TERMITE REGISTER

USER TERMS AND CONDITIONS

BACKGROUND

Welcome and thank you (“User”) for using the Termite Register app.

Infestation Tracking Systems Pty Ltd ABN 64 163 630 199 of 40 White Street, Kilmore, VIC 3764 (“ITS”) owns and operates the termite infestation alarm and tracking software application known as the “Termite Register” (the “App”) and provides related products and services in connection the App from time to time (the “Services”).

When the User accesses or uses the App and Services, it agrees to these Terms and Conditions as amended by ITS and notified to the User from time to time (the “Agreement”). By continuing to access or use the App or Services after notification of any amendments, the User acknowledges and agrees that this conduct evidences its continued acceptance of this Agreement (as amended).

The User is entering into a legally binding agreement, so please take a moment to read through the Agreement carefully. To agree to this Agreement, click “agree”, “sign up” or “register”. If you do not agree to this Agreement, do no click “agree”, “sign up” or “register” and do not use the App or the Services.

By using the App and Services, the User also agrees to ITS’s Privacy Policy (available [here]), which covers how ITS collects, uses, shares, and stores personal information.

 

AGREED TERMS

  • Parties
    • The parties to this agreement

This Agreement is between ITS and the User (the “Parties”).

  • The App and Services
    • Provision and use of the App and Services
      • ITS may provide the App and Services in the manner determined by ITS in its absolute discretion, so long as in doing so, ITS does not breach any material provision of this Agreement.
      • ITS may, at any time, take any action it considers reasonably necessary to protect its interests in connection with the App or Services, including by suspending, terminating or imposing conditions on, the User’s use of the App or Services (without any obligation to refund or remit any fees paid or due and payable by the User under this Agreement), including if ITS reasonably believes that the App or Services have been used (or may be used) by the User in a manner which is likely to have an adverse effect on ITS, an End User or a third party.
    • Disclaimer
      • The App and Services are provided on an ‘as is, with all faults and as available’ basis and, to the extent permitted by law, without any warranties of any kind, either expressed or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose, warranties of title or non-infringement, or warranties arising from course of dealing or custom of trade.
      • ITS makes no representation or warranty that any content of the App or Services is accurate, complete, appropriate, reliable or timely.
      • ITS also makes no representation or warranty that the User’s access to and use of the App or Services will be uninterrupted, secure, error-free, free of viruses or unauthorised code or other harmful components.
      • ITS reserves the right to discontinue operating the App or Services at any time without notice.
      • The App or Services may contain links to web sites or other materials operated by, or associated with, third parties. These sites or materials are not under ITS’s control and ITS is not responsible for the contents of any of these linked sites or materials. The appearance of any product, service, web site link or materials on the App or as part of the Services does not imply endorsement, approval or warranty by ITS, and ITS expressly disclaims all Claims in connection with such products, services or web site links or materials.
      • The App and Services are intended to provide only an indication of the possibility or likelihood of termite infestation and it is not conclusive evidence that termite infestation exists. The App and Services are not a substitute for a physical pest inspection and the User should seek the advice and/or services of a qualified pest inspector to confirm the termite infestation characteristics (e.g. presence, absence or extent of termites) at its property.

3                Account

  • Establishment of Account
    • The User may apply for, create or register an account to use the App or Services (“Account“).
    • When applying, creating or registering an Account, the User must provide ITS with all requested information and must ensure that all such information provided is accurate, true, complete and current at all times. ITS reserves its right to require further details or information from the User in order to verify the accuracy of the details or information.
    • ITS may in its absolute discretion:
      • approve a User’s Account;
      • reject a User’s Account; or
      • render a User’s Account as pending.
    • The User must safeguard and keep secure, and not disclose or reveal (without ITS’s prior written permission), its Account information (including any passwords) or access to its Account to anyone else.
    • The User is solely responsible for maintaining the confidentiality and security of its Account, and for all activities that occur on or through its Account.
    • The User agrees to immediately notify ITS of any security breach or unauthorised access of its Account and the ITS shall not be responsible for any Claims, arising out of, or in connection with, the unauthorised use of its Account.
    • ITS may, in its absolute discretion, view all information contained within the User’s Account to ensure compliance with this Agreement.

4                Fees

  • Subscriptions
    • Certain parts of the App or Services may be provided on a subscription basis (“Subscriptions”), the details and fees for which will be provided or made available by ITS from time to time. As at the date of this Agreement, the Subscriptions available are contained in part 1 of Annexure A. ITS reserves the right to change the Subscriptions available from time to time.
    • Subscriptions are non-refundable unless required by law.
    • Subscriptions will automatically renew for the same period of time as the previous Subscription period, unless:
      • the User cancels the automatic Subscription renewal at least 30 days prior to the end of the then current Subscription period; or
      • ITS cancels the Subscription in accordance with this Agreement.
    • Unless otherwise specified, ITS’s Subscriptions are on an annual basis.
    • Automatic Subscription renewals may be cancelled by the User either through its Account or by contacting ITS’s customer support team at [insert contact details].
    • ITS may, in its absolute discretion and at any time, modify the Subscription fees for the Subscriptions available. Any Subscription fee change will become effective at the end of the then current Subscription period. In the event of an increase to the Subscription fees, any renewed Subscription (including automatic renewal) will continue with the new increased Subscription fees, unless the User cancels the automatic Subscription renewal in accordance with this Agreement. The User’s continued use of the App or Services after the Subscription fee change comes into effect constitutes its agreement to pay the changed Subscription fee amount.
    • ITS reserves the right to refuse or cancel the User’s request or order for Subscriptions at any time:
      • for reasons including product or service availability, errors in the description or fees or price of the product or service, error in the request or order, or other reasons; or
      • if fraud or an unauthorised or illegal transaction is suspected.
    • In-app purchases
      • Certain parts of the App or Services may include functionality that enables the User to receive additional products, services or credits by way of in-app purchases (“In App Purchases“), the details and fees for which will be provided or made available by ITS from time to time. As at the date of this Agreement, the In App Purchases are contained in part 2 of Annexure A. ITS reserves the right to change the In App Purchases available from time to time.
      • In App Purchases are non-refundable unless required by law.
      • ITS reserves the right to refuse or cancel the User’s request or order for In App Purchases at any time:
        • for reasons including product or service availability, errors in the description or fees or price of the product or service, error in the request or order, or other reasons; or
        • if fraud or an unauthorised or illegal transaction is suspected.
      • Payment
        • The User agrees to pay in advance for any paid products and services requested through the App or Services (plus any applicable taxes such as GST), including Subscription fees and In-App Purchase fees.
        • A valid payment method, including PayPal, is required to process the payment, including Subscription fees and In-App Purchase fees.
        • If required, the User must provide ITS with accurate and complete billing information, including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, the User automatically authorises ITS to charge all fees incurred through its Account to any such payment instruments, and the User grants ITS the right to provide the information to third parties for the purposes of facilitating the completion of the purchase.
        • Should automatic billing fail to occur for any reason, ITS will issue an electronic invoice indicating that the User must proceed manually, within a certain deadline date, with the full payment corresponding to the Subscription fee or In App Purchase fee (as the case may be) as indicated on the invoice.
        • Failure by the User to pay any fees under this Agreement to ITS when due will constitute a material breach of this Agreement and may result, in the absolute discretion of ITS, in the immediate termination of this Agreement and access to the App and Services, as well as any other additional action or remedy that ITS deems necessary to be undertaken as permitted by law.

5                User obligations

  • Use of App and Services
    • The User may, unless otherwise agreed by ITS, only use the App and Services for personal or non-commercial purposes, namely:
      • registering one or more property addresses on the App, which be the subject of a Pest Alarm;
      • contacting pest inspectors or pest control businesses whose contact details are specified in an e-Card which is made available to the User through the App or Services; and
      • searching the register within the App.
    • The User must not, unless allowed in accordance with clause 1(a) or otherwise agreed by ITS:
      • collect, store, copy, reproduce, modify, publish or distribute any information available on the App or provided as part of the Services, including, text, images, materials, data, photographs, logos and graphics (collectively, Content);
      • disclose any Content to a third party;
      • disrupt or interfere with the App or Services;
      • use the App, Services or any Content in a manner which may infringe the intellectual property rights of ITS or a third party; or
      • use the App or Services in a manner which may be unlawful, harmful, illegal, fraudulent or which breaches or may breach this Agreement.
    • ITS does not grant the User any rights to use the Content for any purpose other than as permitted by this Agreement.
    • The User must comply with all laws.
    • The User warrants that User’s Systems will be, at all times, a safe online environment and will not, without limitation, cause or contribute to the propagation of Malicious Code.
    • The User’s use of the App and Services is at its own risk. The User is responsible for taking all precautions necessary to protect itself against any Claims that may arise by virtue of its use of the App or Services.
    • Neither ITS, its Personnel, nor anyone else involved in creating, producing or delivering the App or Services, or the materials contained therein, assumes any liability or responsibility for the accuracy, completeness or usefulness of any information provided therein, nor, to the extent permitted by law, shall any of them be liable for any direct, indirect, incidental, special, consequential or punitive damages arising out of the User’s use of, or inability to use, the App or Services.
    • The User must not in any way interfere with, or attempt to interfere with, the proper operation of the App or Services.
    • The User agrees not to take any action that imposes an unreasonable burden on ITS’s infrastructure or otherwise tampers or interferes with the App or Services or ITS’s systems or data or those of any third party via the App of Services.

6                Confidential Information and Intellectual Property Rights

  • Protection of confidential information
    • The User must:
      • not directly or indirectly, use or attempt to use any of ITS’s Confidential Information in any manner which may injure or cause loss either directly or indirectly to ITS or which may be likely to do so;
      • keep ITS’s Confidential Information confidential and not disclose any of such Confidential Information to any unauthorised person; and
      • immediately on demand from ITS, return any of ITS’s Confidential Information in the User’s possession or control, delete any electronic copies of such Confidential Information and cease to use such Confidential Information or any part of it.
    • The User may disclose Confidential Information:
      • if required to make such disclosure by any court of competent jurisdiction;
      • pursuant to any court order; or
      • pursuant to any law or regulation having the force of law.
    • Each Party acknowledges that monetary damages alone would not be adequate compensation to ITS for a breach of this clause 1 and that ITS is entitled to seek an injunction from a court of competent jurisdiction if the User fails to comply or threatens to fail to comply with this clause 6.1.
  • Intellectual property rights
    • ITS is the sole owner (or licensee) of all Intellectual Property Rights (whether such rights are capable of registration or otherwise) subsisting in the App and the Services (ITS Intellectual Property Rights).
    • Nothing in this Agreement gives the User any legal or beneficial interest in the ITS Intellectual Property Rights.
    • The User must not, without ITS’s prior written consent, use or utilise in any manner, including by copying, reproducing or disclosing the ITS Intellectual Property Rights for any purpose other than as required to access and use the App or Services in accordance with this Agreement.
    • The User agrees to cease using and return to ITS all ITS Intellectual Property Rights upon termination of this Agreement, or when expressly demanded by ITS.

7                Privacy

ITS is bound by the Australian Privacy Principles set out in the Privacy Act 1988 (Cth) (“Privacy Act”). A copy of our privacy policy can be viewed [here].

8                Liability

  • The User acknowledges and agrees that, except to the extent required by law:
    • ITS has given the User no warranty as to the quality or fitness of the App or Services for any particular purpose or that the App or Services are provided with due care and skill;
    • any term, warranty, condition, representation or obligation, whether express or implied, and whether as to quality or fitness for any particular purpose, or otherwise relating to the App or Services, which is not expressly stated herein is expressly excluded from this Agreement; and
    • ITS and its Personnel accept no responsibility or liability, whether in contract or tort (including negligence or breach of statutory duty) or otherwise, for any Claim whether direct, indirect or consequential (including for loss of profits, business or anticipated savings and legal costs and expenses) arising directly or indirectly out of, or in connection with, the App or Services, and the User releases and forever discharges ITS and its Personnel from all such Claims in respect thereof.
  • Without derogating from clause 8(a), neither ITS nor any of its Personnel will be responsible or liable for any Claim that the User may suffer or incur in the event of any failure or interruption of the App or Services, or resulting from the act or omission of any other party involved in making the App, or the information contained therein available to the User, or from any other cause relating to the User’s access to, or inability to access, the App or Services, whether or not the circumstances giving rise to such cause may have been within ITS’s control or the control or any vendor providing software or services support to ITS.
  • Nothing in this Agreement, whether express or implied, shall be taken to exclude any non‑excludable conditions, warranties or rights contained in any applicable State or Commonwealth legislation.
  • If ITS is held liable in respect of the App or Services for a breach of a guarantee arising under the Competition and Consumer Act 2010 (Cth) or equivalent laws of any relevant jurisdiction or for any liability whatsoever arising out of or in connection with this Agreement, to the extent permitted by law, any liability for such breach will be limited, at ITS’s option, to any of the following as determined in the absolute discretion of ITS:
    • a replacement of the Services or the supply of equivalent Services;
    • the payment of the value of the Services; or
    • the payment of the costs of having the Services resupplied.
  • Notwithstanding the foregoing, to the extent permitted by law, the total liability of ITS and its Personnel (if any) for any Claim arising in connection with the App, the Services or this Agreement shall not exceed the lesser of the amount of fees paid by the User for the particular product or service provided by ITS relating directly to the Claim or $1,000.

9                Indemnity

  • The User indemnifies and keeps indemnified ITS and its Personnel from and against all Claims suffered or incurred by ITS, its Personnel or any third party in connection with:
    • the use of the App or the Services;
    • a breach by the User of any of the terms and conditions contained in this Agreement; and
    • any acts or omissions by the User.
  • The indemnity in this clause 9 is for the benefit of ITS and its Personnel. Each of these individuals or entities shall have the right to assert and enforce these provisions directly against the User on its own behalf.

10             Dispute resolution

  • Negotiation and mediation before litigation
    • The Parties must comply with the dispute resolution procedure described in this clause 10.
    • Subject to clause 10(d), neither Party will be entitled to commence any litigation or arbitration in relation to any matter arising directly or indirectly out of this Agreement until they have complied with the following dispute resolution procedure:
      • where a dispute arises between the Parties, a Party may serve a written notice (“Dispute Notice”) on the other Party detailing the nature of the dispute;
      • the Parties must make reasonable efforts to resolve the dispute by negotiation;
      • if the Parties are unable to resolve the dispute within 28 days of the receipt of the Dispute Notice, either Party may, by notice in writing to the other Party (“Mediation Notice”) require that the dispute be referred to mediation;
      • within 14 days of receipt of the Mediation Notice, the dispute will be referred to a mediator as agreed between the Parties, and failing agreement, to a mediator appointed by the President of the Law Institute of Victoria or his or her nominee on the application of either Party;
      • the costs of the mediator will be paid equally by the Parties but otherwise the Parties must pay their own costs of the mediation (unless the mediator determines otherwise);
      • the Parties must approach the mediation in good faith and make a reasonable attempt to settle the dispute by mediation and within the framework determined by the mediation.
    • If the mediation fails to settle the dispute, the Parties may institute litigation or arbitration.
    • Nothing in this clause 10 will prevent either Party from seeking urgent interlocutory relief where failure to obtain such relief would cause irreparable damage to that Party.

11             Termination

  • Termination of use of App
    • ITS may, in its absolute discretion, at any time and without notice, terminate the User’s access to the App or Services.
    • ITS reserves the right to suspend or impose conditions on access or use of the App or Services if it believes, acting reasonably, that:
      • the User has breached any term of this Agreement; or
      • any acts or omissions of the User may adversely affect ITS or bring ITS or its business into disrepute.
    • ITS may also choose to issue the User with a warning in relation to their use of the App or Services without prejudice to ITS’s rights to suspend, impose conditions, or terminate access or use of the App or Services.
  • Immediate Termination

Either Party may terminate this Agreement with immediate effect by giving notice to the other Party if:

  • that other Party breaches any provision of this Agreement and fails to remedy the breach within 14 days after receiving notice requiring it to do so;
  • that other Party breaches a material provision of this Agreement where that breach is not capable of remedy; or
  • any Insolvency Event occurs in relation to that other Party.
  • Insolvency Events

Each Party must notify the other Party immediately if an Insolvency Event occurs in relation to that Party.

  • Accrued Rights and Remedies

Termination of this Agreement under this clause 11 does not affect any accrued rights or remedies of either Party.

  • Survival

Any clause which, by its nature, is intended to survive termination shall survive termination of this Agreement, including clauses 2.2, 6, 8 and 9.

12             Goods and services tax

  • Definitions

For the purposes of this clause 12, “acquisition”, “consideration”, “GST”, “GST Law”, “input tax credit”, “supply”, “taxable supply” and “tax invoice” have the meaning given by section 195-1 of the GST Act.

  • GST Exclusive Consideration

Except where express provision is made to the contrary, the consideration payable by a Party for a taxable supply made by the other Party pursuant to this Agreement represents the value of the taxable supply and is expressed exclusive of any GST.

  • Consideration to be increased by GST amount

Notwithstanding any other provision of this Agreement, if a Party makes a taxable supply in connection with this Agreement (the “supplier“), then the Party liable to pay for the taxable supply (the “recipient“) must also pay, at the same time (unless the supply is incorrectly treated as not being a taxable supply, in which case the GST payable in relation to the taxable supply is to be paid by the recipient on receipt of a revised tax invoice from the supplier) and in the same manner as the GST exclusive consideration is otherwise payable, an additional amount equal to the amount of any GST payable in respect of the taxable supply.

  • Further and additional payments

Where this Agreement requires the recipient of a taxable supply to make further and additional payments, whether by way of reimbursement or contribution or other payments, for an amount paid or payable by the supplier in respect of an acquisition from a third party for which the supplier is entitled to claim an input tax credit, the additional amount payable by the recipient will be reduced by the amount of the input tax credit and increased by the amount of GST payable by the supplier in respect of the supply.

  • Tax Invoice

The right of either Party to payment under this clause 12 is subject to a valid tax invoice, which complies with the GST law, being issued and delivered by the supplier of the taxable supply to the recipient.

13             Notices

  • Formal notices under this Agreement

All notices, requests, demands, consents, approvals, offers, agreements or other communications (“Notices”) given by a Party under or in connection with this Agreement must be:

  • in writing;
  • signed by the Party giving Notice or a person duly authorised by that Party or, where transmitted by e‑mail, sent by the Party giving Notice or a person duly authorised by that Party;
  • directed to the recipient’s address stipulated in this Agreement or as otherwise notified from time to time; and
  • hand delivered, sent by prepaid post or transmitted by e‑mail or facsimile to the recipient’s address stipulated in this Agreement or as otherwise notified from time to time.
  • Deemed receipt of Notices

A Notice given in accordance with this clause 13 is taken as having been given and received:

  • if hand delivered at or before 4.30 pm on a Business Day, on delivery, otherwise at 9.30 am on the next Business Day;
  • if sent by prepaid post:
    • within Australia, on the second Business Day after the date of posting;
    • to or from a place outside Australia, on the seventh Business Day after the date of posting;
  • if transmitted by e‑mail, on the first Business Day after the date of transmission; or
  • if transmitted by facsimile at or before 4.30 pm on a Business Day, at the time recorded on the transmission report indicating successful transmission of the entire notice, otherwise at 9.30 am on the next Business Day.

14             General

  • Entire agreement

This Agreement constitutes the entire agreement between the parties in relation to its subject matter.  All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this Agreement and have no further effect.

  • Force Majeure
    • Notwithstanding anything to the contrary in this Agreement, ITS will not be liable or responsible to the User for any failure to perform or delay in performance of any of its obligations under this Agreement if such failure or delay is due or attributable to any act of God, orders, acts or restraints or restrictions or regulations imposed by government, acts of war (both declared and undeclared), warlike conditions, hostilities, riots, civil commotion, strikes (other than strikes of its own employees), terrorist acts, lockouts, casualty events (including but not limited to fire, explosion, electrocution, power supply, breakdown of systems and infrastructure, or mechanical failures), embargoes, acts or omissions of the User or any other cause or circumstance of whatsoever nature not caused by and beyond the reasonable control of ITS (“Force Majeure”).
    • ITS, being prevented from performing its obligations by Force Majeure, must make all reasonable efforts to resume performance as soon as possible and must take reasonable steps to mitigate the effect of the Force Majeure.
  • Assignment
    • The Parties acknowledge and agree that ITS may subcontract or assign any rights or obligations in relation to this Agreement, the App or the Services, to a third party without the User’s consent.
    • The User must not assign, sub-contract, transfer or otherwise deal with this Agreement or any right under this Agreement without the prior written consent of ITS, which consent must not be unreasonably withheld.
  • Severability

Part or all of any provision of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.

  • Further assurances

Each Party must do or cause to be done all things necessary or reasonably desirable to give full effect to this Agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).

  • Governing law and jurisdiction

This Agreement will be governed by and construed in accordance with the laws in force in the State of Victoria and each Party irrevocably submits to the non-exclusive jurisdiction of the courts of that State.

15             Interpretation

  • Words and expressions

In this Agreement, unless the context requires otherwise:

  • headings are for convenience and do not affect interpretation;
  • the “Background” to this Agreement is intended to be legally binding on the Parties;
  • a reference to “$”, “A$”, “AUS $” or “dollar” is a reference to Australian currency, unless the context requires otherwise;
  • a reference to a time is a reference to Australian Eastern Standard Time or Australian Eastern Daylight Time, whichever is appropriate in the context;
  • a reference to a party includes its executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
  • no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it;
  • the words “including”, “for example”, “such as” or other similar expressions (in any form) are not words of limitation;
  • if:
    • the day on or by which any act, matter or thing is to be done is a day other than a Business Day, the act, matter or thing will be done on the next Business Day; and
    • any money falls due for payment on a date other than a Business Day, that money will be paid on the next Business Day (without interest or any other amount being payable in respect of the intervening period).

16             Definitions and Interpretation

  • Definitions

In this Agreement unless the context otherwise requires:

Agreement” means these Terms and Conditions as amended by ITS and notified to the User from time to time.

  • App” has the meaning given to it in the “Background” section of this Agreement.
  • User” means the person who downloads and/or uses the App or Services.
  • User’s System” means the User’s computer system, including its standard operating environment, hardware, applications, network connections and any cloud-based environments accessed by the User from time to time.
  • Business Day” means a day on which banks are open for general banking business in Melbourne, excluding Saturdays, Sundays and public holidays.
  • Claim” means any claim, cost, damages, debt, expense, liability, loss, suit, notice, demand, action, cause of action, proceeding, litigation, investigation or judgment, however it arises and whether it is present or future, fixed or unascertained, actual or contingent, and whether or not it is in respect of legal or other costs, damages, expenses, fees or losses.
  • Confidential Information” means all of the Information, other than any part of the Information that:
    • is or becomes generally available to the public other than as a result of a breach by the User of this Agreement;
    • was known to the User on a non‑confidential basis before the User received the Information; or
    • becomes available to the User on a non‑confidential basis from another source not in breach of an obligation of confidence owing by that source to ITS (of which the User was aware or ought to have been aware).
  • Corporations Act” means the Corporations Act 2001 (Cth).

Dispute Notice” has the meaning given to that term in clause 5.1(b)(i).

Force Majeure” has the meaning given to that term in clause 5.1(a).

GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (as amended).

GST” means the meaning given to that term in the GST Act.

Personnel” means officers, directors, employees, agents, contractors and subcontractors.

  • Information” means all information in any way relating to ITS, the App or the Services.
  • Insolvency Event” means the occurrence of any of the following events in relation to any Party:
    • that Party becomes insolvent as defined in the Corporations Act, states that it is insolvent or is presumed to be insolvent under an applicable law;
    • that Party is wound up, dissolved or declared bankrupt;
    • that Party becomes an insolvent under administration as defined in the Corporations Act;
    • a liquidator, provisional liquidator, controller, administrator, trustee for creditors, trustee in bankruptcy or other similar person is appointed to, or takes possession or control of, any or all of that Party’s assets or undertaking;
    • any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of that Party’s assets, operations or business;
    • that Party enters into or becomes subject to:
      • any arrangement or composition with one or more of its creditors or any assignment for the benefit of one or more of its creditors; or
      • any re‑organisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
    • any step is taken to enter into any arrangement between that Party and its creditors; or
    • an application or order is made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken which is preparatory to or could result in any of (b), (c), (d), (e), (f) or (g) above;
    • that Party is taken, under section 459F(1) of the Corporations Act, to have failed to comply with a statutory demand;
    • that Party suspends payment of its debts, ceases or threatens to cease to carry on all or a material part of its business or becomes unable to pay its debts when they fall due; or
    • any step is taken by a mortgagee to take possession or dispose of the whole or part of that Party’s assets, operations or business.

Intellectual Property Rights” means any and all intellectual property rights owned or registered by, or licensed to ITS, of any kind or nature, including any statutory, common law or other proprietary ownership or control rights which exist or may exist in the future and includes rights in respect of or in connection with copyright, inventions (including patents), discoveries, source code, object code, formulae, specifications, databases, business processes and methods, trade marks, service marks, business names, logos, styles, designs, drawings, trade secrets, know-how and all other intellectual property rights, whether registered or unregistered and whether capable of registration or otherwise.

Malicious Code” means any virus, trojan horse, worm, logic bomb or other malicious code that could infect, manipulate, modify, deny, corrupt or inhibit the operation of the User’s System or ITS’s computer system.

Mediation Notice” has the meaning given to that term in clause 5.1(b)(iii).

Parties” means the User and ITS, and “Party” means either of them.

Pest Alarm” means an alarm triggered in relation to a property registered on the App by a User, where that property is within a certain radius, as determined by ITS, from other properties with potential termite infestation.

Privacy Act” means the Privacy Act 1988 (Cth).

Services” has the meaning given to it in the “Background” section of this Agreement.


TERMITE REGISTER

SERVICES AGREEMENT- BUSINESS ADMINS

 

BUSINESS ADMIN DETAILS

Name / ACN / ABN:
Registered Address:
Facsimile:
Email:

 

BACKGROUND

Welcome and thank you for using the Termite Register app.

Infestation Tracking Systems Pty Ltd ABN 64 163 630 199 of 40 White Street, Kilmore, VIC 3764 (“ITS”) owns and operates the termite infestation alarm and tracking software application known as the “Termite Register” (the “App”) and provides related products and services in connection to the App from time to time (the “Services”).

When the Business Admin accesses or uses the App and Services, it agrees to the terms and conditions contained in this Services Agreement, as amended by ITS and notified to the User from time to time (the “Agreement”). By continuing to access or use the App or Services after notification of any amendments, the Business Admin acknowledges and agrees that this conduct evidences its continued acceptance of this Agreement (as amended).

The Business Admin is entering into a legally binding agreement, so please take a moment to read through the Agreement carefully. To agree to this Agreement, click “agree”, “sign up” or “register”. If you do not agree to this Agreement, do no click “agree”, “sign up” or “register” and do not use the App or the Services. Alternatively to clicking as above, the Business Admin may be required to sign a hard copy of this Agreement, in which case ITS will provide the Agreement to the Business for signing.

By using the App and Services, the Business Admin also agrees to ITS’s Privacy Policy (available [here]), which covers how ITS collects, uses, shares, and stores personal information.

 

AGREED TERMS

  • Parties
    • The parties to this agreement

This Agreement is between ITS and the Business Admin (the “Parties”).

  • The App and Services
    • Provision and use of the App and Services
      • The Parties acknowledge and agree that ITS may provide the use of the App and Services to any other person or third party and therefore its relationship with the Business Admin is non-exclusive.
      • The Service Provider may provide the App and Services in the manner determined by the Service Provider in its absolute and sole discretion, so long as in doing so, the Service Provider does not breach any material provision of this Agreement.
      • ITS may, at any time, take any action it considers reasonably necessary to protect its interests in connection with the App or Services, including by suspending, terminating or imposing conditions on, the Business Admin’s or an Inspector’s use of the App or Services (without any obligation to refund or remit any fees paid or due and payable by the Business Admin under this Agreement), including if ITS reasonably believes that the App or Services have been used (or may be used) by the Business Admin or an Inspector in a manner which is likely to have an adverse effect on ITS, an End User or a third party.
      • The circumstances in which ITS may exercise its rights under clause 1(c) include but are expressly not limited to circumstances in which the Business Admin or its Inspectors:
        • upload Infestation Data that is inaccurate, untrue, out-of-date, incomplete, misleading or deceptive;
        • fail to comply with the Australian Privacy Principles and Privacy Act in respect of the handling of personal information;
        • fail to comply with the Privacy Policy;
        • misrepresent the characteristics of the App or Services (including in respect of how the Infestation Data is uploaded to the App) to an End User or any third party; and/or
        • fail to comply with the Standard User Terms and Conditions.
      • Disclaimer
        • The App and Services are provided on an ‘as is, with all faults and as available’ basis and, to the extent permitted by law, without any warranties of any kind, either expressed or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose, warranties of title or non-infringement, or warranties arising from course of dealing or custom of trade.
        • ITS makes no representation or warranty that any content of the App or Services is accurate, complete, appropriate, reliable or timely.
        • ITS also makes no representation or warranty that the Business Admin’s or Inspector’s access to and use of the App or Services will be uninterrupted, secure, error-free, free of viruses or unauthorised code or other harmful components.
        • ITS reserves the right to discontinue operating the App or Services at any time without notice.
        • The App or Services may contain links to web sites or other materials operated by, or associated with, third parties. These sites or materials are not under ITS’s control and ITS is not responsible for the contents of any of these linked sites or materials. The appearance of any product, service, web site link or materials on the App or as part of the Services does not imply endorsement, approval or warranty by ITS, and ITS expressly disclaims all Claims in connection with such products, services or web site links or materials.
        • The Parties acknowledge and agree that:
          • any aggregated data provided by ITS to the Business Admin regarding actions taken by Inspectors or End Users in connection with the App (including any action taken in respect of eCards sent to End Users by Inspectors) is for informative purposes only and ITS takes no responsibility and disclaims all liability and makes no representation or warranty in respect of such data; and
          • whether an End User contacts the Business Admin using the information provided in the Business Admin’s e-Card made available through the App or Services is at the sole discretion of the End User and ITS accepts no responsibility or liability whatsoever for a failure by an End User to contact a Business Admin.

3                Account

  • Establishment of Account
    • The Business Admin may apply for, create or register an account to use the App or Services (“Account“).
    • When applying, creating or registering an Account, the Business Admin must provide ITS with all requested information and must ensure that all such information provided is accurate, true, complete and current at all times. ITS reserves its right to require further details or information from the Business Admin in order to verify the accuracy of the details or information.
    • ITS may in its absolute discretion:
      • approve a Business Admin’s Account;
      • reject a Business Admin’s Account; or
      • render a Business Admin’s Account as pending.
    • The Business Admin must safeguard and keep secure, and not disclose or reveal (without ITS’s prior written permission), its Account information (including any passwords) or access to its Account to anyone else, other than to Inspectors in accordance with this Agreement.
    • The Business Admin is solely responsible for maintaining the confidentiality and security of its Account, and for all activities that occur on or through its Account, including by its Inspectors.
    • The Business Admin agrees to immediately notify ITS of any security breach or unauthorised access of its Account and the ITS shall not be responsible for any Claims, arising out of, or in connection with, the unauthorised use of its Account.
    • ITS may, in its absolute discretion, view all information contained within the Business Admin’s Account, including all Inspectors, reports by Inspectors and Infestation Data to ensure compliance with this Agreement.

4                Fees

  • Subscriptions
    • Certain parts of the App or Services are provided on a subscription basis (“Subscriptions”), the details and fees for which will be provided or made available by ITS from time to time. As at the date of this Agreement, the Subscriptions available are contained in part 1 of Annexure B. ITS reserves the right to change the Subscriptions available from time to time.
    • Subscriptions are non-refundable unless required by law.
    • Subscriptions will automatically renew for the same period of time as the previous Subscription period, unless:
      • the Business Admin cancels the automatic Subscription renewal at least 30 days prior to the end of the then current Subscription period; or
      • the Service Provider cancels the Subscription in accordance with this Agreement.
    • Unless otherwise specified, ITS’s Subscriptions are on an annual basis.
    • Automatic Subscription renewals may be cancelled by the Business Admin either through its Account or by contacting ITS’s customer support team at [insert contact details].
    • ITS may, in its absolute discretion and at any time, modify the Subscription fees for the Subscriptions available. Any Subscription fee change will become effective at the end of the then current Subscription period. In the event of an increase to the Subscription fees, any renewed Subscription (including automatic renewal) will continue with the new increased Subscription fees, unless the Business Admin cancels the automatic Subscription renewal in accordance with this Agreement. The Business Admin’s continued use of the App or Services after the Subscription fee change comes into effect constitutes its agreement to pay the changed Subscription fee amount.
    • ITS reserves the right to refuse or cancel the Business Admin’s request or order for Subscriptions at any time:
      • for reasons including product or service availability, errors in the description or fees or price of the product or service, error in the request or order, or other reasons; or
      • if fraud or an unauthorised or illegal transaction is suspected.
    • In-app purchases
      • Certain parts of the App or Services may include functionality that enables the Business Admin to receive additional products, services or credits by way of in-app purchases (“In App Purchases“), the details and fees for which will be provided or made available by ITS from time to time. As at the date of this Agreement, the In App Purchases are contained in part 2 of Annexure B. ITS reserves the right to change the In App Purchases available from time to time.
      • In App Purchases are non-refundable unless required by law.
      • ITS reserves the right to refuse or cancel the Business Admin’s request or order for In App Purchases at any time:
        • for reasons including product or service availability, errors in the description or fees or price of the product or service, error in the request or order, or other reasons; or
        • if fraud or an unauthorised or illegal transaction is suspected.
      • Payment
        • The Business Admin agrees to pay in advance for any paid products and services requested through the App or Services (plus any applicable taxes such as GST), including Subscription fees and In-App Purchase fees.
        • A valid payment method, including PayPal, is required to process the payment, including Subscription fees and In-App Purchase fees.
        • If required, the Business Admin must provide ITS with accurate and complete billing information, including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, the Business Admin automatically authorises ITS to charge all fees incurred through its Account to any such payment instruments, and the Business Admin grants ITS the right to provide the information to third parties for the purposes of facilitating the completion of the purchase.
        • Should automatic billing fail to occur for any reason, ITS will issue an electronic invoice indicating that the Business Admin must proceed manually, within a certain deadline date, with the full payment corresponding to the Subscription fee or In App Purchase fee (as the case may be) as indicated on the invoice.
        • Failure by the Business Admin to pay any fees under this Agreement to ITS when due will constitute a material breach of this Agreement and may result, in the absolute discretion of ITS, in the immediate termination of this Agreement and access to the App and Services, as well as any other additional action or remedy that ITS deems necessary to be undertaken as permitted by law.

5                Business Admin obligations

  • Use of App and Services
    • The Business Admin and its Inspectors may, unless otherwise agreed by the Service provider, only use the App and Services for the purposes of:
      • uploading Infestation Data;
      • triggering a Pest Alarm;
      • communicating with End Users who have contacted the Business Admin or Inspector via the e-Cards made available to End Users through the App or Services; and
      • searching the register within the App.
    • The Business Admin and its Inspectors must not, unless allowed in accordance with clause 1(a) or otherwise agreed by the Service Provider:
      • collect, store, copy, reproduce, modify, publish or distribute any information available on the App or provided as part of the Services, including, text, images, materials, data, photographs, logos and graphics (collectively, Content), unless it is for the sole purpose of assessing the performance of the Business Admin’s business in connection with the App (e.g. e-Card conversion rate);
      • disclose any Content to a third party;
      • directly or indirectly contact or solicit the custom of an End User;
      • use the App or Services to market or promote the Business Admin’s business;
      • disrupt or interfere with the App or Services;
      • use the App, Services or any Content in a manner which may infringe the intellectual property rights of ITS or a third party; or
      • use the App or Services in a manner which may be unlawful, harmful, illegal, fraudulent or which breaches or may breach this Agreement.
    • ITS does not grant the Business Admin any rights to use the Content for any purpose other than as permitted by this Agreement.
    • The Business Admin must communicate directly with the Service Provider in relation to all matters arising in connection with this Agreement and the Service Provider is not required to comply with any directions made by the Business Admin’s Inspectors.
    • The Business Admin must comply with all laws, including all laws in relation to privacy and data breach notification obligations.
    • The Business Admin warrants that Business Admin’s Systems will be, at all times, a safe online environment and will not, without limitation, cause or contribute to the propagation of Malicious Code.
    • The Business Admin’s use of the App and Services is at its own risk. The Business Admin is responsible for taking all precautions necessary to protect itself against any Claims that may arise by virtue of its use of the App or Services.
    • Neither ITS, its Personnel, nor anyone else involved in creating, producing or delivering the App or Services, or the materials contained therein, assumes any liability or responsibility for the accuracy, completeness or usefulness of any information provided therein, nor, to the extent permitted by law, shall any of them be liable for any direct, indirect, incidental, special, consequential or punitive damages arising out of the Business Admin’s or its Inspectors’ use of, or inability to use, the App or Services.
    • The Business Admin must not in any way interfere with, or attempt to interfere with, the proper operation of the App or Services.
    • The Business Admin agrees not to take any action that imposes an unreasonable burden on ITS’s infrastructure or otherwise tampers or interferes with the App or Services or ITS’s systems or data or those of any third party via the App of Services.
  • Inspectors
    • The Business Admin must ensure that each Inspector is appropriately qualified and suitably accredited to conduct pest inspections on properties situated in Australia (and any other jurisdiction which holds properties that are the subject of the Infestation Data from time to time), to the satisfaction of ITS.
    • The Business Admin must comply with any reasonable direction given by ITS in relation to the suspension, termination or imposition of conditions on the use of the App or Services by its Inspectors.
    • The Business Admin acknowledges and agrees that it is responsible for the conduct of its Personnel and Inspectors who access or use the App or Services, and the Business Admin agrees to ensure that such Personnel and Inspectors are made aware of, and comply with, this Agreement.
  • Infestation Data
    • The Business Admin must take all necessary steps to ensure that the Infestation Data uploaded by it or an Inspector to the App is accurate, up‑to‑date materially complete, not misleading or deceptive and complies with the Infestation Data Guidelines.
    • The Business Admin must, on request by ITS (which may be made at any time and in its absolute discretion), provide ITS with access to its books, records and reports (including electronic documents) and/or a sample or artefact and any other information reasonably required by ITS to verify the accuracy of any information comprising the Infestation Data.
  • Privacy and data security

The Business Admin must:

  • comply with the Australian Privacy Principles and the Privacy Act when collecting, storing, using, handling, disclosing and otherwise managing “personal information” (as that term is defined in the Privacy Act), including personal information of an End User;
  • ensure that the address of a property (irrespective of whether that information is considered personal information) that is the subject of Infestation Data is not disclosed to any third party (including End Users);
  • take all necessary steps to ensure that any personal information that it holds is protected against misuse, interference, loss, unauthorised access, modification and / or disclosure, including by implementing or maintaining:
    • information and communication technology security measures;
    • a data breach notification procedure and a data breach response plan;
    • adequate physical security of the persona information;
    • workplace policies, protocols, standards and training to ensure that staff (including Inspectors) understand and conduct their duties in a way that will satisfy the Business Admin’s obligations under this Agreement; and
    • periodic audit, review and monitoring procedures to ensure the Business Admin’s compliance with the Australian Privacy Principles and the Privacy Act is assessed on an ongoing basis and opportunities for improving the management of the personal information are identified and implemented; and
  • cooperate fully with ITS to manage a privacy-related complaint (including by complying with any reasonable direction of ITS in relation to undertaking remedial action and/or resolving a privacy-related complaint).
  • Insurance

The Business Admin must:

  • at its own expense, take out and keep current business insurances reasonably required according to industry practice and standards with a minimum indemnity limit of at least $10 million per claim;
  • ensure all insurance policies are with a reputable insurer; and
  • on request, produce to ITS copies of certificates of currency for the policies referred to in this clause 4.

6                Confidential Information and Intellectual Property Rights

  • Protection of confidential information
    • The Business Admin must:
      • not directly or indirectly, use or attempt to use any of ITS’s Confidential Information in any manner which may injure or cause loss either directly or indirectly to ITS or which may be likely to do so;
      • keep ITS’s Confidential Information confidential and not disclose any of such Confidential Information to any unauthorised person; and
      • immediately on demand from ITS, return any of ITS’s Confidential Information in the Business Admin’s or its Inspectors’ possession or control, delete any electronic copies of such Confidential Information and cease to use such Confidential Information or any part of it.
    • The Business Admin may disclose Confidential Information:
      • if required to make such disclosure by any court of competent jurisdiction;
      • pursuant to any court order; or
      • pursuant to any law or regulation having the force of law.
    • Each Party acknowledges that monetary damages alone would not be adequate compensation to ITS for a breach of this clause 1 and that ITS is entitled to seek an injunction from a court of competent jurisdiction if the Business Admin fails to comply or threatens to fail to comply with this clause 6.1.
  • Intellectual property rights
    • ITS is the sole owner (or licensee) of all Intellectual Property Rights (whether such rights are capable of registration or otherwise) subsisting in the App and the Services (ITS Intellectual Property Rights).
    • Nothing in this Agreement gives the Business Admin, Inspector or End User any legal or beneficial interest in the ITS Intellectual Property Rights.
    • The Business Admin must not, without ITS’s prior written consent, use or utilise in any manner, including by copying, reproducing or disclosing the ITS Intellectual Property Rights for any purpose other than as required to access and use the App or Services in accordance with this Agreement.
    • The Business Admin agrees to cease using and return to ITS all ITS Intellectual Property Rights upon termination of this Agreement, or when expressly demanded by ITS.

7                Privacy

ITS is bound by the Australian Privacy Principles set out in the Privacy Act 1988 (Cth) (“Privacy Act”). A copy of our privacy policy can be viewed [here].

8                Relationship of Parties

  • Legal relationship between the parties
    • This Agreement is contractual only and does not create a partnership, agency or employment relationship or any other relationship that imports fiduciary obligations.
    • Neither Party has (and will not represent that it has) any power, right or authority to bind the other or to assume or create any obligation or responsibility, express or implied, on behalf of the other or in the other’s name.
    • ITS is entitled to treat the Business Admin’s Personnel and Inspectors as having actual authority to provide instructions to ITS without making further enquiry.

9                Representations and warranties

Each Party represents and warrants that:

  • it is a body corporate duly incorporated under the laws of the place of its incorporation;
  • it has full legal capacity and power to own property and carry on its business, and to enter into and perform its obligations under this Agreement;
  • this Agreement constitutes a valid and legally binding obligation of it in accordance with its terms; and
  • the execution, delivery and performance of this Agreement will not contravene: any law, regulation, order, judgment or decree of any court or government agency which is binding on it or any of its property; any provision of its constitution or equivalent documents; or any agreement, undertaking or instrument which is binding on it or any of its property.

10             Liability

  • The Business Admin acknowledges and agrees that, except to the extent required by law:
    • ITS has given the Business Admin no warranty as to the quality or fitness of the App or Services for any particular purpose or that the App or Services are provided with due care and skill;
    • any term, warranty, condition, representation or obligation, whether express or implied, and whether as to quality or fitness for any particular purpose, or otherwise relating to the App or Services, which is not expressly stated herein is expressly excluded from this Agreement; and
    • ITS and its Personnel accept no responsibility or liability, whether in contract or tort (including negligence or breach of statutory duty) or otherwise, for any Claim whether direct, indirect or consequential (including for loss of profits, business or anticipated savings and legal costs and expenses) arising directly or indirectly out of, or in connection with, the App or Services, and the Business Admin releases and forever discharges ITS and its Personnel from all such Claims in respect thereof.
  • Without derogating from clause 10(a), neither ITS nor any of its Personnel will be responsible or liable for any Claim that the Business Admin or Inspector may suffer or incur in the event of any failure or interruption of the App or Services, or resulting from the act or omission of any other party involved in making the App, or the information contained therein available to the Business Admin or Inspector, or from any other cause relating to the Business Admin’s or Inspector’s access to, or inability to access, the App or Services, whether or not the circumstances giving rise to such cause may have been within ITS’s control or the control or any vendor providing software or services support to ITS.
  • Nothing in this Agreement, whether express or implied, shall be taken to exclude any non‑excludable conditions, warranties or rights contained in any applicable State or Commonwealth legislation.
  • If ITS is held liable in respect of the App or Services for a breach of a guarantee arising under the Competition and Consumer Act 2010 (Cth) or equivalent laws of any relevant jurisdiction or for any liability whatsoever arising out of or in connection with this Agreement, to the extent permitted by law, any liability for such breach will be limited, at ITS’s option, to any of the following as determined in the absolute discretion of ITS:
    • a replacement of the Services or the supply of equivalent Services;
    • the payment of the value of the Services; or
    • the payment of the costs of having the Services resupplied.
  • Notwithstanding the foregoing, to the extent permitted by law, the total liability of ITS and its Personnel (if any) for any Claim arising in connection with the App, the Services or this Agreement shall not exceed the lesser of the amount of fees paid by the Business Admin for the particular product or service provided by ITS relating directly to the Claim or $1,000.

11             Indemnity

  • The Business Admin indemnifies and keeps indemnified ITS and its Personnel from and against all Claims suffered or incurred by ITS, its Personnel or any third party in connection with:
    • the use of the App or the Services;
    • a breach by the Business Admin of any of the terms and conditions contained in this Agreement; and
    • any acts or omissions by the Business Admin, its Personnel or its Inspectors.
  • The indemnity in this clause 11 is for the benefit of ITS and its Personnel. Each of these individuals or entities shall have the right to assert and enforce these provisions directly against the Business Admin on its own behalf.

12             Dispute resolution

  • Negotiation and mediation before litigation
    • The Parties must comply with the dispute resolution procedure described in this clause 12.
    • Subject to clause 12(d), neither Party will be entitled to commence any litigation or arbitration in relation to any matter arising directly or indirectly out of this Agreement until they have complied with the following dispute resolution procedure:
      • where a dispute arises between the Parties, a Party may serve a written notice (“Dispute Notice”) on the other Party detailing the nature of the dispute;
      • the Parties must make reasonable efforts to resolve the dispute by negotiation;
      • if the Parties are unable to resolve the dispute within 28 days of the receipt of the Dispute Notice, either Party may, by notice in writing to the other Party (“Mediation Notice”) require that the dispute be referred to mediation;
      • within 14 days of receipt of the Mediation Notice, the dispute will be referred to a mediator as agreed between the Parties, and failing agreement, to a mediator appointed by the President of the Law Institute of Victoria or his or her nominee on the application of either Party;
      • the costs of the mediator will be paid equally by the Parties but otherwise the Parties must pay their own costs of the mediation (unless the mediator determines otherwise);
      • the Parties must approach the mediation in good faith and make a reasonable attempt to settle the dispute by mediation and within the framework determined by the mediation.
    • If the mediation fails to settle the dispute, the Parties may institute litigation or arbitration.
    • Nothing in this clause 12 will prevent either Party from seeking urgent interlocutory relief where failure to obtain such relief would cause irreparable damage to that Party.

13             Termination

  • Termination of use of App
    • ITS may, in its absolute discretion, at any time and without notice, terminate the Business Admin’s or Inspector’s access to the App or Services.
    • ITS reserves the right to suspend or impose conditions on access or use of the App or Services if it believes, acting reasonably, that:
      • the Business Admin has breached any term of this Agreement; or
      • any acts or omissions of the Business Admin, its Personnel or Inspectors may adversely affect ITS or bring ITS or its business into disrepute.
    • ITS may also choose to issue the Business Admin or its Personnel or Inspectors with a warning in relation to their use of the App or Services without prejudice to ITS’s rights to suspend, impose conditions, or terminate access or use of the App or Services.
  • Immediate Termination

Either Party may terminate this Agreement with immediate effect by giving notice to the other Party if:

  • that other Party breaches any provision of this Agreement and fails to remedy the breach within 14 days after receiving notice requiring it to do so;
  • that other Party breaches a material provision of this Agreement where that breach is not capable of remedy; or
  • any Insolvency Event occurs in relation to that other Party.
  • Insolvency Events

Each Party must notify the other Party immediately if an Insolvency Event occurs in relation to that Party.

  • Accrued Rights and Remedies

Termination of this Agreement under this clause 13 does not affect any accrued rights or remedies of either Party.

  • Survival

Any clause which, by its nature, is intended to survive termination shall survive termination of this Agreement, including clauses 2.2, 5.3, 6, 10 and 11.

14             Goods and services tax

  • Definitions

For the purposes of this clause 14, “acquisition”, “consideration”, “GST”, “GST Law”, “input tax credit”, “supply”, “taxable supply” and “tax invoice” have the meaning given by section 195-1 of the GST Act.

  • GST Exclusive Consideration

Except where express provision is made to the contrary, the consideration payable by a Party for a taxable supply made by the other Party pursuant to this Agreement represents the value of the taxable supply and is expressed exclusive of any GST.

  • Consideration to be increased by GST amount

Notwithstanding any other provision of this Agreement, if a Party makes a taxable supply in connection with this Agreement (the “supplier“), then the Party liable to pay for the taxable supply (the “recipient“) must also pay, at the same time (unless the supply is incorrectly treated as not being a taxable supply, in which case the GST payable in relation to the taxable supply is to be paid by the recipient on receipt of a revised tax invoice from the supplier) and in the same manner as the GST exclusive consideration is otherwise payable, an additional amount equal to the amount of any GST payable in respect of the taxable supply.

  • Further and additional payments

Where this Agreement requires the recipient of a taxable supply to make further and additional payments, whether by way of reimbursement or contribution or other payments, for an amount paid or payable by the supplier in respect of an acquisition from a third party for which the supplier is entitled to claim an input tax credit, the additional amount payable by the recipient will be reduced by the amount of the input tax credit and increased by the amount of GST payable by the supplier in respect of the supply.

  • Tax Invoice

The right of either Party to payment under this clause 14 is subject to a valid tax invoice, which complies with the GST law, being issued and delivered by the supplier of the taxable supply to the recipient.

15             Notices

  • Formal notices under this Agreement

All notices, requests, demands, consents, approvals, offers, agreements or other communications (“Notices”) given by a Party under or in connection with this Agreement must be:

  • in writing;
  • signed by the Party giving Notice or a person duly authorised by that Party or, where transmitted by e‑mail, sent by the Party giving Notice or a person duly authorised by that Party;
  • directed to the recipient’s address stipulated in this Agreement or as otherwise notified from time to time; and
  • hand delivered, sent by prepaid post or transmitted by e‑mail or facsimile to the recipient’s address stipulated in this Agreement or as otherwise notified from time to time.
  • Deemed receipt of Notices

A Notice given in accordance with this clause 15 is taken as having been given and received:

  • if hand delivered at or before 4.30 pm on a Business Day, on delivery, otherwise at 9.30 am on the next Business Day;
  • if sent by prepaid post:
    • within Australia, on the second Business Day after the date of posting;
    • to or from a place outside Australia, on the seventh Business Day after the date of posting;
  • if transmitted by e‑mail, on the first Business Day after the date of transmission; or
  • if transmitted by facsimile at or before 4.30 pm on a Business Day, at the time recorded on the transmission report indicating successful transmission of the entire notice, otherwise at 9.30 am on the next Business Day.

16             General

  • Entire agreement

This Agreement constitutes the entire agreement between the parties in relation to its subject matter.  All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this Agreement and have no further effect.

  • Force Majeure
    • Notwithstanding anything to the contrary in this Agreement, ITS will not be liable or responsible to the Business Admin, its Personnel or Inspectors for any failure to perform or delay in performance of any of its obligations under this Agreement if such failure or delay is due or attributable to any act of God, orders, acts or restraints or restrictions or regulations imposed by government, acts of war (both declared and undeclared), warlike conditions, hostilities, riots, civil commotion, strikes (other than strikes of its own employees), terrorist acts, lockouts, casualty events (including but not limited to fire, explosion, electrocution, power supply, breakdown of systems and infrastructure, or mechanical failures), embargoes, acts or omissions of the Business Admin (or its Personnel or Inspectors) or any other cause or circumstance of whatsoever nature not caused by and beyond the reasonable control of ITS (“Force Majeure”).
    • ITS, being prevented from performing its obligations by Force Majeure, must make all reasonable efforts to resume performance as soon as possible and must take reasonable steps to mitigate the effect of the Force Majeure.
  • Assignment
    • The Parties acknowledge and agree that ITS may subcontract or assign any rights or obligations in relation to this Agreement, the App or the Services, to a third party without the Business Admin’s consent.
    • The Business Admin must not assign, sub-contract, transfer or otherwise deal with this Agreement or any right under this Agreement without the prior written consent of ITS, which consent must not be unreasonably withheld.
  • Severability

Part or all of any provision of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.

  • Further assurances

Each Party must do or cause to be done all things necessary or reasonably desirable to give full effect to this Agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).

  • Governing law and jurisdiction

This Agreement will be governed by and construed in accordance with the laws in force in the State of Victoria and each Party irrevocably submits to the non-exclusive jurisdiction of the courts of that State.

17             Interpretation

  • Words and expressions

In this Agreement, unless the context requires otherwise:

  • headings are for convenience and do not affect interpretation;
  • the “Background” to this Agreement is intended to be legally binding on the Parties;
  • a reference to “$”, “A$”, “AUS $” or “dollar” is a reference to Australian currency, unless the context requires otherwise;
  • a reference to a time is a reference to Australian Eastern Standard Time or Australian Eastern Daylight Time, whichever is appropriate in the context;
  • a reference to a party includes its executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
  • no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it;
  • the words “including”, “for example”, “such as” or other similar expressions (in any form) are not words of limitation;
  • if:
    • the day on or by which any act, matter or thing is to be done is a day other than a Business Day, the act, matter or thing will be done on the next Business Day; and
    • any money falls due for payment on a date other than a Business Day, that money will be paid on the next Business Day (without interest or any other amount being payable in respect of the intervening period).

18             Definitions and Interpretation

  • Definitions

In this Agreement unless the context otherwise requires:

Agreement” means this Services Agreement as amended and notified by ITS to the Business Admin from time to time.

  • App” has the meaning given to it in the “Background” section of this Agreement.
  • Business Admin” means the Business Admin as set out in the “Business Admin Details” section of this Agreement.
  • Business Admin’s System” means the Business Admin’s computer system, including its standard operating environment, hardware, applications, network connections and any cloud-based environments accessed by the Business Admin from time to time.
  • Business Day” means a day on which banks are open for general banking business in Melbourne, excluding Saturdays, Sundays and public holidays.
  • Claim” means any claim, cost, damages, debt, expense, liability, loss, suit, notice, demand, action, cause of action, proceeding, litigation, investigation or judgment, however it arises and whether it is present or future, fixed or unascertained, actual or contingent, and whether or not it is in respect of legal or other costs, damages, expenses, fees or losses.
  • Confidential Information” means all of the Information, other than any part of the Information that:
    • is or becomes generally available to the public other than as a result of a breach by the Business Admin of this Agreement;
    • was known to the Business Admin on a non‑confidential basis before the Business Admin received the Information; or
    • becomes available to the Business Admin on a non‑confidential basis from another source not in breach of an obligation of confidence owing by that source to ITS (of which the Business Admin was aware or ought to have been aware).
  • Corporations Act” means the Corporations Act 2001 (Cth).

Dispute Notice” has the meaning given to that term in clause 12.1(b)(i).

End User” means each person who downloads and/or uses the App or Services.

Force Majeure” has the meaning given to that term in clause 16.2(a).

GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (as amended).

GST” means the meaning given to that term in the GST Act.

Personnel” means officers, directors, employees, agents, contractors and subcontractors.

Infestation Data” means all information (including reports) uploaded by the Business Admin or an Inspector to the App, including information (or reports) regarding the pest infestation characteristics (including the presence, absence or extent of termites) of a property that has been inspected by an Inspector.

  • Infestation Data Guidelines” means the guidelines forming Annexure A that must be followed by the Business Admin and/or an Inspector in connection with the uploading of Infestation Data to the App.
  • Information” means all information in any way relating to ITS, the App or the Services.
  • Insolvency Event” means the occurrence of any of the following events in relation to any Party:
    • that Party becomes insolvent as defined in the Corporations Act, states that it is insolvent or is presumed to be insolvent under an applicable law;
    • that Party is wound up, dissolved or declared bankrupt;
    • that Party becomes an insolvent under administration as defined in the Corporations Act;
    • a liquidator, provisional liquidator, controller, administrator, trustee for creditors, trustee in bankruptcy or other similar person is appointed to, or takes possession or control of, any or all of that Party’s assets or undertaking;
    • any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of that Party’s assets, operations or business;
    • that Party enters into or becomes subject to:
      • any arrangement or composition with one or more of its creditors or any assignment for the benefit of one or more of its creditors; or
      • any re‑organisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
    • any step is taken to enter into any arrangement between that Party and its creditors; or
    • an application or order is made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken which is preparatory to or could result in any of (b), (c), (d), (e), (f) or (g) above;
    • that Party is taken, under section 459F(1) of the Corporations Act, to have failed to comply with a statutory demand;
    • that Party suspends payment of its debts, ceases or threatens to cease to carry on all or a material part of its business or becomes unable to pay its debts when they fall due; or
    • any step is taken by a mortgagee to take possession or dispose of the whole or part of that Party’s assets, operations or business.

Inspector” means the Business Admin’s Personnel who are suitably licenced and qualified pest control inspectors within Australia, to the satisfaction of ITS.

Intellectual Property Rights” means any and all intellectual property rights owned or registered by, or licensed to ITS, of any kind or nature, including any statutory, common law or other proprietary ownership or control rights which exist or may exist in the future and includes rights in respect of or in connection with copyright, inventions (including patents), discoveries, source code, object code, formulae, specifications, databases, business processes and methods, trade marks, service marks, business names, logos, styles, designs, drawings, trade secrets, know-how and all other intellectual property rights, whether registered or unregistered and whether capable of registration or otherwise.

Malicious Code” means any virus, trojan horse, worm, logic bomb or other malicious code that could infect, manipulate, modify, deny, corrupt or inhibit the operation of the Business Admin’s System or ITS’s computer system.

Mediation Notice” has the meaning given to that term in clause 12.1(b)(iii).

Parties” means the Business Admin and ITS, and “Party” means either of them.

Pest Alarm” means an alarm triggered in relation to a property registered on the App by an End User, where that property is within a certain radius, as determined by ITS, from other properties with potential termite infestation.

Privacy Act” means the Privacy Act 1988 (Cth).

Services” has the meaning given to it in the “Background” section of this Agreement.

Standard User Terms and Conditions” means ITS’s standard user terms and conditions relating to the use of the App by End Users.