InnerVision – Terms and Conditions

Terms and conditions

 

  1. Any Hardware and/or Services supplied by InnerVision & InnerVision Services to the Client are subject to these terms and conditions.

  2. No terms and conditions contained in, or otherwise deemed to be applicable to the supply of Hardware and/or Services by InnerVision by, any document of the Client (including any invoice) will apply to, override or amend in any way, these terms and conditions.

  3. Any changes or amendments to these terms and conditions must be made in writing.

  4. The Client may order Hardware and/or Services from InnerVision, upon the parties agreeing and executing a Scope of Work.

  5. A separate contract will be formed upon the parties agreeing and executing a Scope of Work, consisting of:

    1. the terms of the agreed Scope of Work; and

    2. these terms and conditions which will be construed so as to apply to the contract,

(Contract).

  1. If there is any inconsistency between the documents referred to in clause 5, the documents will take precedence in the order listed in clause 5.

 

Definitions

 

  1. In these terms and conditions:

Background IP means any Intellectual Property owned by a party that was created prior to the date of these terms and conditions or was created by a party independently of these terms and conditions.

Business Day means a day that is not a Saturday, Sunday, or public holiday in Melbourne, Victoria.

Change has the meaning given in clause 18. Client means the client specified in the Scope of Work.

Confidential Information in relation to a party, means all information of a confidential nature, including its Intellectual Property, information in connection with its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include any information which is in the public domain (other than through a breach of confidence).

Consequential Loss means any indirect or consequential loss, including loss of anticipated or actual profit or revenue, loss of reputation, loss of contract, loss of opportunity, loss of production, production stoppage, or loss of data.

Contract has the meaning given to it in clause 5.

 

Data means all data generated by the Hardware and/or Software or in the performance of the Services, including in the use, operation, testing, development, or maintenance.

Defects means any non-compliance of Hardware and/or Services with the requirements of clause 11.

Defects Notice has the meaning given to it in clause 21.

Deliverables means all things, materials, documents (including any manuals) to be provided by InnerVision as part of the Services, as specified in the Scope of Work.

Fees means the fees payable for the Hardware and/or Services as specified in the Scope of Work (including any Software Licence Fees).

Force Majeure Event means any event or circumstance not within a party’s reasonable control including:

  1. acts of God, flood, drought, earthquake or other natural disaster;

  2. epidemic or pandemic, chemical or biological contamination;

  3. terrorist attack, war, civil commotion or riots;

  4. any law or any action taken by a government or public authority;

  5. fire, explosion, breakdown, or accident;

  6. failures or delays of subcontractors or suppliers; or

  7. any labour or trade dispute, strikes, industrial action or lockouts.

GST has the meaning given by section 195-1 of the GST Act or any replacement or other relevant legislation and regulations.

GST Act means A New Tax System (Hardware and Services Tax) Act 1999 (Cth).

Hardware means the hardware, equipment, products, goods, or other items to be supplied by InnerVision, as specified in the Scope of Work.

Hosted Software means any Software owned by InnerVision or licensed to InnerVision by a third party which is installed, hosted and/or accessed remotely via the internet.

Hosting Infrastructure means the hardware, software, communications services and other resources, services and facilities (whether of InnerVision or a third party provider) necessary or desirable for InnerVision’s provision of the Hosted Software.

InnerVision means InnerVision Engineering Pty Ltd ACN 168 241 610.

Intellectual Property means all intellectual property rights whatsoever, whether present or future rights, including in relation to copyright, trade marks, designs, patents, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created

 

before or after the date of these terms and conditions, and whether in Australia or otherwise.

New IP means any Intellectual Property created in the performance of a Contract.

PPSA means the Personal Property Securities Act 2009 (Cth).

Processing Charge means the processing charge payable by a user to InnerVision for each Transaction that may be retained by InnerVision, as specified in the Scope of Work.

Scope of Work means the document entitled ‘Scope of Work’ describing hardware and/or services to be supplied by InnerVision to the Client.

Security Interest has the meaning given to it in clause 49.

Services means:

  1. the provision of the Software as a service; and

  2. any other installation, maintenance, or other services (including provision of any Deliverables) to be provided by InnerVision,

as specified in the Scope of Work. Software means the software (including any Hosted Software) specified in the Scope of Work.

Software Licence Fees means the licence fees for the Software, as specified in the Scope of Work.

Software Subscription Terms means the terms, conditions, or restrictions in relation to subscriptions for the Software, as specified in the Scope of Work.

Specifications means any specifications in respect of Hardware and/or Services, as specified in the Scope of Work.

Term means the duration of the Contract, as specified in the Scope of Work.

Transaction means each transaction between a user and the Client at a Location utilising the Hardware and/or Services.

Transaction Fee means the fee payable by a user to the Client for a Transaction.

Warranty Period means a warranty period specified in the Scope of Work (if any) in relation to any Hardware or Software.

 

Interpretation

 

  1. In these terms and conditions, unless the context requires otherwise:

    1. the singular includes its plural and vice versa;

    2. words denoting any gender include all genders;

    3. where a word or phrase is defined, its other grammatical forms have a corresponding meaning;

    4. headings are for convenience only and do not affect interpretation;

    5. a reference to a person includes a corporation, trust, partnership,

 

unincorporated body or other entity, whether or not it comprises a separate legal entity;

  1. a reference to a party to these terms and conditions includes its successors and permitted assigns;

  2. a reference to a particular day or time is to that day or time in Melbourne, Australia;

  3. a reference to any agreement (including these terms and conditions) or document is to the agreement or document as amended, supplemented, novated or replaced from time to time;

  4. a reference to a clause, paragraph, schedule or annexure is to a clause, paragraph, schedule or annexure in or to these terms and conditions;

  5. a reference to these terms and conditions includes any schedules and annexures;

  6. a reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible or tangible form;

  7. a reference to dollars or $ is to Australian currency;

  8. a reference to legislation (including subordinate legislation) or a provision of it is to that legislation or provision as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;

  9. words such as ‘including’ or ‘for example’ do not limit the meaning of the words preceding them;

  10. an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally;

  11. nothing in these terms and conditions is to be interpreted against a party solely on the ground that the party or its advisers drafted it;

  12. unless expressed to the contrary in these terms and conditions, if the day on or by which a party must do something under these terms and conditions is not a Business Day, the party must do it on or by the next Business Day; and

  13. unless expressed to the contrary in these terms and conditions, if the doing of any act, matter or thing under these terms and conditions is dependent on the consent or approval of a party or is within the discretion of a party, the consent or approval may be given or the discretion may be exercised conditionally or unconditionally or withheld by the party in its absolute discretion.

 

Term

 

  1. A Contract will continue for its Term.

 

  1. The Term may be extended in accordance with the process set out in the Scope of Work (if any).

 

Supply of Hardware and/or Services

 

  1. InnerVision & InnerVision Services agrees to supply the Hardware and/or Services to the Client in accordance with:

    1. the Contract, including:

      1. the Scope of Work;

      2. the Specifications; and

      3. these terms and conditions; and

    2. applicable laws and industry standards.

 

Delivery or performance dates

  1. InnerVision Engineering & InnerVision Services will use its reasonable endeavors to meet any required dates and/or periods for delivery or performance specified in the Scope of Work. The Client acknowledges and agrees such dates and periods are indicative only and InnerVision will not be liable to the Client if InnerVision’s delivery or performance is delayed.

  2. Delayed delivery or performance by InnerVision does not entitle any right of termination, cancellation, or refusal of delivery or payment, by the Client.

  3. The Client is responsible for any costs associated with the delivery or installation of any Hardware, unless otherwise specified in the Scope of Works.

 

Client obligations

 

  1. The Client must:

    1. provide or procure InnerVision with safe and sufficient access to any site, premises, facility, or other location required for InnerVision to supply the Hardware and/or Services;

    2. provide InnerVision with the goods, services, materials;

    3. provide InnerVision with all documents and information; and

    4. perform any other obligations to be performed by the Client,

as specified in the Scope of Work.

  1. The Client must perform its obligations under clause 15 in accordance with:

    1. the requirements, and at the times, specified in the Scope of Work (or if not specified, as otherwise reasonably requested by InnerVision);

    2. these terms and conditions; and

    3. applicable laws and industry standards.

 

  1. InnerVision is not liable to the Client in connection with any Contract in relation to any failure, delay, or breach by InnerVision to supply the Hardware and/or Services if it was contributed to by any failure or delay by the Client to perform any of its obligations under clause 15, or any defect, fault, or issue in

 

anything provided by the Client under clause 15.

 

Changes

 

  1. Any change to the Hardware and/or Services as described in a Contract (including regarding their character, quality, quantity, nature, design, specification, functionality, and/or version) must be agreed in writing between the parties, including any change that may result in cost increases to InnerVision (Change).

  2. InnerVision is not required to implement, and is not bound, until a Change is agreed in writing between the parties.

  3. If the Client gives any oral or written request to InnerVision in relation to the supply of Hardware and/or Services that is not expressed to be a Change, but InnerVision considers constitutes a Change, InnerVision may notify the Client that InnerVision considers the request is a Change under the Contract. If InnerVision provides the Client with this notification, the parties must negotiate in good faith to agree to the terms of the Change, and InnerVision is not required to implement or continue performing the request until such Change is agreed, or the Client withdraws the request.

 

Defects and Warranty Period

 

  1. The Client must notify InnerVision promptly, and in any event within the Warranty Period, in writing of any Defects with sufficient details for InnerVision to understand the nature and effect of the claimed defect (Defects Notice).

  2. The Client must provide InnerVision with prompt access to the Hardware and/or the area in which the Services have been supplied in order to make an assessment of the matters notified to InnerVision by the Client in the Defects Notice.

  3. In the event that, during the Warranty Period, the Client issues a Defects Notice and InnerVision’s assessment (acting reasonably) considers that the relevant Hardware and/or Services contain a Defect, InnerVision will be responsible, at InnerVision’s election, and to extent permitted at law, for the remedy of the Defects as follows:

    1. as to Hardware, InnerVision may request that the Hardware be returned, and/or InnerVision must either refund the amount paid for the Hardware or repair or replace the Hardware; and

    2. as to Services, InnerVision may render the Services again or refund the amount paid by the Client for the Services.

  4. InnerVision is not liable to the Client in respect of any Defects which occur after the expiry, or are not notified to InnerVision within, the Warranty Period.

 

SLAs

 

  1. InnerVision must ensure that the Hardware and/or Services achieve the SLAs (if any) at a minimum.

  2. If InnerVision’s performance against an SLA does not meet the required target performance measure:

    1. if there are any rights or remedies of the Client in respect of InnerVision failing to achieve any SLAs set out in the Scope of Work, the Client is entitled to those rights or remedies; or

    2. if there are no such rights or remedies of the Client set out in the Scope of Work, then InnerVision must develop and submit a remedial plan to the Client upon request, identifying the cause of the poor performance and outlining the steps it proposes to take to improve performance against the relevant SLA. InnerVision must take all reasonable steps to comply with any remedial plan approved by the Client to achieve the relevant SLAs in the future.

  3. The rights or remedies set out in clause 26 are the Client’s sole rights or remedies in connection with InnerVision not achieving any SLA, and for the avoidance of doubt, subject to clause 26.1, failure by InnerVision to achieve an SLA does not constitute a breach of the Contract that entitles the Client to terminate the Contract.

 

Hosted Software

  1. InnerVision will:

    1. provide or procure the Client with access to the Hosted Software in the manner specified in the Scope of Work;

    2. take all reasonable steps to provide or procure and maintain the Hosting Infrastructure during the Term; and

    3. notify the Client if it is changing the provider of any material aspect of its Hosting Infrastructure.

  2. InnerVision will take all reasonable steps, including installing and maintaining adequate security features, to ensure that no unauthorised party is allowed physical or electronic access to the Hosted Software, the Hosting Infrastructure or any Data; or

  3. InnerVision must implement and maintain throughout the Term reasonable disaster recovery procedures, including back-up procedures and facilities, to ensure to the extent reasonably possible that, InnerVision’s provision of the Hosted Software through the Hosting Infrastructure continues without interruption if a disaster occurs or affecting any Hosting Infrastructure.

 

Risk and title

 

  1. The risk in the Hardware will pass to the Client on delivery to the Client, its agent or nominee, or to a carrier designated by the Client when the carrier takes possession of the Hardware.

  2. Risk in the Hardware remains with the Client while the Client is in control and/or possession of the Hardware, notwithstanding the existence of any Defects.

  3. Legal and beneficial ownership in the Hardware will be retained by InnerVision until payment for the Hardware has been received in full.

  4. If any of the Hardware are damaged or destroyed following delivery but prior to title passing to the Client, InnerVision is entitled to receive and the Client must ensure that InnerVision does receive, the proceeds from any insurance policy relating to the Hardware.

  5. The Client grants InnerVision, its employees and agents an unrestricted right and licence to enter any premises owned or occupied by the Client to identify and remove any Hardware in which InnerVision retains an ownership interest in accordance with these terms and conditions without being liable to the Client in any way or any person claiming through the Client. InnerVision shall have the right to sell or otherwise dispose of any such Hardware removed and shall not be liable to Client for any loss occasioned by any sale or disposal.

  6. As between the Client and InnerVision, InnerVision retains ownership of all Software.

 

Payment

  1. Subject to clause 38, payment of the Fees for any Hardware and/or Services must be made by the Client to InnerVision in accordance with the payment terms set out in the Scope of Work.

  2. If no payment terms are set out in the Scope of Work, payment of the Fees must be made by the Client to InnerVision within 14 days of the date of any invoice issued by InnerVision.

  3. In the event that the Client does not make any payment under a Contract by the relevant due date, InnerVision is entitled to:

    1. charge interest on a daily basis at the rate of 10% per annum on the amounts outstanding from the due date up to and including the date of payment; and

    2. suspend performance of the supply of any Hardware and/or Services under the Contract until the amounts outstanding have been paid in full.

  4. InnerVision may set off, from any amounts due by InnerVision to the Client, any amount due from the Client to InnerVision under or in connection with the Contract or any other agreement between the parties.

  5. The Fees are subject to adjustment in accordance with the mechanism as set out in the Scope of Work.

Transaction Fees and Processing Charges

 

  1. The parties acknowledge that for each Transaction at a Location the Client will charge users a Transaction Fee, and in addition to the Transaction Fee payable by a user, InnerVision will charge the user the Processing Charge.

  2. InnerVision will retain the Processing Charges per Transaction.

  3. InnerVision will periodically forward the Client the aggregate amount of all Transaction Fees received from users in the relevant period, in accordance with the payment terms specified in the Scope of Work (less any amounts refunded to users, except if InnerVision considers (acting reasonably) that the reason for the refund was caused by acts or omissions of InnerVision).

  4. The Processing Charges and/or Transaction Fees are subject to adjustment in accordance with the mechanism as set out in the Scope of Work.

 

GST

  1. Unless expressed to the contrary in this agreement, all prices and amounts (including any monetary or non-monetary consideration required to be provided under these terms and conditions) are exclusive of GST.

  2. If GST is payable in respect of a supply made under or in relation to these terms and conditions, the recipient must pay to the supplier an amount (GST Amount) equal to the GST payable on the supply. The GST Amount is payable by the recipient in addition to and at the same time as any consideration for the supply, provided the supplier has given the recipient a tax invoice.

  3. Without limiting clause 46, if a party (payer) is required to reimburse another party (payee) for a cost (eg, if the payer is obliged to pay the payee’s legal costs), or a payer is obliged to make a payment to a payee under an indemnity, the reimbursement or indemnity is for the payee’s cost inclusive of GST but excludes any GST component of the cost for which the payee is entitled to claim an input tax credit.

  4. If an adjustment event arises in respect of a taxable supply, the GST Amount payable by a recipient under clause 46 will be recalculated to reflect the adjustment event and a payment will be made by the recipient to the supplier, or by the supplier to the recipient, as the case requires.

PPSA

 

  1. The Client grants InnerVision a security interest (as defined in the PPSA) in the Hardware and other property of the Client as security for all indebtedness to InnerVision under or in connection with the Contract (Security Interest).

  2. In the event of a default by the Client, in addition to any other rights of InnerVision under or in connection with a Contract, InnerVision may exercise any and all of its security enforcement rights under the PPSA in relation to its Security Interest.

  3. The Client agrees, to the extent permitted by law in relation to InnerVision’s Security Interest:

    1. to promptly give InnerVision all assistance and information (including signing documents) that InnerVision requests or requires in relation to the registration, perfection, or enforcement;

    2. that InnerVision may register a financing statement on the Personal Properties Securities Register against the Client;

    3. that notices or documents required or permitted to be given to InnerVision under the PPSA may be given in accordance with the PPSA;

    4. not to change its name, address for service, contact details or any other of its data used to register a financial statement without first notifying InnerVision at least 14 days before doing so;

    5. that it waives its rights to any verification statement (or notice of a verification statement) in respect of any financing statement or financing change statement; and

    6. InnerVision and the Client contract out of the Client’s rights, and the Client waives its rights, under section 95 of the PPSA.

 

Force majeure

 

  1. If a party is prevented, hindered or delayed in or from performing any of its obligations under a Contract by a Force Majeure Event (Affected Party), the Affected Party will not be in breach of these terms and conditions or otherwise liable for any such failure or delay in the performance of such obligations (except in relation to an obligation to pay money). The time for performance of such obligations will be extended accordingly.

  2. The Affected Party must use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

  3. If a Force Majeure Event prevents, hinders or delays InnerVision’s or the Client’s performance of its obligations for a continuous period of more than 30 days, InnerVision may terminate the

 

Contract by upon 5 Business Days’ written notice to the Client.

 

Confidentiality

  1. Each party (Recipient) must keep confidential, and not use or disclose, any Confidential Information of the other party (Discloser) except:

    1. as necessary for the performance of the Contract;

    2. as permitted under these terms and conditions;

    3. with the prior written consent of the Discloser;

    4. on a confidential, “needs to know” basis, to the Recipient’s agents, employees, contractors, or sub-contractors; or

    5. where the Recipient is compelled to do so by applicable laws, provided that it gives the other party written notice prior to disclosure.

  2. The Recipient must:

    1. maintain effective security measures to protect all Confidential Information in the possession or control of the Recipient from unauthorised access, use, copying or disclosure;

    2. notify the Discloser immediately in writing if the Recipient becomes aware of any anticipated, suspected or actual breach of these terms and conditions by the Recipient and take all reasonable steps required to prevent or stop that breach, at the Recipient’s expense; and

    3. reasonably assist the Discloser in connection with any action or investigation by the Discloser regarding any anticipated, suspected or actual unauthorised disclosure or misuse of the Confidential Information by the Recipient.

  3. Upon request from InnerVision, the Client must procure its employees, agents, or other contractors that are engaged in the performance of the Contract to execute a confidentiality undertaking, agreement or deed in the form acceptable to InnerVision.

 

Privacy

 

  1. InnerVision and the Client must each comply with any applicable laws in relation to privacy to the extent that InnerVision or the Client have access to any personal information in connection with the performance of their obligations under a Contract, including personal information of any users at the Locations.

 

Liability

 

  1. To the extent that the Client acquires any of the Hardware and/or Services as a ‘consumer’ (as that term is defined under the Australian

 

Consumer Law set out in the Competition and Consumer Act 2010 (Cth)), the Client may have certain rights and remedies that cannot be excluded, restricted or modified by these terms and conditions (Non-Excludable Obligations).

  1. To the extent permitted by law, except in relation to Non-Excludable Obligations, all conditions, warranties, guarantees, rights, remedies, liabilities, or other terms implied or conferred by statute, custom or general law that impose any obligation on InnerVision in connection with a Contract are expressly excluded.

  2. To the extent permitted by law, InnerVision’s liability to the Client arising directly or indirectly under or in connection with any Contract (whether under indemnity, statute, in tort, contract, or equity) is limited as follows:

    1. InnerVision will have no liability whatsoever to the Client for any Consequential Loss incurred by the Client under or in connection with any Contract;

    2. the maximum aggregate of InnerVision’s liability to the Client under or in connection with a Contract is otherwise limited to an amount not exceeding the amount of Fees paid by the Client under the relevant Contract; and

    3. any liability of InnerVision is reduced proportionately to the extent that any breach of contract, negligence, or act or omission of the Client, its employees, agents, or other contractors, causes or contributes to the claim;

    4. any liability of InnerVision is reduced proportionately to the extent that it was caused or contributed to through non- compliance with any operating, maintenance or installation instructions given by InnerVision, or any other unsuitable, improper, incorrect or negligent use by the Client its employees, agents, or other contractors, or any normal wear and tear or faulty repair of items by the Client or any third party.

 

Indemnity

  1. The Client indemnifies and holds harmless InnerVision, for any liability, loss, damage, expense, cost, or claim (including legal expenses) that InnerVision suffers or incurs as a result of any:

    1. death or personal injury of any person, or loss of, or damage to, any property caused by the Client or its employees, agents, or other contractors;

    2. breach of the Contract by the Client;

    3. negligent act or omission by the Client or its employees, agents, or other contractors; or

 

  1. unauthorised use or disclosure of any of InnerVision’s Confidential Information or Intellectual Property by the Client or its employees, agents, or other contractors.

 

Data

 

  1. Title to the Data vests in InnerVision upon creation.

 

Intellectual property

  1. In respect of New IP:

    1. all New IP upon creation, automatically vests in InnerVision and the Client absolutely and unconditionally assigns, and must procure that the Client’s employees, agents, or other contractors assign, to InnerVision all such Intellectual Property immediately upon creation, free of all encumbrances and third party rights;

    2. the Client must, at its own cost, do all things necessary to give effect to such assignment, including executing any required documents or effecting any required registrations; and

    3. InnerVision grants to the Client a personal, royalty free, non-exclusive, non-transferable, non sub-licensable licence for the Term to use InnerVision’s New IP solely to the extent necessary for the Client to enjoy the benefit of the Hardware and/or Services under the Contract.

  1. In respect of Background IP:

    1. each party retains ownership of its Background IP;

    2. InnerVision grants to the Client a personal, royalty free, non-exclusive, non-transferable, non sub-licensable licence for the Term to use InnerVision’s Background IP solely to the extent necessary for the Client to enjoy the benefit of the Hardware and/or Services under the Contract; and

    3. the Client grants to InnerVision a personal, royalty free, non-exclusive, non-transferable, non sub-licensable licence for the Term to use to use the Client’s Background IP solely to the extent reasonably necessary in order for InnerVision to supply the Hardware and/or Services and perform its obligations under a Contract.

  2. Notwithstanding clauses 64 and 65, if the Hardware and/or Services include any Software:

    1. the Client agrees that all Intellectual Property in the Software remains vested in InnerVision or its licensors (as applicable);

    2. InnerVision grants (and/or must procure the grant) to the Client, a personal, non-

 

exclusive, revocable licence to use the Software during the Term, solely to the extent necessary for the Client to enjoy the benefit of the Software under the Contract,

and the Client must:

  1. pay any Software Licence Fees in accordance with the Scope of Work (if any);

  2. comply with any restrictions on the use of the Software, and any additional licence terms for that Software as specified in the Scope of Work, including in relation to Software Subscription Terms; or

  3. attempt to disassemble, decompile or otherwise reverse engineer any Software.

  1. In respect of Data:

    1. all Intellectual Property associated with, the Data upon creation vests in InnerVision and the Client absolutely and unconditionally assigns, and must procure that Client employees, agents, or other contractors assign, to InnerVision all such Intellectual Property immediately upon creation, free of all encumbrances and third party rights;

    2. the Client must, at its own cost, do all things necessary to give effect to such assignment, including executing any required documents or effecting any required registrations; and

    3. InnerVision grants to the Client a personal, non-exclusive, revocable licence to use the Data during the Term, solely to the extent necessary for the Client to enjoy the benefit of the Software under the Contract.

  2. The Client must not:

    1. sell, lease, transfer, assign, sub-license, licence or otherwise part with possession; or

    2. remove, obliterate or alter any proprietary notice,

of any Hardware, Software, or other items that contain or incorporate any Intellectual Property of InnerVision (or its licensors).

 

Termination

 

  1. A party may terminate a Contract, upon written notice to the other party (defaulting party):

    1. if the defaulting party breaches a material term of the Contract which is incapable of being remedied (in the non- defaulting party’s reasonable opinion);

    2. if the defaulting party breaches a material term of the Contract which is capable of being remedied but which the defaulting party does not remedy within 14 days of being notified of the breach;

    3. to the extent permitted by law, if the defaulting party:

 

  1. ceases to carry on its business or threatens to cease to carry on its business;

  2. ceases to be able to pay its debts as and when they become due and payable;

  3. is the subject of any steps taken by a mortgagee to take possession of or dispose of the whole or part of the defaulting party’s assets operations or business;

  4. is the subject of any steps taken to enter into any arrangement with the defaulting party’s creditors; or

  5. is the subject of any steps taken to appoint a receiver, receiver and manager, liquidator or provisional liquidator, an administrator or like person of the whole or part of the defaulting party’s assets operations or business.

  1. Termination or expiry of a Contract does not affect, limit, or prejudice a party’s rights or liabilities accrued under the Contract to the date of termination or expiry.

  2. Upon termination or expiry of a Contract, the Client must at its cost:

    1. take all reasonable steps to protect relevant Hardware, Data, or property of InnerVision or which InnerVision has or may acquire an interest, in the possession or control of the Client;

    2. promptly return any Hardware, InnerVision Data, or property of InnerVision or which InnerVision has or may acquire an interest, in the possession or control of the Client as requested by InnerVision;

    3. promptly return or destroy at InnerVision’s election, any other data, items, materials, or documents, containing any Confidential Information or Intellectual Property of InnerVision (or its licensors).

 

Insurance

 

  1. InnerVision will maintain insurance coverage reasonably expected from a supplier of hardware and/or services similar to the Hardware and/or Services.

  2. The Client will maintain insurance coverage reasonably expected from an owner or occupier of a similar site to the Locations, including insurance (which notes the interests of InnerVision) for the full replacement value of any Hardware of InnerVision that is in the possession or control of the Client that has not been fully paid for.

  3. Each party will, upon reasonable request by the other party, provide the other party with copies of certificates of currency of its insurance policies required under a Contract.

 

Assignment and sub-contracting

  1. The Client must not assign any of its rights or benefits of a Contract to any party, except with InnerVision's prior written consent.

  2. InnerVision may subcontract any part of the supply of Hardware and/or Services under a Contract to a third party, provided InnerVision remains liable to the Client for the acts or omissions of the sub-contractor.

 

Dispute Resolution

 

  1. If a difference or dispute (Dispute) arises between the parties in connection with a Contract, either party may give the other party a written notice setting out the full details of the Dispute (Notice of Dispute).

  2. Subject to clause 81, a party may not commence any court or arbitration proceedings in relation to a Dispute unless a Notice of Dispute has been served (either by or on that party) and that party has made all reasonable attempts to resolve the dispute in accordance with these terms and conditions.

  3. The parties must attempt to resolve any Dispute promptly by negotiating in good faith. If the parties are unable to resolve the dispute within 10 Business Days after a Notice of Dispute is served, either party may refer the Dispute for mediation by notice to the other party. The mediation will be under the rules of The Resolution Institute in force at the date of the commencement of the mediation by one mediator appointed President of the Resolution Institute (Victorian chapter). The place of the mediation shall be in Melbourne, Victoria. Costs of the mediator will be borne equally between the parties.

  4. If the Dispute is not resolved within 40 Business Days after the date of the mediation, then either party may commence proceedings in relation to the Dispute.

  5. Nothing in this clause prevents a party from seeking injunctive or urgent declaratory relief at any time.

  6. Each party must continue to perform its obligations under this agreement despite the existence of any Dispute.

 

General

  1. Any notice given to a party under a Contract must be in writing and must be delivered in person, by post, or by email to the address, or email address of that party as stated in the Contract, or as otherwise notified by that party from time to time in accordance with these terms and conditions. A notice is regarded as being served on a party, if delivered:

    1. in person, at the time of delivery to that party;

    2. by post, 2 Business Days from, and including, the date of postage; or

 

  1. by email to the email address of the recipient specified in the Contract (or any subsequently notified email address) provided the sender does not receive notification that the email has not been received by the recipient,

       but if the notice is regarded as being served on a date which is not a Business Day, or at a time which is after 5pm on a Business Day, it is regarded as served on the following               Business Day.

  1. A Contract is the entire agreement between the parties about its subject matter and the only terms implied are those implied by mandatory operation of law. A Contract supersedes any prior contract or obligation between the parties about its subject matter.

  2. Clauses intended to survive the termination or expiry of a Contract by their nature (including any limitation or exclusion of liability, warranty, indemnity, or confidentiality obligation) will continue to survive termination or expiry of the Contract.

  3. A party must pay its own costs of negotiation, preparation and execution of a Contract and any document required by the Contract.

  4. A party waives a right under this agreement only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.

  5. A Contract is governed by the laws in Victoria and the courts of Victoria or the Federal Court of Australia (Melbourne Registry) have

       non-exclusive jurisdiction in connection with the Contract. The parties submit to the jurisdiction of those courts and any courts which have jurisdiction to hear appeals from those         courts.

  1. A Contract may be executed in several counterparts and each executed counterpart is deemed an original of the Contract.