Euclidic Systems Pty Ltd – Terms and Conditions – Service Agreement
1. Definitions in these Terms and Conditions:
ACL means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Approved Installer means a person approved by Euclidic to install the System or any part thereof.
Commencement Date means the commencement date as described in the Service Agreement.
Documentation means any instruction manuals, user guides and other information relating to the System.
Equipment Rental Agreement means the Euclidic Systems Equipment Rental Agreement to which these Service Terms and Conditions are attached.
Intellectual Property Rights means the rights to patents, licenses, trade marks, trade names, inventions, trade secrets, copyrights, and know-how relating to the origin, manufacture, programming, operating and/or servicing of the System and any enhancements or modifications relating to the same.
Service Agreement means the Euclidic Systems Service Agreement to which these Service Terms and Conditions are attached.
Service Period means the period commencing on the Commencement Date and ending on the expiry or earlier termination of the Equipment Rental Agreement.
Service Terms and Conditions means these Euclidic Systems – Terms and Conditions – Service Agreement.
Services means the provision of 24 hours per day, 7 days per week services associated with the Tracking Plans Software and any additional services of add-on options chosen by you and provided for in the Service Agreement.
Support Services means the support services provided by Euclidic during the Service Period to correct faults in the System or to assist you in operating the System.
System means the Tracking Plan Software and any hardware units provided by Euclidic to you including those listed in the Service Agreement or the Equipment Rental Agreement.
Tracking Plans Software means the location management program offered by Euclidic which uses web-based software owned by Euclidic together with all data imputed by Euclidic or you.
Undefined capitalised terms have the same meaning as in the Equipment Rental Agreement and the Services Agreement.
2. Scope of Agreement: 2.1 Euclidic will supply the Services to you on the terms and conditions set out in this Service Agreement. 2.2 The supply of the Services comprises of: (a) the supply of Services for the Service Period; (b) the supply of the Documentation; and (c) the supply of the Support Services until the expiry of the Service Period.
3. Installation: You must ensure that an Approved Installer installs the System in accordance with Euclidic’s instructions and testing procedures.
4. Licence: 4.1 Euclidic hereby grants you a limited and non-transferable licence to Tracking Plans Software through the internet solely for the purpose of the System, subject to these Service Terms and Conditions and the Equipment Rental Agreement. 4.2 Euclidic hereby grants you a limited and non-transferable licence to the firmware which may be contained in each unit provided under the Equipment Rental Agreement, subject to these Service Terms and Conditions and the Equipment Rental Agreement. 4.3 You may ensure that any of your officers, employees and agents who use the System or the licence granted to you under this clause 4 complies with these Service Terms and Conditions and the Equipment Rental Agreement.
5. Your Obligations: 5.1 You will not, and will ensure that your officers, employees and agents will not use the System (or any part thereof) for any illegal, unlawful or offensive act/s and will ensure that it is used in accordance with all applicable laws, regulations, standards and industry codes of conduct. 5.2 You must not use any equipment in connection with the System that has not first been approved in writing by Euclidic. 5.3 You will comply with the reasonable directions of Euclidic from time to time regarding the use of the System and the Documentation. 5.4 You indemnify Euclidic against any claims, loss or damage (on a solicitor and own client basis and whether incurred by or awarded against Euclidic) that Euclidic suffers or incurs, whether directly or indirectly, as a result of any breach of this clause 5.
6. Support: 6.1 If you require support for the System, you will call Euclidic’s customer support number 07 3390 8101. 6.2 Euclidic will use all reasonable efforts to provide Support Services to you for the System during the Service Period. 6.3 Should you wish to receive Support Services after the Service Period, you must enter into a new agreement with Euclidic for the Support Services. 6.4 The Support Services do not include services resulting from: (a) misuse of the System; (b) failure to use the System in accordance with the Documentation; or (c) unauthorised attempts to repair, replace, modify or maintain the System by persons other than Euclidic or its authorised service providers.
7. Fees and Payment: 7.1 You will, unless mutually agreed between the parties, pay to Euclidic the Monthly Service Fees as part of the total Monthly Fee under the Equipment Rental Agreement and Service Agreement. 7.2 If you fail to pay any amount when due, Euclidic may without prejudice to its other rights or remedies under these Service Terms and Conditions: (a) charge you interest on the amount owing from the due date until the date of actual payment at the base rate percentage charged by Euclidic’s banking service providers from time to time plus 10%; and/or (b) suspend any Services provided under these Services Terms and Conditions. 7.3 Euclidic may vary any amounts payable by you under these Service Terms and Conditions upon giving you 30 days’ written notice. 7.4 Any amounts specified in these Service Terms and Conditions or quoted to you by Euclidic exclude GST. If GST is or becomes payable in respect of any supply made by Euclidic to you, the payment for that supply shall be increased by an amount equal to the GST payable so that Euclidic retains the amount it would have retained but for the imposition of GST. Words or expressions used in this clause have the same meaning as defined in the A New Tax Act System (Goods and Services Tax) Act 1999 (Cth).
8. Warranties and Limitation of Liability: 8.1 Euclidic warrants to you that: (a) it has the full power and authority to license the Tracking Plans Software; (b) to the best of its knowledge and belief the System does not infringe any intellectual property rights of a third party; and (c) during the Services Period you acknowledge that the Tracking Plans Software is of a complicated and technical nature and may have minor or inherent defects. Euclidic will provide all reasonable programming and remedial services to correct documented code errors which are caused by a defect in an unaltered version of the Tracking Plans Software accessed on an operating system approved by Euclidic as suitable for the Tacking Plans Software. 8.2 Except as expressly set out in this clause 8, and to the maximum extent permitted by law, all representations, conditions and warranties (whether express or implied, statutory or otherwise and including warranties as to the merchantable quality or fitness for any particular purpose of the System or the Documentation) are expressly excluded. 8.3 Euclidic will not be liable whether in contract, tort (including negligence) or otherwise for any indirect or consequential loss or loss of profits suffered or incurred by you arising out of or in connection with these Service Terms and Conditions. 8.4 To the maximum extent permitted by law Euclidic will not be liable for any direct or indirect damage suffered by You in relation to any breach of data provided by You in connection with these Service Terms and Conditions except where the breach is a direct result of Euclidic’s intentional misconduct. 8.5 Euclidic’s liability arising out of all claims for damages under these Service Terms and Conditions will not exceed in aggregate the total amount actually paid by the Customer to Euclidic under these Service Terms and Conditions in the three months prior to the time such liability arises. 8.6 You agree that any failure or performance or breach on the part of Euclidic in the provision of the Services shall in no way affect your obligations to Euclidic under these Service Terms and Conditions. 8.7 Notwithstanding anything else in this Agreement, if section 102 of the ACL applies to the provision of the System to you, the System comes with guarantees that cannot be excluded under the ACL. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the System repaired or replaced if the System fails to be of acceptable quality and the failure does not amount to a major failure. The terms “major failure” and “acceptable quality” have the meanings given to them in the ACL.
9. Intellectual Property and Confidentiality: 9.1 You acknowledge that the Intellectual Property Rights in the System and Documentation are owned by Euclidic or its licensors. 9.2 You acknowledge that these Service Terms and Conditions do not transfer to you any Intellectual Property Rights in the System or any part thereof other than the limited licence granted under these Service Terms and Conditions. 9.3 You will not reproduce, translate, adapt, reverse engineer, vary or modify the Tracking Plans Software, the System generally or the Documentation other than to enable your employees, officers and agents to use the Tracking Plans Software in accordance with these Service Terms and Conditions. 9.4 You must: (a) take all reasonable steps to prevent, and will ensure that your officers, employees and agents take all reasonable steps to prevent any unauthorised access to the Tracking Plans Software and the System and to ensure the non-disclosure and confidentiality of the System and the Documentation; (b) not transfer, assign or otherwise deal with the System or Documentation or your rights under these Service Terms and Conditions; (c) maintain all copyright notices on the System and Documentation; and (d) ensure that you and your officers, employees and agents do not disclose any access passwords and will ensure that all passwords; (i) cannot be easily guessed; (ii) are changed regularly and as reasonably as requested by Euclidic; and (iii) if breached or compromised, notify Euclidic in writing immediately of any breach or the existence of any circumstances which may suggest that any person may have unauthorised knowledge, possession or use of the System, Documentation and/or any password. 9.5 Your obligations under this clause will survive the termination of these Services Terms and Conditions and any other agreement between you and Euclidic.
10. Termination: 10.1 On termination of these Service Terms and Conditions you: (a) will remain liable for payment of any charges that become due for payment before or after termination; and (b) must immediately cease to use the Tracking Plans Software, the System and all Documentation and deliver to Euclidic all copies of the Tracking Plans Software, the System and Documentation in your possession or control, including all copies in the possession or control of your officers, employees and agents. 10.2 Within 30 days of termination, you must certify to Euclidic in writing that you have fully complied with your obligations under clause 10.1(b). 10.3 On termination of these Service Terms and Conditions, the licence granted under these Service Terms and Conditions will automatically cease.
11. General: 11.1 Any notice given under these Service Terms and Conditions will be in writing delivered to the relevant party or sent by post or facsimile or email transmission at such address or number as may be notified in writing by each party to the other from time to time. Any such notice will be deemed received at the time when the same is handed to or left at the address of the party to be served, and if served by post two working days (not being Saturday, Sunday or a public holiday) after the day of posting, and if served by fax on the day of dispatch. 11.2 If any provision of these Service Terms and Conditions is held to be invalid or unenforceable, the remaining provisions will remain in force and effect. 11.3 If Euclidic waives any default or breach of these Service Terms and Conditions, this will not constitute a waiver of any other or subsequent default or breach. No waiver will be effective unless made in writing. 11.4 You may not assign, sub-licence or transfer your rights and obligations under these Service Terms and Conditions without the prior written consent of Euclidic. 11.5 Neither party will be liable for any delay or failure in the performance of its obligations under these Service Terms and Conditions if such delay or failure is due to a force majeure event, being any cause outside its reasonable control including but not limited to acts of God, natural disaster, riot, malicious damage, fire or acts of any governmental authority. This clause 11.5 does not apply to any obligation to pay money for liabilities incurred prior to the force majeure event. 11.6 These Service Terms and Conditions are governed by the law in force in the State or Territory where your office as shown in the Services Agreement is located and the parties submit to the non-exclusive jurisdiction of the courts that exercise jurisdiction in the State or Territory in relation to any proceedings about or in connection with these Service Terms and Conditions.
12. Customer Information: 12.1 You acknowledge that Euclidic, its officers, employees, agents and any third party providing the Services to You on behalf of Euclidic (collectively, Agents) may generate, and/or require use of existing information or data about you, your contractors or employees (Customer Information). You grant Euclidic and its Agents the right to use, copy, modify, store and disclose the Customer Information to the extent necessary so that Euclidic and its Agents can supply the Services and any enhancements or modifications to the same (Information Licence). 12.2 You will to the extent that the Customer Information contains personal information and/or sensitive personal information (as defined in the Privacy Act 1988 (Cth)) about an individual (including your employee or contractor), procure from that individual all necessary consents required by law to enable that information to be used by Euclidic and its Agents in accordance with the Information Licence. 12.3 You acknowledge that Euclidic may be required to disclose Customer Information to government bodies, regulators, law enforcement, agencies and any other parties where disclosure is authorised or required by law. 12.4 You indemnify Euclidic and its Agents (and will continue to indemnify Euclidic and its Agents notwithstanding termination or expiration of these Service Terms and Conditions) for all loss (including losses, liabilities, penalties, damages, costs, charges and expenses) which Euclidic and/or its Agents may suffer or incur (whether in relation to the Privacy Act 1988 (Cth) or otherwise) by reason of the your failure to comply with this clause.
13. Service Information: 13.1 You acknowledge that Euclidic and its Agents may retain data in relation to the provision of the Services to You (Service Information) for research and development purposes in relation to Euclidic’s services and equipment. 13.2 Euclidic may use the Service Information for the purposes of benchmarking and research. In this event, Euclidic will de-identify the relevant Service Information used.
14. Credit Reporting: 14.1 Euclidic may request a credit report about You from a credit reporting body which may contain information about your credit history. Euclidic will provide information to the credit reporting body that identifies You, as well as information relevant to the Services Agreement. 14.2 Euclidic may also collect information relating to your credit history during the tenure of the Services Agreement. Euclidic may disclose information relating to your credit history to credit reporting bodies so it may be included in your credit report.