EIR APP TERMS OF USE

WARNING: You (the Client) make a binding legal contract with us (Efficiency Matrix) which includes these Terms of Use when you download the EIR App and create a user account with us. PLEASE READ THESE TERMS OF USE CAREFULLY.

  1. Definitions:

“Account” means the user account that we create for you when we accept your Account Request.

“Account Request” means the online request you make for an account with us when you download the EIR App from the Apple App Store, requesting provision of the Services and a Licence to use the EIR App.

“Agreement” means our Agreement with you, made up of: (A) your Account Request; and (B) these TOU.

“Business Day” means any day except a public holiday in the place where the relevant act is to be performed or the relevant notice will be received.

“Confidential Information” means information that, at the time it is disclosed, is marked or identified by the disclosing Party to the receiving Party as confidential, secret, or anything similar, but does not include information: (a) already in the public domain, or (b) which the receiving Party has already invented independently, or (c) which the receiving Party has obtained from a third party who does not breach any confidentiality obligation by providing that information. In particular, Confidential Information includes the proprietary features of the EIR App which the Client learns about or is given access to by being granted the Licence.

“Client” or “you” means the person or entity that makes this Agreement with us, and includes your principals, directors, employees, contractors, and agents.

“EIR App” or “Application” means the Energy Leaks Defects Reporter application for mobile devices authored by us, in all versions and including all updates, and including all Intellectual Property comprised in those versions and updates.

“Equipment” includes all equipment and hardware owned or leased by the Client, which is used in conjunction with the EIR App, including an iPhone and a Flir heat-sensitive camera.

“Fees” includes all amounts that the Client is obliged to pay us under this Agreement.

“ICT Assets” includes all software, servers, online environments, databases, mobile or desktop applications, Internet connection services, handshake facilities and interfaces with Third Party Applications, the Third Party Applications, websites and online portals, telecommunications services, and other digital enabling or facilitating technologies used to deliver the Services. “Intellectual Property” includes all types of intellectual property rights recognised by the Convention Establishing the WIPO (1967), whether registered or registrable or not, and includes all neighbouring and proximate rights to those rights.

“Licence” means the licence to use the EIR App granted by us to you under these TOU, which is granted upon acceptance of your Account Proposal, the receipt of your relevant Fees, and any other conditions imposed by these TOU.

“we” means EFFICIENCY MATRIX PTY LTD (ACN 137 612 661), including its subsidiaries, associates, principals, directors, employees, subcontractors and agents, and “our” has a corresponding meaning.

“Parties” means both the Client and us, and “Party” means either the Client or us.

“Services” includes all services that we will provide to you under this Agreement in association with your use of the Application.

“Sales Tax” means any sales tax, GST or similar tax that we are required to collect from you in addition to our Fees.

“Subscription Period” means the period or periods during which the Licence is active because the relevant Fees have been paid and all other conditions required by these TOU have been met by the Client.

“Technology Provider” includes any third party that licenses or sublicenses us or the Client to use any ICT Assets that are used to deliver the Services or any aspect of the Services, or that are incorporated into the Application or which facilitate the use of the Application, including through free, public or open-source licences.

“Technology Special Conditions” means the clauses set out in clause 11 of these TOU.

“Term” means the term of the Agreement as set by clause 2.3.

“Third Party Application” includes any software or applications owned or operated by a third party, which the Application is designed or allowed to interface and interact with, including any software loaded into or used by an iPhone, Flir heat-sensitive camera, or any other hardware that the EIR App is designed to work with.

“TOU” means these terms of use.

“Website” includes any website that we own or operate, including all information presented there.

  1. Formation and Term

2.1     This Agreement is made when we notify you that we accept your Account Request, which means that you have agreed to be bound by these TOU, we have accepted that request, and have communicated the acceptance to you, and we have created your Account. We will advise you of your Account details so that you can access and use it.

2.2     We reserve the right, in our absolute discretion, to:

  • vary the scope of the Services or the terms of the Licence, at any time before we accept your Account Request; or
  • reject your Account Request on any reasonable ground, including that the relevant Services can no longer be provided, or the EIR App cannot be made available; or that the Services or Application can no longer be provided or made available economically; or because your Account Request was based on incorrect assumptions or includes incorrect information; or because the Account Request is made on conditions unacceptable to us; and
  • if we vary the scope of the Services or the terms of the Licence as provided by paragraph (1) above, you will be notified of those changes and will have the opportunity to withdraw your Account Request or to proceed with it.

2.3     The term of our Agreement with you:

  • starts on the date when you are notified by us that your Account Request is accepted and any Fees have been paid by you that are required to activate your access to the Services and/or the grant of the Licence; and
  • expires one year after that date, unless you renew your Account, in which case this Agreement and the Account will continue for a further 12 months;

except for those provisions of these TOU identified as having continuing operation, or

unless the Parties vary the term including by termination as permitted by these TOU.

2.4     We will commence delivering the Services, and the Licence will begin operation, on the start date indicated in the preceding subclause, and we will cease delivering the services and the Licence will expire on the end date also indicated there.

  1. Services and Licence

3.1 With regard to the Services, the Parties agree that, subject to all of the terms and

conditions of these TOU:

(1)     we agree to provide the Services and grant the Licence in consideration for the timely and full payment of all Fees payable by you, and otherwise on the basis of these TOU and your full compliance with the TOU.

(2)     you agree to pay the Fees at the time(s) and in the amount(s) specified in your Account Request and/or our confirmation of acceptance of that request, or in any other instructions notified to you by us, in consideration for our provision of the Services and the grant of the Licence.

(3)     The Client acknowledges and agrees that:

  • where we provide any advice to you as part of the Services, e.g. in response to a request for assistance, that advice will be subject to any limitations or disclaimers included with the advice, and in all cases does not negate your responsibility to apply and rely on your own good judgment;
  • the delivery of the Services will be subject to the Technology Special Conditions; and
  • you will comply with any instructions provided by us in relation to the use of the EIR App and any associated ICT Assets, and by every Technology Provider for any Third Party Application that you are using together with the EIR App.

(4)     The Parties agree that:

  • we are entitled to engage subcontractors and agents to provide some or all of the Services, provided that those persons are competent and qualified to do so;
  • we will supervise or direct any such subcontractors and agents and

appropriately; and

(c)    you acknowledge that:

  • subcontractors and agents may have independent discretion, under the law, in how they complete their work; and
  • the reasonable fees and expenses of subcontractors and agents will be factored by us into the Fees.

3.2    With regard to the Licence, the Parties agree that:

  • We hereby grant the Client the Licence to use the Application for the duration of the Client’s current Subscription Period, provided the Client’s Account is active and not suspended by us because of non-payment of Fees, breach of these TOU, or any other reason.
  • The Licence is granted subject to the following conditions, namely: it is limited, non­exclusive; it can be exercised in any part of the world where the Client uses the EIR App, subject to all applicable laws; it is free of royalties except for any designated Fees; it is not sub-licensable or transferable; and it is personal to the Client and cannot be assigned.
  • We may publish guidelines or video instructions for the use of the Application on our Website or on third party platforms e.g. YouTube, and provide other instructional material, and the Client must use its best efforts to follow any such reasonable guidelines and instructions that have been brought to its attention. All demonstrations of the Application, on our Website or elsewhere, are intended only to be illustrative, and we do not guarantee that the Client will be able to replicate any results shown in those demonstrations.
  • We reserve the right to cancel the Licence without prior notice for non-payment of the Fees, misuse of the Application in violation of these TOU of any laws, abuse of our Intellectual Property rights associated with the Application, abuse of any Technology Provider’s Intellectual Property rights, or any other cogent reason which justifies termination of the Licence at law.

3.3     We may update and amend the Application and our range of Services from time to time, provided that:

  • we are not obliged to do so;
  • we may request the Client to pay an increased Fee for the Licence or the Services, if the Application or the Services become significantly different;
  • if the Client does not wish to pay such an increased Fee, the Client may terminate this Agreement under clause 7.

3.4     We are not obliged to update or amend the Application or Services in order to make those things compatible with any new versions of any third party’s hardware, software or operating system, or any changes in any Third Party Application, or any older or superseded versions of any of those things.

  1. Fees

Further to its basic promise made in clause 3.1(2):

4.1     unless the Client is receiving the Services and Licence free of Fees, either for a trial period or under some other arrangement, the Client will pay:

  • a set monthly or annual Fee for the Licence and the Services; and/or
  • a per-user or per-enterprise Fee for the Licence and the Services; and/or
  • ad hoc Fees for Services provided at the Client’s request, such as training;

on the basis accepted in the Account Request.

4.2     We will issue the Client with invoices for any Fees that are payable by the Client, in compliance with any applicable laws imposing Sales Tax.

4.3     If any part of a Fee is overdue by 7 days, or if a Fee payment is reversed by the Client or at the Client’s instigation without our written permission, we may suspend the Licence and/or the delivery of our Services.

4.4    We may vary our Fee rates from time to time, but such variations will apply only after the next renewal of the Term, unless the Parties agree to apply the variation immediately.

 

 

4.5     If the Parties agree to extend the scope or delivery time-frame of the Services, we

may request the Client to pay additional reasonable Fees based on our then-current fee rates.

4.6     Payment of the Fees by the Client does not by itself mean that the Services have been delivered in a satisfactory manner, and acceptance of any incorrect or part-payment of a Fee by us does not mean that we are compromising our entitlement to correct or full payment of that Fee.

4.7    If the Client receives the Services or is granted the Licence on a free basis, then the Client accepts the Services or the Application on an “as is” basis, despite anything else in these TOU.

  1. Parties’ Obligations

In addition to their other obligations under these TOU:

5.1     In delivering the Services, we will:

  • do so in a professional manner;
  • ensure that all of our employees, subcontractors and agents who are engaged in delivering the Services are competent and qualified to perform their relevant tasks; and
  • comply with all specifications incorporated into the Account Request and/or our acceptance of that request.

5.2     The Client must:

  • not harass or be discourteous to any of our personnel;
  • not maliciously or negligently interfere with the Application, the ICT Assets or any Third Party Application, including any supporting servers or other infrastructure, in any manner, or allow anyone else to do so;
  • provide all relevant and necessary information required by us to successfully deliver the Services, in a timely manner, and in a complete state, and this is an ongoing obligation, meaning that the Client must update, add to or correct any information previously provided to us;
  • provide a safe working environment for any of our representatives who attend any premises or location controlled or occupied by the Client;
  • promptly report to us any loss or damage to the Client alleges to have been caused or contributed to by us, including through the Client’s use of the application, and provide all assistance that may be necessary for us to make any relevant insurance claim regarding that loss or damage;
  • comply with the Apple App Store terms and conditions of service (however called) when using the Apple App Store to download the EIR App; and
  • comply with the terms and conditions of use (however called) of the manufacturer and supplier of the Equipment, in particular the Flir heat-sensitive camera, the iPhone, and any other hardware that the Client uses with iPhone or Flir camera.

 

 
 

 

WARNING: DISCLAIMER

5.3     We will not be responsible or liable for:

(1)        any incorrect results generated by the Application which are caused by the information the Client inputs or the choices the Client makes when using the Application;

(2)        any loss to the Client resulting from incorrect, misleading or incomplete information supplied by the Client to us or to a Technology Provider;

(3)        any loss to the Client resulting from the Client’s failure to follow or fully implement any instructions or advice provided by us or by a Technology Provider;

(4)        the condition or maintenance of the Equipment, or its malfunctioning; or

(5)        the compatibility of the Client’s particular Equipment items with the Application (although we have designed the Application to work with certain equipment generically);

(6)        the results of the failure of the Client to follow or replicate our instructional demonstrations referred to in clause 3.2(3) above;

except to any extent directly caused by our negligence or wilful misconduct.

 

 

 

  1. Intellectual Property and Confidential Information

The Parties agree that:

6.1     We own and will retain all rights in the Intellectual Property incorporated into the Application, or that it uses when delivering the Services, or creates while delivering the Services.

6.2     Where we are the licensee of any ICT Asset, no rights in such asset are conferred on the Client by this Agreement, other than a sublicence to use the asset, in accordance with the licence provided by the licensor to us.

6.3    The Application and ICT Assets must be used by the Client in accordance with the Technology Special Conditions.

6.4     Each Party will safeguard the Confidential Information of the other Party and not disclose
it to any other Party without the first-mentioned Party’s permission.

6.5    The Client acknowledges that its information will be handled and may be accessed and stored by a Technology Provider when the Client uses an ICT Asset or Third Party Application, and that such actions will not be regarded as a breach by us of clause 6.4.

6.6     The Client agrees that it is its responsibility to read and understand the terms of use of any Third Party Application.

6.7     The Client must not do or omit to do anything in breach of our Intellectual Property rights in the EIR App. In particular, it must not reverse engineer, or assist any other person to reverse engineer, the proprietary aspects of the Application, including its software code and its method of interoperability with the Equipment.

6.8     Collaboration with a third party to reverse engineer or replicate the EIR App will be regarded as a breach both of our relevant Intellectual Property rights and an unauthorised disclosure of Confidential Information in breach of clause 6.4 above. 

 

  1. Default and Termination

7.1    We may terminate this Agreement immediately if you commit a material breach of these TOU, by giving you written notice of termination.

7.2    You may terminate this Agreement immediately for convenience by giving us written notice, subject to clause 7.3.

7.3     If the Client terminates this Agreement under clause 7.2, the Client will not be entitled to a
refund of any pre-paid Fees, and, if we have reasonably incurred any expenses in order to prepare for the provision of Services requested by the Client, then in addition the Client is liable to reimburse us for those expenses.

7.4     The Client agrees that a breach or threatened breach of clause 6 by the Client will justify us in applying for urgent injunctive relief against the Client and any third party implicated in the breach or threatened breach, at the Client’s cost.

  1. Services: Delivery and Warranties

8.1     The Parties agree that:

(1)     We may temporarily suspend delivery of the Services because of:

  • an intervening event beyond our reasonable control, including the unavailability of any relevant ICT Assets; or
  • a dispute between the Parties regarding the Licence, Intellectual Property, Confidential Information, the Technology Special Conditions, the ICT Assets, or otherwise concerning any aspect of the delivery of the Services.

(2)    If delivery of the Services is suspended under the preceding paragraph, the Client’s right to compensation will be governed by clause 9.9.

(3)    If we do not resume delivery of the Services within a reasonable time after any suspension under this clause, not to exceed two weeks, having regard to all of the circumstances, the Client may terminate this Agreement.

8.2    We provide the following warranties to the Client in relation to the Services, namely that:

  • the Services will be delivered to the standards described in clause 5.1; and
  • the Services will conform to any descriptions incorporated into the Account Request and/or our acceptance of that request.

8.3     In the event that the Client claims the Services are substandard, we will have the option of redelivering the Services without admission of liability for breach of these TOU.

       
 

WARNING: INDEMNITIES; INSURANCE OBLIGATIONS; LIMITATIONS ON LIABILITY; DISCLAIMERS

  9.      Indemnities; Insurance Obligations; Limitations on Liability; Disclaimers

  9.1    The Parties agree that:

(1)           Each Party hereby indemnifies and will continue to indemnify the other Party in respect of all loss, damage or claims that arise from a breach of this Agreement by the first-mentioned Party, including, in the case of the Client, failure to pay any part of the Fees, except to the extent caused by the other Party’s own negligence or wilful misconduct (including that of its principals, employees, subcontractors and agents), and except to any extent expressly limited or excluded elsewhere in this Agreement, including the Technology Special Conditions.

(2)           This indemnity covers not only the loss occasioned to a Party, but also the Party’s reasonable costs of recovering the relevant loss, including legal costs and debt collection expenses.

9.2    We will use our best efforts to determine whether our operations are covered by appropriate and adequate insurance, but do not promise to carry any product liability insurance in relation to the EIR App having any particular level of coverage or other features, unless required by our contract with the Apple App Store or any laws that apply to us, in which case we will comply with that agreement and/or laws.

9.3    The Client must ensure that any of our representatives attending the Client’s premises for the purposes of this Agreement are covered adequately by public liability insurance.

 
 
   

9.4    The Client acknowledges that some or all of the ICT Assets, in particular the Third Party Applications, are owned or controlled by third parties, namely the Technology Providers, and accordingly the Client agrees that:

(1)        the availability of the ICT Assets will be subject to the cooperation of and limitations imposed by those third parties, who may have authority to suspend use or availability of any ICT Asset; and

(2)        the Client’s indemnities given in this Agreement are also given for the benefit of each relevant Technology Provider, which will have the right to claim directly against the Client for any damage or abuse of a relevant ICT Asset by the Client or any person who has access to such an asset through the Client.

9.5    We provide no guarantee that the Services, including the results of using the Application, will have any particular value or effect for the Client.

9.6     Where the Client suffers a loss because of the malfunction of the ICT Assets or the actions or omissions of any Technology Provider, any limitation on damages that applies to claims made though us, in our contract with the Technology Provider, will also apply to the Client in respect of any claim for that loss made through or against us by the Client. The Client agrees that this limitation is reasonable.

9.7    The Client agrees that its liability for any infringement of the Intellectual Property rights of any person, in relation to misuse or abuse of the ICT Assets, will be unlimited, subject to any applicable law to the contrary.

9.8    The Client hereby releases us from liability from any loss occasioned to the Client by a Technology Provider, except to the extent contributed to by our negligence.

9.9     If the delivery of the Services is suspended under clause 8.1, we will not be liable to
provide the Client with any compensation, besides refunding any relevant part of the Fees in our sole discretion, and the Client hereby releases us from liability for any loss that the Client may experience as a result of such suspension, except where the suspension results from our negligence.

9.10 Apart from the warranties set out in clause 8.2, we give the Client no other express warranties, and all implied warranties are hereby excluded except those that cannot be contracted out of, by application of law.

9.11 Neither Party will be liable to the other party for any indirect or consequential damages resulting from a breach by the first-mentioned Party of its obligations under these TOU.

9.12 Where clause 10.13 applies to excuse the performance by us of our obligations under these TOU by reason of force majeure, we will not be liable to the Client for any consequences of delay or of our inability to perform.

9.13 We will not be liable for the Client’s losses occasioned by outages or discontinuity of operation of ICT Assets, except where directly resulting from our negligence.

 

 

 

  1. General

10.1 Governing Law and Jurisdiction. This Agreement is governed by the laws in force in the State of Victoria, Australia, and the Parties submit to the non-exclusive jurisdiction of the courts of that State in all matters arising under this Agreement.

10.2 Entire Agreement. This Agreement represents the entire agreement of the Parties in respect of all matters with which it deals, and all prior or separate representations, negotiations or understandings are hereby superseded or excluded.

10.3 Compliance with Laws. Each Party must comply with all laws that apply to it in respect of its performance of this Agreement.

10.4 Relationship. The relationship of the Parties is that of independent contractors, and nothing in this Agreement is intended to create any other type of legal relationship.

10.5 Variation. This Agreement may be varied only in writing by or on behalf of the Parties.

10.6 Severability. If any part of this Agreement is found to be illegal, void or unenforceable, that

part will be regarded as severed and ignored, and the remainder of the Agreement will be given full effect and remain binding on the Parties.

10.7 Waiver. If either Party fails to exercise any right given to it by this Agreement, or delays in doing so, that failure or delay will not represent a waiver of the relevant right on that or any other occasion, and any waiver must be in writing signed by the Party giving it in order to be effective.

10.8 Disputes. If any dispute regarding the application or interpretation of this Agreement arises between the Parties, a Party may not resort to litigation to resolve the dispute, except for applications for urgent injunctions, unless it has first applied the following procedure:

(1)     it notifies the other Party of the nature of the dispute;

(2)     it negotiates in good faith with the other Party to resolve the dispute, as soon as reasonably possible and in any event no later than 7 days after service of the notice;

(3)     if such negotiation is unsuccessful in resolving the dispute within a further 21 days, either Party may refer the dispute for resolution as follows:

  • if both Parties are situated in Australia, by mediation conducted by an independent, suitably qualified mediator appointed by the President of the Law Institute of Victoria, Melbourne, Australia; or
  • if the Parties are situated in different countries, by mediation chaired by an independent, suitably qualified mediator appointed by the Australian Centre for International Commercial Arbitration, Sydney, Australia;

under a recognised code of mediation practice, and the Parties will participate in the mediation in good faith with a view towards resolving the dispute, and will share the costs of the mediation equally, and the mediator may employ any convenient technology, including video conferencing, to conduct the mediation. If you have any statutory right to have a contractual dispute determined in a particular manner, or before a particular forum or tribunal, and you are legally permitted to waive or opt out of that right, or to agree to implement an alternative dispute resolution process before exercising that statutory right, then you now agree that to implement the dispute resolution procedure set out in this clause instead of that statutory method (if you are allowed to so agree), or before resorting to that statutorily available process (if you are not allowed to so agree). You also agree that the dispute resolution procedure provided by this clause is reasonable and fair.

10.9 Privacy. Where either Party obtains personal information relating to the other Party’s principals, employees, contractors, agents, associates or clients, the first-mentioned Party must use, store and disclose that information only as permitted by applicable privacy laws. NOTE: Please refer to our privacy policy for further details about how we will fulfil this obligation.

10.10 Survival. The following provisions of this Agreement will survive the termination or expiry of the Agreement, namely: all payment obligations; all Intellectual Property, confidentiality and privacy obligations; all warranties, releases, indemnities and declarations; the Technology Special Conditions; all assignment rights or restrictions; and the provisions of this clause 10.

10.11 Assignment. The Client may not assign this Agreement without our express, written consent. We may assign this Agreement to a purchaser of our business, or a franchisee, or an entity with which we merge or by which we are acquired, or an entity (a partnership, trust, or corporate entity) specifically formed to carry on the business or providing the Services and/or exploiting the EIR App.

10.12 Notices. Any notice given by one Party to the other Party for the purposes of this Agreement must be in writing and may be delivered in person, by prepaid mail, or email to the physical, postal or email address of the receiving Party specified in the Website (in our case) or the Account Request (in the case of the Client). The notice will be deemed to have been delivered: (1) if served in person, at the time of delivery; (2) if served by prepaid post, five days after posting, unless the Parties are in different countries, in which case 10 days; and (3) if served by email, on the day after sending, provided that no notification of failure of delivery is received by the sender from its email system or that of the receiver, and the author of the email is clearly identifiable in the email.

10.13 Force Majeure. In addition to the grounds for suspension set out in clause 8, if we are unable to deliver any part of the Services or are otherwise prevented from complying with any of our obligations under this Agreement by some legal disability, unforeseen event or circumstance, or an intervention, act or omission of a third party, which is outside our reasonable control, then we will be excused from performing that obligation for as long as that situation persists.

10.14 Updates and amendments to TOU. We may amend or update these TOU from time to time, in which case the updated or amended TOU will apply from the Client’s next renewal of its Licence. These TOU are published with a version ID, and it is the Client’s responsibility to check for any changes.

10.15 Interpretation. Unless expressed to the contrary, in these TOU:

  • The singular includes the plural and vice versa.
  • A reference to a person includes a corporation or partnership.
  • A reference to a gender includes all genders.
  • A reference to a clause or schedule is a reference to a clause of or the Schedule to these TOU.
  • Headings are for convenience and do not affect interpretation.
  • Where these TOU provide that anything must be done, or any consent given, in writing, that thing or consent may be done or given by email, provided that the conditions set out in the notices clause that apply to emails, namely clause 10.12, are observed, and the person on whose behalf the consent is given is clearly identified.

10.16 Authorisations. The parties agree that:

  • If the Account Request is made on behalf of a company or other corporate entity, or a trust or partnership, the person submitting the Account Request warrants that he or she has full authority to do so.
  • The Client warrants that it has full legal and contractual capacity to authorise us to use or access any API or other portal or interface that is required to be used or accessed in order for the Application to interact with any Third Party Application. It is the Client’s responsibility to ensure that the terms of use for the Third Party Application allow the Client to deputise or sublicense us and the Application to use or access the Third Party Application’s API, portal or other interface.
  1. Technology Special Conditions

General principles

11.1   The Client acknowledges that the ICT Assets are licensed to us and/or the Client by the Technology Providers. The Client agrees that the Intellectual Property rights and other legal rights of the Technology Providers must be respected by the Client.

11.2   The Client acknowledges that:

  • because the ICT Assets are controlled by the Technology Providers, the continuing availability and functionality of the ICT Assets depend on factors beyond our control, including the actions and diligence of the Technology Providers and of any contractors engaged by the Technology Providers to make the ICT Assets available; and
  • where the ICT Assets incorporate or otherwise rely upon software or technology sourced or licensed by the ICT Provider from another third party, the availability of that software or technology also depends on that third party.

11.3 Where the Client’s capacity and legal right to use any ICT Assets requires the Client to have any particular legal status, such as holding a licence granted by the Technology Provider, or any particular functional capability or capacity, such as an Internet connection, it is the Client’s responsibility to obtain and maintain that status, capability or capacity.

Specific rules and prohibitions

11.4 The Client understands and agrees that the Technology Providers will have access to usage data sourced from Client’s information related to the use of the ICT Assets by the Client, or by us when performing the Services, and that the Technology Providers may use that data for their own purposes. It is the Client’s responsibility to check the terms of use for any Third Party Application.

11.5   The Client acknowledges that the Application and ICT Assets, when accessed online, on when reliant on an Internet or telecommunications connection, may be subject to outages and interruptions because of the nature of those services. The Client agrees that we are not responsible for such problems. Despite this, we will use our best efforts to resolve any continuity-of-use problems that arise with the Application.

11.6 The Client acknowledges that the Application and ICT Assets are designed for certain purposes, and have certain capabilities. The Client agrees that:

  • We are not responsible for the design or functionality of the ICT Assets, or for any defects in the design or function of the ICT Assets.
  • We agree that we are responsible for exercising reasonable skill when selecting any ICT Assets to be used in association with the delivery of the Services.
  • We are not responsible for problems experienced by the Client when using the Application or any ICT Assets for any purpose that those things were not designed for or recommended for by us or by a relevant Technology Provider.

11.7   The Client acknowledges that our or the Application’s access to and/or use of or reliance upon ICT Assets may be subject to a licensing, collaboration or other agreement with the relevant Technology Provider, and in that case, or in any case:

  • the Technology Provider may have a right to suspend or terminate that licence, collaboration or other agreement, or our or the Application’s access to, use of, or reliance upon the ICT Assets, which in turn may interrupt or terminate the Client’s or our use of the ICT Assets;
  • any such licensing, collaboration or other agreement between the Technology Provider and us will impose certain limitations and requirements on us, and may also impose such things on the Client, and the Client must not knowingly do anything that violates those limitations and requirements;
  • we may inform the Client of the terms of our contractual obligations to any Technology Provider, from time to time, in which case that information will trigger the Client’s obligations set out in the preceding paragraph; and
  • we will inform the Client if the licensing, collaboration or other agreement ends during the Term.

11.8   The Client acknowledges and agrees that:

  • the Client is prohibited from copying, selling or giving any third party unauthorised access to the Application or any ICT Asset;
  • if the Client has a direct agreement with a Technology Provider, such as a licence to use a Third Party Application, the iPhone or the Flir camera, that agreement is separate to this Agreement;
  • it must preserve copies of, and properly back up, all data that it provides to or submits through the Application to us or to a Technology Provider, including via a Third Party Application or ICT Assets; and
  • if the use of any ICT Asset is subject to special legislation in the jurisdiction where the Client is located, or in any jurisdiction where the Client intends to use the Application, it is the responsibility of the Client to understand and comply with the requirements of that legislation.

11.9 While we represent to the Client that we are authorised to use any ICT Assets that we rely on to provide the Services, we do not intend thereby to represent that any particular Technology Provider endorses us, or guarantees the quality of the Services or the Application.

 

VERSION ID: ###