Subscription terms of service

1. Definitions

Asset Vision means Asset Vision Pty Ltd (ACN 645 298 451) a wholly owned subsidiary of Future First Technologies Ltd (ACN 164 718 361)

Asset Vision App means The Asset Vision Application downloaded from the Apple or Android app store.

Asset Vision Technology means:

• the Subscription Service, Asset Vision App, Ancillary Software, Documentation, and technology and methodologies (including products, software tools, data integration tools and services) created by or for, or licensed to, Asset Vision; and
• updates, upgrades, improvements, configurations (including but not limited to Enhancements), extensions, and derivative works of the foregoing and related technical or end user documentation or manuals.

Client means the Client set out in the Order Form.

Client Data means electronic data uploaded by or for Client, and processed in the Subscription Service.

Client Technology means software, methodologies, templates, business processes, documentation, or other material originally authored, invented, or otherwise created by Client (or on Client’s behalf, other than by Asset Vision or at Asset Vision’s direction) for use with the Subscription Service, excluding Asset Vision Technology.

Confidential Information means the Asset Vision Technology (which is Confidential Information of Asset Vision); Client Data (which is Confidential Information of Client); any information of a party which is designated as confidential or proprietary whether obtained before or after execution of this document; and the terms of this agreement and any Order Form.  It does not include: information which is in or becomes part of the public domain, other than through a breach of this agreement or an obligation of confidence; or which the other party can prove by contemporaneous written documentation was independently acquired or developed without breaching any of the obligations set out in these Subscription Terms of Service.

Enhancements has the meaning given in clause 17.

Documentation means the documentation relating to the operation and use of the Subscription Service including technical documentation, user manuals, operating instructions, and release notes.

Intellectual Property Rights means all intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, moral rights, trade secrets, and any other intellectual or industrial property, including registrations, applications, renewals, and extensions of such rights.

MSA means a Master Services Agreement between Client and Asset Vision for the provision of Professional Services.

Order Form means an order signed by Client and Asset Vision and includes an Order Form in relation to a Pilot.

Personal Data means any information relating to an identified or identifiable natural person. Personal data may be contained in Client Data.

Pilot means a trial period during which the Client will assess the Asset Vision Technology.

Professional Services means any consulting, development, or other services provided by or on behalf of Asset Vision pursuant to an agreed SOW and MSA.

SOW means a statement of work that describes scoped Professional Services.

Subscription Service means the Asset Vision software-as-a-service offering ordered by Client under an Order Form.

Subscription Term means the period of authorised access to and use of the Subscription Service, as set forth in an Order Form.

2. Access and use rights

For each Subscription Term and subject to these Subscription Terms of Service, Asset Vision grants the access and use rights set out in this clause 2 for the Asset Vision Technology as detailed in the applicable Order Form.

Subject to payment of Subscription Service fees, Asset Vision authorises Client to access and use the Subscription Service in the manner and for the Subscription Term stated in the applicable Order Form, solely for its internal business purposes in accordance with the Documentation.

Client must not otherwise access or use the Subscription Service in a manner that exceeds Client’s authorised access and use rights as set forth in this agreement and the applicable Order Form.

Asset Vision grants Client a limited, personal, non- sublicensable, non-transferable, non-exclusive, license during the Subscription Term to install and use the Asset Vision App for the purpose of using the Subscription Service via a mobile device.

3. Use verification

Asset Vision may review Client’s use of the Subscription Service, and on Asset Vision’s written request, Client will provide reasonable assistance to verify Client’s compliance with these Subscription Terms of Service, and access to and use of the Subscription Service. If Asset Vision determines that Client has exceeded its permitted access and use rights to the Subscription Service, Asset Vision will notify Client and within thirty (30) days thereafter Client shall either:

• disable any unpermitted use, or
• pay additional fees commensurate with Client’s actual use.

4. Client data

Client Data is owned and controlled by the Client.  Asset Vision manages Client Data on behalf of the Client and will handle Client Data only in accordance with these Subscription Terms of Service and any additional agreement entered into by the parties, where relevant.

Client warrants to Asset Vision that Client Data (including any Personal Data contained therein) has been collected, processed and provided to Asset Vision in accordance with applicable laws on the protection of data including laws or regulations that apply to the transfer of Client Data by Asset Vision to any of its affiliates, employees, contractors and business partners located anywhere in the world.

Each party will exercise reasonable and appropriate measures in the protection of Client Data, inclusive of any Personal Data contained therein, and in the prevention of any unauthorised person or entity from gaining access thereto in compliance with this agreement and that party’s privacy policy.

Asset Vision’s privacy policy can be accessed at https://assetvision.com.au/privacy-policy/

5. Provision of professional services

Client and Asset Vision may enter into one or more SOWs subject to a MSA for the provision of Professional Services by Asset Vision, subject to the fulfillment of any responsibilities and payments due from Client, as stated in the applicable SOW.

The parties acknowledge that any Professional Services will be separately ordered from the Subscription Service and are not required for use of the Subscription Service.  A breach by a party of its obligations with respect to Professional Services shall not by itself constitute a breach by that party of its obligations with respect to the Subscription Service.

6. Order forms

Upon execution by Client and Asset Vision, each Order Form is non-cancellable and non-refundable, except as set out in these Subscription Terms of Service.

7. Fees and payment

For the period of the Subscription Term, the fees set out in the applicable Order Form shall remain firm.  During any renewal period, these fees may be varied at the discretion of Asset Vision, upon the provision of at least 30 days written notice of changes to fee structures.

Subscription Service fees are invoiced in advance and must be paid by Client in the manner and the time set out in the applicable Order Form.

Unless otherwise specified in the Order Form, all payments are to be made by EFT.

Any customisation fees charged in accordance with clause 17 are payable at the rates and in accordance with the terms specified in the Order Form.

Client will be permitted to cure a delinquency in payment of any amounts owed under this agreement within 30 days from the date of Asset Vision’s providing notice of delinquency. If Client fails to do so, Asset Vision may suspend Client’s use of the Subscription Service or terminate this agreement for breach, in addition to any other available rights and remedies.

Where access to the Subscription Service is reactivated after payment of all outstanding amounts, Asset Vision reserves the right to charge a reactivation fee.

8. Priority

In the event of any inconsistency, the following order of priority applies:

• any special conditions set out in an Order Form; then
• the general terms and conditions set out in an Order Form; then
• the terms and conditions set out in this document; then
• any other documents or information incorporated by reference into these Subscription Terms of Service.

9. Term

This agreement commences on the date set out in the Order Form and will expire at the end of the Subscription Term specified in the applicable Order Form, unless otherwise terminated as set out in these Subscription Terms of Service.

10. Renewal

Subject to payment of Subscription Service fees in respect of any further term, this agreement will automatically renew for such further period/s set out in the applicable Order Form, unless a notice of termination of Licence has been provided by either party in accordance with this clause 10.

Either party shall provide at least thirty (30) days notice in writing to the other party that it does not wish the agreement to be renewed.

Renewal is subject always to the consent of Asset Vision, such consent not to be unreasonably withheld and deemed to be provided unless written notification has been provided to the Client.

If Client fails to pay the Subscription Service fees, Client’s access to the Subscription Service and the licence granted under clause 2 will terminate.

Termination will be in addition to and not in lieu of any other remedies available to Asset Vision.

11. Termination

Without limiting the generality of any other clause, either party may terminate this agreement immediately by notice in writing if the other party is in breach of any term of these Subscription Terms of Service and such breach is not remedied within seven (7) days of notification.

12. Effect of termination

On termination or expiration of the Subscription Service (including without limitation the expiration of a Pilot), Client must cease to access and use, and Asset Vision will cease to provide, the Subscription Service and all related rights granted to Client in this agreement will terminate immediately, automatically, and without notice.

Within 30 days after the date of termination by Asset Vision for Client’s breach, Client must pay all remaining amounts, if any, payable under this agreement for the Subscription Term applicable to the terminated Subscription Service regardless of the due dates specified in the Order Form.

Within 30 days after the date of termination by Client for breach by Asset Vision, Client shall be entitled to a refund of any prepaid, unused Subscription Service fees as of the date of termination.

13. Return of client data

After termination or expiration of this agreement or the applicable Subscription Service, upon Client’s written request, Asset Vision will provide a single copy of any Client Data in the Subscription Service to Client in Asset Vision’s then current industry standard database export format at no additional charge.  Additional Client Data copies shall be available upon payment of a fee.

Client must submit such request to Asset Vision within 45 days after termination or expiration of this agreement or the Subscription Service. Asset Vision is not obligated to maintain or provide any Client Data after such 45- day period and will, unless legally prohibited, delete all Client Data in its systems or otherwise in its possession or under its control, and delete Client’s instances of the Subscription Service.  Notwithstanding the foregoing, Asset Vision may retain Client Data in back up media for an additional period of up to twelve (12) months, or longer if required by law.

14. Variations

Client acknowledges that Asset Vision has agreements in place with third parties including suppliers of services, which may be amended from time to time with such amendments impacting on this agreement. Asset Vision may unilaterally vary these Subscription Terms of Service to the extent necessary for it to comply with any variation or amendment to agreements with such third parties but other than that, any amendment or modification to this agreement shall not be effective unless in writing signed by both Client and Asset Vision.

15. Client obligations

The Client must undertake due diligence as required to familiarise and satisfy itself with the performance of the Asset Vision Technology. The Asset Vision Technology is provided on an “as is” basis, and the Client assumes the entire risk as to its quality and performance.

Furthermore the Client must satisfy itself in relation to the data integrity of the Asset Vision application by verifying the results obtained by its use. No claims regarding its performance, functionality, data integrity or limit of features will be levied at Asset Vision concerning but not limited to use of the Asset Vision App, web server and third party connectivity components.

Requests for product improvements or modifications will be regarded as Enhancements in accordance with clause 17.

In order to ensure the security of Asset Vision’s systems, the Client must keep all user names and passwords provided by Asset Vision secure and confidential and immediately notify Asset Vision of any breach of this obligation.

The Client must not attempt to modify, alter, copy, reproduce, reverse engineer, decompile or re-engineer the whole or any part of the Asset Vision Technology, including but not limited to its various software components, except for the express purpose of archiving data.

16. Privacy

Asset Vision collects and handles Personal Data in accordance with our Privacy Policy that can be accessed at https://assetvision.com.au/privacy-policy/.  The Client must read and understand our Privacy Policy before accessing or using our Subscription Services.

Asset Vision will communicate with the nominated Client’s contact person as part of the Subscription Service.  This communication may relate to, for example, sales, support, accounts, maintenance outcomes or changes to our Privacy Policy.

Where the Client uses the Subscription Services to collect and/ or process an individual’s Personal Data, the following applies:

• It is the responsibility of the Client to ensure compliance with the data protection law that applies to the Client. Specifically:
  • The Client may be required to issue an appropriate ‘collection statement’ (also called a ‘privacy notice’) in accordance with the privacy law that applies to the Client, and
  • Having regard to the Client’s ‘collection statement’, the Client should only use or disclose Personal Data in a manner consistent with the data protection law that applies to the Client, and
  • In accordance with the data protection law that applies to the Client, the Client may be required to collect an appropriate form of consent for the collection, use or disclosure of certain Personal Data, and
• Asset Vision is not liable for unauthorised access, use, disclosure or loss of Personal Data made in error by the Client resulting from the Client’s access and use of the Subscription Services, and
• The Client’s failure to use, or a decision to disable, any privacy enhancing features of the Subscription Services, is at the Client’s own risk and liability.

Where the Client asks us to interrogate or audit the Subscription Services in order to fulfil an obligation set out in the privacy law that applies to the Client (e.g. where investigating a data breach event, or in the conduct of a Privacy Impact Assessment), we will assist in a manner consistent with this agreement and our obligations under Australian privacy law or other data protection laws as applicable.

The Client may seek clarification of this agreement and our approach to privacy as set out in the Privacy Policy (e.g. where the Client is conducting a Privacy Impact Assessment to fulfil an obligation set out in the data protection law that applies to them).  This cannot and does not alter or limit these Subscription Terms of Service.

Where Asset Vision processes Personal Data as a data processor on behalf of the Client who is established in the EU, Asset Vision will enter into an additional agreement with the Client in respect of data processing to fulfil the Client’s obligations set out in the EU General Data Protection Regulation.  This may include entering into a Data Processing Agreement, which may include Standard Contractual Clauses, that sets out the obligations of Asset Vision and the EU Client with regard to data protection when Asset Vision processes Personal Data on behalf of the EU Client as part of the Subscription Services.

Where the Client seeks to enter into an agreement with Asset Vision in respect of privacy to fulfil an obligation set out in the data protection law that applies to the Client (e.g. a Data Processing Agreement, or some other agreement), any such agreement cannot and does not alter or limit these Subscription Terms of Service.

17. Enhancements

The Client may request enhancements or modifications to the Asset Vision Technology (Enhancements). At its discretion Asset Vision may agree to develop Enhancements in consideration for the payment of an agreed fee.

The Client must pay Asset Vision for Enhancements at the rates specified in an applicable Order Form.

If within thirty (30) days after delivery of the Enhancements or subsequent iterations of the Enhancements, the Client has not given notice to Asset Vision specifying errors or omissions in the operation of Enhancements, then Asset Vision is deemed to have satisfactorily delivered the Enhancements in accordance with Client requirements, any no further modifications to the Enhancements will be implemented.

18. Continuity of service

The Client acknowledges that there may be interruptions or errors to the Subscription Services caused by a variety of factors, including hardware or software failure, unavailability of communication links, or the failure of an external party to supply goods and services to Asset Vision or to the Client.

Asset Vision is not liable for any loss or damage of any nature arising from any interruption in the supply of the services and Asset Vision’s sole obligation is to reconnect the services as quickly as practicably possible and any interruption of service as described in this clause 18 does not constitute a breach of this agreement by Asset Vision.

19. Maintenance

Asset Vision must use reasonable endeavours to maintain the Asset Vision Technology including the provision of reasonable security and virus protection, use of database utilities to optimise database performance and implementation of appropriate software upgrades where required.

Asset Vision shall perform such services as it considers reasonable to ensure the Asset Vision application remains in conformity with its operating specifications as per its design documentation.

Asset Vision will provide services at its discretion including programming or re-configuration to maintain the operating parameters of the Asset Vision application. At its discretion Asset Vision will communicate maintenance outcomes to Client via email or telephone communications.

Asset Vision may from time to time call for periods of scheduled downtime required for equipment maintenance, operational maintenance, upgrades, server updates and other unavoidable outages. Asset Vision must use reasonable endeavours to provide prior notice to the Client of the downtime and to minimise the maintenance period and the Client acknowledges that Asset Vision may not have the opportunity to provide prior notice of downtime in all circumstances especially where downtime is not under the direct control of Asset Vision. Asset Vision has no liability to Clients arising from any period of downtime.

20. Training

Asset Vision will provide appropriate user training to the Client either in person, by telephone, Internet, published documents, remote connection or soft copies of training documents as specified in the Order Form.

Training will be restricted to the time allotment detailed in the applicable Order Form. Any Client request for training beyond the Order Form’s time allotment will be provided and charged at an additional cost.

21. Support

Asset Vision shall provide support services between 0900 hours and 1730 hours (Australian Eastern Standard Time or Eastern Standard Daylight Savings Time) on days other than Saturday, Sunday or any gazetted Victorian Public Holiday.

The Client may request support via phone call or email.

Support must relate to technical issues encountered through use of the Asset Vision Technology, rather than training requests which are administered and charged in accordance with clause 20.

Asset Vision reserves the right to differentiate between training provision and technical support issues in its absolute discretion and will advise the Client accordingly.

Support will be provided to Client one support incident at a time. The Client, where possible, shall give Asset Vision a documented example of the defect or error demonstrating the manner in which the Asset Vision Technology is not performing within its operating specifications.

Support personnel will then attempt to explain the observed behaviour or consider modifications to the Asset Vision Technology to ‘correct’ the observed behaviour. Unless otherwise agreed by Asset Vision, the provision of support services under this clause 21 will not cover correction of minor errors or defects that do not significantly impinge on the performance of the Asset Vision Technology.

22. Intellectual Property

As between the parties, Asset Vision and its licensors exclusively own all right, title, and interest in and to all Intellectual Property Rights in the Asset Vision Technology, notwithstanding anything in this agreement purportedly to the contrary.

Except for the access and use rights, and licenses expressly granted in clause 2 of this agreement, Asset Vision, on behalf of itself and its licensors, reserves all rights in the Asset Vision Technology and does not grant Client any rights (express, implied, by estoppel, through exhaustion, or otherwise).

Any Asset Vision Technology delivered to Client or to which Client is given access shall not be deemed to have been sold, even if, for convenience, Asset Vision makes reference to words such as “sale” or “purchase” in the applicable Order Form or other documents.

As between the parties, Client and its licensors will retain all right, title, and interest in and to all Intellectual Property Rights in Client Data and Client Technology.

Client hereby grants to Asset Vision a royalty-free, fully-paid, non-exclusive, non-transferrable, worldwide, right to use Client Data and Client Technology solely to provide and support the Asset Vision Technology.

23. Confidentiality

Neither Asset Vision nor the Client shall, without the prior written approval of the other party, disclose any Confidential Information. Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party’s Confidential Information and this clause shall survive the termination of this agreement.

However, either party shall not be in breach in circumstances where it is legally compelled to disclose other party’s Confidential Information, including solicitors, auditors, insurers and accountants. Asset Vision must use reasonable endeavours to keep confidential any information in its possession or control and take reasonable steps to protect it against unauthorised duplication, access or security breaches and that the Client acknowledges that Asset Vision does not warrant that any data or information will be protected against unauthorised duplication, access or security breaches by unauthorised access (including hacking attack, virus or other malicious or harmful code).

24. Indemnity and limitation of liability

The Client indemnifies and keeps indemnified and holds harmless Asset Vision, its servants, agents and contractors from and against any loss, claims or damages that may be made against them or sustained by them as a result of any breach of this agreement and obligations by the Client.

Except in relation to liability for personal injury (including sickness and death), Asset Vision shall be under no liability to the Client in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied by Asset Vision or in respect of any failure or omission on the part of Asset Vision to comply with its obligations.

The Client agrees that it has not relied on any representation made by Asset Vision which has not been stated expressly in this agreement, or upon any descriptions, illustrations or specifications contained in any document including catalogues, proposals or publicity material produced by Asset Vision, and that the Client has been provided with an opportunity to independently verify the accuracy of any documents provided and in doing so shall at all times indemnify and hold harmless Asset Vision and its officers, employees and agents from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by a breach by the Client of its obligations under this agreement or any wilful, unlawful or negligent act or omission of the Client.

To the extent, if any, that the terms and conditions of the Competition and Consumer Act 2010 (Cth), including the Australian Consumer Law, or other applicable legislation prevents Asset Vision from excluding certain liability in this agreement, such liability will be limited to the extent permitted by such Law in respect of a supply of services, to:

(i) the supplying of the services again, or

(ii) the payment of the cost of having the services supplied again.

Notwithstanding any other provision of this agreement or any Order Form to the contrary, nothing therein will derogate from any requirement to provide a refund under the Australian Consumer Law.

If Client is acquiring services as a “consumer” for the purposes of the Australian Consumer Law, the benefits given by any warranties that are a “warranty against defects” (as such term is defined in the Australian Consumer Law) are in addition to any other rights and remedies available to Client under a law in relation to the services to which such warranty relates and, in such case,

“Our services come with guarantees that cannot be excluded under the Australian Consumer Law.

For major failures with the service, you are entitled:

• to cancel your service and service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.”

25. Service availability

Availability of the Asset Vision Technology will be provided at 99.9% uptime, not counting planned maintenance schedules, which will be advised a minimum of five (5) working days prior to the day on which planned maintenance is expected to occur. The availability metric of 99.9% will be measured on a rolling 6-month period basis.

27. GST

A party must pay GST on a Taxable Supply made to it under this document, in addition to any consideration (excluding GST) that is payable for that Taxable Supply.  It must do so at the same time and in the same way as it is required to pay the consideration for the Taxable Supply.

A party making a Taxable Supply to another party under this document must issue a Tax Invoice to the other party, setting out the amount of the GST payable by that other party.

If a party is required under this document to indemnify another party, or to make a reimbursement or contribution to another party, and that other party can obtain an Input Tax Credit on an acquisition associated with that indemnity, reimbursement or contribution, the amount the party is required to pay is:

• reduced by the amount of that Input Tax Credit; but
• increased by any GST payable by that other party in respect of the indemnity, reimbursement or contribution.

For the purposes of this clause 27 ‘GST’, ‘Input Tax Credit’, ‘Taxable Supply’ and ‘Tax Invoice’ have the meanings attributed to those terms in A New Tax System (Goods and Services Tax) Act 1999.

28. Severability

If any term of this agreement is held invalid, unenforceable, or void by a court of competent jurisdiction, such term will be enforced to the maximum extent permissible, such holding will not affect the remaining terms, and the invalid, unenforceable, or void term will be deemed amended or replaced by a valid, legal, and enforceable term that matches the intent of the original language as closely as possible.

29. Relationship of parties

The parties are independent contractors. Nothing in this agreement will be construed to create a partnership, joint venture, agency, or other relationship. Neither party has any right or authority to assume or create any obligation of any kind, express or implied, in the other party’s name or on its behalf.

30. Entire agreement

This agreement (together with the Order Forms) is the parties’ entire agreement regarding its subject matter and supersedes all prior or contemporaneous oral or written agreements, representations, understandings, undertakings, negotiations, letters of intent, and proposals, with respect to such subjects.

The terms of this agreement apply to the exclusion of any other terms Client seeks to impose or incorporate, or that may be implied by trade, custom, practice, or course of dealing.

Client acknowledges it has not relied on any statement, promise, or representation made or given by or on behalf of Asset Vision that is not expressly stated in this agreement.

31. Governing law and jurisdiction

This agreement shall be governed by the laws of the state of Victoria, Australia. The parties hereby irrevocably consent to the non-exclusive jurisdiction of its courts for the purposes of adjudicating any dispute arising out of this agreement. Each party expressly consents to service of process by registered mail.