Client Agreement 

Terms & Conditions 

These terms and conditions are between the Parties set out in the Contract Details (together the Parties and each a Party) and form part of the Agreement.

BACKGROUND
A. We provide Services that assist people to find their way around indoor spaces, audio systems to assist navigation, and associated analytics services for businesses.
B. You wish to acquire our Services for use at your Premises.
C. We agree to provide the Services on the terms and conditions of this Agreement.

1. ACCEPTANCE
   1.1 You have requested the Services set out in the Schedules, and accept this Agreement by:
   (a) signing and returning this Agreement;
   (b) accepting this Agreement online or sending an email accepting this Agreement (expressly or impliedly); or
   (c) instructing us to proceed with the Hardware and Services or making any payment of the Price (including any deposit).
   1.2 This Agreement supersedes any terms agreed upon before the start date of this Agreement.
2. SERVICES
   2.1 This Agreement commences on the Start Date. We will commence providing the Services at the later of:
   (a) The Start Date; and
   (b) the payment of the Installation Fee,
   unless otherwise agreed between the Parties.
   2.2 We agree to provide you the Services in accordance with this Agreement (including any Specifications provided by us) and all relevant laws, and we will make reasonable efforts to provide support in accordance with the Service Levels.
   2.3 You acknowledge and agree that any dates for delivery or for completion notified by us are estimates only, and we will have no Liability to you for failing to meet any delivery date provided the Hardware and Services are provided within a reasonable timeframe.
   2.4 We may provide the Hardware and Services to you through us and/or our Personnel. We remain responsible for the provision of the Hardware and Services by our Personnel.
   2.5 All variations to the Services (including the provision and installation of additional Hardware, as a result of an increase in the Floor Space or as otherwise requested by you), other than as expressly set out in this Agreement, must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably determined by us. If we consider that any instruction or direction from you constitutes a variation, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause 2.5.
   2.6 Beacon Hardware – if applicable, refer schedule. From time to time, we may replace the Beacon Hardware as we deem necessary to provide the Services, including changing the technology type of the Beacon Hardware. We will provide you with reasonable notice of any such change, and agree that any replacement Beacon Hardware will deliver the same or similar functionality to the Beacon Hardware set out in the Schedules.
   2.7 The Parties agree to the Special Conditions (if any). If there is any ambiguity, discrepancy or inconsistency between these terms and conditions and the Special Conditions, the Parties agree that the Special Conditions will prevail.
3. PRICE AND PAYMENT
   3.1 You agree to pay us the Price in accordance with the Payment Terms. All amounts are stated in Australian dollars and are exclusive of GST (unless otherwise stated).
   3.2 Unless otherwise agreed between the Parties, any deposit in the Schedules must be paid before we commence the provision of the Hardware and Services.
   3.3 If any undisputed amounts are unpaid 7 days after the payment date, we may at our discretion suspend the provision of the Services until we receive payment, or charge interest at an amount reasonable to cover the loss we incur by not being paid on time. Interest on late payments will be charged at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum (calculated daily and compounding monthly).
4. YOUR OBLIGATIONS AND WARRANTIES
   You represent, warrant, acknowledge and agree that:
   (a) there are no legal restrictions preventing you from engaging us, or agreeing to this Agreement;
   (b) you have not relied on any representations or warranties made by us in relation to the Hardware and Services (including as to whether the Hardware and Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;
   (c) you will cooperate with us, and provide us with all documentation, information, instructions and access necessary to enable us to provide the Hardware and Services, as requested by us, from time to time, and in a timely manner;
   (d) the information you provide to us is true, correct and complete;
   (e) you will not infringe any third party rights in working with us and receiving the Hardware and Services;
   (f) you will provide us and our Personnel with sufficient access, free from harm or risk to health or safety, to the Premises (including any facilities at the Premises), to enable us to provide the Hardware and Services, including at the dates and times that we may reasonably request; and
   (g) you are responsible for obtaining, and providing to us if necessary, any access, consents, licences, approvals and permissions from other parties necessary for the Hardware and Services to be provided, at your cost.
5. YOUR STATUTORY RIGHTS:
   5.1 Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: (i) to cancel your service contract with us; and (ii) to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service. A ‘major failure’ is as defined in the Australian Consumer Law.
   5.2 Nothing in these terms is intended to exclude, restrict or modify, or have the effect of excluding, restricting or modifying, the application of any applicable laws in Australia (under division 1 of part 3-2 of the Australian consumer law (which forms schedule 2 to the Competition and Consumer Act 2010 (Cth)) that cannot be excluded, restricted or modified by agreement between us.
6. HARDWARE
   6.1 We will attend your premises to install the Hardware. However, you will need to arrange your own service provider at your own time and cost if you have complex installation requirements or require modifications to your premises or fit-out.
   6.2 Risk in the Hardware transfers to you on the installation of the Hardware at your Premises. Title in the Hardware transfers to you on payment of the Installation Fee.
   6.3 We will provide limited support for the Beacon Hardware as set out in the Services Schedules.
   6.4 You agree not to change the configuration of the Hardware for the duration of this Agreement.
   6.5 Our responsibility for the Hardware is limited to the extent possible under applicable law.
7. TERM AND TERMINATION
   7.1 This Agreement will commence on the Start Date, and will continue until the End Date, unless terminated earlier in accordance with its terms.
   7.2 Either Party may terminate this Agreement if the other Party breaches a material term of this Agreement, and that breach has not been remedied within 10 business days of being notified by the relevant Party.
   7.3 Prior to the End Date, the Parties agree to discuss and negotiate in good faith the extension of the provision of Hardware and Services to you. Where the Parties agree to continue this engagement, the Parties may enter into additional long-form documentation for the provision of the Hardware and Services, or vary this Agreement as agreed between the Parties.
   7.4 You may choose to terminate this Agreement at any time, for any reason or for no reason, upon providing written notice to us. In the event of termination by you prior to the completion of the agreed term of the Agreement, you agree to pay us the equivalent of the remaining balance of the Agreement term. This payment is due and payable within 28 days of the termination notice.
   (a) The remaining balance will be calculated based on the unpaid portion of the services contracted for the remainder of the Agreement term, as per the pricing terms outlined in the digital quote template provided.
   (b) This clause shall not apply in circumstances where the termination is a result of our breach of the Agreement.
   7.5 On termination or expiry of this Agreement, you agree that:
   (a) any amounts paid for Hardware and Services rendered by us are non-refundable;
   (b) you agree to pay us all amounts due and payable to us under this Agreement up to the date of termination, as a debt immediately due and payable; and
   (c) you agree to return or give us access to recover all property belonging to us on request (including any Intellectual Property or Confidential Information), and to give us or our Personnel such rights of access necessary to exercise our rights under this clause.
   7.6 The accrued rights, obligations and remedies of the Parties are not affected by termination of this Agreement.
8. LIABILITY, INDEMNITY AND EXCLUSIONS
   8.1 Exclusions: Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by (whether directly or indirectly):
   (a) acts or omissions of you or your Personnel (including any works, Hardware or services provided by you or your Personnel);
   (b) any reliance on the Software by any third party for navigation of the Premises;
   (c) any personal injury or property damage relating to the dislodgement of the Hardware after installation;
   (d) your, or your Personnel’s, breach of this Agreement, any law or third party rights;
   (e) any information, documentation, specifications or directions given by you or your Personnel; and
   (f) any event or circumstance beyond our reasonable control.
   8.2 Indemnity: Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to make good, indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:
   (a) acts or omissions of you or your Personnel; or
   (b) any information, documentation, specifications or directions given by you or your Personnel.
   8.3 Limitation of liability: Despite anything to the contrary, to the maximum extent permitted by law:
   (a) we will not be liable for any Consequential Loss; and
   (b) our maximum aggregate Liability in relation to the provision of the Hardware and Services or this Agreement will be limited to us resupplying the Hardware and Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the provision of the relevant Hardware and Services to which the Liability relates.
9. INTELLECTUAL PROPERTY
   9.1 As between the Parties, all Intellectual Property Rights developed, adapted, modified or created by or on behalf of us or our Personnel in connection with this Agreement or the provision of the Hardware and Services, will at all times vest, or remain vested, in us.
   9.2 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of this Agreement, to use your and your Personnel’s Intellectual Property for the performance of our obligations under this Agreement.
   9.3 You agree that we own all Intellectual Property Rights in all Intellectual Property owned, licensed or developed by or on behalf of us or our Personnel before the Start Date and/or developed by us or our Personnel independently of this Agreement and nothing in this Agreement constitutes a transfer or assignment of any of our Intellectual Property Rights unless expressly stated.
   9.4 We grant you a non-exclusive, revocable, non-sublicensable and non-transferable right and licence, to use the Intellectual Property we provide to you under this Agreement, solely for the purposes for which they were developed and for your use and enjoyment of the Hardware and Services, as contemplated by this Agreement.
10. MARKETING
    10.1 You represent and warrant that it has the power and authority to grant, and hereby grant to us a non-exclusive, non-transferable, royalty-free, worldwide license to reproduce and display your logos, trademarks, trade names and similar identifying material solely in connection with the promotion and marketing of BindiMaps and the installation of BindiMaps at your BindiMaps enabled location. Marketing by BindiMaps may include customer testimonials, announcements, press engagements, public speaking events, social media campaigns, and printed materials such as posters, flyers, and any other marketing channels that BindiMaps engages with.
11. CONFIDENTIALITY
    11.1 Subject to clause 11.2, Parties must (and must ensure that your Personnel) keep confidential, and not use or permit any unauthorised use of, all Confidential Information.
    11.2 Clause 11.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that Parties ensure the adviser complies with the terms of clause 11.1.
12. GENERAL
    12.1 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
    12.2 Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
    12.3 GST: If and when applicable, GST payable on the Price will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the Price. GST has the same meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
    12.4 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
    12.5 Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
    12.6 Severance: If any provision (or part of it) under this Agreement is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under this Agreement cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from this Agreement and the remaining provisions (and remaining part of the provision) of this Agreement is valid and enforceable.
    12.7 Survival: Clauses 5, 7, 8, 9, 10 and 12 will survive the termination or expiry of this Agreement.
13. INTERPRETATION & DEFINITIONS
    13.1 Any reference to “Hardware and Services” may mean “Hardware and/or Services”, as the case may be.
    13.2 In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedules, within these terms and conditions, and:
    Agreement means this agreement which comprises the Contract Details, Standard Terms and Conditions, Schedules and Annexure.
    Confidential Information includes information which:
    (a) is disclosed to you in connection with this Agreement at any time;
    (b) is prepared or produced under or in connection with this Agreement at any time;
    (c) relates to our business, assets or affairs; or
    (d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
    whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information.
    Consequential Loss includes any consequential, special or indirect loss, damage or expense including any real or anticipated loss of revenue, loss of profit, loss of use, loss of occupation, loss of benefit, loss of financial opportunity, or economic loss whether arising out of a breach of this Agreement, at law, under any statute, in equity, or in tort (including negligence).
    Floor Space means the floor space of the Premises in square metres, where the Services are to be provided.
    Hardware means the hardware set out in the Service Schedules that form part of this Agreement.
    Intellectual Property means any copyright, registered or unregistered design, patent or trade mark rights, domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
    Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
    Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party or otherwise.
    Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
    Service Levels means the services levels set out in the Appendix.
    Services means the services set out in the Service Schedules that form part of this Agreement and includes provision of Hardware and Software.
    Software means the software set out in the Service Schedules that form part of this Agreement.

SERVICE SCHEDULE A – BindiMaps

SERVICE SCHEDULE B – BindiMaps Kiosk

SERVICE SCHEDULE C – BindiLytics

SERVICE SCHEDULE D – BindiWeb

SERVICE LEVELS