Standard Terms of Sale
For the purposes of these Conditions:
Addendum means an agreement in writing signed by authorised representatives of the Customer and Inauro to vary a Contract, including the Goods and Services.
Communications Network means the wireless communications services used for transmitting the Data. This includes, but is not limited to, 5G, 4G LTE CAT-M1, 3G WCDMA, LoRaWAN, Bluetooth LE, WiFi and satellite services.
Conditions mean these ‘Standard Terms and Conditions’ for the supply of the Goods and Services by Inauro to the Customer, as amended or varied from time to time in writing by Inauro.
Confidential Information means all confidential, non-public or proprietary information relating to the business, corporate, legal and financial affairs, technology, know-how, processes, products, pricing and/or customers of a Party its related bodies corporate or its customers, including without limitation information disclosed by a Party the other Party in connection with the provision of the Goods and/or Services (and in particular, in the case of Inauro, the technology solutions, pricing, specifications, plans, contract documents and other items relating to the Data Service, including Perspio™ and the IoT Devices) whether written, oral or in electronic form and whether exchanged, disclosed or learnt before, on or after the Effective Date, but excludes information:
(a). which is in or becomes part of the public domain other than through the breach of this Contract or an obligation of confidence owed by one Party to the other Party;
(b). which the Party can prove by contemporaneous written documentation was already known to it at the time of disclosure by the other Party;
(c). which a Party learns from a third party under no duty of confidence.
Contract means a contract between Inauro and the Customer for the provision of Goods and/or Services which is comprised of:
(a). the quote accepted by the Customer which sets out the scope of the Goods and Services to be provided to the Customer;
(b). these Conditions;
(c). the EULA; and
(d). the terms of any Addendum
Customer means any person, body corporate or entity which purchases or orders Goods and Services from Inauro.
Data means any data from Customer equipment, be it from the equipment or an IoT device, as well as any Customer approved data, personal or otherwise.
Data Service means the subscription-based service provided by Inauro to Customer relying on Perspio™.
Effective Date means the earlier of:
(a). acceptance of an order for Goods and Services from the Customer by Inauro; or
(b). the date the Customer confirms their agreement to these Conditions; or
(c). the date Inauro first supplies Goods and/or Services to the Customer.
EULA means the End User Licence Agreement between Inauro and any individual accessing or using Perspio™ or the company, or other legal entity on behalf of which such individual is accessing or using Perspio™, as applicable.
Force Majeure means an event, circumstance or cause which is beyond the reasonable control (and without the fault or negligence) of the party affected and which, by the exercise of reasonable diligence, the party affected was unable to prevent including, but not limited to, strike, industrial action, epidemic or pandemic, war, sabotage, terrorist activity, national emergency, blockade or governmental action, inaction or request, and act of God (but, for the avoidance of doubt, does not include the inability of the Customer to meet its payment obligations under a Contract for any reason).
Goods means all goods (hardware and/or software), including any IoT Devices, delivered by Inauro to the Customer or to be delivered by Inauro to the Customer, including but not limited to the Perspio™ platform.
GPS means the positioning system used for location services that may be delivered via Global Positioning System, GLONASS, SBAS or other technology suited to the geolocation of the Service.
Inauro means Inauro Pty Ltd ACN 648 996 258 trading as Inauro.
Initial Term means a period of 12 months from the Effective Date, unless otherwise agreed by the Customer and Inauro in writing.
Integration means a digital connection between two systems or platforms, most commonly through the utilisation of Application Programming Interfaces (APIs).
IoT Device means a device, fitted onto a Customer’s asset or person, that can be used for collecting Data and for sending and receiving such Data via Communications Networks.
Insolvency Event means where a Party:
(a). is a natural person, the Party commits an ‘act of bankruptcy’ within the meaning of section 40 of the Bankruptcy Act 1966 (Cth); or
(b). is a body corporate, the Party:
i. becomes an ‘externally-administered body corporate’ within the meaning of the Corporations Act 2001 (Cth);
ii. has any step taken for its winding up or dissolution;
iii. holds a meeting of directors which considers a resolution that an administrator should be appointed; or
iv. is insolvent within the meaning of the Corporations Act 2001 (Cth) or being taken or presumed to be insolvent.
Party means, as the context requires, either Inauro or the Customer.
Parties means both Inauro and the Customer.
Perspio™ or Perspio means the technology system developed by Inauro that provides the Data Service.
Renewal Period means each subsequent 12-month period following the completion of the Initial Term.
Services means all services (including the Data Service), deployment, consulting or otherwise provided to Customer by Inauro or to be provided to Customer by Inauro.
Third-party Goods means any goods of a third party provided to You in connection with Your use of the Goods and/or Services.
Third-party Services means any services or content (including data, information, applications and other products services) provided by a third party that may be displayed, included or made available to you in connection with Your use of the Goods and/or Services.
User means a person authorised by the Customer to access and use the Goods and/or Services.
2. Application of Conditions
2.1 These Conditions apply to all orders placed by the Customer with Inauro in respect of the Goods and Services unless otherwise agreed in writing by an authorised representative of Inauro.
2.2 An order made by the Customer becomes binding from the Effective Date, at which point the Contract is formed.
2.3 The Customer acknowledges and agrees that it will be bound by these Conditions which will form part of the Contract.
2.4 The Contract may only be varied by way of an Addendum.
2.5 To the extent any conflict exists between these Conditions and any other documentation or correspondence forming part of the Contract, these Conditions are paramount and prevail.
2.6 No terms stated by the Customer in making an order will be binding upon Inauro unless clearly accepted in writing by a duly authorised officer of Inauro.
2.7 These Conditions supersede any terms and conditions of sale previously issued by Inauro or the Customer.
2.8 Any quotation provided by Inauro is for information purposes unless specifically indicated as capable of acceptance by the Customer.
3. Key Concepts
3.1 Subject to the Customer complying with the terms of the Contract, the Customer is granted a non-exclusive and non-transferable licence to use Perspio™ (including all updates and new releases) during the Initial Term and during any Renewal Period.
3.2 Subject to the Customer and its Users meeting their obligations under the Contract (including the EULA) Inauro is responsible for:
(a). ensuring the ongoing operation and performance of Perspio™ (subject to scheduled and unscheduled maintenance as required from time to time); and
(b). the correct configuration of the Data Service.
3.3 From time to time, Inauro may also provide the Customer with IoT Devices, as well as Services to deploy the IoT Devices in which case, Inauro also takes responsibility for:
(a). ensuring the IoT Devices are properly working and compatible with Perspio™; and
(b). if Inauro facilitates access to the Communications Network, ensuring that each IoT Device supplied to the Customer and active in Perspio™ maintains a valid subscription for the applicable Communications Networks.
3.4 The Customer is responsible for:
(a). providing the necessary equipment, networks, connectivity and services to enable a User to access Perspio™ via a web interface, or application if relevant;
(b). ensuring availability and physical access to equipment to enable installation or removal of IoT Devices as per the separate project rollout plan agreed between the parties in writing or support maintenance request;
(c). all aspects of equipment performance other than the IoT Device; and,
(d). ensuring the IoT Devices are kept in good working order and are not dislodged, damaged, tampered with or removed from any equipment without prior notification to Inauro.
3.5 The Customer will be responsible for any costs associated with a repair or replacement associated with the rectification of any issue deriving from those events listed in clause 3.4 above that occurred without the prior written approval of Inauro. This may include costs associated with any installation services performed as part of the rectification and any new IoT Device/s that may be required.
4. Communication Networks
4.1 The Customer has no contractual relationship with the underlying Communications Network providers, and the Customer is not a third-party beneficiary of any agreement between the Inauro and any of the Inauro’s providers, contractors or sub-contractors. The Customer also acknowledges and agrees that the Communications Network providers shall have no legal, equitable, or other liability of any kind to the Customer.
4.2 The Customer acknowledges and agrees that Inauro is not responsible for the availability or performance of the GPS or Communications Networks used for the Data Service.
4.3 Without limiting any other provision of these Conditions, the Data Service is non-transferable and is for the Customer’s use only, and the Customer may not resell or assign the Data Service or any rights and obligations of the Customer under this Contract to any other party.
5. Inauro may decline orders
5.1 Inauro reserves the right, in its sole discretion, to decline any order or part of an order. Any order or part thereof not accepted is deemed cancelled.
6. Third-Party Goods and Services
6.1 In providing the Goods or Services, Inauro may from time to time provide You with Third-party Goods and/or Third-party Services.
6.2 You acknowledge and agree that Inauro shall not be responsible for any Third-party Services or Third-party Goods, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, fitness for purpose or any other aspect thereof. Inauro does not assume and shall not have any liability or responsibility to You or any other person or entity for any Third-party Services or Third-party Goods.
6.3 You must comply with any applicable terms and conditions of Third-party Service and Third-party Goods providers notified to You.
6.4 Third-party Services and Third-party Goods are provided solely as a convenience to You and You access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
7. Governing Law & Submission to jurisdiction
7.1 The Customer and Inauro acknowledge and agree that the Contract will be governed by and interpreted in accordance with the laws of the State of New South Wales, Australia.
7.2 The Customer and Inauro:
(a). submit to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal from them; and
(b). waive any rights they may have to object to such courts assuming jurisdiction or to claim that jurisdiction is an inconvenient forum.
8. Cancellation of Orders
8.1 An order of Goods and/or Services accepted by Inauro cannot be cancelled by the Customer. No application for cancellation or delay in delivery will be considered unless made by the Customer in writing to Inauro. Inauro will consider an application for cancellation or delay in delivery at its sole discretion.
9.1 Unless otherwise agreed in writing by the Parties, prices for the provision of Goods and Services (including the Data Service) (‘Prices’) are as set out in the current price offer issued by Inauro or advertised on Inauro’s website and are subject to variation by Inauro from time to time.
9.2 All Prices are exclusive of GST (or any other applicable consumption tax).
9.3 Inauro will notify the Customer in writing in advance if it intends to vary the Prices.
9.4 The Prices for any Goods does not include the costs of delivery of the Goods and all costs, charges or expenses incurred by Inauro in relation to delivery are payable by the Customer.
9.5 Any GST payable by Inauro in respect of the supply of the Goods and/or Services will be paid by the Customer to Inauro. The Customer must supply Inauro with its ABN prior to, or at the time of, placing an order with Inauro.
10.1 For the provision of Goods and Services, Inauro may invoice the Customer on and from Effective Date.
10.2 For the provision of the Data Service, Inauro will invoice the Customer monthly in advance from the first activation of an IoT Device or Integration in Perspio™.
10.3 Unless otherwise agreed in writing by Inauro, payment by the Customer to Inauro must be made within 14 days of the invoice date.
11. Late payment and payment default
11.1 If the Customer is late to pay the invoices, then
(a). the Customer shall be in breach of Contract, without any notice of default being required, and all monies owing Inauro by the Customer shall become immediately due and payable;
(b). Inauro reserves the right to suspend the Customer’s access to and use of the Goods, Services and Data Service until all outstanding amounts are settled; and
(c). Inauro shall be entitled to charge the Customer for interest on the amount overdue at the rate of 8% per annum calculated daily.
11.2 If the Customer defaults in payment or breaches these Conditions, the Customer will be liable for all costs incurred by Inauro and will indemnify Inauro against any loss, liability, charge, expense, outgoing or payment which Inauro suffers, incurs or is liable for in respect of the recovery of monies owing by the Customer to Inauro.
12.1 Inauro reserves the right to withhold deliveries if:
(a). Inauro, in its sole discretion, considers that the financial condition of the Customer so warrants and that such action is advisable to protect Inauro’s interests; or
(b). the terms of payment for any Goods are not strictly adhered to by the Customer.
13. Return of Goods
13.1 To the extent permitted by law, no Goods may be returned by the Customer unless:
(a). prior written consent has been given by Inauro (which may be withheld or subject to conditions at Inauro’s absolute discretion);
(b). the correct invoice number is quoted on the Customer’s return docket;
(c). the returns are made within five business days after delivery; and
(d). the reason for return is clearly stated on the Customer’s return docket.
13.2 All Goods returned will be subject to a handling charge of 15% of the invoice price of the Goods and the Customer will pay all return freight costs.
14.1 Risk in the Goods passes to the Customer on dispatch of the Goods from Inauro’s premises and from that time the Customer assumes all risk of loss and damage to the Goods, including without limitation all loss or damage in the course of delivery and unloading the Goods following delivery.
15. Limitation of Liability
15.1 To the extent permitted by law and subject to any warranties prescribed by law which cannot be contracted out of, Inauro shall not be liable to the Customer, whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise pursuant to the Agreement, for any indirect or consequential loss including, but not limited to, loss of profits, punitive damages, anticipated savings, revenue, business, loss or corruption of data, loss of use, loss of goodwill, loss due to delay or any other indirect or consequential loss or damage whatsoever.
15.2 Subject to the above clause 15.1 and to the extent permitted by law, Inauros’s aggregate liability to the Customer, whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), warranty, negligence, breach of statutory duty or otherwise pursuant to this Contract, for any cause whatsoever (including, but not limited to, any failure or disruption of the Data Service), shall be limited to the net price paid or to be paid by the Customer for the Data Service during the three (3)-month period preceding the date when any claim by the Customer arose.
15.3 To the maximum extent permitted by the Australian Consumer Law, Inauro’s liability for any breach of a consumer guarantee shall be limited to one of the following as determined by Inauro:
(a). in relation to the supply of Goods:
i. the replacement of the Goods;
ii. the repair of the Goods;
iii. the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
iv. the payment of the cost of repairing the Goods; and
(b). in relation to the supply of Services:
i. the supplying of the Services again; or
ii. the payment of the cost of having the Services supplied again.
15.4 To the extent permitted by law, any claim for loss or damages by the Customer must be notified in writing to Inauro within six (6) weeks from the date on which any alleged damage was caused, failing which such claim by the Customer is deemed to be waived.
16.1 The Customer shall indemnify, defend and hold harmless Inauro and its related entities from and against any demands, claims, suits, actions, legal proceedings, losses, damages, fines, costs or expenses (including legal fees) arising from or in connection with:
(a). any wrongful, reckless and/or negligent acts or omissions of the Customer, its employees and/or representatives;
(b). any breach by the Customer of any representations, warranties or covenants set forth in the Contract and/or any law, statute, regulation and/or ordinance; and/or
(c). the improper use of the IoT Devices, and/or non-compliance with the instructions supplied with the IoT Devices.
16.2 The Customer shall also indemnify, defend and hold harmless Inauro and its related entities from and against any claim whatsoever by the Customer or by any third party in connection with the collection and use of the Data by the Customer or otherwise from the use of the IoT Devices, including but not limited to claims resulting from or alleging:
(a). breach of privacy laws or any other laws relevant in the geographical location of the Data Service and if relevant the IoT Devices;
(b). breach of ownership rights in relation to the Data;
(c). discrimination against a Party arising from the use of the Data;
(d). any damage or adverse affect to or any malfunctioning of any equipment to which the IoT device may be connected, or to any other property whether real or personal, or any death or personal injury which may be connected thereto, whether as a result of cyber attack or otherwise.
17. Term and Termination
17.1 The Contract commences on the Effective Date and shall continue for the Initial Term (unless terminated in accordance with its terms).
17.2 Following the Initial Term, the Contract shall automatically renew for consecutive additional periods of one (1) year each, each such period a Renewal Period, unless either Party gives the other Party written notice of its intention not to renew at least three (3) months prior to the date on which the Contract would otherwise renew.
17.3 Each Party may, without prejudice to any of its other rights arising hereunder, upon giving written notice, terminate the Contract with immediate effect, if:
(a). the other Party fails to observe or perform any material term or condition hereof, including in any event non or late payment, and:
i. such default or breach (if capable of remedy) shall not be remedied within twenty-one (21) calendar days after notice in writing, specifying the breach and requiring the same to be remedied, has been given; or
ii. such default or breach is incapable of remedy,
(b). the other Party is affected by an Insolvency Event; or
(c). there has been any delay or failure in performance under the Contract resulting from any event of Force Majeure, which delay or failure shall have continued for a period of three (3) months.
18. Confidential information
18.1 Subject to clause 18.2, each Party:
(a). must not use, disclose or copy Confidential Information of the other Party in any form or in any manner; and
(b). must use its best endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that third parties do not use, disclose or copy Confidential Information,
(c). except for the purpose of and to the extent necessary to perform its obligations or exercise its rights under this Contract.
18.2 The obligations in clause 18.1 do not apply if:
(a). a Party has agreed in writing to the specific disclosure, use or copying of its Confidential Information; or
(b). disclosure of specific Confidential Information is required to comply with any applicable law.
18.3 This clause 18 will continue to bind the Parties after this Contract has been terminated, rescinded or has expired.
19. Force Majeure
19.1 If the Customer or Inauro is prevented or delayed in the performance of any of its obligations under the Agreement by Force Majeure, then that Party will be excused from the performance or punctual performance, as the case may be, of its obligations, to the extent that such Force Majeure continues and agrees to use all reasonable endeavours to overcome or work around the Force Majeure so as to be able to perform its obligations under the Agreement.
20.1 A Contract cannot be assigned or novated by the Customer without Inauro’s prior written consent.
20.2 Inauro may assign or novate all or any of its rights and obligations under a Contract.
21. Data Protection and Privacy
21.1 The Customer will observe all applicable data protection and privacy laws and regulations relating to the provision of the Goods and/or Services, including geographical location of both the IoT Devices and the Data Service.
21.2 This includes, where applicable, the obligation of the Customer to duly inform involved data subjects about the processing of their personal data by Inauro under the instruction of the Customer, and to obtain their prior consent to the use of their personal information as anticipated by the Contract.
21.3 Inauro shall only collect, process, store and use the Data, to the extent that such is necessary for the performance of this Contract and the improvement of the Data Service.
21.4 The Customer authorises and instructs Inauro to collect, process, store and use the Data for the purpose set out above.
22. Intellectual Property
22.1 Inauro, or where appropriate its related entities and licensors, retains ownership at all times of all intellectual property rights relating to or connected in any way with the Goods and/or Services (including the Data Service) and the Customer shall not at any time acquire any right, title or interest in these intellectual property rights by virtue of the Customer’s exercise of its rights pursuant to this Contract.
22.2 In the event the Customer at any time whether directly or indirectly contests Inauro’s ownership of Inauro’s intellectual property rights, or does anything that would jeopardize or diminish Inauro’s intellectual property rights in the Data Service or the value of those intellectual property rights, Inauro has the right to immediately terminate this Contract by written notice to the Customer and to exercise all other rights available to it at law.
23.1 Any notice in relation to this Contract must be in English and in writing.
23.2 Notice is deemed to have been received:
(a). if delivered personally, when left at the person’s address;
(b). if sent by mail, 3 business days after it is posted; and
(c). if sent by facsimile or email, at the time and date it was successfully sent.
24.1 Subject to clause 24.2, if a provision of a Contract is illegal or unenforceable in any relevant jurisdiction, it may be severed for the purposes of that jurisdiction without affecting the enforceability of the other provisions of a Contract.
24.2 Clause 24.1 does not apply if severing the provision:
(a). materially alters the scope and nature of a Contract or the relative commercial or financial positions of the Parties; or
(b). would be contrary to public policy.
25. Breach by Customer
25.1 Notwithstanding any other provision, if the Customer breaches a term of a Contract, Inauro is not bound to perform its obligations under that Contract until the breach is remedied by the Customer.