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LAB3 SensorMine
Licence Agreement
1.1 This end user licence agreement (EULA) is a legal agreement between LAB3 Pty Limited (ABN 86 619 934 548) of Level 7, 473 Bourke St, Melbourne, VIC 3000 (LAB3, we, us or our) and you.
1.2 By purchasing SensorMine® and/or using a Subscription or any Device, you acknowledge (whether on behalf of yourself or a legal entity you represent) that you have read, understand and accept the terms of this EULA, that you have the authority to enter into this EULA, and that you agree to be bound by this EULA. This EULA does not need to be signed to be binding.
1.3 If you are accepting this EULA not as an individual, but on behalf of your company, then End User, you or your means your company.
1.4 You also agree that we may directly enforce this EULA against you in the case of a breach. If you do not accept the terms of this EULA, then you must not purchase SensorMine® and/or use a Subscription or any Device.
2.1 In this EULA, the following terms have the following meanings:
(a) Application Software means LAB3’s cloud-based software-as-a-service products pursuant to which an End User is given access to LAB3’s software required to collect data from, and report on, the Devices.
(b) Business Day means any day on which registered banks are opn for business in Melbourne, Victoria but excludes Saturdays, Sundays and public holidays.
(c) Consequential Loss means any:
(i) loss of revenue, profit, anticipated profit, production, use, opportunity, savings, anticipated savings, contract or goodwill;
(ii) costs of procurement of substitute goods, deliverables, services, rights or technology or wasted overheads;
(iii) loss, damage or corruption of data;
(iv) any loss not arising naturally (that is, according to the usual course of things) from the relevant breach, act or omission,
whether or not such loss may reasonably be supposed to have been in the contemplation of the parties at the time they entered into this EULA, as the probable result of the relevant breach, act or omission.
(d) Devices means the physical sensors, probes, gateways and gateway accessories used to collect and transmit data to the Application Software.
(e) Documentation means LAB3’s standard user instructions and other documentation (whether paper or electronic) for SensorMine®, as modified from time to time by LAB3.
(f) Embedded Software means LAB3 generated code or software that is embedded within the Devices.
(g) 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 or shortage of material from a normal source of supply and excludes any act or omission of a party to this EULA.
(i) Intellectual Property Rights means all rights generally falling within the scope of this term including patents, trademarks, service marks, circuit layout rights, trade names, inventions, trade secrets, copyright (including future copyright), moral rights, rights in a design, know-how, confidential information, whether registered or unregistered (and whether registrable or not), and all rights in any applications for or registrations of such rights, existing anywhere in the world.
(j) 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.
(k) Order Form means the order form and accompanying terms and conditions pursuant to which an End User purchases SensorMine® directly from LAB3.
(l) Personal Information has the meaning given to that term in the Privacy Act.
(m) Privacy Act means the Privacy Act 1988 (Cth) and any regulations made in relation to that Act.
(n) Reseller means a person or entity authorised by LAB3 to resell SensorMine® to end users.
(o) SensorMine® means together a Subscription and associated Devices.
(p) Subscription means your subscription to access and use the System and Devices, together with the provision of related Support, for the Subscription Period, in accordance with the terms of this EULA.
(q) Subscription Period means the duration of your Subscription as set out in an Order Form entered into with LAB3 or, if you are procuring SensorMine® through a Reseller, the applicable sale contract between you and the Reseller, as that period may be extended.
(r) Support means support provided in accordance with and subject to the terms set out in Appendix 1 – Warranty and Support.
(s) System means the proprietary system developed by LAB3 comprised of the Application Software, the Embedded Software, the Documentation and any other related licences, materials, items and services.
2.2 Other defined terms are contained throughout this EULA.
3.1 This EULA sets out the terms under which we will licence SensorMine® to you and applies whether you are purchasing SensorMine® directly from LAB3 or through a Reseller.
4.1 Where you are purchasing SensorMine® from a Reseller:
(a) the pricing of SensorMine® is independently determined by the Reseller;
(b) itemised details of your SensorMine® purchase will be set out in the applicable order form between you and the Reseller; and
(c) you will be invoiced by, and all payments must be made directly to, the Reseller (unless you are expressly told otherwise).
4.2 Where you purchase SensorMine® from a Reseller we are not responsible for:
(a) the acts or omissions of the Reseller;
(b) any additional obligations the Reseller may have to you;
(c) any representation, warranties or other commitments made to you by the Reseller without LAB3’s prior written consent;
(d) any non-LAB3 products or services that the Reseller sells or supplies to you; or
(e) the refund or reimbursement of any amounts paid by you, including on termination of this EULA.
5.1 This EULA governs:
(a) each component of your Subscription;
(b) your use of the Devices.
5.2 Your Subscription Period for an order of Devices starts on the first day of the calendar month following the day on which the first Device in the order was collected from our designated collection point by you or on your behalf. For example, if the first Device in the order was collected on 20 May, then the Subscription Period for that order starts on 1 June.
5.3 You are responsible for collecting the Devices from our designated collection point and for the costs of handling, shipping and insuring all Devices.
6.1 You may purchase additional SensorMine® related professional services, including consulting, discovery, design, development, integration, and deployment planning services (Professional Services) through your Reseller or directly from LAB3.
6.2 The scope of any Professional Services, and the basis upon which they will be provided by LAB3 or our Affiliates, will be set out in a separate statement of work directly between you and your Reseller (where purchased through your Reseller) or between you and LAB3. To the extent of any inconsistency, the terms of this EULA will take precedence over the terms of any separate statement of work.
7.1 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 this EULA, an affiliate of that party (and in relation to LAB3, includes LAB3 NZ Limited) (Affiliate).
7.2 In this EULA, references to you or to LAB3 include respectively any of your, or LAB3’s, applicable Affiliates.
8.1 Subject to the terms of this EULA, we grant to you a non-exclusive, non-transferable, revocable and non-sublicensable right to use SensorMine® solely for your internal business purposes and only during the Subscription Period (Licence).
8.2 The Licence will begin on commencement of your Subscription Period and will remain valid and in effect for so long as:
(a) you have a current Subscription;
(b) you are not in breach of this EULA; and
(c) this EULA has not been terminated.
8.3 A Subscription can only be used in conjunction with the Devices.
9.1 You acknowledge and agree that:
(a) the Application Software is an on-line, subscription-based service and that we may make changes to the Application Software and associated services from time to time; and
(b) your use of the Application Software is subject to additional terms specified by Microsoft under its Microsoft Services Agreement.
(c) by purchasing and using SensorMine®, you will comply with the terms of the Microsoft Services Agreement and any other vendor terms notified to you during your Subscription Period.
10.1 Any information that you provide to us when you register your Devices must be accurate, current and complete.
10.2 You must keep your information up to date so that we may send notices, statements and other information to you by email or through your account.
10.3 You acknowledge that any log-in details used to access your account are confidential and must ensure that this information is kept secure from unauthorised access, use or modification.
10.4 You are responsible for all actions taken through your account.
11.1 During the Subscription Period, the Devices may only be used with Application Software provided by LAB3.
11.2 You will not attempt to, and will not permit any Affiliate or other related party, or any third party, to attempt to, directly or indirectly:
(a) sublicense, resell, rent, lease, loan, distribute, market, commercialise or otherwise transfer rights or usage to any component of SensorMine® (or any modified version or derivative work of SensorMine®);
(b) modify, adapt, copy, create, reproduce, manufacture, translate, reverse engineer, recode, disassemble or decompile any part of SensorMine®, including attempting to discover the source code of the Application Software or the Embedded Software;
(c) remove or erase any software or otherwise try to disable or alter any software functionality;
(d) attempt to 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®;
(e) use SensorMine® in any way or for any purpose other than as specifically contemplated by this EULA;
(f) remove or alter any copyright, trademark or proprietary notice;
(g) tamper with, hinder the operation of, or make unauthorised modifications to, SensorMine®;
(h) transfer, use or export any component of SensorMine® in violation of any laws or regulations of any government or governmental agency;
(i) act as a SensorMine® service provider to external parties; or
(j) use SensorMine® for any unlawful purpose.
11.3 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 (where applicable) by providing access to relevant platforms and systems upon which SensorMine® is deployed;
(b) immediately report any security violations or misuse of SensorMine® to us;
(c) act reasonably and in good faith in exercising any right, remedy, discretion or obligation under this EULA, at law or otherwise; and
(d) comply at all times with applicable laws, protocols, policies, guidelines and any reasonable directions issued by us from time to time.
11.4 If any delay or failure by us to comply with our obligations under this EULA is caused or contributed to by any failure by you or your personnel to comply with your obligations under this EULA, then we will not be responsible for the delay or failure.
12.1 For so long as you have a valid Subscription, we will provide Support.
12.2 Support may be used only for your internal business purposes and use of Support by you on behalf of a third party (other than your Affiliates) is a breach of this EULA.
13.1 The development, release and timing of any additional features or functionality of any component of SensorMine® remains at our sole discretion.
13.2 You agree that you are procuring a licence to SensorMine® based solely upon features and functions that are currently available as at the time you place your order for SensorMine®, and not in expectation of any future feature or function.
14.1 To the extent you provide suggestions or other feedback to us or a Reseller relating to SensorMine®, you grant to us a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and licence to collect, use, sell and otherwise exploit such feedback, including incorporating it into SensorMine®.
14.2 You consent to the collection of diagnostic, technical, usage and related information regarding your use of SensorMine®. We may use such information to monitor your compliance with your obligations under this EULA and for internal business purposes.
15.1 We or our Affiliates at all times own all Intellectual Property Rights in or relating to SensorMine®, including in any improvements, enhancements or modifications to SensorMine®.
15.2 If you become aware that any party is infringing or misappropriating any of our Intellectual Property Rights then you must promptly notify us in writing and assist us, at our expense, to protect such Intellectual Property Rights.
15.3 If a third party initiates or threatens a legal claim alleging that your use of SensorMine® in accordance with this EULA directly infringes the third party’s Australian patent, copyright or trademark or misappropriates the third party’s trade secret rights (Claim), then we will:
(a) assume the defence of the Claim; and
(b) pay costs, damages and reasonable lawyers’ fees included in a final judgment against you (without right of appeal) or in a settlement approved by us, which are attributable to your use of SensorMine®,
provided that you:
(i) notify us in writing of the Claim promptly after receipt of the Claim and, in any event, in sufficient time for us to respond to the Claim without prejudice;
(ii) provide us with the exclusive right to control and direct the investigation and defence of the Claim and to settle the Claim in our sole discretion; and
(iii) cooperate with us in the defence of the Claim, including by providing us with a copy of the Claim and all relevant evidence in your possession or control.
15.4 If SensorMine® becomes the subject of any actual or anticipated Claim, we may, at our sole option and expense:
(a) procure for you the right to continue using SensorMine® consistent with this EULA;
(b) replace or modify SensorMine® or any part of SensorMine®; or
(c) if either (a) or (b) is not available on a commercially-feasible basis, terminate this EULA and you may (subject to clause 4.2(e)) claim a refund of any prepaid fees for the unused portion of your then-current Subscription.
16.1 You retain all right, title and interest in and to any of your data, information, content, code or other materials of any type that are transmitted by you to us through the Application Software or otherwise (End User Data).
16.2 Subject to the terms of this EULA, you grant to us a non-exclusive, worldwide, royalty-free, perpetual, sub-licensable and irrevocable licence to collect, use, copy, store, transmit and modify End User Data to:
(a) provide SensorMine® (including Support) to you;
(b) perform our obligations under this EULA;
(c) use and create derivative works from such End User Data; and
(d) use aggregated and unidentifiable data collectively derived from End User Data for the purposes of:
(i) preparing case studies, articles, reports or research, which may be made publicly available; and
(ii) developing and commercialising other products and services for our clients.
16.3 Without limiting clause 17 below, you warrant that you have obtained all consents and made all necessary disclosures pursuant to applicable laws (including the Privacy Act) for the purpose of us exercising the benefit of the licence granted to us under clause 16.2 and that our use of End User Data in the manner permitted by this EULA will not breach any laws or the rights of any person.
16.4 While we use and implement market standard security practices to protect End User Data from unauthorised access or use, we cannot guarantee that security practices will be error-free, that transmissions of End User Data will always be secure or that unauthorised third parties will never gain access to End User Data.
16.5 You acknowledge that it is your responsibility to download and keep copies of your End User Data and that neither we nor our Affiliates have any obligation to download, store or keep copies of End User Data either during the term of, or after the expiration or termination of, this EULA.
17.1 Each party must:
(a) perform its obligations under this EULA in compliance with the Privacy Act;
(b) only use the Personal Information provided to it by the other party for the purpose of performing its obligations under this EULA; and
(c) take reasonable steps to protect the Personal Information held by it under this EULA from misuse and unauthorised access, modification or disclosure.
17.2 Generally, the only Personal Information we will require from you is the contact details of your representatives with whom we will have dealings in the ordinary course of maintaining our business relationship with you (including name, telephone number, email address and work address) (Contact Details). These Contact Details may be provided by you to us directly (including on an Order Form), provided to us via a Reseller, or obtained by us through your use of SensorMine®.
17.3 You warrant that you have all necessary consents and permissions to provide us with Contacts Details and agree that we may access, process and use Contact Details in the performance of this EULA, which may include allowing Contact Details to be processed by third parties in furtherance of this EULA.
17.4 We will update, modify, or delete Contact Details upon written request.
18.1 For the purposes of this EULA, Confidential Information means any information that is disclosed by, or obtained from, one party (Discloser) to or by the other party (Recipient) that is by its nature confidential, is designated by the Discloser as confidential, or that the Recipient knows or ought reasonably to know is confidential and includes:
(a) the terms of this EULA;
(b) in the case of LAB3, Intellectual Property Rights in and to SensorMine®; and
(c) information relating to the Discloser’s business, systems, affairs, financial position, pricing, internal management, structure, policies, practices, procedures, strategies, employees, contractors and suppliers,
but excludes information which:
(d) is in or which subsequently enters the public domain other than because of a breach of this EULA; or
(e) the Recipient can demonstrate was in the Recipient’s possession and not subject to an obligation of confidence prior to the date of this EULA.
18.2 Each Recipient must keep secret and confidential all Confidential Information of the Discloser and must not without the written consent of the Discloser, use or disclose such Confidential Information of the Discloser other than:
(a) to the extent required to perform the Recipient’s obligations under this EULA;
(b) to the extent the Recipient is obliged by law to disclose Confidential Information of the Discloser, provided that, to the extent permitted by law, the Recipient has first advised the Discloser of this obligation, has allowed the Discloser reasonable time to avoid the disclosure having to be made, discloses no more Confidential Information than is strictly required, and has given the Discloser such assistance (at Discloser’s cost) as the Discloser reasonably requests in doing this;
(c) to the Recipient’s personnel on a need to know and confidential basis and only to the extent required to perform the Recipient’s obligations under this EULA; or
(d) with the Discloser’s prior written consent.
18.3 The Recipient will be entitled to retain Confidential Information of the Discloser to the extent reasonably necessary to meet any applicable legal, regulatory or internal compliance obligations, but the provisions of this EULA will continue to apply to any Confidential Information so retained.
18.4 The obligations of confidentiality imposed upon the parties will continue notwithstanding termination of this EULA.
19.1 To the extent permitted by law, the aggregate and cumulative liability of LAB3 (and any of its Affiliates) arising from or relating to SensorMine® or this EULA, whether in contract, tort (including negligence), equity, statute or otherwise, will not exceed the amounts paid by you (whether paid directly to LAB3 or to a Reseller) in the 12-month period prior to the date on which the relevant cause of action arose.
19.2 To the extent permitted by law, in no event will either party or their Affiliates, be liable to the other party or their Affiliates for any Consequential Loss.
19.3 Nothing in this EULA is intended to exclude or limit either party’s liability for:
(a) personal injury or death; or
(b) acts of fraud, misrepresentation or wilful misconduct
19.4 Nothing in this clause 19 will limit the fees owed by you in respect of SensorMine®, whether owed directly to us or to a Reseller.
20.1 You will immediately notify us of any known or suspected breach of this EULA or unauthorised use of SensorMine®.
20.2 You will indemnify, hold harmless and (at our option) defend LAB3 and our Affiliates from and against any Loss (including Loss arising in connection with third party claims) suffered, paid, or incurred by us or our Affiliates arising out of or in connection with any breach or alleged breach by you or your Affiliates of any term of this EULA, except to the extent that such Loss is caused or contributed to by us.
21.1 Subject to compliance with this clause 21, a party will not be liable for any delay or non-performance of its obligations (other than an obligation to pay money) under this EULA to the extent that the delay or non-performance is caused or contributed to by a Force Majeure Event.
21.2 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 21.2(a); and
(c) when the Force Majeure Event ends, recommence performance of the affected obligations and promptly notify the other party.
22.1 We may suspend your access to the Application Software and Support:
(a) if required under law;
(b) if we reasonably consider that you are in breach of this EULA; or
(c) if we are notified by your Reseller that you have not paid the Reseller in accordance with the sales contract with your Reseller.
22.2 A party may terminate this EULA immediately by notice in writing to the other party if:
(a) the other party commits a material breach of this EULA which is capable of remedy and fails to remedy the breach within 20 Business Days of receipt of notice from the non-breaching party requiring the breach to be remedied; or
(b) the other party commits a material breach of this EULA which is incapable of remedy.
22.3 We may immediately terminate this EULA if:
(a) you breach any term of any other agreement between you and LAB3 relating to the sale, purchase or use of SensorMine®; or
(b) you or your Reseller terminate any agreement between you and the Reseller relating to SensorMine®.
23.1 Upon termination of this EULA:
(a) the Licence and any other rights granted to you under this EULA will immediately come to an end;
(b) you must immediately cease using your Subscription and any Devices in your possession, custody or control;
(c) unless otherwise agreed, you will promptly return all Devices in your possession, custody or control to us, at your risk and expense;
(d) each party will, within 20 Business Days, return, destroy, delete or put beyond use any Confidential Information of the other party which is in its possession or control; and
(e) we will be entitled to delete any End User Data held by us 10 Business Days after termination, regardless of whether or not that End User Data has been downloaded or copied by you under clause 16.5.
23.2 Termination of this EULA will be without prejudice to the rights and obligations of the parties which accrued prior to termination.
23.3 The parties acknowledge that damages may not be a sufficient remedy for any breach of this EULA and a party is entitled to seek specific performance or injunctive relief (as appropriate) as a remedy for breach or threatened breach by the other party, in addition to any other remedies available at law or in equity.
23.4 Any provisions which by their nature are intended to survive, or which are expressed to survive, termination of this EULA will survive.
24.1 You agree to maintain accurate records reasonably necessary to verify your compliance with this EULA.
24.2 Upon our, or the Reseller’s written request, you will provide to us and/or the Reseller those records within 10 Business Days.
24.3 We may also audit your use of SensorMine® at any time (subject to us providing you with reasonable notice) and you agree to comply with our reasonable audit requests and audit processes.
25.1 If a dispute arises out of or relates to EULA, neither party may commence any court or arbitration proceedings relating to the dispute unless it has first complied with this clause 25, except where a party seeks urgent interlocutory relief.
25.2 A party claiming a dispute has arisen must give written notice to the other party specifying the nature of the dispute.
25.3 On receipt of that notice, the parties must use all reasonable endeavours to resolve the dispute by discussion, consultation, negotiation, or other informal means.
25.4 If the dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 25.2 (or within any further period agreed in writing by the parties), the parties must refer the matter to a mediation to occur in Melbourne, Victoria.
25.5 The mediation will be conducted in accordance with the Australian Disputes Centre (ADC) Mediation Guidelines and with a mediator as agreed by the parties or, failing agreement, as appointed by the CEO of the ADC.
25.6 While the procedure in this clause 25 is being followed, both parties must continue to fulfil their obligations under this EULA.
26.1 You grant LAB3 and our Affiliates the right to use your company’s name and logo for promotional purposes, including, but not limited to, on websites, in press releases and in advertising and promotional material, unless indicated otherwise by you in written notice to LAB3.
27.1 Any notice under this EULA is to be made in writing by email, personal delivery or post to the party’s physical or email address, or by LAB3 to your account.
27.2 All notices to you will be sent to the email address or postal address provided by you to LAB3 or the Reseller at the time you purchase SensorMine®.
27.3 All notices to LAB3 will be sent to LAB3 Pty Ltd to Level 7, 473 Bourke Street, Melbourne VIC 3000 or to admin@lab3.com or such other address published on LAB3’s website or otherwise notified to End Users.
27.4 Any communication to any person will be deemed to be received by that person upon:
(a) where sent by email:
(i) when the sender’s email system generated an electronic delivery receipt confirming the successful transmission from the sender’s mail server; or
(ii) four hours after the time sent (as recorded on the Device from which the sender sent the email) unless the sender receives an electronic notification that the transmission was unsuccessful;
(b) where delivered by a person, when left at the address required by clause 27.1; and
(c) where sent by post, five Business Days after being put in the post with postage prepaid.
28.1 No waiver of any breach of this EULA will be deemed to be a waiver of any other or any subsequent breach. The failure of any party to enforce any provision of this EULA at any time will not be interpreted as a waiver of the provision.
28.2 Your rights or LAB3’s rights under this EULA are cumulative and not exclusive of any rights provided by law.
28.3 If one or more of the provisions of this EULA is deemed to be invalid or unenforceable, the remaining provisions of this EULA will not be affected and will continue in full force and effect.
29.1 We may subcontract any of our obligations under this EULA to any third party at any time without notice to you.
30.1 We may assign or novate, in whole or in part, any of our rights or obligations under this EULA upon written notice which may be by way of a general notice through our website or other forms of communication.
30.2 You cannot assign or novate any of its rights or obligations under this EULA, in whole or in part, without our prior written consent (which will not be unreasonably withheld).
31.1 Nothing in this EULA is to be construed as creating an agency, partnership, or joint venture relationship between the parties.
31.2 Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect.
32.1 At all times the terms of this EULA will take precedence over:
(a) any Order Form; and
(b) the terms of your purchase order or similar document notwithstanding that:
(i) your purchase order or similar document may have been given after commencement of this EULA; or
(ii) the terms of your purchase order or similar document purport to override or supersede the terms of this EULA.
33.1 From time to time, we may modify this EULA.
33.2 Modifications to this EULA will apply to any Subscriptions renewed after the date on which those modifications become effective, unless otherwise agreed.
34.1 This EULA is governed by and is to be construed in accordance with the laws applicable in the State of Victoria, Australia.
34.2 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in the State of Victoria, Australia, and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
1.1 LAB3 warrants that the Devices will be free from defects in material and workmanship for the Subscription Period (Device Warranty).
1.2 As your sole and exclusive remedy and LAB3’s and its Affiliates’ sole and exclusive liability for breach of the Device Warranty, you may replace any defective Device with a Warranty Device.
2.1 An additional 5% of Devices over and above the number of Devices initially purchased by you (up to a maximum of 25 Devices) which are to be used to replace defective Devices (Warranty Devices) will be made available for collection by you at the same time, and on the same terms, as the Devices initially purchased by you.
2.2 Where LAB3 determines that at least 75% of the Warranty Devices initially provided to you have been used to replace defective Devices, sufficient additional Warranty Devices will be made available for collection by you (on the same terms as the Devices initially purchased by you) to replace the Warranty Devices that have been used.
2.3 Before the end of the Subscription Period you will be given the option of:
(a) purchasing any remaining Warranty Devices in your possession at an agreed price; or
(b) shipping any remaining Warranty Devices back to LAB3 at your risk and expense.
2.4 If you do not select and action an option before the Subscription Period ends then you will be deemed to have accepted the option in clause 2.3(a) and you will be charged accordingly.
2.5 If you:
(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 purchased by you,
the fee for your Subscription will be increased on a pro-rata basis to account for the additional Device deployment.
2.6 All Devices (including defective Devices and Warranty Devices) that are returned to LAB3 become the property of LAB3.
3.1 Unless otherwise agreed in writing, SensorMine® Support will be provided by the party who sold SensorMine® directly to you (which may be a Reseller) (Support Provider). Your Support Provider will advise you how to initiate requests for Support.
3.2 Support may consist of assistance with the Warranty Device replacement process and help with other enquiries and issues.
4.1 To access Support, you must provide to your Support Provider:
(a) sufficient information to enable your Support Provider to identify the relevant issue; and
(b) the details of a technical person with requisite skills who will be the Support Provider’s dedicated point of contact for resolving SensorMine® issues.
5.1 You are not entitled to Support, and the Device Warranty will not apply, in relation to any issues resulting from or attributable to:
(a) any accident, negligence, abuse, tampering with, damage to, or misuse or opening of SensorMine®, including any failure to comply with the Documentation;
(b) installation, use, repair, maintenance or modification of SensorMine® other than in accordance with our Documentation or other express instructions;
(c) configuration of SensorMine® or other use that excessively drains a Device’s battery or causes premature battery depletion;
(d) failure to comply with environmental and storage requirements as set out in our Documentation or other express instructions;
(e) a malfunction of your hardware, network or cloud environment;
(f) programs, data, equipment, systems, software or hardware not licensed or provided by LAB3 which is used by you in conjunction with SensorMine®;
(g) other circumstances beyond our reasonable control including, but not limited to failure of electrical systems and fire or water damage;
(h) use by you after notice from us to discontinue use of all or a portion of SensorMine®; and
(i) any form of damaged caused during shipment of the Device.
5.2 LAB3 will not be responsible for your or any third party’s software, firmware, information, or memory data contained in, stored on, or integrated with any Device removed and replaced with a Warranty Device, whether the defective Device was under warranty or not.
6.1 To the fullest extent permitted by law, other than the Device Warranty, LAB3 disclaims and makes no express or implied warranties, conditions, representations or guarantees (including, without limitation, implied warranties of merchantability, non-infringement or fitness for a particular purpose) in relation to SensorMine® as a whole or any part of SensorMine®.
6.2 LAB3 will use commercially reasonable efforts to provide SensorMine® to you free of any code designed or intended to disable or impede the normal operation of, or provide unauthorised access to, networks, systems, software or cloud services.
6.3 We do not warrant or guarantee that:
(a) use of SensorMine® or our provision of Support, will be secure, timely, uninterrupted or error-free;
(b) SensorMine® will operate in combination with any other hardware, software, system or data;
(c) all errors or defects will be corrected; or
(d) we will provide any updates to the Application Software or Embedded Software.
7.1 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®.
7.2 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®.