GENERAL TERMS
Introduction
Who we are
We are Pixelcase Group Pty Ltd, trading as Aero Ranger. We offer software, hardware and data products relating to image recognition and mobility information.
Acceptance of these terms
Thank you for using our products and services.
These General Terms apply to all users of our products and services. By accessing or using our products and services you agree that these terms are binding and enforceable on you.
Depending on which of our products and services you use, additional terms may apply to you. These General Terms, any additional terms, and any applicable order form together form the agreement between us and you and may be collectively referred to as the ‘terms’ or ‘agreement’.
Updates to this agreement
(a) These terms are effective as at 5 July 2021.
(b) We may update our terms at any time by:
(i) posting a copy of the updated terms on our website; or
(ii) otherwise providing you with a copy of the updated terms.
(c) If we materially change these terms, then we will provide you with reasonable advance notice and the opportunity to review the changes, except:
(i) when we launch a new service or feature; or
(ii) in urgent situations, such as preventing ongoing abuse or responding to legal requirements.
(d) If you don’t agree to the new terms, you should remove Your Content and stop using the Company Services.
(e) If you access or use the Company Services following an update to this agreement, then you confirm your acceptance of the updated terms.
How to contact us
You can contact us at any time by email at [email protected].
1 Definitions and Interpretation
1.1 Definitions
In this agreement:
Australian Consumer Law is as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
API means an application programming interface.
Code means all software code, source code, object code, binary code, executable code, modules, components, algorithms, web clients, analysis tools, templates, configurations, business rules, dynamic link libraries, models, database schemas, updates, service packs, patches, hot fixes, know-how, trade secrets and domains, in any media or format, which is a part of or component of the Software.
Company, we, us and our refer to Pixelcase Group Pty Ltd ACN 608 040 357.
Company Services includes any products, services, data and information that we make available to you from time to time, including:
(a) the websites, including aeroranger.com;
(b) web apps, including the Aero Ranger Cloud Dashboard;
(c) mobile apps, including Capture ALPR;
(d) data and data products;
(e) APIs;
(f) hardware, devices or equipment;
(g) software; and
(h) Works.
Confidential Information means proprietary, confidential or personal information but does not include any information that has rightfully been shared with a party free of an obligation of confidence, or publicly disclosed other than in breach of this agreement. Our Confidential Information includes the software applications used to provide the Company Services and other Works.
Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world, whether conferred by statute, common law or in equity and including but not limited to:
(a) rights in respect of or in connection with any confidential information including any right to enforce an obligation to keep information confidential;
(b) trade secrets;
(c) know-how including know-how or insights derived over time from provision of Company Services;
(d) copyright including but not limited to future copyright and rights in the nature of or analogous to copyright;
(e) Moral Rights;
(f) inventions (including but not limited to patents, innovation patents and utility models);
(g) trademarks and service marks;
(h) designs, circuit layouts and mask works;
(i) domain names and social media accounts;
(j) technical data;
(k) rights in databases;
(l) trade names or business names;
(m) any rights in any Resulting Data;
(n) any other rights resulting from intellectual activity or from artificial intelligence insights or machine learning, in relevant business sectors which subsist or which may come to subsist, whether or not now existing and whether or not registered or registrable;
(o) any rights to apply for the registration of these rights and all renewals, extensions and reissues of these rights anywhere in the world, and
(p) any rights of action against any third party in respect of these rights including any right to claim or retain damages or other remedies.
Moral Rights means moral rights as described in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works and any analogous rights arising under statute that exist, or may come to exist, anywhere in the world.
Output includes any information, logs, outputs, feedback, enhancement requests, media and data that is generated or uploaded by you in connection with using the Company Services.
Resulting Data means any data or information arising from use by any person of Company Services or works, in anonymised or aggregated form and not including any of Your Content or personal information.
Subscription means a recurring payment plan to purchase Company Services.
UAV means unmanned aerial vehicle.
Works means all Code, works, software, algorithms, documents, concepts, designs, systems and processes created, developed, programmed, invented or derived by the Company (including its related entities or the employees, contractors, consultants and whether alone or in concert with others) or its licensors or in which any of those persons has any right, title or interest comprised in the Company Services.
you and your refers to a person accessing Company Services.
Your Content means any data or information you provide to us or input into Company Services in your communications with us and when using Company Services. Your Content includes any:
(a) lists of licence plates;
(b) information relating to specific vehicles; and
(c) personally identifying information (or ‘personal data’ or ‘personal information’ within the meaning of applicable laws),
which you upload to, input or create using the Company Services.
Except as specified in (a) to (c) above, Your Content does not include any data or information captured by hardware we have provided to you.
Your Users means any person you authorise or enable to access or use the Company Services.
1.2 Interpretation
In this agreement:
(a) Headings are for convenience only and do not affect interpretation.
(b) Mentioning anything after includes, including, or similar expressions, does not limit what else might be included.
(c) Nothing in this agreement is to be interpreted against a party solely on the ground that the party put forward this agreement or a relevant part of it.
(d) The following rules apply unless the context requires otherwise:
(i) The singular includes the plural, and the converse also applies.
(ii) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(iii) A reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.
(iv) A reference to a clause is a reference to a clause of this agreement.
(v) A reference to a party to this agreement or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives).
(vi) A reference to an agreement or document (including a reference to this agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by this agreement or that other agreement or document, and includes the recitals, schedules and annexures to that agreement or document.
(vii) A reference to legislation or to a provision of legislation includes a modification or re enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(viii) A reference to conduct includes an omission, statement or undertaking, whether or not in writing.
(ix) A reference to dollars and $ is to Australian currency.
2 Australian Consumer Law
(a) If you are an Australian consumer then you may have rights and protections in addition to the terms of this agreement.
(b) Nothing in this agreement seeks to limit your rights under the Australian Consumer Law.
3 When this agreement starts
The term of this agreement starts at the earliest of you first:
(a) accessing or using Company Services;
(b) paying us fees for use Company Services; or
(c) granting or enabling access to Your Users.
4 General obligations
(a) We will use all reasonable commercial efforts to provide you with access to and use of the Company Services.
(b) You must only use the Company Services for a proper, lawful and reasonable business-related purpose.
(c) You agree to provide us with any information reasonably necessary for the provision of the Company Services, including but not limited to, providing information and technology as necessary and appropriate.
5 Permitted use
You agree to access and use Company Services in a way that does not:
(a) contravene any law or regulatory requirement;
(b) damage, disable, overburden, or impair our server or network or those of our service providers;
(c) attempt to gain unauthorised access to any service, other accounts, computer systems or networks connected to our server through hacking, password mining or any other means;
(d) attempt to obtain any materials or information through any means not intentionally made available through the Company Services;
(e) offer or provide a commercial bureau or application service provider service;
(f) transmit or otherwise make available any content or media that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(g) impersonate any person or entity;
(h) transmit or otherwise make available any content that you do not have a right to make available under any law or which infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(i) film or record a private activity;
(j) track the geographical location of any person without their consent or other lawful authority;
(k) track the geographical location of any vehicle without the consent of the person in control of the vehicle or other lawful authority;
(l) stalk or otherwise harass any person; or
(m) collect or store personal data about other users.
6 Information required to create an account
(a) When creating an account for you to access or use Company Services, we may require information from you including the following:
(i) name and contact details;
(ii) location;
(iii) age;
(iv) the name of your organisation or business; and
(v) the nature of the business purpose for which you intend to use the Company Services.
(b) By providing us with this information and proceeding to create an account to use our Company Services, you agree that this information is reasonably required in order for us to comply with our legal, commercial and other requirements when providing Company Services to you.
(c) You must give us accurate information and notify us during the term of this agreement if the information you have provided becomes outdated or inaccurate and provide us with the updated information.
7 Updates
(a) We may, in our discretion, release updates, service packs, patches or hot fixes in relation to any defects in the Company Services (Updates).
(b) You agree that your continuing use of Company Services depends on you implementing any Updates we notify to you, and that we will have no liability in connection with your use of the Company Services if you fail to promptly do so.
8 Your acknowledgements regarding Company Services
8.1 Limits on reliance on Company Services
You acknowledge and agree that the Company Services are provided to you with your express acknowledgement and understanding that they are:
(a) to give you additional sources of information to use in your business, organisation or enterprise;
(b) to be used in along with, and complementary to, other sources of information;
(c) not to be used in environments which require fail-safe or no-fault performance; and
(d) not to be relied on for any essential or critical conduct of your business, organisation or enterprise.
8.2 Limitations on technology and access
(a) You acknowledge and agree that the Company Services are complex information technology, software and hardware products and services that may depend on external services and infrastructure in order to effectively operate. Accordingly, they may be subject to:
(i) security limitations and vulnerabilities in external networks or telecommunications infrastructure;
(ii) environmental conditions, including heat, moisture or transmission interference;
(iii) technical limitations in collection and analysis (such as false positives or false negatives); and
(iv) missing or incomplete records and data.
(b) You acknowledge and agree that in order to preserve and maintain the functionality of the Company Services we may from time to time enforce reasonable access and storage limits on your use of the Company Services.
8.3 Potential for disruption
You acknowledge and agree that your access to and use of the Company Services may be subject to disruption at any time for any duration for reasons including:
(a) unavailability of networks or telecommunications infrastructure;
(b) disruptions in transport, logistics, trade and travel;
(c) changes in laws or regulatory requirements;
(d) hardware or service failure;
(e) failure, delay or service changes by our service providers; or
(f) our response to a cybersecurity threat or incident.
8.4 Legal compliance
You acknowledge and agree that Company Services may need to be modified or withdrawn from time to time, for any duration or permanently, in response to legal or other regulatory requirements which we determine in our discretion to apply to the applicable Company Service or to your use of the Company Service.
9 Trials and evaluation periods
If we make Company Services available to you for trial or evaluation purposes, then your right to use the Company Services is limited solely to evaluation, demonstration and testing purposes for the trial or evaluation period.
10 Subscriptions
(a) We will give you notice of the subscription fees that will apply to your Subscription including details of whether any features or products incur additional costs. Additional fees may be incurred for example through you:
(i) selecting additional products on our website or in our web or mobile apps;
(ii) adding additional users to your account;
(iii) exceeding usage limits; or
(iv) using one of our APIs.
(b) Depending on the Subscription and any additional features or products you use, we may:
(i) require payment in either advance or arrears;
(ii) charge on a per use basis, such as for an API call or amount of storage used;
(iii) require a minimum payment term; or
(iv) charge you on a monthly or other billing cycle.
11 Fixed or minimum term commitments
(a) Company Services may be made available to you on the basis that you pay fees on a recurring basis for a fixed or minimum term (Minimum Commitment).
(b) Unless otherwise expressly stated by us, for any Company Service subject to a Minimum Commitment:
(i) you must continue to pay fees for the duration of the Minimum Commitment, unaffected by any early termination or purported termination of this agreement by you; and
(ii) at the end of the Minimum Commitment period the relevant service and this agreement will continue on a month-by-month basis unless terminated in accordance with this agreement.
12 Refunds, setoff and compensation
(a) You will not be entitled to a refund for fees already paid, or have any setoff or fee reduction under this agreement, including in cases of:
(i) disruption to or modification of the Company Services;
(ii) suspension of your access or use of the Company Services in accordance with clause 25; or
(iii) if you choose to cancel your use of Company Services.
(b) However, in the case of clause 12(a)(iii), if you have complied with this agreement then you will be able to continue to access the Company Services until the end of any applicable term or billing period.
13 Payments and billing information
(a) You agree to make any payments required under this agreement using the method we notify you from time to time.
(b) You must provide us with current, complete and accurate billing information.
(c) You must promptly:
(i) update all billing information, such as a change in billing address, credit card number, credit card expiration date or bank account details; and
(ii) notify us if your payment method is changed (for example, for loss or theft) or if you become aware of a potential breach of security, such as the unauthorised disclosure or use of your name or password.
(d) If you fail to provide any of the information required under clause 13(c), then you agree that we may continue charging you for any use of the Company Services unless you have terminated this agreement in accordance with clauses 21.1 and 21.3 below.
(e) If we are unable to collect the fees owed to us under this agreement, then you agree that:
(i) we may take any other steps to collect the fees from you; and
(ii) you will be responsible for all costs and expenses incurred by us in connection with this collection activity, including collection, court and legal fees.
14 Passwords and account access
If you are required to have a password to access Company Services then you agree to:
(a) choose a password that meets any complexity requirements we notify to you from time to time;
(b) keep your password in a safe and secure place that is known only to you; and
(c) immediately notify us and reset your password if you become aware that it has been compromised.
15 Devices and security
You must ensure that you secure any device you use to access or use the Company Services from physical and cyber threats, including by:
(a) keeping software updated;
(b) accessing online services only through secure networks;
(c) taking adequate precautions to prevent unauthorised or inappropriate access or use;
(d) taking adequate precautions to prevent against damage, destruction or theft; and
(e) securing access to the device by use of a password.
16 Your Content
(a) You are responsible for Your Content and must ensure that:
(i) you hold all rights necessary for us to handle and process Your Content;
(ii) if Your Content includes the personal information of individuals, that you obtain all necessary consents and comply with all applicable laws, including privacy laws, in the collection of that information and any disclosure of it to us;
(iii) if Your Content relates to surveillance or tracking of individuals or vehicles, that you obtain all necessary consents and comply with all applicable laws, including privacy and surveillance laws, in the collection of that information and any disclosure of it to us;
(iv) you take appropriate precautions to ensure the security of and risk minimisation in relation to Your Content, including by not:
(A) co-mingling sensitive or personal information; or
(B) collecting and retaining personal information in excess of, or for longer than, that required for your legitimate business purposes; and
(v) you maintain complete and up to date backups of and recovery capability for Your Content, acknowledging the possibility that access to Your Content via Company Services may become temporarily or permanently unavailable.
(f) You grant us, our related bodies corporate and our suppliers a non-exclusive, worldwide, irrevocable (for the term of this agreement) licence to handle and process Your Content for the purposes of providing you with the Company Services and for all other purposes described in this agreement.
(g) You agree the Company is permitted to run data analytics on Company Services and Your Content for the purposes only of supporting the provision and development of Company Services, Works and machine learning.
17 Intellectual property and ownership of Company Services
17.1 We reserve our rights
(a) All right, title and interest in and to the Company Services (and any modifications, customisations, configurations and derivative works of the Company Services) worldwide are the exclusive property of the Company and its related entities and its licensors.
(b) All rights in and to the Company Services that are not expressly granted to you under clause 17.3 are reserved by the Company and its licensors.
17.2 Ownership of Output
(a) Except to the extent it comprises Your Content, we own all right title and interest in any Output.
(b) You agree to assign us on creation any right, title and interest you have or may have in the Output immediately on creation or the right arising.
17.3 Limited licence
We grant you a limited, non-exclusive, non-assignable, revocable licence to access and use the Company Services to the extent permitted by this agreement, which:
(a) will remain in effect until this agreement expires or is terminated by you or by us, except where we suspend your access to the Company Services; and
(b) does not grant you any ownership rights nor any other right or licence of any kind except as expressly set out above.
17.4 Your promises to us
You agree that you will not:
(a) permit any third party other than Your Users to access or use the Company Services;
(b) incorporate or use, or attempt to incorporate or use, the Company Services in whole or in part in any other software, service or product;
(c) modify, adapt, alter, copy, make derivative works, translate, reverse engineer, decompile, disassemble or otherwise derive or determine the source code (or the underlying ideas, algorithms, structure or organisation) of Company Services or attempt to do any of these things;
(d) distribute the Company Services to any third party;
(e) disclose or transmit any content or data contained in the Company Services (not including Your Content) to any third party; or
(f) circumvent or endanger the operation or security of the Company Services or attempt to do any of these things and you will use your reasonable endeavours to ensure that any Guest Users also comply with these limitations.
17.5 Warranty regarding non-infringement
(a) We warrant, represent and undertake that to the best of our knowledge the Company Services, as provided by us and used in accordance with this agreement and our instructions and policies, do not infringe the Intellectual Property Rights of any third party.
(b) The warranty in clause (a) does not apply to any of Your Content, including without limitation where it is uploaded to or hosted on the Company Services.
18 Protection of Confidential Information
18.1 How we protect your Confidential Information
We will not disclose any of Your Content that is Confidential Information to any third party, except:
(a) in connection with providing the Company Services (such as by allowing Your Users to access Your Content as permitted by you);
(b) to our professional and legal advisers under a duty of confidentiality;
(c) to comply with ASIC rules or the listing rules of any stock exchange; or
(d) where we have a good-faith belief that disclosure is reasonably necessary to:
(i) meet any applicable law, regulation, legal process or enforceable government information request;
(ii) enforce these terms, including investigation of potential violations; or
(iii) protect against harm to the rights, property or safety of the Company, our users or the public as required or permitted by law; or
(e) where you give us permission to do so.
18.2 Your obligations to us in relation to Confidential Information
You will:
(a) ensure that you have obtained all rights necessary for us to handle and process Your Content;
(b) comply with any privacy legislation (including but not limited to, where applicable, as a data controller) when importing or otherwise introducing personal information into the Company Services, or when disclosing any personal information to us in order to receive the Company Services;
(c) confirm that the purposes for which personal information disclosed to us may be processed are as described in this agreement. If this is not the case, then you must notify us before providing us with the relevant personal information and we must agree to any necessary amendments to our processing of that personal information before you may provide it to us;
(d) not disclose any of our Confidential Information to any third party, except where required by law or where we give you written permission to do so; and
(e) provide ongoing and irrevocable consent to use your name and to describe the circumstances of your use of the Company Services where we need to do so to stay compliant with applicable laws, regulations and rules of stock exchanges to which we are subject.
19 Publicity
(a) You grant us the right to use your company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to your standard trademark usage guidelines as provided to us from time to time.
(b) If you do not want us to use your company name and logo as described in this clause 19 then please let us know by email at [email protected].
20 Suspension
We may immediately suspend this agreement for any period where we reasonably believe you have or are about to, or one of Your Users have or are about to:
(a) breach a term of this agreement;
(b) contravene any law;
(c) overload or otherwise misuse Company Services;
(d) not comply with our reasonable requests or requirements in relation to use of the Company Services; or
(e) cause harm or liability to a user, third party, or the Company.
21 Ending this agreement
21.1 Your rights
You may end this agreement by giving us notice.
21.2 Our rights
We may end this agreement if:
(a) you do not pay us any fees due and payable;
(b) we have suspended this agreement and you do not remedy the breach giving rise to the suspension on reasonable notice and request by us; or
(c) we give you not less than 30 days’ notice.
21.3 Effects of this agreement ending
At the end of this agreement:
(a) you must immediately return to us any devices or equipment which we own;
(b) you must immediately pay us any outstanding fees and any amounts due through to:
(i) the end of the then current billing period; or
(ii) if the Company Service is subject to a Minimum Commitment, the end of that period;
(c) if requested within 28 days of the end of this agreement each party must return of the other party’s Confidential Information to them; and
(d) we may immediately discontinue your access, and the access of Your Users, to Company Services.
22 Liability and indemnities
22.1 Exclusion of guarantees, warranties, representations, terms and conditions
(a) You agree that Company Services are provided on an ‘as is’ and ‘as available’ basis and that your use of the Company Services is at your sole risk.
(b) You further agree that no advice or information, whether oral or written, obtained by you from us or through or from the Company Services will create any warranty not expressly stated in this agreement and that no accounting, financial or legal advice or counsel is given or will be deemed to have been given to you by the Company.
(c) All express or implied guarantees, representations, or other terms and conditions relating to this agreement or its subject matter, not contained in this agreement, are excluded.
(d) We expressly disclaim all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
22.2 Limitation of liability and release
(a) Without limiting clause 22.1, you release us from any liability for:
(i) any improper access, copying or corruption of information before it enters or once it leaves our systems.
(ii) delays, disruptions or other faults in the Company Services or Works caused by factors beyond our reasonable control, including but not limited to problems with the public internet or your computer systems, the acts and omissions of third parties, acts of God such as fires, storms, floods, earthquakes, or changes to laws or government actions;
(iii) any accidental deletion of data by you or us, except where caused by our negligence; or
(iv) any damage to any of your equipment or software resulting from your use of the Company Services or Works.
(b) If any guarantee, warranty, term or condition is implied or imposed in relation to this agreement under any applicable legislation and cannot be excluded (a Non-Excludable Provision), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited (at our option) to:
(i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired;
(ii) in the case of software, supplying a workaround for defects;
(iii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again; and
(iv) in any case, refunding the fees paid by you.
(c) Subject to our obligations under the Non-Excludable Provisions and to the maximum extent permitted by law:
(i) our maximum aggregate liability for all claims under or in connection with this agreement or its subject matter, is limited to an amount equal to the amounts paid and payable by you under this agreement;
(ii) we are not liable for, and no measure of damages will, under any circumstances, include special, indirect, consequential, incidental or punitive losses or damages, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage; and
(iii) our liability to you under or in connection with this agreement or its subject matter is reduced to the extent that your acts or omissions, or those of a third party, contribute to or cause such liability.
(d) These limitations and exclusions apply regardless of the basis on which our liability arises, whether in contract, tort (including but not limited to negligence), in equity, under statute or on any other basis.
22.3 Your indemnity
You indemnify us and our directors, officers, employees and contractors against any claim, action, proceeding or demand (Claim) by a third party (including actions by government authorities) arising out of or relating to:
(a) any breach of your obligations under any of the following clauses of this agreement:
(i) clause 5 (Permitted use);
(ii) clause 6 (Information required to create an account);
(iii) clause 8 (Your acknowledgements and obligations regarding Company Services);
(iv) clause 16 (Your Content); and
(v) clause 17 (Intellectual property and ownership of Company Services);
(vi) clause 18 (Protection of Confidential Information); and
(vii) clause 24 (Responsibility for Your Users);
(b) our provision of access to Your Content as permitted by you;
(c) someone else using your password or account, whether with or without your knowledge;
(d) any breach of third-party rights by you;
(e) any unlawful, wilful or negligent act or omission by you; or
(f) any of our acts or omissions in reliance on false, misleading or incomplete information that you have provided to us, including without limitation all liability, damages, losses, costs, charges, outgoings, payments and expenses suffered or incurred in connection with any such Claim.
22.4 Our indemnity
During the term of this agreement we indemnify you against any Claim by a third party alleging that your use of the Company Services as provided and in accordance with this agreement and our instructions and policies infringes the Intellectual Property Rights of a third party, including without limitation all liability, damages, losses, costs, charges, outgoings, payments and expenses suffered or incurred in connection with any such Claim. For clarification, this indemnity does not apply to any Claim in relation to Your Content.
22.5 Operation of indemnities
Each indemnity in this agreement is a continuing obligation, separate and independent from the other obligations of the parties. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by this agreement.
22.6 Responsibilities of indemnified party
For the indemnities in clauses 22.3 and 22.4:
(a) the indemnified party must:
(i) promptly notify the indemnifying party of any such Claim;
(ii) provide full authority to the indemnifying party to assume control of the defence and settlement of any such Claim, provided that the indemnified party will retain the right to defend or settle any portion of a Claim to the extent that it is not within scope of an indemnity under clauses 22.3 and 22.4;
(iii) cooperate with the indemnifying party (at the indemnifying party’s expense) in relation to the Claim; and
(iv) not make admissions in relation to the Claim without the prior consent of the indemnifying party (such consent not to be unreasonably withheld); and
(b) if the indemnifying party does not assume control of the defence and settlement of the Claim within a reasonable period, then the indemnified party will have the right to defend the Claim in such manner as it may consider appropriate.
23 Dispute resolution
(a) If a dispute arises out of or relates to this agreement, then either party may in its discretion refer the dispute to arbitration, which must be conducted in accordance with the UNCITRAL Arbitration Rules (the Rules), and each of the additional sections set out in Division 3 of Part III of the International Arbitration Act 1974 (Cth) will also apply.
(b) The number of arbitrators appointed will be one. The arbitration will be conducted under the law governing this agreement, as set out in clause 25.13. The place of arbitration will be Perth, Australia and the language of the arbitration will be English.
(c) In the event of any conflict between this clause 23 and the Rules, this clause will take precedence over the Rules to the extent of the conflict.
24 Responsibility for Your Users
(a) You are responsible for ensuring that Your Users:
(i) accept and enter into these terms on their own behalf before accessing or using Company Services; and
(ii) comply with these terms.
(b) A breach of these terms by one of Your Users is deemed to be a breach by you.
25 Responsibility to obtain consents and approvals
If you use other equipment, including UAVs, in connection with the Company Services, then you must ensure that you obtain all necessary consents and approvals from any authority and comply with all relevant laws when using that equipment.
26 General
26.1 Entire agreement
This agreement constitutes the entire agreement between you and us in connection with the Company Services and will supersede all previous communications (either oral or written) between you and us with respect to the subject matter of this agreement.
26.2 Taxes and withholding
(a) Unless otherwise specified fees for Company Services are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, ‘GST’, use or withholding taxes, assessable by any jurisdiction (together, Taxes).
(b) You are responsible for paying all Taxes associated with your purchases of the Company Services, except for those taxes based on our net income. Should any payment for the Company Services be subject to withholding tax by any government, you will reimburse us for such withholding tax.
26.3 Redistribution or resale
You must not redistribute or resell any Company Service without first obtaining our consent and if consent is given you must comply with the terms of that consent.
26.4 Assignment and sublicensing
(a) You may not assign this agreement or any part of it, sublicense or transfer any of your rights under it, to a third party without first obtaining our consent.
(b) We may not assign this agreement or any part of it, or transfer any of our rights under it, without first obtaining your consent, except where the assignment or transfer is in connection with an internal restructure of our business or where we sell or divest some or all of our business.
26.5 Interest on outstanding amounts
(a) If any amount you owe to us remains unpaid, then we reserve the right to charge interest on the principal plus any interest already incurred.
(b) Interest will accrue at the rate of twelve percent per annum and be calculated monthly from the due date until the date of payment.
26.6 Compliance with orders and costs
If we are required to produce information, answer questions, attend court or otherwise comply with an order, subpoena or other legal or regulatory process that relates to the Company Services, then you must reimburse us for our time and expenses at our standard commercial rates.
26.7 Severance
Any part of this agreement that is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this agreement is not affected.
26.8 Waiver
If either party decides not to enforce a particular provision of this agreement in one instance, that decision does not prevent that party from subsequently enforcing the same or any other provision.
26.9 Survival
The following clauses and any associated definitions survive termination of this agreement for any reason, including termination under clause 21:
(a) clause 17 (Intellectual Property and ownership of Company Services);
(b) clause 18 (Protection of Confidential Information);
(c) clause 22 (Liability and indemnities);
(d) clause 23 (Dispute resolution);
(e) clause 24 (Responsibility for Your Users); and
(f) clause 25 (General).
25.10 Notices and consents
(a) Any notice or consent required to be given under this agreement must be given in writing.
(b) We may give notice to you including by messaging you through the Company Services, on our website or by email.
25.11 Authority to accept terms
Each person communicating acceptance of this agreement to us represents and warrants that they have full and legal authority to enter into this agreement and acknowledges and agrees that the agreement is enforceable against that party on whose behalf they are executing this agreement in accordance with its terms.
25.12 Governing law
Each party submits to the non-exclusive jurisdiction of the courts of Western Australia and the Commonwealth of Australia.
25.13 Quotes and proposals
If we give you a quote or proposal for Company Services, then:
(a) we will use our best endeavours to ensure that any information we provide or representations we make in a quote or proposal to you are accurate and complete as at the time the quote or proposal is given to you; and
(b) if you do not accept the quote or proposal within 30 days then in our discretion it may expire.
25.14 Complaints and feedback
We are always happy to discuss any suggestions you have about how the Company Services can be improved, or any complaint you may have about them. We will investigate and try to resolve any complaint as quickly as possible.