CONTRACT START DATE:
This contract starts from when you have signed this document
CONTRACT MINIMUM TERM:
If order form consists of a hardware repayment or rental, the contract will have a minimum term of 36 months from contract state date which will be 36 equal payments, unless stated otherwise.
1. GENERAL
(a) You will be taken to have accepted these terms and conditions (and the remainder of this agreement including any applicable Order Form) if you sign these terms and conditions or if you order, accept or pay for any services provided by Linxio after receiving or becoming aware of these terms.
(b) The Software licence, and applicable parts of this agreement, will continue to renew automatically as described in clause 17.3, unless and until the Client provides Linxio with notice that this agreement is to be terminated in accordance with the applicable timeframes and other requirements in clause 17.
(c) In the event of any inconsistency between these terms and conditions and any Order Form, the clauses of these terms and conditions will prevail to the extent of any inconsistency.
(d) Words used in this agreement have the meaning given to them in the Order Form, or by the words immediately preceding the defined word bolded and in brackets.
2. PARTY OBLIGATIONS
2.1 SERVICES
(a) In consideration for the payment of the Fees, Linxio will provide the Client with the Services set out in an Order Form and in accordance with clauses 4, 5, 6, 7, 9, 10, and 11 as applicable.
(b) Unless otherwise agreed, Linxio may, in its absolute discretion:
(i) not commence work on any Services until the Client has paid any Fees or deposit payable in respect of such Services; and
(ii) withhold delivery of the Services or any part of the Services until the Client has paid the invoice in respect of such Services.
(c) If you want to change the option you have selected for payment for the Hardware, we will agree to a new Order Form that sets out the variation to the Services and the Fees.
2.2 CLIENT OBLIGATIONS
(a) The Client must provide Linxio with all documentation, information and assistance reasonably required by Linxio to perform the Services.
(b) The Client agrees that it will not by receiving or requesting the Services:
(i) breach any applicable laws, rules and regulations (including any applicable privacy or stalking laws); or
(ii) infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.
(c) The Client must notify all users of the Vehicle that the Linxio Solution is installed on the Vehicle and of the purpose and capabilities of the Linxio Solution.
(d) The Client must only use the Hardware and Software in accordance with the user manual and installation manual provided by Linxio to the Client. The Client must ensure that all other persons accessing the Services are familiar with those manuals.
3. PAYMENT
(a) The Client must pay to Linxio the Fees in the amounts and at the times set out in the cost breakdown in the Order Form (Upfront fees and recurring fees), regardless of the quantity or quality of data obtained by the Client through using the Services, unless subject to clause 17.1
(b) If you are taking the Hardware on a Monthly Payment Plan (or switch to a Monthly Payment Plan during the Term in accordance with clause 2.1(c)), you must pay:
(i) the Subscription Fees in full each month; and
(ii) the equivalent of one more Monthly Subscription Fee at the end of the Term if you want to keep the Hardware.
(c) Linxio reserves the right to suspend all or part of the Services indefinitely where the Client fails to pay the Fees in the amounts and times specified in the Order Form.
(d) If the Client fails to make a payment on the date due in accordance the Order Form, interest will accrue at the rate of 2% per month calculated on a daily basis.
(e) If, after 30 days after a payment due date, you fail to make a payment, Linxio may refer the matter to third party debt collectors. You consent to Linxio providing your details to third party debt collectors for the purposes of this clause.
(f) Unless otherwise indicated, amounts stated in an Order Form do not include GST. In relation to any GST payable for a taxable supply by Linxio, the Client must pay the GST subject to Linxio providing a tax invoice.
(g) Linxio reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
4. SOFTWARE
(a) The Software is owned by Linxio. Nothing in this agreement transfers ownership rights in any intellectual property in the Software.
(b) Linxio grants to the Client a non-exclusive, non-transferable licence to use the Software during the Term for the Client’s business management purposes for the Subscription Period.
(c) The Client must not, and must not encourage or permit any third party to, without Linxio’s prior written approval:
(i) make copies of the Software;
(ii) adapt, modify or tamper in any way with the Software;
(iii) remove or alter any copyright, trade mark or other notice on or forming part of the Software;
(iv) create derivative works from or translate the Software;
(v) publish or otherwise communicate the Software to the public, including by making it available online or sharing it with third parties;
(vi) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software to any third party;
(vii) decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;
(viii) attempt to circumvent any technological protection mechanism or other security feature of the Software; or
(ix) permit any other person to use or access the Software.
(d) The data collected through the Software may not be completely accurate as factors such as GPS reception and Hardware issues affect measurements, and Linxio’s algorithms are approximate. The Client acknowledges and agrees that any measurements or other data provided to the Client are approximate.
(e) The Client acknowledges and agrees that the look and feel, and functionality, of the Software may change during the Term in accordance with Enhancements made under clause 11.
5. HARDWARE
All Hardware provided to you was designed by Linxio and manufactured by a third party.
5.1 RENTAL
Where an Order Form states that the Services include a Rental for the Hardware:
(a) The Hardware is rented to you, and will at all times be and remain the property of Linxio. You will not have any right, title or interest in or to the Hardware except as expressly set out in these Terms. You must not, without Linxio’s prior written consent, part with possession of the Hardware during the Term.
(b) You must ensure that no damage is caused to the Hardware during the Term.
(c) Risk of damage and loss will transfer to the Client on delivery of the Hardware.
(d) You must return the Hardware at the end of the Term, unless you notify us that you wish to swap to a Monthly Payment Plan no less than one month prior to the end of the Term. If you fail to return the Hardware within 30 days from the end of the Term, this agreement will continue to renew despite any notice of your intention to discontinue and you will continue to be liable to pay the Monthly Fees.
5.2 MONTHLY PAYMENT PLAN
Where an Order Form states that the Services include a Monthly Payment Plan for the Hardware:
(a) You acknowledge and agree that no rights of ownership in the Subscription Hardware vest in you during the Term.
(b) You must ensure that no damage is caused to the Hardware during the Term. Risk of damage and loss will transfer to the Client on delivery of the Hardware.
(c) Ownership will transfer to the Client when the payment criteria in clause 3(b) have been met.
5.3 HARDWARE OWNERSHIP
Where an Order Form states that the Services include the Client purchasing Hardware:
(a) ownership and risk of damage and loss will transfer on delivery of the Hardware; and
(b) the Hardware is non-refundable, including if this agreement is terminated for any reason, unless there is a failure or fault of the Hardware not caused by the Client. To avoid doubt, if Hardware is no longer required or is no longer able to support the business operations of the Client, no refund will be provided.
6. INSTALLATION
Where an Order Form states that the Services include Linxio performing Installation Services:
(a) the Installation Services will provide instructions to clients on how the immobilisation function of the Software should be configured;
(b) the costs for Installation Services are restricted to performance within 25kms of major capital cities. Outside this radius, additional travel and call out fees may apply.
(c) the Client must ensure that the premises and Vehicles are made available to Linxio at the time that Linxio nominates, in its absolute discretion, for Installation. If the installer needs to wait for the Vehicle to be ready, there will be a waiting charge of $50+GST per 30 minutes of waiting, or a rescheduling fee (where the Vehicle is unavailable) of $150+GST; and
(d) the Client is responsible for providing Linxio with all information, furniture and power relevant to Linxio being able to complete the Installation at the time specified.
Where an Order Form states that the Services do not include Linxio performing Installation Services, Linxio accepts no responsibility for the successful installation of the Software. The Hardware must be installed by a qualified auto-electrician to avoid voiding any warranty.
Additional costs of $75+GST will apply for removal or re-installation of the Hardware.
7. THIRD PARTY TELECOMMUNICATION PROVIDERS
(a) Use of the Software requires access to third party telecommunications providers.
(b) All signal coverage indicated on maps provided by telecommunications providers are intended as a “guide only” at the time of publication.
(c) As with any network based on satellite and wireless technology, local conditions may impact on the reception within the coverage areas, this may include such things as mountains, hills, bridges, power lines, road cuttings, tunnels, concrete buildings etc.
(d) Linxio is not in control of the wireless networks and internet connections used and cannot accept responsibility for any shortcomings or failures of any satellite, wireless, telecommunication networks or internet connections.
(e) Linxio is not liable for any inability to deliver due to any failures or downtime of any satellite, wireless network or internet connections used, even if such downtime causes the Client to not be able to access the Services and any consequences of that failed access.
8. IMMOBILISATION
The Client:
(a) acknowledges that the Software is not designed to immobilise Vehicles except in appropriate circumstances.
(b) represents and warrant that they are a company registered in Australia, genuinely operating as a business and obtaining the Solution for business purposes that are in accordance with all applicable laws;
(c) acknowledges and agrees that the nature of immobilising the Vehicle has inherent risks;
(d) must notify their customer that they intend to use the immobilisation function and instruct them to ensure that the Vehicle is in a safe location prior to using the immobilisation function; and
(e) must ensure that the Vehicle is fitted with a warning label which shows that the Vehicle is fitted with the Linxio Solution and to ensure that the Linxio Solution does not impact user safety.
9. SUPPORT SERVICES
(a) You acknowledge and agree that the Solution is to be self-managed through our web portal. Linxio cannot guarantee that the web portal or the Solution will always be functional.
(b) For the Support Services described in an Order Form, Linxio will use its best endeavours to assist you as soon as practicable.
(c) If we cannot resolve the issues within 30 days:
(i) you will be credited with the pro rata portion of time to access the Software licence and Hardware if applicable; and
(ii) you will not have a right to a refund for the Hardware or to terminate this agreement.
10. BACK-UP SERVICES
The Services include the back-up or storage of the Client’s information, data or other electronic materials (Backup Services). The Client acknowledges and agrees that:
(a) (backup location) Linxio will only use servers located in Australia wherever conveniently possible;
(b) (security) While Linxio will use its best efforts to ensure that any Client information, data or other electronic materials (Client Data) that is being backed-up or stored as part of the Backup Services will be stored securely, Linxio will not be liable for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference;
(c) (service quality) Linxio does not guarantee that:
(i) backups of Client Data will be free from errors or defects; or
(ii) backups of Client Data will be accessible or available at all times; and
(b) (backups & disaster recovery) Linxio will use its best efforts to create scheduled backups of Client Data stored by Linxio. In the event that Client Data is lost due to a system failure, Linxio will attempt to restore the Client Data from the latest available backup but cannot guarantee that this backup will be free from errors or defects.
11. ENHANCEMENTS
(a) Linxio may offer and install enhancements to the Software at any time, including new features and removal of features, bug fixes and tweaks. No enhancements, including removal of features, will entitle the Client to any refund or discount.
(b) All enhancements offered and installed by Linxio:
(i) are licensed by Linxio to the Client upon the same terms as this agreement; and
(ii) will be taken to be part of the original licensed copy of the Software and subject to this agreement.
(c) If enhancements are provided, the Client acknowledges and agrees that installation of enhancements may cause interruptions to the Services.
12. THIRD PARTY PROVIDERS
(a) The Client acknowledges and agrees that Linxio relies on Third Parties to deliver the Services. While every effort is made to ensure that the Services are delivered, the failure of third parties to perform activities may cause disruptions to the Services. Where this occurs, Linxio will use its best endeavours to ensure that disruptions are promptly resolved.
(b) If the Services involve Linxio acquiring goods and services supplied by a third party on the Client’s behalf or the use of third party providers to provide the Services, third party terms & conditions (Third Party Terms) may apply.
(c) The Client agrees to any Third Party Terms applicable to any third party goods and services that are used in performing the Services, and Linxio will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
13. DISCLAIMERS
(a) The Client acknowledges and agrees that due to circumstances beyond the control of Linxio, including software viruses, power failure, electrical or topological interference, equipment malfunction, tampering by unauthorised persons and the actions and omissions by suppliers of telephone services, police or emergency services or security patrol services, the Services may not operate at certain times for unknown periods.
(b) The Client acknowledges and agrees that Linxio is not responsible for damage or loss caused to the Hardware or a failure of the Software to perform, as a result of any location, accident, vandalism or other incident beyond Linxio’s control.
(c) The Customer acknowledges and agrees that installing the Hardware into a Vehicle could potentially cause damage to the Vehicle.
14. WARRANTIES
(a) The Hardware has the benefit of 36 months’ warranty against defects for a period of 36 months from the Commencement Date. This warranty is void if the Hardware has been misused or otherwise damaged by the Client. In addition, the Hardware may be covered by a manufacturer’s warranty.
(b) If the Hardware was Installed by a Linxio representative, warranty on labour is covered for a period of 7 days after the installation completion form has been signed (which will be taken to be the Installation date for the purposes of calculating the 7 days).
(c) To the maximum extent permitted by applicable law, all other express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement or an Order Form are excluded.
(d) Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, Linxio’s liability for breach of that non-excludable condition, warranty or guarantee will, at Linxio’s option, be limited to:
(i) in the case of goods, their replacement or the supply of equivalent goods or their repair; and
(ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
15. LIABILITY
(a) To the extent permitted by applicable law, Linxio’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or death or other damage) arising under or in connection with this agreement or an Order Form:
(i) is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill; and
(ii) is limited, insofar as concerns other liability, to the total money paid to Linxio under this agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
(b) The Client indemnifies Linxio from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
(i) any breach of this agreement by the Client; or
(ii) any negligent, fraudulent or criminal act or omission of the Client or its personnel.
16. DISPUTE RESOLUTION
(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this agreement prior to commencing any proceedings.
(b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.
(c) The parties acknowledge that compliance with this clause 16 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
(i) in the case of applications for urgent interlocutory relief; or
(ii) a breach by another party of this clause 16.
17. TERMINATION
17.1 TERMINATION FOR TECHNICAL ISSUES
(a) If a technical issue occurs with a Hardware device (Technical Issue), the Client must notify Linxio in writing.
(b) If Linxio fails to remedy the issue within 30 days of the notice of the Technical Issue, the Client will be refunded one month of Fees for the devices in question.
(c) If, after another 30 days from the date in subclause (b) of this clause, Linxio cannot resolve the Technical Issue, the Client may terminate only the faulty device/s in this agreement by written notice to Linxio after returning the hardware to Linxio and has been confirmed recieved.
17.2 EARLY TERMINATION BY CLIENT
The Client may terminate this agreement in whole or in part immediately by written notice to the Company if:
(a) Linxio has committed a material breach of this agreement or an Order Form (which is not a Technical Issue) and has failed to remedy the breach within 30 days of written notice by the Client;
(b) Linxio consents to such termination, subject to the Client’s fulfillment of any pre-conditions to such consent (e.g. payment of a pro-rata portion of the agreed fees); or
(c) Linxio becomes subject to any form of insolvency or bankruptcy administration.
17.3 TERMINATION BY CLIENT AT END OF THE TERM
(a) Unless subclause (b) of this clause applies, at the end of the Term, the Client may terminate this agreement with no less than 60 days’ written notice to Linxio. If the Client does not notify Linxio that it intends to terminate, this agreement and all applicable Fees will continue to renew in accordance with clause 1(b).
(b) If you have Hardware on Rental, at the end of the Term, the Client may terminate this agreement with no less than 30 day’s written notice to Linxio. If the Client does not notify Linxio that it intends to terminate, this agreement will roll over to a 12 month Software Subscription and all applicable licences and Fees will apply.
17.4 TERMINATION BY LINXIO
Linxio may terminate these terms or any Order Form in whole or in part immediately by written notice to the Client if:
(a) the Client is in breach of any term of these terms or any part of an Order Form;
(b) the Client becomes subject to any form of insolvency or bankruptcy administration; or
(c) the Client is involved, or Linxio reasonably suspects that the Client is involved, in illegal activities.
17.5 EFFECT OF TERMINATION
Upon termination of this agreement, the Client must promptly pay (at Linxio’s request):
(a) outstanding Fees for Services to date and during the termination notice period; and
(b) payments required by Linxio’s suppliers to discontinue their work.
If the Client has possession of the Hardware in accordance with a Monthly Payment Plan or a Subscription, the Client must also promptly pay the remainder of the Hardware costs for the Term or return the Hardware.
17.6 SURVIVAL
Any provision of these terms (including in an Order Form) which, by its nature, would reasonably be expected to be performed after the termination, shall survive and be enforceable after such termination.
18. NOTICES
(c) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond for the purposes of the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(d) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party,
whichever is earlier.
19. GENERAL
19.1 GOVERNING LAW
This agreement is governed by the law applying in New South Wales, Australia.
19.2 JURISDICTION
Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
19.3 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
19.4 AMENDMENTS
This Agreement may only be amended by a document signed by each party.
19.5 WAIVER
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
19.6 FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
19.7 ENTIRE AGREEMENT
This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.
