement, other than any obligations relating to payment, due to any act of God, act of governmental authority, act of public enemy, terrorism, war (whether or not declared), pandemic, epidemic, riot, flood, civil commotion, insurrection, or any other material event beyond the reasonable control of the party delayed (collectively, “Force Majeure” events). The party not claiming protection from a Force Majeure event may cancel or terminate, without penalty, any Work Schedule and Financial Proposal (Addendum 1) for which a Force Majeure event has delayed performance by more than thirty (30) days.
- Liability. An obligation of two or more persons binds them separately and together.
- Non Waiver. No term or provision hereof will be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented.
- In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement will remain valid and enforceable according to its terms.
- The paragraph headings in this Agreement are for convenience only; they form no part of this Agreement and will not affect the interpretation of this Agreement.
- The terms and conditions of this Agreement regarding confidentiality, indemnification, payment and all others that by their sense and context are intended to survive the execution, delivery, performance, termination or expiration of this Agreement survive and continue in effect.
- Non Exclusivity. Nothing herein will be deemed to preclude the Customer from retaining the services of other persons or entities undertaking the same or similar services as those undertaken by ThingsAt under this Agreement. Similarly, ThingsAt may provide similar services and sell goods and services to any other party or parties on terms and conditions established and determined by ThingsAt in its discretion from time to time.
- Notices Any notice or other communication hereunder must be in writing addressed to the other party at the addresses first noted above and will be deemed delivered either upon hand delivery against receipt or upon mailing by certified mail, return receipt requested or by telecopy with evidence of delivery.
- In the performance of the Services, ThingsAt will act solely as an independent contractor, and nothing herein will at any time be construed to create the relationship of employer and employee, partnership, principal and agent, or joint venturers as between the Customer and ThingsAt resources.
- Entire Agreement. This Agreement constitutes the entire agreement between ThingsAt and the Customer in relation to this subject matter, and supersedes all prior agreements, representations, proposals, discussions and communications, whether oral or in writing. This Agreement may only be modified by an instrument in writing signed by an officer of both Parties.