Terms and Conditions for the use of

Transcription

1 Terms and Conditions for the use of PO Box 6100, Kangaroo Valley, NSW, 2577, Australia Tel/Fax or international

2 TERMS AND CONDITIONS This Agreement is between IP-Surveillance.com.au Pty Ltd, (ACN ), whose registered address is 800A Wattamolla Road, Wattamolla, New South Wales, 2535, Australia ( IPS ) and the company, partnership, individual, governmental body or other association (the End User ) accepting these terms and conditions by logging into the website of the Automatic Number Plate Recognition (ANPR) Service ANPRonline.Net (the Service ). This Agreement is a legally binding agreement between IPS and the End User and is effective from the date of the first login to the Service (the Effective Date ) or any other time that these Terms and Conditions have been expressly accepted by the End User. 1. DEFINITIONS In this Agreement, the following words and phrases with their first letter(s) capitalized shall have the meaning ascribed to them as set out below: Activation Date means the date on which IPS activates the Services following correct and successful installation of the Hardware at the Premises by an Authorised Reseller; Affiliate means a related body corporate as defined in section 50 of the Corporations Act 2001; Agreement means this agreement, known as the End User Subscription Agreement for ANPRonline.Net; Confidential Information means any data, knowledge or information that is not readily publicly available which is in the control of a party, including any technical, business, financial data, knowledge or information, whether in physical or electronic form, including the Software, the EUI, and the Documentation. For the avoidance of doubt, details of the Service and the Documentation are Confidential Information of IPS and the Data is Confidential Information of the End User; Data means all data, information and images collected by the Service during the Term; Documentation means any documentation made available by IPS to the End User (whether directly or indirectly, via or on the Website or through IPS s authorised resellers), from time to time, including, but not limited to information and documentation describing the Service and its use; EUI means the End User interface being the username and password protected and accessed area of the Website from which the End User can access and use the Service in relation to the Premises after the Activation Date during the Term; Hardware means the hardware, which is required to implement and support the Service, specifically network cameras and infrared lighting or other equipment used to provide images; Initial Storage Space means sufficient storage space for 90 days worth or transaction processing of the End-User s images; Network means the End User s computer and telecommunications network at the Premises or which services the Premises; Premises means the location where the Hardware is located; Reseller means a reseller authorised by IPS to sell the Service or IPS themselves. A list of authorised resellers is available on the Website at Service means the online automatic number plate recognition service or ANPR referred to as ANPRonline.net, that automatically recognises the number plate of a vehicle and the accompanying Website, which utilises the Hardware and Network; 2

3 Service Specification means the attempted identification and extraction of number plate information in digital images provided by directly attached network cameras or via other electronic means from the End User; Subscription Fee means all fees payable (including Annual Camera Registration Fees and Monthly Plan or PAYG Transaction Costs) as posted on our website, and that may be changed from time to time, for use of the Service, including: the right to access and use the End User only areas of the Website); and the right to use the Documentation; Trade Mark(s) means ANPRonsite.net and ANPRonline.net ; and Website means the website located at or any other domain name/url at which IPS chooses to use from time to time. 2. SUBSCRIPTION 2.1 IPS hereby grants to the End User the non-exclusive, non-transferrable right to use and access the Service through the EUI and the Documentation on the terms and conditions set out in this Agreement. 2.2 IPS is not responsible for the failure of the Service to operate in accordance with the Service Specification as a result of: (a) incorrect installation of the Hardware (b) additional of additional cameras beyond the number shown in the Term Sheet under Hardware ; (c) any Network failures or any modifications or alterations to the Network; (d) any failure of the Network to conform with the Network Specifications; (e) any changes or modifications made to the Hardware, including relocating it without IPS s prior written consent; and (f) use of the Service other than as described in the Documentation, and such failures will not affect IPS s rights to receive any amounts due to it in accordance with this Agreement and the End User s obligation to pay such amounts in accordance with this Agreement. 2.3 IPS shall provide all necessary instructions, user names and passwords (as well as the ability of the End User to select its own passwords after activation and add additional users after the Activation Date). 2.4 The End User shall keep its password confidential and will not disclose it to persons that are not current employees and officers of the End User, other than the Reseller (as required to provide installation, testing and support services) and IPS. 2.5 The End User shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Service that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) causes damage or injury to any person or property, 3

4 and IPS reserves the right, without liability to the End User, to disable the End User s access to any material that breaches the provisions of this clause. 2.6 Except as permitted by any applicable law which is, by law, incapable of exclusion from this Agreement, the End User shall not: (a) attempt to copy, modify, duplicate, create a derivative work from, republish, adapt all or any part of the Service, the Website and the Documentation; (b) reverse engineer, reverse compile or disassemble any or part of the Service or the Website; (c) access all or part of the Service, Website or use the Documentation, in any way in order to build a product or service which competes with the Service; (d) licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the Services, End User only areas of the Website and Documentation available to any third parties; and (e) attempt to obtain, or assist a third party to obtain access to the Service, End User only areas of the Website and Documentation, other than as expressly provided in this clause The End User shall use all reasonable efforts to prevent any unauthorised access to the Service, End User only areas of the Website and Documentation, and in the event of such unauthorised access, shall immediately notify IPS. 2.8 The rights granted under this clause 2 are granted to the End User, and shall not be considered to be granted to any Affiliate of the End User or any third party. Subject to clause 3.2 and 11.11, IPS shall use its commercially reasonable endeavours to make the Service available for 24 hours a day, seven days a week. 3. SERVICE 3.1 IPS shall, during the Term, provide the Service and make available the Documentation and the EUI on the terms and conditions of this Agreement. 3.2 IPS shall use commercially reasonable efforts to make the Service and End User only areas of the Website available 24 hours a day, seven days a week except: (a) planned maintenance carried out during the maintenance window of 2:00am to 3:00am daily; and (b) scheduled maintenance performed by IPS s service providers being between 12:00am and 4am on provided that End User shall be given at least 3 days notice; (c) unscheduled maintenance performed outside of normal business hours (being 8:30 am to 5:30pm), provided IPS has used reasonable efforts to give the End User at least 2 hours notice in advance; and (d) at all other times, the Software shall perform in accordance with the Service Specifications 98% of the time. 3.3 In consideration of the payment of the initial Subscription Fee, IPS shall configure the Service with the Hardware and activate the Service and the Initial Storage Space, provide the Reseller with installation support and provide the End User with access to the EUI. 3.4 In consideration of the continuation of payment of the Subscription Fees as and when they become due, IPS shall provide the End User with: the right to continue to use the Service; access the EUI; and the Maintenance & Support Services. 4. END USER OBLIGATIONS The End User shall: 4

5 4.1 obtain all necessary access, data and information required to allow IPS to perform its obligations under this Agreement, including such access, data and information relating to the Network; 4.2 obtain any necessary access for IPS and its Resellers to the Premises and use its reasonable efforts to obtain any access to any surround premises (if and where necessary) to allow IPS and/or its Resellers to install the Hardware; 4.3 obtain any necessary licences (including any government licences or premises licences), consents and permissions required for IPS and its Resellers to perform their obligations under this Agreement, including entering into any agreements relating to the right to use the Hardware and any software required to run the Service; 4.4 ensure that, at all times, the Network is able to support provision of the Service; 4.5 comply with all applicable laws and regulations with respect to its activities under this Agreement; 4.6 be solely responsible for procuring and maintaining its Networks on which the Services will be provided and operate on, and the links from the Premises to IPS s data centres, and any and all problems, conditions, delays, delivery failures and other loss or damage arising from or relating to the Network; 4.7 permit IPS and/or its Resellers, onsite and remote access to the Network, Data, Hardware, and the Service, generally, to allow IPS and/or its Reseller to perform its obligations under this Agreement, including, but not limited to, any planned or unplanned maintenance, provision of upgrades (whether to the Network, Hardware or Documentation) and for the provision of the maintenance & support services. 5. END USER DATA 5.1 The End User shall own all right, title and interest in to all of the Data. 5.2 Unless explicitly requested in writing, all Data older than 90 days will be deleted. 5.3 Subject to the Service performing to the Service Specification the End User shall have the sole responsibility for its use of the Data, and the legality, reliability, integrity, accuracy and quality of the Data and its use by the End User. 5.4 IPS shall use its reasonable efforts to store and back-up the Data, which shall include the data privacy obligations made to IPS by the data storage provider that IPS uses in relation to the storage of the Data. 5.5 In the event of any loss or damage to the Data, the End User s sole and exclusive remedy shall be for IPS to use reasonable efforts to restore the lost or damaged Data from the latest back-up of such Data maintained by IPS in its archive. 5.6 IPS shall not be responsible for any loss, destruction, alteration or disclosure of Data caused by any third party (including those third parties sub-contracted by IPS to perform services related to data maintenance and back-up). 6. FINANCIALS 6.1 The End User shall the Subscription Fees to IPS in accordance with this clause The End User shall prepay all of the initial Subscription Fees prior to the Activation Date. 6.3 The End User shall prepay any subsequent Subscription Fees prior to their due date as notified by IPS in accordance to the monthly plan or PAYG options they have chosen. 6.4 Where the End User fails to pay any fees referred to in this Agreement before or on the date on which they fall due, IPS may, at its sole discretion, suspend all or part of the provision of the Service until such time as the fee(s) is/are paid in full. 6.5 All fees payable under this Agreement shall be paid in Australia Dollars (AUD$). 5

6 6.6 All fees shown in this Agreement are exclusive of GST, or any other taxes, which shall be added to IPS s invoices at the appropriate rate at the date of the invoice. 6.7 All fees payable under this Agreement are non-cancellable and non-refundable. 6.8 If at any time whilst using the Services, the End User exceeds the Initial Storage Space, IPS shall be entitled to charge the End User the excess storage space fees. Excess storage space fees shall be invoiced in arrears in the month in which the Initial Storage Space was exceeded. The End User is not liable for excess storage fees if they have not requested in writing that Data be kept longer than 90 days. 7. PROPRIETARY RIGHTS AND CONFIDENTIALITY 7.1 The End User acknowledges that IPS and its licensors are the owners of the intellectual property rights in the Service, Website, EUI, Trade Marks and Documentation, and this Agreement grants no rights title or interest in any such rights in the End User, other than as expressly set out in this Agreement. 7.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party's lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, provided that such independent development can be shown by written evidence; (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. 7.2 Each party shall hold the other s Confidential Information in confidence and, unless required by law, not make the other s Confidential Information available to any third party, or use the other s Confidential Information for any purpose other than the implementation of and the performance of its obligations and enjoyment of its rights under this Agreement. 7.3 Each party shall make all reasonable efforts and take all reasonable steps to ensure that the other s Confidential Information to which it has access is not disclosed or distributed by its employees, officers or agents in violation of the terms of this Agreement. 8. LIABILITY 8.1 Unless otherwise indicated, this clause 8 sets out the entirety of IPS s liability to the End User and in relation to the End User s use or inability to use the Service, the EUI, the Website and the Documentation. 8.2 The End User shall immediately inform IPS if it becomes aware of any unauthorised use of any of the intellectual property rights of IPS or its licensors, or any unauthorised use of the Services, the EUI, the Website and any unauthorised copying, reproduction, adaptation, distribution, dissemination or otherwise making available the Documentation to the public. 8.3 The End User shall immediately notify IPS in the event that it receives any notice that the Service, the EUI, the Website and/or the Documentation infringes any third parties rights. The End User shall not make any statements, offers of settlement or any admissions to the third party. In such instance, the End User shall cease use of the Service, the EUI, the Website, the Hardware and/or the Documentation immediately at the instruction and discretion of IPS. IPS shall have no liability to the End User for the cessation of all or part of the Service, the EUI, the Website, the Hardware or inability to use all or part of the Documentation. IPS shall have the sole authority to defend or settle any such claims made against the End User in relation to the Service, the EUI, the Website, the Hardware and/or the 6

7 Documentation. IPS shall have the right to procure the right for the End User to continue using the Service, the EUI, the Website, the Hardware and/or the Documentation from the third party, or replace, modify or adapt the Service, Website or Documentation so that they no longer infringe the third party s rights, provided that the user experience is similar to that set out in the Service Specifications. Failing this, IPS may terminate this Agreement, in which case, IPS s sole liability shall be the refund of any Subscription Fees incurred by the End User in the last 12 months from the date of notification of termination by IPS under this clause 8.3. IPS shall have no liability to the End User in the event that the use of the Service, the EUI, the Website and/or Documentation by the End User objected to by the third party is not use: (a) in accordance with the terms of this Agreement; (b) (c) (d) (e) in accordance with any instructions issued to the End User by IPS;, after termination of this Agreement; caused by any modifications to the Services, the EUI, the Website and/or the Documentation by anyone other than IPS; or use after IPS has instructed the End User to cease its use of the Service, the EUI, the Website, the Hardware and/or the Documentation under this clause 8.3. This clause 8.3 sets out the End User s sole remedy in relation to any allegations of intellectual property rights infringement arising as a result of the End User s use of the Service, the EUI, the Website, the Hardware and/or the Documentation. 8.4 The End User shall provide IPS with any and all reasonable assistance in relation to: (a) taking action against any unauthorised use of the Service, the EUI, the Website, the Hardware and/or the Documentation including as referred to in clause 8.2; or (b) defending any action against the End User s use of the Service, the EUI, the Website, the Hardware and/or the Documentation including as referred to in clause 8.3, provided that IPS shall reimburse the End User for its reasonable costs and expenses incurred in providing such assistance. 8.5 To the full extent possible by law, and except where expressly indicated in this Agreement, IPS expressly and impliedly excludes any and all liability under this Agreement and makes no warranties, guarantees, representations or indemnities in relation to the Service, the EUI, the Website, the Hardware and/or the Documentation. Furthermore, IPS expressly and impliedly excludes any indirect loss; consequential loss; loss of goodwill; loss of opportunity; loss of business; or loss of profit, whether arising in contract, tort (including negligence, misrepresentation or breach of statutory duty), as a result of breach of this Agreement or otherwise, including the refusal of IPS to grant the End User a right to use the Service, the EUI, the Website, the Hardware and/or the Documentation. 8.6 IPS shall have no liability for any costs, expenses, losses or damages incurred by the End User as a result of the suspension of the Service caused through IPS s exercise of its rights and obligations under this Agreement, including, but not limited to, the right to suspend the service for non-payment and to conduct maintenance in accordance with the terms of this Agreement. 8.7 Except as set out in clause 8.3, IPS shall have no liability whatsoever to the End User or any third parties in relation to the use that the End User makes of the Service, the Hardware, the EUI, the Website, the Hardware and/or Documentation and the use the End User makes of the Data. 8.8 The End User shall indemnify and hold harmless, IPS from any costs & expenses (including reasonable and appropriate legal costs & expenses), losses and/or damages that IPS incurs or suffers as a result of any threats, demands, suits and/or legal or administrative proceedings that arise as a result of the End User s breach of clause

8 8.9 IPS s total aggregate liability to the End User under this Agreement and in relation to the End User s use or inability to use the Service, the EUI, the Website, the Hardware and Documentation shall not exceed $10,000 or the total of any Subscription Fees incurred by the End User in the 12 month period ending on the date on which notice of the liability is received by IPS, whichever is the lesser. 9. TERM AND TERMINATION 9.1 This Agreement shall be effective from the Effective Date and shall, continue unless terminated in accordance with clause 9.2, 9.3 and/or IPS may terminate this Agreement: (a) immediately upon a material breach by the End User of this Agreement. In this regard, and without prejudice to the foregoing, any breach of clauses 2.2, 2.6, 2.7 and 11.1, and three or more failures to pay the Subscription Fees on time in accordance with clause 6.3 in any given 12 month period beginning on the due date of the first late payment, shall be deemed to be a material breach for the purposes of this clause giving IPS and immediate right to terminate; (b) the End User becoming insolvent or being unable to pay its debts as and when they fall due; and/or (c) without cause, by giving the End User, 90 days notice in writing, such that the Agreement shall terminate at the expiry of that 90 day period. 9.3 The End User may terminate this Agreement immediately upon material breach by IPS. 9.4 Upon termination of this Agreement under clause 9.2 or 9.3, the End User shall immediately cease any and all use of the Service, of the EUI, the Website and at IPS s election, return to IPS or destroy any and all Documentation (and any copies thereof), and IPS shall deactivate the Service and the End User s access to the EUI and the Service. 9.5 IPS shall, within a reasonable time after termination return the Data to the End User. 10. GOVERNING LAW This Agreement shall be governed by and construed under the laws and regulations of New South Wales, Australia. 11. MISCELLANEOUS Assignment 11.1 Other than as set out in clause 11.2, the End User may not assign, transfer, pledge or otherwise encumber this Agreement and any such attempt by the End User to assign this Agreement shall be null and void and confer on the assignee no rights to use the Service, Website or possess the Documentation The End User may, upon written consent from IPS permit the assignment of the benefit of this Agreement to an Affiliate provided that the End User shall remain liable to IPS in relation to the burdens and obligations set out in this Agreement. Any attempt by the End User to assign this Agreement to an affiliate other than in strict compliance with this clause (including and especially obtaining written consent from IPS) shall be null and void and confer on the assignee no rights to use the Service, Website or possess the Documentation IPS may assign this Agreement without notice to an Affiliate, provided that such Affiliate is of sound financial standing and is the owner of licensee of the Service, Website and Documentation. No Partnership or Agency 11.4 Each party shall be, and shall endeavour to act as, the independent contractor of the other party. Nothing in this Agreement shall create, or be deemed to imply the creation of, any partnership, joint venture, principal and agent, master and servant or other relationship. Neither party shall be the legal agent of the other for any purpose whatsoever and has no right or authority to make or 8

9 underwrite any promise, warranty, representation or indemnity to execute any contract or otherwise to assume any obligation or responsibility in the name of or on behalf of the other party. No Waiver and Amendment 11.5 A party s failure in any one or more instances to insist upon strict performance of any of the provisions of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment of that right or of that party s right to assert or rely upon the provisions of this Agreement. Any express waiver of a provision of this Agreement shall not be binding and effective unless made in writing and properly executed by the waiving party. Any waiver under this Agreement shall apply only to the party to whom it is addressed and will not survive the transfer of this Agreement Unless specifically provided otherwise, rights arising under this Agreement do not preclude rights at general law This Agreement may not be amended except in writing properly executed by both parties. Except as specifically amended, this Agreement shall remain in full force and effect as written. Entire Agreement 11.8 This Agreement and any documents expressly incorporated by reference into this Agreement, represent the entire agreement between the parties in relation to the Service, Website and Documentation Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement. Severance If any provision of this Agreement is found by a competent court, or competent administrative body, to be fully or partially invalid or unenforceable for any reason whatsoever, or found to violate any applicable law, such provisions shall be deemed to be deleted from this Agreement, and the remainder of this Agreement, to the extent permissible shall be valid and binding as if such provisions were not previously included in this Agreement with whatever modifications necessary to give effect to the commercial intention of the parties. Force Majeure IPS shall have no liability to the End User under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of IPS or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. IPS shall use its reasonable efforts to notify the End User of such an event and its expected duration. Survival Notwithstanding termination of this Agreement, the following clauses shall survive termination of this Agreement: clause 1 (to the extent necessary to interpret any of the following clauses), clauses 2.4, 2.5, 2.6, 2.7, 5, 6, 7, 8, 9, 10 and 11.4 to (inclusive). 9