Permission to use the Services offered by Telemax is conditional upon you, the customer, agreeing to the Terms and Conditions set out below. The Services are only offered to you on condition that you read and accept all the Terms and Conditions set out below. Acceptance will bind you to the Terms and Conditions. By clicking “I Accept” at the end of these terms and conditions, you will be deemed to have accepted the following Terms and Condition. If you do not wish to accept the Terms and Conditions, you must not click “I Accept” and you may not access or otherwise use the Services offered by Telemax.
1.1 In this Agreement, unless the contrary intention appears:
“Additional Charge” means a charge in accordance with Telemax’s standard rates in effect from time to time;
“Additional Monitored User” means Monitored Users which are in addition to the Maximum Monitored Users;
“Additional Services” means services which do not fall under the scope of the Service and includes without limitation:
• Customer specific workflows or system modifications;
• consulting support;
• disbursements for expenses associated with providing the Services and Additional Services (including travel and accommodation);
“Agreement” means this agreement and all Schedules to it;
“Authorised User” means employees, agents or independent contractors of the Customer who are authorised by the Customer to access the Website and monitor Monitored Users in the relevant Billing Period, in accordance with this Agreement;
“Billing Period” means the billing period set out in the Schedule.
“Commencement Date” means the date so specified in the Schedule.
“Confidential Information” means in the case of Customer, Customer Data and in the case of Telemax includes:
(a) all information treated by Telemax as being confidential;
(b) information and material which by its nature is confidential;
(c) information relating to the Services ;
(d) information relating to the personnel, policies, business, systems and data of Telemax; and
(e) information relating to the terms on which the Services are to be provided to Customer pursuant to this Agreement;
“Customer Access Facilities” means telecommunications, networks, systems and any other facilities used or required by or on behalf of Customer for accessing and making use of any Services and Hardware.
“Customer Data” means the data associated with or obtained from Monitored Users and data inputted or uploaded by the Customer, Authorised Users, or Telemax on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
“Customer Hardware” means the hardware provided or otherwise supplied by the Customer for the purpose of using the Services or facilitating the Customer’s use of the Services.
“Data Retention Period” means the data retention period specified in the Schedule;
“Domain Name” means the domain name set out in the Schedule or such domain notified by Telemax to the Customer from time to time.
“Force Majeure” means a circumstance beyond the reasonable control of Telemax which results in Telemax being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited it:
(a) any faults, defects, incorrect operation of or other circumstance affecting or relating to Customer Access Facilities, the Internet Service Provider or the Internet Hosting Service Provider; and
(b) 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 strikes.
(c) the same as in the GST Law;
(d) any other goods and services tax, or any tax applying to this transaction in a similar way; and
(e) any additional tax, penalty tax, fine, interest or other charge under a law of such a tax;
“GST Law” means the same as “GST Law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Hardware” means the Customer Hardware and the Telemax Hardware;
“Initial Term” means the period so specified in the Schedule;
“Internet Hosting Service Provider” means the person engaged by Telemax to host the Website;
“Internet Service Provider” means the person engaged by Telemax to grant internet access to the server which hosts the Website;
“Intellectual Property Rights” means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how, instructions, procedures, and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application;
“Maximum Monitored Users” means the maximum number of Monitored Users specified in the Schedule;
“Monitored Users” means automobiles, employees, agents or independent contractors of the Customer which are monitored through the Hardware in accordance with this Agreement;
“PPS Regulations” means the Personal Property Securities Regulations 2010 (Cth).
“PPS Act” means the Personal Property Securities Act 2009 (Cth).
“PPSR” means the Personal Property Securities Register established under the PPS Act.
“Renewal Term” means any additional terms under this Agreement;
“Schedule” means a schedule to this Agreement;
“Security Interest” means:
(a) a security interest under the PPS Act;
(b) any other mortgage, pledge, lien or charge; and
(c) any other interest or arrangement of any kind that in substance secures the payment of money or the performance of an obligation, or that gives a creditor priority over unsecured creditors in relation to any property.
“Services” means the subscription services provided by Telemax to the Customer under this Agreement to monitor Monitored Users and allow Authorised Users to access and use the Website;
“Subscription Fee” means the subscription fee listed in the Schedule;
“Subscription Term” means the Initial Term and any Renewal Term;
“Telemax Hardware” means any hardware provided by Telemax in accordance with this Agreement as specified in the Schedule;
“Total Fee” means the total value of the Subscription Fees payable under this Agreement for the Initial Term;
“Website” means the Website being hosted at the Domain Name by Telemax.
2.1 In this Agreement, unless the contrary intention appears:
(a) the clause headings are for ease of reference only and shall not be relevant to interpretation;
(b) a reference to a clause number is a reference to its subclause;
(c) words in the singular number include the plural and vice versa;
(d) words importing a gender include any other gender;
(e) a reference to a person includes bodies corporate and unincorporated associations and partnerships;
(f) a reference to a clause is a reference to a clause or subclause of this Agreement;
(g) a reference to a subclause is a reference to a subclause of the clause in which that reference is made;
(h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(i) a reference to a Schedule include a reference to any part of that Schedule which is incorporated by reference;
(j) the recitals to this Agreement do not form part of the Agreement’
(k) monetary references are references to Australian currency.
3 PROVISION OF ACCESS / HARDWARE
3.1 In consideration of payment of the Subscription Fee from the Customer to Telemax, Telemax will, during the Subscription Term:
(a) supply the Services to the Customer; and
(b) supply the Telemax Hardware to the Customer;
solely for the Customer’s internal use, subject to and in accordance with the terms and conditions of this Agreement.
3.2 Telemax acknowledges that the Customer may use its own hardware (the “Customer Hardware”) in association with the Services.
4 SUBSCRIPTION FEE
4.1 The Customer must pay Telemax the Subscription Fee as set out in the Schedule.
4.2 The Customer acknowledges and accepts that the minimum amount payable to Telemax under this Agreement is the Total Fee and the Total Fee is payable regardless of the early termination of this Agreement.
4.3 Subscription Fees are based on Billing Periods.
4.4 Subscription Fees are payable, in advance, for the Services and are based on the number of Monitored Users (regardless of whether those users use Telemax Hardware or Customer Hardware), the number of pieces of Telemax Hardware provided to the Customer by Telemax and the number of Authorised Users.
4.5 Telemax reserves the right to charge further Subscription Fees for any Additional Monitored Users which are in addition in addition to the Maximum Monitored Users and any additional Telemax Hardware provided to the Customer by Telemax during the Subscription Term.
4.6 If any Additional Monitored Users or Telemax Hardware is added in the middle of a Billing Period, the Subscription Fee will be charged, for that entire Billing Period, in arrears, for each Additional Monitored User or piece of Telemax Hardware.
4.7 The Customer must pay Telemax such Additional Charges as Telemax invoices from time to time for the supply of Additional Services or (without limiting Telemax’s remedies at law) which were either required by Customer or incurred by Telemax as a result of carrying out any works which were reasonably appropriate in connection with Customer’s non-performance of this Agreement.
4.8 Telemax will issue the Customer with an invoice within fourteen (14) days of the start of each Billing Period or earlier in the event that Additional Monitored Users are added or additional Telemax Hardware is supplied. Unless otherwise stated on the invoice or otherwise agreed between the parties, Telemax will charge the full amount of the invoice to the Customer’s credit card fourteen (14) days after the invoice date and the Customer consents to that amount being charged to its credit card and authorises Telemax to charge that amount to its credit card.
4.9 If the Customer disputes the whole or any portion of an invoice submitted by Telemax, the Customer must notify Telemax in writing (within seven (7) days of receipt of invoice) of the reasons for disputing the remainder of the invoice and the undisputed amount will be charged by Telemax to the Customer’s credit card. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then the Customer must pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in this Agreement (and at the rate of interest specified in the Schedule).
4.10 Telemax may, at its sole discretion, increase all fees payable under this Agreement including, without limitation the Subscription Fee, upon 90 days’ prior notice to the Customer.
4.11 In the event that any fees or charges are payable by Telemax for any failed attempt to charge an amount to a credit card provided by the Customer to Telemax, the Customer must pay Telemax those fees and charges within 7 days of a demand by Telemax to do so.
4.12 The Customer must pay Telemax interest on any amount due and not paid by the Customer within the time required by this Agreement at the rate of interest specified in the Schedule.
4.13 In addition to paying the Subscription Fee and any other amount payable under or in connection with this Agreement (which are exclusive of GST), the Customer will:
(a) pay to Telemax an amount equal to any GST payable for any supply by Telemax in connection with this Agreement; and
(b) make such payment either on the date when the Subscription Fee or other amounts due under this Agreement is due within seven (7) days after the Customer is issued with a tax invoice or within seven (7) days after Telemax’s request, whichever is the later.
4.14 To the extent permitted by law:
(a) neither the Subscription Fees nor the Total Fees are refundable either in whole or in part.
(b) if this Agreement terminates for any reason or expires, any amount of the Total Fees which has not yet been paid to Telemax will become immediately due and payable.
5 TELEMAX OBLIGATIONS
5.1 Subject to the terms of this Agreement, Telemax will use commercially reasonable efforts to ensure the Services and Telemax Hardware are functional and available 24 hours a day, seven days a week, except for:
(a) scheduled downtime, or
(b) any unavailability caused by circumstances beyond the reasonable control of Telemax, including without limitation, Force Majeure events.
5.2 Telemax may access and or configure the Services, the Hardware, Website and its system and determine the nature and manner of the Services and its technical support in its discretion. The Customer agrees to comply with such access and use procedures (including as to communications and security) as Telemax notifies the Customer from time to time.
5.3 From time to time the Customer may request that Additional Services be provided by Telemax. The Customer accepts that Additional Services are charged at an Additional Charge and include any disbursement cost to Telemax. Telemax may amend its Additional Services and Additional Charges in its sole and absolute discretion from time to time.
5.4 The Customer agrees that it is fully responsible for the Customer Hardware and the Customer Access Facilities and that Telemax accepts no responsibility for the Customer Hardware or the Customer Access Facilities.
6 CUSTOMER OBLIGATIONS
6.1 The Customer warrants to Telemax that the Customer will:
(a) provide Telemax with all necessary co-operation and will comply with all reasonable directions given by Telemax in relation to this Agreement;
(b) be responsible for ensuring it fully complies with this Agreement;
(c) be responsible for providing and maintaining its own Customer Access Facilities;
(d) ensure that Monitored Users are automobiles, employees, agents or independent contractors of the Customer;
(e) ensure that Authorised Users are employees, agents or independent contractors of the Customer;
(f) only use the Services and Telemax Hardware for internal use and not offer, supply or otherwise provide the Services or Telemax Hardware to any third party;
(g) hold the primary and absolute duty of care towards its Authorised Users, Monitored Users and all those involved with the conduct of the Customer’s business;
(h) ensure that the Services and any Telemax Hardware are only accessible, and is only accessed by Authorised Users;
(i) ensure that any Telemax Hardware is only accessible, and is only accessed by Monitored Users;
(j) ensure that its Authorised Users and Monitored only use the Services and Telemax Hardware in accordance with this Agreement;
(k) be fully liable for any Authorised User’s breach of this Agreement;
(l) use commercially reasonable efforts to prevent unauthorised access to or use of the Services, and notify Telemax promptly of any such unauthorised access or use;
(m) obtain and maintain all necessary licences, consents, and permissions necessary for the Customer and its Authorised Users to use the Services and perform their obligations under this Agreement;
(n) only use the Services and Hardware in accordance with applicable laws and government regulations and in accordance with this Agreement;
(o) provide Telemax will all necessary access which may be required by Telemax in order for Telemax to render the Services, including without limitation, Customer Data, security access information and configuration information;
(p) comply with Telemax’s reasonable directions in respect of the Services and Hardware; and
(q) notify Telemax immediately on becoming aware of any unauthorised use, theft, loss or copying of the whole or any part of the Services or Hardware.
6.2 The Customer warrants to Telemax that the Customer will not:
(a) make the Services available to any person who is not an Authorised User;
(b) make any Telemax Hardware available to any person who is not a Monitored User;
(c) use the Services or any Hardware to store, upload or transmit infringing, libellous, sexually explicit, discriminatory, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
(d) interfere with or disrupt the integrity or performance of the Services, Hardware or the system or network from which the Services are provided or on which the Hardware is installed;
(e) attempt to gain unauthorised access to the Services or Telemax Hardware;
(f) use the Services or any Telemax Hardware for any purpose except in accordance with this Agreement;
(g) use the Services or Telemax Hardware to:
(i) provide services or Telemax Hardware to third parties;
(ii) distribute unsolicited electronic messages;
(iii) distribute viruses, malware or any other material which may interfere with or disrupt the integrity or performance of the Services, Hardware or the system or network from which the Services are provided or on which the Hardware is installed;
(h) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or Hardware available to any person except the Authorised Users or Monitored Users respectively;
(i) use the Services in any way that could damage the reputation or goodwill of Telemax, or the goodwill or other rights associated with the Services or Hardware;
(j) access or reproduce the Services or Hardware to create any derivative works or works which compete with the Services, or permit any third party to do so;
(k) distribute or transmit any part of the Services by any means;
(l) de-compile, disassemble or otherwise reverse engineer the Services or Hardware or permit any third party to do so;
(m) modify, remove or circumvent any markings, copyright or proprietary notices on, or security measures protecting, the Services, Hardware, or permit any third party to do so; or
(n) use the Services or Hardware in any way that could otherwise be regarded by Telemax, on reasonable grounds, to be unacceptable (Telemax may from time to time notify the Customer of the circumstances which Telemax regards as unacceptable).
6.3 The Customer agrees that the access rights of any Authorised User permitted to use the Services cannot be shared or used by anyone other than the Authorised User.
6.4 The Customer agrees to comply with any notice from Telemax (giving at least 30 days in advance) for any changes to Telemax’s practices, policies and limits relating to disk storage space.
6.5 The Customer agrees that there are limitations to the Services’ and Hardware’s ability to assist in Customer’s business, monitor Monitored Users and to log activities. The Customer agrees that the Services and Hardware:
(a) do not detect faulty, incorrect or abnormal input data;
(b) may not take into account all of the matters that should be considered in decision making regarding matters of relevance to Customer’s business;
(c) does not log all information regarding the activity of automobiles;
(d) may use third party content providers which may not warrant that their products will be reliable, uninterrupted or error-free;
(e) may not meet the Customer’s requirements;
and should not be used as a substitute for Customer’s independent and appropriately qualified policies, recording activities or decisions regarding matters of relevance to Customer’s business.
6.6 Third party facilities, including software programs, may be necessary or appropriate for access to or use with the Services and Hardware. The Customer agrees that its right to make any use of such facilities is governed by the terms of the relevant third party licence/services agreement and not by this Agreement.
6.7 The Customer agrees that Telemax cannot control and will not be liable for the integrity, functionality, reliability, appropriateness of such facilities or the Customer’s Hardware.
6.8 The Customer shall be responsible for providing and maintaining its own Customer Access Facilities.
6.9 The Customer warrants and must ensure that all Customer Access Facilities meet security and other standards required by Telemax from time to time and are and will remain free from any circumstances (including viruses) which may adversely affect Telemax, the Services, the Hardware and are otherwise reasonably appropriate for use in conjunction with the Services.
6.10 Telemax may, without liability to the Customer, immediately suspend all or any part of the Services, and remove or disable access to anything that contravenes this clause or is otherwise in breach of this Agreement.
7 CUSTOMER DATA
7.1 Nothing in this Agreement should be construed as a transfer of ownership of the Customer’s Data. The Customer owns all rights, title and interest in and to all of the Customer Data and has the sole responsibility for the legality, reliability, integrity, input, accuracy and quality of the Customer Data.
7.2 Telemax agrees, on the terms of clause 11 (Confidentiality) that the Customer Data is the Customer’s Confidential Information.
7.3 The Customer acknowledges and accepts that Telemax may de-personalise the Customer Data and use the Customer Data to create statistics. This sub-clause survives termination or expiry of this Agreement for any reason.
7.4 The Customer acknowledges and agrees that:
(a) Telemax will retain the Customer Data for the duration of this Agreement and any Data Retention Period;
(b) Telemax does not make backup copies of the Customer Data and that the Customer is fully responsible for the creation of backups of its Customer Data;
(c) Telemax is not responsible for any loss of data caused by circumstances beyond the reasonable control of Telemax;
(d) the Customer has sole responsibility for the accuracy, quality, integrity, legal compliance, input, reliability, appropriateness and rights ownership in all Customer Data.
7.5 Telemax shall on reasonable notice make Customer Data and related data, documentation or records maintained on behalf of the Customer available for inspection by the Customer or the Customer’s nominee.
7.6 The Customer agrees to pay any Additional Charge invoiced by Telemax in respect of the services provided pursuant to the clause 7.4(d).
8.1 The Customer acknowledges that:
(a) Telemax may use an Internet Hosting Service Provider to host the Website or use an Internet Service Provider to provide access to the server hosting the Website; and
(b) hosting of or access to the Website may be subject to the service level agreement between Telemax and the Internet Hosting Service Provider or the Internet Service Provider.
8.2 Telemax is under no obligation to upgrade the Website, Services or the Hardware. The Customer acknowledges that Telemax may update or vary the Services or Telemax’s Hardware and agrees that, subject to Telemax’s obligations under this Agreement, Telemax may make such changes in its discretion.
8.3 Telemax will, at its sole discretion, from time to time, perform preventive or remedial maintenance on the Website, Services or Hardware, which may cause some or all of the Website, Services or Hardware to become unavailable or non-functional.
8.4 Telemax will endeavour to give at least 24 hours notice of such maintenance and schedule such maintenance for the mutual convenience of the parties.
8.5 The Customer acknowledges that Telemax may, with no liability to the Customer, have to perform urgent maintenance in business hours in cases where early symptoms or major faults are detected and urgent preventive maintenance action is required to limit the impact or occurrence of the fault. The Customer acknowledges that while Telemax will endeavour to inform the Customer of any unscheduled maintenance Telemax may not be able to provide notice where such urgent maintenance is required. Telemax will use its best endeavours to resume the full functionality of the Website, Services and Telemax Hardware as soon as is practicable.
8.6 To the extent permitted by law, Telemax does not warrant that the Website or the Services will be free of defects, run without interruption, be error free, meet the Customer’s expectations, function in combination with the hardware or software products of third parties, or that all program errors will be corrected. In order for a defect in the Services to be sufficiently material so as to violate this Agreement or any consumer protection laws the defect must cause the Services – while being used in the manner permitted in this Agreement – to function in a way so divergent from the usual Service level that it is unsuitable for the purpose for which it is usually used.
8.7 The Customer acknowledges that Telemax may access and monitor usage of the Services for the purposes of maintenance of the Services , including analysis of errors and installation of patches or upgrades and/or to verifying compliance with this Agreement.
9.3 Telemax may provide the Services from any location, and/or through the use of contractors, worldwide. The Customer acknowledges that by using the Services, Customer Data may be transmitted or stored outside of Australia.
9.4 Without limiting any provision of this Agreement the Customer agrees to provide any information, and to obtain any consents, relevant to its use of the Services, including those in relation to the collection, use, disclosure and storage of personal information of any individual whose personal information may be included in Customer Data.
9.5 The Customer warrants to Telemax that the Customer is authorized to distribute and release Customer Data to Telemax, and the Customer is not breaching any applicable data privacy rule or regulations, any contractual obligations, or any of its internal privacy policies by distributing and releasing the Customer Data.
10 COMPLIANCE WITH LAW
10.1 Telemax is not liable to the Customer under this Agreement or otherwise if and to the extent the Customer’s access to or use of any Services is contrary to any obligations, including those owed under contract, code of practice or any laws including any privacy laws.
10.2 Telemax is not liable to the Customer or any third party under this Agreement or otherwise to the extent that the Customer does not use or apply appropriate resources, policies, codes of practice, procedures and health and safety practices whilst conducting its business.
10.3 Telemax may (but is not bound to) make Customer Data and any other information (in any form) relevant to Customer’s relationship with Telemax under this Agreement available to any person who provides reasonable evidence to Telemax of their right to this, including government workplace health and safety officer, law enforcement officer, persons representing any professional or industry standards organisation and representatives of any person to whom Customer Data pertains.
10.4 The Customer fully indemnifies Telemax against all loss (including costs, expenses, damages and liability, whether actual or prospective) incurred or likely to be incurred as a result of:
(a) Telemax’s collection, use, disclosure, storage or other involvement with Customer Data and any other information (in any form) relevant to Customer’s relationship with Telemax under this Agreement; and
(b) acting in accordance with clause 10.3.
11.1 Neither party will, without the prior written approval of the other party, disclose the other party’s Confidential Information. However, the Customer acknowledges that Telemax may use de-personalised Customer Data at its discretion.
11.2 A party shall not be in breach of clause 11.1 for any uses or disclosures of Confidential Information which:
(a) are required by law;
(b) are to related companies, advisers, contractors, auditors or insurers; or
(c) the disclosing party can establish, have become public knowledge other than through its wrongful act or omission.
11.3 Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information whilst it is in the receiving party’s possession or control.
11.4 This clause shall survive the termination of this Agreement.
12 INTELLECTUAL PROPERTY
12.1 Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
12.2 The Customer:
(a) acknowledges that Telemax owns or licenses all Intellectual Property Rights in the Website, Services and Telemax Hardware; and
(b) must not directly or indirectly do anything that would or might invalidate or put in dispute the title or rights in the Website, Domain Name or Services.
12.3 Except as expressly stated herein, this Agreement does not grant to the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services .
13.1 Property in the Telemax Hardware does not pass to the Customer until the Total Fees have been paid to Telemax in full.
13.2 Until property in the Telemax Hardware passes to the Customer;
(a) in addition to any rights Telemax may have under Chapter 4 of the Personal Property Securities Act 2009 (Cth) and any regulations made at any time pursuant to that Act Telemax is entitled at any time until title in and to the Telemax Hardware passes to the Customer to demand the return of the Telemax Hardware and is entitled without notice to the Customer and without liability to the Customer to enter (or have its representatives enter) any premises occupied by or automobiles owned or leased by the Customer in order to search for and remove the Telemax Hardware. The Customer and its representatives must provide all reasonable assistance to Telemax and its representatives for this purpose. If there is any inconsistency between Telemax’s rights under this clause 13 and its rights under Chapter 4 of the PPS Act, this clause 13 prevails.
(b) the Customer agrees with Telemax to keep the Telemax Hardware:
(i) as fiduciary for Telemax; and
(ii) stored in a manner which clearly identifies the Telemax Hardware and shows Telemax’s ownership.
13.3 Notwithstanding clause 13.2 the Customer acknowledges that if it sells, leases or otherwise deals with the Telemax Hardware or products incorporating the Telemax Hardware before title in and to the Telemax Hardware has passed to the Customer in accordance with this Agreement, it will hold the proceeds of sale, lease or such dealing on trust for Telemax.
14 PPS ACT
14.1 The Customer acknowledges that Telemax has a security interest as defined in the PPS Act in the Telemax Equipment until title passes to the Customer in accordance with this Agreement. The parties acknowledge and agree that Telemax may register one (1) or more Security Interests in relation to the Telemax Hardware on the PPSR.
14.2 The Customer must provide all assistance necessary for Telemax to register a Security Interest, including but not limited to providing a full description of the Telemax Hardware, providing details of any serial numbers affixed or placed on any part of the Telemax Hardware and signing any documents required by us.
14.3 The parties agree that:
(a) Telemax need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPS Act, or any other provision of the PPS Act which Telemax notify the Customer after the date of this Agreement, to the extent the law permits them to be excluded;
(b) sections 142 and 143 of the PPS Act are excluded to the extent the law permits them to be excluded; and
(c) neither Telemax nor any receiver appointed by Telemax is required to provide the Customer with any other notice required under the PPS Act (including a notice of verification statement) unless the requirement to give the notice cannot be excluded.
14.4 This clause applies:
(a) despite any other clause in this Agreement; and
(b) in respect of any Security Interest which Telemax hold in relation to the Telemax Hardware, whether created under this Agreement or any other document or otherwise.
14.5 To the extent that Chapter 4 of the PPS Act would otherwise apply to an enforcement by Telemax of any Security Interest in the Telemax Hardware, Telemax need not comply with any provision of the PPS Act which the parties may contract out of in relation to the Telemax Hardware or any related Security Interest.
14.6 The parties agree not to disclose information of the kind mentioned in section 275(1) of the PPS Act, except in circumstances required by sections 275(7)(b) to (e) of the PPS Act.
14.7 The Customer agrees that it will only authorise the disclosure of information under section 275(7)(c) of the PPS Act or request information under section 275(7)(d) of the PPS Act with Telemax’s prior written consent.
14.8 The Customer acknowledges that Telemax may register one or more financing change statements in relation to any Security Interest registered by Telemax relating to the Telemax Hardware.
14.9 If permitted by the PPS Act, the Customer waives it right under section 157 of the PPS Act to receive notice of any verification statement relating to the registration of any financing change statement or any relating financing change statement.
14.10 If in Telemax’s opinion a provision of the PPS Act or PPS Regulations:
(a) adversely affects or would adversely affect Telemax’s security position or it rights or obligations under or in connection with this Agreement; or
(b) enables or would enable Telemax’s security position to be improved without adversely affecting the Customer in a material respect,
(c) Telemax may by written notice require the Customer to do anything or execute any new document that in Telemax’s opinion is necessary or desirable to ensure that Telemax’s security position is not adversely affected or is improved, as the case may be. The Customer must comply with Telemax’s requirements within the time specified in Telemax’s notice.
15.1 The Customer must not modify the whole or any part of the Services or combine or incorporate the whole or any part of Services in any other program or system without the prior written consent of Telemax.
15.2 If the Customer requests that Telemax modify the Services, the modifications will, unless Telemax directs otherwise, be made by Telemax, or its nominee, in accordance with a written proposal submitted by the Customer to Telemax.
15.3 Where the Customer requests Telemax modify the Services and/or provides intellectual property (including without limitation logos, drawings, text, photographs, plans, specifications and other content) to Telemax, which is incorporated into the Services, the Customer:
(a) accepts sole responsibility for:
(i) the modifications;
(ii) the intellectual property provided by the Customer to Telemax;
(iii) the suitability of purpose of modifications and the intellectual property;
(b) warrants to Telemax that:
(i) the Customer owns the intellectual property or has the right to provide the intellectual property to Telemax for the purposes for which it is provided to Telemax;
(ii) the intellectual property is accurate and correct in all respects and does not mislead in any way; and
(iii) does not infringe upon the intellectual property rights of any third party including any copyright, patents, designs or trade marks of any third party;
(c) grants to Telemax an irrevocable, perpetual, royalty-free licence to use the intellectual property on the Website and in the provision of the Services.
15.4 The Customer fully indemnifies Telemax and holds Telemax harmless against any liability incurred as a result of any modifications the Services and intellectual property provided to Telemax by the Customer.
15.5 The Services as modified remains the property of Telemax or its licensor, as the case may be.
15.6 This Agreement shall continue to apply to the Services as modified.
16 INDEMNIFICATION, LIMITATION OF LIABILITY AND WARRANTY
16.1 Subject to clause 16.2, the Customer fully indemnifies Telemax and keeps Telemax fully indemnified from and against any direct loss, cost or liability (including a claim made by a third party) that has been incurred by Telemax to the extent to which this is directly caused by or contributed to by:
(a) a breach of this Agreement (including without limitation a breach of any warranty or obligation contained in it) by the Customer or any of its Authorised Users;
(b) misuse of the Services by the Customer or any of its Authorised User;
(c) any infringement by the Customer or any of its Authorised Users of the Intellectual Property Rights of a third party; and
(d) any wilful, unlawful or negligent act or omission of the Customer or any of its Authorised Users.
16.2 The Customer’s indemnities given under this Agreement exclude any claims to the extent that they arise out of the unlawful or negligent acts or omissions of Telemax.
16.3 Telemax is not liable under this Agreement for circumstances for which it is not responsible, including, without limitation:
(a) Force Majeure events;
(b) non-compliance with the provisions of this Agreement;
(c) unauthorised modifications to or interference with the Software or Website, by the Customer, its Authorised Users or third parties;
(d) errors in the operation of the Services or the Website by the Customer, its Authorised Users or third parties; or
(e) influences from systems or programs that have been provided by third parties;
(f) a modification of the Website or Services by anyone other than Telemax;
(g) any virus, malware or other material which may interfere with or disrupt the integrity or performance of the Website, Services or the system or network from which the Services are provided;
(h) the Customer’s use (including its Authorised Users) of the Services in a manner contrary to the instructions given to the Customer by Telemax; or
(i) the Customer’s use (including its Authorised Users) of the Services after notice of the alleged or actual infringement from Telemax or any appropriate authority.
16.4 The Customer agrees that the Services and the Telemax Hardware are not ordinarily obtained for personal, domestic or household use. To the extent permitted by law, Telemax’s total liability to the Customer for all losses or damages arising directly or indirectly as a result of Telemax’s performance or non performance of its obligations under this Agreement is limited, at Telemax’s sole discretion, to either:
(a) resupply of the Services and or Telemax Hardware;
(b) repair of the Services and or Telemax Hardware; or
(c) terminate this Agreement and refund to the Customer the Subscription Fees paid by the Customer to Telemax.
16.5 In the event that any refund is provided to the Customer under clause 16.4(c), due to Telemax’s non-performance, the refund will be limited to the duration of any non-performance, which will be decided in the sole discretion of Telemax, acting fairly.
16.6 Except as provided in this Agreement and to the extent permitted by law:
(a) Telemax will not be liable to the Customer for any indirect, special or consequential loss or damage of any nature whatsoever, including without limitation, loss of profits or revenue, loss of business opportunity or loss of savings or money, loss of, damage to or corruption of data (including Customer Data), resulting from this Agreement or from a breach of any of the warranties, terms, conditions or any other provision of this Agreement or from negligence or breach of statutory duty or otherwise.
(b) all conditions and warranties concerning Telemax’s performance of the Services (whether as to quality, outcome, fitness, care, skill or otherwise) expressed or implied by statute, common law, equity, trade, code of practice, custom or usage or otherwise are expressly excluded.
16.7 Telemax is not liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for the performance of any third party products or services which are used in the performance of the Services.
16.8 Each party warrants to the other that it has the right and ability to enter into this Agreement and that this Agreement will be legally binding on it.
16.9 In the event that Telemax incurs additional expenditure as a result of the Customer’s failure to comply fully with its obligations under this Agreement, Telemax has the right to charge the Customer for the costs that Telemax incurs for the analysis and rectification of the failure to comply according to the time and materials required and in accordance with the applicable rates charged by Telemax at the time.
16.10 Except as expressly and specifically provided in this agreement and to the extent permitted by law:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use.
(b) Telemax will have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Telemax by the Customer in connection with the Services, or any actions taken by Telemax at the Customer’s direction;
(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from this agreement; and
(d) the Services are provided to the Customer on an “as is” basis.
16.11 The Customer warrants that it has not relied on any representation made by Telemax which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications in any way relating to the Services including catalogues, website or publicity material produced by Telemax. The Customer acknowledges that to the extent Telemax has made any representation which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.
16.12 This clause survives termination of this Agreement by either party for any reason.
17 TERM AND TERMINATION
17.1 This Agreement commences on the Commencement Date and continues for the Initial Term and for any Renewal Term under 17.2.
17.2 This Agreement will automatically renew for an additional Term (“Renewal Term”), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant term.
17.3 The Initial Term and any Renewal Term will together be the Subscription Term.
17.4 Without limiting the generality of any other clause in this Agreement, Telemax may terminate this Agreement or suspend performance of its obligations under this Agreement (for such period as Telemax specified) immediately by notice in writing if a:
(a) Customer is in breach of any term of this Agreement and such breach is not remedied within seven (7) days of it notifying Telemax;
(b) Customer becomes, threatens or resolves to become or is, in the opinion of Telemax, in jeopardy of becoming subject to any form of insolvency administration;
(c) Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(d) Customer, being a natural person, dies; or
(e) Customer ceases or threatens to cease conducting its business in the normal manner.
17.5 Telemax may terminate this agreement with 30 days notice for convenience or immediately, if Telemax no longer holds a licence to the Services, the Telemax Hardware, Website or Domain Name.
17.6 If this Agreement is terminated for any reason, the Customer must, if requested by Telemax, comply with Telemax’s requirement for Telemax (in addition to terminating this Agreement) to:
(a) repossess any of its property in the possession, custody or control of the Customer, including any Telemax Hardware for which title has not passed to the Customer;
(b) retain any moneys paid;
(c) charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
(d) be regarded as discharged from any further obligations under this Agreement; and
(e) pursue any additional or alternative remedies provided by law.
17.7 The Customer agrees that on expiry or termination of this Agreement for any reason:
(a) all of its rights in respect of the Services (including its right to access the Services) will end;
(b) any amounts due from the Customer will become immediately payable;
(c) except in accordance with clause 7.3, each party will return and make no further use of any equipment, property, Confidential Information and other items (and all copies of them) belonging to the other party; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
17.8 If the Customer requests, and subject to the Customer having discharged all of its obligations under this Agreement, Telemax will, within the Data Retention Period after termination or expiry of this Agreement, provide the Customer with a file containing the Customer Data. Such provision of the Customer Data under this sub-clause will be charged to the Customer by Telemax at an Additional Fee.
17.9 With the exclusion of material required to be retained by law, the Customer agrees and acknowledges that Telemax has no obligation to retain any information relating to the Customer (including Customer Data) and that all such information may be irretrievably deleted by Telemax after the expiry of the Data Retention Period from the date of any suspension, termination or expiry of this Agreement.
18 FORCE MAJEURE
18.1 Telemax shall not be liable for any delay or failure to perform its obligations under this Agreement if such delay is due to Force Majeure. If a delay or failure is caused or anticipated due to Force Majeure, Telemax’s obligations will be suspended. If a delay or failure by Telemax to perform its obligations due to Force Majeure exceeds sixty (60) days, Telemax may immediately terminate the Agreement on providing notice in writing to the Customer.
18.2 If this Agreement is terminated pursuant to clause 18.1, Telemax is not liable to refund any moneys paid by the Customer pursuant to this Agreement.
19 ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
20 ASSIGNMENT AND NOVATION
The benefit of this Agreement shall not be assigned by the Customer without Telemax’s written consent. A change in control of or affecting the Customer shall be deemed to be an assignment, with “control” referring to the power to materially influence the Customer’s decision making or policies.
21 WAIVER AND VARIATION
21.1 No right under this Agreement shall be deemed to be waived except by notice in writing signed by each party. A waiver by Telemax will not prejudice its rights in respect of any subsequent breach of the Agreement by the Customer. Any failure by Telemax to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by Telemax to the Customer, will not be construed as a waiver of Telemax’s rights under this Agreement.
21.2 The provisions of this Agreement will not be varied, except by agreement in writing signed by the parties.
22.1 Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the parties or their representatives shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators & Mediators Australia. During such arbitration, both Parties may be legally represented.
22.2 Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed read down to the extent reasonably appropriate to remove the invalidity, unenforceability or illegality.
24 GOVERNING LAW
This Agreement is governed by the law applicable in Queensland. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Queensland.
25.1 Notices under this Agreement may be delivered by hand, by mail, by facsimile or by email to the addresses specified in the Schedule.
25.2 Notice will be deemed given:
(a) in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
(b) in the case of posting, three days after despatch;
(c) in the case of facsimile, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission;
(d) in the case of email, at the time of receipt of the email, namely when that email enters the receiving party’s information system (if received on a business day, or otherwise at the commencement of the first business day following that receipt).
This Agreement may be executed in counterparts by the respective parties, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged.