1 Scope of agreement
(a) This agreement comprises the Buyer Specification and these terms and conditions. The terms and conditions will prevail to the extent of any inconsistency between the Buyer Specification and the terms and conditions.
(b) You agree that the Services and Equipment provided under this agreement is provided to you personally and you shall not provide or make available the use or benefit of the Equipment or Services to any other person.
(c) You agree that, during the term of this agreement, you shall not use, or connect to, the LoRa network for anything other than the Equipment and Services without the prior written consent of mOOvement.
(d) You agree that you shall comply with mOOvement's fair use policy, as updated from time to time.
(e) You agree that a breach of this clause 1 shall constitute an irremediable material breach of this agreement by you.
(a) The agreement starts on the Commencement Date and continues for the term set out in the Buyer Specification, unless terminated earlier under clauses 2(b) or 11.
(b) You may terminate this agreement on each anniversary of the Commencement Date, provided that you give to us not less than 1 months' notice prior to the relevant anniversary.
(a) Subject to you paying the Equipment Fee not less than 14 days after the date on which you execute this agreement, mOOvement shall use its reasonable endeavours to deliver the Equipment to the Installation Location on the Installation Date. mOOvement uses third parties to deliver the Equipment, and shall not be responsible for any delays in delivery caused by those third parties.
(b) Risk in the Equipment shall pass on delivery of the Equipment at the Installation Location.
(c) Title in the Equipment shall pass on the later of delivery and the date on which mOOvement receives payment of the Equipment Fee.
(d) mOOvement warrants that, provided the Equipment has been properly installed and maintained in accordance with all relevant requirements, throughout the Warranty Period, the Equipment shall:
(i) conform in all material respects with the relevant description; and
(ii) be free from material defects in design, material and workmanship.
(e) Subject to clause 4 if:
(i) you give notice in writing to mOOvement during the Warranty Period, promptly after discovery that some or all of the Equipment does not comply with the warranties set out in clause 3(d);
(ii) mOOvement is given a reasonable opportunity to examine such Equipment; and
(iii) you (if asked to do so by mOOvement) return such Equipment to mOOvement's place of business at mOOvement's cost,
mOOvement shall, at its option and as your sole and exclusive remedy, repair or replace any Equipment found to be defective, or refund the Equipment Fee of such defective Equipment in full.
(a) Subject to you paying the Services Fee in respect of each Year, mOOvement shall supply the Services to you from the Installation Date and for the remainder of the term of this agreement.
(b) In supplying the Services to you, mOOvement shall:
(i) perform the Services with reasonable skill and care; and
(ii) use reasonable endeavours to perform the Services in accordance with any description of the Services set out in this Agreement.
(c) Notwithstanding the foregoing, mOOvement:
(i) does not warrant that your use of the Services will be uninterrupted or error-free, as connectivity is influenced by a variety of factors beyond mOOvement's control, such as the unpredictable movement of cattle; and
(ii) is not responsible for any delays, delivery failures, or any other loss or damage resulting from any equipment or connections for which you are responsible or for the transfer of data over communications networks and facilities, and you agree that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
(d) You acknowledge and agree that you are solely responsible for:
(i) procuring and maintaining a device and network and system that is compatible to receive the Services;
(ii) any charges that you may incur from your telecommunications network provider as a result of your use of the Services; and
(iii) promptly carrying out any ‘self-help’ activities that we advise from time to time.
(e) You must use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services.
5 Fees and payment
(a) You shall pay the Equipment Fee not less than 14 days after the date on which you execute this agreement. The Equipment Fee excludes the costs of packaging, insurance and transport of the Equipment, which shall be invoiced to the you in addition to the Equipment Fee.
(b) You shall pay the Services Fee not less than 14 days after the date on which you execute this agreement and, in respect of each subsequent year, not less than 14 days prior to the start the relevant year.
(a) In this clause 6, the expressions consideration, GST, input tax credit, recipient, supplier, supply, and tax invoice have the same meaning given by the GST Law.
(b) GST Law has the same meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(c) Unless expressly stated otherwise, all amounts set out in this agreement are exclusive of GST.(d) If GST is payable on any supply made under this agreement by a party to another party the recipient must, subject to clause 6(e), pay to the supplier, in addition to and at the same time as the consideration is payable or to be provided for the supply, an additional amount calculated by multiplying the value of that consideration by the prevailing GST rate.
(e) The supplier must issue a valid tax invoice to the recipient before any payment for a supply made by the supplier under this agreement is due.
(f) Any reference to a cost or expense in this agreement excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party is entitled to an input tax credit.
7 Intellectual property
(a) mOOvement and its licensors shall retain ownership of all mOOvement IPRs.
(b) mOOvement grants you, or shall procure the direct grant to you of, a personal, worldwide, non-exclusive, royalty-free, licence to use the mOOvement IPRs solely for the purpose of receiving and using the Services and the Equipment for your business during the term of the agreement.
(a) A recipient of Confidential Information may only use the Confidential Information of the discloser for the purposes of performing the recipient’s obligations or exercising the recipient’s rights under this agreement.
(b) A recipient must:
(i) not disclose the Confidential Information of the other to any person except if this agreement permits;
(ii) not assist or permit any person to make any unauthorised use of the discloser’s Confidential Information; and
(iii) take reasonable steps to safeguard the Confidential Information, including co-operating with the discloser as reasonably required to protect the confidentiality of its Confidential Information.(c) A recipient may disclose Confidential Information to:
(i) its Representatives on a "need to know basis"; or
(ii) any other person only with the discloser's prior written consent. Before doing so, the recipient must ensure that those persons are aware of the confidential nature of the Confidential Information and are bound by confidentiality obligations consistent with this agreement.
(d) On expiry or termination of the agreement, mOOvement may request you to deliver to mOOvement, or destroy and certify the destruction of, all documents and other materials in any medium in your or your Representatives' possession or control which contain or refer to mOOvement's Confidential Information.
(a) mOOvement owns all right, title and interest in and to all of the mOOvement Data, and you hereby assign to mOOvement (including as a present assignment of future copyright) all right, title and interest in and to all mOOvement Data. mOOvement is permitted to sell or license any mOOvement Data to third parties, however mOOvement shall not sell or license any data to third parties where it is possible to identify you from that mOOvement Data without your prior written consent.
(b) mOOvement grants you a licence to access the Output Data for the term of this agreement solely for your internal business purposes. Your right to use the Output Data does not include the right to sub-licence it, nor to sell or otherwise exploit it, nor to combine it with other data sources.(c) You shall not be permitted to disclose the Output Data to any third party, other than where the Output Data is anonymised, without the prior consent of mOOvement.
10 Liability and indemnity
(a) You indemnify mOOvement, members of the mOOvement Group and each of their employees, officers, agents and contractors from and against all losses, damages, liability, costs and expenses (including legal expenses on a full indemnity basis) sustained or incurred by those indemnified and which arise out of or in connection with any:
(i) personal injury or death to any person or damage to, or loss of any tangible property caused or contributed to by you or any of your Representatives;
(ii) unlawful or fraudulent act or omission or willful breach of this agreement by you or any of your Representatives; and(iii) breach of confidentiality or data obligations under this agreement.
(b) Your liability under clause 10(a) is not subject to any limit or exclusion of liability under this clause 10. Otherwise, to the extent permitted by law, the liability of a party under this agreement will:
(i) be limited in the aggregate to an amount equal to the average fees paid by you in any contract year (a contract year being a 12 month period commencing on the Commencement Date or any anniversary of it); and
(ii) not include any consequential losses or damages or loss of profits, loss of sales or business or loss of anticipated savings (each whether direct or indirect).
(c) To the extent permitted by law, a party's liability to the other party under or in connection with the agreement is reduced to the extent, if any, to which the other party’s acts or omissions cause or contribute to its own loss or damage.
(d) The limitations and exclusions of the liability set out in this clause 10 apply regardless of the basis on which such liability arises, whether in contract, breach of statutory duty, tort (including negligence), in equity or under statute.
(a) Without limiting any other rights which a party may have at law, a party may immediately terminate this agreement by written notice to the other party if the other party breaches:
(i) a material term or condition of this agreement (including any of clauses 1, 5, 6, 8, 10, 13 and 14); or
(ii) a non-material term of this agreement and fails to remedy such breach within 30 days of receipt of a written notice from the other party requiring it to do so.
(b) Without limiting any other rights which mOOvement may have at law, mOOvement may immediately terminate this agreement by written notice to you if you fail to pay any amount due under this agreement on the due date for payment and remain in default not less than 30 days after being notified in writing to make such payment.
(c) The rights and obligations under clauses 8, 9(c), 10 and 13 and any other clause which by its nature is intended to survive the termination of expiry of this agreement will continue in full force and effect after this agreement ends.
(d) All rights that a party has accrued before the agreement ends continue after expiry or termination.
12 Force Majeure
mOOvement is not liable to you under this agreement if mOOvement 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 mOOvement 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 sub-contractors. mOOvement must notify you of any such event and its expected duration.
You must not make any public statement about this agreement, the subject matter of this agreement or your relationship with mOOvement that may adversely impact mOOvement’s business or reputation without the prior written approval of mOOvement.
14 Subcontracting and assignment
(a) You must not sub-contract any of your obligations or assign or otherwise transfer any part of your rights or obligations under this agreement without mOOvement's prior written consent.
(b) mOOvement may sub-contract any of its obligations or assign or otherwise transfer its rights or obligations under this Agreement to any member of the mOOvement Group without notice to you.
(c) The parties agree that the rights and obligations of both parties under this agreement shall not be affected by any change in the control of mOOvement.
(a) This agreement forms the entire agreement between you and mOOvement in relation to its subject matter and replaces all previous agreements, arrangements, understandings, representations or other communications between the parties in relation to that subject matter.(b) Any changes to this agreement must be agreed in writing by you and mOOvement.
(c) This agreement is governed by the laws of Queensland, Australia. The parties submit to the jurisdiction of the courts of Brisbane, Queensland, and the Commonwealth of Australia.
(d) No waiver of a right or remedy under this agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted. A single or partial exercise of a right or remedy under this agreement does not prevent a further exercise of that or of any other right or remedy.
(e) Any provision of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The remainder of this agreement will remain in full force and effect.
(f) The words 'including' and similar expressions are not used as, nor are intended to be, interpreted as words of limitation.
(g) Unless context requires otherwise, a reference to a thing (including a chose in action or other right) includes a part of that thing.
(h) This agreement may be executed in any number of counterparts, each of which, when executed, is an original. Those counterparts together make one instrument.
Commencement Date means the date so specified in the Buyer Specification.
Confidential Information means in relation to a party, information that is by its nature confidential, is designated by that party as confidential, or the other party knows or ought reasonably to know is confidential, and includes any information relating to the financial affairs, assets or liability of a party, or any information relating to the internal management of a party, its personnel, policies, plans, strategies, customers, suppliers, products or services, and includes all mOOvement Data. Confidential Information does not include information or material which:
(a) is or becomes generally known to the public other than through a breach of this agreement;
(b) at the time it was first disclosed to a party, was already in that party's lawful possession;
(c) is developed independently by a party; or
(d) is disclosed to a party by a third party entitled to disclose it.
Equipment means the equipment provided by mOOvement, in the quantities set out in the Buyer Specification.
Equipment Fee means the fee payable by you for the Equipment, as set out in the Buyer Specification.
mOOvement Data means all data stored, processed, created or generated in the provision of the Services, including the Output Data.
Installation Date means the installation date set out in the Buyer Specification.
Installation Location means the installation location set out in the Buyer Specification.
IPR means all industrial and intellectual property rights of any kind (whether or not registered) including copyright, patents, trade marks, design, moral rights and other proprietary rights. mOOvement Group means mOOvement and its Related Bodies Corporate.
mOOvement IPR means all IPR subsisting in the Equipment and any materials provided by mOOvement to you in the course of providing the Services.
Output Data means data information collected from the GPS eartags made available to you as an output of the Services.
Related Bodies Corporate has the meaning given in the Corporations Act 2001.
Representatives means, in relation to each party, any person acting for or on behalf of that party and includes any director, officer, employee, agent, contractor, legal advisor or professional advisor.Services means the services provided by mOOvement using the Equipment, which consists of network data usage and an online tag management portal, providing data insights.
Services Fee means the services fee payable annually in advance by you, as set out in the Buyer Specification.
Warranty Period means the relevant period from the date on which the relevant Equipment is delivered you, as set out below:
Electronics (Solar Kit)