Legal

SenseAg Customer Agreement

This SenseAg Customer Agreement (the Agreement) is a legally binding contract between you (the Customer) and SenseSolve Pty Ltd (ABN  88 611 662 303), registered in the state of Victoria, Australia (SenseAg).

Please read the terms and conditions of this Agreement carefully. By submitting an order to SenseAg or continuing to use any products or services offered by SenseAg, you agree to be bound by the terms of this Agreement. If you do not agree with any of the terms and conditions of this Agreement, you shall not purchase or subscribe to any products or services offered by SenseAg. We recommend that you print and keep a copy of this Agreement for future reference.

If you are entering into this Agreement on behalf of an entity or organisation, you represent and warrant that you have the full authority as at the time of entering into this Agreement to bind that entity or organisation to the terms of this Agreement. You will provide evidence of such authority on request by SenseAg.

It is agreed as follows.

1    Contract Administration

  1. Customer is required to submit an order which constitutes an offer to purchase products or services from SenseAg.
  2. The terms of engagement for the provision of Services and SenseAg Materials shall be set out in an order confirmation provided by SenseAg (an Order).
  3. Each Order will incorporate the terms of this Agreement.
  4. In the event of a conflict, inconsistency or ambiguity between any provisions of this Agreement and an Order, the provisions of this Agreement will prevail.

2    Term

2.1    Agreement

This Agreement commences on the Commencement Date and shall continue until terminated in accordance with its terms.

3    Provision of Hardware

  1. SenseAg will endeavor to deliver the Hardware within the delivery times as set out in the Order or, if no delivery date is specified, then within a reasonable time of the date of the Order, unless there are exceptional circumstances.
  2. If a product is found to be incorrectly addressed by SenseAg and Customer did not receive the product, then SenseAg will be responsible for the re-delivery, replacement or refunding of the product, at the discretion of SenseAg. If Customer has given an incorrect or insufficient address, and Customer did not receive the product then SenseAg will not refund or resend the product and all responsibility for correcting the delivery will be borne by Customer.
  3. Subject to Law (including the Australian Consumer Law if applicable), and without limiting any other term of this Agreement, Customer bears the risk of any loss or damage to the Hardware from the time of delivery, and SenseAg may require reimbursement from Customer where any such loss or damage occurs after the time of delivery and prior to Customer paying the applicable Fees for the Hardware.
  4. Title to the Hardware does not pass to the Customer at any time, unless specified in the Order (purchased hardware). The Customer is responsible for keeping the Hardware in good working order when the Hardware has been delivered to Customer.

4    Provision of Services

SenseAg agrees to provide the Services to Customer during the Term set out in the applicable Order.

5    Provision of the Products

SenseAg will make the Products available to Customer on the terms of this Agreement.

6    Updates and Upgrades

  1. SenseAg may make Updates available to Customer from time to time. Customer must install any Updates as soon as reasonably practicable upon receipt. Once installed, Updates will be deemed to form part of the Products.
  2. The Hardware may require Upgrades from time to time. Customer must install any Upgrades as soon as reasonably practicable.
  3. To the extent permitted by Law (including the Australian Consumer Law if applicable), SenseAg shall not be liable for any failure of the SenseAg Materials to operate in accordance with this Agreement, or to otherwise meet any warranties or representations set out in this Agreement or required under Law, unless Customer has installed all Updates and Upgrades pursuant to this clause 6.

7    Use of Products

  1. (licence restrictions) Customer must:
    1. not copy the Products except where such copying is incidental to normal use of the App, or where it is necessary for the purpose of back-up or operational security;
    2. not rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Products;
    3. not make alterations to, or modifications of, the whole or any part of the Products, or permit the Products or any part of it to be combined with, or become incorporated in, any other programs;
    4. not disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Products or attempt to do any such thing;
    5. not use the App on any other device other than the Hardware unless otherwise agreed by SenseAg in writing;
    6. not provide or otherwise make available the Products in whole or in part (including object and source code), in any form to any person without prior written consent from SenseAg; and
    7. comply with all technology control or export laws and regulations that apply to the technology used or supported by the Products.
  2. (acceptable use restrictions) Customer must:
    1. not use the Products in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Products or any operating system;
    2. not infringe SenseAg’s Intellectual Property Rights or those of any third party in relation to Customer’s use of the Products;
    3. not transmit any material that is defamatory, offensive or otherwise objectionable in relation to Customer’s use of the Products;
    4. not use the Products in a way that could damage, disable, overburden, impair or compromise SenseAg’s systems or security or interfere with other users; and
    5. not collect or harvest any information or data, or attempt to decipher any transmissions to or from the servers used by SenseAg.
  3. Customer will also procure that its Personnel comply with the requirements of this clause 7.

8    Intellectual Property Rights

8.1    Products

  1. (ownership) The parties acknowledge that all rights, title and interest in the Products including in any improvements to the Products (including any Intellectual Property Rights in the Products and any improvements to them) remain with SenseAg and/or its licensors at all times and nothing in this Agreement is intended to transfer such right, title or interest to Customer.
  2. (licence) Subject to Customer’s compliance with the terms of this Agreement (including but not limited to clause 7, SenseAg grants to Customer and its Personnel a non-transferable and non-exclusive licence to:
    1. access, view and use the Platform and Documents; and
    2. view, use and display the App on the Hardware only (unless otherwise agreed by SenseAg in writing),

    during the Term for personal and business purposes (to the extent that the business purpose is solely and directly related to the management of the agricultural property for which the purchase of the Hardware relates) only.

  3. The licence granted under clause 8.1(b) does not include a right to sub-license or otherwise provide the Products to any third party.

8.2    Data and Derivative Materials

  1. Customer grants SenseAg a perpetual, worldwide, transferable, non-exclusive right to access, use, adapt, modify, reproduce, reformat, transform, process, commercialise and exploit, and create Derivative Materials from, the Data to the extent necessary to undertake such activities.
  2. Customer agrees and acknowledges that SenseAg intends to use and/or aggregate the Data in conjunction with other information collected or obtained by SenseAg, and Customer agrees that SenseAg is permitted to make full use of, commercialise and exploit the Data for those purposes.
  3. Customer will ensure that any existing or future Intellectual Property Rights in any Derivative Materials vest in SenseAg absolutely. Customer agrees to assign, and procure the assignment of, such Intellectual Property Rights in any Derivative Materials to SenseAg immediately on their creation.
  4. Without limiting the foregoing, Customer agrees and acknowledges that SenseAg may disclose the anonymised Data and Derivative Materials to any third party in its sole discretion.

9    Confidential Information

9.1    Confidentiality

Subject to clause 9.2, a party must not disclose, or use for a purpose other than as contemplated by this Agreement, the existence of and terms of this Agreement or any other Confidential Information.

9.2    Permitted disclosure

A party may disclose any Confidential Information:

  1. to the other party to this Agreement;
  2. under corresponding obligations of confidence as imposed by this clause, to persons which control or are controlled by the party within the meaning of the Corporations Act, and the employees, legal advisors or consultants of such persons;
  3. which is at the time lawfully in the possession of the proposed recipient of the Confidential Information through sources other than the other party, or a Related Body Corporate of the other party, to this Agreement;
  4. in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement;
  5. if required under a binding order of a Governmental Agency or under a procedure for discovery in any proceedings;
  6. if required under any Law or any administrative guideline, directive, request or policy whether or not having the force of law;
  7. as required or permitted by this Agreement;
  8. to its legal advisers, its insurers and its consultants; or
  9. with the prior written consent of the other party to this Agreement.

9.3    Publicity

  1. Customer agrees that, notwithstanding this clause 9, SenseAg may:
    1. disclose to third parties the fact that Customer has entered into this Agreement with SenseAg; and
    2. use de-identified information about Customer,

    in any marketing or other material used by SenseAg.

  2. For the avoidance of doubt, marketing material may include (but is not limited to) case studies regarding Customer’s involvement with SenseAg, however SenseAg will only identify Customer in marketing material (including in case studies) with Customer’s prior written consent.

10    Privacy

Customer must not use, or cause the SenseAg Materials to be used, in any manner or for any purpose prohibited by any Privacy Laws.

11    Payment

11.1    Fees

  1. Customer must pay the Fees as set out in an invoice, without set-off, abatement or deduction, in accordance with this clause 11.
  2. The Fees will be set out in the Order and may include fees for the provision of the Hardware to Customer, a Subscription Fee and a Services Fee.
  3. The Subscription Fee may be waived or discounted for any period of time at the sole discretion of SenseAg.

11.2    Invoicing

  1. A party must promptly, if requested by the other party, issue a valid tax invoice to the other party in respect of the applicable Fees payable by the first mentioned party in accordance with this Agreement.
  2. Each party must pay all invoices properly issued to it within 14 days of receipt.
  3. An invoice is valid only if:
    1. the amount specified in the invoice is correctly calculated in accordance with this Agreement;
    2. it is set out in a manner that enables the recipient of the invoice to ascertain which service is covered by the invoice, the respective charge payable and how that amount is made up or calculated; and
    3. it is addressed and delivered to the address for notices set out in the applicable Order.

11.3    Late payment

Any portion of the payments not paid by either party to the other party on or before the date that it is due, and that is not disputed in accordance with clause 22, shall accrue interest at a rate equal to the General Interest Charge (GIC) per annum, from the date such amount is due until payment is received in full by the other party.

11.4    GST

  1. If GST is payable on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply.
  2. Unless otherwise stated, all amounts referred to in this Agreement, including the Fees, are stated on a GST exclusive basis.
  3. If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.
  4. In providing an invoice in accordance with clause 11.2, a party shall provide proper tax invoices if GST is applicable to the Fees.
  5. Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 shall have that meaning in this Agreement.

12    Force Majeure

  1. Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed in whole or in part due to any Force Majeure Event, this Agreement will continue and remain in effect but the Affected Party will not be in breach of this Agreement for that reason only, and the Affected Party will be granted a reasonable extension of time to complete performance of its affected obligations.
  2. The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.
  3. After 14 days (or earlier if agreed by the parties) of being given notice, either party may terminate the Agreement or negotiate to allow part fulfilment or deferment of the obligations of either party under this Agreement.

13    Variation

  1. SenseAg may amend these terms and conditions from time to time to reflect changes in market conditions, changes in technology used to provide the products and services under this Agreement, changes in payment methods, changes in relevant laws and regulatory requirements and changes in the capabilities of SenseAg’s system.
  2. SenseAg will notify you of any amendment to this Agreement in writing. You must accept the amended terms in order to continue use of the Products. If you do not agree to the amended terms, you will be deemed to have exercised your right to terminate the Agreement pursuant to clause 14(c) below.

14    Termination

  1. (for cause) Either party may terminate this Agreement with immediate effect by giving written notice to the other party at any time if the other party:
    1. breaches any warranty in this Agreement or any other provision of this Agreement which is incapable of being remedied, or where the breach is capable of being remedied, fails to remedy the breach within seven days after receiving written notice from the terminating party requiring it to do so;
    2. on the occurrence of an Insolvency Event; or
    3. without limiting clause 14(a)(i), fails to comply with the obligations set out in clause 9 (Confidential Information).
  2. (termination for failure to comply with restrictions) Without limiting clause 14(a)(i), SenseAg may suspend Customer’s access to the Products or terminate this Agreement with immediate effect if Customer or its Personnel breach any of the restrictions set out in clause 7.
  3. (termination of Agreement for refusal of new terms) If Customer elects not to accept variations to these terms made pursuant to clause 13 Customer will be deemed to have terminated this Agreement with immediate effect.
  4. (termination of Agreement for convenience) Either party may terminate this Agreement for convenience and without incurring liability to the other party at any time by giving at least 30 days’ written notice to the other party.

15    Consequences of termination

  1. On termination of this Agreement for any reason:
    1. all rights granted to Customer under this Agreement shall cease;
    2. Customer must cease all activities authorised by this Agreement;
    3. Customer must immediately delete or remove the App from all Hardware, and immediately destroy all copies of the App and Documents in its possession;
    4. Customer must, within 20 Business Days of termination, immediately return non-purchased Hardware to SenseAg at the cost of the Customer;
    5. Customer will lose all rights to access the Platform; and
    6. SenseAg may remotely access the Products and/or Hardware and remove the App and cease providing you with access to the Products.
  2. Customer must, within 20 Business Days of termination, pay to SenseAg all Fees incurred and/or owing under the Agreement up to and including the date of termination or expiry.
  3. Upon termination of this Agreement, Customer will be entitled (following a written request to SenseAg) to export any Data that has been input by Customer into the App and/or the Platform.

16    Accrued rights and remedies and survival

Without limiting any other provision of this Agreement, clauses 7 (Use of Products), 8 (Intellectual Property), 9 (Confidential Information), 10 (Privacy), 15 (Consequences of termination), this clause 16 (Accrued rights and remedies and survival), 18 (Disclaimer), 19 (Indemnities), and any other clauses which should by their nature survive termination of this agreement, survive termination or expiration of this Agreement for any reason.

17    Warranties

Each party represents and warrants that:

  1. it has full power, authority and legal capacity to enter into this Agreement and perform its obligations under this Agreement;
  2. execution and performance of this Agreement will not result in a breach of any terms or conditions of any instrument or agreement to which it is a party; and
  3. it shall obtain and maintain all Consents applicable or necessary in order to perform its obligations under this Agreement.

18    Disclaimer

Customer agrees and acknowledges that, to the extent permitted by Law (including the Australian Consumer Law if applicable), SenseAg:

  1. does not represent, warrant or accept any liability in relation to the accuracy, currency, reliability or quality of the SenseAg Materials or Services;
  2. does not represent or warrant that the SenseAg Materials or Services are free from errors or omissions, or that they are exhaustive; and
  3. disclaims any warranties, representations or endorsements, express or implied, with regard to the SenseAg Materials or Services, including all implied warranties of merchantability, fitness for a particular purpose, or non-infringement.

19    Indemnities

19.1    Indemnity by SenseAg

SenseAg shall defend, hold harmless and indemnify Customer from and against any Loss suffered or incurred by Customer arising out of or in connection with any Claim that the Products infringe any Intellectual Property Right or other right of any third party, except to the extent that such Loss is caused or contributed to by an act or omission of Customer.

19.2    Indemnity by Customer

Customer shall defend, hold harmless and indemnify SenseAg and its Related Bodies Corporate and Personnel (the SenseAg Indemnified Parties) from and against any Loss suffered or incurred by the SenseAg Indemnified Parties arising out of or in connection with:

  1. any breach of clause;
  2. any Claim by any person (including Customer) in connection with any data used or disclosed by SenseAg in connection with this Agreement;
  3. any Claim by any person (including Customer) that is connected with use by Customer of the Products; or
  4. any loss or damage to property arising out of or otherwise in connection with any wrongful act or omission of Customer.

20    Limitation of liability

  1. To the extent permitted by Law, (including the Australian Consumer Law if applicable), and subject to clause 20(d), in no event will the aggregate liability of SenseAg for any Loss, direct or otherwise, exceed the Liability Cap, regardless of the cause or form of action. For the avoidance of doubt, the limitation of liability under this clause 20(a) is cumulative and not per incident or Claim.
  2. To the extent permitted by Law, (including the Australian Consumer Law if applicable), under no circumstances will SenseAg be liable for any Consequential Loss.
  3. The limitations and exclusions in this clause 20 shall apply whether the action, claim or demand arises from breach of contract, tort (including negligence) or under any other theory of liability.
  4. Clause 20(a) does not apply to, and shall not limit, any party’s liability:
    1. for death or personal injury caused by that Party or its Personnel;
    2. for fraud (including fraudulent misrepresentation); or
    3. under any indemnity given in this Agreement.

21    Assignment

  1. The contract between SenseAg and Customer is binding on the parties and their respective successors and assigns.
  2. Customer may not transfer, assign, charge or otherwise dispose of this Agreement, or any of its rights or obligations arising under it, without SenseAg’s prior written consent.
  3. SenseAg’s consent under clause 21(a) will not relieve Customer of its obligations to SenseAg under this Agreement, and Customer will be fully responsible to SenseAg for the acts or omissions of its sub-contractors, contractors, assigns and all their employees, as if it were the acts and omissions of Customer.
  4. SenseAg may transfer, assign, charge, sub-contract or otherwise deal with an Agreement, or any of its rights or obligations arising under it, at any time during the term of the Agreement.

22    Dispute resolution

  1. Neither party may commence any court or arbitration proceedings relating to a Dispute unless it has complied with the provisions of this clause 22, except to seek urgent interlocutory relief.
  2. A party claiming that a Dispute has arisen must promptly notify the other party in writing by giving details of the Dispute. The parties must use reasonable endeavours to resolve any Dispute.
  3. If the parties are not able to resolve the Dispute in accordance with clause 22(b) within 20 Business Days from the date of notification, either party may immediately refer the Dispute to mediation and the parties will use reasonable endeavours to resolve the Dispute following the ACDC Guidelines. Each party must bear its own costs in relation to complying with this clause 22(c), except for the costs and expenses of the mediation, which will be borne by the parties equally.

23    Notices

23.1    Provision of notices

Any notice, demand, consent or other communication (a Notice) given or made under this Agreement:

  1. must be in writing and signed by the sender or a person duly authorised by the sender;
  2. must be addressed and delivered to the address, email address or fax number last notified by the intended recipient to the sender after the date of this Agreement; and
  3. will be conclusively taken to be duly given or made when delivered, received or left at the above email address, fax number or address. If delivery or receipt occurs on a day that is not a business day in the place to which the Notice is sent or is later than 4pm (local time) at that place, it will be conclusively taken to have been duly given or made at the commencement of business on the next business day in that place.

24    General

24.1    Further assurances

Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.

24.2    Entire agreement

This Agreement contains the entire agreement between the parties with respect to its subject matter. It sets out the only conduct, representations, warranties, covenants, conditions, agreements or understandings (collectively Conduct) relied on by the parties and supersedes all earlier Conduct by or between the parties in connection with its subject matter. None of the parties has relied on or is relying on any other Conduct in entering into this Agreement and completing the transactions contemplated by it.

24.3    Waiver

No failure to exercise or delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or 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.

24.4     Remedies cumulative

The rights, powers and remedies provided to a party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.

24.5    No merger

The rights and obligations of the parties will not merge on the completion of any transaction contemplated by this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction.

24.6    Severability

Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

24.7    Costs and duty

Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.

24.8     Governing law and jurisdiction

This Agreement and, to the extent permitted by law, all related matters including non-contractual matters, is governed by the laws of Victoria and of the Commonwealth of Australia applying there. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction there and waives any right to object to the venue on any ground.

24.9    Counterparts

This Agreement may be executed in any number of counterparts. All counterparts will be taken to constitute one agreement.

25    Definitions and Interpretation

25.1    Definitions

The following definitions apply unless the context requires otherwise.

ACDC means the Australian Commercial Disputes Centre Ltd (or, if that organisation ceases to exist, a similar organisation nominated by the party referring the Dispute to mediation).

ACDC Guidelines means ACDC Guidelines for Commercial Mediation (or if the ACDC ceases to exist, the guidelines for mediation of any similar organisation nominated by the party referring the Dispute to mediation) in force from time to time, the terms of which are incorporated into this Agreement.

SenseAg Materials means the Products and the Hardware.

App means the SenseAg device application software and other associated SenseAg application software, the data supplied with the software and the associated media (as updated from time to time).

Business Day means a weekday on which banks are open in Melbourne, Victoria.

Claim means, in relation to a party, a demand, claim, action or proceeding made or brought by or against the party, however arising and whether present, unascertained, immediate, future or contingent.

Commencement Date means the date the parties enter into this Agreement.

Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement and includes, without limitation, any information and material concerning the contractual or commercial dealings, financial details, products or services (current or proposed), customers, employees, internal policy, the Intellectual Property Rights of a party or dealings under this Agreement.

Consents means any licences, clearances, permissions, certificates, permits, authorities, declarations, exemptions, waivers, approvals or consents.

Consequential Loss means any:

(a) loss of profits, loss of income or revenue, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third parties), loss of management time, damage to credit rating, or loss of business; and

(b) any loss, not arising naturally (that is according to the usual course of things), from the relevant breach, whether or not such loss is reasonably supposed to have been in the contemplation of both parties, at the time they made the Agreement, as the probable result of the relevant breach.

Data means data (excluding Personal Information) that Customer inputs into the App or the Platform or provides to SenseAg or its Personnel by any other means or that is otherwise obtained by or on behalf of SenseAg or its Personnel via the App, Platform, Hardware or by any other means.

Derivative Materials means materials, data and insights derived or created by or on behalf of SenseAg or its Personnel in accordance with clause 8.2, which are based on, or created or derived from, the Data.

Documents means all online or hard copy documents, together with their accompanying supplemental information, made available to Customer by SenseAg from time to time.

Dispute means a dispute between the parties arising in connection with this Agreement.

Fees means the fees and expenses set out in an Order.

Force Majeure Event means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:

  1. act of God, lightning, storm, flood, fire, earthquake or explosion;
  2. strike, lockout or other labour difficulty;
  3. act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
  4. the effect of any applicable laws, orders, rules or regulations of any government or other competent authority;
  5. embargo, power or water shortage, lack of transportation, lack of public or private telecommunications networks; and
  6. breakage or accident or other damage to machinery.

Governmental Agency means any government or any governmental, semi-governmental or judicial entity or authority. It also includes any self-regulatory organisation established under statute or any stock exchange.

Hardware means the items specified in an Order.

Insolvency Event means where:

  1. a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;
  2. a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
  3. a party becomes or is (including under legislation) deemed or presumed to be insolvent;
  4. a party has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of it or the whole or any part of its assets or business;
  5. any composition or arrangement is made with any one or more classes of its creditors;
  6. except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;
  7. a party enters into liquidation whether compulsorily or voluntarily; or
  8. any analogous or comparable event takes place in any jurisdiction.

Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semi-conductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

Law means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct, writs, orders, injunctions and judgments.

Liability Cap means the amount equal to the Fees paid by Customer under an applicable Order in the preceding six month period from the time the event occurred that gave rise to the Claim.

Personal Information means “personal information” as defined in the Privacy Act and any other information relating to individuals that is subject to the operation of the Privacy Laws that either party has collected, received or otherwise has access to in connection with this Agreement.

Personnel means in respect of a person any employee, contractor, servant, agent, or other person under the person’s direct or indirect control and includes any sub-contractors.

Platform means the web based application which comprises the SenseAg online Platform, the data supplied with the software and the associated media.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Laws means:

  1. the Privacy Act;
  2. the Spam Act 2003 (Cth);
  3. any legislation from time to time in force in any:
    1. Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia); and/or
    2. non-Australian jurisdiction (to the extent that either party is subject to the laws of that jurisdiction),

affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data; and

  1. any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued by a Government Agency under an instrument identified in paragraphs (a), (b) or (c),

as amended from time to time.

Privacy Policy means the privacy policy of SenseAg available at http://www.senseag.com/privacy, as amended from time to time.

Products means the App, the Platform and the Documents.

Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).

Services means the services set out in an Order.

Services Fee means the fee charged by SenseAg for the provision of Services.

Subscription Fee means the monthly fee charged by SenseAg in relation to cloud synchronisation and data storage, sharing data between multiple devices, updates to the Software, lease of Hardware and access to the SenseAg Platform.

Tax includes any tax, levy, impost, deduction, charge, rate, duty, compulsory loan or withholding that is levied or imposed by a Governmental Agency, and any related interest, penalty, charge, fee or other amount.

Term means in relation to the Agreement, the period described in clause 2.1.

Update means any update or upgrade to the App or Platform issued by SenseAg from time to time.

Upgrade means any update or upgrade to the Hardware, as issued from time to time, including any upgrade to the software or middleware used on the Hardware.

25.2    Interpretation

The following rules apply unless the context requires otherwise:

  1. headings are for convenience only and do not affect interpretation;
  2. the singular includes the plural, and the converse also applies;
  3. nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or a relevant part of it;
  4. if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
  5. a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
  6. a reference to a clause or Schedule is a reference to a clause of, or Schedule to, this Agreement;
  7. a reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document;
  8. a reference to a party to this Agreement or another agreement or document includes the party’s successors, permitted substitutes and permitted assigns (and, where applicable, the party’s legal personal representatives);
  9. a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
  10. a reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in visible or tangible form;
  11. a reference to conduct includes an omission, statement or undertaking, whether or not in writing;
  12. a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind;
  13. mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included;
  14. a reference to dollars and $ is to Australian currency or such other currency set out in the relevant Order; and
  15. a month means a calendar month.