This Agreement is made on a current date between:
COREIoT Pty Ltd (ACN 601 421 596) of Suite 11, 162 Colin Street, West Perth,
Western Australia, 6005 (“COREIoT”); and
The legal entity described in the Proposal (“Customer”).
COREIoT has developed and is the proprietor of the Software.
COREIoT grants to Customer a non-exclusive right to use the Software and to provide Services in relation to the Software on the terms and conditions of this Agreement.
In this Agreement, unless the context otherwise requires:
Agreement means this Agreement, its recitals, Clauses and any Proposals;
Business Day means a day other than a Saturday, Sunday or a public holiday in Western Australia;
Clause means a clause of this Agreement;
Commencement Date means the date specified in the Proposal;
Confidential Information means all information disclosed by a Party to the other Party both prior to and after the Commencement Date of this Agreement, whether orally or in writing, which is confidential by its nature, designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. Confidential Information does not include information that is public knowledge, or becomes public knowledge or was known to one Party prior to the disclosure by the other Party, or is received from a third party not under an obligation of confidence or was independently developed by the Party receiving the Confidential Information.
Confidential Information of COREIoT includes:
all information provided by COREIoT to Customer which relates to the Software and the Services, COREIoT’s Intellectual Property Rights, trade secrets, products, specifications, designs, methods of manufacture and research belonging to COREIoT;
information regarding the business operations of COREIoT and its clients or business partners; and
this Agreement and its provisions.
Fault means either the Software is:
totally inoperative or non-functioning (“Inoperative Fault”) or
seriously degraded or deteriorated (“Degrade Fault”); or
partially inoperative or does not function in accordance with the Software
Documentation (“Minor Fault”)
Fees mean the fees specified in the Proposal for the Software and the Services;
Force Majeure Event means any fire, flood, earthquake, elements of nature or acts of God, strikes, acts of war, terrorism, riots, civil disorders and labour disputes or other industrial disturbances or government embargoes and systemic electrical, telecommunications or other utility failures which prevent access to the Software or the Services or any other omission or circumstance beyond the reasonable control of a Party.
Intellectual Property means any copyright and analogous rights, trade marks, service marks, designs, inventions (including patents), trade, business or company names, trade secrets, know-how, Confidential Information or other proprietary information, and similar industrial, commercial and intellectual property rights whether or not registered or registrable.
Intellectual Property Rights means all intellectual property rights of whatever nature throughout the world, whether created before or after the Commencement Date, including rights in respect of or in connection with any Intellectual Property (including any right to apply for or renew any registration of such rights) and, without limitation, any right arising from or capable of arising from any legislation both within and outside the Commonwealth of Australia;
Number of Users means the number of subscriptions purchased for the Software described in the Proposal;
Party means a Party to this Agreement and its successors, trustees and permitted assigns;
Personnel means directors, employees, secondees, agents, officers and subcontractors of the Parties or Related Entity;
Proposal means a written document provided to the Customer by COREIoT which may be in the form of a written scope, statement of work, quotation or an estimate;
Related Entity has the same meaning as “related entity” under Section 9 of
the Corporations Act 2001 (Cth);
Services means the services described in the Proposal;
Service Centre means and includes the place of business from which COREIoT renders the Services;
Service Centre Times means from 8:00am to 5:00pm (AWST) on Business Days, or as otherwise agreed in writing between the parties;
Software means the COREIoT Software specified in the Proposal;
Software Documentation means the supporting documentation relating to the Software made available from time to time to the Customer by COREIoT;
Standard Hourly Rates means the hourly rates identified in the Proposal”
Sub-clause means a sub-clause of this Agreement;
Term means the term specified in the Proposal;
Upgrade means updates, upgrades, fixes and new releases of the Software;
User means an individual who is authorised by Customer to use the Software and for whom Customer has purchased a subscription of the Software in accordance with the terms of this Agreement;
Items appearing in bold type in the Schedules will be interpreted as defined terms.
In the interpretation of this Agreement unless the context otherwise requires:
Words denoting a person will include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.
Words denoting the singular number will include the plural number and vice versa.
Words that are gender neutral or gender specific include each gender.
A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.
Money references are references to Australian currency, unless otherwise stated.
Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and will not be relevant or affect the meaning or interpretation of this Agreement.
This Agreement may not be construed adversely to COREIoT simply because COREIoT prepared the Agreement.
If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement will remain otherwise in full force apart from such provision or part provision which will be deemed deleted.
Subject to payment of the Fees in accordance with the provisions of this Agreement, COREIoT will supply the Software and provide the Services.
Customer engages COREIoT as an independent contractor/supplier.
COREIoT and its Personnel are neither agents, representatives nor employees of Customer.
COREIoT will provide to Customer the Services in accordance with the terms of this Agreement.
Subject to clause 5.3, Customer acknowledges that the Fees will apply for the Term and any extension of the Term.
COREIoT may increase the Fees in accordance with the provisions of this Agreement, and COREIoT will notify Customer of such increase within the relevant tax invoice.
Customer will nominate a maximum of (3) Specified Personnel as authorised representatives who are permitted to request COREIoT to provide the Services in accordance with the procedure set out in any Proposals. COREIoT will be entitled to assume that the Specified Personnel have authority to make any requests that they do of COREIoT for the provision of the Services.
COREIoT will use its best endeavours to respond to any request for Services made to the Service Centre as soon as is reasonably possible but in any event within 24 hours of notification from Customer provided that such notification is during the Service Centre Times.
Customer will provide free of charge all information (including Confidential Information) when required by COREIoT which is reasonably necessary, in the opinion of COREIoT, for COREIoT to provide the Services under the terms and conditions of this Agreement.
COREIoT is not otherwise required to provide any other services to Customer under this Agreement.
If Customer requires additional services from COREIoT in respect of the Software, Customer may request such services in writing from COREIoT.
The Parties may negotiate the terms of the additional services at the relevant time. If additional services are provided without agreement on terms recorded in writing (including any onsite support), then the additional services will be provided by COREIoT at the Standard Hourly Rates.
Software Conditions of Use
Subject to the terms of this Agreement, COREIoT grants Customer a non-exclusive right to use the Software for the Number of Users and in the capacity as described in any Proposals. COREIoT represents and warrants that the use of the Software by Customer in accordance with this Agreement will not infringe Intellectual Property Rights of any third party in any way.
Usage of the Software is limited to the Number of Users which may be increased at any time during the Term or extended Term of this Agreement. The pricing for any increase in Users will be initially prorated for the proportion of the remaining Term at the time the subscription is added, and then rolled into any subsequent Term.
Customer may not reduce the amount of Users during the Term.
keep its user accounts, passwords and activation codes details confidential and not disclose same to any other party. Customer will be responsible for all use of same whether authorised by Customer or not. Should any such disclosure occur Customer will report same to COREIoT in writing within (7) days of the unauthorised disclosure;
comply with COREIoT’s usage policies in place from time to time and disclosed to the Customer in writing;
apply or accept, without delay, all Upgrades issued by COREIoT from time to time to which Customer is entitled;
agree to and comply with the terms and conditions of any third party software or services supplied by COREIoT or made available with the hosted Software;
comply with all applicable laws;
ensure that its customers, employees, sub-contractors and other agents who have authorised access to the hosted Software are made aware of the terms of this Agreement;
supervise and control the use of the hosted Software in accordance with the terms of this Agreement;
immediately advise COREIoT in writing upon Customer becoming aware of any person using the hosted Software who is not authorised by COREIoT to do so;
provide a notice to COREIoT in accordance with Clause 21 of any unsatisfactory operation of the Software to COREIoT as soon as practicable.
Customer will not:
copy, reproduce, translate, adapt, vary, modify, decompile, disassemble, reverse engineer, create derivative works of, sub-license, rent, lease, loan or distribute hosted Software other than as expressly authorised by this Agreement;
engage in password sharing, remote desktop access or port aggregation without the express permission of COREIoT;
permit any act which infringes COREIoT’s Intellectual Property Rights;
provide or otherwise make available the Software in any form to any other person who is not a User;
attempt to poach any COREIoT’s employees
Other than specified in this Agreement, nothing in this Agreement imposes any obligation of COREIoT to rectify any errors in the Software or Software Documentation or to provide Customer with any corrections, modifications, enhancements in relation to the Software.
the Software is not designed as a substitute in any way for professional, financial or legal advice;
that a failure to follow the Software Documentation could result in erroneous information or data being produced by the Software;
the use of the Software is granted to Customer only on the understanding that, subject to the warranty at Clause 6.8 below, COREIoT is not responsible
for the results of any actions taken, either by Customer or a third party relying on figures supplied or not supplied by the Software;
it will check all final results provided by the Software for any anomalies as the Software does not check for anomalies and data incorrectly entered may be processed without question;
COREIoT warrants that the Software will comply with the Software Documentation. To the fullest extent permitted by law (and subject to the terms of the Australian Consumer Law) the Software and any Software Documentation is provided “AS IS” and all warranties whether express, implied, statutory or otherwise, relating in any way to the Software are excluded.
To the fullest extent permitted by law (and subject to the terms of the Australian Consumer Law), the liability of COREIoT for any breach under Clause
6.8 will be limited to the repair or replacement of the Software at COREIoT’s election.
If a Fault occurs, Customer will contact the Service Centre in accordance with the provisions of the Proposal (“Fault Report”).
COREIoT undertakes to only accept Fault Reports at the Service Centre placed by an authorised Customer representative in accordance with Sub-clause 5.4 and in accordance with the procedures set out in this Clause 7.
Whenever a Service Centre request is placed with COREIoT, a correction number will be allocated and given to Customer’s authorised representative.
For each Service Centre request in respect of a Fault which is placed and attended to by COREIoT, a report, will as soon as is practical be completed by COREIoT, and delivered to Customer in the normal course of business and subject to the Service Centre Times.
COREIoT undertakes to use all reasonable and proper endeavours to:
achieve a Resolution of an Inoperative Fault within 1 working day; and
provide Customer with an interim solution or workaround for a Degrade Fault within 5 working days; and
correct a Minor Fault within the next Upgrade or within a reasonable time period given COREIoT’s resource availability and Upgrade schedule.
For purposes of this Clause 7:
“Resolution” in connection with a Fault is defined as applying procedures which allow the Software to remain in substantial conformity with the Software Documentation;
“Response Time” in connection with a Fault is the time beginning when COREIoT is provided with sufficient detail to its satisfaction so that COREIoT is able to clearly identify the problem as a Fault in accordance with the fault reporting procedure;
the submission of a Fault Report which does not identify the problem as being a Fault will not necessarily invoke a response in accordance with the procedures set out in this Clause.
Any time spent by COREIoT resolving Faults caused by the Customer or a third party will be charged at COREIoT’s Standard Hourly Rates.
The Software and the Services will be available for Customer to use from the Commencement Date and for the Term.
Unless otherwise terminated in accordance with Clause 15 this Agreement will continue for the Term, and unless terminated by either Party giving at least 21 days written notice prior to expiration of the Term will automatically renew for a further Term.
No variation, modification or alteration of any part of this Agreement will be valid except in writing signed by each Party.
If Customer desires variations to this Agreement, Customer may request such variations in writing from COREIoT.
Intellectual Property Rights
Nothing in this Agreement transfers to Customer any Intellectual Property Rights of COREIoT. At all times COREIoT remains the owner of all Intellectual Property Rights in the Software (including all customisations, modifications and Upgrades of the Software) and Software Documentation, COREIoT brands, products, training materials and marketing materials and any improvements to COREIoT’s existing tools and methodologies that may be created, written or otherwise brought into existence by or on behalf COREIoT in the course of performing its obligations under this Agreement.
Customer acknowledges that COREIoT remains the sole owner of the Intellectual Property Rights arising in relation to the Services (including any future services).
Each Party warrants that any materials supplied to the other Party by the first Party does not infringe the Intellectual Property Rights of any person, company, organisation or legal entity.
Confidential Information and Privacy Obligations
Each Party acknowledges that the Confidential Information of the other Party is valuable to the other Party.
Each Party agrees not to disclose any Confidential Information provided by the other Party, except:
with the written consent of the Party who provided the information;
to any person in connection with an exercise of rights or a dealing with rights or obligations under this Agreement, who has given an undertaking of confidence in writing prior to the disclosure of the Confidential Information;
to officers, employees, legal and other advisers or auditors of any Party who have given an undertaking of confidence in writing to that Party prior to the disclosure of the Confidential Information; and
if the Party receiving the Confidential Information is required to do so by law, stock exchange or in connection with legal proceedings relating to this Agreement.
Both Parties will take all necessary precautions to prevent any disclosure of the Confidential Information to unauthorised third parties and will only if legally permissible inform the other Party of any suspected or actual disclosure of the Confidential Information.
Both Parties agree to comply with all applicable legislation governing privacy and data protection including but not limited to those contained in the privacy principles contained in the Privacy Act 1988 (Cth), and any other similar legislation both within and outside the Commonwealth of Australia, with respect to any act done or practice engaged in for the purposes of their respective performances of this Agreement.
Customer will pay COREIoT the Fees as specified in any Proposals.
Customer will pay COREIoT the Fees within 14 days of the date of the tax invoice.
Unless the Quote states otherwise, the Buyer must pay the Price for Goods and/or Services supplied to it within 14 days of the date of the invoice for such Goods and/or Services. Interest shall be payable by the Buyer on all amounts overdue to seller at the rate of 12% per annum accruing, calculated from the due date for payment of the outstanding amount until the date of payment by the Buyer. Any payment made by the Buyer will be credited first against any interest that has accrued
Fees are exclusive of all taxes including without limitation any GST, and the Customer must pay, and keep COREIoT indemnified against any taxes only which are legally due and payable by the Customer in respect of the Fees but excluding income taxes.
If any undisputed payment owing to COREIoT is not made within 14 days of the due date, COREIoT may, on written notice, suspend further services or its remaining obligations to Customer under this Agreement until payment is made.
Annual fees will be subject to CPI increases
Exclusions and Limitation of Liability
To the fullest extent permitted by law (subject to the Australian Consumer Law) and except as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally, are excluded. Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term will be deemed to be included in this Agreement. To the extent permitted by law, the liability of COREIoT for any breach of such term will be limited to the supplying of the services again.
Subject to Clause 13.1, to the fullest extent permitted by law (subject to the Australian Consumer Law) and except as expressly provided to the contrary in this Agreement the Parties’ total liability for breach of this Agreement will be limited to the value of the total Fees paid under this Agreement during the Term. To the fullest extent permitted by law (subject to the Australian Consumer Law), neither Party’s liability will include any amount for indirect, special or consequential loss or damage, loss of profits, loss of opportunity or loss of commercial advantage under any circumstances.
From time to time, COREIoT may provide Customer data to a third-party storage provider. COREIoT will ensure it uses reasonably qualified third parties for the purpose of storage of any Customer data. If loss arises as a result of the loss or disclosure of Customer data held by a third party, then, to the fullest
extent permitted by law (subject to the Australian Consumer Law) COREIoT will not be liable for any loss or damage arising from same.
To the extent permitted by law and notwithstanding any other provision in this Agreement, the Parties will fully indemnify and keep indemnified the other Party, its directors, officers, employees, subcontractors and agents, against any direct loss, direct and reasonable costs, direct and reasonable expenses, demands, taxes (other than income taxes and provided that the taxes were not incurred in any way due to the fault of the other Party), direct damages or direct liability arising directly out of a breach of Clause 10.3 of this Agreement provided that in each case the indemnified Party:
promptly notifies the indemnifying Party of any third-party Intellectual Property claim; and
provides the indemnifying Party with reasonable information, assistance and co-operation in responding to and, where applicable, defending the third-party Intellectual Property claim.
The indemnifying Party will have no obligation or liability under this Clause 14 in relation to any third-party claim arising from:
the indemnified Party’s non-compliance with this Agreement;
use or provision of the Software and/or the Services in combination with materials not furnished by the indemnifying Party; and
any data not provided by the indemnifying Party.
Without limiting the generality of any other Clause in this Agreement, either Party may terminate this Agreement immediately by notice in writing if:
the other Party materially breaches any Clause and such breach is not remedied within 30 days of written notice by the non-defaulting Party; or
the other Party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.
If notice is given to Customer pursuant to Clause 15.1 then COREIoT may, in addition to terminating this Agreement:
retain any moneys to which COREIoT is entitled, and refund on a pro-rata basis any excess moneys paid;
charge a reasonable sum for work performed only which relate to work consented to by the Customer in respect of which work no sum has been previously charged;
be regarded as discharged from any further obligations under this Agreement; and
pursue any additional or alternative remedies provided by law.
Customer may terminate this Agreement without cause on 90 days (or, if the Term is for a duration less than 90 days, by giving 28 days) written notice. Customer must pay COREIoT all Fees that would have been paid over the outstanding duration of the Term.
Within 60 days after the effective date of termination or expiration of the Agreement, COREIoT will automatically delete or destroy any Customer data it has in its systems or otherwise in its possession or control and provide written confirmation of compliance to Customer. Any request by Customer to COREIoT to maintain any Customer data beyond this 60-day period will be subject to Clause 5.8 of this Agreement.
A Party claiming that a dispute has arisen must give a written notice to the other Party in accordance with Clause 21, setting out the nature of the dispute. (“Dispute Notice”).
In the event that a Dispute Notice is issued by one Party to the other Party:
Within 5 Business Days of receipt of the Dispute Notice, the Parties must each nominate a representative who has express authority to resolve the dispute or to initiate proceedings for resolving the dispute, and give written notice to each other Party of the identity of that representative;
Within 10 Business Days of the date of the Dispute Notice, the representatives must meet or contact each other to seek to resolve the dispute by negotiation. All aspects of the meeting/discussion, except the fact of its occurrence, must be kept confidential and all communications between the representatives at the meeting/discussion are made on a without prejudice basis;
If the Parties are able to resolve the dispute under this Clause 16.2, they will record that resolution in a written document signed by the parties, which once signed will be binding on the parties.
If the Parties are unable to resolve the dispute under this Clause 16.2 within
(20) Business Days, then they may have recourse to litigation or other dispute resolution process.
A Party will not be liable for any delay or failure to perform its obligations under this Agreement if such a failure or delay is due to a Force Majeure Event.
On the occurrence of a Force Majeure Event, the non-performing Party must:
promptly notify the other Party; and
use its best endeavours to resume performance whenever and to whatever extent possible without delay.
Assignment, Novation and Sub-Contracts
Neither Party may sub-contract for the performance or part performance of this Agreement without written consent from the other Party.
This Agreement will not be dealt with in any way by either Party (whether by assignment, novation, sub-licensing or otherwise) without the other Party’s prior written consent which will not be unreasonably withheld.
No right of either Party under this Agreement will be deemed to be waived except by notice in writing signed by such Party. Such a waiver by either Party will not prejudice its rights in respect of any subsequent breach of this Agreement by Customer.
Any express statement of a right of either Party under this Agreement is without prejudice to any other right of such Party expressly stated in this Agreement or arising at law.
This Agreement will be governed by and construed according to the law of the State of Western Australia.
The Parties irrevocably submit to the exclusive jurisdiction of the courts of Western Australia and the Commonwealth of Australia (Western Australia based registries) and any courts hearing appeals from such Courts.
Notices under this Agreement may be delivered by certified mail or by email to the address of the Party specified in any Proposals.
Notices will be deemed given in the case of:
Certified mail, on actual delivery to the address of the Party as evidenced by documentation of the carrier of the notice; and
Email: at the time and on the day that the notice appears in the recipient’s email inbox.
A Party may change its address for service number by giving notice of that change to each other Party.
The provisions of this Agreement which are capable of having effect after the expiration of this Agreement will remain in full force and effect following the expiration of the Agreement.
This Agreement constitutes the entire Agreement between the parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded.
This Agreement is not to be construed as creating a joint venture, partnership or agency situation between the parties and neither Party may represent such. Under no circumstances may any Party obligate or bind the other Party to any Agreements, arrangements, contracts or understanding or represent that they have such authority.