Please read this End User Licence Agreement (EULA) carefully before purchasing and/or using SensorMine.
By purchasing and/or using SensorMine, you acknowledge that you have read, understand and accept 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.
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 and/or use SensorMine.
1.1 This 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 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.
1.3 This EULA will commence when you purchase or use SensorMine.
2.1 This EULA sets out the terms under which we will provide SensorMine to you and applies whether you are purchasing SensorMine directly from LAB3 or through an authorised LAB3 Reseller (Reseller).
3.1 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).
3.2 Where you are purchasing 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) the costs of handling, shipping or insuring any Devices;
e) any non-LAB3 products or services that the Reseller sells or supplies to you; or
f) the refund or reimbursement of any amounts paid by you, including on termination of this EULA.
4.1 This EULA governs your use of SensorMine, which includes:
a) the physical sensors, probes, gateways and gateway accessories used to collect and transmit sensor data to the Application Software (Devices);
b) a subscription for the Subscription Period which includes:
i) provision of the Devices;
ii) access to the cloud-based software-as-a-service products pursuant to which you will be given access to LAB3’s Application Software (which is required to collect and report on the Devices) (Application Software);
iii) related Support; and
iv) if purchased by you, additional Professional Services,
(together, a SensorMine Subscription);
c) LAB3’s standard user instructions and other documentation (whether paper or electronic), as modified from time to time by us (Documentation);
d) LAB3 generated code or software (Embedded Software); and
e) any other related software, licences, materials, items and services.
4.2 The Subscription Period commences on the day on which the last Device in an order placed by you arrives at your nominated location and runs for the term stated in your order form (including any extensions).
5.1 You may purchase additional SensorMine related Professional Services, including consulting, discovery, design, development, integration, and deployment planning services, to be provided directly to you by LAB3 or our Affiliates (Professional Services).
5.2 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 LAB3.
6.1 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 (Affiliate).
6.2 Where Affiliates of the parties conduct business under this EULA, references to you or to LAB3 in this EULA include respectively any of your, or LAB3’s, applicable Affiliates.
7.1 Subject to the terms of this EULA, LAB3 grants to you a non-exclusive, non-transferable, revocable and non-sublicensable right to use SensorMine solely for your internal business purposes (Licence).
7.2 The Licence will commence from your first use of SensorMine and will remain valid and in effect for so long as:
a) you have a current SensorMine Subscription;
b) you are not in breach of this EULA; and
c) this EULA has not been terminated.
8.1 You acknowledge that 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
8.2 Your use of the Application Software will be in accordance with the Microsoft Services Agreement.
9.1 Any information that you provide to us when you register your Devices must be accurate, current and complete.
9.2 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.
9.3 You are responsible for all actions taken through your account.
10.1 The Devices may only be used with Application Software provided by LAB3.
10.2 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 SensorMine (or any modified version or derivative work of SensorMine);
b) copy, reproduce, manufacture, modify, 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 from SensorMine, or otherwise try to disable or alter any software functionality;
d) remove or alter any copyright, trademark or proprietary notice;
e) transfer, use or export SensorMine in violation of any laws or regulations of any government or governmental agency; or
f) act as a SensorMine service provider to external parties.
11.1 For so long as you have a valid Licence, we will provide support for SensorMine in accordance with Appendix 1 (Support).
11.2 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.
12.1 The development, release and timing of any additional features or functionality of SensorMine remains at our sole discretion.
12.2 You agree that you are purchasing SensorMine based solely upon features and functions that are currently available as at the time you place an order for SensorMine, and not in expectation of any future feature or function.
13.1 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.
14.1 LAB3 or its Affiliates at all times own all intellectual property rights in or relating to SensorMine, including in any improvements, enhancements or modifications to SensorMine.
14.2 If you become aware that any party is infringing or misappropriating any such intellectual property rights then you must promptly notify us in writing and assist us, at our expense, to protect such intellectual property rights.
14.3 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 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 LAB3, 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.
14.4 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 3.2(f)) claim a refund of any prepaid fees for the unused portion of your then-current SensorMine Subscription.
15.1 You retain all right, title and interest in and to any of your data (including Personal Data), information, content, code or other materials of any type that are transmitted by you to LAB3 through the Application Software or otherwise (End User Data).
15.2 Subject to the terms of this EULA, you grant to LAB3 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 LAB3’s clients.
15.3 You warrant that you have obtained all consents and made all necessary disclosures pursuant to applicable laws (including the Privacy Act 1988 (Cth)) for the purpose of LAB3 exercising the benefit of the licence granted to it under clause 2.
15.4 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.
15.5 You will indemnify, hold harmless and (at our option) defend LAB3 and our Affiliates from and against any claim, loss, cost, liability or damage, including legal fees, for which we or they become liable arising from or relating to any claim relating to End User Data, including but not limited to any claim brought by a third party alleging that any aspect of your End User Data:
a) infringes or misappropriates the intellectual property rights of a third party;
b) violates applicable law; or
c) breaches the warranty in clause 15.3.
15.6 You acknowledge that it is your responsibility to download and keep copies of your End User Data and that neither LAB3 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.
16.1 LAB3 does not seek or require, and you will not provide, access to any information relating to an identified or identifiable individual (Personal Data) other than the contact details obtained by us, or provided to us by a Reseller, in the ordinary course of maintaining our business relationship with you (Contact Details).
16.2 You 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.
16.3 We will update, modify, or delete Contact Details upon written request.
16.4 If we are granted access by you to Personal Data other than Contact Details, you will promptly notify us and, where possible, we will promptly return all such Personal Data in our possession or control to you and you will terminate such access.
17.1 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) intellectual property in SensorMine; and
c) information relating to the Discloser’s business, affairs, financial position, pricing, internal management, structure, policies, practices, procedures, strategies, employees, contractors and suppliers, products, services and intellectual property,
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.
17.2 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.
17.3 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.
17.4 The obligations of confidentiality imposed upon the parties will continue notwithstanding termination of this EULA.
18.1 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.
18.2 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 loss of revenue, profit, anticipated savings or goodwill, costs of procurement of substitute goods, deliverables, services, rights or technology, loss, damage or corruption of data, or any loss not arising naturally from the relevant breach, act or omission, whether or not such loss may reasonably be supposed to have been in the contemplation of either of, or both of, parties at the time they entered into this EULA, whether arising in contract, tort, equity or otherwise.
18.3 Nothing in this EULA is intended to exclude or limit either party’s liability for death or personal injury.
18.4 Nothing in this clause 19 will limit the fees owed by you for SensorMine, whether directly to LAB or to a Reseller.
19.1 You will immediately notify us of any known or suspected breach of this EULA or unauthorised use of SensorMine.
19.2 You will indemnify, hold harmless and (at our option) defend LAB3 and our Affiliates from and against any claim, loss, cost, liability or damage, including legal fees, arising from or relating to:
a) any breach or alleged breach by you or your Affiliates of any term of this EULA; or
b) your or your Affiliate’s use of SensorMine other than in accordance with this EULA.
20.1 Subject to compliance with this clause 20, 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.
20.2 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.
20.3 A Force Majeure Event is 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.
21.1 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.
21.2 LAB3 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.
22.1 Upon termination of this EULA:
a) the Licence and any other rights granted to you under this EULA will come to an end;
b) you will cease using SensorMine;
c) unless otherwise agreed, you will return all Devices in your possession or control to LAB3, at your risk and expense; and
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 15.6.
22.2 Termination of this EULA will be without prejudice to the rights and obligations of the parties which accrued prior to termination.
22.3 Any provisions which by their nature are intended to survive, or which are expressed to survive, termination of this EULA will survive.
23.1 You agree to maintain accurate records reasonably necessary to verify your compliance with this EULA.
23.2 Upon our, or the Reseller’s written request, you will provide to us and/or the Reseller those records within 10 Business Days.
24.1 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.
24.2 A party claiming a dispute has arisen must give written notice to the other party specifying the nature of the dispute.
24.3 On receipt of that notice, the parties must use all reasonable endeavours to resolve the dispute by discussion, consultation, negotiation, or other informal means.
24.4 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.
24.5 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.
24.6 While the procedure in this clause 25 is being followed, both parties must continue to fulfil their obligations under this EULA.
25.1 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 us.
26.1 For the purposes of this EULA, a Business Day is any day on which registered banks are open for business in Melbourne, Victoria but excludes Saturdays, Sundays and public holidays.
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 email@example.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 28.1; 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 LAB3 may subcontract any of its obligations under this EULA to any third party at any time without notice to you.
30.1 LAB3 may assign or novate, in whole or in part, any of its 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 the prior written consent of LAB3 (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 This EULA constitutes the entire agreement between the parties in relation to its subject matter and will supersede all previous negotiations, commitments and/or writings.
32.2 At all times the terms of this EULA will take precedence over the terms of any purchase order or other ordering document (submitted either directly to LAB3 or to a Reseller) notwithstanding that:
a) the purchase order or other ordering document has been given after commencement of this EULA; or
b) the terms of the purchase order or other ordering document purport to override or supersede the terms of this EULA.
33.1 From time to time, LAB3 may modify this EULA. We will use reasonable efforts to notify you of any changes through our website or other forms of communication.
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).
2.1 Additional Devices which are to be used to replace defective Devices (Warranty Devices) will be shipped to 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 sent to you have been used to replace defective Devices, sufficient additional Warranty Devices will be shipped to 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 we be deemed to have accepted the option in clause 3(b) 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 SensorMine 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. Warranty Replacement Process
3.1 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.
3.2 Where a Device is detected as being offline by either LAB3 monitoring or via notification from you, you will be notified by, or be required to contact, the LAB3 service desk to help determine the correct support requirements and, if required, the warranty replacement process.
3.3 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.
4.1 In addition to Device Warranty Support, LAB3 will also provide the following business hours general Support to you:
a) service desk phone and email support for general enquiries and issues;
b) monitoring, alerting and notification for Application Software and Devices issues; and
c) tool for incident and request tracking and simple asset management activities related to the Devices.
5.1 To use LAB3 Support you must provide us with:
a) sufficient information to enable us to identify the relevant issue; and
b) the details of a technical person with requisite skills who will be our dedicated point of contact for resolving SensorMine issues (Technical Support Contact).
5.2 The Technical Support Contact may initiate Support requests as follows:
a) calling the LAB3 service desk on 1300 911 346
b) emailing the LAB3 service desk on SensorMine.firstname.lastname@example.org
6.1 LAB3 is not obliged to provide Support, and the Device Warranty will not apply, in relation to any issues resulting from or attributable to:
a) any accident, negligence, abuse, damage to or misuse 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) failure to comply with environmental and storage requirements as set out in our Documentation or other express instructions;
d) a malfunction of your hardware, network or cloud environment;
e) programs, data, equipment, software or hardware not licensed or provided by LAB3 which is used by you in conjunction with SensorMine;
f) other circumstances beyond our reasonable control including, but not limited to failure of electrical systems and fire or water damage;
g) use by you after notice from us to discontinue use of all or a portion of SensorMine; and
h) any form of damaged caused during shipment of the Device.
7.1 To the 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.
7.2 LAB3 will use commercially reasonable efforts to deliver 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.
7.3 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.
8.1 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 or use SensorMine.
8.2 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 or use SensorMine do not apply to your purchase or use of SensorMine.