Athena Irrigation Terms and Conditions

TERMS AND CONDITIONS OF TRADE: Athena Irrigation Technologies Pty Ltd (ABN 49 622 946 329)

Customer terms and conditions

These Customer Terms and Conditions (these “T&Cs”) apply to all subscriptions to the Transp-IR Service (as defined below) that you purchase (each a “Subscription”) and all Sensors (as defined below) that you purchase from Us.  By completing the Order Form and submitting it to Us (by which you subscribed to the Transp-IR Service and/or purchased Sensors) (the “Order Form”), You agree to all the terms and conditions contained in these T&Cs.

Please read these T&Cs carefully. They govern your Subscriptions and access to, and use of, the Transp-IR Service and your purchase and use of Sensors.  In order to access, subscribe to use, download, share or otherwise use any part of the Transp-IR Service or use any software scripts provided by Us in order to make the Transp-IR Service available or usable, you must accept these T&Cs which may be modified or otherwise changed by Us from time to time at Our sole discretion. Your continued use of the Transp-IR Service and Your Sensors (as defined below) will be deemed acceptance to any such amended or updated T&Cs. If you do not agree to any of the terms or conditions contained in these T&Cs, please do not use the Transp-IR Service or Our Sensors.


1.    Definitions

All terms capitalized, but not defined, in these T&Cs have the meanings given to them in any order form, quotations and offers.  In addition to all other terms defined in the Agreement (as defined in the Order Form), the following terms shall have the following meanings:

“Affiliate” means with respect to any Person, any Person which, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation any parent, subsidiary, equityholder, officer, director, member, employee, representative or agent of such Person.  For the purposes of this definition, “control” shall mean the ability, directly or indirectly, to direct the activities of the relevant Person.

“Aggregated Data” means: (i) Your Site Data that We collect, use and may disclose on an anonymous and aggregated basis only: (ii) Your Organisational Characteristics Data (except for credit card or bank account information) that We collect, use and may disclose on an aggregated basis only (iii) the Output Service Data that We collect, compile, use and (iv) including the Vine Water Index or Plant Water Index and may disclose on an anonymous, aggregated basis only.

“Applicable Law” means all local, state, national and international laws, statutes, rules and regulations applicable to You and Us in connection with the Agreement, as applicable.

“Business Day” means any day other than a Saturday, a Sunday or a legal holiday on which national banks are not open for general business in the State of South Australia.

“Intellectual Property Rights” means all right, title and interest to a Person’s: (a) patents, patent applications, patent disclosures and all related continuations, continuations-in-part, divisionals, reissues, reexaminations, utility models, certificates of invention and design patents, registrations and applications for registrations; (b) trademarks, service marks, trade dress, internet domain names, logos, trade names and corporate names and registrations and applications for registration thereof; (c) copyrights and registrations and applications for registration thereof; (d) computer software, data and documentation; (e) inventions, trade secrets and confidential business information, whether patentable or nonpatentable and whether or not reduced to practice, know-how, processes and techniques, formulae, algorithms, research and development information, copyrightable works, financial, marketing and business data, pricing and cost information, business and marketing plans and strategies and customer and supplier lists and information; (f) other proprietary rights relating to any of the foregoing (including remedies against infringements thereof and rights of protection of interest therein under the laws of all jurisdictions); and (g) copies and tangible embodiments thereof.

“Our Hardware” means any computer hardware owned or leased by Us and that is utilized in connection with the Transp-IR Service.

“Our Software” means any computer software owned or licensed by Us and that is utilized in connection with the Transp-IR Service.

“Output Service Data” means the data and/or information that we collect either from Our Sensors or as input from a third party and transmit to You in connection with the Transp-IR Service.  For purposes of clarification, Output Service Data does not include Your Site Data, Your Organisational Characteristics data, Plant Water Index or Vine Water Index.

“Parties” means You and Us.

“Person” means any individual or entity.

“Plant Water Index” means the index of any irrigated plant water status We generate based on input from Our Sensors, and/or other third party sensors or input data, utilising Our proprietary algorithm.

“Sensors” means Our Transp-IR plant water sensors that You must purchase in order to receive the Transp-IR Service.

“Taxes and Charges” means all: (1) Goods & Services Tax (GST), sales, use, value-added tax (VAT) and other taxes (other than taxes based on Our income), and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, fees, duties, and charges and any related penalties and interest, arising from: (a) the provision of the Transp-IR Service to You under the Agreement; or (b) the sale of Sensors to You under the Agreement; and (2) all shipping charges that are incurred in shipping Your Sensors (as defined below) to You (as elected by You in the “Sensors” section of the Order Form).

“Transp-IR Service” means Our software service which recommends optimal irrigation on vineyards and farms and includes Our Software, Our proprietary technology, Our Hardware and Sensors.

“Us”, “We”, “Our” or the “Company” means Athena Irrigation Technologies Pty Ltd and includes Our successors and assigns.

“Vine Water Index” means the index of grapevine water status We generate based on input from Our Sensors and/or other third-party sensors or input data utilising Our proprietary algorithm.

“You” or “Your” means the Person that identifies itself in the section of the Order Form entitled “Customer Information”.

“Your Device” means any computer or mobile device onto which You access the Transp-IR Service.

“Your Organisational Characteristics Data” means all personally identifiable information data which We collect about You which may include, without limitation, Your: (a) first and last name; (b) credit card number; (c) billing address; (d) shipping address; (e) phone number; and (f) email address.

“Your Site Data” means all data concerning Your farm, sites or fields which is collected by Your Sensors and transmitted to the Transp-IR Service.

“Your Representatives” means Your Affiliates and authorized employees, agents and representatives.


2.   Your Purchase of Sensors; Warranty; Return

2.1.  Your Purchase of Sensors

(a) By completing the Order Form and submitting it to Us, You have agreed to: (i) purchase the number of Sensors that You have indicated on the Order Form that you wish to purchase from Us (“Your Sensors”); and (ii) allow Us to charge the credit card You have described in the Order Form for the full purchase price of Your Sensors plus applicable Taxes and Charges (“Your Sensors Purchase Price”).  We will recommend the number of Sensors that We believe will allow the Transp-IR Service to operate in the most optimum fashion practicable.  Please note that if You do not purchase and use the Optimum Sensor Number that we recommend in connection with the Transp-IR Service: (x) the efficacy of the Transp-IR Service may adversely affected; and (y) We will not be responsible or liable for the performance of the Transp-IR Service with regard to Your Subscription.  We will not ship any Sensors to You until you have paid in full Your Sensors Purchase Price plus applicable Taxes and Charges for the Sensors that you purchase.

2.2.  Title and Risk of Loss. 

Title to Your Sensors will only pass to You upon payment in full of the Your Sensor Purchase Price.  All shipments of Sensors from Us to You are DAP (Incoterms 2010) to Your Notice Address (as you have indicated it in the Order Form) (“Your Address”) – this means that risk of damage or loss relating to Your Sensors remains with Us until Your Sensors arrive at Your Address.

2.3.  Limited Warranty; Exclusions. 

Upon Your payment in full of Your Sensors Purchase Price and Our delivery to You of Your Sensors, we warrant to You that for a period of the earlier of: (a) [two years] following the delivery of Your Sensors to You; or (b) the expiration or termination of Your Subscription to the Transp-IR Service (the “Limited Warranty Period”), Your Sensors will operate in accordance with the written specifications for the Sensors (the “Sensor Specifications”) located at [www.athenairrigation.com/product] (the “Limited Warranty”). The Limited Warranty does not apply in the event that any part of Your Sensors (including any of Our Software therein) have been: (i) used other than in accordance with these T&Cs, the Sensor Specifications or other written operating instructions provided by Us or Our agents to You; (ii) modified, repaired, serviced, maintained or altered by anyone other than Us or one of Our authorized agents without Our prior written approval in each instance; (iii) combined with or installed on/with operating systems, hardware or other equipment that do not constitute Our Hardware or Our Software; (iv) used or installed not in accordance with the Sensor Specifications; (v) damaged by causes beyond the Our reasonable control; or (vi) sold or transferred to any Person other than You. The Limited Warranty extends only to You and does not extend to any other Person.  EXCEPT FOR THE LIMITED WARRANTY, YOUR SENSORS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OR CONDITION WHATSOEVER, AND WE EXPRESSLY DISCLAIM ALL OTHER IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT YOUR SENSORS WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF YOUR SENSORS WILL BE UNINTERRUPTED OR ERROR-FREE.

2.4.  Warranty Claims.

Our sole obligation and Your exclusive remedy for any failure of Your Sensors to conform to the Limited Warranty is the repair or replacement, at Our sole option, of Your Sensors such that they shall conform with the Sensor Specifications.  If You believe that Your Sensors do not conform with the Sensor Specifications during the Limited Warranty Period, please contact Us at support@athenairrigation.com.  If You are entitled to have Your Sensors repaired or replaced by Us during the Limited Warranty Period under the Limited Warranty, then We shall pay for any applicable shipping charges necessary for: (a) You to return Your Sensors to Us; and (b) for Us to ship repaired or replacement Sensors to You (“Your Replacement Sensors”).  If You are not entitled to have Your Sensors repaired or replaced by Us during the Limited Warranty Period under the Limited Warranty, but You ship Your Sensors to Us anyway, then You shall be responsible for all shipping charges associated with: (i) Your shipping of Your Sensors to Us; and (ii) Our shipping of Your Sensors back to You.  If We replace Your Sensors pursuant to the Limited Warranty, Your Replacement Sensors will be: (x) covered by the Limited Warranty only for the remainder of the Limited Warranty Period that was applicable to Your (original) Sensors; and (y) shall be considered Your Sensors under these T&Cs. 

3.   Your Subscription to the Transp-IR Service

3.1.  Subscription Generally; Term and Renewal. 

You will receive the Subscription to the Transp-IR Service that You indicate on the Order Form and pay for.  Your Subscription to the Transp-IR Service shall: (a) begin on the Effective Date; and (b) expire upon the one (1) year anniversary of the Effective Date, unless earlier terminated pursuant to the other provisions of this Article III (collectively, the “Term”).  Please note that: (i) Your Subscription to the Transp-IR Service does not automatically renew and Your access to the Transp-IR Service will cease immediately at the end of the Term if the Re-Subscription Procedures (as defined below) have not been completed; and (ii) if You re-subscribe to the Transp-IR Service you will be deemed to have agreed to the version of our T&Cs and Privacy Policy that are effective on the date of Your re-subscription.  If You want to renew Your Subscription to the Transp-IR Service after the end of the Term: (x) You will need to send an email to admin@athenairrigation.com; and (y) We will need to charge Your credit card for the full amount for the Transp-IR Service that you subscribe for plus any applicable Taxes and Charges (collectively, the “Re-Subscription Procedures”).  The current prices for subscriptions to the Transp-IR Service and are subject to change in Our sole discretion from time to time (the “Subscription Fee”).

3.2.  Early Termination. 

You may terminate the Term for any reason at any time by sending an email to admin@athenairrigation.com requesting termination of your Transp-IR Service.  If You terminate the Term for any reason, we will refund to Your credit card or bank account a pro rata amount of the Subscription Fee that reflects the remaining portion of the Term (assuming that you did not terminate your Subscription to the Transp-IR Service).  If You terminate the Term: (a) Your access to the Transp-IR Service will terminate immediately upon your completion of the Termination Notice; and (b) You will not receive any refund for any of Your Sensors.

3.4 Effect of Termination. 
 

Upon expiration or termination of your Subscription to the Transp-IR Service, the Agreement and the Term, except as otherwise set forth in Sections 3.2, 3,3 and this 3.4, all rights and obligations of You and Us shall immediately terminate.  Notwithstanding the foregoing, the provisions of these T&Cs, they shall survive any expiration or termination of Your Subscription, the Term and the Agreement.

4.   Our Obligations; Upgrades/Maintenance; Your Obligations

4.1.  Our Obligations; Upgrades and Maintenance.

(a)  If You have any questions, comments and/or complaints about the Transp-IR Service or Your Sensors during the Term, please contact Us at admin@athenirrigation.com.

(b)  We agree that during the Term we will provide the Transp-IR Service to You in accordance with the terms of the Agreement and as specified in the Order Form.

(c)  We agree that during the Term and until [Twelve (12) months] after the expiration or termination of the Term (the “Open Account Period”), we will maintain an account for You (“Your Athena Account”).  Your Athena Account will contain the: (i) Your Site Data; and (ii) the Output Service Data.  During the Open Account Period, You will be able to access Your Athena Account, view the data contained in it and download such data to Your Devices.

(d)  Notwithstanding anything in the Agreement to the contrary, We agree that although we may disclose Your Site Data, Your Organisational Characteristics Data (except for credit card information) and the Output Service Data on an anonymous, aggregated basis (as provided in the Agreement), we will not: (i) disclose to any third Person any of Your Site Data, Your Organisational Characteristics Data or the Output Service Data in any manner which identifies You or Your site; or (ii) use Your Site Data, Your Organisational Characteristics Data or the Output Service Data for unlawful or anti-competitive activities (such as using such data to speculate in commodities markets).

(e)  You acknowledge that: (i) We may, but are not obligated to, modify, update and/or make upgrades to the Transp-IR Service and/or perform maintenance on the Transp-IR Service; (ii) when and if We modify, update and/or make upgrades and/or perform maintenance this may mean that the Transp-IR Service may be unavailable for a period of time; and (iii) in no event will We be liable to You, any of Your Affiliates or any third Person for any unavailability of the Transp-IR Service caused by modifications of, updates and/or upgrades to and/or maintenance performed on the Transp-IR Service.  You acknowledge that your failure to accept, download and install such modifications, updates and/or upgrades may adversely affect Your use of and access to Transp-IR Service.


4.2.  Your Obligations. 

You agree:

(a)    to use the Transp-IR Service and Your Sensors in compliance with all terms and conditions of the Agreement;

(b)    to give Us access to Your Site Data and Your Organisational Characteristics Data as is necessary for Us to provide the Transp-IR Service;

(c)    to allow Us to use and disclose Your Site Data and Your Organisational Characteristics Data as set forth in the Agreement;

(d)  to maintain in compliance with their specifications all of Your Devices, Your hardware (excluding Your Sensors) and internet/mobile connections, necessary for Us to provide the Transp-IR Service to You during the Term and to provide the power to the same;

(e)    that You will not:

(i)     interfere with or disrupt the Transp-IR Service or networks connected to or comprising the Transp-IR Service;

(ii)    violate any Applicable Law in connection with the use of the Transp-IR Service or Your Sensors;

(iii)   reproduce, duplicate, copy, sell, resell, license, distribute or otherwise transfer any portion of the Transp-IR Service and/or Your Sensors, or allow the use of the Transp-IR Service and/or Your Sensors by any third Person except for Your Representatives;

(iv)  attempt to disable or circumvent any security or access control mechanism used by or associated with the Transp-IR Service;

(v)  attempt to gain unauthorized access to the Transp-IR Service, or use the Transp-IR Service for any unauthorized or unintended purpose;

(vi) harvest or otherwise collect information about Our other customers who use the Transp-IR Service;

(vii) modify or enhance the Transp-IR Service or Your Sensors without our express prior written consent; or

(viii) use the Transp-IR Service in a manner that introduces any virus, corrupted data or other harmful, disruptive or destructive code or files (collectively, “Harmful Code”) to or otherwise interferes with or disrupts, overloads or burdens the Transp-IR Service, and/or Our Hardware and/or networks or those of Our service providers.


5.   Transp-IR Service.

5.1.  Use of the Transp-IR Service. 

If You Subscribe to the Transp-IR Service and pay the Subscription Fee to Us, We agree that You may use the Transp-IR Service on Your Devices free of additional charge. You agree that You shall use the Transp-IR Service only as authorized in these T&Cs and will instruct Your Representatives having access to the Transp-IR Service to act in conformity with Your obligations under these T&Cs. You agree that You shall be liable for any breach of Your obligations under these T&Cs by any of Your Representatives.

5.2.  Accessing the Transp-IR Service and Setting Up Your Athena Account.

If You wish to Subscribe to and use the Transp-IR Service, You must complete a registration process which will create Your Athena Account. By completing the registration process and creating Your Athena Account, You expressly provide Us with Your consent to send You messages and other content in connection with the Transp-IR Service via email, text message or any other means, either through the Transp-IR Service or otherwise.  You agree that You will provide Us with truthful and accurate information when setting up Your Athena Account, will keep such information up-to-date and select login information (including a password).  You shall have all responsibility for any inaccuracies in any information You provide to Us or in respect of Your failure to keep such information up-to-date. You agree that You: (a) will not share Your Athena Account or login information with any third Person, nor let any third Person access Your Athena Account, except Your Representatives and as otherwise permitted by these T&Cs; (b) are responsible for maintaining the confidentiality of the login information for Your Athena Account; (c) will notify Us immediately at www.athenairrigation.com/contact-us if You know or suspect that Your Athena Account login information has been compromised or that Your Athena Account has been used without Your authorization; and (d) are fully and solely responsible for the security of Your Devices and all activity on Your Athena Account (except for such activity initiated by Us).

5.3.  Links and Third Person Property. 

The Transp-IR Service may contain links or other content related to websites, advertisers, products and/or services offered by third Persons (the “Third Person Property”). We have no control and make no representation with respect to any such Third Person Property or any information provided or transmitted via such Third Person Property, or otherwise provided by any such third Persons. YOU UNDERSTAND AND AGREE THAT USE OF SUCH LINKS AND THIRD PERSON PROPERTY IS AT YOUR OWN RISK, THAT SUCH LINKS AND THIRD PERSON PROPERTY ARE GOVERNED BY SUCH THIRD PERSONS’ TERMS OF USE AND PRIVACY POLICIES, AND THAT WE ARE NOT RESPONSIBLE FOR THE PRIVACY OR BUSINESS PRACTICES OR OTHER POLICIES OF SUCH THIRD PERSONS. YOU SHOULD CAREFULLY REVIEW THE APPLICABLE TERMS AND POLICIES THAT APPLY TO ANY SUCH THIRD PERSONS. WE ARE NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR SUCH THIRD PERSONS, OR FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED BY YOU AS THE RESULT THEREOF, AND WE EXPRESSLY DISCLAIM, AND YOU EXPRESSLY RELEASES US FROM, ANY AND ALL LIABILITY WHATSOEVER FOR ANY CONTROVERSIES, CLAIMS, SUITS, INJURIES, LOSS, HARM AND/OR DAMAGES, ARISING FROM AND/OR IN ANY WAY RELATED TO SUCH THIRD PERSONS, INCLUDING WITHOUT LIMITATION, RELATING TO AVAILABILITY, TERMS OF USE, PRIVACY, SOFTWARE/HARDWARE DAMAGE OR THIRD PERSON PROPERTY

6.   Ownership of Data; Licenses; Aggregated Data

6.1 Ownership of Your Organisational Characteristics Data, Your Site Data, the Output Service Data and the Aggregated Data. 

Subject to the licenses that You are providing to Us in Section 7.2 and the license that We are providing to You in Section .5: (a) We agree that You own all right, title and interest to the Output Service Data that We send to You through the Transp-IR Service, Your Organisational Characteristics Data and Your Site Data; and (b) You agree that We own all of the right, title and interest to the Aggregated Data and all other information, reports, notes, designs, drawings, documentation, flow charts, memoranda, and other data or materials prepared and/or produced in connection with our compilation and analysis of the Aggregated Data (the “Work Product”).  You hereby assign any right, title and interest You may have to any Aggregated Data and the Work Product (either on the Effective Date or after the Effective Date) to Us.

6.2 Licenses Given by You to Us; Aggregated Data. ​

Notwithstanding the provisions of Section 7.1, You agree that:

(a)  Your Site Data on an anonymous and aggregated basis only: and/or

(b) Your Organisational Characteristics Data on an aggregated basis to the fullest extent permitted by Applicable Law, in addition to Our use and disclosure of the information collected by Us about You, You hereby grant to Us a limited, non-revocable, non-exclusive, perpetual, assignable, fully paid-up, royalty free, worldwide license to incorporate Your Site Data and Your Organisational Characteristics Data (on an anonymous and aggregated basis only) into the Aggregated Data:

(i) to modify and enhance the Transp-IR Service;

(ii) to modify and enhance the Transp-IR Service that We provide to Our other customers;

(iii) to develop, market, sell and license new product and service offerings; and (iv) for sales and marketing purposes (all as described in these T&Cs) (the “Commercial Purposes”).

(v) for research purposes (all as described in these T&Cs) (the “Research Purposes”)

(c)  You also hereby grant to Us:

(i)  a limited, non-revocable, non-exclusive, perpetual assignable, fully paid-up, royalty free, worldwide license to access Your Athena Account and use and disclose the information contained therein as provided in the Agreement;

(ii) a limited, non-revocable, non-exclusive, perpetual assignable, fully paid-up, royalty free, worldwide license during the Term only to transmit the Output Service Data to Your Devices; and

(iii) a limited, non-revocable, non-exclusive, perpetual assignable, fully paid-up, royalty free, worldwide license to use and disclose all of the Output Service Data for the Commercial Purposes and Research Purposes, but only in anonymous, aggregated form.


7.   Intellectual Property.  

7.1 Our Ownership Generally. 


You understand and agree that the Transp-IR Service and all other information, techniques, methodologies and materials provided by Us to You in connection with performing Our obligations under the Agreement, including, but not limited to, all of Our Intellectual Property Rights and all modifications to, improvements of or derivatives thereof and all rights of ownership therein (collectively, “Our Property Rights”) are Our sole and exclusive property and shall remain vested in Us.  You hereby assign any right, title and interest You may have to any of Our Property Rights (either on the Effective Date or after the Effective Date) to Us.  Except for the limited license granted pursuant to Section 7.5 below, You do not claim and agree to not: (a) assert or challenge, on Your behalf or on behalf of any third Person, or assist any third Person in asserting or challenging, Our ownership, now or in the future, with regard to any right, title or interest in or to any of Our Property Rights and/or the validity of Our Property Rights; or (b) sell, assign, attempt to assign or sublicense to any third Person any of Our Property Rights.  Any Aggregated Data that is copyrightable material and that may arise out of the provision of the Transp-IR Service to You shall be Our sole and exclusive property and to the extent that such copyrightable material is not deemed to be authored Us it shall be deemed a work for hire authored by You for Us under Applicable Law and if it shall not be deemed to be a work for hire then by operation of the Agreement all right, title and interest to such copyrightable material is hereby assigned by You to Us.

7.2 Further Assurances. 

You agree that upon Our written request and without further consideration, You shall execute and deliver such further instruments of transfer and assignment and take such other action as We may reasonably require to more effectively transfer, assign, and/or vest in, Us Our Property Rights, the Aggregated Data and the Work Product.

7.3 Trademarks. 

You agree that You shall not alter or remove from any of Our Software, or Your Sensors any proprietary, copyright, trademark or trade secret legend.

7.4 Reverse Engineering/Distribution.  

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You agree that You shall not, and shall not allow Your Representatives to, decompile, reverse assemble or reverse engineer, or prepare any derivative works or translations of, any of Our Software, Our Property Rights or Your Sensors or any of the underlying code thereof or any part thereof.

7.5 License. 
​​

During the Term only and subject to the provisions of the Agreement, We hereby grant to You a limited, revocable, non-exclusive, non-assignable, non-sublicensable, worldwide license to use the Transp-IR Service for Your business purposes only, but only in compliance with the provisions of Section 4.2.


7.6 Know-How. ​
​​

Notwithstanding anything in this Agreement to the contrary, You acknowledge and agree that: (a) We are in the business of providing product and services based, in part, on the knowledge, experience and know-how We gain in providing products and services to customers; and (b) nothing shall be deemed to prohibit Us and/or Our personnel from using any general knowledge, ideas, concepts, processes, experience and know-how developed or created in the course of providing the Transp-IR Service or Your Sensors to You and retained by Our personnel (collectively, “Know-How”) in connection with: (i) the provision of products and services to other Persons; and/or (ii) the development of Our future Intellectual Property Rights, products and services (whether in connection with internal purposes and/or for future third Person engagements), and You shall have no ownership rights in such Know-How or in any Intellectual Property Rights created or derived from such Know-How.

7.7 Feedback. ​
​​

You agree that: (a) We shall be the exclusive owner of any feedback that You may provide to Us in respect of the Transp-IR Service, any Sensors and/or Our business (the “Feedback“); and (b) Your provision of Feedback to Us does not give You any Intellectual Property Right or any other right, title, or interest in or to any software, hardware inventions, or other assets created by Us, even if such Feedback leads Us to create software, hardware, an invention, or other asset.

8.   Indemnification; Limitation of Liability

8.1 Indemnification by Us. ​​

We agree to defend, indemnify and hold You harmless from any and all claims, losses, damages, liabilities or expenses (including, without limitation, reasonable attorneys’ fees and expenses) (collectively, “Losses”) incurred by You and arising out of or in connection with a law suit or other legal proceeding brought or instituted by a third Person (each a “Third Person Claim”) alleging that the Transp-IR Service and/or Your Sensors constitute an unauthorized use or infringement of any third Person’s Intellectual Property Right.  If the use of the Transp-IR Service and/or Your Sensors are enjoined during the Term in connection with such Third Person Claim, We may, at Our sole expense and option: (a) procure for You the right to continue using the Transp-IR Service and/or Your Sensors as set forth in the Agreement; (b) replace the Transp-IR Service and/or Your Sensors with a non-infringing service and/or sensor of equivalent function and performance; or (c) modify the Transp-IR Service and/or Your Sensors to be non-infringing, without detracting from function or performance.  If We elect not to employ any of the options contained in the previous sentence, We agree that the Term (and the Agreement) and Your Subscription to the Transp-IR Service shall immediately terminate upon Our giving written notice to You of such event and You agree to immediately cease using the Athena Sensors and Your Sensors upon receipt of such written notice.  In such event, We shall pay to You an amount equal to the portion of the Subscription Fee that is attributable to the remainder of the Term (had it not been terminated).

8.2 Indemnification by You. ​​

You shall defend, indemnify and hold harmless Us and Our present and former parents, subsidiaries, managers, directors, officers, equity owners, employees, representatives, agents, insurers and other Affiliates (collectively, “Our Indemnified Persons”) from and against any Losses (collectively, “Our Indemnified Claims“) resulting from or arising out of: (a) the negligent or intentional misuse of the Transp-IR Service and/or Your Sensors by You or Your Representatives; (b) Your or any Your Representatives’ noncompliance or alleged noncompliance with Applicable Law; (c) Your or Your Representatives’ breach of any provision of the Agreement (including any of Your representations, warranties and/or covenants); and/or (d) violation of any provision of any agreement or contract, whether written or oral, between You and any third Person.

8.3 Indemnification by You.

You shall not be liable for any Losses of Our Indemnified Persons under this Article IX to the extent that such Losses are found in a final and binding arbitration award or a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of any of Our Indemnified Persons.  We shall not be liable for any of Your Losses under this Article IX to the extent that such Losses are found in a final and binding arbitration award or a final non-appealable judgment by a court of competent jurisdiction to have resulted from: (a) the gross negligence or willful misconduct of You or any of Your Representatives; (b) the use of the Transp-IR Service, or the use and/or installation of Your Sensors (as applicable), other than in accordance with these T&Cs, the Sensor Specifications or other written operating instructions provided by Us or Our agents to You; and/or (c) the combination of the Transp-IR Service or Your Sensors with, or the installation of the Transp-IR Service or Your Sensors on/with (as applicable), operating systems, software, hardware or other equipment that do not constitute Our Hardware or Our Software.

8.4 Limitation of Liability.

(a)  YOU ACKNOWLEDGE THAT IT IS TECHNICALLY IMPRACTICABLE FOR US TO PROVIDE THE TRANSP-IR SERVICE AND YOUR SENSORS FREE OF FAULTS, AND WE DO NOT UNDERTAKE TO DO SO.  ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT: (I) WE ARE PROVIDING THE TRANSP-IR SERVICE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS; (II) EXCEPT AS SET FORTH IN SECTION 2.3, WE ARE PROVIDING NO WARRANTIES, EXPRESS OR IMPLIED, TO YOU WHATSOEVER CONCERNING THE TRANSP-IR SERVICE, YOUR SENSORS, THE PROVISIONS OF THE AGREEMENT OR ANY ACTION TAKEN OR OMITTED BY US UNDER THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (III) IN NO EVENT SHALL WE OR OUR PRESENT AND FORMER PARENTS, SUBSIDIARIES, AFFILIATES, MANAGERS, DIRECTORS, OFFICERS, EQUITYHOLDERS, EMPLOYEES, REPRESENTATIVES, AGENTS, INSURERS, SUPPLIERS, DISTRIBUTORS OR LICENSORS BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROPERTY OR EQUIPMENT, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF DATA, BUSINESS INTERRUPTION, DAMAGE TO BUSINESS REPUTATION, OR LOSS OF USE) ARISING: (W) OUT OF THE PAST, PRESENT OR FUTURE RELATIONSHIP BETWEEN YOU AND US UNDER THE AGREEMENT; (X) OUT OF ANY CLAIMS YOU HAD, HAVE, OR MAY HAVE, KNOWN OR UNKNOWN, AGAINST US WHETHER GROUNDED IN TORT OR CONTRACT; (Y) OUT OF THE CREATION, LICENSE, USE, SALE OR SUPPLYING OF THE TRANSP-IR SERVICE AND/OR YOUR SENSORS; OR (Z) OTHERWISE; EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (IV) WE SHALL HAVE NO LIABILITY FOR THE BREACH OF OUR SECURITY MEASURES, THE SECURITY OF THE TRANSP-IR SERVICE OR THE SECURITY OF ANY ACCOUNT STORAGE PROVIDER.

(b)  EXCEPT AS PROVIDED IN SECTIONS 2.4 AND 9.1, TO THE MAXIMUM EXTENT PROVIDED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF US AND OUR PRESENT AND FORMER PARENTS, SUBSIDIARIES, AFFILIATES, MANAGERS, DIRECTORS, OFFICERS, EQUITYHOLDERS, EMPLOYEES, REPRESENTATIVES, AGENTS, INSURERS, SUPPLIERS, DISTRIBUTORS AND LICENSORS ARISING OUT OF THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE CREATION, LICENSE, SALE, SUPPLY OR USE OF THE TRANSP-IR SERVICE AND/OR YOUR SENSORS, WHETHER BASED UPON CONTRACT, TORT, TRADE PRACTICES OR OTHERWISE, SHALL NOT EXCEED: (i) THE ACTUAL PAYMENTS RECEIVED BY US FROM YOU DURING THE 180 CALENDAR DAYS PRECEDING THE DATE ON WHICH THE OCCURRENCE GIVING RISE TO THE CLAIM IN QUESTION OCCURRED; LESS (ii) OUR ACTUAL COSTS TO PROVIDE THE TRANSP-IR SERVICE AND YOUR SENSORS TO YOU UNDER THE AGREEMENT DURING THE SAME 180 CALENDAR DAY PERIOD.

(c)  You acknowledge and agree that: (i) the provision of the Transp-IR Service is subject to many factors both within and outside Our control; (ii) services such as the Transp-IR Service are subject to outages and/or interruptions (on a long term or short term basis), including, but not limited to, internet, power, utility and mobile network outages and interruptions; and (iii) We only offer the use of the Transp-IR Service when available.  In light of the above, You acknowledge and agree that We shall not be liable to You, any of Your Affiliates or any third Person relating to any of the foregoing in any manner whatsoever.

(d)  The limitations on liability and exclusion of certain damages contained in this Article IX shall apply regardless of the availability, success or effectiveness of other remedies.  We and You understand and agree that the limitations of liability contained in the Agreement are reflected in the pricing of the Subscriptions to the Transp-IR Service and Your Sensors Purchase Price.

(e)  You hereby covenant and agree that You shall not bring any suit, action, proceeding or alternative dispute resolution claim against Us or Our present and former parents, subsidiaries, managers, directors, officers, equity owners, employees, representatives, agents, insurers or Affiliates, for any reason whatsoever more than one (1) year after the related cause of action has accrued.


9. Miscellaneous

9.1 Publicity. 

You agree to not use Our name, logo or other trademarks, directly or indirectly, in any form of publicity, advertising or written reference without Our prior written consent.

9.2 Force Majeure. 

You agree that We will not be liable for any failures or delays resulting from circumstances or causes beyond Our reasonable control, including, without limitation, fire or other casualty, act of God, war or other violence, or any law, order or requirement of any governmental agency or authority.

9.3 Entire Agreement/Amendment. 

The Agreement constitutes the entire agreement between Us and You and supersedes all prior or contemporaneous, oral or written, representations, understandings or agreements relating to the subject matter hereof.  The Agreement, or any portion thereof, may only be amended by a writing signed You and one of Our duly authorized representatives.

9.4 Governing Law; Venue.

The Agreement shall be governed by and construed in accordance with the internal laws of the State of South Australia (without reference to the conflicts of law provisions thereof that would require the application of the law of any other jurisdiction). 

9.5 Waiver. 

No waiver of any obligation under this Agreement shall be valid unless in writing and signed by You and one of Our authorized representatives.  No delay or omission by either Us or You in exercising any right or power shall impair such right or power or be construed to be a waiver.  A waiver by either Us or You of any of the obligations to be performed by the other Party or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other obligation.

9.6 Successors and Assigns. 

The Agreement shall be binding upon and inure solely to the benefit of Us and You and both of our respective permitted successors and assigns, and nothing in the Agreement shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever as a third-party beneficiary under or by reason of the Agreement, except for those third Persons mentioned in Section 8.2.

9.7   Assignment. 

You may not assign or transfer the Agreement or any of Your rights or obligations under the Agreement to any third Person without Our prior written consent.  Any attempt by You to assign or transfer the Agreement or such rights or obligations in violation of this Section 10.7 shall be void and of no force and effect.  We may freely assign or transfer the Agreement or any of Our rights or obligations under the Agreement to any third Person without Your prior written consent.

9.8 Notices. 

Whenever under the Agreement We or You are required or permitted to give notice to the other, such notice shall be given in writing and shall be deemed to be given: (a) one Business Day after deposited with a nationally recognized overnight delivery service so long is such notice is prepaid for overnight delivery to the other Party; (b) one Business Day after sending if sent by e-mail; or (c) the day of delivery if personally delivered with written evidence of such delivery, and, in any case, addressed to the Party’s respective notice address located in the “Notice and Legal Information” section of the Order Form.  Either You or We may change our respective addresses for notification purposes from time to time by giving the other Party prior written notice in accordance with this Section 10.8 of the new address and the date upon which it will become effective.

9.9 Conflicting Terms. 

The Parties understand and agree that: (a) the provisions of the Agreement will supersede any inconsistent provisions contained in any Invoice, purchase order, quotation, confirmation, acceptance, acknowledgement or similar form; (b) all terms or conditions proposed in any Invoice, purchase order, quotation, confirmation, acceptance, acknowledgment or similar form which add to, vary from, or conflict with the provisions in the Agreement will be void; (c) any pre-printed terms in an Invoice, purchase order, quotation, confirmation, acceptance, acknowledgement or similar form will also be void; and (d) in the event of any conflict between the provisions of these T&Cs and the provisions of the Order Form, the provisions of the Order Form shall govern.

9.10 Severability.

If any provision of the Agreement is held to be illegal, invalid or unenforceable under present or future Applicable Law while the Agreement or any provision of the Agreement remains in effect: (a) the legality, validity and enforceability of the remaining provisions of the Agreement will not be affected thereby so long as the economic or legal substance of the transactions contemplated by the Agreement is not affected in any manner materially adverse to either Party; and (b) You and We agree that the body making the determination of illegality, invalidity or unenforceability shall have the power to reduce the scope, duration and/or area of the provision, to delete specific words or phrases and to replace any illegal, invalid or unenforceable provision with a provision that is legal, valid and enforceable and that comes closest to expressing the intention of the illegal, invalid or unenforceable provision, and the Agreement shall be enforceable as so modified.

9.11 Attorneys Fees. 

Should any action (whether informal, litigation, arbitration or otherwise) be instituted by Us to enforce, interpret or recover upon any provision of the Agreement, We will be entitled to recover from You, as an element of the costs of such action and not as damages, Our costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred in connection with investigating, bringing and prosecuting such action.

Effective November 1, 2021