Table of Contents

1.     Definitions.

2.     Access and Use rights to the Subscription.

3.     Use Verification.

4.     Client Data.

5.     Provision of Services.

6.     Further Services.

7.     Order Forms.

8.     Fees and Payment

9.     Priority.

10.   Term.

11.   Renewal.

12.   Termination.

13.   Effect of Termination.

14.   Return of Client Data.

15.   Subcontractors.

16.   Third Party Products.

17.   Variations.

18.   Client Obligations.

19.   Privacy.

20.   Enhancements.

21.   Continuity of Service.

22.   Maintenance.

23.   Intellectual Property.

24.   Confidentiality.

25.   Indemnity and Limitation of liability.

26.   Support.

27.   Service Availability.

28.   Service Level Agreement

29.   Settlement of Disputes.

30.   GST.

31.   Severability.

32.   Relationship of parties.

33.   Entire agreement

34.   Governing Law and Jurisdiction.

1. Definitions

Analytical Data means any data and/or information created and/or produced from or as a result of Asset Vision’s internal research, product developments, statistical analysis and identification of trends and insights, and/or and data, either raw or processed, input into Asset Vision Technology by the Client and/or produced by Asset Vision Technology.

Asset Vision:  Asset Vision Pty Ltd (ACN 645 298 451) a wholly owned subsidiary of Asset Vision Co Ltd (ACN 164 718 361)

Asset Vision App: The Asset Vision Application downloaded from the Apple or Android app store.

Asset Vision Technology: Means:

• The Subscription Service, Asset Vision App, Ancillary Software, Documentation, and technology and methodologies (including products, software tools, data integration tools and services) created by or for, or licensed to, Asset Vision; and

• Updates, upgrades, improvements, configurations (including but not limited to Enhancements), extensions, and derivative works of the foregoing and related technical or end user documentation or manuals.

Business Days : The days banks are open in Melbourne Victoria (not including Saturday or Sunday).

Client: The Client set out in the Order.

Client Data: Electronic data uploaded by or for Client and processed in the Subscription Service.

Client Technology: Software, methodologies, templates, business processes, documentation, or other material originally authored, invented, or otherwise created by Client (or on Client’s behalf, other than by Asset Vision or at Asset Vision’s direction) for use with the Subscription Service, excluding Asset Vision Technology.

Confidential Information: The Asset Vision Technology (which is Confidential Information of Asset Vision); Client Data (which is Confidential Information of Client); any information of a party which is designated as confidential or proprietary whether obtained before or after execution of this document; and the terms of this agreement and any Order. 

It does not include:

• Information which is in or becomes part of the public domain, other than through a breach of this agreement or an obligation of confidence, or

• Information which the other party can prove by contemporaneous written documentation was independently acquired or developed without breaching any of the obligations set out in these terms and conditions.

Consulting Services means services provided by Asset Vision to the Client, as set out in any Order, (they are different and separate to the licence to use the Subscription and exclude Enhancements and Implementation Services).

Contingencies mean the tasks and requirements set out in any Order, which must be completed by the Client before Services can be provided.

Contract Materials means all things, materials and information, created, conceived, developed or generated by Asset Vision in supplying the Consulting Services under this agreement.

Enhancements: Has the meaning given in clause 20.

Enhancement Fee: Has the meaning given in clause 20.

Documentation: The documentation relating to the operation and use of the Subscription including technical documentation, user manuals, operating instructions, and release notes.

Implementation Services means the services provided by Asset Vision to the Client to assist the Client migrate its Client Data and any Client Technology to the Asset Vision Technology, assisting the Client to implement and set up the Asset Vision Technology for use under the Order.

Intellectual Property Rights: All intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, moral rights, trade secrets, and any other intellectual or industrial property, including registrations, applications, renewals, and extensions of such rights.

Level One Support: Filters user requests and basic support and troubleshooting, such as password resets, device first level support, break / fix instructions, ticket creation and escalation to Level Two and Level Three support. Gathers as much information as possible from the user.

Level Two Support: Handling of escalated issues that Level One support is not trained to handle. May escalate to Level Three, depending on the issue. More in-depth technical support level – advanced troubleshooting.

Level Three Support: The highest level of support in the Asset Vision three-tiered technical support model – responsible for handling the most difficult or advanced problems. Troubleshooting, configuration, database and back-end support and repair requests issues for critical faults. Ability to deploy solutions to fix problems.

Order: An order signed by Client and Asset Vision and includes an Order Form including in relation to a Pilot as well as any document marked as a ‘proposal ‘or similar wording and includes any Services Order. 

Personal Data: Any information relating to an identified or identifiable natural person. Personal data may be contained in Client Data.

Pilot: A trial period during which the Client will assess the Asset Vision Technology.

Renewal Term: Has the meaning given in clause 11.

Services means any Implementation Services and Consulting Services.

Services Fee means the fees payable in consideration for the Services as set out in any Order (or amendment) and calculated under the Order and these Terms & Conditions.

Services Order means an Order which requests further Services from Asset Vision or varies a request for Services from Asset Vision as set out in clause 6.

Subscription: The Asset Vision software-as-a-service offering ordered by Client under an Order.

Subscription Fees mean the fees associated with the Subscription as agreed between the parties in an Order.

Subscription Term: The period of authorised access to and use of the Subscription Service, as set out in an Order.

Third-Party Products: are any products offered by third party that are referenced in an Order.

2. Access and Use rights to the Subscription

For each Subscription Term and subject to these terms and conditions, Asset Vision grants the access and use rights set out in this clause 2 for the Asset Vision Technology as detailed in the applicable Order.

Subject to payment of Subscription Fees, Asset Vision authorises Client to access and use the Subscription in the manner and for the Subscription Term stated in the applicable Order, solely for its internal business purposes in accordance with the Documentation.

Client must not otherwise access or use the Subscription Service in a manner that exceeds Client’s authorised access and use rights as set forth in these terms and conditions and the applicable Order. For the avoidance of doubt, where a Client has a subscription based on named users, the use of one account by multiple users is prohibited and the sharing of these accounts between users is a breach of these terms and conditions by the Client and Asset Vision is entitled to charge fees for the additional users as calculated by them (acting reasonably). In addition to this right for Asset Vision to collect fees, the parties agree this is a breach of these terms and conditions for the purpose of clause 12.

Asset Vision grants Client a limited, personal, non- sublicensable, non-transferable, non-exclusive, license during the Subscription Term to install and use the Asset Vision App for the purpose of using the Subscription Service via a mobile device. 

These terms and conditions are incorporated into any Order. If there is an inconsistency between these terms and conditions and an Order, the terms of the Order will prevail.

3. Use Verification

Asset Vision may review Client’s use of the Subscription Service, and on Asset Vision’s written request, Client will provide reasonable assistance to verify Client’s compliance with these terms and conditions. If Asset Vision determines that Client has exceeded its permitted access and use rights to the Subscription Service, Asset Vision will notify Client and within thirty (30) days thereafter Client shall either:

• Disable any unpermitted use, or

• Pay additional fees commensurate with Client’s actual use.

4. Client Data

Client Data is owned and controlled by the Client.  Asset Vision manages Client Data on behalf of the Client and will handle Client Data only in accordance with these terms and conditions and any additional agreement entered into by the parties, where relevant.

Client warrants to Asset Vision that Client Data (including any Personal Data contained therein) has been collected, processed and provided to Asset Vision in accordance with applicable laws on the protection of data including laws or regulations that apply to the transfer of Client Data by Asset Vision to any of its affiliates, employees, contractors and business partners located anywhere in the world.   

Each party will exercise reasonable and appropriate measures in the protection of Client Data, inclusive of any Personal Data contained therein, and in the prevention of any unauthorised person or entity from gaining access thereto in compliance with this agreement and that party’s privacy policy. 

Asset Vision’s privacy policy can be accessed at https://www.assetvision.com.au/privacy/

5. Provision of Services

Asset Vision will provide Services to the Client if identified in an Order.

Asset Vision is not required to perform Services until the Client has notified Asset Vision that they have performed all Contingencies and Asset Vision is satisfied that all Contingencies have been satisfactorily carried out.

In respect of the provision of Services, Asset Vision shall:

• use its best efforts to complete the Services in accordance with the Order as far as it is in Asset Vision’s control to do so; and
• exercise the degree of skill and care normally exercised by members of the relevant profession performing services of a similar nature and in accordance with the code of ethics of the institution body which governs the profession;

The Client shall:

• give Asset Vision written, timely directions, instructions, decisions and information sufficient to define the Services required and facilitate the provision of the services by Asset Vision;
• obtain all approvals, authorities, licences and permits by the Client which are required from governmental, municipal or other responsible authorities for the lawful implementation and completion of the services unless otherwise specifically included in the Services; and
• as soon as practicable or within timeframes nominated by Asset Vision, answer queries made by Asset Vision relating to the Services and provide Asset Vision with all such information which is reasonably necessary to enable Asset Vision to comply with its obligations.

Where at any time the Client wishes to change the Services agreed under an Order they must issue a Services Order under the terms and process as set out at clause 6 below.

Unless otherwise specified in an Order charges are based on an hourly or daily rate for consultant time plus materials and disbursements. The minimum fee will be 1 hour for remotely delivered work, billed in 1-hour increments. For services that require on site presence by the Consultant the minimum Fee will be 1 day (8 hours).

All Orders (including Service Orders) will set out a scope of work and price for Services. The price is an estimate unless it states that it is a fixed price. Where the price is an estimate, the Client agrees to pay the actual cost to perform the Services (even where this exceeds the estimate). Asset Vision agrees to update the Client in writing with a new estimate where an estimate is going to be exceeded.

Where the price is a fixed price, Asset Vision will deliver the Consulting Services for the fee stated in the Order, however, where in Asset Vision’s reasonable opinion any work is required that is outside the scope, they will notify the Client in writing of this and estimate the fees to perform this additional work, commencing once the Client agrees to this in writing.

6. Further Services

The Client may, at any time, make a written request to Asset Vision for the provision of further Services in respect of the Asset Vision Technology.

If Asset Vision receives a request for Services from the Client, it may either:

• give to the Client a Services Order that identifies:
  • the scope of the Services;
  • the Services Fee payable by the Client for the Services including the basis on which the Services will be calculated and payable;
  • the estimated time required to complete the delivery of the Services; and
  • any Contingencies that the Client must provide Asset Vision to complete the Services; or
• notify the Client, in writing, that Asset Vision will not perform the requested Services. For the avoidance of doubt Asset Vision may decline to provide requested Services for any reason solely in Asset Vision’s sole discretion.

Asset Vision will not commence providing any Services until the Client has:

• accepted the Services Order in writing;
• paid that part of the Services Fee that is payable prior to the delivery of the Services as set out in the Services Order (if any); and
• complete the Contingencies (if any) specified by Asset Vision in the Services Order.

7. Order Forms

Upon execution by Client and Asset Vision, each Order is non-cancellable and non-refundable, except as set out in these terms and conditions.

8. Fees and Payment

For the period of the Subscription Term, the Subscription Fees shall remain firm.  During any Renewal Period, these fees may be varied at the discretion of Asset Vision, upon the provision of at least 30 days written notice of changes to fee structures.

Subscription Service fees are invoiced in advance and must be paid by Client in the manner and the time set out in the applicable Order. 

Unless otherwise specified in the Order, all payments are to be made by EFT.

Fees for Services must be paid on the terms specified in the Order, whether they are upfront, milestone based or otherwise. Where the Order is silent it is assumed that the Service Fees are payable in lump sum and advance.

Any Enhancement Fees charged in accordance with clause 20 are payable at the rates and in accordance with the terms specified in the Order.

Client will be permitted to cure a delinquency in payment of any amounts owed under this agreement within 14 days from the date of Asset Vision’s providing notice of delinquency. If Client fails to do so, Asset Vision may suspend Client’s use of the Subscription Service or terminate this agreement for breach, in addition to any other available rights and remedies.

9. Priority

In the event of any inconsistency, the following order of priority applies:

1. Any special conditions set out in an Order; then
2. The general terms and conditions set out in an Order; then
3. The terms and conditions set out in this document; then
4. Any other documents or information incorporated by reference into the Order or these terms and conditions.

10. Term

This agreement commences on the date set out in the Order and will expire at the end of the Subscription Term specified in the applicable Order, unless otherwise terminated as set out in these terms and conditions or subject to an additional term under clause 11.

11. Renewal

Subject to payment of Subscription Service fees in respect of any further term, this agreement will automatically renew for such further period/s set out in the applicable Order (Renewal Term) unless terminated under  clause 10.

The Client may provide at least 90 days’ notice in writing (before the end of the Subscription Term) that it does not want the Renewal Term.

Renewal is subject always to the consent of Asset Vision; such consent not to be unreasonably withheld and deemed to be provided unless written notification has been provided to the Client.

Termination will be in addition to and not in lieu of any other remedies available to Asset Vision.

12. Termination

Without limiting the generality of any other clause, either party may terminate this agreement immediately by notice in writing if the other party is in breach of any term of these terms and conditions and such breach is not capable of being remedied or has not been remedied within fourteen (14) days of written notification of the breach.

13. Effect of Termination

On termination or expiration of the Subscription Service (including without limitation the expiration of a Pilot), Client must cease to access and use, and Asset Vision will cease to provide, the Subscription Service and all related rights granted to Client in this agreement will terminate immediately, automatically, and without notice.

Within 30 days after the date of termination by Asset Vision for Client’s breach, Client must pay all remaining amounts, if any, payable under this agreement for the Subscription Term applicable to the terminated Subscription Service regardless of the due dates specified in the Order.

Within 30 days after the date of termination by Client for breach by Asset Vision, Client shall be entitled to a refund of any prepaid, unused Subscription Service fees as of the date of termination.

14. Return of Client Data

After termination or expiration of this agreement or the applicable Subscription Service, upon Client’s written request, Asset Vision will provide a single copy of the current operational Client Data to the Client. The relevant Client Data will be exported into a Microsoft SQL or Azure SQL instance provided by the Client.  We note, the Client can export Client Data in CSV format at any time using the Subscription Service before subscription  termination or expiration of this agreement. 

Client must submit such request to Asset Vision within 45 days after termination or expiration of this agreement or the Subscription Service. Asset Vision is not obligated to maintain or provide any Client Data after such 45- day period and may delete all Client Data in its systems or otherwise in its possession or under its control and delete Client’s instances of the Subscription Service.  Notwithstanding the foregoing, Asset Vision may retain Client Data in back up media for an additional period of up to twelve (12) months, or longer if required by law.

15. Subcontractors

Asset Vision may engage any other party or person it may determine to be suitably capable and qualified as sub-contractors to undertake the Consulting Services. Asset Vision will be responsible for the acts and omission of the subcontractor as if they are their own.

16. Third Party Products

Some Orders will provide for the distribution of Third-Party Products by Asset Vision. Where the Client has agreed to receive these Third-Party Products, they acknowledge that they are doing so on the terms and conditions of the Third-Party Product (not these terms and conditions).

In these circumstances the Client warrants that they:

•  understand that Asset Vision does not operate, control or otherwise have any interest in the Third-Party Products;
• have read and understood the Third-Party Product terms and conditions; and
•  understand that their use of the Third-Party Product and all rights and obligations are between them and the third party.

The Client indemnifies and keeps Asset Vision indemnified from any claim that may arise in relation to their use of the Third-Party Product

Asset Vision may receive some form of commission or other payment or benefit from a third-party supplier.

17. Variations

Any amendment or modification to this agreement shall not be effective unless in writing signed by both Client and Asset Vision.

18. Client Obligations

The Client must undertake due diligence as required to familiarise and satisfy itself with the performance of the Asset Vision Technology. The Asset Vision Technology is provided on an “as is” basis, and the Client assumes the entire risk as to its quality and performance.

Furthermore, the Client must satisfy itself in relation to the data integrity of the Asset Vision application by verifying the results obtained by its use. No claims regarding its performance, functionality, data integrity or limit of features will be levied at Asset Vision concerning but not limited to use of the Asset Vision App, web server and third-party connectivity components.

Requests for product improvements or modifications will be regarded as Enhancements in accordance with clause 20.

To ensure the security of Asset Vision’s systems, the Client must keep all usernames and passwords provided by Asset Vision secure and confidential and immediately notify Asset Vision of any breach of this obligation.

The Client must not attempt to modify, alter, copy, reproduce, reverse

engineer, decompile or re-engineer the whole or any part of the Asset Vision Technology, including but not limited to its various software components, except for the express purpose of archiving data.

19.  Privacy

Asset Vision collects and handles Personal Data in accordance with our Privacy Policy that can be accessed at https://www.assetvision.com.au/privacy/.  The Client must read and understand our Privacy Policy before accessing or using our Subscription.

Asset Vision will communicate with the nominated Client’s contact person as part of the Subscription Service.  This communication may relate to, for example, sales, support, accounts, maintenance outcomes.

Where the Client uses the Subscription to collect and/ or process an individual’s Personal Data, the following applies:

1. It is the responsibility of the Client to ensure compliance with the data protection law that applies to the Client.  Specifically:

• The Client may be required to issue an appropriate ‘collection statement’ (also called a ‘privacy notice’) in accordance with the privacy law that applies to the Client, and
• Having regard to the Client’s ‘collection statement’, the Client should only use or disclose Personal Data in a manner consistent with the data protection law that applies to the Client, and
• In accordance with the data protection law that applies to the Client, the Client may be required to collect an appropriate form of consent for the collection, use or disclosure of certain Personal Data, and

• Asset Vision is not liable for unauthorised access, use, disclosure or loss of Personal Data made in error by the Client resulting from the Client’s access and use of the Subscription, and

• The Client’s failure to use, or a decision to disable, any privacy enhancing features of the Subscription, is at the Client’s own risk and liability.

Where the Client asks us to interrogate or audit the Subscription in order to fulfil an obligation set out in the privacy law that applies to the Client, eg. where investigating a data breach event, or in the conduct of a Privacy Impact Assessment, we will assist in a manner consistent with this agreement and our obligations under Australian privacy law or other data protection laws as applicable.

The Client may seek clarification of this agreement and our approach to privacy as set out in the Privacy Policy (e.g. where the Client is conducting a Privacy Impact Assessment to fulfil an obligation set out in the data protection law that applies to them).  This cannot and does not alter or limit these terms and conditions.

Where Asset Vision processes Personal Data as a data processor on behalf of the Client who is established in the EU, Asset Vision will enter into an additional agreement with the Client in respect of data processing to fulfil the Client’s obligations set out in the EU General Data Protection Regulation.  This may include entering into a Data Processing Agreement, which may include Standard Contractual Clauses, that sets out the obligations of Asset Vision and the EU Client with regard to data protection when Asset Vision processes Personal Data on behalf of the EU Client as part of the Subscription.

Where the Client seeks to enter into an agreement with Asset Vision in respect of privacy to fulfil an obligation set out in the data protection law that applies to the Client (e.g. a Data Processing Agreement, or some other agreement), any such agreement cannot and does not alter or limit these terms and conditions.

20. Enhancements

The Client may request enhancements or modifications to the Asset Vision Technology (Enhancements). At its discretion Asset Vision may agree to develop Enhancements in consideration for the payment of an agreed fee (Enhancement Fee).

The details and scope of the Enhancements and the amount of the Enhancement Fee must be specified in an applicable Order . Unless otherwise stated in the Order the Enhancement Fees are payable in advance before Asset Vision commences work on the Enhancements.

If within thirty (30) days after delivery of the Enhancements or subsequent iterations of the Enhancements, the Client has not given notice to Asset Vision specifying errors or omissions in the operation of Enhancements, then Asset Vision is deemed to have satisfactorily delivered the Enhancements in accordance with Client requirements, any no further modifications to the Enhancements will be implemented.

21. Continuity of Service

The Client acknowledges that there may be interruptions or errors to the Subscription caused by a variety of factors, including hardware or software failure, unavailability of communication links, or the failure of an external party to supply goods and services to Asset Vision or to the Client.

Asset Vision is not liable for any loss or damage of any nature arising from any interruption in the supply of the services and Asset Vision’s sole obligation is to reconnect the services as quickly as practicably possible and any interruption of service as described in this clause 21 does not constitute a breach of this agreement by Asset Vision.

22. Maintenance

Asset Vision must use reasonable endeavours to maintain the Asset Vision Technology including the provision of reasonable security and virus protection, use of database utilities to optimise database performance and implementation of appropriate software upgrades where required.

Asset Vision shall perform such services as it considers reasonable to ensure the Asset Vision application remains in conformity with its operating specifications as per its design documentation.

Asset Vision will provide services at its discretion including programming or re-configuration to maintain the operating parameters of the Asset Vision application. At its discretion Asset Vision will communicate maintenance outcomes to Client via email or telephone communications.

Asset Vision may from time to time call for periods of scheduled downtime required for equipment maintenance, operational maintenance, upgrades, server updates and other unavoidable outages. Asset Vision must use reasonable endeavours to provide prior notice to the Client of the downtime and to minimise the maintenance period and the Client acknowledges that Asset Vision may not have the opportunity to provide prior notice of downtime in all circumstances especially where downtime is not under the direct control of Asset Vision. Asset Vision has no liability to Clients arising from any period of downtime.

23. Intellectual Property

As between the parties, Asset Vision and its licensors exclusively own all right, title, and interest in and to all Intellectual Property Rights in the Asset Vision Technology, notwithstanding anything in this agreement purportedly to the contrary.

Except for the access and use rights, and licenses expressly granted in clause 2 of this agreement, Asset Vision, on behalf of itself and its licensors, reserves all rights in the Asset Vision Technology and does not grant Client any rights (express, implied, by estoppel, through exhaustion, or otherwise).  For the avoidance of doubt, this includes all Enhancements.

Where Consulting Services are provided:

1. Each party acknowledges that all pre-existing Intellectual Property Rights remain the sole property of the owner. Ownership of pre-existing Intellectual Property Rights remains unchanged by this agreement, other than as expressly set out in this agreement;
2. Asset Vision grants the Client a non-assignable, perpetual, worldwide, non-exclusive, royalty-free licence to use the pre-existing Intellectual Property Rights owned by it for the sole purpose of:
3. receiving the Consulting Services; and
4. to the extent required to use the Consulting Materials.
5. The Client grants Asset Vision a non-assignable, worldwide, non-exclusive, royalty-free, non-transferable licence to use the pre-existing Intellectual Property Rights owned by it for the sole purpose of performing the Consulting Services.
6. The Client agrees that:
7. Asset Vision will own the Contract Materials, including all Intellectual Property Rights in the Contract Materials; and
8. other than as expressly stated in this agreement including the licence at (e) below, the Client has no right, title or interest or Intellectual Property Rights whatsoever in the Contract Materials.
9. Asset Vision grants the Client a non-assignable, non-sublicensable, worldwide, perpetual, non-exclusive, royalty-free licence to use the Intellectual Property Rights in the Contract Materials owned by it, within their business for the purpose for which they were created.

Any Asset Vision Technology delivered to Client or to which Client is given access shall not be deemed to have been sold, even if, for convenience, Asset Vision makes reference to words such as “sale” or “purchase” in the applicable Order or other documents.

As between the parties, Client and its licensors will retain all right, title, and interest in and to all Intellectual Property Rights in Client Data and Client Technology.

Client hereby grants to Asset Vision a royalty-free, fully paid, non-exclusive, non-transferrable, worldwide, right to use Client Data and Client Technology solely to provide and support the Asset Vision Technology.

The Client grants to Asset Vision a non-exclusive, royalty-free, worldwide, irrevocable, perpetual licence to retain, copy and use Client Data for the purpose of conducting:

• Asset Vision’s internal research and product development; and
• statistical analysis and identifying trends and insights.

Asset Vision may supply Analytical Data to third parties provided that the Analytical Data supplied does not contain any Personal Data. 

24. Confidentiality

Neither Asset Vision nor the Client shall, without the prior written approval of the other party, disclose any Confidential Information. Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party’s Confidential Information and this clause shall survive the termination of this agreement.

However, either party shall not be in breach in circumstances where it is legally compelled to disclose other party’s Confidential Information, including solicitors, auditors, insurers and accountants. Asset Vision must use reasonable endeavours to keep confidential any information in its possession or control and take reasonable steps to protect it against unauthorised duplication, access or security breaches and that the Client acknowledges that Asset Vision does not warrant that any data or information will be protected against unauthorised duplication, access or security breaches by unauthorised access (including hacking attack, virus or other malicious or harmful code).

25. Indemnity and Limitation of liability

The Client agrees that it has not relied on any representation made by Asset Vision which has not been stated expressly in this agreement, or upon any descriptions or specifications contained in any document including proposals or publicity material produced by Asset Vision, and that the Client has been provided with an opportunity to independently verify the accuracy of any documents provided.

To the extent permitted by law, each party shall defend, hold harmless and indemnify the other party, its servants, agents and contractors from and against any loss, claims or damages that may be made against them or sustained by them as a result of:

• any breach of its obligations under this agreement or an applicable Order by the first party; or

• any misconduct, wilful, unlawful or negligent act or omission of the first party.

The liability of a party for any loss, claims or damages suffered by the other party will be reduced proportionately to the extent that any misconduct, wilful, unlawful or negligent act or omission of the other party or any failure by the other party to comply with its obligations under this agreement or an applicable Order contributed to such loss, claims or damages. 

To the extent permitted by law, the liability of each party in respect of any loss, claim or damage which may arise directly or indirectly in connection with this agreement is limited in aggregate to the total fees paid or payable under this agreement.

Neither party will be liable to the other party for any indirect, special or consequential loss or damage, including loss of revenue, loss or profit, loss of goodwill and business opportunity or loss of data.

Notwithstanding any other provision of this agreement or any Order to the contrary, nothing in this agreement is intended to derogate from or have the effect of contracting out of any applicable provisions of the Australian Consumer Law.

26. Support

The client will provide Level One support and Asset Vision shall provide Level Two and Level Three support.  Asset Vision shall provide support services between 0900 hours and 1730 hours (Australian Eastern Standard Time or Eastern Standard Daylight Savings Time) on days other than Saturday, Sunday or any gazetted Victorian or National Public Holiday.  Asset Vision shall provide Level 2 support for Urgent and High Priority incidents 24 hours a day 7 days a week.

The Client may request support via phone call, email or directly via the Asset Vision Service Management tool.

Support will be provided to Client one support incident at a time. The Client, where possible, shall give Asset Vision a documented example of the defect or error demonstrating the manner in which the Asset Vision Technology is not performing within its operating specifications.

Support personnel will then attempt to explain the observed behaviour or consider modifications to the Asset Vision Technology to ‘correct’ the observed behaviour. Unless otherwise agreed by Asset Vision, the provision of support services under this clause 23 will not cover correction of minor errors or defects that do not significantly impinge on the performance of the Asset Vision Technology.

27. Service Availability

Availability of the Asset Vision Technology will be provided at 99.5% uptime, not counting planned maintenance schedules, which will be advised a minimum of five (5) Business Days prior to the day on which planned maintenance is expected to occur. The availability metric of 99.5% will be measured on a monthly rolling period basis.

28. Service Level Agreement

Response and Resolution

Asset Vision’s response to and resolution of Asset Vision Service issues will be as defined in the below:

Incident Priority	First Response SLA	Resolution SLA
Urgent	20 mins	2 Hours
High	40 mins	4 Hours
Medium	3 Hours	1 Day
Low	4 Hours	5 Days

Priority Definitions

The priority of Asset Vision Service issues will be defined according to the following criteria:

Priority	Definition
Urgent	A critical fault, resulting in the majority of users unable to use the service and where is no viable workaround available.
High	Major fault resulting in multiple users unable to use the service and where is no viable workaround available.
Medium	Repeated quality problems, intermittent faults or degraded service. No major service Impacts.
Low	No quality problems, intermittent faults or degraded services. No impact on service.

29. Settlement of Disputes

Disputes will be resolved according to the following guidelines:

• If a dispute arises between the parties, either party may issue a notice, in writing, to the other party requesting that a settlement meeting take place.  The notice under this clause 26 must identify the particulars of the dispute or difference.

• Nominated representatives of both parties (each having sufficient authority to resolve the dispute) must meet within ten (10) Business Days of the notice under clause 26(a) and endeavour to resolve the dispute in good faith.

• If a settlement meeting does not take place or, after ten (10) Business Days of the settlement meeting the dispute remains unresolved, either party is free to commence litigation in respect of the dispute.

• Notwithstanding the existence of a dispute, Asset Vision must continue to perform its obligations under the agreement.

• Nothing will prejudice the right of a party to institute proceedings to enforce a payment, which is due under the Agreement, or seek urgent or injunctive relief.

30. GST

A party must pay GST on a Taxable Supply made to it under this document, in addition to any consideration (excluding GST) that is payable for that Taxable Supply.  It must do so at the same time and in the same way as it is required to pay the consideration for the Taxable Supply.

A party making a Taxable Supply to another party under this document must issue a Tax Invoice to the other party, setting out the amount of the GST payable by that other party.

If a party is required under this document to indemnify another party, or to make a reimbursement or contribution to another party, and that other party can obtain an Input Tax Credit on an acquisition associated with that indemnity, reimbursement or contribution, the amount the party is required to pay is:

• Reduced by the amount of that Input Tax Credit; but

• Increased by any GST payable by that other party in respect of the indemnity, reimbursement or contribution.

For the purposes of this clause 27 ‘GST’, ‘Input Tax Credit’, ‘Taxable Supply’ and ‘Tax Invoice’ have the meanings attributed to those terms in A New Tax System (Goods and Services Tax) Act 1999.

31. Severability

If any term of this agreement is held invalid, unenforceable, or void by a court of competent jurisdiction, such term will be enforced to the maximum extent permissible, such holding will not affect the remaining terms, and the invalid, unenforceable, or void term will be deemed amended or replaced by a valid, legal, and enforceable term that matches the intent of the original language as closely as possible.

32. Relationship of parties

The parties are independent contractors. Nothing in this agreement will be construed to create a partnership, joint venture, agency, or other relationship. Neither party has any right or authority to assume or create any obligation of any kind, express or implied, in the other party’s name or on its behalf.

33. Entire agreement

This agreement (together with the Order) is the parties’ entire agreement regarding its subject matter and supersedes all prior or contemporaneous oral or written agreements, representations, understandings, undertakings, negotiations, letters of intent, and proposals, with respect to such subjects.

The terms of this agreement apply to the exclusion of any other terms Client seeks to impose or incorporate, or that may be implied by trade, custom, practice, or course of dealing.

Client acknowledges it has not relied on any statement, promise, or representation made or given by or on behalf of Asset Vision that is not expressly stated in this agreement.

34. Governing Law and Jurisdiction

This agreement shall be governed by the laws of the state of Victoria, Australia. The parties hereby irrevocably consent to the non-exclusive jurisdiction of its courts for the purposes of adjudicating any dispute arising out of this agreement. Each party expressly consents to service of process by registered mail.