Parties
BETWEENInstantemp Pty Ltd ABN 26 670 421 066 of 164 Lime Ave, Mildura VIC 3500 ("ITPL")
ANDThe entity or person agreeing to these terms and conditions ("Customer")
Recitals
A.ITPL is the operator of the technology platform described in item 1 of Schedule 1 (the "IT Platform").
B.Customer has requested that ITPL, and ITPL has agreed, to provide Customer with access to and use of the IT Platform on a subscription basis, subject to the terms and conditions of this agreement.
Terms and conditions
1.1 These Business Subscription Terms and Conditions ("Ts&Cs") together with any exhibits, schedules, attachments and materials that expressly reference these Ts&Cs (the “Agreement”) govern:
1.2 By purchasing a Subscription (or otherwise registering to use, or using, the IT Platform), Customer agrees to this Agreement. If Customer does not agree to this Agreement, then Customer must not access or use the IT Platform.
1.3 If any provision of the Agreement conflicts with or is inconsistent with any other provision of the Agreement, then the following order of precedence shall apply:
1.4 Capitalised terms used in this Agreement have the meaning given to them in clause 23. Rules of interpretation for this Agreement are contained in clause 22.13.
1.5 ITPL may amend this Agreement by giving at least 30 days' prior written notice to the Customer (each such notice a "change notice"). If any change in a change notice:
then the Customer may object to the proposed change in writing to ITPL within 30 days of the date of the change notice (the "Objection Period"). The parties agree that:
2.1 Customer must have a current Subscription for each Business Location that the Customer wishes to manage using the IT Platform. Customer must not use the IT Platform for more Business Locations than the number of current Subscriptions that Customer holds. ITPL may monitor compliance with this requirement in accordance with clause 13.2.
2.2 Customer can purchase Subscriptions via ITPL's website, the IT App or any other authorised ordering process that has been approved by ITPL from time to time.
2.3 Customer must select the initial period for the Subscription (the Initial Term) at the time of purchasing a Subscription. At the end of the Initial Term the Subscription will automatically renew (and, if the Initial Term was for more than one month, convert to an on-going month-by-month subscription at ITPL's then-current standard pricing) unless:
2.4 If the Customer has provided ITPL with a Nominated Payment Method, the Customer acknowledges and agrees that ITPL may charge the Fees for the renewal period using the Nominated Payment Method once the Subscription renews under clause 2.3.
2.5 Customer may cancel a Subscription at any time by giving written notice to ITPL in accordance with clause 22.12( b ) (a Cancellation Notice) at least two (2) business days before the Subscription is due to renew. If the Customer has more than one Subscription, the Cancellation Notice must specify which Subscription(s) the Customer wishes to cancel.
2.6 When Customer issues a Cancellation Notice the cancellation will take effect at the end of the current Subscription Period, unless the Cancellation Notice was given less than two (2) business days before the Subscription was due to renew (in which case the Subscription will renew for a further month (at ITPL's then-current standard pricing) and the cancellation will then take effect at the end of that further month).
2.7 ITPL does not provide refunds or credits for any partial Subscription Periods, except as expressly stated in this Agreement or as required under any Non-Excludable Terms.
3.1 For each Subscription, ITPL will:
during the Subscription Period and subject to the terms of this Agreement and in accordance with the IT Platform Documentation.
3.2 The Customer acknowledges and agrees that:
4.1 ITPL will, during the Subscription Period for each Subscription, use reasonable endeavours to provide the Support Services so that the IT Platform operates in material conformance with the IT Platform Documentation.
4.2 Customer will provide ITPL with access to such premises, personnel and resources as may reasonably be requested by ITPL to enable it to perform the Services.
4.3 At any time during a Subscription Period, Customer may request in writing that ITPL provide a quote for the supply of further services.
4.4 ITPL will consider any request for quote under clause 4.3 in good faith and will respond to the Customer within a reasonable time of receiving the request. ITPL may accept or reject any request for quote in ITPL's sole discretion. For the avoidance of doubt, ITPL is under no obligation to provide a quote, or to offer a quote on any particular terms or prices.
4.5 ITPL is not obliged to provide (and Customer is not obliged to purchase) any additional services unless and until ITPL and Customer have agreed on:
5.1 Except as otherwise set out in this Agreement, all IP Rights in the IT Platform and IT Platform Documentation remain vested in ITPL or its licensors.
5.2 In consideration of the payment of the Fees, ITPL grants to the Customer a non-exclusive, non-transferable, revocable, limited licence to the Customer:
which is subject to the terms and conditions (including any limitations or restrictions) set out in this Agreement.
5.3 The Customer agrees to access and use the IT Platform only in accordance with the terms and conditions of this Agreement and the IT Platform Documentation.
5.4 The Customer acknowledges and agrees that:
6.1 The Customer must:
6.2 The Customer must ensure that the IT Platform is not used:
6.3 The Customer is solely responsible for its use of the IT Platform, and for supervising, managing and controlling use of the IT Platform by its Users. ITPL may, but is not obliged to, monitor the use of the IT Platform by Users to verify the Customer's compliance with this Agreement.
6.4 Subject to clause 6.5, the Customer must not (and must ensure that its Users do not):
6.5 The restrictions in clause 6.4 do not apply where prohibited by applicable Law. The Customer must notify ITPL in writing if it intends not to comply due to such Laws.
6.6 ITPL may restrict, suspend or terminate access to the IT Platform:
ITPL will notify the Customer of the reason for any such restriction, suspension or termination. If ITPL considers (acting reasonably) that the issue is capable of remedy, provide the Customer with a reasonable opportunity to remedy the issue. If the Customer successfully remedies the issue to ITPL's reasonable satisfaction (and within a timeframe reasonably specified by ITPL or, if no such timeframe is specified, within a reasonable time), ITPL will restore the Customer's access.
6.7 Customer acknowledges that some features of the IT Platform require an active internet connection and may not function correctly (or at all) if the Customer's internet connection is disrupted or lost. Customer is solely responsible for providing and maintaining its own internet connection when using the IT Platform.
6.8 If Customer configures the IT Platform to send the Customer or its users alerts, updates or other messages via SMS or email, Customer acknowledges and agrees that these messages will be sent using third-party services that may be affected by technical problems, telecommunications network coverage, availability issues and similar factors outside of ITPL's reasonable control, such as unsuccessful or untimely termination of messages on the recipient's handset or email account and messages not being received because the recipient's mobile phone memory or email account storage is full.
7.1 The Customer acknowledges that:
7.2 The Customer may purchase Approved Devices from ITPL via the Online Store. Where the Customer purchases Approved Devices from ITPL, the Customer agrees that the purchase terms in Schedule 3 of this Agreement will apply.
7.3 Nothing in this Agreement restricts the Customer from using Approved Devices that it has purchased from third party suppliers ("BYO Devices") with the IT Platform. However, the Customer acknowledges and agrees that:
8.1 The Customer:
9.1 Subject to clause 9.2, Customer acknowledges that it is responsible for all Customer Data stored or produced using the IT Platform, and that ITPL will process the Customer Data through the IT Platform on the Customer's behalf.
9.2 ITPL will implement reasonable security measures to protect the Customer Data from unauthorised access, disclosure or loss while it is stored in the IT Platform.
9.3 Customer acknowledges and agrees that security measures are not absolute, and ITPL does not guarantee that the Customer Data will not be subject to unauthorised access, disclosure or loss. ITPL is not responsible for any unauthorised access, disclosure of loss of the Customer Data that:
9.4 Customer must ensure that all Customer Data or other information provided to ITPL:
9.5 Customer grants ITPL a non-exclusive, worldwide, royalty-free licence (including the right to sub-licence) to use, copy, transmit, display and store the Customer Data during the Subscription Period to the extent:
9.6 Customer grants ITPL an irrevocable, perpetual, worldwide, royalty-free licence (including the right to sub-licence) to use, copy, adapt, display, store, exploit, and commercialise information relating to Customer's usage of the IT Platform (usage data) for ITPL's external business purposes, including via the provision of reports and services to third parties that are based on or utilise the relevant information, provided that when using the relevant data for such purpose, any materials utilising or reproducing any relevant information that is provided to a third party must not reference or identify the Customer or any Users without their prior written consent.
9.7 The Customer acknowledges and agrees that is solely responsible for:
9.8 ITPL is under no obligation to retain any Customer Data, including following termination or expiry of this Agreement, and the Customer acknowledges that the Customer Data may be irrevocably deleted by ITPL without notice to the Customer.
10.1 If the Customer, its Personnel or Users:
(collectively, Improvements) all IP Rights in and to such Improvements are:
10.2 If requested by ITPL, the Customer must do all things and sign all documents to give effect to the assignment of the Improvements to ITPL and procure its Users and Personnel to do so. To the extent any pre-existing IP Rights of the Customer are incorporated in any Improvements or are required in order to exploit or use such Improvements, the Customer hereby grants ITPL a non-exclusive, perpetual, transferable, royalty free licence (with the right to sub-licence) such IP Rights to the extent required for ITPL to use and exploit the Improvements for any purpose.
10.3 The Customer consents (and agrees to procure the consent from any Users or Personnel of Customer involved in creating any Improvement) to ITPL, its successors, assigns and any of their licensees exercising all rights subsisting in the Improvements which are copyright works including but not limited to the right to use, exploit, copy, deal with, communicate, reproduce, transmit, publish, exhibit, publicly perform, alter, adapt and modify such copyright works in any media throughout the world:
11.1 Nothing in this Agreement:
11.2 ITPL and its licensors own all IP Rights in, and associated with, the IT Platform, including all modifications and improvements made to it in connection with this Agreement or otherwise.
11.3 As between ITPL and the Customer ownership of all rights in:
11.4 The Customer agrees to (and will procure its Personnel and Users to):
11.5 The Customer agrees that ITPL may publicly identify the Customer (and/or any of its Business(es) and Business Locations) as a customer of ITPL and user of the IT Platform, and may include the logo and trade marks of the Customer (and/or its Business(es)) on its website and marketing materials (subject to complying with any reasonable brand guidelines issued by the Customer in relation to the use of its trade marks). If requested by ITPL, the Customer will provide a brief profile of itself and its use of the IT Platform which may be used by ITPL for promotional purposes.
12.1 Each party (receiving party) must keep confidential, and not disclose, any Confidential Information of the other party (disclosing party) except:
12.2 Each party must only use Confidential Information of the other party to the extent required to exercise its rights and perform its obligations under this Agreement.
12.3 Except as permitted under clause 11.5, each party must not make any public statement or issue any press release concerning or relating to this Agreement or its relationship with the other party without the prior written consent of the other party.
12.4 On termination or expiry of this Agreement, on request from the disclosing party, the receiving party must return or destroy all copies of the Confidential Information of the disclosing party in its power, possession or control. The foregoing does not require ITPL to return or destroy any materials, information or data for which it has an ongoing perpetual licence to use pursuant to clause 9.6 or 10.2.
13.1 Customer must:
13.2 Without limiting clause 13.1, the Customer agrees:
13.3 If any usage monitoring or audit establishes that the Customer has been undercharged (including where Customer has been using the IT Platform in a manner that breaches clause 2.1), the Customer shall pay the sum undercharged (together with the costs of any audit incurred by ITPL) within 14 days of ITPL notifying the Customer of these amounts.
14.1 The Customer must pay ITPL the Fees. ITPL may adjust the Fees in accordance with clause 1.5.
14.2 Customer must reimburse ITPL for any reasonable travel and accommodation expenses necessary for ITPL to perform the Services on-site at the Customer's premises.
14.3 By entering this Agreement and providing ITPL with a Nominated Payment Method, the Customer authorises ITPL to charge the Fees using the Nominated Payment Method. The Customer is responsible for ensuring that:
14.4 If the Customer has not provided ITPL with a Nominated Payment Method, the Customer must pay any invoices issued by ITPL for the Fees within 14 days of the date of the invoice.
14.5 Payments will be subject to the terms and conditions of payment specified by the payment provider selected by the Customer from the options offered by ITPL. This may include an additional fee, which is usually calculated as a percentage of the total transaction cost. The Customer will be advised of any such fees that ITPL charges, in relation to the use of the payment platform, at the time the Customer authorises the payment.
14.6 If:
then, ITPL may issue the Customer with a written notice to update Customer's Nominated Payment Method or pay the overdue invoice (as applicable) within ten (10) business days from the date of the notice. If ITPL has not received payment by the end of this ten (10) business days then, without limiting any other rights or remedies that ITPL may have in relation to the Customer's payment default, ITPL may require the Customer to pay interest of 5% per annum calculated daily (or if this exceeds the maximum interest rate permitted by Law, the maximum percentage interest rate permitted by applicable Law) in relation to the amount of the unpaid invoice.
14.7 Subject to clause 15, the Customer is responsible for payment of all Taxes that arise as a result of or in connection with the Agreement.
15.1 In this clause 15:
15.2 Unless otherwise expressly stated, all Fees or other sums payable or consideration to be provided under this Agreement are exclusive of GST.
15.3 If GST is payable by a supplier or by the representative member for a GST group of which the supplier is a member, on any supply made under this Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply.
15.4 The recipient will pay the amount referred to in clause 15.3 in addition to and at the same time that the consideration for the supply is to be provided under this Agreement.
15.5 The supplier must deliver a tax invoice or an adjustment note to the recipient before the supplier is entitled to payment of an amount under clause 15.3. The recipient can withhold payment of the amount until the supplier provides a tax invoice or an adjustment note, as appropriate.
15.6 If an adjustment event arises in respect of a taxable supply made by a supplier under this Agreement, the amount payable by the recipient under clause 15.3 will be recalculated to reflect the adjustment event and a payment will be made by the recipient to the supplier or by the supplier to the recipient as the case requires.
15.7 Where a party is required under this Agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of:
16.1 Each party represents and warrants to each other party that:
16.2 To the maximum extent permitted by law (but subject to clause 17), the Customer acknowledges and agrees that:
16.3 To the maximum extent permitted by law (but subject to clause 17), ITPL is not liable for any breach of this Agreement, any issues with the Services or for any failure of the IT Platform to conform to the IT Platform Documentation:
16.4 The Customer indemnifies ITPL, its Related Bodies Corporate and each of their officers, employees and agents (those indemnified) from and against any claim, action, demand, loss, fine or payment which any of those indemnified pays, suffers, incurs or is liable for arising out of or in connection with:
provided that the Customer's obligation to indemnify under this clause 16.4 will be proportionately reduced to the extent that the claims, actions, demands, losses, fines or payments were caused or contributed to by ITPL or could reasonably have been avoided or mitigated by ITPL once ITPL became aware of the relevant circumstances.
16.5 Customer warrants that it has obtained all authorisations and consents required by Law (including all Privacy Laws) and from any third parties in relation to the Customer Data and any other materials provided to ITPL by or on behalf of Customer that are required for ITPL to exercise its rights, and perform its obligations, under this Agreement.
16.6 ITPL indemnifies Customer for any damages awarded or settlement agreed as a result of any claim against Customer by a third party that the IT Platform or Services infringe a third party's IP Rights, provided that:
16.7 ITPL shall have no obligations to indemnify under clause 16.6 to the extent that a claim is based on:
17.1 In this Agreement, "Australian Consumer Law" means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of state and territory fair trading legislation and the terms "Consumer" and "Consumer Guarantees" have the meaning given to them in the Australian Consumer Law.
17.2 The Australian Consumer Law provides Consumers with Consumer Guarantees that cannot be excluded or limited. The limitations of liability set out in this Agreement are therefore subject to (and will not apply to the extent that they limit or exclude) any Consumer Guarantees that may apply to the Customer if it is a Consumer. However, where the Australian Consumer Law permits ITPL to limit the remedies for a breach of such Consumer Guarantees, ITPL's liability to Customer in connection with a breach of or failure to comply with a Consumer Guarantee is limited as set out in clause 18.2( b ).
18.1 All implied terms, conditions, guarantees and warranties which otherwise might apply to or arise out of this Agreement are excluded other than:
18.2 To the maximum extent permitted by law (but subject to clause 17):
18.3 To the maximum extent permitted by law (but subject to clause 17), with the exception of:
ITPL's maximum aggregate liability to the Customer under or in connection with this Agreement (whether arising out of breach of contract, negligence or any other tort, under statute or otherwise) is limited to the Fees paid by the Customer during the 12 month period preceding the event giving rise to the claim.
19.1 ITPL can terminate this Agreement with immediate effect by notice in writing to the Customer if:
19.2 ITPL may terminate this Agreement for convenience on 60 days written notice to Customer. If ITPL terminates this Agreement pursuant to this clause, it will refund any amounts paid by the Customer in advance (if any) that relates to the period beyond the effective date of termination.
19.3 The Customer can terminate this Agreement with immediate effect by notice in writing to ITPL where:
20.1 Expiry or termination of this Agreement will terminate all Subscriptions.
20.2 Immediately upon expiration or termination of this Agreement for any reason, the Customer must:
20.3 Immediately upon expiration or termination of this Agreement for any reason, ITPL may use remote or other means to limit or disable the Customer's and its Users' access to, or use of, the IT Platform.
20.4 Without limiting clause 9.8, ITPL is under no obligation to continue to store or provide the Customer with access to any Customer Data, reports or other material stored in or generated by the IT Platform.
20.5 Any termination of this Agreement shall not affect any accrued rights or liabilities of any party, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.
21.1 A party will be relieved from performance of its obligations under this Agreement to the extent that it is unable to perform those obligations due to a Force Majeure Event.
21.2 If a Force Majeure Event persists for a period of more than 10 days, either party may terminate this Agreement (without liability) by giving written notice to the other party.
21.3 For the avoidance of doubt, this clause 21 does not apply to the Customer's obligations under this Agreement to pay amounts that are due and payable to ITPL.
22.1 Survival
Clauses 6.1(i), 6.4, 9.6, 10, 11.4, 12, 16.4, 16.6, 16.7 17, 18 and 20, and any other provisions of this Agreement which, by their nature, are continuing, survive the termination or expiration of this Agreement.
22.2 Relationship
The parties are independent contractors and nothing in this Agreement gives rise to any relationship of agency, partnership, employment or otherwise.
22.3 Entire agreement
This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with the relevant subject matter.
22.4 Severability
If any provision of this Agreement is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
22.5 Assignment and subcontracting
22.6 Waiver
No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it. A single or partial exercise or waiver by a party of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.
22.7 Rights cumulative
Except as expressly stated otherwise in this Agreement, the rights of a party under this Agreement are cumulative and are in addition to any other rights of that party.
22.8 Variation
Except as contemplated by clauses 1.5 and 3.2( a ), no variation of this Agreement is effective unless made in writing and signed by each party.
22.9 Costs, expenses and duties
Each party must pay its own costs and expenses in relation to the negotiation, preparation, execution, variation and performance of this Agreement.
22.10 Governing law
This Agreement is governed by the laws of Victoria, Australia and each party submits to the exclusive jurisdiction of the courts of Victoria and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
22.11 Counterparts
This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one document.
22.12 Notices
Any notices under this Agreement must be given in writing and by post, email or any other lawful means. The particulars for delivery of notices are initially:
A party may change their particulars for delivery by notice to the other party.
22.13 Interpretation
In this Agreement the following rules of interpretation apply unless the contrary intention appears:
Approved Devices means a device (such as a Bluetooth handheld thermometer or data logger), consumable (such as batteries for use with the label printer) or other product (such as a wall mount) that has been approved by ITPL for use with certain features or functionality of the IT Platform. The list of makes and models of certain Approved Devices can be found in the IT Platform and the IT Platform Documentation, and may be updated by ITPL from time to time in accordance with clause 1.5 and 3.2( a ). Approved Devices also include all products that ITPL sells for use with the IT Platform, as determined by ITPL from time to time.
Business means a business that is owned and operated by the Customer, and for which the Customer wishes to use the IT Platform.
Business Location means a physical location at which a Business is operated (as defined by a street address).
BYO Device has the meaning given in clause 7.3.
Confidential Information in relation to a party means information of a confidential nature including information about its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include any information which is:
Customer Data means all data that is uploaded by the Customer to the IT Platform and any reports generated by the Customer through its use of the IT Platform, excluding any Improvements or IP Rights in the IT Platform.
Fees means the amounts payable by the Customer under this Agreement, as initially set out in Schedule 1 and subsequently varied in accordance with this Agreement.
Force Majeure means an event or circumstance over which a party could not reasonably have exercised control including, but not limited to, an act of God; fire; lightning; explosions; flood; subsidence; insurrection or civil disorder or military operations; sabotage; pandemic; telecommunications infrastructure or network failures; expropriation, prohibition, intervention, confiscation, embargo or restraint of property by or under the order of any government or government authority; strikes; lock-outs or other industrial disputes of any kind.
GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended from time to time.
GST Law has the meaning given to it in the GST Act.
Harmful Code means any computer code that is harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorised disclosure or destruction or corruption of data including viruses, worms, spyware, adware, keyloggers, trojans, and any new types of programmed threats that may be classified.
IT App means the Instantemp mobile app for Android and iOS devices.
IT Platform means the technology platform described in item 1 of Schedule 1.
IT Platform Documentation means ITPL's user instructions, manuals, policies, specifications and other documentation for the IT Platform, as updated from time to time, including any documents specified or referenced in item 2 of Schedule 1.
Improvements has the meaning given in clause 10.1.
Insolvency Event means the occurrence of any event of insolvency including a winding up application being made and not withdrawn within 21 days, a failure to comply with a statutory demand, the appointment of a provisional liquidator or administrator, the entering into of an arrangement with creditors, a voluntary winding up other than for the purpose of a bona fide corporate reconstruction, any inability to pay debts as and when they fall due, any admission of insolvency, any court order relating to any of the above or anything which occurs under the law of any jurisdiction which has a similar effect to any of the above.
IP Rights means all intellectual property rights including all existing and future copyright, trade mark, design, patent, semiconductor and circuit layout rights, rights to trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this Agreement both in Australia and throughout the world.
Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time and includes the common law and equity as applicable from time to time, and any mandatory Australian and international standards.
Moral Rights has the same meaning as in the Copyright Act 1968 (Cth) and includes rights of attribution of authorship, rights of integrity of authorship, rights not to have authorship falsely attributed, and rights of a similar nature that exist, or may come to exist, anywhere in the world.
Nominated Payment Method means a valid method of payment that is accepted by ITPL from time to time (including via credit/debit card or PayPal account), as nominated by the Customer and updated from time to time.
Online Store means ITPL's online store available at https://store.instantemp.com/.
Permitted Purpose has the meaning given in item 3 of Schedule 1.
Personal Information means:
Personnel means employees, directors, agents, contractors and subcontractors, including employees and contractors (who are individuals) of subcontractors.
Privacy Laws means the Laws relating to the protection of Personal Information, including the Privacy Act 1988 (Cth), the Australian Privacy Principles under that Act, and any other laws relating to privacy, data protection, direct marketing or the handling of personally identifiable information or data by which either party is contractually or legally bound to comply with.
Related Body Corporate has the meaning defined in the Corporations Act 2001 (Cth).
Services mean the services provided by ITPL to the Customer under this Agreement, including the Support Services.
Subscription means a subscription to use the IT Platform for a single Business Location. Information about the standard types of Subscriptions offered by ITPL are published on ITPL's website: https://instantemp.com/pricing. ITPL and Customer may also agree in writing that ITPL will provide a customised Subscription (in which case the details of such customised Subscription will be as agreed in writing by ITPL and Customer).
Subscription Period means the duration of a Subscription, consisting of the Initial Term selected by Customer at the time of purchasing that Subscription and any renewals following that Initial Term.
Support Services means the support services described in schedule 2 (Support Services).
Taxes means all taxes, levies, rates, charges, duties, imposts of any kind whatsoever, including withholding tax.
Tax Invoice has the meaning given in the GST Act.
Territory means Australia.
User includes:
The Instantemp platform ("IT Platform") is a technology solution that provides various functionality to assist various industry businesses (such as restaurants, logistics, health care) to manage their product, food, produce safety processes and procedures and maintain quality.
The documentation describing the IT Platform functionality, specifications and how to use IT Platform is specified within the IT Platform and / or via ITPL's website at https://instantemp.com/solutions.
To manage the food safety processes and procedures of the Business(es) at a number of Business Locations that does not exceed the number of current Subscription that Customer holds.
a) Subscription Fees
The Customer must pay a monthly Subscription Fee for each Subscription. The amount and payment timing / frequency of the monthly Subscription Fee will depend on the subscription plan that Customer selects. Some subscription plans require the payment of multiple months of Subscription Fees up-front (for example, if Customer elects to purchase a Subscription with a Subscription Period of 12 months). If payment timing / frequency are not specified, Customer and ITPL agree that Customer will pay the Subscription Fee monthly in advance.
Information on the types of subscription plans that ITSL offers (and the associated Subscription Fees) can be found on ITPL's website at https://instantemp.com/pricing. The standard pricing on ITPL's website will apply to all Subscriptions unless ITPL and the Customer have agreed in writing that different pricing will apply.
b) Additional and out of scope Services
If Customer requests any additional or out of scope services (including any implementation assistance (e.g. installation, configuration, training) or additional support services beyond the scope of support described in Schedule 2) and ITPL agrees to provide those services pursuant to clause 4, the services will (unless otherwise agreed by ITPL) be charged on a time and materials basis using ITPL's then-current time and materials rates as published by ITPL (including as published within the IT Platform or IT Platform Documentation) or otherwise notified to the Customer from time to time.
The minimum technical requirements to utilise the IT Platform are as specified in the IT Platform Documentation and may be updated by ITPL from time to time on written notice to Customer (including by issuing updated IT Platform Documentation or release notes with any updates for the IT Platform). The Customer is responsible for:
ITPL does not provide support for any third party software or devices (including BYO Devices), or for any issues caused by Customer supplied items, unless expressly agreed in writing by ITPL.
ITPL will provide Support Services consisting of the operation of a Help Desk as described in section 4 below.
The Customer acknowledges and agrees that ITPL is not responsible for resolving faults caused by software, hardware or other components that are outside of their networks or beyond their reasonable control (or which are due to scheduled outages).
In this schedule:
Defect means a failure of the IT Platform to materially comply with the requirements of the IT Platform Documentation, or any other material defect, error or problem with the IT Platform.
Help Desk means a telephone and email help desk facility, as further described in section 4 below.
The Customer's Personnel may report any Defect of which the Customer becomes aware to ITPL by contacting the Help Desk.
ITPL will, during the Subscription Period, make a Help Desk available during business hours to the Customer to enable the Customer's Personnel to:
ITPL will use reasonable endeavors to:
The email address for the Help Desk is info@instantemp.com To contact the Help Desk via phone for urgent issues please call+61 987654321.
Help Desk hours are 9AM to 5PM on weekdays (other than public holidays) in Melbourne, Victoria.
The Support Services do not include support in relation to:
In this Schedule 3 references to “you” or “your” are references to Customer, and references to “we”, “us” or “our” are references to ITPL.
By purchasing any products via the Online Store, you agree to the following terms and conditions (the “Purchase Terms”).
The purchase price for the Approved Devices will be notified to you as part of the Online Store check-out process. If you elect to proceed, you agree that ITPL may process payment using your chosen payment method selected during the check-out process.
Any applicable delivery fees will be specified during the check-out process and are payable at the time of placing your order.
Payments will be subject to the terms and conditions of payment specified by the payment provider that you select from the options offered by ITPL. This may include an additional fee, which is usually calculated as a percentage of the total transaction cost. You will be advised of any such fees that ITPL charges, in relation to the use of the payment platform, at the time you authorise the payment.
All prices in the Online Store are in Australian Dollars (AUD) and are inclusive of GST.
Payment for the Authorised Devices and any applicable delivery fees is required in full at the time of making the order, unless you have selected an alternative payment model (such as an instalment payment plan or deferred payment arrangement) from the approved options that we offer during the Online Store check-out process.
Acceptance of an order takes place at the time we communicate our acceptance of the order to you, even if your payment has been processed beforehand. We reserve the right to reasonably refuse to accept or process your order, including where:
Once your order is accepted, we will notify you by email or SMS (or such other method of communication determined by us).
The information, including pricing and product details, contained in the Online Store may include inadvertent and occasional errors due to typographical mistakes, miscommunications and/or technical glitches. We reserve the right to cancel orders, and refund your payment, due to such errors or if the items ordered are no longer available. We will notify you as soon as possible if we cancel your order.
Our products are sold and shipped within Australia. Contact us for international shipping queries.
You must provide us with a valid delivery address. You will be responsible for any additional re-delivery fees if you specify an incorrect delivery address.
We use third party delivery partners to deliver orders. Accordingly, the delivery times for products will be impacted by shipping and other factors outside of our control.
The Approved Devices will be considered to have been delivered in good condition and accepted by you unless you notify us within a reasonable time after delivery of any issues with the Approved Devices.
Title and risk in the Authorised Devices transfers to you once we dispatch the goods to our third party delivery partner. Once our products have been dispatched, you are responsible for liaising with the delivery partner in relation to date and time of delivery (you can track your order if you choose registered or express post). We are not responsible for damage to products in transit, and recommend you seek insurance if you are concerned by the risk of damage during transit.
Nothing in these Purchase Terms excludes, restricts or modifies any rights or remedies you may have under the Australian Consumer Law or under any other law that cannot be excluded, restricted or modified by agreement of the parties (Non-Excludable Rights).
Subject to the previous paragraph and to the maximum extent permitted by law, we exclude any term, condition, warranty, representation, guarantee or undertaking into these Purchase Terms that may otherwise be implied by legislation, common law, equity, trade, custom or usage.
We exclude any liability to you for consequential loss you may suffer or incur if we breach these Purchase Terms or which may arise from our negligence (where consequential loss includes indirect loss, loss of profit, loss of revenue, loss of data, losses arising from claims by third parties, loss of reputation and loss of opportunity). This limitation does not apply to limit our liability to you in respect of the Non-Excludable Rights.
Our maximum aggregate liability to you if we breach these Purchase Terms or for our negligence is limited to the total amount you have paid to us in the three (3) months prior to the date of the relevant order. This limitation does not apply to limit our liability to you in respect of the Non-Excludable Rights. To the extent permitted by law, we limit our liability to you in respect of the Non-Excludable Rights in accordance with clause 18.2( b ) of the Ts&Cs.
We do not offer refunds or exchanges if you change your mind.
If you receive the wrong Authorised Devices, or believe you are entitled to a remedy under the Australian Consumer Law, please contact us with details of the issue and proof of purchase and we will provide you with details of how the Authorised Devices can be returned.
For valid claims under the Australian Consumer Law, and exchanges if you receive the wrong Authorised Devices, we will pay the postage costs to return the products to us.
Except where your claim is covered by a guarantee under the Australian Consumer Law, returned products should be returned in the original unopened packaging and not be tampered with.
You are responsible for the installation, configuration, maintenance and use of the Authorised Devices. If you require our assistance with the installation, configuration, maintenance or use of the Authorised Devices, you can request that we provide these as an additional chargeable service in accordance with clause 4 of the Agreement.
If there are problems with the Authorised Devices, you may have the rights under the Australian Consumer Law (see clause 3). We will honour all valid claims under the Australian Consumer Law, but we do not otherwise provide any on-going support services for the Authorised Devices as part of the purchase price. If you require on-going support services, you can request that we provide these as an additional chargeable service in accordance with clause 4 of the Agreement.
Some of the Authorised Devices may also come with warranties, maintenance and support services provided by the third party manufacturer of the Authorised Device (Manufacturer Services). These Manufacturer Services are in addition to your rights under the Australian Consumer Law (see clause 3). We encourage you to familiarize yourself with any Manufacturer Services that come with the Authorised Device.