GeoMoby Resources and Underground Operations Pty Ltd
ACN: ACN 641 815 349
TERMS & CONDITIONS
Office Address: Level 1, 1109 Hay Street, West Perth, WA 6005
Contact Name: Mathieu Paul
Contact Phone: 0401 072 874
Contact Email address: firstname.lastname@example.org
Payment Terms:  days after receipt of valid invoice from GeoMoby.
The Client wishes to engage GeoMoby to supply the Services, including the installation of the GeoMoby System.
The Parties have agreed that the Services, and the licence to use the GeoMoby System will be supplied by GeoMoby to the Client and its Users in accordance with the terms and conditions of this Agreement.
GENERAL TERMS AND CONDITIONS
DEFINITIONS AND INTERPRETATION
In this Agreement, unless the contrary intention appears:
- Agreement means this agreement for the provision of the Services, including the Agreement Details and any Proposal, Schedules or Annexures;
- App means the customised computer software application in which the GeoMoby System is accessed by the Client and the User/s;
- Business Day means a day other than a Saturday or Sunday or Public Holiday on which banks are open for business generally in Western Australia;
- Change in Law means any change in Laws, or the application or interpretation of a Law, relating to the Services after the date of this Agreement;
- Claims means any and all demands, claims, proceedings, fines, notices, debt, account, lien, action or liability (whether criminal or civil, in contract, tort or otherwise) arising out of or in any way connected with this Agreement;
- Commencement Date means the commencement date specified in the Agreement Details;
- Confidential Information means any confidential information of a Party which relates to the subject matter of this Agreement or the Party’s business, finances, technology, process, know-how, customers or suppliers and includes:
- confidential information relating to the technology, Intellectual Property Rights and design of the GeoMoby System;
- the GF Data, User Data and any confidential information relating to the GF Data or User Data;
- information relating to the personnel, policies or business strategies of a Party;
- information relating to the terms upon which Services are provided to a User pursuant to this Agreement;
- the terms of this Agreement;
- information that is reasonably regarded as confidential, being information not in the public domain or known to competitors of a Party;
- Client means the Party identified in the Agreement Details and any of its Related Entities;
- Client’s Obligations means the Client’s obligations expressed or implied in this Agreement or at Law;
- Consequential Loss means any indirect, special or consequential losses including but not limited to loss of revenue, loss of profit, loss of product or production, business interruption, loss of business opportunity, loss of savings, failure to realise expected profits, loss of goodwill, downtime and other like risks in each case whether direct or indirect and whether or not foreseeable at the date of execution of this Agreement or any time;
- Date of Installation means the date in which the GeoMoby System is installed pursuant to the Specifications set out in the Proposal;
- Fees means the fees payable by the Client to GeoMoby under this Agreement including but not limited to the Installation Fees, Licence Fees, the Service Fees and the Monthly Plan Fees as set out in the Proposal;
- Force Majeure means an event or circumstance beyond the reasonable control of a Party affected which results in a Party being unable to observe or perform on time an obligation under this Agreement and which could not have reasonably been foreseen, prevented or limited by reasonable and preventative action. Such circumstances shall include but shall not be limited to:
- acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
- acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
- action or inaction by, or orders, judgments, rulings, decisions or enforcement actions of, any government, governmental authority or court of competent jurisdiction whether local, State or Federal (including denial, refusal or failure to grant any permit, authorisation, licence, approval or acknowledgment despite timely endeavours to obtain same).
- Geofence or Geofencing means the virtual perimeter for a real-world geographical area installed on the GeoMoby System for the Client and as set out in the Specifications in the Proposal;
- GeoMoby® System means the applicable GeoMoby product supplied by GeoMoby to the Client pursuant to this Agreement which may include one or more of the following:
- GeoTripwires™; and
- GeoMoby’s platforms, Apps, data, software, analytics or other works and which are used for the Site and Users,
- the specifications of which are set out in the Proposal (as applicable);
- GeoModulesTM means but is not limited to dwell-time, temperature, weather, real-time traffic, and user profile the specifications of which are set out in the Proposal (as applicable);
- GeoTripwiresTM means virtual lines that can be configured to trigger customised actions when crossed by a User the specifications of which are set out in the Proposal (as applicable);
- GF Data means the various Site and related User Data which GeoMoby is provided access pursuant to this Agreement or data which may otherwise in any way be generated, compiled, arranged or developed on or via the GeoMoby System pursuant to this Agreement;
- Goods means goods, equipment or materials supplied by GeoMoby to the Client pursuant to this Agreement, which may include Hardware, modules, nodes and as more particularly set out in the Proposal;
- Hardware includes any device that the GeoMoby System is installed, and which may be provided by the Client or Geomoby as set out in the Proposal.
- Installation Fee means the fee for the initial set up of the GeoMoby System and Users as set out in the Proposal.
- Intellectual Property Rights means all present and future intellectual property rights conferred by statute, common law or equity anywhere in the world in or in relation to copyright, trade marks, moral rights, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether registrable, registered or patentable. These rights include:
- all rights in all applications to register these rights including all rights to claim Paris Convention priority;
- all renewals and extensions of these rights; and
- all rights in the nature of these rights, such as moral rights;
- Law means any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth or a local government, and includes the common law and equity as applicable from time to time, and any mandatory standards or industry codes of conduct relevant to the Goods or Services provided under this Agreement;
- GeoMoby System Licence Fee means the licence fee to use the GeoMoby System as set out in the Proposal.
- Monthly Plan Fee means the monthly plan fee payable by the Client to GeoMoby for the of the GeoMoby System (or any part of it) as set out in the Proposal (if applicable);
- Platform means the platform, networks and technologies by which the Client and User are respectively supplied with, and engage, the GeoMoby® System, and which may include the Hardware;
- Party means either GeoMoby or the Client and Parties means all parties to this Agreement;
- Personal Information has the same meaning as in the Privacy Act 1988 (Cth);
- Related Entity has the same meaning given in section 9 of the Corporations Act 2001 (Cth);
- Schedule means a schedule to this Agreement;
- Proposal means a Business Proposal presented to the Client that forms part of this Agreement;
- Specifications means the specifications of the GeoMoby System set out in the Proposal;
- Services means the services provided by GeoMoby to the Client pursuant to this Agreement and as set out in the Proposal, which may include but is not limited to the following:
- provision the GeoMoby® System;
- GF Data gathering and analytics from the Client;
- Customisation of the Platform to suit the Client’s requirements;
- Supply of supporting Hardware (e.g. cards, smartwatches);
- installation of the GeoMoby System on Hardware and creation of Sites for the Client and its Users; and
- all other services supplied by GeoMoby to the Client and User set out in the Proposal.
- Service Fee means the fee payable by the Client to GeoMoby for the Services provided by GeoMoby at the rates and amounts set out in the Proposal.
- Service Provider means any third party contracted by GeoMoby to provide additional maintenance and support Services;
- Site means the location of the Client site as specified in the Proposal;
- Term means the term specified in the Agreement Details;
- User means the various authorised users of the Client who are permitted users of the GeoMoby System;
- User Data means any and all deidentified User data (including trend analytics and meta-data) collected by the GeoMoby System when the GeoMoby system is activated and used by a User;
- User’s Obligations means the User’s obligations expressed or implied in this Agreement;
- Warranty means the warranty set out in the Agreement Details.
- Warranty Period means the warranty period set out in the Agreement Details.
In this Agreement, unless the contrary intention appears:
- The clause headings are for ease of reference only and will not be relevant to interpretation;
- A reference to another clause is also a reference to its sub-clauses;
- Words in the singular include the plural and vice versa;
- Words importing a gender include any other gender;
- A reference to a person includes bodies corporate and unincorporated associations and partnerships;
- Where a word or a phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
- A reference to a proposal includes a reference to any part of that proposal which is incorporated by reference;
- The recitals for this Agreement do not form part of the Agreement;
- Dollars references are references to Australian currency;
- A reference to any Act of Parliament includes any amendments or re-enactment of the same or regulations made under that Act;
- An obligation on the part of two or more persons bind them jointly and severally;
- A reference to a party to this Agreement includes that party’s executors, administrators, nominees and assigns;
- The words “including” or “includes” are deemed to be followed by the words “without limitation”;
- When the date or last day for doing an act is not a Business Day, the day or last day for doing the act will be the next following Business Day;
- In the interpretation of this Agreement, no rule of contract interpretation applies to the disadvantage of a party on the basis that it put forward this Agreement or any part of it.
- GeoMoby agrees to provide the Services to the Client from the Commencement Date for the Term.
- The Term may be renewed for the Further Term or any subsequent term as may be mutually agreed in writing by the Parties.
- The Agreement may only be terminated under the relevant provisions of this Agreement.
SERVICES AND GOODS
- Subject to the payment of the Fees and the Client’s compliance with the terms of this Agreement, GeoMoby will grant a licence to the Client to use the GeoMoby System and GeoMoby will provide the Services and Goods to the Client during the Term.
- On the Date of Installation, GeoMoby will install the customised GeoMoby System and install Goods in accordance with the Specifications.
- GeoMoby is dedicated to providing the service levels to the Client in accordance with the commitments set out in Schedule 3.
- Unless otherwise specified, GeoMoby will only be responsible for the performance of the Services included in the Proposal or as otherwise agreed between the Parties.
- Where GeoMoby are providing Monthly Plan Services, GeoMoby will:
- provide the various GF Data transfers to Client’s servers, maintenance and support for the GeoMoby System for the duration of the Agreement; and
- remotely monitor the GeoMoby System and the correct reporting of all matters on a weekly basis to maintain the quality of the GeoMoby System.
GRANT OF LICENCE AND INTELLECTUAL PROPERTY RIGHTS
- During the Term, GeoMoby agrees to grant to the Client a non-exclusive, non-transferable, non-sublicensable licence for Users to use the GeoMoby System (and its associated Intellectual Property Rights) for the limited purposes of using, and monitoring the GeoMoby System.
- The client acknowledges all Intellectual Property Rights in the GeoMoby System remains the sole property of GeoMoby, and nothing in this Agreement, contemplates or effects an assignment of any Intellectual Property Rights created by GeoMoby for the Client under this Agreement, or any legal or equitable interest in the Intellectual Property to the Client whether that Intellectual Property was created for the purposes of this Agreement or otherwise.
- The Client shall not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the GeoMoby System, and will not attempt to decompile, disassemble, reverse engineer or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the GeoMoby System or create derivative works based on the GeoMoby System or its related materials or transform the GeoMoby System or any portion thereof except as expressly granted herein.
- Without limiting the foregoing, the Client also acknowledges in any modifications, improvements or enhancements suggested by or contributed to or provided by the Client in regard to the GeoMoby System shall immediately vest in GeoMoby.
FEES AND PAYMENT
- In consideration of GeoMoby providing the Goods and Services, the Client will pay the Fees to GeoMoby pursuant to this Agreement and as set out in the Proposal.
- The Installation Fee will be payable in accordance with the milestone payments set out in the Proposal.
- For all other Fees, including the Service Fees, the GeoMoby Licence Fee or Monthly Plan Fees, GeoMoby shall invoice the Client for the Services that it has provided monthly.
- The Client shall pay the invoice from GeoMoby within fourteen (14) days of the date of invoice.
- The Client shall pay GeoMoby interest at the rate of 10% per annum calculated daily and payable monthly in arrears on any amount due and not paid by the Client within the time required by this Agreement and the client hereby indemnifies GeoMoby for all costs and expenses (including mercantile agents, legal costs and filing fees on a full indemnity basis) incurred by GeoMoby in recovering any amounts which remain unpaid after the due date.
- The Fees are exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the Services. Without limiting the foregoing, the Client shall be liable for any new taxes, duties or charges imposed subsequent to the date of this Agreement in respect of the Services.
- Where the Client disputes part of an invoice, the Client must pay the undisputed portion of the invoice.
RISK AND TITLE
- Risk in the GeoMoby System and Goods will pass to the Client when it is delivered to the Client (on Site or otherwise at a location directed by the Client).
- If Hardware is supplied by GeoMoby to the Client, then title to the Hardware will transfer once the Client has paid for the Hardware in full and cleared funds.
GF DATA AND USER DATA
- In order to supply the GeoMoby System to the Users (including creating the Geofence if applicable), the Client shall make the GF Data and the User Data accessible to GeoMoby at the times and in the manner required by GeoMoby which is reasonably required to enable GeoMoby to fulfil and comply with its obligations in this Agreement.
- The Client shall ensure that all necessary consents, permissions, licences, and authorisations are in place to grant GeoMoby access to the relevant GF Data and User Data.
- Where possible, the Client shall provide GeoMoby with any relevant access code or passwords to enable GeoMoby to have full and free access to the GF Data and User Data.
- In the event of a failure by the Client to comply with its obligations under this clause, GeoMoby shall not be responsible for any Claims whatsoever for any Claims incurred by the Client or the Users.
- The Client grants to GeoMoby a royalty-free, charge-free, perpetual, irrevocable, non-exclusive licence to retain and commercially use the GF Data and User Data with effect from Commencement Date.
- The Client is responsible and liable for all data uploaded, installed, stored or accessed by it or its Users on the GeoMoby System or otherwise in connection with the Services.
Reliance on Data
- The Client acknowledges and agrees that GeoMoby does not provide any Services that include any data interpretation or recommendations in relation to data collected through the GeoMoby System.
- The Client acknowledges and agrees that GF Data or User Data collected during the Term by the GeoMoby System are not intended to form a recommendation to the Client about the accuracy of such events, or about a particular course of action.
- GeoMoby will not be liable to the Client or any third party in connection with the interpretation of the data, and the Client will indemnify and hold harmless GeoMoby from such Claims.
COMPLIANCE AND PRIVACY
- GeoMoby will at all times hold and maintain any necessary licences, permits and authorities that are required by law for it to provide the Services, and comply with any Laws, including the Privacy Act 1988 (Cth) or the Spam Act 2003 (Cth).
- The Client must at all times ensure that it complies with the all the applicable Laws in relation to its obligations and its Users pursuant to this Agreement and holds all consents, permits, licence or similar requirements to give affect to the performance of the Services.
- The Client warrants that it will comply with its Privacy Act Obligations, including that, will ensure amongst other matters, the Client:
- warrants that all User’s Personal Information is protected against loss and against unauthorised access, use, modification, disclosure or other misuse;
- will not use Personal Information other than for the purpose of performing its obligations under this Agreement, unless required or authorised by Law;
- will not disclose Personal Information without the prior written consent of User, unless required or authorised by Law;
- will not transfer any Personal Information outside of Australia without the prior written consent of User;
- ensures that access to Personal Information is restricted to those of its Personnel who require access in order to perform their duties under this Agreement;
- ensure that its officers and Personnel are aware of the Client’s obligations under this clause for Fees and Payment and comply with the same obligations imposed on the Client under Fees and Payment;
- fully cooperate with GeoMoby to enable GeoMoby to respond to applications for access to, or amendment of, a system or document containing a User’s Personal Information and to privacy complaints;
- immediately notify GeoMoby if the Client becomes aware that a disclosure of Personal Information is or may be required or authorised by Law; and
- comply with such other privacy and security measures as GeoMoby reasonably advises the Contractor in writing from time to time.
- The Client must immediately notify GeoMoby upon becoming aware of a breach of this clause
- Unless provided for in this Agreement, the Client is responsible for providing its own Hardware for Users to access, use and engage with the GeoMoby System.
- The Client must (unless otherwise agreed by the Parties or set out in the Proposal and/or Schedule(s)):
- only use the GeoMoby System for the Purpose and not for any other purpose;
- deploy the GeoMoby System and any applicable updates on each relevant User’s hardware in accordance with the direction or documentation provided as part of the Services;
- not attempt to gain unauthorised access to the GeoMoby System or any part thereof, or use another person’s name, registration account, token or password;
- not intentionally tamper with, hinder the operation of or make unauthorised modifications to the GeoMoby System, any modules, node, Goods or other component supplied by GeoMoby under this Agreement;
- not transmit any virus or other disabling feature to or from the GeoMoby System;
- not remove, disable or modify any security, antivirus or other software on the GeoMoby System;
- not attempt to gain access to any data or information within or through GeoMoby System, other than the Client and Data through by approved interfaces;
- keep all passwords, account names, tokens or log in identifications required to access the GeoMoby System secure and confidential; and
- ensure that the Geomoby system software is updated with any mandatory updates or new releases as instructed by GeoMoby to ensure software compatibility, functionality and safety.
- The Client will indemnify and hold harmless GeoMoby for any damage directly or indirectly caused by any tampering, modifications, amendments or destruction made to any module, node, Goods or other components supplied by GeoMoby under this Agreement and GeoMoby will not be liable for any such damage whosoever arising to the Client, User or any other Party.
TRAINING,TECHNICAL INFORMATION AND UPDATES
- On request, GeoMoby shall, provide the Client with training in the use of the GeoMoby System as the Supplier considers necessary to enable the Client to market the GeoMoby system to its current or potential Users.
- GeoMoby shall provide either verbally, in writing or via GeoMoby’s Platform or App to the Client or the User, from time to time, current information regarding:
- the use of GeoMoby system;
- recommended modifications, new releases or updates of the GeoMoby System; and
- other technical information concerning the performance of the GeoMoby System.
- From time to time, GeoMoby will make updates or new release to the GeoMoby system.Unless part of a Monthly Service, the Client will be solely responsible for installing any updates or new releases on the Hardware or User devices.
- GeoMoby does not warrant that training or information provided pursuant to this clause is sufficient to enable the Client or its personnel to adequately respond to all queries or concerns raised by a User.
- The Client acknowledges its responsibility to refer to GeoMoby any queries or concerns raised or expressed by a User which the Client is unable to answer.
- A Fee may be payable by the Client to GeoMoby, at the sole discretion of GeoMoby, in respect of the training provided by the GeoMoby or the provision of modifications, new releases or updates of the GeoMoby System by GeoMoby in accordance with this Agreement and as set out in the Proposal.
- Subject to clause 11.4, the Client may at any time during the Term appoint permitted Users, provided that such persons are employees or contractors of the Client who are engaged to provide services to the Client that require the use of the GeoMoby System.
- The Client may request GeoMoby increase the quantity of Users that have access to the GeoMoby System, and GeoMoby will provide access to the GeoMoby System to each of the Users in accordance with this Agreement subject to payment of the additional Fees for each new User.
- The Client agrees that it is responsible and liable for all acts or omissions of its Users as if those acts and omissions were its own.
- The provisions of this Agreement shall not be varied, except by agreement in writing signed by the Parties.
- If either Party wishes to vary the Agreement, including variations to the Services, the proposing Party shall submit a copy of the proposed variations to the other Party. The receiving Party shall advise the proposing Party within four (4) Business Days, or such other period as is agreed by the other Party (“the receiving Party”), of receipt of the variations either:
- that the receiving Party accepts the variations; or
- that the receiving Party rejects the variations.
- If the receiving Party accepts the variations, the Agreement shall be deemed to incorporate the accepted variations from the date upon which the receiving Party notifies the proposing Party that it accepts the variations.
- If the receiving Party rejects the proposed variations, each Party shall perform the Agreement in accordance with the unvaried terms.
- A variation shall not be effective unless the Parties agree in writing as to:
- the effect of the variation, if any, upon the Fees; and
- the impact of the variation on the obligations of either Party under this Agreement, including an extension of time to complete the Services.
- If a Change in Law necessitates a change to the GeoMoby System, then GeoMoby will be entitled to such reasonable additional compensation and extension of time as is reasonably necessary to complete the Services.
SYSTEM FAULTS AND WARRANTY
- GeoMoby warrants that at the time of installation, the GeoMoby System will substantially conform to the Specifications, and comply with all Laws.
- Subject to the exclusions listed in clause 13.3, GeoMoby will repair, replace or adjust (in its absolute discretion) all defects in the GeoMoby System (including nodes) during the Warranty Period (Warranty) provided that the Client uses the GeoMoby system properly in accordance with this Agreement.
- The Warranty will not cover any defects or damage to the GeoMoby System that arise from, or are caused or contributed to by any of the following:
- any breach of the Clients obligations set out in clause 9.2;
- unauthorised work performed on the GeoMoby System including interfering with nodes, and conducting unauthorised repairs or maintenance;
- any failure to carry out recommended checks; improper handling, storage or protection of the GeoMoby system and Goods; and
- use of the GeoMoby System for any purpose other than its intended purpose, including capacity limits.
- GeoMoby shall not be liable for any loss or damage arising directly or indirectly as a result of a fault in the GeoMoby System which was not reasonably identifiable by GeoMoby prior to notification provided by the Client to GeoMoby that the GeoMoby System was affected by such fault.
- If GeoMoby reasonably determines that a GeoMoby System fault may result in GeoMoby being unable to materially comply with its obligations under this Agreement, GeoMoby will notify the Client as soon as practicable.
- GeoMoby does not warrant that the Client’s use of the GeoMoby System will be error free, free from interruption or failure, or will achieve specific or desired results, except as set out in Schedule 3.
- The Client acknowledges that the GeoMoby System may become unavailable or interrupted due to periodic system maintenance and other factors such as acts of God, technical failure, user error, software or hardware failure, telecommunication infrastructure problems, viruses or malware, denial of service attacks, increased or fluctuating demand, actions or omissions by third parties or other causes.
- GeoMoby will not be liable and the warranty will be voided as a result of defects or malfunctions caused by the acts or omissions in violation of this Agreement, maintenance, repair, alterations or modifications made without the written authorisation of GeoMoby, improper storage, installation, handling or use, including any use of the GeoMoby System (or associated Goods) with any software or hardware not provided or approved by GeoMoby, or failure to use GeoMoby System in accordance with this Agreement.
GOODS AND SERVICES TAX
- GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- All consideration provided under this Agreement is exclusive of GST, unless it is expressed to be GST-inclusive.
- Where a party (Supplier) makes a taxable supply to another party (Recipient) under or in connection with this Agreement, the Recipient must pay to GeoMoby an additional amount equal to the GST payable on the supply (unless the consideration for that taxable supply is expressed to include GST). The additional amount must be paid by the Recipient at the later of the following:
- The date when any consideration for the taxable supply is first paid or provided.
- The date when GeoMoby issues a tax invoice to the Recipient.
- If, under or in connection with this Agreement, GeoMoby has an adjustment for a supply under the GST law which varies the amount of GST payable by GeoMoby, GeoMoby will adjust the amount payable by the Recipient to take account of the varied GST amount. GeoMoby must issue an adjustment note to the Recipient within 28 days of becoming aware of the adjustment.
- If a Party is entitled to be reimbursed or indemnified under this Agreement, the amount to be reimbursed or indemnified is reduced by the amount of GST for which there is an entitlement to claim an input tax credit on an acquisition associated with the reimbursement or indemnity. The reduction is to be made before any increase under clause 15.3. An entity is assumed to be entitled to a full input tax credit on an acquisition associated with the reimbursement or indemnity unless it demonstrates otherwise before the date the reimbursement or indemnity is made.
- This clause will not merge on completion and will survive the termination of this Agreement by either Party.
- Terms used in this clause that are not otherwise defined in this Agreement have the meanings given to them in the GST Act.
- A Party shall not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.
- A Party shall not be in breach of clause 16.1 in circumstances where disclosure is:
- to a Related Body Corporate of a Party;
- to the extent required, to a court of law, stock exchange, government department or regulatory authority having jurisdiction or pursuant to any necessarily applicable legislation or regulation;
- to the extent that disclosure must be made to legal advisers, auditors or other consultants who need to know the Confidential Information solely for the purposes of this Agreement; or
- to any other person to whom the disclosing party has agreed in writing that the Confidential Information may be disclosed.
- Each Party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other Party’s Confidential Information.
- Notwithstanding any other provision of this clause, GeoMoby may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its Related Entities, solicitors, auditors, insurers or accountants, and shall ensure that every person to whom that disclosure is made uses that information solely for the purposes of advising or reporting to GeoMoby.
- This clause shall survive the termination of this Agreement.
LIABILITY AND INDEMNITIES
- GeoMoby indemnifies the Client against any Claim made by GeoMoby’s employees or agents arising out of the performance of this Agreement, except the liability of GeoMoby under any indemnity of this Agreement will be reduced proportionately to represent the share of responsibility that GeoMoby has for the action, claim or demand according to the extent to which GeoMoby’s (or its employees or agents) breach of any provision of the Agreement or GeoMoby’s (or its employees or agents) negligent or wrongful acts or omissions caused or contributed to the action, claim or demand in the course of providing the Services to the Client and the User.
- The Client shall at all times indemnify and hold harmless GeoMoby and its officers, employees and agents from and against any Claims, loss (including reasonable legal costs and expenses), damage or liability incurred or suffered by GeoMoby arising from or connected to any direct or indirect:
- breach by the Client (or a User) of its obligations under this Agreement;
- any wilful, unlawful or negligent act or omission of the Client or a User; or
- damage, or destruction, (or any other like action) to any GeoMoby System (or any part thereof) or associated Goods.
- The Client indemnifies GeoMoby, its servants and agents against any claim or proceeding that is made, threatened or commenced, and any cost, liability, loss (including consequential loss), damage (including to any property or third party property) or expense (including legal and other professional costs on a full indemnity basis) that GeoMoby incurs or suffers or may incur or suffer, as a direct or indirect result of a breach of this Agreement by the Client.
- In the event that an insurance policy held by GeoMoby (or its agents) does not cover the loss or liability of GeoMoby or its employees or agents in relation to the Services, or any indemnity given under this Agreement, and notwithstanding any other provision to the contrary in this Agreement, GeoMoby’s total and maximum aggregate liability to the Client, howsoever arising out of or related to or in connection with the performance or non-performance of this Agreement (in contract, rort or otherwise) irrespective of cause will be limited to [$10,000].
- Except to the extent that GeoMoby is liable at law in the absence of this Agreement, GeoMoby shall be under no liability to the Client or a User in respect of any loss or damage (including Consequential Loss) or personal injury (including sickness and death) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to this Agreement or in respect of a failure or omission on the part of GeoMoby to comply with its obligations under this Agreement.
- To the maximum extent permitted by law, neither party will have any liability to the other for fines, penalties, taxes (except GST) and any exemplary, aggravated or punitive damages, or any indirect or Consequential Loss except where such losses are covered by an insurance policy held by the party.
- To the maximum extent permitted by law, GeoMoby excludes any condition or warranty which would otherwise be implied in this Agreement
- Where legislation implies in this Agreement any condition or warranty, and that cannot be excluded, then the liability of GeoMoby for any breach of such condition or warranty shall be limited, at the option of GeoMoby, to one or more of the following:
- if the breach relates to goods:
- the replacement of the goods and, in the case of replacement of componentry supplied by a third party, to the extent limited by any manufacturer’s warranty expressed or implied or qualified under any supply contract made with GeoMoby or the supply of equivalent goods;
- the repair of such goods and, in the case of the requirement for repair of componentry supplied by a third party, to the extent limited by any manufacturer’s warranty expressed or implied or qualified under any supply contract made with GeoMoby;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; and
- if the breach relates to Services:
- the re-supply of the Services; or
- the payment of the reasonable cost of having the Services re-supplied.
- if the breach relates to goods:
REPRESENTATIONS AND WARRANTIES
- Subject to clause 19.2, the Client warrants that it has not relied on any representation made by GeoMoby which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including any proposals, website or publicity material produced in GeoMoby.
- The Client acknowledges that to the extent GeoMoby has made any representation which is not otherwise expressly stated in this Agreement, the Client has been provided with an opportunity to independently verify the accuracy of that representation.
- This Agreement shall remain in full force and effect until terminated in accordance with this Agreement.
Termination by GeoMoby
- GeoMoby may terminate this Agreement immediately by notice in writing if:
- the Client is in breach of any term of this Agreement and such breach is not remedied within thirty (30) days of written notice by GeoMoby;
- the Client becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
- the Client, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
- the Client, being a natural person, dies; or
- the Client ceases or threatens to cease conducting its business in the normal manner.
- If notice is given to the Client, GeoMoby may, in addition to terminating the Agreement:
- deactivate the Client’s access and use of the GeoMoby System (without being liable in trespass or detinue) and repossess any of its property in the possession, custody or control of the Client;
- retain any moneys paid;
- terminate or suspend access to Services and refuse to disclose any passwords;
- charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
- be regarded as discharged from any further obligations under this Agreement; and
- pursue any additional or alternative remedies provided by law.
Termination by the Client
- Without prejudice to any other rights the Client may have under this Agreement, or at law, the Client may terminate this Agreement if:
- after expiry of the Term, GeoMoby receives a written termination notice not less than ninety (90) days prior to the date the Client requested for termination; or
- GeoMoby is in breach of any term and such breach is not remedied within thirty (30) days of written notice by the Client.
- If GeoMoby fails to remedy a failure to provide Services in accordance with this Agreement, the Client must provide notice in writing that GeoMoby has twenty (20) Business Days to remedy the failure or the agreement will be terminated. If at the end of twenty (20) Business Days GeoMoby has failed to remedy the situation, the Client may terminate this Agreement.
PAYMENT ON TERMINATION
- Upon termination of this Agreement, the Client indemnifies GeoMoby for, and must pay to GeoMoby on demand:
- all unpaid due and overdue payments, including any accrued interest for late payments; and
- all amounts for work performed up to the date of termination.
- The Client must compensate GeoMoby in respect of any breach of an essential term of this Agreement and GeoMoby is entitled to recover damages from the Client in respect of any breach and GeoMoby’s entitlement under this clause is in addition to any other remedy or entitlement to which GeoMoby is entitled, including the right to terminate the Term.
- If the Client conduct, whether acts or omissions, constitutes a repudiation of this Agreement or of the Client’s Obligations or constitutes a breach of any of the Client’s Obligations, the Client must compensate GeoMoby for the loss or damage (including legal costs on a full indemnity basis) suffered by reason of the repudiation or breach.
- GeoMoby is entitled to recover damages against the Client in respect of repudiation or breach of any of the Client’s Obligations for the damage suffered by GeoMoby during the entire Term.
- GeoMoby’s entitlement to recover damages is not affected or limited by any of the following:
- election to terminate the Term by GeoMoby; or
- acceptance of the Client’s repudiation by GeoMoby;
- GeoMoby is entitled to institute legal proceedings claiming damages against the Client in respect of the entire Term including the periods before and after the termination, repudiation or acceptance of repudiation referred to in clause 22.5 whether the proceedings are instituted either before or after that conduct.
- If GeoMoby terminates this Agreement, GeoMoby must take reasonable steps to mitigate its damages. GeoMoby’s entitlement to damages must be assessed on the basis that GeoMoby should have observed the obligation to mitigate damages contained in this clause 17 but GeoMoby’s conduct taken pursuant to the duty to mitigate damages does not by itself constitute acceptance of the Client breach or repudiation.
- Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.
- If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended until such Force Majeure event ends or is reasonably resolved.
- GeoMoby may sub-contract the performance of this Agreement or any part of this Agreement.
- GeoMoby may, without the consent of the Client, engage individuals on a sub-contract or consultancy basis, whether operating under a corporate structure, to assist in the provision of the Services.
- Each Party must ensure that the its representative:
- has the authority to receive directions on behalf of the Party; and
- has the authority of the Party to carry out the overall co-ordination and supervision of the obligations under this Agreement.
- If the Client’s representative knows of a matter, that knowledge is taken to also be within the knowledge of the Client.
- Defined terms in this clause 19 have an equivalent meaning to the same defined terms in the Personal Property Securities Act 2009 (Cth).
- The Client (the “Grantor”) grants to GeoMoby (the “Secured Party”) the Securities for the purpose of securing the Grantor’s Fees’ the Secured Party pursuant to this Agreement.
- The Secured Party may at any time register a Financing Statement or Financing Change Statement in respect of a Security Interest and the Grantor waives the right to receive notice or a Verification Statement in relation to any registration on the register of a Security Interest.
- The Grantor undertakes to:
- do anything (in each case, including executing any new document or providing any information) that is required by the Secured Party for the purposes of perfecting and maintaining the Secured Party’s perfected Security Interests on the PPSR; and
- not register a Financing Change Statement in respect of a Security Interest contemplated or constituted by these terms and conditions in its own favour or that of a third party without the Secured Party’s prior written consent.
- This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
- The documents comprising this Agreement shall be read in the following order of precedence:
- the Agreement Details;
- the clauses of this Agreement;
- the Proposal;
- the Schedules; and
- any annexures.
- Where any conflict occurs between the provisions contained in two or more of the documents forming this Agreement, the document lower in the order of precedence shall where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions shall be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.
ASSIGNMENT AND NOVATION
- The benefit of this Agreement shall not be assigned by the Client without GeoMoby’s written consent.
- GeoMoby may consent to the assignment or novation of this Agreement by the Client subject to such conditions as it chooses to impose.
- The benefit of this Agreement may be assigned by GeoMoby without the Client’s written consent.
- No Term of this Agreement shall be deemed to be waived except by notice in writing signed by each Party.
- A waiver made by the either Party pursuant by clause 30.1 will not prejudice its rights in respect of any subsequent breach of the Agreement by the other Party.
- Subject to clause 30.1, any failure by the either Party to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by either Party to the other Party, will not be construed as a waiver of the first Party’s rights under this Agreement.
- Each Party shall sign all documents and do all things necessary or desirable to give effect to this Agreement and will procure its officers, employees and agents to declare, make or sign all documents and do all things necessary or desirable to give full effect to this Agreement.
- In addition to and notwithstanding any other obligation whether under this Agreement, each Party will:
- to the extent practical, cooperate with the other Party in the pursuit of the objectives of this Agreement;
- pursue best practice in the performance of obligations in this Agreement; and
- as soon as practicable, consult with the other Party on any matter arising which may materially affect the performance by the other Party of its obligations under this Agreement.
- Except to the extent stated to the contrary in this Agreement, any consent, approval, condition or thing required to be done pursuant to this Agreement shall not be capriciously or unreasonably reached, withheld, given or carried out by either Party.
- If any dispute arises out of or in connection with this Agreement or the interpretation of its terms (“Dispute”), a Party may not commence any court proceedings relating to a Dispute unless this clause has first been complied with, except where that Party seeks urgent interlocutory relief.
- A Party claiming that a Dispute has arisen under or in relation to this Agreement must give notice in writing to the other Parties specifying the nature of the dispute.
- On receipt of that notice by the other Parties, all the relevant Parties must use their best endeavours to expeditiously resolve the Dispute.
- If the Parties have not resolved the Dispute within ten (10) Business Days of receipt of the notice referred to in clause 32.2, or further period as is agreed in writing by them, the dispute must (at the instigation of any Party) go to mediation in accordance with this clause.
- The mediator appointed to resolve the Dispute will be:
- either as agreed in writing by the Parties or failing agreement within five (5) days of a request by any Party to do so, then;
- as appointed by the President for the time being of the Law Society of Western Australia, or their nominee.
- The mediation will be confidential with the costs of the mediator being borne equally by the Parties to the Dispute and each Party must bear its own legal costs.
- If mediation does not resolve the dispute:
- after twenty (20) Business Days, or any longer period as agreed to by the Parties in writing; or
- an earlier date as the mediator notifies the Parties in writing that the mediation is at an end;
- Any Party may give notice in writing to the other Parties that the mediation has not resolved the dispute and that they intend to commence proceedings in court.
- If the Dispute is not resolved at mediation then each Party is at liberty to claim their costs against the other Parties, including the costs referred to in clause 32.6, in any subsequent court proceedings.
- In the event of any part of this Agreement being or becoming void or unenforceable then that part shall be severed from this Agreement to the intent that all parts that shall not be or become void or unenforceable shall remain in full force and effect and be unaffected by any severance.
SURVIVAL OF AGREEMENT
- Subject to any provision to the contrary, this Agreement shall continue to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but shall not continue to the benefit of any other persons.
- The covenants, conditions and provisions of this Agreement which can have effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.
- This Agreement will be governed by the laws of Western Australia and the Parties submit themselves to the exclusive jurisdiction of that State.
- Notices under this Agreement may be delivered by hand, by mail or electronic mail to the addresses specified in the Details.
- Notice will be deemed given:
- in the case of hand delivery, upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;
- in the case of posting, three days after despatch; and
- on the next Business Day following the day on which it was sent – if it is sent by e electronic mail transmission after normal business hours on a Business Day or on a day other than a Business Day.
- Each Party must promptly notify the other Party of any change to their electronic mail address or any other such information supplied by them.
SCHEDULE 3 –SERVICE LEVEL AGREEMENT METRICS
- GeoMoby shall achieve the following Service Level metrics in the provision of the Products/Services under this Agreement.
Availability & Reporting
- Availability: GeoMoby guarantees that the GeoMoby’s platform shall achieve a minimum 97% availability as measured on a quarterly basis. This level of availability translates to no more than 64.6 hours of downtime in a 3-month period.
- The Platform shall be considered available when the Client user is able to log in to the Platform and access all functionality included in an Order or as approved by the Client In a Customer Agreement.
- The following downtime events shall not be included in the availability calculation:
- Scheduled site maintenance.
- Maintenance provided at the request of the Client.
- Inability of Client to access the GeoMoby Platform due to their own data connectivity issues such as an ISP outage or network routing issues.
- Outages beyond GeoMoby’s control including external Internet and or PSTN providers that are not included in the Services.
- Reporting: In addition to any other reporting requirements in this Agreement, GeoMoby shall issue a monthly report detailing all outage events affecting this Agreement or Customer Agreements together with a statement of Availability for that month and for the current quarter.
Service Issue Response Time
- Response time is defined as amount of time between Customer reporting a service issue and GeoMoby appropriately acknowledging that service issue. It does not mean the actual time to resolve the outage to the Products. If the Customer is reporting or experiencing a major problem (e.g., Platform outage), GeoMoby will begin troubleshooting and give Customer a response back within 24 hours. The response will include an acknowledgement of the incident, assigned trouble ticket number, general overview of the outage and contact information for the incident.
Performance of Consulting Work
- Should the Client place and Order for optional Consulting work under this agreement, GeoMoby shall, unless otherwise agreed by relevant parties, commence that consulting work within 24 hours of written agreement of the consulting scope of work.
- Should the Client place an Order for the services of GeoMoby’s Personnel for itself or on behalf of a Client, GeoMoby shall, make that Personnel available at a staging site chosen by the Client within 2 weeks (14 days) of the request.
Remote Desk Service Provision
- GeoMoby shall make available a phone, email or other electronic communication media accessible Help Desk facility based in a location of GeoMoby’s choosing between 8:00am and 5:00pm weekdays in the time zone of that location. During the above noted hours of operation, this Help Desk shall be always available with no further restrictions to its access.
- This Help Desk shall provide technical support, training and issue resolution services relating to the Client’s use of the Products. The Help Desk shall be provided in English language.
- The support package agreed on in this agreement completes this provision section.