This Bluewater Customer Agreement (the “Agreement”) is between you and Bluewater Control Pty Ltd (ABN 14 614 164 519) (“Bluewater”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. Bluewater may modify this Agreement from time to time, subject to the terms in clause 12.3.

By signing the Order Form, or by using and accessing Bluewater products, you indicate your agreement to be bound by this Agreement.

1. USAGE RIGHTS AND RESTRICTIONS
   1. Grant of rights

      Subject to the applicable fees being paid by or on behalf of the Customer to Bluewater for the implementation of or use of the Bluewater Service, Bluewater grants the Customer a non-exclusive, non-transferable and world-wide right to use the Bluewater Service, the Bluewater Materials and Documentation solely for the customer’s internal business operations.

   2. Authorised Users

      The Customer may permit Authorised Users to use the Bluewater Service. That usage is subject to the restrictions set out in the Oder Form. Access credentials for the Bluewater Service may not be used by more than the number stated in the Order Form or agreed to by Bluewater, but may be transferred from one individual to another if the original user is no longer permitted to use the Bluewater Service. The Customer is solely responsible for breaches of this Agreement caused by Authorised Users.

   3. Acceptable Use Policy

      The Customer will not:

      1. reverse engineer, copy, translate dissemble, decompile or make derivative works of the Bluewater Service;
      2. circumvent the operation or security of the Bluewater Service; or
      3. transfer any content or data that is unlawful or infringes any intellectual property rights of another person when using the Bluewater Service.
   4. Suspension of service

      Bluewater may suspend use of the Bluewater Service if continued use by the Customer may result in material harm to the Bluewater Service or its users. Bluewater will promptly notify the Customer of the suspension. Bluewater will limit the suspension in time and scope as reasonably possible under the circumstances.

   5. Third party services

      The Bluewater Service may include integrations with web services made available by third parties (other than Bluewater or its Affiliates) that are accessed through the Bluewater Service and subject to the terms and conditions with those third parties. Those third-party web services are not part of the Bluewater Service and this Agreement does not apply to them.

   6. Fees

      In consideration of the supply of the Bluewater Services by Bluewater during the Subscription Term, the Customer agrees to pay Bluewater the fees set out in the Order Form in accordance with this Agreement.

   7. Invoices and payment

      The Customer will pay the invoice within 21 days of the date of such invoice, or as set out in the Order Form.

2. BLUEWATER SERVICES
   1. Provision of services and support

      Bluewater will:

      1. provide the Bluewater Service as described in the Order Form;
      2. use reasonable security technologies in providing the Bluewater Service; and
      3. will comply with all applicable laws when providing the Bluewater Service.
   2. Types of Bluewater Services

      This Agreement governs (a) Bluewater’s cloud-based mobility management “platform” offered under a subscription basis; (b) Bluewater’s “managed platform” product, bundling managed services with the platform; and (c) any other services outlined in the Order Form offered outside our hosted platform (e.g. training, analysis and implementation).

   3. Modifications

      The Bluewater Service may be modified by Bluewater at any time. Modifications may include optional new features for the Bluewater Service, which the Customer may use subject to the then current Documentation.

3. CUSTOMER DATA AND PERSONAL DATA
   1. Customer Data

      The Customer is solely responsible for the accuracy and completeness of its own Customer Data. The Customer grants to Bluewater and its Affiliates, as well as subcontractors a non-exclusive right to process the Customer Data solely to provide and support the Bluewater Service.

   2. Personal Data

      The Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.

   3. Security

      The Customer will maintain reasonable security standards for its Authorised Users’ use of the Bluewater Service. Bluewater will implement reasonable and appropriate measures designed to help you secure Customer Data against accidental or unlawful loss, access or disclosure. Bluewater will back-up the Customer Data in accordance with the Service Level Agreement.

   4. Access to Customer Data
      1. During the Subscription Term, the Customer can:
         1. access its Customer Data at any time; and
         2. export and retrieve its Customer Data in a standard format subject to any technical limitations specified in the Documentation.
      2. Following the expiry of the Subscription Term, Bluewater will delete or overwrite the Customer Data unless an applicable law requires its retention. Any retained Customer Data will be held by Bluewater in accordance with the confidentiality provisions of this Customer Agreement.
4. TERM AND TERMINATION
   1. Term

      The Initial Subscription Term of each of the Services is specified in the Order Form (“Initial Term”) and shall automatically renew on a rolling 60-day basis following the initial term unless either party gives written notice 45 days prior to end of the initial term or any renewal term of its intention to cancel the Services described in applicable Order Form.

   2. Termination for cause
      1. A party may terminate this Agreement:
         1. upon 30 days’ prior written notice of the other party’s material breach (including, without limitation, the Customer’s failure to pay the Reseller any fees due for the Bluewater Service) unless the breach is rectified during that 30 day period; or
         2. immediately, if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches clauses 9 or 12.8.
      2. Bluewater may terminate this Agreement if the relevant Bluewater Services that this Agreement relates to are terminated between Bluewater and the Reseller.
   3. Effect of expiration or termination

      Upon the effective date of expiration or the termination of this Agreement:

      1. the Customer’s right to use the Bluewater Service and all Bluewater Confidential Information will end, and the Customer’s data will be deleted from Bluewater databases
      2. the Customer will pay all fees which are due and payable to Bluewater without set-off, counterclaim or condition.
   4. Survival

      Clauses 6, 7, 8, 9, 14, 12.3 and 12.4 will survive the expiration or termination of this Agreement.

5. Warranties
   1. Customer warranties

      The Customer warrants that it will comply with all applicable laws and regulations when using the Bluewater Service.

   2. Bluewater warranties

      Bluewater warrants that:

      1. the Bluewater Service will substantially conform to the specifications set out in the documentation during the Subscription Term;
      2. the Bluewater Service will materially conform to the specifications contained in the Order Form agreed to by Bluewater at the point in time the relevant services performed by Bluewater; and
      3. it will perform any service in a workmanlike and professional manner using resources with the skills reasonably required to perform such services.
   3. Remedy
      1. Bluewater will at its option:
         1. correct or replace the non-conforming Bluewater Service; or
         2. refund the value of the non-conforming Bluewater Service,

         provided the Customer (and/or the Reseller on the Customer’s behalf) notifies Bluewater in writing with a specific description of the Bluewater Services non-conformance with the warranty in clause 5.2 within the warranty period without undue delay and Bluewater validates the existence of such non-conformance.

      2. Clause 5.2(a) does not apply to trivial or non-material cases of non-conformance and is the Customer’s sole and exclusive remedy under that clause.
      3. To be clear, when the Bluewater Service is engaged through a Reseller, Bluewater will consult with the Reseller to define a reasonable amount by which the Reseller may reduce or refund the subscription fees or the fees for the non-conforming Service.
      4. Bluewater may fulfil its warranty obligations to either the Reseller or the Customer. If Bluewater elects to fulfil its warranty obligations to the Reseller, then the Customer will not have any claim against Bluewater for breach of the warranty set out in clause 5.2.
   4. Service availability
      1. Bluewater shall use commercially reasonable efforts to make the Service generally available in accordance with the SLA applicable to each Service (“Service Availability”).
      2. The Customer’s sole and exclusive remedy for Bluewater’s breach of the SLA is the issuance of a credit as described in the SLA, whereby the service level credit will be calculated based on the fee set out in the order form. The Customer must notify Bluewater or the Reseller in writing within 30 Business Days after each calendar month in that Bluewater does not meet the SLAs, so that Bluewater can follow Bluewater’s posted credit claim procedure. When the validity of the service credit is confirmed by Bluewater in writing, Bluewater will issue such credit.
   5. Warranty exclusions

      The warranties in clause 5.2 and 5.4 will not apply if:

      1. the Bluewater Service is not used in accordance with this Agreement or the Documentation;
      2. the non-conformance is caused by the Reseller, the Customer, another third party or by any product, database, content or service not provided by the Reseller; or
      3. the Bluewater Service was provided for no fee or is a trial licence of the Bluewater Service or both.
   6. Competition and Consumer Act 2010 (Cth)

      If Bluewater is in breach of a condition or warranty implied by the Competition and Consumer Act 2010 (Cth) (other than a condition or warranty implied by articles 51 to 53 of Schedule 2 of that Act), then the liability of Bluewater is limited to:

      1. if Bluewater supplied services, the cost of having the services supplied again; and
      2. if Bluewater supplied goods, the repair or replacement of the goods or the supply of equivalent goods.
   7. Disclaimer

      Except as expressly provided in this Agreement, neither Bluewater nor its subcontractors make any representations or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. The Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of Bluewater or product roadmaps in obtaining subscriptions for any Bluewater Service.

6. THIRD PARTY CLAIMS
   1. Claims brought against a Customer
      1. Bluewater will defend the Customer against claims brought against the Customer and its Affiliates by any third party alleging that the Customer’s and its Affiliates’ use of the Bluewater Service infringes or misappropriates a patent claim, copyright or trade secret right. Bluewater will indemnify the Customer against all damages finally awarded against the Customer (or the amount of any settlement Bluewater enters into) with respect to those claims.
      2. Bluewater’s obligations under clause 6.1(a) will not apply if the claim results from:
         1. the Customer’s breach of clause 1;
         2. use of the Bluewater Service in conjunction with any product or service not provided by Bluewater; or
         3. use of the Bluewater Service provided for no fee.
      3. If a claim is made or likely to be made, then Bluewater may:
         1. procure for the Customer the right to continue using the Bluewater Service under the terms of this Agreement; or
         2. replace or modify the Bluewater Service to be non-infringing without a material decrease in functionality.

      If those options are not reasonably available, then Bluewater may terminate the Customer’s subscription to the affected Bluewater Service upon written notice.

   2. Claims brought against Bluewater

      The Customer will defend Bluewater against all claims brought against Bluewater and its Affiliates and subcontractors by any third party related to the Customer Data. The Customer will indemnify Bluewater against all damages finally awarded against Bluewater and its Affiliate and subcontractors (or the amount of any settlement the customer enters into) with respect to those claims.

   3. Third-Party Claim Procedure
      1. The party against whom a third-party claim is brought will:
         1. promptly notify the other party in writing of any claim; and
         2. reasonably co-operate in the defence at the other party’s expense and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defence.
      2. The party that is obligated to defend a claim will have the right to fully control the defence.
      3. Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
   4. Exclusive remedy

      The provisions of clause 7 state the sole, exclusive and entire liability of the parties, their Affiliates, Business Partners and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third party intellectual property rights.

7. LIMITATION OF LIABILTY
   1. Exclusion of liability

      Bluewater and its licensors will not be responsible under this Agreement:

      1. if a Bluewater Service is not used in accordance with the Documentation;
      2. if the defect or liability is caused by the Reseller, the Customer or any third-party product or service;
      3. if the Bluewater Service is used in conjunction with any product or service not provided by Bluewater; or
      4. for any Customer activities not permitted under this Agreement.

      Bluewater and its licensors will not be liable for any claims or damages arising from inherently dangerous use of any of the Bluewater Services provided under or in connection with this Agreement.

   2. Limitation of liability

      The liability of a party for a breach of this Agreement is limited to:

      1. the subscription fees paid by the Customer in the 12 month period immediately preceding the breach of this Agreement if the breach occurs after the first 12 months of the Initial Subscription Term; or
      2. the anticipated fees to be paid by the Customer in the 12 month period of the Initial Subscription Term if the breach occurs during the first 12 months of the Initial Subscription Term.

      The foregoing provision does not apply to any damages resulting from:

      1. the unauthorised use or disclosure of Confidential Information;
      2. death or personal injury arising from a party’s gross negligence or wilful misconduct;
      3. a breach by Bluewater of clause 6.1; or
      4. a breach by the Customer of clause 6.2.
   3. Consequential loss

      To the maximum extent permitted by law, neither party will be liable to the other party for any consequential loss or damage. The following losses constitute consequential loss, whether they arise directly or indirectly from the relevant acts or omissions of a party:

      1. loss of profit, use, rental or other benefit;
      2. loss of production, revenue, actual or potential opportunity;
      3. damage to goodwill or reputation;
      4. loss of anticipated savings;
      5. business interruption; or
      6. any form of consequential loss not foreseeable at the time of entry into this Agreement.
   4. Extension to group members

      It is agreed that the provisions of clauses 7.1 and 7.2 will also apply for the benefit of any Bluewater Affiliates and their respective licensors.

8. INTELLECTUAL PROPERTY RIGHTS
   1. Bluewater ownership

      Bluewater, its Affiliates or its licensors own all intellectual property rights in and related to the Bluewater Service, the Bluewater Materials, Documentation, design contributions, related knowledge or processes and any derivative works of them. All rights not expressly granted to the Customer are reserved to Bluewater, its Affiliates or its licensors.

   2. Customer ownership

      The Customer retains all rights in and related to the Customer Data. Bluewater may use the Customer Data for the sole purpose of providing the Bluewater Service.

   3. Non-assertion of rights

      The Customer undertakes that it will not assert any right, title or interest in the Bluewater Service, the Bluewater Materials or Documentation other than the right to use those products or services in accordance with this Agreement. The Customer undertakes that it will not register a security interest on the Personal Properties Securities Register in the Bluewater Service, the Bluewater Materials or Documentation.

9. CONFIDENTIALITY
   1. Use of Confidential Information
      1. The receiving party will keep confidential all Confidential Information of the disclosing party.
      2. The receiving party will not disclose the Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorised Users whose access is necessary to enable it to exercise its rights or perform its obligations under this Agreement and who are under an obligation to keep that information confidential. Notwithstanding the foregoing provision, the Customer will not disclose the Agreement or the pricing to any person without the prior written consent of Bluewater.
      3. It is agreed that all Confidential Information of either party disclosed prior to the execution of and entry into this Agreement will be subject to the provisions of clause 9.
      4. If the receiving party is required by law to disclose the Confidential Information of the disclosing party, then the receiving party must promptly notify the disclosing party of that matter and must seek appropriate orders or undertakings from the Court or relevant government agency preserving the confidentiality of that information. The receiving party must also disclose the minimum amount of Confidential Information to the extent permitted by law.
      5. The receiving party must promptly return or destroy all Confidential Information of the disclosing party on the earlier of the termination of this Agreement or a written request to do so from the disclosing party.
   2. Exceptions

      The restrictions imposed by this Agreement on the use or disclosure of Confidential Information do not apply to any Confidential Information that:

      1. is independently developed by the receiving party without reference to the disclosing party’s Confidential Information;
      2. is generally available to the public without a breach of this Agreement by the receiving party;
      3. at the time of disclosure, was known to the receiving party free of any obligation of confidentiality; or
      4. the disclosing party agrees in writing may be disclosed by the receiving party.
   3. Publicity

      Bluewater may identify the Customer in its promotional materials. The Customer may request that Bluewater stop doing so by submitting an email to customersuccess@bluewatercontrol.com .

10. GST

    1. The parties agree that all amounts payable under this Agreement are expressed on a GST exclusive basis. If GST is payable in relation to a Taxable Supply, then the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement.

    2. In clause 10, the terms “GST”, “Taxable Supply” and “Input Tax Credit” have the meaning given in A New Tax System (Goods and Goods Tax) Act 1999 (Cth).

11. RELATIONSHIP WITH RESELLERS
    1. Non-payment by Reseller

       Bluewater may at its sole discretion suspend the Customer’s use of the Bluewater Service or terminate this Agreement if an applicable fee or other amount payable by or on behalf of the Customer is not paid by the relevant due date.

    2. Termination of reseller relationship for orders relating to the Customer

       If:

       1. the Reseller terminates all orders relating to the Customer;
       2. Bluewater terminates any of the Reseller’s orders relating to the Customer for cause; or
       3. the contractual relationship between Bluewater and the Reseller relating to the sale of Bluewater Services is terminated,

       then Bluewater may (depending on the Customer’s choice):

       1. directly provide the affected Bluewater Service to the Customer pursuant to Bluewater’s then current terms and conditions for the Bluewater Service for a mutually agreed fee; or
       2. recommend to the Customer other resellers or third parties for the provision of the affected Bluewater Service.
    3. Independence of Reseller

       Unless otherwise identified in the Order Form:

       1. the Reseller is not an agent of Bluewater;
       2. the Reseller is an independent entity with no authority to bind Bluewater or to make representations or warranties on Bluewater’s behalf; and
       3. Bluewater will not be liable for reasonably relying on the accuracy or reliability of written information provided by the Reseller in making any decision that would give Bluewater ground to suspend the Bluewater Service or terminate the Agreement.
    4. No representations or warranties

       Bluewater makes no representations or warranties as to such authorised distributor or reseller, or any other third party, related to the performance of the products or services of such entities, and fully disclaims any such warranties in accordance with clause 6 of this Agreement.

12. GENERAL PROVISIONS
    1. Relationship

       Nothing in this Agreement creates a relationship of employment, trust, agency, partnership or fiduciary between the parties.

    2. Entire agreement

       This Agreement contains the entire agreement and understanding between the parties in respect of its subject matter and supersedes any prior agreement or understanding between the parties on anything connected with that subject matter.

    3. Variation or amendment

       Bluewater may modify this Agreement from time to time. If a revision meaningfully reduces your rights, Bluewater will use reasonable efforts to notify the Customer (by, for example, sending an email to the Customer’s account contact in your Order Form, or in the Product itself). If Bluewater modifies the Agreement during your Subscription Term, the modified version will be effective upon the next renewal of a Subscription Term. In this case if the Customer objects to the updated Agreement, as your exclusive remedy, then the Customer may choose not to renew, including cancelling any terms set to auto-renew. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.

    4. Severability

       Any provision of, or the application of any provision of, this Agreement that is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

    5. No merger

       The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.

    6. No waiver

       Waiver of any right, power, authority, discretion or remedy arising on default under this Agreement must be in writing and signed by the party granting the waiver. A failure or delay in exercise, or partial exercise, of a right, power, authority, discretion or remedy created or arising on default under this Agreement does not result in a waiver of that right, power, authority, discretion or remedy.

    7. Applicable law and jurisdiction

       This Agreement is governed by the law in force in New South Wales and the Commonwealth of Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State and the Commonwealth of Australia.

    8. Assignment

       This Agreement may not be assigned or transferred by the Customer without the prior written consent of Bluewater. Bluewater may assign or transfer this Agreement to an Affiliate without having to obtain the prior written consent of the Customer.

    9. Subcontracting

       Bluewater may subcontract all or part of the Bluewater Service to any of its Affiliates or third parties. Bluewater is responsible for all breaches of this Agreement caused by its Affiliates or third parties.

    10. Force Majeure

        It is agreed that a delay in the performance that is caused by conditions beyond the reasonable control of the performing party is not a breach of this Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance. The foregoing provisions do not apply to an obligation to pay any amounts due and payable under this Agreement.

    11. Notices

        All notices must be in writing and given to the address set out in the Order Form.A notice may be sent by post, facsimile transmission or email to the recipient’s address set out in the Order Form.

13. DEFINITIONS AND INTERPRETATION
    1. Definitions

       In this agreement:

       Affiliates of a party means any legal entity in which a party, directly or indirectly, holds more than 50% of the entity’s shares or voting rights. To be clear, any legal entity will be treated as an Affiliate of the relevant party for the purposes of this Agreement so long as that party maintains more than 50% of that entity’s shares or voting rights.

       Agreement is defined in the Order Form.

       Authorised Users means any individual to whom the Customer grants access authorisation to use the Bluewater Service that is an employee, agent, contractor or representative of the Customer or the Customer’s Affiliates.

       Bluewater means Bluewater Control Pty Ltd (ACN 614 164 519).

       Bluewater Materials means any materials provided or developed by Bluewater (independently or with a Reseller’s and/or a Customer’s co-operation) in the course of the performance under this Agreement, including in the delivery of any support or Bluewater Services to the Customer. To be clear, the Bluewater Materials do not include the Customer Data, Customer Confidential Information or the Bluewater Service.

       Bluewater Service means (a) Bluewater’s cloud-based mobility management “platform” offered under a subscription basis; (b) Bluewater’s “managed platform” product, bundling managed services with the platform; and (c) any other services outlined in the Order Form offered outside our hosted platform (e.g. training, analysis and implementation) provided by Bluewater to the Customer under the Order Form.

       Order Form means the “Order Form” concluded between Bluewater and the Customer which references this Customer Agreement

       Business Days means a day on which banks are open for business in Sydney.

       Business Partner means a legal entity that requires use of a Bluewater Service in connection with Customer’s and its Affiliate’s internal business operations. These may include, customers, distributors, service providers or suppliers of the Customer.

       Confidential Information means:

       1. with respect to the Customer:
          1. the Customer Data;
          2. the Customer marketing and business requirements;
          3. the Customer implementation plans; or
          4. the Customer financial information;
       2. with respect to Bluewater:
          1. the Bluewater Service, Documentation, Bluewater Materials and analyses under clause 2.3; and
          2. information regarding Bluewater research and development, product offerings, pricing and availability;
       3. Confidential Information of either Bluewater or the Customer also includes information which the disclosing party protects against unrestricted disclosure to others that:
          1. the disclosing party or its representatives designates as confidential at the time of disclosure; or
          2. should reasonably be understood to be confidential given the nature of the information and circumstances surrounding its disclosure.

       Customer means the party identified in the Order Form

       Customer Confidential Information means Confidential Information of the Customer.

       Customer Data means any content, materials, data and information that Authorised Users enter into a system of a Bluewater Service or that Customer derives from its use of and stores in the Service such as Customer specific reports.To be clear, Customer Data and its derivatives will not include Bluewater’s Confidential Information.

       Customer Agreement means this document.

       Documentation means the then current technical and functional documentation of Bluewater as well as any descriptions of the roles and responsibilities for the Bluewater Services which is made available to the Customer with the Bluewater Service.

       Initial Subscription Term means the initial term of a Bluewater Service subscription which is identified in the applicable Order Form.

       Reseller means a party holding an agreement with Bluewater Control as a non-exclusive reseller of Bluewater Services.

       SLA has the meaning given to it in the Order Form.

       Subscription Term means the term of the Bluewater Service subscription of which the initial term is identified in the Order Form, including all renewals.

    2. Interpretation

       In this Agreement:

       1. the singular includes plural and conversely;
       2. headings are used for convenience only and do not affect interpretation of this Agreement;
       3. where any word or phrase is given a defined meaning, any other grammatical form of that word or phrase has a corresponding meaning;
       4. references to clauses, schedules, or annexures refer to clauses, schedules or annexures of this Agreement;
       5. a reference to any party to this Agreement or any other agreement or document includes the party's successors and permitted assigns;
       6. the words “including”, “for example” or similar expressions are not words of limitation; and
       7. no rule of construction of documents shall apply to the disadvantage of a party, on the basis that the party put forward this document or any relevant part of it.