SUBSCRIBER TERMS Maxon Electronics Australia Pty Ltd
The following terms and conditions (the 'Subscriber Terms') relate to the cloud-based subscription service operated by Maxon Electronics Australia Pty Ltd (ACN 003 793 593) t/as Maxon Australia ('Maxon Australia') called 'maXconnect' which allows Subscribers (as defined below) to log onto the maXconnect Portal (as defined below) and use the features available through such Portal.
The Subscriber's use of the Service is governed by
these Subscriber Terms and must be accepted by a Subscriber prior to the
Subscriber's first use of the Service. A Subscriber is deemed to be the
relevant user of the Service as further described in paragraph 2 below.
The maXconnect Service Level
Agreement together with these Subscriber Terms create a binding, legal
agreement (the 'Maxon Service Agreement') between Maxon Australia and the
Subscriber in respect of the provision of the Service by Maxon Australia to the
Subscriber from time to time whilst the Subscriber maintains an Account.
1. DEFINITIONS AND
INTERPRETATION
1.1
Definitions
In the Maxon Service Agreement, unless the context otherwise requires or
permits:
(a)
'Account' means
the subscription account established by Maxon Australia which allows the
Subscriber to access the maXconnect Portal to use the Service, as described in paragraph 5
below;
(b)
'Compatible Devices'
means any machine to machine (M2M) modems, routers and other devices that are
compatible with the application programming interface (API) of the maXconnect
Portal and Service;
(c)
'Confidential
Information' means in relation to
each party, all information of a confidential nature relating to the business
and/or operations of that party (whether such information is disclosed in
writing, orally, by visual presentation or by any other means of providing
access to such information) including but not limited to any such information
subsisting in any Content;
(d)
'Content' means
all information, material, images, graphics, graphs, tables, charts,
statistics, reports, summaries, objects, logos, layouts, data, geo-location
information, colour schemes and any other content that is accessible to the
Subscriber via the Service, including any such content which is created by
Maxon Australia based on Third-Party Content;
(e)
'Force Majeure Event' means strikes, lock-outs, or other labour disputes,
riots, civil disturbance, actions or inaction of governmental authorities or
suppliers, epidemics, wars, embargoes, storms, floods, fires, earthquakes, acts
of God or the public enemy, computer downtime, nuclear disasters, default of a
common carrier or other circumstances outside the control of Maxon Australia;
(f)
'High Risk' means any likelihood of the
presence of a danger which if not averted, poses a reasonable risk of causing
any of the following to occur within a short period of time relative to the
nature or cause of that particular danger:
(i) death or bodily injury to any person;
(ii) environmental damage;
(iii) loss,
damage or destruction to property; or
(iv) a
breach of any law that could lead to a criminal conviction for any person or
entity;
(g)
'Intellectual Property
Rights' means any and
all intellectual and industrial property rights subsisting in any part of the
universe in any and all media (whether now known or created in the future)
including, without limitation, rights in the nature of copyright, registered
design or other design right, trade mark, patent rights, circuit layout rights,
trade secrets and any corresponding proprietary rights (whether registered or
common law) under the laws of any jurisdiction;
(h)
'Licence' means
the software licence granted by Maxon Australia to the Subscriber pursuant to
the maXconnect Service Level Agreement which allows the Subscriber to
use the maXconnect Portal;
(i)
'Maintenance'
means any scheduled or unscheduled period whereby the Service is not available
by reason of maintenance and/or upgrades to the Service;
(j)
'Manage' means the
ability to access, communicate and control the functions of a Compatible Device
via the Service, the extent of such access, communication and control being
determined by the degree of compatibility of the particular Compatible Device
with the Service, the nature of the Compatible Device itself and the general
capabilities of the Service, as each of such factors may vary from time to
time;
(k)
'maXconnect
Portal' means the cloud-based online management platform accessible through
the Website or such other website maintained by or on behalf of
Maxon Australia and through which the
Service is provided, and which utilises the Software;
(l)
'maXconnect Service Level
Agreement' means the principal
terms and conditions on which Maxon Australia agrees to provide the Service,;
(m)
'maXconnect Terms and
Conditions' means these Subscriber's Terms and the Privacy
Policy adopted by Maxon Australia from time to time
(n)
'Monitor' means the ability to access, view and organise Content in connection
with a Compatible Device via the Service, the extent of such access, viewing
and or organisation being determined by the degree of compatibility of the particular
Compatible Device with the Service, the nature of the Compatible Device itself
and the general capabilities of the Service, as each of which factors may vary
from time to time;
(o)
'Notice Period'
means the period of notice required to be given by the Subscriber prior
to the expiration of the then-current
Subscription Term to terminate
the Maxon Service Agreement as set out in the maXconnect Service Level
Agreement and if no such period has been so set out, the period shall be at
least sixty (60) days prior to the expiration of the then-current Subscription Term;
(p)
'Renewal' means
a renewal of a Subscription for a further period, or periods, each of twelve
(12) months� duration.
(q)
'Service' means
the services provided by Maxon Australia as set out at paragraph 3.1 below;
(r)
'Software' means
the software developed by Maxon Australia to enable the operation of
the maXconnect Portal;
(s)
'Subscriber' means
the person or entity who agrees to these Subscriber Terms when signing and
accepting the maXconnect Service Level Agreement and establishing an Account,
and includes any employee of such person or entity, and any person who that
person or entity allows to use the Service;
(t)
'Subscription'
means the subscription to the Service by the Subscriber in accordance with the Maxon
Service Agreement;
(u)
'Subscription Fees'
means the fee(s) payable by the Subscriber to Maxon Australia for access to
and use of the Service, including any fees payable in respect of the Licence
and/or any other professional services which may be provided by Maxon Australia
to the Subscriber, during the Subscription Term as set out in more detail in
the maXconnect Service Level Agreement as may vary from time to time pursuant
to the Maxon Service Agreement;
(v)
'Subscription Term'
means the period for which Maxon Australia provides the Service to the
Subscriber, commencing from the date on which the relevant maXconnect Service
Level Agreement is signed by both the Subscriber and Maxon Australia, and
continuing until the expiration of the relevant period as indicated therein (as
may be extended by any Renewals) or the date on which the Maxon Service
Agreement is validly terminated;
(w)
'Third-Party
Content' means content which has been sourced from or provided by third
parties, including the Subscriber, to Maxon Australia which Maxon Australia
uses in providing the Service, including any content Maxon Australia receives
from any Compatible Devices that is used to create any Content; and
(x)
'Website' means
the website operated by Maxon Australia and located at www.maxon.com.au or such other website
maintained by or on behalf of Maxon Australia through which the Service is made
available to Subscribers.
1.2
Interpretation
In the Maxon Service Agreement, unless the context otherwise requires,
references to any legislation or legislative provision will include modifying,
consolidating, or replacing legislation or legislative provisions and
references to a statute will include all regulations, proclamations, ordinances
and by-laws issued under that statute.
2.
EFFECT OF TERMS
2.1
The Subscriber acknowledges
that Maxon Australia provides the Service solely in
accordance with the Maxon Service Agreement and warrants that the Subscriber
has read and understood the Maxon Service Agreement.
2.2
The Subscriber acknowledges
that if there is any conflict between the terms and conditions in the Maxon
Service Agreement, the order in which they shall prevail are as follows (from the
highest to lowest level of priority):
(a)
the maXconnect
Service Level Agreement; and
(b)
the maXconnect
Terms and Conditions;
2.3
The Subscriber acknowledges that Maxon Australia may,
from time to time at its sole and absolute discretion, revise the Maxon Service
Agreement. Maxon Australia will post a notice on the maXconnect Portal whenever
it revises the Maxon Service Agreement ('Notice
of Change'). The Subscriber agrees that by continuing to use the Service
following the notice of change, the Subscriber shall be deemed to have accepted
any such revision. It is the Subscriber's responsibility to review the Maxon
Service Agreement periodically and if at any time the Subscriber finds any
revision to the Maxon Service Agreement to be unacceptable, in whole or in
part, the Subscriber should not continue to use the Service and must take steps
to cancel its Subscription, including by providing notice to Maxon Australia of
such an intention.
2.4
If the Maxon Service Agreement is revised pursuant
to paragraph 2.3 above, the Subscriber acknowledges and accepts that:
(a) the matters disclosed in any revised Maxon Service
Agreement shall prevail to the extent that they are inconsistent with any
matters in the previously accepted version of the Maxon Service Agreement
before the revision; and
(b) all references in these Subscriber's Terms to the Maxon
Service Agreement shall be read as referring to the most recent version of the Maxon
Service Agreement which the Subscriber has accepted or is deemed to have
accepted upon subscription to the Service or pursuant to paragraph 2.3 above.
2.5
For the avoidance of doubt, the right in paragraph
2.3 above does not apply to changes to the Subscription Fees by Maxon Australia which are governed by the maXconnect Service Level
Agreement and paragraph 4.2(f) below.
3.
NATURE OF THE SERVICE
3.1
The parties acknowledge
and agree that, subject to the Subscriber paying the Subscription Fees and
complying with the terms and conditions of the Maxon Service Agreement, Maxon
Australia agrees to provide the Subscriber with the following elements of the
Service, subject to any other term or condition which may qualify the
obligation on Maxon Australia to provide any elements of the Service, during
the Subscription Term:
(a) access to and ability to operate an Account via the maXconnect Portal;
(b) capabilities to Manage and Monitor any Compatible Devices via
the maXconnect Portal;
(c) access to any Content available on the maXconnect Portal; and
(d) any
other professional services which Maxon Australia may provide to the Subscriber
as further described in the maXconnect Service Level Agreement.
3.2
The Subscriber
acknowledges and accepts that the Service:
(a) is offered
by Maxon Australia on a 'software-as-a-service' basis to the Subscriber and
therefore requires the Subscriber to maintain a valid Licence throughout the
period for which the Subscriber wishes to use the Service;
(b) is
offered by Maxon Australia subject to the Subscriber's acceptance of the
Service Level Agreement in the manner prescribed by Maxon Australia;
(c) is
solely designed to provide a more convenient platform for Subscribers to
simultaneously Manage and Monitor a number of Compatible Devices remotely via a
central location, being the maXconnect Portal;
(d) may
offer differing capabilities to the Subscriber to Manage and/or Monitor any
particular Compatible Device as opposed to any other Compatible Device, and
that Maxon Australia has not warranted that the Service will offer the
Subscriber equivalent or similar capabilities to Manage or Monitor all of the
Subscriber's Compatible Devices;
(e) relies on the successful, reliable, accurate, valid and real-time receipt of
Third-Party Content, and to the extent that such Third-Party Content is not
received by Maxon Australia for whatever reason or where Maxon Australia
determines that such Third-Party Content is unreliable, inaccurate or invalid,
the provision of the Service may be affected to a point where the Service
cannot be provided at all by Maxon Australia, in which event Maxon Australia
will not be at fault or liable in any way for any such failure to provide the
Service;
(f) should not be used or relied upon, as the case may be, by the Subscriber:
(i)
for any purpose that is contrary to that which Maxon
Australia intends the Service to be used, as disclosed in the Maxon Service
Agreement, or for any purpose that Maxon Australia regards as unlawful,
fraudulent, misleading or deceptive, unconscionable, defamatory, obscene or
otherwise has the tendency of infringing the legal rights of a third party or
the tendency of preventing a third party from fulfilling their legal
obligations;
(ii)
as the only means to Manage or Monitor any Compatible
Devices;
(iii) in
circumstances where a High Risk is or may be present, or where the Subscriber
intends to use the Service to identify, anticipate, provide warnings, mitigate,
remove or influence a particular High Risk (whether actual or potential) or the
outcome of a High Risk;
(iv) as a
means to protect any person or entity, including a natural person, company or
any legally recognised entity, or property, including real and personal
property as defined at law, from a High Risk;
(v) in any
circumstances where a reasonable person in the Subscriber's position, having
the same knowledge and information as the Subscriber at the relevant time,
would not have relied on the Service due to any suspected reliability or
validity issues affecting the Service for any reason; and
(vi) to an extent which would be considered unreasonable
in the relevant circumstances, including unreasonable reliance on any of the
matters in the maXconnect Service Level Agreement, and the Subscriber agrees to
be responsible for all costs and
damages it incurs as a result of such reliance in contravention of this
sub-paragraph;
(g) may not
operate at all or to a limited extent due to security settings in respect of
the relevant Compatible Devices and/or the location at which such Compatible
Devices are located which are outside the control of Maxon Australia;
(h) may not
operate at all or to a limited extent due to connectivity issues relating to
the relevant Compatible Devices, including without limitation as a result of
there being an insufficient signal for the requisite wireless connection;
(i) subject to paragraph 3.2(e) above, may require the Subscriber to do certain
things in order to grant Maxon Australia remote access to and/or control of any
Compatible Devices (and other electronic devices required to facilitate the access
or control of the Compatible Devices), including the changing of any security
or permission settings, to allow Maxon Australia to properly provide the
Service in accordance with the Maxon Service Agreement;
(j) is not
tailored to the specific circumstances of the Subscriber;
(k) is not
to be used as an absolute or static indicator of the status of any Compatible
Devices; and
(l) is only
suitable for Compatible Devices and it is the Subscriber's responsibility to
ensure that the devices which it wishes to connect to the Service are
Compatible Devices.
3.3
Maxon Australia will endeavour to notify
Subscribers at least seven (7) days prior to any Maintenance being carried out
but the Subscriber acknowledges that Maintenance may be carried out on shorter
notice or, in the case of emergencies or critical issues, without notice.
3.4
The Subscriber
acknowledges that Maxon Australia may, without prior or subsequent notice to
the Subscriber, monitor the activity of the Subscriber on the maXconnect Portal
and the locations at which the maXconnect Portal is accessed for the purposes
of monitoring the Subscriber's use of the Service and compliance with the Maxon
Service Agreement.
4.
FEES & CHARGES
4.1
As a condition of using
the Service, including the maintenance of a valid Licence and an active
Account, the Subscriber must pay to Maxon Australia the relevant Subscription
Fees as set out in the maXconnect Service Level Agreement.
4.2
In
addition to the matters in paragraph 4.1 above, the Subscriber acknowledges and
agrees that:
(a)
it shall not be granted access to or entitled to commence or continue to
use of the Service until it has paid to Maxon Australia the Subscription Fees
that are payable in respect of such access and/or use of the Service and such
Subscription Fees must be paid by the time and in the manner as set out in the
maXconnect Service Level Agreement;
(b)
the Subscriber's right to a
Renewal is subject to the Subscriber paying to Maxon Australia, on the due
date, the Subscription Fees payable in respect of the Renewal;
(c)
the Subscription Fees will not be refunded where the Subscriber
indicates that it wishes to close or terminate the Account, for whatever
reason;
(d)
Maxon Australia will not refund any Subscription
Fees in the event that the Subscriber does not make use of the Service for whatever
reason;
(e)
Maxon Australia will not refund any portion of the
Subscription Fees in the event that access to the maXconnect Portal is
temporarily suspended from operation for whatever reason;
(f)
Maxon
Australia shall be entitled to increase the Subscription Fees at any time but
on not less than one (1) month's notice to the Subscriber, such notice to be
served by email to the email address provided by the Subscriber in the Account
details. Any increase in Subscription Fees shall not apply in respect of the
Subscription Term for which the Subscription Fees have already been paid as at
the date when the increase takes effect but shall be applied to any Renewal;
(g)
time is of the essence for all payments due under the Maxon
Service Agreement; and
(h)
all payments due and payable to Maxon Australia under
the Maxon Service Agreement must be paid to Maxon Australia by one of the forms
of payment defined in the maXconnect Service Level Agreement, and be paid in
fully cleared funds, without setoff or counterclaim.
4.3
The Subscriber acknowledges and accepts that should
the Subscription Fees not be paid on time, Maxon Australia reserves the right to suspend or terminate the
Subscriber's Account and suspend the provision of the Service to the Subscriber
without notice to the Subscriber until any arrears have been received by Maxon
Australia. For the avoidance of doubt, Maxon Australia may exercise its right
under paragraph 9.2 to terminate the Maxon Service Agreement at any time if the
Subscription Fees are in arrears after seven (7) days of the date on which they
are payable to Maxon Australia. In the event Maxon Australia exercises its
rights under this paragraph 4.3, Maxon Australia shall not be liable for any
loss or damage, howsoever arising, the Subscriber incurs as a result of such
exercise.
5.
SUBSCRIPTION ACCOUNTS
5.1
The Subscriber agrees and undertakes that when
establishing an Account, the Subscriber will provide all the information
which is required by Maxon Australia to enable the Subscriber to operate
and maintain the Account during the Subscription Term.
5.2
By subscribing to the Service and establishing an
Account, the Subscriber irrevocably and unconditionally agrees to abide by the
terms and conditions of the Maxon Service Agreement and acknowledges and agrees
that:
(a)
the Subscriber
must ensure that all of the information the Subscriber provides to establish an
Account or in updating an Account is and will be accurate, true and complete at
all times during the Subscription Term;
(b)
the
Subscriber must not allow any other unauthorised third party to have access to
the Account or to use the Service for any reason, and will actively takes steps
to prevent any unauthorised third party from doing such, the Subscriber must
notify Maxon Australia immediately if it becomes aware of any unauthorised use
of the Account or Service;
(c)
the
Subscriber will not cause or allow the Account to be leased, sold, transferred
to or operated by another person, whether for money or other valuable
consideration or gratuitously;
(d)
the
Subscriber assumes full responsibility for maintaining the confidentiality of
its Account, including any username and password required for accessing,
operating or maintaining the Account;
(e)
Maxon Australia is not responsible for any losses
the Subscriber incurs due to informational or technical errors in the Account
establishment process, and will not be liable for any loss or damage the
Subscriber incurs as a result of an unauthorised person using the Account,
including the use of any Account information;
(f)
Maxon Australia reserves the right to edit or
delete any Account information, including material related or uploaded to an
Account, without notice and liability to the Subscriber, in the event that any
such information, as determined by Maxon Australia in its sole and absolute discretion,
violates the Maxon Service Agreement, or if Maxon Australia deems it is
appropriate to edit or delete such material pending investigation of any such
violation; and
(g)
Maxon Australia reserves the right to suspend or
terminate any Account, without notice and liability to any Subscriber, in the
event that the Subscriber to which the Account relates has violated the Maxon
Service Agreement in any respect, as determined by Maxon Australia at its sole
and absolute discretion, or if Maxon Australia deems it appropriate pending
investigation of any such violation.
6. WARRANTIES, DISCLAIMERS AND INDEMNITIES
6.1
In respect of the Service, the Subscriber warrants,
represents and undertakes that:
(a)
the Subscriber has read and understood the
content of the Maxon Service Agreement and accepts that it comprises a binding,
legal agreement between the Subscriber and Maxon Australia and governs the
Subscriber's use of the Service;
(b)
if the Subscriber is an individual –
the Subscriber is at least 18 years of age and there is no reason the
Subscriber is aware of in law that prevents the Subscriber from accepting or
performing its obligations in the Maxon Service Agreement;
(c)
if the Subscriber is a company or other
corporate entity or government agency – the Subscriber has all the necessary
rights and powers to enter into the Maxon Service Agreement, and there is no
reason the Subscriber is aware of in law that prevents the Subscriber from
accepting or performing its obligations in the Maxon Service Agreement;
(d)
the Subscriber will pay the Subscription Fees
and any other monies due to Maxon Australia as and when they are due;
(e)
the Subscriber will not use the Service for
any purposes other than those clearly contemplated by Maxon Australia in
accordance with the Maxon Service Agreement;
(f)
the Subscriber will not publish or reproduce
any Confidential Information of Maxon Australia in any form, including without
limitation on the maXconnect Portal, the Website or on any external websites
unaffiliated with Maxon Australia or in any print medium, without the prior
written permission of Maxon Australia; and
(g)
it is the Subscriber's responsibility to ensure its own compliance with all applicable laws when using
the Service, and Maxon Australia disclaims any responsibility and liability for
the Subscriber's compliance to the full extent permitted by law.
6.2
The Subscriber
irrevocably and unconditionally acknowledges and accepts the following in using
the maXconnect Portal, the Website and the Service:
(a)
that Maxon
Australia provides the Service and Website on a purely 'as is' basis without
warranty of any kind and, to the maximum extent permitted by law, Maxon
Australia expressly disclaims any and all liability and any warranties or
guarantees, express or implied, regarding the maXconnect Portal, the Website and
the Service, including, but not limited to, any implied warranties or
guarantees of acceptable quality, fitness for a particular purpose or
non-infringement of third party rights not otherwise disclosed in the Maxon
Service Agreement;
(b)
that to the
maximum extent permitted by law, Maxon Australia shall not be liable in any
circumstances for any loss or damage howsoever incurred by the Subscriber as a
result of the Subscriber using or relying upon the Service in a manner contrary
to the matters outlined in paragraph 3.2 above or otherwise in breach of the Maxon
Service Agreement;
(c)
that to the
maximum extent permitted by law, Maxon Australia shall not be liable in any
circumstances for any loss or damage howsoever incurred by the Subscriber as a
result of the Subscriber's use of the Service for any commercial purposes,
including use of the Service in the course of providing commercial services to
a third party for consideration, and the Subscriber shall not represent to any
third party that the Service has any features, capabilities or otherwise
operates at a level contrary to the Maxon Service Agreement;
(d)
that whilst
Maxon Australia will use its reasonable endeavours to ensure that the Content, excluding
Content which incorporates Third-Party Content, is complete, reliable,
accurate, valid and current for the purpose for which the Service is provided
(as described in paragraph 3.2 above), the Subscriber agrees that it must
obtain independent verification or advice before relying upon any Content in
circumstances where loss or damage may result, howsoever arising, and that
Maxon Australia otherwise makes no warranties or representations as to the
completeness, reliability, accuracy, validity or currency of any Content,
including any Content which incorporates Third-Party Content, and the
Subscriber bears all losses and damages suffered as a result of acting in
reliance on any Content to the extent beyond which the Service is intended as
disclosed by the Maxon Service Agreement;
(e)
that in
providing the Service, Maxon Australia reserves the absolute right to revise, alter, redact, modify or remove any
Content without notice or liability to the Subscriber;
(f)
that Maxon
Australia assumes that any Third-Party Content Maxon Australia receives will be
complete, reliable, accurate, valid and current, and that such Third-Party
Content contains no content which is otherwise unlawful, fraudulent, misleading
or deceptive, unconscionable,
defamatory, obscene or otherwise has the tendency of infringing the legal
rights of a third party or the tendency of preventing a third party from
fulfilling their legal obligations, and the Subscriber bears all losses
or damages, howsoever incurred, in reliance on any Content which incorporates
Third-Party Content where the loss or damage incurred is primarily a result of
the assumption in this paragraph being incorrect, and Maxon Australia shall not, to the maximum extent permitted
by law, be liable in any circumstances for any loss or damage howsoever
incurred by the Subscriber in relation to any such Content which incorporates
Third-Party Content;
(g)
that use of the Service and Website may require the
Subscriber to comply with various technical requirements (as communicated to
the Subscriber by Maxon Australia), including any hardware, software and firmware
requirements, use of modem browser technology to access the internet, an active
Internet connection, the configuration of Internet browser settings or allowing
the use of 'cookies' or 'flash' content, and it is the Subscriber's
responsibility to ensure that it complies with any and all such technical
requirements, and Maxon Australia shall not be liable in any way for any losses
or damages suffered by the Subscriber as a result of the Subscriber failing to
comply with the matters in this paragraph;
(h)
that use of the Service to Manage and/or Monitor any
Compatible Devices may depend on the Subscriber installing, operating and
updating certain software or firmware from time to time in relation to those
Compatible Devices, such software or firmware being provided or recommended by
Maxon Australia, and the Subscriber must install, operate and update any
software or firmware provided or recommended by Maxon Australia from time to
time in order to use the Service and Maxon Australia shall not be liable in any
way for any losses or damages suffered by the Subscriber as a result of the
Subscriber failing to comply with the matters in this paragraph;
(i) that to
use and access the Service the Subscriber must ensure that its Compatible
Devices have a reliable connection to a cellular network;
(j) that to the maximum extent permitted by law, Maxon
Australia does not warrant that the maXconnect Portal, the Website or the
Service will meet the Subscriber's requirements or that the use of the
maXconnect Portal will be uninterrupted or error-free including for the reason
that Maxon Australia may be required to perform Maintenance and because use of
the Service may depend on the availability and reliable connection to a
cellular network by both Maxon Australia and the Subscriber;
(k) that Maxon Australia may provide support services intended to assist a
Subscriber in using the Service (the 'Support Services'), however, any
Support Services shall be provided at the sole discretion of Maxon Australia
and it is the Subscriber's sole responsibility to assess and review whether the
Support Services are suitable for its purposes such that the Subscriber shall
bear all the costs and damages it incurs by acting in reliance on the Support
Services;
(l)
that to the
maximum extent permitted by law, Maxon Australia is not responsible for any
inability or delay in providing the Service for any reason which is outside
Maxon Australia's immediate control, including the occurrence of a Force
Majeure Event, interruption to any telecommunications or data network or any
prevention or compulsion by law which was reasonably unforeseeable at the time
the Subscriber subscribed to the Service, and to the extent such inability or
delay is attributable solely to the acts or omissions of the Subscriber
(including causes attributable to a Compatible Device or any electronics device
required to operate a Compatible Device), Maxon Australia shall not be taken to
have breached the Maxon Service Agreement in respect of such inability or
delay;
(m)
that Maxon
Australia does not warrant that the Service or Website will be available for
use free of technical or functional errors, including the presence of
'viruses', 'Trojans', 'spyware', 'adware', 'bots' and other similarly harmful
computer effects, and any losses or damages the Subscriber suffers as a result
thereof, or because Maxon Australia has chosen to temporarily or permanently
suspend operation of the maXconnect Portal or the Website, is a risk borne by
the Subscriber and the Subscriber releases Maxon Australia from any and all
claims in respect thereof; and
(n)
that the
Subscriber is prohibited from violating or attempting to violate any security
features of the Service or Website, including, without limitation,
(a) accessing content or data not intended for the Subscriber, or logging
onto a server or account that the Subscriber is not authorised to access;
(b) attempting to probe, scan, or test the vulnerability of the maXconnect
Portal, the Service or the Website or any associated system or network, or to
breach security or authentication measures without proper authorization;
(c) interfering or attempting to interfere with service to any user, host
or network, including, without limitation, by means of submitting a virus to
the Website, overloading, 'flooding,' 'spamming,' 'mail bombing,' 'hacking,' or
'crashing'; (d) using the maXconnect Portal, the Service or the Website to
send unsolicited e-mail, including, without limitation, promotions or
advertisements for products or services; (e) forging any TCP/IP packet header
or any part of the header information in any e-mail or in any posting in
connection with the Service; or (f) attempting to modify,
reverse-engineer, decompile, disassemble or otherwise reduce or attempt to
reduce to a human-perceivable form any of the source code used by Maxon
Australia in operating the maXconnect Portal, the Service or the Website.
6.3
Both parties agree to use their reasonable
endeavours to mitigate any loss, damage, liability, expenses and costs suffered
by them under or arising out of this Agreement.
6.4
The Subscriber hereby indemnifies and undertakes to
keep Maxon Australia fully and effectually indemnified from and against any
losses or damages (including legal costs on an indemnity basis) that Maxon
Australia incurs in connection with the Subscriber's breach of the Maxon
Service Agreement, including from defending or settling any legal action or
demand from any third party or otherwise paying any fees, charges, taxes,
levies or penalties arising from the Subscriber's use of the Service.
6.5
Notwithstanding any other provision of the Maxon
Service Agreement, the maximum liability of Maxon Australia for any loss or
damage incurred by the Subscriber arising out of, in connection with or
relating to the use or provision of the Service or a breach or termination of
the Maxon Service Agreement by Maxon Australia, regardless of the type of
action the Subscriber may bring against Maxon Australia for such loss or
damage, is limited to the total Subscription Fees paid by the Subscriber.
6.6
Notwithstanding any other provision of the Maxon
Service Agreement, the Subscriber acknowledges and accepts that in no
circumstances shall Maxon Australia be liable for any indirect or consequential
loss or damage suffered by the Subscriber in connection with or relating to the
use of the Service or a breach or termination of the Maxon Service Agreement by
Maxon Australia. Each party agrees that loss of profits, loss of business
opportunities, loss of reputation, loss of anticipated savings, loss of
revenue, loss of goodwill and loss of contracts however occurring, will
constitute indirect or consequential loss or damage.
6.7
Nothing in this Agreement excludes, restricts or
modifies any condition, warranty, statutory guarantee, right or remedy implied
or imposed by common law, statute or regulation which cannot be lawfully
excluded, restricted or modified, which may include Australian Consumer Law and
corresponding provisions of State or Territory legislation containing implied
terms and/or statutory guarantees which operate to protect the purchasers of
goods and services in various circumstances. If any condition, warranty or
statutory guarantee is implied into this Agreement or applies by operation of
law and cannot be excluded but Maxon Australia is able to limit its liability
for a breach of such condition, warranty or statutory guarantee, the liability
of Maxon Australia for breach of that condition, warranty or statutory
guarantee is limited, to the extent permitted by law, at Maxon Australia's
discretion, to the supply of the services again or the payment of the cost of
having the services supplied again.
7. INTELLECTUAL
PROPERTY
7.1
The Subscriber acknowledges and agrees in respect
of the Content and the Software that:
(a)
all
Content and Software is made available for use by the Subscriber on a limited,
non-transferable and non-exclusive licence from Maxon Australia for the purpose
of enabling the Subscriber to enjoy the benefits of the Service in accordance
with the Maxon Service Agreement;
(b)
the
Subscriber will only use the Content and Software in connection with the
intended purpose of the Service as disclosed in the Maxon Service Agreement;
(c)
Maxon Australia retains full and complete title and
interest to the Content and Software including all Intellectual Property
Rights;
(d)
the
Subscriber does not acquire any right, title or interest (including any
Intellectual Property Rights) in any Content or Software under any
circumstances; and
(e)
the
Subscriber must not copy, license, sell, distribute, communicate to the public,
store or reproduce the Content or
Software by any means other than as expressly allowed pursuant to the Maxon
Service Agreement.
7.2
In respect of all Third-Party Content contained in
the maXconnect Portal and/or on the Website, the Subscriber acknowledges and
agrees that Maxon Australia does not purport to confer on the Subscriber any
right, title or interest in any such Third-Party Content greater than that
which is necessary for the provision of the Service by Maxon Australia to the
Subscriber, nor does Maxon Australia purport to possess any right, title or
interest in any such Third-Party Content greater than that which Maxon
Australia otherwise possesses under the Maxon Service Agreement or under the
general law.
7.3
In respect of any Third-Party Content that is
provided by the Subscriber to Maxon Australia in accordance with the Maxon
Service Agreement, the Subscriber warrants that the Subscriber is able to
confer a royalty-free unconditional licence to Maxon Australia to use that
Third-Party Content in accordance with the Maxon Service Agreement and accepts
that by virtue of this paragraph, the Subscriber shall confer a royalty-free
unconditional licence to Maxon Australia to use that Third-Party Content in
accordance with the Maxon Service Agreement.
7.4
The Subscriber acknowledges and agrees that the
mere access or availability of the Third-Party Content to the Subscriber in
connection with the Service shall not be an inference that Maxon Australia has
any relationship, affiliation or association with the author of the Third-Party
Content.
8.1
Each party undertakes to keep confidential any Confidential Information
relating to other party which it obtains under or in
connection with the Maxon Service Agreement and not to use such
information or disclose it to any other person, other than as permitted under
this paragraph 8.
8.2
The restriction contained in this paragraph 8 shall continue to apply
for the term of the Maxon Service Agreement and for a period of 3 years after
the expiry or termination of the Maxon Service Agreement.
8.3
Each party may disclose any Confidential Information which relates to
the other party to:
(h)
any of its directors, employees, advisers and
agents who need to know the Confidential Information;
(i)
where necessary for the provision of the
Services, including to any subcontractor of Maxon Australia; or
(j)
provided that such information is disclosed solely
for the purposes of the Maxon Service Agreement and provided that the
disclosing party ensures that such recipient executes a confidentiality
undertaking in favour of the other party on terms which are no less restrictive
than those set out in this paragraph 8.
8.4
Clause 8.1 shall not apply to the disclosure of Confidential
Information:
(a)
with the consent of the person to whom the
information relates; or
(b)
if and to the extent:
(i)
required by law; or
(ii)
required by any competent regulatory authority or
recognised stock exchange; or
(iii)
that such information is in the public domain
other than through breach of this paragraph,
provided that any Confidential Information
shall only be disclosed pursuant to paragraph 8.4(b)(i) or 8.4(b)(ii) above by
either party after notification to the party to which the information relates
if such notification is practicable in the circumstances.
9. TERMINATION
9.1
If at any time the Subscriber intends to withdraw
from the Service and terminate the Maxon Service Agreement, it must give notice
of at least the Notice Period of such intention to Maxon Australia and such
termination shall be effective at the end of the applicable Subscription Term. The
Subscriber may communicate its notice in this paragraph 9.1 in any manner
provided for by the Maxon Service Agreement, including any other function
available on the maXconnect Portal designed to allow the communication of a
notice under this paragraph 9.1. Furthermore, the Subscriber must at the end of
the Notice Period take immediate steps to cease using the Service and close its
Account. The Subscriber shall not be entitled to a refund of any Subscription
Fees paid to Maxon Australia if the Subscriber exercises the right in this
paragraph 9.1.
9.2
The Subscriber acknowledges and accepts that Maxon
Australia may terminate or suspend the provision of the Service to the
Subscriber, including the cancellation of the Subscriber's Account and/or the
prevention of the Subscriber from accessing the maXconnect Portal or Service, if the Subscriber breaches any term or
condition of the Maxon Service Agreement, including any of the warranties and
undertakings in paragraphs 6.1 and 6.2 above, or in the event that Maxon
Australia suspects that the Subscriber has or might breach any term or
condition of the Maxon Service Agreement. In the event that Maxon Australia exercises its
rights under this paragraph 9.2, the Subscriber is not entitled to recover from
Maxon Australia any compensation (including the refund of any Subscription Fees
paid) or other remedy in respect of any loss or damage (however so arising)
which the Subscriber incurs as a result thereof.
9.3
The Subscriber acknowledges and accepts that should
its use of the Service be terminated in accordance with paragraph 9.2 above or pursuant
to any other right Maxon Australia may have under the general law or pursuant
to the maXconnect Service Level Agreement, it must not subscribe for another
Account or continue to use the Service and such termination shall be deemed to terminate
the Maxon Service Agreement. For the avoidance of doubt, this obligation in
this paragraph 9.3 survives the termination of the Maxon Service Agreement.
9.4
In the event of the occurrence of any Force Majeure
Event, the time for performance required by a party under this Agreement will
be extended for any period during which performance is
prevented by the Force Majeure Event.
9.5
Notwithstanding the above, if a delay or failure by
a party to perform its obligations under the Maxon Service Agreement due to a
Force Majeure Event exceeds 30 (thirty) business days, any party may
immediately terminate the Maxon Service Agreement on providing notice to the
other parties, such notice to take effect 10 (ten) business days after the date
of such notice. If the Maxon Service Agreement is terminated under this
paragraph 9.5, none of the Subscription Fees paid by the Subscriber which
represents the unexpired period of the Subscription Term (as determined on the
date of termination under this paragraph 9.5) shall be refundable to the
Subscriber by Maxon Australia if it is the Subscriber who seeks to exercise the
right under this paragraph 9.5.
9.6
The Subscriber acknowledges and accepts that Maxon
Australia's right under this paragraph 9 is in addition to any other rights of
termination or suspension it may have in the Maxon Service Agreement and under
the general law, and the exercise of those rights by Maxon Australia shall not
be a bar to prevent Maxon Australia from claiming any losses or damages Maxon
Australia has suffered, howsoever arising, as a result of the Subscriber's
breach of the Maxon Service Agreement (whether or not such claim arises
pursuant to the Maxon Service Agreement or under the general law).
9.7
The parties acknowledge and agree that
notwithstanding anything in the Maxon Service Agreement that regulates the
termination or suspension the provision of the Services, any rights,
obligations and liabilities that have accrued under the Maxon Service Agreement
prior to the termination or suspension shall remain unaffected.
10. DISPUTE RESOLUTION
10.1
In the
event that the Subscriber feels that a dispute, controversy or claim ('Dispute'), arising out of or in
connection with the Service or the Maxon Service Agreement, including any
question regarding its existence, validity or termination, has
arisen, the Subscriber must comply with the following complaint procedure
before commencing any legal proceedings or seeking any other remedy against
Maxon Australia:
(a)
the
Subscriber must first provide full details of the Dispute to Maxon Australia by
email to info@maxon.com.au and registered post and allow Maxon Australia a
reasonable amount of time to investigate the Dispute before providing a written
response; and
(b)
the
Subscriber shall assist and cooperate with Maxon Australia during the period
when Maxon Australia investigates and assesses the nature of the Dispute.
10.2 The Subscriber hereby indemnifies Maxon
Australia for all costs associated with dealing with a Dispute if because of
the Subscriber's non-compliance with this paragraph 10, the Subscriber has
caused Maxon Australia to incur costs which it would not have incurred or has
incurred to a greater extent than necessary had the Subscriber complied with
this paragraph 10.
10.3 To the maximum extent permitted by law, the
parties agree that in the event of a Dispute, the Subscriber must not commence
any court or arbitration proceedings relating to the Dispute until it has
complied with paragraph 10.1 above to attempt to resolve the Dispute.
10.4 Nothing in this paragraph 10 prejudices the
right of either party to seek urgent injunctive, interlocutory or declaratory
relief from a court in connection with the Dispute without first having to
attempt to resolve the Dispute in accordance with paragraph 10.1 above.
11. NOTICES
11.1 Subject
to section 11.2 below, all
notices, demands, consents or other communications required or permitted to be
given under the Maxon Service Agreement must be in writing and signed by an
authorised signatory ('Notice') and given
by personal service, mail (postage prepaid), facsimile (for which proof of
sending is retained), by email to the other party's email address (such email
address to be the email address described in the maXconnect Service Level
Agreement or the email address the Subscriber provides on subscription to the
Service) or to be given by such other method as a party may designate to the
other party by written notice. A
Notice is deemed to be received:
provided that if a Notice to Maxon
Australia is received by Maxon Australia after 5.00pm or on a day which is not
a business day, it will be deemed to have been received by Maxon Australia on
the next business day.
11.2
The Subscriber acknowledges that Maxon Australia
shall be entitled to issue notices in relation to matters relating to the
Service by any of the means described in section 11.1 above and/or by means of
notices sent via the maXconnect Portal and, in the latter case, such notices
will be deemed to have been received at the time of sending.
12. MISCELLANEOUS MATTERS
12.1
If, for whatever reason, a court of competent
jurisdiction finds any term or condition in the Maxon Service Agreement to be
unenforceable, all other terms and conditions will remain unaffected and in
full force and effect.
12.2
Maxon Australia shall not be taken to waive the
enforcement of any of its rights, whether for past, future or continuing
breaches, under the Maxon Service Agreement unless made in writing and signed
by an authorised representative of Maxon Australia and is only effective in the
specific instance and for the specific purpose for which it is given.
12.3
Any failure or delay by one party to compel
performance by another party of any of the terms and conditions of the Maxon
Service Agreement does not constitute a waiver of those terms or conditions,
nor does it affect or impair the right of the first party to enforce them
against the other party at a later time or to pursue remedies it may have for
any subsequent breach of those terms or conditions.
12.4
A single or partial exercise or waiver of a right
by a party does not preclude another or further exercise of that right or the
exercise of any other right.
12.5
The Maxon Service Agreement constitutes the entire
agreement between the parties in relation to its subject matter, and replaces
and extinguishes all prior agreements, draft agreements, arrangements,
undertakings or collateral contracts of any nature made by the parties, whether
oral or written, in relation to such subject matter.
12.6
Each party acknowledges that in entering into the Maxon
Service Agreement it is not relying on, and shall have no rights or remedies
(whether in tort, under statute or otherwise) in respect of any statements,
collateral or other warranties, assurances, undertakings or representations
(whether innocently or negligently made) by the other party to the Maxon
Service Agreement.
12.7
Nothing in the Maxon Service Agreement shall
exclude or restrict the liability of either party arising out of fraud,
fraudulent misrepresentation or fraudulent concealment.
12.8
In the event there is any inconsistency between the
Maxon Service Agreement and any other information appearing on the maXconnect
Portal or Website, or any other material accessible, available or observable on
the Website and published by Maxon Australia (including any 'FAQs'), the Maxon
Service Agreement shall prevail.
12.9
The Subscriber may not assign, dispose of or
otherwise transfer the Maxon Service Agreement or any rights or obligations
under the Maxon Service Agreement without the prior written permission of Maxon
Australia. To the maximum extent permitted by law, Maxon Australia may freely
assign, dispose of or otherwise transfer the Maxon Service Agreement or all or
any part or parts of its rights to any third party, and in the event of such assignment
or transfer the Subscriber undertakes to fulfil all of its obligations under
the Maxon Service Agreement to such assignee or transferee.
12.10 The Maxon Service Agreement shall be construed in accordance with and governed by the laws of the New South Wales, Australia, the Courts of which shall have jurisdiction in respect of disputes arising out of or related to the use of the Service, the maXconnect Portal, the Website or the Maxon Service Agreement.