- Nube iO Group Terms and Conditions
Structure of the agreement
This agreement comprises:
- these Terms and Conditions;
- the Services Description and/or the Product Description;
- one or more Orders; and
- any other document that is expressly incorporated into this agreement.
- COMMENCEMENT AND TERM
1.1 This agreement comes into force on the date that we confirm that we have accepted your Order.
1.2 This agreement continues until terminated in accordance with clause 15.
- WHAT WE WILL SUPPLY
We will, in accordance with the terms of this agreement, supply the Products and the Services.
- OUR STANDARDS
3.1 We will use our reasonable endeavours to:
3.1.1 supply the Products and the Services and perform our other obligations under this agreement, in a diligent and professional manner; and
3.1.2 ensure that, in providing the Products and the Services, we comply with all applicable Laws, including any requirement to hold any Authorisation.
3.2 We do not guarantee that the supply of Services will be continuous or free of interruptions.
3.3 You acknowledge that the purpose of the Service Levels is to specify the minimum standards of performance we try to achieve in supplying the Services. We do not guarantee that we will achieve the Service Levels at all times.
3.4 We are not a Carrier and do not supply Carriage Services. We are a reseller and may arrange for you to be supplied with Carriage Services by a Carrier or a Carriage Service Provider. Accordingly, you acknowledge and agree that we are not responsible for any:
3.4.1 act or omission of any Carrier or Carriage Service Provider who we arrange to supply Carriage Services to you; and
3.4.2 interruption in, disruption to or suspension by a Carrier or Carriage Service Provider of the Carriage Services supplied to you.
3.5 You acknowledge that the internet is sometimes unreliable and is difficult to secure and we do not guarantee:
3.5.1 the security of Our System, the interfaces you use to connect to Our System or the information that passes through or is stored in Our System;
3.5.2 access to Our System will be continuous, accessible at all times or fault free; or
3.5.3 that Our System is free of Viruses.
- HOW TO ORDER PRODUCTS AND SERVICES
4.1 You may at any time request us to supply a Product or a Service by submitting an Order.
4.2 An Order is not binding upon us until we have issued a notice to you of our acceptance of that Order. Any acknowledgement of receipt by or on our behalf of any Order will not constitute acceptance of that Order.
4.3 Once we have accepted an Order, you are not entitled to cancel that Order or return any Product due to a change of mind without our prior written consent which we may or may not grant in our absolute discretion and on any terms we may decide including:
4.3.1 charging a cancellation or return fee;
4.3.2 requiring you to organise and pay for all return shipping costs; and
4.3.3 requiring any Product to be in its original condition including packaging.
- PRODUCT DELIVERY, TITLE AND RISK
5.1 All Product deliveries will be made Ex-Works at Nube iO’s premises in Helensburgh (Incoterms 2020)]. All customs duty, freight and insurance from the point of delivery will be your responsibility and at your cost.
5.2 You must inspect all delivered Products and give notice to us within 5 Business Days of delivery if the Products are defective or not in accordance with your Order. If you do not give us this notice, then, subject to any non-excludable condition or guarantee implied by Law, the Products will be deemed to have been delivered to and accepted by you.
5.3 Title to Products passes to you upon payment in full and risk of loss passes to you upon deliver.
5.4 Until full payment for Products has been received by us, such Products will be subject to a security interest in favour of us or our nominee and we or our nominee may register such security interest or take any other such action as they determine in order to secure such interest and you must execute all documents and take any other actions as reasonably directed by us or our nominee in order to create, protect and preserve such security interest.
5.5 We may cancel or delay deliver in accordance with an Order that has previously been accepted in times of shortage, due to supply chain constrains or due to Force Majeure. Any such cancellation or delay will not constitute a breach of this agreement by us.
- YOUR OBLIGATIONS
6.1 You must ensure that all equipment connected by you to the Products or the Services, or on your behalf, complies with the specifications for equipment that is capable of connecting safely with the Products and the Services and also complies with the Data Sheet and the User Manual for each relevant Product as set out on Our Website.
6.2 You must not alter, tamper with, repair or attempt to repair the Products or the Services or allow a third party (other than an accredited technician approved by us) to do any of these things.
6.3 You are solely responsible for:
6.3.1 choosing, acquiring and maintaining your own equipment, facilities and systems necessary to enable you to use the Products and the Services effectively, efficiently and safely;
6.3.2 ensuring that the Products and the Services are compatible with your networks and systems;
6.3.3 the consequences of using the Products and the Services; and
6.3.4 the security of data or information that you send, receive or store using the Products or the Services.
6.4 You must use your best endeavours to ensure that no Virus is introduced into Our System.
6.5 You must comply with:
6.5.1 all applicable Laws; and
6.5.2 Our Policies to the extent that they relate to the Products and the Services.
6.6 If we require access to your premises in connection with the performance of our obligations under this agreement, you will, subject to your usual security requirements, provide us with reasonable access to your premises at such times as may be reasonably necessary to enable us to perform our obligation under this agreement. Such access will include the right for us to use all existing building services.
6.7 When we enter your premises, we will use our reasonable endeavours to:
6.7.1 protect people and property;
6.7.2 prevent nuisance and unnecessary noise and disturbance; and
6.7.3 act in a safe and Lawful manner and comply with your safety standards and policies as notified to us.
6.8 You represents that, to the best of your knowledge, if we are required to install any Products at your premises that the structure of the premises or equipment in or upon which the Products are to be installed is sound and will sustain the installation and any incidental work and we will not be liable for any claims, demands, losses, damages, costs or expenses caused or arising in connection with the installation and any incidental work.
6.9 You represents that, to the best of your knowledge, there is no asbestos or hazardous material on your premises that will in any way affect our personnel or the performance of our obligations under this agreement. If you become aware of or suspect the presence of asbestos or hazardous materials, you must immediately notify us, or if we become aware of or suspect the presence of asbestos or hazardous materials, we may stop work in the affected area and you must do whatever is necessary to correct the condition in accordance with all applicable Laws. You must also indemnify us against any claims made against us arising out of or relating to the presence of asbestos or hazardous materials.
- YOU GRANT US A SECURITY INTEREST
7.1 You acknowledge and agree that this agreement constitutes a ‘Security Agreement’ for the purposes of the PPSA and creates a Security Interest of ours in the Products and all things produced for or in connection with the performance of the Services.
7.2 By notice to you, we may require you to take all steps or do any other thing that we consider necessary to ensure that this agreement or any Security Interest arising under this agreement, is enforceable against you or any third party or to protect, perfect, record or better secure, or obtain or preserve the priority of, our security position under this agreement. You must comply with the requirements of such a notice within the time stated in the notice at your cost.
7.3 You waive any rights to receive a verification statement. To the extent that Chapter 4 of the PPSA would otherwise apply to enforcement by us of any Security Interest in collateral, the parties agree that, to the extent the PPSA allows, sections 125, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply.
- PAYMENTS OF THE CHARGES AND INVOICES
8.1 You must pay us the Charges for the Products and the Services.
8.2 We may change the Charges for any Product or Service at any time by giving you not less than 30 days’ notice of the change.
8.3 We may offer you a discount to our Charges or our Charges may include a volume discount. If we offer a discount, we may revoke or change the discount at any time by giving you not less than 30 days’ notice of the revocation or change or, if you are in breach of this agreement, immediately without giving you notice.
8.4 We will invoice you for the Charges. We may invoice you at any time for a Product or a Service. We may invoice you monthly, quarterly or yearly in advance for the Charges for a Data Plan.
8.5 We may include in an invoice Charges that relate to a Product or a Service supplied in a period prior to the period to which the invoice relates, even if, in the case of a Service, that Service has been cancelled or suspended.
8.6 We may issue invoices by email.
8.7 You must pay the amount of our invoice by the due date specified in the invoice.
8.8 We may charge you a fee for using a payment method. We may also charge you for any taxes, duties, costs, charges, fees or expenses we incur as a result of the payment method you use.
8.9 Any claim by you that an invoice is incorrect must be made before the due date for payment of that invoice.
8.10 If you fail to make a payment on the due date, we may charge you interest at the interest rate our bank charges for a business overdraft on the due date. Interest accrues daily from the due date until the date you make payment in full. You must pay us interest when we invoice you for it.
- GST
9.1 Words defined in the GST Law have the same meaning in this clause 9, unless the context makes it clear that a different meaning is intended.
9.2 Unless indicated otherwise, the Charges and all other amounts referred to in this agreement are stated exclusive of GST. If GST is or will be imposed on a supply made under or in connection with this agreement, to the extent that the consideration otherwise provided for that supply under this agreement is not stated to include an amount in respect of GST on the supply:
9.2.1 the consideration otherwise provided for that supply is increased by the amount of that GST; and
9.2.2 the recipient must make payment of the increase at the same time as the consideration is provided subject to receipt of a tax invoice.
9.3 The supplier of a taxable supply under this agreement will issue a tax invoice or adjustment note to the recipient in relation to the supply.
- PRODUCT WARRANTIES
10.1 Our Warranty Policy applies to the Products supplied under this agreement which are manufactured by us.
10.2 Non–Nube iO branded products purchased from Nube iO may be eligible for coverage under the Australian Consumer Law but they are not covered by our Warranty Policy. We do not give you any warranty, expressed or implied, for non–Nube iO branded products. If the manufacturer of a non–Nube iO branded product provides an assignable warranty relating to that product (“Product Warranty”), we will notify you of the Product Warranty and assign it to you to the extent permitted by such Product Warranty and any applicable law. If you consider that any non–Nube iO branded product we supply to you is defective, you must notify us of the defect in accordance with the terms of the Product Warranty. If you give us such notice, we will use our reasonable endeavours to assist you to make a claim under the Product Warranty. You are responsible for the cost of returning any non–Nube iO branded product for repair or replacement under a Product Warranty including labour costs, freight, taxes and any other direct or indirect cost.
10.3 If there is a manufacturing defect with a SIM Card we supply you, we will replace the SIM Card free of charge or refund you the cost of the SIM Card.
- CONFIDENTIALITY
11.1 Obligation of confidentiality. In addition to any obligations under this agreement or in respect of secret and confidential information at Law, each party undertakes and agrees:
11.1.1 to hold in strict confidence all Confidential Information and not to disclose or permit or cause the Confidential Information to be disclosed to any person other than any of its personnel who require the Confidential Information for the purposes of this agreement; and
11.1.2 not to make use of the Confidential Information, except and solely to the extent necessary for the purposes of this agreement,
unless either party has obtained the prior written consent of the other party to do so, which may be withheld by the other party in its absolute discretion or given on such terms as it sees fit. You must use your best endeavours to ensure that your personnel undertake and agree to comply with the obligations set out in this clause with respect to any Confidential Information of ours disclosed to them by us or you.
11.2 Exceptions. Clause 11.1 does not apply to:
11.2.1 information after it becomes generally available to the public other than as a result of a breach of confidence or a breach of this agreement;
11.2.2 the disclosure of information in connection with legal proceedings relating to this agreement; or
11.2.3 the disclosure of information to comply with any applicable Law or rule of a recognised securities exchange, provided that prior to such disclosure the party proposing to disclose gives notice to the other party with full particulars of the proposed disclosure.
11.3 Public announcements. Except as required by any applicable Law or as otherwise permitted by this agreement, you may not make any public announcements or disclosures as to this agreement or otherwise in relation to the subject matter of this agreement without our prior written consent.
11.4 Return or destruction of Information. If requested by either party, whether prior to or after the expiry or earlier termination of this agreement, the other party must promptly deliver to the requesting party or destroy (at the discretion of the requesting party) all Confidential Information in the custody, possession or control of the other party or any of its personnel.
- PRIVACY
12.1 You agree that we may obtain from a credit reporting agency a credit report containing personal credit information about you in relation to credit provided by us.
12.2 You agree that we may exchange information about you with those credit providers either named as trade referees by you or named in a consumer credit report issued by a credit reporting agency for the following purposes:
12.2.1 to assess an application by you;
12.2.2 to notify other credit providers of a default by you;
12.2.3 to exchange information with other credit providers as to the status of this credit account, where you are in default with other credit providers; and/or
12.2.4 to assess your creditworthiness.
12.3 You acknowledge that the information exchanged can include anything about your creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
12.4 You consent to us being given a consumer credit report to collect overdue payment on commercial credit.
12.5 You agree that personal credit information provided may be used and retained by us for the following purposes (and for other purposes as we both agree or as required by Law from time to time):
12.5.1 the provision of Products or Services;
12.5.2 the marketing of Products or Services by us, our agents or distributors;
12.5.3 analysing, verifying and/or checking your credit, payment and/or status in relation to the provision of Products or Services;
12.5.4 processing of any payment instructions, direct debit facilities and/or credit facilities requested by your; and/or
12.5.5 enabling the daily operation of your account and/or the collection of amounts outstanding in your account in relation to the Products or Services.
12.6 We may give information about you to a credit reporting agency for the following purposes:
12.6.1 to obtain a consumer credit report about you; and/or
12.6.2 allow the credit reporting agency to create or maintain a credit information file containing information about you.
12.7 The information given to the credit reporting agency may include:
12.7.1 personal particulars (name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
12.7.2 details concerning your application for credit or commercial credit and the amount requested;
12.7.3 advice that we are a current credit provider to you;
12.7.4 advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than 60 days, and for which debt collection action has been started;
12.7.5 that your overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
12.7.6 information that, in our opinion, you have committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with your credit obligations);
12.7.7 advice that cheques drawn by you for $100 or more, have been dishonoured more than once; and/or
12.7.8 that credit provided to you by us has been paid or otherwise discharged.
- YOUR INDEMNITY
13.1 You indemnify us against all Loss we suffer or incur as a result of or relating to:
13.1.1 the injury (including mental illness) or death of any person;
13.1.2 Loss of or damage to our property or the property of a third party;
13.1.3 an infringement or alleged infringement of a third party’s IP or Moral Rights; or
13.1.4 your use of the Products or the Services,
where the Loss arises out of or as a consequence of your Default.
13.2 The amount payable under the indemnity in clause 13.1 is reduced to the extent that the Loss is caused or contributed to by our Default.
- LIMITS ON OUR LIABILITY
14.1 To the fullest extent permitted by Law, all terms which might be implied by statute are excluded and our liability for any Claim relating to the Products or Services, whether pursuant to contract, tort, statute law or otherwise, is limited to Our Warranty Policy.
14.2 Notwithstanding anything else in this agreement, our liability under this agreement, whether arising under contract (including under any indemnity or warranty), tort, Law or otherwise will not exceed:
14.2.1 for the full term of this agreement, the amounts paid to us by you over the life of this agreement, in aggregate; or
14.2.2 for a single event, the amounts paid to us by you up to the date of that event.
14.3 Notwithstanding any other provision of this agreement, except for a party’s breach of its Confidentiality Information obligations or your breach of clause 6.9 (relating to asbestos and hazardous materials) or clause 13 (Your Indemnity), neither party will be liable (including under any warranty) to the other party, its Affiliates or its officers, directors, employees and agents whether under contract, tort, Law or otherwise for:
14.3.1 any loss of use, profit, production, revenue, future sales, anticipated savings, goodwill, data, opportunity (present or future) or reputation;
14.3.2 interruption to any business; or
14.3.3 any special, indirect or consequential losses,
that the other party or the other party’s Affiliates may incur or suffer in connection with this agreement.
- HOW THIS AGREEMENT MAY BE TERMINATED OR SUSPENDED
15.1 Suspension. We may immediately suspend the performance of any or all of our obligations under any Order that we have previously accepted or otherwise under this agreement, by notice in writing to you if:
15.1.1 you are in breach of this agreement;
15.1.2 in an emergency;
15.1.3 the supply or use of a Product or a Service becomes unlawful;
15.1.4 you fail to make any payment to us when due under this agreement;
15.1.5 you use a Product or a Service to commit an offence or allow anyone else to do so;
15.1.6 your use of a Product or a Service interferes with or disrupts Our System or the efficiency of Our System;
15.1.7 the Carrier who supplies the Carriage Service that we arrange to be supplied to you cancels or suspends or asks or directs us to cancel or suspend the Carriage Service; or
15.1.8 our ability to supply a Product or a Service is impacted by Force Majeure.
We may at any time recommence the performance of any obligations suspended pursuant to this clause.
15.2 Termination. Either party may terminate this agreement:
15.2.1 upon 60 day’s advance written notice to the other party if the other party breaches the terms of this agreement and fails to remedy such breach within such 60 day period;
15.2.2 immediately by notice in writing to the other party if it is in breach of its obligations under clause 11 (Confidentiality); o
15.2.3 if Force Majeure prevents the performance of a party’s obligations under this agreement for more than 14 days, by written notice to the other party.
15.3 Termination by us. In addition to our right to terminate under clause 15.2 or otherwise at Law, we may terminate this agreement and/or any Order previously accepted by us:
15.3.1 upon 21 days’ advance written notice to you if we have suspended our performance in accordance with clause 15.1 and we have not recommenced the performance of all or some of those obligations;
15.3.2 upon 30 days’ advance written notice to you:
(i) if an Insolvency Event occurs in respect of you; or
(ii) if there is a Change of Control with respect to you or your direct or indirect parent which results in you being Controlled by, in our reasonable opinion, a competitor of ours;
15.3.3 immediately by notice in writing to you if we, in our absolute discretion, are of the opinion that you or your employees, have condoned and/or have engaged in conduct that is corrupt or fraudulent or have failed to comply with any Law; or
15.3.4 immediately by notice in writing upon:
(i) criminal conviction;
(ii) debarment;
(iii) indictment or other charge of violating criminal Laws;
(iv) ineligibility to contract with or to receive a license or other form of authorization from a Government Agency; or
(v) denial, suspension or revocation of eligibility to be involved in exports, imports or to conduct business by you or your Affiliate.
15.4 Termination by you. You may, by written notice to us, terminate this agreement for convenience with effect from a date specified in the notice (being a date not less than 30 days after the date of the notice) and which includes termination of any Data Plan in accordance with its terms and conditions. If an early termination fee is specified in the Service Description of a Service, you must pay us the early termination fee if you terminate this agreement for convenience.
15.5 The suspension, expiration or termination of this agreement does not affect any rights, liabilities or obligations of the parties arising before such suspension, expiration or termination including our right to recover any Charges incurred on your behalf with a third-party service provider for which we are invoiced after the date of expiration or termination of this agreement.
- HOW THIS AGREEMENT MAY BE VARIED
16.1 This agreement may be varied, amended or supplemented in writing, signed by each party.
16.2 We may also change this agreement at any time subject to giving you at least 14 days’ notice of the change. If you do not accept the change you may, within 14 days of receiving our notice, ask us to close your account and terminate this agreement.
16.3 For the purposes of clause 16.2, a change to this agreement includes:
16.3.1 any termination of a service or a change of terms of service by a Carrier or Carriage Service Provider who we arrange to supply Carriage Services to you directly or indirectly; and
16.3.2 any change or addition to Our Policies.
- INTELLECTUAL PROPERTY
17.1 The parties agree that:
17.1.1 the Intellectual Property of a party existing prior to the date of this agreement remains the sole and exclusive property of that tarty; and
17.1.2 the right, title and interest in any Intellectual Property created by the provision of the Products or the Services by us is vested in us.
17.2 You must:
17.2.1 assign all right, title and interest in any Intellectual Property referred to in clause 17.1.2 to us or as directed by us;
17.2.2 provide to us with all reasonable assistance requested to protect that Intellectual Property; and
17.2.3 not permit any person reasonably within your control nor procure any person to modify, copy, clone or reverse engineer the Products or the Services or copy, modify, decompile any of our documentation relating to the Products or the Services.
- TRADEMARKS
18.1 Both parties acknowledge that each parties’ patents, trademarks, copyrights, brand names and trade names (whether registered or not) are the sole property of that party and agrees to cooperate in the protection thereof.
18.2 You must not remove our trademarks or brand names from any Products or materials furnished by us or affix any additional trademarks, logos or trade designations to any such Product or materials.
18.3 All rights in our trademarks and brand names must, at all times, be and remain our sole property, and all good will and other benefits associated with them are assigned to, and will inure to, us.
18.4 You must not assign, sublicense, make available or otherwise transfer any right to use, develop or otherwise enjoy any such trademarks and brand names without our prior written consent.
18.5 You must not make any use of our trademarks or brand names with any products or services not furnished by us, or in any manner which would injure or destroy their value and you must not make use in your business of any other trademarks or brand names likely to be confused with our trademarks and brand names.
- PRECEDENCE AND INTERPRETATION
19.1 If there is any inconsistency between provisions of this agreement, a descending order of precedence is to be accorded to:
19.1.1 these Terms and Conditions;
19.1.2 a Service Description or a Product Description;
19.1.3 an Order; and
19.1.4 a provision of another document that is expressly incorporated into this agreement,
so that the higher ranked provision prevails to the extent of the inconsistency.
19.2 Additional terms and conditions in any Order or any terms and conditions in an Order which are inconsistent with this agreement, will not apply to this agreement or any Order and we will not be bound by any such terms or conditions.
19.3 In this agreement, the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
(a) headings and subheadings are for convenience only and do not affect the interpretation;
(b) references to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, this agreement;
(c) references to parties are references to the parties to this agreement;
(d) references to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives;
(e) words denoting the singular include the plural and words denoting the plural include the singular;
(f) words denoting any gender include all genders;
(g) the word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency, whether or not it comprises a separate legal entity;
(h) a reference to any agreement or document includes any amendments to or replacements of that document;
(i) any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally;
(j) any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally;
(k) no provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of that provision;
(l) if a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day;
(m) a reference to time is a reference to Sydney, New South Wales time unless otherwise specified;
(n) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;
(o) if any act is required to be performed under this agreement by a party on or by a specified day and the act is performed after 5.00pm on that day, the act is deemed to be performed on the next day;
(p) if any act is required to be performed under this agreement on or by a specified day and that day is not a Business Day, the act must be performed on or by the next Business Day;
(q) a reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency;
(r) terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words; and
(s) where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
- OTHER TERMS
20.1 The parties agree that, except as may be required by law, the express provisions of this agreement are intended to constitute the exhaustive statement of their rights and obligations in relation to the Products and the Services and the other matters to which it relates.
20.2 An indemnity granted to a person under this agreement is in addition to, and does not replace or limit any other right the person may have under this agreement or otherwise at law.
20.3 You are an independent contractor and the relationship between the parties created by this agreement is solely of buyer and seller. You must not make any representation or warranty on behalf of us, about us or about the Services or the Products.
20.4 Nothing in this agreement:
20.4.1 gives a party authority to bind the other party in any way either expressed or implied;
20.4.2 creates a relationship between the parties of principal and agent or employer and employee; or
20.4.3 imposes any fiduciary duties on a party in relation to the other party.
20.5 Assignment. The benefit of this agreement must not be assigned by you without our prior written consent.
20.6 Compliance. You must comply with all applicable Laws relating to your performance of this agreement. You, including your officers, directors, employees and agents, must use only legitimate, legal and ethical business practices to perform this agreement.
20.7 Counterparts. This agreement may be executed in any number of counterparts. All of those counterparts taken together are deemed to constitute one and the same instrument.
20.8 No merger. On expiry or termination of this agreement, the rights and obligations of the parties set out in this agreement will not merge and any provision that has not been fulfilled remains in force.
20.9 Survival. Clauses 11 (Confidentiality), 14 (Limits on Our Liability), 17 (Intellectual Property), 19 (Precedence and Interpretation), 25 (Governing Law), 26 (Dispute Resolution) and 27 (Glossary), survive termination or expiry of this agreement together with any other term which by its nature is intended to do so.
20.10 Further action. Each party must at its own expense do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to:
20.10.1 bind the party and any other person intended to be bound by this agreement; and
20.10.2 give full effect to this agreement and the transactions contemplated by this agreement,
and use all reasonable endeavours to procure that any third parties do the same.
20.11 Remedies cumulative. Except as provided in this agreement and permitted by Law, the rights, powers and remedies provided in this agreement are cumulative with and not exclusive to the rights, powers or remedies provided by Law independently of this agreement.
20.12 Entire agreement. This agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
20.13 No reliance. No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in this agreement.
- WAIVERS
21.1 Waiver of any right, power, authority, discretion or remedy arising from any breach of this agreement must be in writing and signed by the party granting the waiver.
21.2 A party is not entitled to rely on a delay in the exercise or non-exercise of a right, power, authority, discretion or remedy arising from a breach of this agreement or on a default under this agreement as constituting a waiver of that right, power, authority, discretion or remedy.
21.3 A party may not rely on any conduct of the other party as a defence to exercise of a right, power, authority, discretion or remedy by that party.
21.4 This clause may not itself be waived except by writing.
- SEVERABILITY
22.1 If the whole or any part of a provision of this agreement is or becomes invalid or unenforceable under the Law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
22.2 Clause 22.1 does not apply if the severance of a provision of this agreement in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this agreement.
- NOTICES
23.1 Notices under this agreement may be delivered by hand, by registered mail or by email to the following addresses:
For us:
Attn: Chief Financial Officer
Nube iO Pty Ltd
Email: accounts@nube-io.com
Mail: Unit 1 / 17 Cemetery Road, Helensburgh NSW 2508
For you:
As notified in writing by you from time to time.
23.2 Notice will be deemed given:
23.2.1 in the case of hand delivery or registered mail, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party; and
23.2.2 if it is sent by email, when the sender’s system registers that the email has passed the Internet gateway of the sender’s system (and no delivery failure or out of office message is received by the sender within 1 hour of sending).
23.3 If such notice is deemed to have been duly given or made after 5.00 pm in the place to which such notice is addressed or on a day which is not a Business Day in that place, it will be deemed to be duly given or made at 9.00 am on the next Business Day in that place.
- FORCE MAJEURE
Neither party will be liable for any delay or failure to perform its obligations under this agreement if such failure or delay is due to Force Majeure except that no obligation to make a payment will not be relieved by Force Majeure.
- GOVERNING LAW
This agreement will be governed by and construed according to the laws of New South Wales.
- DISPUTE RESOLUTION
26.1 If a dispute arises between the parties in connection with this agreement including any question regarding its existence, validity or termination (Dispute), a party may give to the other party a notice (Dispute Notice) specifying the Dispute.
26.2 If the Dispute is not resolved within 10 Business Days after a Dispute Notice is given to the other party, each party must nominate one representative from its senior management with authority to resolve the Dispute.
26.3 If the Dispute is not resolved within 15 Business Days of the Dispute being referred to the respective representatives, then either party may, after giving written notice to the other party, refer the Dispute to arbitration.
26.4 Any Dispute that is not resolved in accordance with the clauses above, must be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration will be Sydney, Australia. The language of the arbitration will be English. The number of arbitrators will be one.
26.5 Nothing in this clause 26 prevents a party from seeking any urgent interim or interlocutory relief which may be required in relation to this agreement.
26.6 During the existence of any Dispute, the parties must continue to perform all their obligations under this agreement without prejudice to their position in respect of such Dispute, unless the parties otherwise agree.
- GLOSSARY
In this document, unless a contrary intention appears:
Affiliate means a Related Body Corporate of an entity or an entity that Controls, is Controlled by or is under common Control with, the entity.
Authorisation means:
(a) An authorisation, consent, exemption or licence, however it is described, required to do something that would otherwise be prohibited or restricted by Law; or
(b) In relation to something that could be prohibited or restricted by Law if a Government Agency acts in any way within a specified period, the expiry of that period without that action being taken.
Business Day means a day on which banks are open for business in Sydney, New South Wales, other than a Saturday, Sunday or public holiday.
Carriage Service has the meaning given in the Telecommunications Act 1997 (Cth).
Carriage Service Provider has the meaning given in the Telecommunications Act 1997 (Cth).
Carrier has the meaning given in the Telecommunications Act 1997 (Cth).
Change of Control means, in relation to you, the occurrence of any of the following:
(a) the sale of all or substantially all of your assets;
(b) a change in your shareholding (provided that you are not listed on a recognised securities exchange) that results in a different person or group of persons having Control; or
(c) a change in the shareholding of your holding company (provided that the holding company is not listed on a recognised securities exchange) that results in a different person or group of persons having Control.
Charges means the prices, charges and fees that you must pay for the Products and the Services as specified in the applicable Product Descriptions or Services Descriptions or this agreement (including the monthly fixed fee for your selected Data Plan plus any excess usage fees and charge including those if you exceed the data allowance for the specified period) as adjusted or changed in accordance with this agreement.
Claim means a cause of action, claim, demand, suit or proceeding of any kind, including by way of court proceedings, proceedings in the nature of arbitration, mediation or other methods of dispute resolution and administrative claims and proceedings (whether or not before a tribunal).
Confidential Information means this agreement and, in the case of you, any information (in whatever form) or documentation which is marked as confidential and, in the case of us, any information (in whatever form) or documentation of a confidential nature (or which you or your personnel ought reasonably know to be confidential) that relates to our business, affairs or activities or our Affiliates and, in the case of you and us, which:
(a) is disclosed to the other party by or on behalf of a party; or
(b) is generated by us or our personnel.
Control means having control of the composition of the board of directors or more than 50% of the shares giving a right to vote at general meetings and Controlled has a corresponding meaning.
Corporations Act means the Corporations Act 2001 (Cth).
Control Centre means the SIM Control Centre portal we use to manage your SIM plan.
Corporations Act means the Corporations Act 2001 (Cth).
Data Plan means a plan that we provide that allows you to use a fixed amount of data for a fixed price and period and includes an excess usage charge if you exceed the allowance for the following connectivity services:
SaaS:
(a) Data Hosting: Secure data storage and management of your data via our Australian-based outsourced data centres;
(b) Visualization: The creation and maintenance of visual dashboards to assist you in understanding you data metrics; and
Data Connectivity (4G):
(c) Enable mobile fourth-generation wireless (4G) data flow, the stage of broadband mobile communications via an Australian telecommunication network provider
Default means an act or omission that:
(a) is a contravention of a written Law; or
(b) amounts to negligence or a breach of a duty (including a duty arising under an agreement) or a breach of an agreement or other document.
Dispute has the meaning given to it in clause 26 (Dispute Resolution).
Dispute Notice has the meaning given to it in clause 26 (Dispute Resolution).
Force Majeure means fire, storm, flood, earthquake, explosion, accident, acts of a public enemy, terrorist acts, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, strikes and any other event which is outside the reasonable control of the relevant party.
Government Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
GST Act means the A New Tax System (Products and Services Tax) Act 1999 (Cth).
GST Law has the meaning given to that term in the GST Act.
Insolvency Event means:
(a) becoming bankrupt or insolvent within the meaning of section 95A(2) of the Corporations Act or section 5 of the Bankruptcy Act 1966 (Cth) (as applicable);
(b) committing an act of bankruptcy within the meaning of section 40 of the Bankruptcy Act 1966 (Cth) or making a compromise or composition or assignment of property in favour of creditors;
(c) having a liquidator, provisional liquidator, administrator, receiver, manager, or receiver and manager appointed;
(d) having any meeting called for the consideration of, or any resolution passed, or any application made, any petition filed, any order made or any direction given for any of the above appointments; or
(e) something having a substantially similar effect to paragraphs (a) to (d) occurring under the Law of any jurisdiction.
IP or Intellectual Property means all present and future copyright and all rights in relation to inventions (including patent rights), registered and unregistered trademarks (including service marks), registered and unregistered designs, and circuit layouts, and any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields recognised in domestic law anywhere in the world.
Loss means any liability, loss, damage, compensation and costs and expenses (including the costs of the investigation, defence and settlement of any Claim or demand) and any legal costs and expenses in relation thereto on a solicitor and own client basis.
Moral Right means a right conferred by Part IX of the Copyright Act 1968 (Cth) and a right of a similar nature conferred by statute that exists, or may come to exist, anywhere in the world.
Order means a request by you for a Product or a Service or a change to a Service that we have accepted in accordance with this agreement.
Our Policies means our policies that are described on Our Website, including our access and acceptable use policy.
Our System means the system of computer equipment, software, processes and interfaces that comprises the infrastructure used by us to provide the Services, including Our Website, the Services Portal and the Control Centre. To avoid doubt, this does not include infrastructure used by a Carrier or Carriage Services Provider to supply a Carriage Service to you or us.
Our Warranty Policy means the Warranty Policy on Our Website.
Our Website means our website at https://nube-io.com or https://enviroservices.com.au
PPSA means the Personal Property Securities Act 2009 (Cth).
Product means a product that we will supply to you under this agreement as specified in an Order.
Product Description means, in respect of a Product we supply, the description of that Product on Our Website.
Related Body Corporate has the meaning given to that term in the Corporations Act.
Security Interest has the meaning given to that term in the PPSA.
Service Level means the standards of service we try to attain in supplying Services as specified in the Services Description, including availability times and response times.
Service means a service that we will supply to you under this agreement as specified in an Order.
Services Description means, in respect of a service we supply, labour, engineering services, management and consulting, electrical trades (installation and commissioning) and any Data Plan selected by you.
SIM Card means a subscriber identity module card that may be fitted to or removed from a device by hand.
Supplier means a person who supplies Products to us on terms that we may resupply the Products to third parties, including you.
Support Portal means the support portal we make available to you on Our Website.
Virus means:
(a) any program code, programming instruction or set of instructions intentionally constructed to damage, interfere with or otherwise adversely affect computer programs, data files or operations;
(b) any device that would, if introduced into a system or software used to provide the Products or the Services, prevent that system or software from performing the functions it is designed to perform, or interfere with or otherwise adversely affect that performance; or
(c) any other code or device which a person in the IT industry would reasonably consider to be a virus.
we or us means Enviro Building Services: 11 130 324 748/Nube iO Operations: 18 629 763 177/Nube iO Pty Ltd: 56 623 130 512].
you means the customer.