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SensorMine
Licence Agreement
1.1 The LAB3 Group (being LAB3 Pty Ltd and LAB3 NZ Limited) (us, we) have developed a product known as SensorMine.
1.2 SensorMine enables organisations to gain greater visibility and insight about machinery, infrastructure, vehicles, equipment and the environment, to inform data-driven decisions.
2.1 These Licence Agreement terms (Terms) govern access to and use of SensorMine, by individuals and organisations who purchase, or otherwise use, SensorMine (Licensee, you, your).
2.2 By accessing or using SensorMine, or requesting us, your Partner or another party to do so on your behalf, you accept these Terms as a binding contract (whether on behalf of yourself or a legal entity you represent).
2.3 You are responsible for:
(a) identifying and authenticating Personnel who are authorised to access and use SensorMine;
(b) approving access by such authorised Personnel;
(c) controlling against unauthorised access by any Personnel; and
(d) the acts and omissions of such Personnel in connection with their access to and use of SensorMine.
2.4 If you do not accept and comply with these Terms, you may not access or use SensorMine.
3.1 Where you purchase SensorMine from a Partner:
(a) the pricing of SensorMine is independently determined by your Partner; and
(b) unless otherwise agreed, you will be invoiced by, and all payments must be made directly to, your Partner.
3.2 Where you purchase SensorMine from a Partner we are not responsible for:
(a) the acts or omissions of your Partner;
(b) any additional obligations your Partner may have to you;
(c) any representation, warranties or other commitments made to you by your Partner without our prior written consent;
(d) products or services that your Partner sells or supplies to you that are not provided by us; or
(e) any refund or reimbursement of any amounts paid by you, including on termination of these Terms.
4.1 These Terms take effect and bind the Parties from the date you are given access to SensorMine.
4.2 These Terms will continue to apply to, and govern your access to and use of SensorMine, including each component of your Subscription and the Devices, until the later of:
(a) when your access to SensorMine has been suspended or removed; or
(b) when these Terms are terminated in accordance with clause 23.
5.1 A Subscription may only be used in conjunction with the Devices or BYO Devices.
5.2 Your Subscription Period will start on the day the Subscription is made available to you (or to your Partner) via the SensorMine portal.
5.3 Unless otherwise agreed in writing, your Subscription Period will automatically renew until terminated by us or your Partner.
5.4 Where you have purchased SensorMine directly from us, you must advise us as soon as possible, and in any event not less than 30 days before the end of your Subscription Period if you do not want to renew your Subscription.
6.1 Subject to payment of all applicable SensorMine Fees, we hereby grant you a non-transferrable, non-exclusive, royalty-free licence to access and use SensorMine during the Subscription Period and strictly in accordance with these Terms.
7.1 You must pay the SensorMine Fees directly to us, through the Microsoft Azure Marketplace or to your Partner, as applicable.
7.2 SensorMine Fees will be payable for so long as you have access to, or use, SensorMine.
7.3 If your use of SensorMine (including in relation to the length of use, number of users, virtual machines, Azure AD licences or Devices) exceeds what is stated in your order then you may be charged for that extra use for the entire Subscription Period. Alternatively, at our discretion we may restrict your excess use.
7.4 We reserve the right to carry out reconciliations of your actual length of use, number of users, virtual machines, Azure AD licences and Devices, and what has been paid for by you.
7.5 Where you order a Subscription for a particular Subscription Period and/or for a particular, number of users, virtual machines, Azure AD licences or Devices, then that order represents a minimum commitment by you (Minimum Commitment).
7.6 You acknowledge and agree that, even if:
(a) you do not use the number of users, virtual machines, Azure AD licences or Devices during the Subscription Period, or for the entire the Subscription Period, specified in your order;
(b) you cancel your SensorMine order during the Subscription Period; or
(c) these Terms are terminated by us in accordance with these Terms during your Subscription Period,
you remain liable for all SensorMine Fees relating to the Minimum Commitment and no refund or credit will be offered or payable to you.
8.1 Devices will be shipped by us to your nominated location, provided that nominated location is within a metropolitan area (unless otherwise expressly agreed in writing).
8.2 We will not ship Devices until all amounts relating to the Devices have been paid in full.
8.3 We will insure the shipment at your expense. Risk in the Devices will remain with us until someone signs for receipt of the shipment at your nominated location.
8.4 Client is liable for the costs of handling, shipping and insuring all Devices. If we are out of pocket for any handling, shipping or insurance costs we will be entitled to recover those costs from you.
8.5 Title in the Devices will not pass to you until you have paid all amounts relating to the Devices in full.
9.1 You must comply with any reasonable directions as notified by us to you from time to time in relation to your access to and use of SensorMine.
9.2 Your use of the Application Software is subject to additional terms specified by Microsoft under its Services Agreement (available here: https://www.microsoft.com/en-au/servicesagreement) and you agree to comply with the terms of that and any other vendor terms notified to you during your Subscription Period.
9.3 You must not (and you must ensure that your Personnel and Affiliates do not) do, or attempt to do, any of the following:
(a) allow access to SensorMine by anyone other than properly authorised Personnel;
(b) sell, distribute or transfer any part of your right to access and use SensorMine;
(c) sublicense your right to access and use SensorMine without our express permission;
(d) use SensorMine in any way or for any purpose other than as specifically contemplated by these Terms;
(e) download, modify, adapt, translate, de-compile, disassemble, copy, reproduce, create, reverse engineer or reverse compile SensorMine (or any part of it), including attempting to discover the source code of the Application Software or the Embedded Software;
(f) remove or erase any part of SensorMine or disable, interfere with, disrupt or alter any SensorMine functionality;
(g) copy, share, distribute, alter, customise, modify or create derivative works of SensorMine;
(h) circumvent or break any encryption, decryption or other security device or technology measure(s) contained in SensorMine or that control access to or use of SensorMine;
(i) tamper with, hinder the operation of, or make unauthorised modifications to, SensorMine;
(j) access or discover the underlying algorithms or data models used by SensorMine to generate information or results; or
(k) use SensorMine for any unlawful purpose.
10.1 Subject to clauses 10.3 and 10.4, Standard Support for SensorMine will be provided to you. Premium Support for SensorMine will only be provided to you if you have purchased Premium Support.
10.2 The details and terms of Standard Support and Premium Support are provided in our Support Terms.
10.3 Support for Devices will instead be provided on the terms set out in Appendix 1 – Device Warranty and Support.
10.4 If you are a Partner:
(a) Standard Support and Premium Support under these Terms:
(i) will only be provided to you in your capacity as a service provider to your end customers; and
(ii) will not be provided to reseller Partners;
(b) a separate Premium Support package must be purchased for each end customer to whom you will be providing support.
10.5 We may, in our absolute discretion, issue new releases of, update, bug fix and/or patch SensorMine as we deem necessary, provided that such releases, updates, bug fixes or patches do not materially adversely affect the functionality of SensorMine.
10.6 Unless otherwise agreed in writing, the version of SensorMine to which you are granted a licence under these Terms will be the version of SensorMine which is at that time generally made available by us.
11.1 You are solely responsible (at your own cost) for:
(a) providing all equipment, software and internet access necessary to access and use SensorMine, unless otherwise agreed in writing;
(b) ensuring that your IT environment (and the IT environment of your users) interfaces with and is compatible with SensorMine; and
(c) the security and use of log-in details and access credentials, and all access to and use of SensorMine.
11.2 You must:
(a) provide us with all reasonable assistance and cooperation as reasonably requested by us from time to time in the provision of SensorMine, including by providing access to Licensee Data;
(b) only use Devices or BYO Devices with the Application Software;
(c) ensure that any information that you provide when you or your Partner registers you for SensorMine (including registering your Devices or BYO Devices) is, and remains, accurate, current and complete;
(d) immediately report any security violations or misuse of SensorMine to us;
(e) not alter, change, remove or obscure any notices or other indications (including copyright notices) as to the ownership of SensorMine;
(f) act reasonably and in good faith in exercising any right, remedy, discretion or obligation under these Terms, at law or otherwise; and
(g) comply at all times with applicable laws, protocols, policies and guidelines issued by us from time to time.
11.3 If any delay or failure by us to comply with our obligations under these Terms is caused or contributed to by any failure by you or your Personnel to comply with your obligations under these Terms, then we will not be responsible for the delay or failure.
11.4 We may audit your use of SensorMine at any time (subject to us providing you with reasonable notice) and you agree to comply with our audit requests and audit processes.
12.1 We acknowledge that, as between the Parties, all right, title and interest in the Licensee Data is owned by you.
12.2 You hereby grant to us (and our Personnel) a non-exclusive, royalty-free, worldwide licence to access, use, modify, reproduce and perform all acts with respect to Licensee Data, as required to perform our obligations or as otherwise permitted under these Terms.
12.3 We will maintain appropriate technical safeguards for the protection of the availability, confidentiality and integrity of the Licensee Data and will not use or disclose any Licensee Data other than in accordance with these Terms and the Microsoft Azure Marketplace terms (if applicable).
12.4 You acknowledge that your Partner, and any other parties with whom you have an agreement, may also have access to your Licensee Data and that it is the obligation of such parties to handle that information in accordance with their own privacy and security policies.
12.5 You acknowledge that, unless otherwise agreed, Licensee Data will be stored in Australia.
12.6 You warrant that:
(a) you have all necessary rights and consents to use the Licensee Data in connection with SensorMine and to permit us to use the Licensee Data in accordance with these Terms;
(b) the Licensee Data and its use by us in the manner permitted by these Terms will not breach any laws or the rights of any person;
(c) the Licensee Data does not contain any personal or sensitive information, information which could be used to identify any individual or any information or material which is unlawful; and
(d) you will not, and you will ensure that your Personnel do not, use SensorMine to transmit any Malicious Code.
12.7 You acknowledge that:
(a) it is your responsibility to ensure you keep copies of the Licensee Data; and
(b) unless otherwise agreed, we do not have any obligation to download, store or keep copies of Licensee Data either during your Subscription Period or after the end of your Subscription Period.
13.1 We will delete all Licensee Data 90 days from the earlier of:
(a) the last day of your Subscription Period; or
(b) the date on which these Terms terminate.
13.2 You acknowledge and agree that Licensee Data will not be recoverable by us, you, your Partner or any third party once deleted.
14.1 You agree that we may:
(a) collect and compile diagnostic, statistical, performance, technical, usage and related information regarding your use of SensorMine (SensorMine Data); and
(b) use SensorMine Data to:
(i) monitor your use of SensorMine;
(ii) monitor your compliance with your obligations under these Terms;
(iii) enable discussions with your Partner and other parties who may be involved in providing SensorMine related services to you;
(iv) improve SensorMine; and
(v) for internal business purposes.
14.2 You also agree that we may use SensorMine Data on a de-identified anonymised basis, without cost and at our discretion:
(a) to publicise, market and sell SensorMine;
(b) to prepare case studies, articles, reports and research, which may be made publicly available in compliance with applicable law;
(c) to supply SensorMine and related products and services to our partners and clients; and
(d) for any other purposes permitted by applicable law.
14.3 All rights, including Intellectual Property Rights, title and interest in SensorMine Data belong to and are retained solely by us.
15.1 You acknowledge that any log-in details and access credentials used to access SensorMine are confidential and must ensure that this information is kept secure from unauthorised access, use or modification.
15.2 You are solely responsible for any use (or misuse) of SensorMine arising from a failure to keep information secure in accordance with clause 15.1.
16.1 We are the owner or authorised licensee of all Intellectual Property Rights:
(a) currently subsisting in SensorMine;
(b) in any augmentations, modifications, improvements or enhancements to, or derivatives of, SensorMine;
(c) in any materials (including software, documents, results, information, data and business processes):
(i) created or developed by us (whether or not for you, us, your Partner or another party) through the use of SensorMine, and otherwise in the performance of these Terms; or
(ii) created or developed by you or on your behalf through the use of SensorMine,
collectively and separately referred to in these Terms as SensorMine IP.
16.2 Where SensorMine IP is not already owned by us it will vest in and be exclusively owned by us immediately upon its creation.
16.3 We grant to you a non-transferrable, non-exclusive, royalty-free, revocable licence to use SensorMine IP in connection with your use of SensorMine during the Subscription Period.
16.4 Nothing in these Terms assigns or transfers ownership of any SensorMine IP to you, your Partner or any other party.
16.5 You must promptly notify us in writing if you become aware that any party is infringing or misappropriating any SensorMine IP or any of our other Intellectual Property Rights.
17.1 Each Party agrees to keep confidential, and not to use or disclose, other than as permitted in these Terms, any Confidential Information of the other Party, except:
(a) as required by law, a regulatory authority, or a stock exchange, provided that it gives the other Party written notice prior to disclosure;
(b) with the prior written consent of the Party who supplied the information;
(c) if the information is in the public domain or comes into the public domain other than as a result of breach of these Terms;
(d) if the recipient Party already knew or had, on a non-confidential basis, the information before receiving it; or
(e) if the recipient Party independently developed or acquired the information, without a breach of these Terms or other breach of confidence.
17.2 Each Party agrees to take all prudent steps, including maintaining effective information security measures, to protect the Confidential Information of the other Party from unauthorised access, use, copying or disclosure.
17.3 Each Party must only use Confidential Information of the other Party for the purpose for which it was disclosed in connection with these Terms.
18.1 If a Dispute arises, neither Party may commence any proceedings relating to the Dispute unless it has first complied with this clause 18, except where a Party seeks urgent interlocutory relief.
18.2 A Party claiming a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute.
18.3 On receipt of that notice, the Parties must use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
18.4 If the Dispute is not resolved within 15 business days of notice being given pursuant to clause 18.2 (or within such further period agreed in writing by the Parties), the applicable Dispute resolution process below will be followed by the Parties.
18.5 While the relevant Dispute resolution procedure is being followed, both Parties must continue to fulfil their obligations under these Terms.
18.6 If you are incorporated in Australia or New Zealand, the Dispute will be referred to, and finally resolved by, arbitration in Melbourne, Australia in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Expedited Arbitration Rules for the time being in force, which rules are deemed to be incorporated by reference in this clause 18. The number of arbitrators will be one. The language of the arbitration will be English. The award of the arbitrator will be final and binding on the Parties.
18.7 If you are not incorporated in Australia or New Zealand, the Dispute will be referred to, and finally resolved by, arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which rules are deemed to be incorporated by reference in this clause 18. The number of arbitrators will be one. The language of the arbitration will be English. The award of the arbitrator will be final and binding on the Parties.
18.8 THE PARTIES EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR THE PURPOSES OF LITIGATING DISPUTES UNDER THESE TERMS.
18.9 Each Party agrees that any Dispute must be brought in the respective Party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff or similar proceeding (Class Action).
18.10 The Parties expressly waive any ability to maintain any Class Action in any forum in connection with any Dispute. An arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a Party to the arbitration.
18.11 Any claim that all or part of this Class Action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
19.1 We warrant that SensorMine will substantially conform to any applicable product and service specifications that we provide to you in writing.
19.2 The warranty in clause 19.1 and the Device Warranty in Appendix 1 – Device Warranty and Support apply only to the benefit of the party who uses SensorMine for normal end use, or on whose behalf SensorMine is used by a Partner or another party.
19.3 The warranty in clause 19.1 will not apply in relation to any defects or issues resulting from or attributable to:
(a) any failure to comply with the SensorMine Documentation or other express instructions;
(b) a malfunction of your hardware, network or cloud environment;
(c) programs, data, equipment, systems, software or hardware not licensed or provided by us which are used by you in conjunction with SensorMine;
(d) any act or omission by you, your Personnel, your Partner or any third party in breach of these Terms;
(e) use of SensorMine after the end of the Subscription Period; or
(f) a Force Majeure Event.
19.4 Your sole and exclusive remedy, and our sole liability, under or in connection with a breach of the warranty in clause 19.1, will be the re-supply of SensorMine in accordance with the warranty in clause 19.1, or if we determine that this is commercially impracticable, termination of these Terms and a refund of any unused pre-paid SensorMine Fees for your remaining Subscription Period as at the date of termination.
19.5 TO THE EXTENT PERMITTED BY LAW AND SUBJECT TO ANY NON-EXCLUDABLE TERMS AND ANY EXPRESS WARRANTIES IN THESE TERMS, SENSORMINE IS PROVIDED BY US “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, REPRESENTATIONS, IMPLIED TERMS AND GUARANTEES NOT EXPRESSLY STATED IN THESE TERMS, INCLUDING ANY WARRANTY OR REPRESENTATION THAT SENSORMINE WILL BE FIT FOR ANY PARTICULAR PURPOSE, WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA OR WILL BE ERROR-FREE OR UNINTERRUPTED. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE OUTPUTS OF SENSORMINE OR ANY RESULTS OF USE OF SENSORMINE.
19.6 IN PARTICULAR, AND WITHOUT LIMITING CLAUSE 19.5, WE DO NOT TAKE ANY RESPONSIBILITY FOR, DO NOT SUPPORT, AND ARE NOT LIABLE IN ANY WAY TO YOU FOR ANY PARTNER OR THIRD PARTY SERVICES, PRODUCTS, PLATFORMS OR ADD-INS (OTHER PARTY SERVICES) OR FOR ANY FAILURE OF SENSORMINE CAUSED BY SUCH OTHER PARTY SERVICES (INCLUDING ANY CHANGES TO ANY SUCH OTHER PARTY SERVICES).
19.7 SENSORMINE IS NOT DESIGNED OR INTENDED FOR USE IN LIFE SUPPORT, LIFE SUSTAINING, NUCLEAR OR OTHER APPLICATIONS IN WHICH FAILURE OF SENSORMINE OR RELATED SERVICES COULD REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE, OR CATASTROPHIC PROPERTY DAMAGE (EXCLUDED USES) AND YOU AGREE NOT TO USE SENSORMINE FOR OR IN RELATION TO SUCH EXCLUDED USES.
19.8 We will use commercially reasonable efforts to ensure that SensorMine is free of any Malicious Code.
19.9 For the avoidance of doubt, nothing in these Terms is intended to exclude any guarantees which by law cannot be excluded or modified. If we are liable for breach of any guarantee or warranty that cannot be excluded or modified by law, then to the extent permitted by law, our liability for that breach will be limited to re-supplying SensorMine in accordance with the respective guarantee.
19.10 You acknowledge and agree that:
(a) any use of, or reliance on, information which is made available to you through SensorMine is undertaken entirely at your own risk; and
(b) we do not control the transfer of data over the internet and that access to SensorMine may be subject to limitations, delays and other problems inherent in the use of the internet.
20.1 You agree to indemnify, hold harmless and (at our option) defend us and our Affiliates, and each of our directors, officers, agents and employees, from and against any Loss (including Loss arising in connection with third party claims) suffered, paid or incurred by us arising out of or in connection with:
(a) any breach by you or your Personnel of these Terms, except to the extent that such Loss is caused or contributed to by us; or
(b) any claim that our use of Licensee Data infringes the rights (including Intellectual Property Rights) of any other person; or
(c) any claim relating to Loss suffered as a result of your reliance on any information or results provided through SensorMine.
21.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER WE NOR OUR AFFILIATES WILL BE LIABLE TO YOU, YOUR PERSONNEL OR TO ANY OTHER PARTY FOR ANY CONSEQUENTIAL LOSS ARISING FROM OR RELATING TO SENSORMINE OR THESE TERMS, WHETHER OR NOT FORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHER CAUSE OF ACTION.
21.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL OUR AND OUR AFFILIATES’ MAXIMUM CUMULATIVE LIABILITY TO YOU (INCLUDING TO YOUR PERSONNEL) ARISING OUT OF OR IN CONNECTION WITH SENSORMINE OR THESE TERMS EXCEED THE AMOUNTS PAID BY YOU FOR SENSORMINE IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE, UP TO A MAXIMUM OF USD$100,000.
21.3 Nothing in these Terms limits or excludes the liability of a Party for:
(a) personal injury or death, or damage to or loss of real or personal property, except where caused by the other Party’s failure to comply with these Terms;
(b) breach of clause 7; or
(c) acts of fraud, misrepresentation or wilful misconduct.
22.1 IT IS YOUR RESPONSIBILITY TO EXAMINE AND TEST SENSORMINE AFTER YOU HAVE BEEN GIVEN ACCESS TO DETERMINE WHETHER IT IS ACCEPTABLE TO YOU AND ADEQUATE AND SAFE FOR YOUR NEEDS AND USES.
22.2 YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR USE OF AND RELIANCE ON SENSORMINE.
22.3 YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND THAT THE LICENCE IS CONDITIONED ON YOUR REPRESENTATION TO US THAT YOU HAVE ACCEPTED AND AGREE TO BE BOUND BY THESE TERMS.
23.1 Where not inconsistent with any other agreement relating to SensorMine (including a statement of work, master services agreement, partner agreement, work order or purchase order with us or an agreement you have with your Partner or another party in relation to SensorMine), you may cancel your Subscription and terminate these Terms for your convenience at any time by providing us at least 30 days’ notice in writing.
23.2 We may terminate all or part of these Terms and/or suspend your access to and use of SensorMine:
(a) if you have not paid a correctly rendered and undisputed invoice issued by us, by your Partner, or through the Microsoft Azure Marketplace (as applicable) by its payment due date; or
(b) immediately if you breach these Terms.
24.1 Upon the earlier of termination of these Terms, or the expiry of your Subscription Period:
(a) your licence to access and use SensorMine will immediately cease;
(b) you must immediately cease using your Subscription and any Devices in your possession, custody or control;
(c) we will be entitled to suspend your access to and use of SensorMine;
(d) unless otherwise agreed, you will promptly return all Devices in your possession, custody or control to us, at your risk and expense; and
(e) we will be entitled to delete any Licensee Data within 90 days, regardless of whether or not you have kept copies of that Licensee Data in accordance with clause 12.7.
24.2 Despite any other provision of these Terms, any obligations which are expressed to or, by their nature, survive termination of these Terms will continue to the benefit of and be enforceable by the Parties.
25.1 Subject to compliance with this clause 25, a Party will not be liable for any delay or non-performance of its obligations (other than an obligation to pay money) under these Terms to the extent that the delay or non-performance is caused or contributed to by a Force Majeure Event.
25.2 The affected Party must:
(a) do all reasonable things to avoid, minimise the duration of, and mitigate the consequences of the Force Majeure Event;
(b) promptly notify the other Party of the occurrence of the Force Majeure Event, providing full details of the Force Majeure Event, an estimate of its likely duration, the impacted obligations and the extent to which performance is likely to be affected, and the steps taken by the affected party under clause 25.2(a); and
(c) when the Force Majeure Event ends, recommence performance of the affected obligations and promptly notify the other Party.
26.1 You grant to us and our Affiliates the right to use your company’s name and logo for promotional purposes, including on websites, in press releases and in advertising and promotional material, unless indicated otherwise by you in written notice to us.
27.1 The following clauses apply if you are a U.S. Government End User.
27.2 SensorMine is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995).
27.3 Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire SensorMine with only those rights set forth in these Terms.
27.4 SensorMine (including the SensorMine Documentation) is provided to U.S. Government End Users:
(a) only as a commercial end item; and
(b) only pursuant to these Terms.
27.5 With respect to end-users that are of any other government, similar conditions are likewise agreed upon between the Parties, to the effect that you hereby acknowledge that SensorMine constitutes a pre-existing commercial product developed at private expense and provided to you only in accordance with these Terms and you have no rights not explicitly granted by us under these Terms.
28.1 You represent and warrant that you will not:
(a) export, re-export or otherwise make available or provide access to or use of SensorMine to any party that is:
(i) listed on:
(A) any of the sanctions or designated persons or parties lists administered and enforced by the U.S. Treasury Department’s Office of Foreign Assets Control, the U.S. Commerce Department or the U.S. State Department;
(B) the European Commission’s “Consolidated list of persons, groups and entities subject to EU financial sanctions”;
(C) the United Kingdom HM Treasury’s Office of Financial Sanctions Implementation’s “Consolidated List of Financial Sanctions Targets in the UK”; or
(D) such other applicable list maintained by a relevant government agency; or
(ii) located in (or a national of) a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; or
(b) permit any of your Personnel to access or use SensorMine in violation of any applicable export control or economic sanctions laws.
29.1 Order of precedence: In the case of any conflict or inconsistency between these Terms and the terms of any other agreement between the Parties (including a statement of work, master services agreement, partner agreement, work order or purchase order) then these Terms will take precedence in relation to the subject matter of these Terms.
29.2 Waiver: No waiver of a right or remedy under these Terms is effective unless it is in writing and signed by the Party granting it.
29.3 Rights cumulative: Except as expressly stated otherwise in these Terms, the rights of a Party under these Terms are cumulative and are in addition to any other rights of that Party.
29.4 Consents: Except as expressly stated otherwise in these Terms, a Party may conditionally or unconditionally give or withhold any consent to be given under these Terms and is not obliged to give its reasons for doing so.
29.5 Further steps: Each Party must promptly do whatever the other Party reasonably requires of it to give effect to these Terms and to perform its obligations under it.
29.6 Governing law and jurisdiction: These Terms are governed by and are to be construed in accordance with the laws applicable in the State of Victoria, Australia.
29.7 Assignment: A Party must not assign or deal with any right under these Terms without the prior written consent of the other Party. Any purported dealing in breach of this clause 29.7 is of no effect.
29.8 Affiliates: In these Terms references to you or to us include respectively any of your, or our, Affiliates.
29.9 Relationship of Parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the Parties.
In these Terms:
Affiliate means any person or entity that controls, is controlled by, or is under common control with a Party, (where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities) is, for the purposes of these Terms, an affiliate of that Party (and in relation to LAB3 Pty Ltd includes LAB3 NZ Limited).
Application Software means our cloud-based software-as-a-service products pursuant to which you are given access to our software required to collect data from, and report on, the Devices or BYO Devices.
BYO Devices means physical sensors, probes, gateways and/or gateway accessories used to collect and transmit data to the Application Software which are provided by you and not purchased from us (either directly or through your Partner).
Confidential Information of a Party means in respect of a Party (disclosing Party) any information obtained by the other Party from the disclosing Party, or from any Personnel or Affiliate of the disclosing Party, that is by its nature confidential, is designated as confidential by the disclosing Party or that the other Party knows or ought reasonably to know is confidential.
Consequential Loss means any consequential, indirect, special, incidental, reliance or exemplary losses or damages, including:
(a) loss of revenue, profit, anticipated profit, investment, production, use, opportunity, savings, anticipated savings, contracts or goodwill;
(b) costs of procurement of substitute goods, deliverables, services, rights or technology or wasted overheads;
(c) loss, damage or corruption of data or interruption in use or availability of data;
(d) any loss not arising naturally (that is, according to the usual course of things) from the relevant breach, act or omission,
even if a Party had been advised of the possibility of such losses or damages and whether or not such loss may reasonably be supposed to have been in the contemplation of the Parties, at the time they entered into these Terms, as the probable result of the relevant breach, act or omission.
Device Support means support provided in relation to Devices in accordance with and subject to Appendix 1 – Device Warranty and Support.
Devices means the physical sensors, probes, gateways and gateway accessories used to collect and transmit data to the Application Software purchased from us (either directly or through your Partner), but not including BYO Devices.
Dispute means any dispute, controversy or claim arising out of, relating to or in connection with these Terms, including any question regarding their existence, validity, termination, breach, enforcement or interpretation.
Embedded Software means our generated code or software that is embedded within the Devices.
Force Majeure Event means an event out of a Party’s reasonable control, such as an act of God, fire, lightning, earthquake, cyclone, flood, subsidence or other natural disaster, pandemic or epidemic, national emergency, insurrection, civil disorder, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), military operations or act of terrorism, shortage of power, failure of electrical systems, fire or water damage, or shortage of material from a normal source of supply and excludes any act or omission of a Party.
Intellectual Property Rights means any rights normally covered with this term and includes existing and future copyrights, rights in designs, patents, trademarks all rights in any applications or registrations of those rights whether registered or unregistered (and whether registrable or not) and existing anywhere in the world.
Licensee Data means any and all data, materials, content or information entered into, transmitted through, or stored in SensorMine by you, or otherwise made available or accessible to us by you in connection with SensorMine, and any reports generated for you by SensorMine.
Loss means loss, damage, claim, liability, charge, expense, outgoing or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind.
Malicious Code means code, files, scripts, agents or programs designed or intended to do harm, such as disabling or impeding the normal operation of, or providing unauthorised access to, networks, systems, software or environments (including viruses, worms, time bombs and Trojan horses).
Microsoft Azure Marketplace means Microsoft’s commercial marketplace through which customers can purchase solutions from independent software vendors, including us.
Parties means us and you and Party means either us or you, as the context requires.
Partner means a person or entity authorised by us to sell SensorMine to end users.
Personnel means, in relation to an entity, that entity’s directors, officers, employees, agents, service providers and contractors and includes directors, officers, employees and agents of that Party’s contractors.
SensorMine means together a Subscription and associated Devices and includes any modified version or derivative work of SensorMine.
SensorMine Documentation means our standard user instructions and other documentation (whether paper or electronic) for SensorMine, as modified from time to time by us.
SensorMine Fees means the fees payable by you for the provision of SensorMine by us (where you purchased SensorMine directly from us) or through your Partner.
Subscription means a subscription to access and use the System and Devices based on a specified number of users, virtual machines, Azure AD licences and Devices, together with the provision of related Support, for the Subscription Period, in accordance with these Terms.
Subscription Period means the duration of your Subscription as set out in an order directly with us or, if you are purchasing SensorMine through a Partner, the applicable agreement between you and your Partner, as that period may be extended in accordance with these Terms.
Support Terms means the terms and conditions set out in our Support – Scope and Responsiveness document, available at altra.cloud.
System means the proprietary system developed by us comprised of the Application Software, the Embedded Software, the SensorMine Documentation and any other related licences, materials, items and services.
U.S. Government End User means any agency or entity of the government of the United States.
Warranty Devices means, for an order of at least 100 Devices, an additional 1% of Devices over and above the number of Devices ordered, which are to be used to replace defective Devices (up to a maximum of 5 Devices).
Unless expressed to the contrary, in these Terms:
(a) includes means includes without limitation;
(b) a reference to:
(i) a person includes a partnership, a joint venture, an unincorporated association, a corporation and a government or statutory body or authority;
(ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
(iii) these Terms include all schedules and annexures to these Terms; and
(c) headings do not affect the interpretation of these Terms.
1.1 We warrant on the terms set out in these Terms that each Device will be free from defects in material and workmanship for 12 months from the Device’s date of shipment (Device Warranty).
2.1 If you consider that a Device is defective you must follow the process set out in this section 2 (Device Warranty Process).
2.2 As a first step you must contact us (if you purchased SensorMine directly from us) or your Partner (if you purchased SensorMine through a Partner) to attempt to resolve the issue remotely.
2.3 If the issue is not able to be resolved remotely you may return the Device to us for assessment. Before initiating a return, you must ensure that the Device is eligible to be covered under the Device Warranty.
2.4 You must complete a Return Merchandise Authorisation (RMA) form in our required format and return the RMA with the Device, to enable us to track the return and process your Device Warranty claim. We may not be able to process your Device Warranty claim without an accurately completed RMA.
2.5 The return of the Device to us is at your cost and risk. You must insure the Device during shipping and ensure that the Device is securely packed to prevent damage. Failure to ship the Device securely may void the Device Warranty.
2.6 Upon receiving the Device and RMA form we will assess the Device within a reasonable period to determine if it is defective and, if so, whether the defect is covered under the Device Warranty. Our determination of whether a Device is defective and whether it is covered under the Device Warranty is final.
2.7 If we determine that the Device is defective and that the defect is covered under the Device Warranty, we will ship you a replacement Device at our cost and risk.
2.8 If we determine that either the Device is not defective or that it is not covered by the Device Warranty, we will notify you. You will then have the option of:
(a) having the original Device shipped back to you at your expense;
(b) purchasing a replacement Device and having it shipped to you at your expense; or
(c) not having any Device shipped to you.
2.9 If you elect to have the original Device or a replacement Device shipped to you, we will ship that Device to your nominated location at your expense, provided that location is within a metropolitan area (unless otherwise expressly agreed in writing).
2.10 We will not ship a replacement Device to you until any charges for the replacement Device have been paid in full.
2.11 Where we ship the original or a replacement Device to you, we will insure the shipment at your expense. Risk in the Device will remain with us until someone signs for receipt of the shipment at your nominated location.
3.1 If you are eligible to receive Warranty Devices, those Warranty Devices will be shipped on the same terms as the other Devices in the applicable order.
3.2 You may use Warranty Devices to replace Devices which are proceeding through the Device Warranty Process.
3.3 Where we determine that at least 75% of provided Warranty Devices have been used to replace defective Devices, we may, in our discretion, provide sufficient additional Warranty Devices to replace the Warranty Devices that have been used, which will be shipped on the same terms as the initial Warranty Devices.
3.4 Before the end of the Subscription Period you will be given the option, by us directly or by your Partner, of:
(a) purchasing any remaining Warranty Devices in your possession at an agreed price; or
(b) returning any remaining Warranty Devices to us at your risk and expense.
Where you purchased SensorMine through a Partner, it is your Partner’s, and not our, responsibility to advise you of these options.
3.5 If you do not select and action an option before your Subscription Period expires, then you will be deemed to have accepted the option in section 3.4(a) and you will be charged accordingly.
3.6 If you (or anyone on your behalf):
(a) deploy a Warranty Device as a new SensorMine deployment, rather than as a replacement for a defective Device; or
(b) otherwise deploy more than the number of Devices or BYO Devices stated in your SensorMine Subscription order(s) with us or your Partner (as applicable),
then:
(c) your SensorMine Fee may be increased to account for the additional deployments; and/or
(d) your excess usage may be restricted through the Applicable Software or otherwise.
3.7 All Devices (including defective Devices and Warranty Devices) that are returned to us become our property.
4.1 You are not entitled to Device Support, and the Device Warranty will not apply, in relation to any defects or issues resulting from or attributable to:
(a) any of the events listed in clause 19.3;
(b) any accident, negligence, abuse, tampering with, damage to, or misuse or opening of a Device;
(c) installation, use, repair, maintenance or modification of a Device other than in accordance with our SensorMine Documentation or other express instructions;
(d) a Device’s battery, including configuration or other use that excessively drains a Device’s battery or causes premature battery depletion;
(e) failure to comply with environmental and storage requirements as set out in our SensorMine Documentation or other express instructions;
(f) use of SensorMine for personal, domestic or household purposes or consumption;
(g) use by you after notice from us to discontinue use of a Device; and
(h) any form of damage caused during shipment of the Device by you or on your behalf, including where caused by inadequate packaging.
4.2 We will not be liable for any loss of production, system or equipment downtime or similar, or for any Consequential Loss, in relation to any defective Device, regardless of whether or not the defect is covered by the Device Warranty.
4.3 We are not responsible under the Terms, including under the Device Warranty for your, your Partner’s or any other party’s software, firmware, information, or memory data contained in, stored on, or integrated with any Device.
5.1 You agree that you are not purchasing, and will not use, SensorMine for personal, domestic or household purposes or consumption or in any other way which may make SensorMine or your purchase or use of SensorMine subject to any consumer law applicable in the jurisdiction in which you purchased SensorMine or in which you use SensorMine.
5.2 To the extent permitted by law, you acknowledge that any warranties, guarantees or other protections under any consumer law applicable in the jurisdiction in which you purchased SensorMine or in which you use SensorMine do not apply to your purchase or use of SensorMine.