This 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 13.3.This Agreement applies whether you purchase Bluewater Services directly from Bluewater, or through a Reseller.
By signing an Order Form, or by using and accessing Bluewater Services, you indicate your agreement to be bound by this Agreement.
This agreement consists of the following parts:
If there is any conflict between the Order Form, these Terms of Use and the Documentation, to the extent of the inconsistency, the document higher in the list will prevail over a document lower in the list.
Bluewater grants the Customer a temporary, limited, non-exclusive, non-transferable and world-wide right to use the Bluewater Service, the Bluewater Materials and the Documentation solely for the Customer’s internal business operations.
Bluewater will:
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.
The Customer will not:
The Customer may permit Authorised Users to use the Bluewater Service.That usage is subject to the restrictions set out in the Agreement. Access credentials for the Bluewater Service may not be used by more than the number of users 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.
Third party facilities, including software programs, may be necessary for access to the Service. The Customer agrees that its right to make any use of such facilities is governed by the terms of the relevant third party licence or service agreement and not by this Agreement, and that title to such facilities remain with the applicable licensor. Customer acknowledges that any third party software provided within or contained in the Services is provided “as is” and without warranty of any kind.
In consideration of the supply of the Bluewater Services by Bluewater during the Subscription Term, the Customer agrees to pay the fees set out in the Order Form in accordance with the Order Form span.__group0.
If the Customer purchases any Bluewater Services through a Reseller, the Customer owes payment to the Reseller as agreed between the Customer and the Reseller. The Customer acknowledges that Bluewater may terminate the Customer’s rights to use the Bluewater Services if Bluewater does not receive its corresponding payment from the Reseller.
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.
The Customer will collect, use, handle and maintain all personal data contained in the Customer Data in compliance with applicable privacy and data protection laws, including the Privacy Act 1988 (Cth). The Customer warrants that it has all necessary consent to use and disclose personal information (as defined in the Privacy Act 1988 (Cth) ) as contemplated by this Agreement.
The Customer will maintain reasonable security standards for its Authorised Users’ use of the Bluewater Service. Bluewater will use reasonable endeavours to maintain reasonable security standards for the Bluewater Services. The Customer Acknowledges that use of the Bluewater Services involves transmission of information over networks that are not owned, operated or controlled by Bluewater, and Bluewater is not responsible for any lost, altered, intercepted or stored information across such networks.
The Initial Subscription Term of each of the Services is specified in the Order Form (“Initial Term”) and shall automatically renew for subsequent periods equal in length to the Initial Term (‘Renewal Term”) 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.
Upon the effective date of expiration or the termination of this Agreement:
Bluewater may suspend use of the Bluewater Service if:
Bluewater will notify the Customer of the suspension. Bluewater will limit the suspension in time and scope as reasonably possible under the circumstances.
Clauses 6, 7, 8, 9, 14, 12.3 and 12.4 will survive the expiration or termination of this Agreement.
The Customer warrants that it will comply with all applicable laws and regulations when using the Bluewater Service.
“Bluewater Platform” means Bluewater’s cloud-based mobility management “platform” offered under a subscription basis.
“Downtime” means the Total Minutes in the Month during which the productive version of the applicable Bluewater Platform is not available, except for Scheduled Downtimes.
"Incident" means (i) any single event, or (ii) any set of events, that result in Downtime.
“Maximum Available Minutes” are measured 24 hours at 7 days a week during a billing Month.
“Month” means a calendar month.
“Platform Availability” is calculated per billing Month using the following formula: Platform Availability % = (Maximum Available Minutes-Downtime)/(Maximum Available Minutes) x 100.
“Scheduled Downtime” Bluewater Platform unavailability due to planned servicing, maintenance or system deployment activities.
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 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.
The Customer will indemnify Bluewater against all liability, cost, damages and claims brought against Bluewater and its Affiliates and subcontractors by any third party related to the Customer Data, use by the Customer of the Services, breaches by the Customer of confidentiality or privacy, or infringement of Bluewater’s intellectual property rights.
To the extent permitted by law, Bluewater and its licensors will not be responsible 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.
To the extent permitted by law, Bluewater’s liability for a breach of this Agreement is limited to:
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:
Nothing in this Agreement excludes any rights a consumer as defined in schedule 2 to the Competition and Consumer Act 2010 (Cth) may have against Bluewater under the Competition and Consumer Act 2010 (Cth), if applicable.When supplied to a consumer, Bluewater’s Services come with guarantees that cannot be excluded under the Australian Consumer Law. Where a mandatory term or consumer guarantee is implied by law, our liability for breach of such term or consumer guarantee is limited, at our option, to:
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.
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.
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.
The restrictions imposed by this Agreement on the use or disclosure of Confidential Information do not apply to any Confidential Information that:
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 .
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.
In clause 11, 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).
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 a Reseller is not paid by the relevant due date.
If:
then Bluewater may span.__group0:
Nothing in this Agreement creates a relationship of employment, trust, agency, partnership or fiduciary between the parties.
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.
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.
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.
The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.
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.
This Agreement is governed by the law in force in New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.
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.
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.
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 (except in relation to an obligation to pay). 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.
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.
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.
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.
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:
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.
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.
Order Form means an order form concluded between Bluewater or a Reseller and the Customer which references these Terms of Use.
Reseller means a party holding an agreement with Bluewater Control as a non-exclusive reseller of Bluewater Services.
Service has the same meaning as Bluewater Services.
Subscription Term means the term of the Bluewater Service subscription of which the initial term is identified in the Order Form, including all renewals.
Terms of Use means this document.
In this Agreement: