The Terms of Use Agreement is between the 'User' named in the relevant Order Form ('User' or 'you') and Bluewater Control Pty Ltd (ABN 14 614 164 519) ("Bluewater"). Bluewater may modify these Terms of Use from time to time, subject to the terms in clause 13.3. These Terms of Use apply whether you purchase Bluewater Services directly from Bluewater, or through a Reseller.
If you have any questions, please contact us at customersuccess@bluewatercontrol.com
This Agreement is between the 'User' named in the relevant Order Form ('User' or 'you') and Bluewater Control Pty Ltd (ABN 14 614 164 519) ("Bluewater"). Bluewater may modify these Terms of Use from time to time, subject to the terms in clause 13.3. These Terms of Use apply whether you purchase Bluewater Services directly from Bluewater, or through a Reseller.
By signing an Order Form, or by using and accessing Bluewater Services, you indicate your agreement to be bound by these Terms of Use.
This agreement consists of the following parts:
(a) the Order Form;
(b) these Terms of Use; and
(c) the Documentation.
("Agreement")
If there is any conflict between the Order Form, these Terms of Use and the Documentation, to the extent of the inconsistency, the document higher in the above list will prevail over a document lower in the list.
Bluewater grants the User a temporary, limited, non-exclusive, non-transferable and world-wide right to use the Bluewater Service, the Bluewater Materials and the Documentation solely for the User's internal business operations.
Bluewater will:
(a) provide the Bluewater Services as described in the Order Form;
(b) use appropriate security technologies in providing the Bluewater Service; and
(c) will comply with all applicable laws when providing the Bluewater Service.
The Bluewater Services may be modified by Bluewater at any time. Modifications may include optional new features for the Bluewater Services, which the User may use subject to the then current Documentation.
The User must not:
(a) reverse engineer, copy, translate, disassemble, decompile or make derivative works from the Bluewater Service;
(b) circumvent the usual operation of or security measures contained within the Bluewater Services; or
(c) upload any content or data that is unlawful or infringes any intellectual property rights of another person when using the Bluewater Services.
The User may permit Authorised Users to use the Bluewater Services. That usage is subject to the restrictions set out in the Agreement. The User is solely responsible for breaches of this Agreement caused by Authorised Users.
Third party facilities, including software programs, may be necessary for access to the Bluewater Services. The User agrees that its right to make any use of such facilities is governed by the terms of the relevant third-party licence or service agreement and not by this Agreement, and that rights to such facilities remain with the applicable licensor. User acknowledges that any third-party software provided with or contained in the Bluewater Services is provided "as is" and without warranty of any kind.
The Initial Subscription Term of the Bluewater Services is specified in the Order Form ("Initial Term"). At the end of the Initial Term the Subscription will automatically renew for successive 1 month Subscription Term periods, unless either party gives written notice 45 days prior to the next renewal date to cancel the relevant Bluewater Services.
In consideration of the supply of the Bluewater Services during the Subscription Term, the Customer agrees to pay the fees set out in the Order Form in accordance with the Order Form (whether or not the Order Form is issued by Bluewater or the Reseller).
(a) The User is solely responsible for the accuracy and completeness of its own User Data and the provision of it to Bluewater for the purpose of providing the Bluewater Services. The User retains all rights to the User Data. The User grants to Bluewater and its Affiliates, as well as subcontractors, a non-exclusive right to process the User Data solely to provide and support the Bluewater Services. Bluewater will not use, or allow anyone else to use, User Data to contact any individual or company except as you direct or otherwise permit. When accessing the Bluewater Services through a Reseller, you consent that Bluewater may disclose any information, including User Data and/or personal data, contained on the Bluewater Platform to the Reseller.
(b) You agree that Bluewater may monitor your use of the Bluewater Services, and create anonymised aggregate information from User Data. This aggregated data will not contain personal information and may be combined with aggregate data Bluewater collects from other Users. You agree that Bluewater owns all rights in aggregate data and we may use aggregate data for any purpose, including publishing such data.
(c) User Data held on the Bluewater Services is hosted in Australia. If you select to use one of the Bluewater Connector products, for the purpose of integrating with your internal systems, you acknowledge and accept that this may involve the routing of such data through a country outside of Australia (for example, USA).
(d) Bluewater's use and collection of User Data is also governed by the Bluewater Privacy Policy and the Bluewater User Data Policy accessible at on the Bluewater portal login page.
The User will collect, use, handle and maintain all personal data contained in the User Data in compliance with applicable privacy and data protection laws, including the Privacy Act 1988 (Cth). The User warrants that it has all necessary consent to use and disclose personal information (as defined in the Privacy Act 1988 (Cth)) as contemplated by these Terms of Use.
The User will maintain reasonable security standards for its Authorised Users' use of the Bluewater Services. Bluewater will use reasonable endeavours to maintain the security of data held on the Bluewater Platform. The User acknowledges that use of the Bluewater Services involves transmission of information over networks that are not owned, operated or controlled by Bluewater, and Bluewater is not responsible for any lost, altered, intercepted or stored information across such networks.
(a) Subject to cause 4.4
(b), during the Subscription Term, the User can:
(i) access its User Data at any time; and
(ii) export and retrieve its User Data in a standard format subject to any technical limitations specified in the Documentation.
(b) During the Subscription Term Bluewater retains a database archive of User Data for 2 years from the date Bluewater receives the User Data.
(c) Following the expiry of the Subscription Term, Bluewater will delete or overwrite the User Data within 10 Business Days unless an applicable law requires its retention. Any retained User Data will be held by Bluewater in accordance with the confidentiality provisions of these Terms of Use.
(a) Upon the User's instruction, during the Subscription Term, Bluewater may facilitate API access between the Bluewater platform and other software programs to enhance the functionality of the Bluewater Services. The User agrees that it will be bound by the API Terms of Use.
(b) If the User authorises Bluewater to facilitate such access to a third party managed service provider (MSP), the User:
(i) acknowledges and agrees such access will be subject to the API Terms of Use and the MSP must agree to be bound by those terms; and
(ii) represents and warrants to Bluewater that it has obtained all necessary consents for such disclosure to the MSP from relevant third parties, including, where personal information is included in the User Data, from the affected individuals in accordance with the Privacy Act 1988 (Cth).
(a) A party may terminate this Agreement:
(i) upon 30 days' prior written notice of the other party's material breach (including, without limitation, the User's failure to pay any fees due for the Bluewater Service) unless the breach is rectified during that 30 day period; or
(ii) immediately, if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches clauses 9 or 13.8.
(b) where the User has acquired the Bluewater Services through a Reseller, Bluewater may suspend the provision of the Bluewater Services if the relevant Reseller is no longer authorised to provide the relevant Bluewater Services.
5.2 Effect of expiration or termination
Upon the effective date of expiration or the termination of this Agreement:
(a) the User's right to use the Bluewater Services and all Bluewater Confidential Information will end, and the User's data will be deleted from Bluewater databases.
(b) the User will pay all fees which are due and payable to Bluewater without set-off, counterclaim or condition.
5.3 Suspension of service
Bluewater may suspend use of the Bluewater Services if:
(a)continued use by the User may result in material harm to the Bluewater Services or its users;
(b) the User breaches the Agreement;
(c) The User fails to pay any sums under the Agreement when due.
Bluewater will notify the User of the suspension. Bluewater will limit the suspension in time and scope as reasonably possible under the circumstances.
Clauses 6, 7, 8, 9, 14, 13.3 and 13.4 will survive the expiration or termination of this Agreement.
The User warrants that it will comply with all applicable laws and regulations when using the Bluewater Service.
(a) Bluewater will use reasonable endeavours to make the Bluewater Services available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
(b) Subject to clause 6.2(c) and 6.2(e) the Bluewater Platform will have a Platform Availability of 99.5% of the time during each billing Month.
(c) Clause 6.2(a) does not apply to any performance or availability issues:
(i) Due to Scheduled Downtime windows outside business hours for which the User has been notified at least five (5) Business Days prior to such a Scheduled Downtime;
(ii) Due to unavailability caused by factors outside Bluewater's reasonable control, such as unpredictable and unforeseeable events that could not have been avoided even if reasonable care had been exercised;
(iii) That result from the Users unauthorized action or lack of action when required, or from User employees, agents, contractors, or vendors, or anyone gaining access to the Bluewater Platform by means of the User's passwords or equipment, or otherwise resulting from the User's failure to follow appropriate security practices;
(iv) Due to the result from the use of services, hardware, or software not provided by Bluewater, including, but not limited to, issues resulting from inadequate bandwidth, network availability, or related to third-party software or services; and
(v) For licenses reserved, but not paid for, at the time of the relevant Incident.
(d) In this clause 6.2 the following words have the following meanings:
"Bluewater Platform" means Bluewater's cloud-based mobility management "platform" offered under a subscription basis.
"Downtime" means the total minutes in the Month during which the productive version of the applicable Bluewater Platform is not available, except for Scheduled Downtimes.
"Incident" means (i) any single event, or (ii) any set of events, that result in Downtime.
"Maximum Available Minutes" are measured 24 hours at 7 days a week during a billing Month.
"Month" means a calendar month.
"Platform Availability" is calculated per billing Month using the following formula: Platform Availability % = (Maximum Available Minutes-Downtime)/(Maximum Available Minutes) x 100.
"Scheduled Downtime" Bluewater Platform unavailability due to planned servicing, maintenance or system deployment activities.
(e) The User acknowledges that Bluewater's failure to meet the level of Platform Availability set out in clause 6.2(a) does not constitute a breach of this Agreement.
During the Subscription Term, we will provide support for the Bluewater Services in accordance with the following guidelines and the applicable Order Form.
Support entitlements
User Portal Administrators
L1: Application down
An error that renders the Bluewater Platform inoperative. If the Bluewater Platform is down or does not function at all, and there is no workaround to the problem.
L2: Serious Degradation
One element of the Bluewater Platform is unavailable or degraded causing a major impact on productivity, but the Bluewater Platform as a whole remains operational.
L3: Low Impact / Enquiry
L1: 2 business hours
L2: 6 business hours
L3: 2 business days
Support hours
9AM-5PM (AEST) Excluding Public Holidays
To the maximum extent permitted by law, except as expressly provided in this Agreement, neither Bluewater nor its subcontractors make any representations or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any Bluewater Services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. The User agrees that it is not relying on delivery of future functionality, public comments or advertising of Bluewater or product roadmaps in obtaining subscriptions for any Bluewater Service.
The User will indemnify Bluewater against all liability, cost, damages and claims brought against Bluewater and its Affiliates and subcontractors by any third party related to the User Data, use by the User of the Bluewater Services, breaches by the User of confidentiality or privacy, or infringement of Bluewater's intellectual property rights.
To the extent permitted by law, Bluewater and its licensors will not be responsible under this Agreement:
(a) if the Bluewater Services are not used in accordance with the Documentation;
(b) for liability caused by the Reseller, the User or any third-party product or service (for the avoidance of doubt, this includes any orders or requests placed by the User that are not fulfilled or actioned by the Reseller or Users' provisioning party);
(c) for loss arising from use of the Bluewater Services in conjunction with any product or service not provided by Bluewater;
(d) for any User activities not permitted under this Agreement; or
(e) for any loss or corruption of data.
Bluewater and its licensors will not be liable for any claims or damages arising from inherently dangerous use of any of the Bluewater Services provided under or in connection with this Agreement.
To the extent permitted by law, Bluewater's liability for a breach of this Agreement (including liability for negligence) is limited to an amount equal to the subscription fees paid by the User in the 12-Month period immediately preceding the breach of this Agreement.
To the maximum extent permitted by law, neither party will be liable to the other party for any consequential loss or damage. The following losses constitute consequential loss, whether they arise directly or indirectly from the relevant acts or omissions of a party:
(a) loss of profit, use, rental or other benefit;
(b) loss of production, revenue, actual or potential opportunity;
(c) damage to goodwill or reputation;
(d) loss of anticipated savings;
(e) business interruption; or
(f) any form of consequential loss (that is, loss does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the loss).
Nothing in this Agreement excludes any rights the User or any other person may have under the Australian Consumer Law (schedule 2 to the Competition and Consumer Act 2010 (Cth)). When supplied to a 'consumer' (as defined in the Australian Consumer Law), Bluewater's Services come with guarantees that cannot be excluded. Our liability for breach of a consumer guarantee under the Australian Consumer Law (or any term implied by law) will be limited, at our option, to:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods;
(iv) the payment of the cost of having the goods repaired; or
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
Bluewater, its Affiliates or its licensors own all intellectual property rights in and related to the Bluewater Service, the Bluewater Materials, Documentation, design contributions, related knowledge or processes and any derivative works of them. All rights not expressly granted to the User are reserved to Bluewater, its Affiliates or its licensors.
The User retains all rights in and related to the User Data. Bluewater may use the User Data for the sole purpose of providing the Bluewater Service.
The User undertakes that it will not assert any right, title or interest in the Bluewater Service, the Bluewater Materials or Documentation other than the right to use those products or services in accordance with this Agreement. The User undertakes that it will not register a security interest on the Personal Properties Securities Register in the Bluewater Service, the Bluewater Materials or Documentation.
(a) The receiving party will keep confidential all Confidential Information of the disclosing party.
(b) The receiving party will not disclose the Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorised Users whose access is necessary to enable it to exercise its rights or perform its obligations under this Agreement and who are under an obligation to keep that information confidential. Notwithstanding the foregoing provision, the User will not disclose the Agreement or the pricing to any person without the prior written consent of Bluewater.
(c) It is agreed that all Confidential Information of either party disclosed prior to the execution of and entry into this Agreement will be subject to the provisions of clause 10.
(d) If the receiving party is required by law to disclose the Confidential Information of the disclosing party, then the receiving party must promptly notify the disclosing party of that matter and must seek appropriate orders or undertakings from the Court or relevant government agency preserving the confidentiality of that information. The receiving party must also disclose the minimum amount of Confidential Information to the extent permitted by law.
(e) The receiving party must promptly return or destroy all Confidential Information of the disclosing party on the earlier of the termination of this Agreement or a written request to do so from the disclosing party.
The restrictions imposed by this Agreement on the use or disclosure of Confidential Information do not apply to any Confidential Information that:
(a) is independently developed by the receiving party without reference to the disclosing party's Confidential Information;
(b) is generally available to the public without a breach of this Agreement by the receiving party;
(c) at the time of disclosure, was known to the receiving party free of any obligation of confidentiality; or
(d) the disclosing party agrees in writing may be disclosed by the receiving party.
Bluewater may identify the User in its promotional materials. The User may request that Bluewater stop doing so by submitting an email to customersuccess@bluewatercontrol.com.
The parties agree that all amounts payable under this Agreement are expressed on a GST exclusive basis. If GST is payable in relation to a Taxable Supply, then the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement.
In clause 11, the terms "GST", "Taxable Supply" and "Input Tax Credit" have the meaning given in A New Tax System (Goods and Goods Tax) Act 1999 (Cth).
Bluewater may in its sole discretion suspend the User's use of the Bluewater Services if an applicable fee or other amount payable by a Reseller is not paid by the relevant due date.
If:
(a) the Reseller terminates all orders relating to the User;
(b) Bluewater terminates any of the Reseller's orders relating to the User for cause; or
(c) the contractual relationship between Bluewater and the Reseller relating to the sale of Bluewater Services is terminated,
then Bluewater may (depending on the User's choice):
(i) directly provide the affected Bluewater Services to the User pursuant to Bluewater's then current terms and conditions for the Bluewater Services for a mutually agreed fee; or
(ii) recommend to the User other resellers or third parties for the provision of the affected Bluewater Services.
Nothing in this Agreement creates a relationship of employment, trust, agency, partnership or fiduciary between the parties.
This Agreement contains the entire agreement and understanding between the parties in respect of its subject matter and supersedes any prior agreement or understanding between the parties on anything connected with that subject matter.
Bluewater may modify these Terms of Use from time to time. If a revision meaningfully reduces your rights, Bluewater will use reasonable efforts to notify the User (by, for example, sending an email to the User's account contact in your Order Form, or in the Bluewater Platform itself). If Bluewater modifies the Agreement during your Subscription Term, the modified version will be effective upon the next renewal of a Subscription Term. In this case if the User objects to the updated Agreement, as your exclusive remedy, then the User may choose not to renew, including cancelling any terms set to auto-renew. For the avoidance of doubt, any signing of an Order Form is subject to the version of the Terms of Use in effect at the time of signing.
Any provision of, or the application of any provision of, this Agreement that is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.
Waiver of any right, power, authority, discretion or remedy arising on default under this Agreement must be in writing and signed by the party granting the waiver. A failure or delay in exercise, or partial exercise, of a right, power, authority, discretion or remedy created or arising on default under this Agreement does not result in a waiver of that right, power, authority, discretion or remedy.
This Agreement is governed by the law in force in New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.
This Agreement may not be assigned or transferred by the User without the prior written consent of Bluewater. Bluewater may assign or transfer this Agreement to an Affiliate without having to obtain the prior written consent of the User.
Bluewater may subcontract all or part of the Bluewater Services to any of its Affiliates or third parties. Bluewater is responsible for all breaches of this Agreement caused by its Affiliates or third parties.
It is agreed that a delay in the performance that is caused by conditions beyond the reasonable control of the performing party is not a breach of this Agreement (except in relation to an obligation to pay). The time for performance will be extended for a period equal to the duration of the conditions preventing performance. The foregoing provisions do not apply to an obligation to pay any amounts due and payable under this Agreement.
All notices must be in writing and given to the address set out in the Order Form. A notice may be sent by post, facsimile transmission or email to the recipient's address set out in the Order Form.
In this agreement:
Affiliates of a party means any legal entity in which a party, directly or indirectly, holds more than 50% of the entity's shares or voting rights. To be clear, any legal entity will be treated as an Affiliate of the relevant party for the purposes of this Agreement so long as that party maintains more than 50% of that entity's shares or voting rights.
API Terms of Use means the Bluewater API terms of use as amended from time to time available at: https://www.bluewatercontrol.com/legal/.
Authorised Users means any individual who is an employee, agent, contractor or representative of the User or the User's Affiliates to whom the User grants access authorisation to use the Bluewater Services.
Bluewater means Bluewater Control Pty Ltd (ACN 614 164 519).
Bluewater Materials means any materials provided or developed by Bluewater (independently or with a Reseller's and/or a User's co-operation) in the course of the performance of this Agreement, including in the delivery of any support or Bluewater Services to the User. To be clear, the Bluewater Materials do not include the User Data or User Confidential Information.
Bluewater Services means (a) Bluewater's cloud-based mobility management "platform" offered on a subscription basis; (b) Bluewater's "managed platform" product, bundling managed services with the platform; and (c) any other services outlined in the Order Form offered outside our hosted platform (e.g. training, analysis and implementation) provided by Bluewater to the User under the Order Form.
Business Days means a day on which banks are open for business in Sydney.
Confidential Information means:
(a) with respect to the User:
(i) the User's Data;
(ii) the User's marketing and business requirements;
(iii) the User's implementation plans; or
(iv) the User's financial information;
(b) with respect to Bluewater:
(i) the Bluewater Services, Documentation, Bluewater Materials; and
(ii) information regarding Bluewater research and development, product offerings, pricing and availability;
(c) Confidential Information of either Bluewater or the User also includes information which the disclosing party protects against unrestricted disclosure to others that:
(i) the disclosing party or its representatives designates as confidential at the time of disclosure; or
(ii) should reasonably be understood to be confidential given the nature of the information and circumstances surrounding its disclosure.
Documentation means the then current technical and functional documentation of Bluewater as well as any descriptions of the roles and responsibilities for the Bluewater Services which is made available to the User with the Bluewater Services.
Initial Subscription Term means the initial term of a Bluewater Services subscription which is identified in the applicable Order Form.
Order Form means an order form executed by the User and either Bluewater or a Reseller which references these Terms of Use.
Reseller means a party holding an agreement with Bluewater as a non-exclusive reseller of Bluewater Services. Resellers typically offer the Bluewater Platform as part of their broader managed service offering.
Subscription Term means the term of the Bluewater Services subscription the initial term of which is identified in the Order Form, including all renewals.
Terms of Use means this document.
User means the party identified in the Order Form.
User Data means any content, materials, data and information that Authorised Users enter into a system of a Bluewater Services or that User derives from its use of and stores in the Bluewater Services such as User specific reports. To be clear, User Data and its derivatives will not include Bluewater's Confidential Information.
In these Terms of Use:
(a) the singular includes plural and conversely;
(b) headings are used for convenience only and do not affect interpretation of these Terms of Use;
(c) where any word or phrase is given a defined meaning, any other grammatical form of that word or phrase has a corresponding meaning;
(d) references to clauses, schedules, or annexures refer to clauses, schedules or annexures of this Agreement;
(e) a reference to any party to this Agreement or any other agreement or document includes the party's successors and permitted assigns;
(f) the words "including", "for example" or similar expressions are not words of limitation; and
(g) no rule of construction of documents shall apply to the disadvantage of a party, on the basis that the party put forward this document or any relevant part of it.
End.
This Agreement is between the 'User' named in the relevant Order Form ('User' or 'you') and Bluewater Control Pty Ltd (ABN 14 614 164 519) ("Bluewater"). Bluewater may modify these Terms of Use from time to time, subject to the terms in clause 13.3. These Terms of Use apply whether you purchase Bluewater Services directly from Bluewater, or through a Reseller.
By signing an Order Form, or by using and accessing Bluewater Services, you indicate your agreement to be bound by these Terms of Use.
This agreement consists of the following parts:
(a) the Order Form;
(b) these Terms of Use; and
(c) the Documentation.
If there is any conflict between the Order Form, these Terms of Use and the Documentation, to the extent of the inconsistency, the document higher in the above list will prevail over a document lower in the list.
Bluewater grants the User a temporary, limited, non-exclusive, non-transferable and world-wide right to use the Bluewater Service, the Bluewater Materials and the Documentation solely for the User's internal business operations.
Bluewater will:
(a) provide the Bluewater Services as described in the Order Form;
(b) use appropriate security technologies in providing the Bluewater Service; and
(c) will comply with all applicable laws when providing the Bluewater Service.
The Bluewater Services may be modified by Bluewater at any time. Modifications may include optional new features for the Bluewater Services, which the User may use subject to the then current Documentation.
The User must not:
(a) reverse engineer, copy, translate, disassemble, decompile or make derivative works from the Bluewater Service;
(b) circumvent the usual operation of or security measures contained within the Bluewater Services; or
(c) upload any content or data that is unlawful or infringes any intellectual property rights of another person when using the Bluewater Services.
The User may permit Authorised Users to use the Bluewater Services. That usage is subject to the restrictions set out in the Agreement. The User is solely responsible for breaches of this Agreement caused by Authorised Users.
Third party facilities, including software programs, may be necessary for access to the Bluewater Services. The User agrees that its right to make any use of such facilities is governed by the terms of the relevant third-party licence or service agreement and not by this Agreement, and that rights to such facilities remain with the applicable licensor. User acknowledges that any third-party software provided with or contained in the Bluewater Services is provided "as is" and without warranty of any kind.
The Initial Subscription Term of the Bluewater Services is specified in the Order Form ("Initial Term"). At the end of the Initial Term the Subscription will automatically renew for successive 1 month Subscription Term periods, unless either party gives written notice 45 days prior to the next renewal date to cancel the relevant Bluewater Services. .
In consideration of the supply of the Bluewater Services during the Subscription Term, the Customer agrees to pay the fees set out in the Order Form in accordance with the Order Form (whether or not the Order Form is issued by Bluewater or the Reseller).
(a) The User is solely responsible for the accuracy and completeness of its own User Data and the provision of it to Bluewater for the purpose of providing the Bluewater Services. The User retains all rights to the User Data. The User grants to Bluewater and its Affiliates, as well as subcontractors, a non-exclusive right to process the User Data solely to provide and support the Bluewater Services. Bluewater will not use, or allow anyone else to use, User Data to contact any individual or company except as you direct or otherwise permit. When accessing the Bluewater Services through a Reseller, you consent that Bluewater may disclose any information, including User Data and/or personal data, contained on the Bluewater Platform to the Reseller.
(b) You agree that Bluewater may monitor your use of the Bluewater Services, and create anonymised aggregate information from User Data. This aggregated data will not contain personal information and may be combined with aggregate data Bluewater collects from other Users. You agree that Bluewater owns all rights in aggregate data and we may use aggregate data for any purpose, including publishing such data.
(c) User Data held on the Bluewater Services is hosted in Australia. If you select to use one of the Bluewater Connector products, for the purpose of integrating with your internal systems, you acknowledge and accept that this may involve the routing of such data through a country outside of Australia (for example, USA).
(d) Bluewater's use and collection of User Data is also governed by the Bluewater Privacy Policy and the Bluewater User Data Policy accessible at on the Bluewater portal login page.
The User will collect, use, handle and maintain all personal data contained in the User Data in compliance with applicable privacy and data protection laws, including the Privacy Act 1988 (Cth). The User warrants that it has all necessary consent to use and disclose personal information (as defined in the Privacy Act 1988 (Cth)) as contemplated by these Terms of Use.
The User will maintain reasonable security standards for its Authorised Users' use of the Bluewater Services. Bluewater will use reasonable endeavours to maintain the security of data held on the Bluewater Platform. The User acknowledges that use of the Bluewater Services involves transmission of information over networks that are not owned, operated or controlled by Bluewater, and Bluewater is not responsible for any lost, altered, intercepted or stored information across such networks.
(a) Subject to cause 4.4(b), during the Subscription Term, the User can:
(i) access its User Data at any time; and
(ii) export and retrieve its User Data in a standard format subject to any technical limitations specified in the Documentation.
(b) During the Subscription Term Bluewater retains a database archive of User Data for 2 years from the date Bluewater receives the User Data.
(c) Following the expiry of the Subscription Term, Bluewater will delete or overwrite the User Data within 10 Business Days unless an applicable law requires its retention. Any retained User Data will be held by Bluewater in accordance with the confidentiality provisions of these Terms of Use.
(a) A party may terminate this Agreement:
(i) upon 30 days' prior written notice of the other party's material breach (including, without limitation, the User's failure to pay any fees due for the Bluewater Service) unless the breach is rectified during that 30 day period; or
(ii) immediately, if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches clauses 9 or 13.8.
(b) where the User has acquired the Bluewater Services through a Reseller, Bluewater may suspend the provision of the Bluewater Services if the relevant Reseller is no longer authorised to provide the relevant Bluewater Services.
Upon the effective date of expiration or the termination of this Agreement:
(a) the User's right to use the Bluewater Services and all Bluewater Confidential Information will end, and the User's data will be deleted from Bluewater databases.
(b) the User will pay all fees which are due and payable to Bluewater without set-off, counterclaim or condition.
Bluewater may suspend use of the Bluewater Services if:
(a)continued use by the User may result in material harm to the Bluewater Services or its users;
(b) the User breaches the Agreement;
(c) The User fails to pay any sums under the Agreement when due.
Bluewater will notify the User of the suspension. Bluewater will limit the suspension in time and scope as reasonably possible under the circumstances.
Clauses 6, 7, 8, 9, 14, 13.3 and 13.4 will survive the expiration or termination of this Agreement.
The User warrants that it will comply with all applicable laws and regulations when using the Bluewater Service.
(a) Bluewater will use reasonable endeavours to make the Bluewater Services available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
(b) Subject to clause 6.2(c) and 6.2(e) the Bluewater Platform will have a Platform Availability of 99.5% of the time during each billing Month.
(c) Clause 6.2(a) does not apply to any performance or availability issues:
(i) Due to Scheduled Downtime windows outside business hours for which the User has been notified at least five (5) Business Days prior to such a Scheduled Downtime;
(ii) Due to unavailability caused by factors outside Bluewater's reasonable control, such as unpredictable and unforeseeable events that could not have been avoided even if reasonable care had been exercised;
(iii) That result from the Users unauthorized action or lack of action when required, or from User employees, agents, contractors, or vendors, or anyone gaining access to the Bluewater Platform by means of the User's passwords or equipment, or otherwise resulting from the User's failure to follow appropriate security practices;
(iv) Due to the result from the use of services, hardware, or software not provided by Bluewater, including, but not limited to, issues resulting from inadequate bandwidth, network availability, or related to third-party software or services; and
(v) For licenses reserved, but not paid for, at the time of the relevant Incident.
(d) In this clause 6.2 the following words have the following meanings:
"Bluewater Platform" means Bluewater's cloud-based mobility management "platform" offered under a subscription basis.
"Downtime" means the total minutes in the Month during which the productive version of the applicable Bluewater Platform is not available, except for Scheduled Downtimes.
"Incident" means (i) any single event, or (ii) any set of events, that result in Downtime.
"Maximum Available Minutes" are measured 24 hours at 7 days a week during a billing Month.
"Month" means a calendar month.
"Platform Availability" is calculated per billing Month using the following formula: Platform Availability % = (Maximum Available Minutes-Downtime)/(Maximum Available Minutes) x 100.
"Scheduled Downtime" Bluewater Platform unavailability due to planned servicing, maintenance or system deployment activities.
(e) The User acknowledges that Bluewater's failure to meet the level of Platform Availability set out in clause 6.2(a) does not constitute a breach of this Agreement.
During the Subscription Term, we will provide support for the Bluewater Services in accordance with the following guidelines and the applicable Order Form.
Support entitlements
Support entitlements
L1: Application down
An error that renders the Bluewater Platform inoperative. If the Bluewater Platform is down or does not function at all, and there is no workaround to the problem.
L2: Serious Degradation
One element of the Bluewater Platform is unavailable or degraded causing a major impact on productivity, but the Bluewater Platform as a whole remains operational.
L3: Low Impact / Enquiry
L1: 2 business hours
L2: 6 business hours
L3: 2 business days
Support hours
9AM-5PM (AEST) Monday - Friday (Excluding Public Holidays)
To the maximum extent permitted by law, except as expressly provided in this Agreement, neither Bluewater nor its subcontractors make any representations or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any Bluewater Services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. The User agrees that it is not relying on delivery of future functionality, public comments or advertising of Bluewater or product roadmaps in obtaining subscriptions for any Bluewater Service.
The User will indemnify Bluewater against all liability, cost, damages and claims brought against Bluewater and its Affiliates and subcontractors by any third party related to the User Data, use by the User of the Bluewater Services, breaches by the User of confidentiality or privacy, or infringement of Bluewater's intellectual property rights.
To the extent permitted by law, Bluewater and its licensors will not be responsible under this Agreement:
(a) if the Bluewater Services are not used in accordance with the Documentation;
(b) for liability caused by the Reseller, the User or any third-party product or service (for the avoidance of doubt, this includes any orders or requests placed by the User that are not fulfilled or actioned by the Reseller or Users' provisioning party);
(c) for loss arising from use of the Bluewater Services in conjunction with any product or service not provided by Bluewater;
(d) for any User activities not permitted under this Agreement; or
(e) for any loss or corruption of data.
Bluewater and its licensors will not be liable for any claims or damages arising from inherently dangerous use of any of the Bluewater Services provided under or in connection with this Agreement.
To the extent permitted by law, Bluewater's liability for a breach of this Agreement (including liability for negligence) is limited to an amount equal to the subscription fees paid by the User in the 12-Month period immediately preceding the breach of this Agreement.
To the maximum extent permitted by law, neither party will be liable to the other party for any consequential loss or damage. The following losses constitute consequential loss, whether they arise directly or indirectly from the relevant acts or omissions of a party:
(a) loss of profit, use, rental or other benefit;
(b) loss of production, revenue, actual or potential opportunity;
(c) damage to goodwill or reputation;
(d) loss of anticipated savings;
(e) business interruption; or
(f) any form of consequential loss (that is, loss does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the loss).
Nothing in this Agreement excludes any rights the User or any other person may have under the Australian Consumer Law (schedule 2 to the Competition and Consumer Act 2010 (Cth)). When supplied to a 'consumer' (as defined in the Australian Consumer Law), Bluewater's Services come with guarantees that cannot be excluded. Our liability for breach of a consumer guarantee under the Australian Consumer Law (or any term implied by law) will be limited, at our option, to:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods;
(iv) the payment of the cost of having the goods repaired; or
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
Bluewater, its Affiliates or its licensors own all intellectual property rights in and related to the Bluewater Service, the Bluewater Materials, Documentation, design contributions, related knowledge or processes and any derivative works of them. All rights not expressly granted to the User are reserved to Bluewater, its Affiliates or its licensors.
The User retains all rights in and related to the User Data. Bluewater may use the User Data for the sole purpose of providing the Bluewater Service.
The User undertakes that it will not assert any right, title or interest in the Bluewater Service, the Bluewater Materials or Documentation other than the right to use those products or services in accordance with this Agreement. The User undertakes that it will not register a security interest on the Personal Properties Securities Register in the Bluewater Service, the Bluewater Materials or Documentation.
(a) The receiving party will keep confidential all Confidential Information of the disclosing party.
(b) The receiving party will not disclose the Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorised Users whose access is necessary to enable it to exercise its rights or perform its obligations under this Agreement and who are under an obligation to keep that information confidential. Notwithstanding the foregoing provision, the User will not disclose the Agreement or the pricing to any person without the prior written consent of Bluewater.
(c) It is agreed that all Confidential Information of either party disclosed prior to the execution of and entry into this Agreement will be subject to the provisions of clause 10.
(d) If the receiving party is required by law to disclose the Confidential Information of the disclosing party, then the receiving party must promptly notify the disclosing party of that matter and must seek appropriate orders or undertakings from the Court or relevant government agency preserving the confidentiality of that information. The receiving party must also disclose the minimum amount of Confidential Information to the extent permitted by law.
(e) The receiving party must promptly return or destroy all Confidential Information of the disclosing party on the earlier of the termination of this Agreement or a written request to do so from the disclosing party.
The restrictions imposed by this Agreement on the use or disclosure of Confidential Information do not apply to any Confidential Information that:
(a) is independently developed by the receiving party without reference to the disclosing party's Confidential Information;
(b) is generally available to the public without a breach of this Agreement by the receiving party;
(c) at the time of disclosure, was known to the receiving party free of any obligation of confidentiality; or
(d) the disclosing party agrees in writing may be disclosed by the receiving party.
10.3 Publicity
Bluewater may identify the User in its promotional materials. The User may request that Bluewater stop doing so by submitting an email to customersuccess@bluewatercontrol.com.
The parties agree that all amounts payable under this Agreement are expressed on a GST exclusive basis. If GST is payable in relation to a Taxable Supply, then the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement.
In clause 11, the terms "GST", "Taxable Supply" and "Input Tax Credit" have the meaning given in A New Tax System (Goods and Goods Tax) Act 1999 (Cth).
Bluewater may in its sole discretion suspend the User's use of the Bluewater Services if an applicable fee or other amount payable by a Reseller is not paid by the relevant due date.
If:
(a) the Reseller terminates all orders relating to the User;
(b) Bluewater terminates any of the Reseller's orders relating to the User for cause; or
(c) the contractual relationship between Bluewater and the Reseller relating to the sale of Bluewater Services is terminated,
then Bluewater may (depending on the User's choice):
(i) directly provide the affected Bluewater Services to the User pursuant to Bluewater's then current terms and conditions for the Bluewater Services for a mutually agreed fee; or
(ii) recommend to the User other resellers or third parties for the provision of the affected Bluewater Services.
Nothing in this Agreement creates a relationship of employment, trust, agency, partnership or fiduciary between the parties.
This Agreement contains the entire agreement and understanding between the parties in respect of its subject matter and supersedes any prior agreement or understanding between the parties on anything connected with that subject matter.
Bluewater may modify these Terms of Use from time to time. If a revision meaningfully reduces your rights, Bluewater will use reasonable efforts to notify the User (by, for example, sending an email to the User's account contact in your Order Form, or in the Bluewater Platform itself). If Bluewater modifies the Agreement during your Subscription Term, the modified version will be effective upon the next renewal of a Subscription Term. In this case if the User objects to the updated Agreement, as your exclusive remedy, then the User may choose not to renew, including cancelling any terms set to auto-renew. For the avoidance of doubt, any signing of an Order Form is subject to the version of the Terms of Use in effect at the time of signing.
Any provision of, or the application of any provision of, this Agreement that is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.
Waiver of any right, power, authority, discretion or remedy arising on default under this Agreement must be in writing and signed by the party granting the waiver. A failure or delay in exercise, or partial exercise, of a right, power, authority, discretion or remedy created or arising on default under this Agreement does not result in a waiver of that right, power, authority, discretion or remedy.
This Agreement is governed by the law in force in New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.
This Agreement may not be assigned or transferred by the User without the prior written consent of Bluewater. Bluewater may assign or transfer this Agreement to an Affiliate without having to obtain the prior written consent of the User.
Bluewater may subcontract all or part of the Bluewater Services to any of its Affiliates or third parties. Bluewater is responsible for all breaches of this Agreement caused by its Affiliates or third parties.
It is agreed that a delay in the performance that is caused by conditions beyond the reasonable control of the performing party is not a breach of this Agreement (except in relation to an obligation to pay). The time for performance will be extended for a period equal to the duration of the conditions preventing performance. The foregoing provisions do not apply to an obligation to pay any amounts due and payable under this Agreement.
All notices must be in writing and given to the address set out in the Order Form. A notice may be sent by post, facsimile transmission or email to the recipient's address set out in the Order Form.
In this agreement:
Affiliates of a party means any legal entity in which a party, directly or indirectly, holds more than 50% of the entity's shares or voting rights. To be clear, any legal entity will be treated as an Affiliate of the relevant party for the purposes of this Agreement so long as that party maintains more than 50% of that entity's shares or voting rights.
Authorised Users means any individual who is an employee, agent, contractor or representative of the User or the User's Affiliates to whom the User grants access authorisation to use the Bluewater Services.
Bluewater means Bluewater Control Pty Ltd (ACN 614 164 519).
Bluewater Materials means any materials provided or developed by Bluewater (independently or with a Reseller's and/or a User's co-operation) in the course of the performance of this Agreement, including in the delivery of any support or Bluewater Services to the User. To be clear, the Bluewater Materials do not include the User Data or User Confidential Information.
Bluewater Services means (a) Bluewater's cloud-based mobility management "platform" offered on a subscription basis; (b) Bluewater's "managed platform" product, bundling managed services with the platform; and (c) any other services outlined in the Order Form offered outside our hosted platform (e.g. training, analysis and implementation) provided by Bluewater to the User under the Order Form.
Business Days means a day on which banks are open for business in Sydney.
Confidential Information means:
(a) with respect to the User:
(i) the User's Data;
(ii) the User's marketing and business requirements;
(iii) the User's implementation plans; or
(iv) the User's financial information;
(b) with respect to Bluewater:
(i) the Bluewater Services, Documentation, Bluewater Materials; and
(ii) information regarding Bluewater research and development, product offerings, pricing and availability;
(c) Confidential Information of either Bluewater or the User also includes information which the disclosing party protects against unrestricted disclosure to others that:
(i) the disclosing party or its representatives designates as confidential at the time of disclosure; or
(ii) should reasonably be understood to be confidential given the nature of the information and circumstances surrounding its disclosure.
Documentation means the then current technical and functional documentation of Bluewater as well as any descriptions of the roles and responsibilities for the Bluewater Services which is made available to the User with the Bluewater Services.
Initial Subscription Term means the initial term of a Bluewater Services subscription which is identified in the applicable Order Form.
Order Form means an order form executed by the User and either Bluewater or a Reseller which references these Terms of Use.
Reseller means a party holding an agreement with Bluewater as a non-exclusive reseller of Bluewater Services. Resellers typically offer the Bluewater Platform as part of their broader managed service offering.
Subscription Term means the term of the Bluewater Services subscription the initial term of which is identified in the Order Form, including all renewals.
Terms of Use means this document.
User means the party identified in the Order Form.
User Data means any content, materials, data and information that Authorised Users enter into a system of a Bluewater Services or that User derives from its use of and stores in the Bluewater Services such as User specific reports. To be clear, User Data and its derivatives will not include Bluewater's Confidential Information.
In these Terms of Use:
(a) the singular includes plural and conversely;
(b) headings are used for convenience only and do not affect interpretation of these Terms of Use;
(c) where any word or phrase is given a defined meaning, any other grammatical form of that word or phrase has a corresponding meaning;
(d) references to clauses, schedules, or annexures refer to clauses, schedules or annexures of this Agreement;
(e) a reference to any party to this Agreement or any other agreement or document includes the party's successors and permitted assigns;
(f) the words "including", "for example" or similar expressions are not words of limitation; and
(g) no rule of construction of documents shall apply to the disadvantage of a party, on the basis that the party put forward this document or any relevant part of it.
End.
This Agreement is between you and Bluewater Control Pty Ltd (ABN 14 614 164 519) (“Bluewater”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. Bluewater may modify this Agreement from time to time, subject to the terms in clause 13.3. This Agreement applies whether you purchase Bluewater Services directly from Bluewater, or through a Reseller.
By signing an Order Form, or by using and accessing Bluewater Services, you indicate your agreement to be bound by this Agreement.
This agreement consists of the following parts:
(a) he Order Form;
(b) the Terms of Use; and
(c) the Documentation.
If there is any conflict between the Order Form, these Terms of Use and the Documentation, to the extent of the inconsistency, the document higher in the list will prevail over a document lower in the list.
Bluewater grants the Customer a temporary, limited, non-exclusive, non-transferable and world-wide right to use the Bluewater Service, the Bluewater Materials and the Documentation solely for the Customer’s internal business operations.
Bluewater will:
(a) provide the Bluewater Service as described in the Order Form;
(b) use reasonable security technologies in providing the Bluewater Service; and
(c) will comply with all applicable laws when providing the Bluewater Service.
The Bluewater Service may be modified by Bluewater at any time. Modifications may include optional new features for the Bluewater Service, which the Customer may use subject to the then current Documentation.
The Customer will not:
(a) reverse engineer, copy, translate dissemble, decompile or make derivative works of the Bluewater Service;
(b) circumvent the operation or security of the Bluewater Service; or
(c) transfer any content or data that is unlawful or infringes any intellectual property rights of another person when using the Bluewater Service.
The Customer may permit Authorised Users to use the Bluewater Service. That usage is subject to the restrictions set out in the Agreement. Access credentials for the Bluewater Service may not be used by more than the number of users stated in the Order Form or agreed to by Bluewater, but may be transferred from one individual to another if the original user is no longer permitted to use the Bluewater Service. The Customer is solely responsible for breaches of this Agreement caused by Authorised Users.
Third party facilities, including software programs, may be necessary for access to the Bluewater Services. The Customer agrees that its right to make any use of such facilities is governed by the terms of the relevant third-party licence or service agreement and not by this Agreement, and that title to such facilities remain with the applicable licensor. Customer acknowledges that any third-party software provided within or contained in the Bluewater Services is provided “as is” and without warranty of any kind.
The Initial Subscription Term of the Bluewater Services is specified in the Order Form (“Initial Term”) and shall automatically renew for 12 month periods (‘Renewal Term”) following the Initial Subscription Term unless either party gives written notice 45 days prior to end of the Initial Subscription Term or any Renewal Term of its intention to cancel the Bluewater Services described in applicable Order Form. Subscription pricing for each service is grandfathered under auto-renewals.
(a) In consideration of the supply of the Bluewater Services by Bluewater during the Subscription Term, the Customer agrees to pay the fees set out in the Order Form in accordance with the Order Form (whether or not the Order Form is issued by Bluewater or the Reseller).
(b) If the Customer purchases any Bluewater Services through a Reseller, the Customer owes payment to the Reseller as agreed between the Customer and the Reseller. The Customer acknowledges that Bluewater may terminate the Customer’s rights to use the Bluewater Services if Bluewater does not receive its corresponding payment from the Reseller.
(c) The subscription fees under the Order Form will remain fixed during the Subscription Term unless the Customer’s mobile services in operation managed in the Bluewater Platform exceed the number specified in the Order Form by greater than 10%. When this occurs the subscription fee may be increased to include the additional mobile services in the next billing period, or at the end of the calendar quarter for monthly subscriptions. Bluewater may, upon request, decrease the fee if there is a reduction in mobile services, up to but not below, the amount specified in the Order Form. Any new changes to the subscription fee for new services will be priced at the rate in the initial Subscription Term Order Form and co-terminate with the Initial Term or any renewal period.
(a) The Customer is solely responsible for the accuracy and completeness of its own Customer Data and the provision of it to Bluewater for the purpose of providing the Bluewater Service. The Customer retains all rights to the Customer Data. The Customer grants to Bluewater and its Affiliates, as well as subcontractors, a non-exclusive right to process the Customer Data solely to provide and support the Bluewater Service. Bluewater will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct or otherwise permit. When accessing the Bluewater Services through a Reseller, you consent that Bluewater may disclose any information, including Customer Data and/or personal data, contained on the Bluewater Platform to the Reseller.
(b) You agree that Bluewater may monitor the use of the Bluewater Services, and create anonymised aggregate information from Customer Data. This aggregated data will not contain personal information and may be combined with aggregate data Bluewater collects from other customers. You agree that Bluewater owns all rights in aggregate data and we may use aggregate data for any purpose, including publishing such data.
(c) Customer Data held on the Bluewater Service is hosted in Australia. If you select to use one of the Bluewater Connector products, for the purpose of integrating with your internal systems, you acknowledge and accept that this may involve the routing of such data through a country outside of Australia (for example, USA).
The Customer will collect, use, handle and maintain all personal data contained in the Customer Data in compliance with applicable privacy and data protection laws, including the Privacy Act 1988 (Cth). The Customer warrants that it has all necessary consent to use and disclose personal information (as defined in the Privacy Act 1988 (Cth)) as contemplated by this Agreement.
The Customer will maintain reasonable security standards for its Authorised Users’ use of the Bluewater Service. Bluewater will use reasonable endeavours to maintain reasonable security standards for the Bluewater Services. The Customer Acknowledges that use of the Bluewater Services involves transmission of information over networks that are not owned, operated or controlled by Bluewater, and Bluewater is not responsible for any lost, altered, intercepted or stored information across such networks.
(a) Subject to cause 4.4(b), during the Subscription Term, the Customer can:
(i) access its Customer Data at any time; and
(ii) export and retrieve its Customer Data in a standard format subject to any technical limitations specified in the Documentation.
(b) During the Subscription Term Bluewater retains a database archive of Customer Data for 3 years from the date Bluewater receives the Customer Data.
(b) Following the expiry of the Subscription Term, Bluewater will delete or overwrite the Customer Data unless an applicable law requires its retention. Any retained Customer Data will be held by Bluewater in accordance with the confidentiality provisions of these Terms of Use.
(a) A party may terminate this Agreement:
(i) upon 30 days’ prior written notice of the other party’s material breach (including, without limitation, the Customer’s failure to pay the Reseller any fees due for the Bluewater Service) unless the breach is rectified during that 30 day period; or
(ii) immediately, if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches clauses 9 or 13.8.
(b) Bluewater may terminate this Agreement if the relevant Bluewater Services that this Agreement relates to are terminated between Bluewater and the Reseller.
Upon the effective date of expiration or the termination of this Agreement:
(a) the Customer’s right to use the Bluewater Service and all Bluewater Confidential Information will end, and the Customer’s data will be deleted from Bluewater databases
(b) the Customer will pay all fees which are due and payable to Bluewater without set-off, counterclaim or condition.
Bluewater may suspend use of the Bluewater Service if:
(a) continued use by the Customer may result in material harm to the Bluewater Service or its users;
(b) the Customer breaches the Agreement;
(c) The Customer fails to pay any sums under the Agreement.
Bluewater will notify the Customer of the suspension. Bluewater will limit the suspension in time and scope as reasonably possible under the circumstances.
Clauses 6, 7, 8, 9, 14, 12.3 and 12.4 will survive the expiration or termination of this Agreement.
The Customer warrants that it will comply with all applicable laws and regulations when using the Bluewater Service.
(a) Bluewater will use reasonable endeavours to make the Bluewater Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
(b) Subject to clause 6.2(c) and 6.2(e) the Bluewater Platform will have a Platform Availability of 99.5% of the time during each billing Month.
(c) Clause 6.2(a) does not apply to any performance or availability issues:
(i) Due to Scheduled Downtime windows outside business hours for which the Customer has been notified at least five (5) business days prior to such a Scheduled Downtime;
(ii) Due to unavailability caused by factors outside Bluewater’s reasonable control, such as unpredictable and unforeseeable events that could not have been avoided even if reasonable care had been exercised;
(iii) That result from the Customers unauthorized action or lack of action when required, or from Customer employees, agents, contractors, or vendors, or anyone gaining access to the Bluewater Platform by means of the Customer’s passwords or equipment, or otherwise resulting from the Customer’s failure to follow appropriate security practices;
(iv) Due to the result from the use of services, hardware, or software not provided by Bluewater, including, but not limited to, issues resulting from inadequate bandwidth, network availability, or related to third-party software or services; and
(v) For licenses reserved, but not paid for, at the time of the relevant Incident.
(d) In this clause 6.2 the following words have the following meanings:
“Bluewater Platform” means Bluewater’s cloud-based mobility management “platform” offered under a subscription basis.
“Downtime” means the Total Minutes in the Month during which the productive version of the applicable Bluewater Platform is not available, except for Scheduled Downtimes.
"Incident" means (i) any single event, or (ii) any set of events, that result in Downtime.
“Maximum Available Minutes” are measured 24 hours at 7 days a week during a billing Month.
“Month” means a calendar month.
“Platform Availability” is calculated per billing Month using the following formula: Platform Availability % = (Maximum Available Minutes-Downtime)/(Maximum Available Minutes) x 100.
“Scheduled Downtime” Bluewater Platform unavailability due to planned servicing, maintenance or system deployment activities.
(e) The Customer acknowledges that Bluewater’s failure to meet the level of Platform Availability set out in clause 6.2(a) does not constitute a breach of this Agreement.
During the Subscription Term, we will provide Support for the Bluewater Service in accordance with the following guidelines and the Applicable Order Form.
Support entitlements
Customer Portal Administrators
L1: Application down
An error that renders the Bluewater Platform inoperative. If the Platform is down or does not function at all, and there is no workaround to the problem.
L2: Serious Degradation
One element of the Bluewater Platform is unavailable or degraded causing a major impact on productivity, but the Platform as a whole remains operational.
L3: Low Impact / Enquiry
Issues of minimal impact as workaround exists, or a general request.
Initial Response Time
L1: 2 business hours
L2: 6 business hours
L3: 2 business days
Support hours
9AM-5PM (AEST) Excluding Public Holidays
To the maximum extent permitted by law, except as expressly provided in this Agreement, neither Bluewater nor its subcontractors make any representations or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any Bluewater Services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. The Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of Bluewater or product roadmaps in obtaining subscriptions for any Bluewater Service.
The Customer will indemnify Bluewater against all liability, cost, damages and claims brought against Bluewater and its Affiliates and subcontractors by any third party related to the Customer Data, use by the Customer of the Bluewater Services, breaches by the Customer of confidentiality or privacy, or infringement of Bluewater’s intellectual property rights.
To the extent permitted by law, Bluewater and its licensors will not be responsible under this Agreement:
(a) if a Bluewater Service is not used in accordance with the Documentation;
(b) for liability caused by the Reseller, the Customer or any third-party product or service (for the avoidance of doubt, this includes any orders or requests placed by the Customer that are not fulfilled or actioned by the Reseller or Customers’ provisioning party);
(c) if the Bluewater Service is used in conjunction with any product or service not provided by Bluewater;
(d) for any Customer activities not permitted under this Agreement; or
(e) for any loss or corruption of data.
Bluewater and its licensors will not be liable for any claims or damages arising from inherently dangerous use of any of the Bluewater Services provided under or in connection with this Agreement.
To the extent permitted by law, Bluewater’s liability for a breach of this Agreement (including liability for negligence) is limited to the subscription fees paid by the Customer in the 12-month period immediately preceding the breach of this Agreement.
To the maximum extent permitted by law, neither party will be liable to the other party for any consequential loss or damage. The following losses constitute consequential loss, whether they arise directly or indirectly from the relevant acts or omissions of a party:
(a) loss of profit, use, rental or other benefit;
(b) loss of production, revenue, actual or potential opportunity;
(c) damage to goodwill or reputation;
(d) loss of anticipated savings;
(e) business interruption; or
(f) any form of consequential loss (that is, loss does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the loss).
Nothing in this Agreement excludes any rights a consumer as defined in schedule 2 to the Competition and Consumer Act 2010 (Cth) may have against Bluewater under the Competition and Consumer Act 2010 (Cth), if applicable. When supplied to a consumer, Bluewater’s Services come with guarantees that cannot be excluded under the Australian Consumer Law. Where a mandatory term or consumer guarantee is implied by law, our liability for breach of such term or consumer guarantee is limited, at our option, to:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods;
(iv) the payment of the cost of having the goods repaired; or
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
Bluewater, its Affiliates or its licensors own all intellectual property rights in and related to the Bluewater Service, the Bluewater Materials, Documentation, design contributions, related knowledge or processes and any derivative works of them. All rights not expressly granted to the Customer are reserved to Bluewater, its Affiliates or its licensors.
The Customer retains all rights in and related to the Customer Data. Bluewater may use the Customer Data for the sole purpose of providing the Bluewater Service.
The Customer undertakes that it will not assert any right, title or interest in the Bluewater Service, the Bluewater Materials or Documentation other than the right to use those products or services in accordance with this Agreement. The Customer undertakes that it will not register a security interest on the Personal Properties Securities Register in the Bluewater Service, the Bluewater Materials or Documentation.
(a) The receiving party will keep confidential all Confidential Information of the disclosing party.
(b) The receiving party will not disclose the Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorised Users whose access is necessary to enable it to exercise its rights or perform its obligations under this Agreement and who are under an obligation to keep that information confidential. Notwithstanding the foregoing provision, the Customer will not disclose the Agreement or the pricing to any person without the prior written consent of Bluewater.
(c) It is agreed that all Confidential Information of either party disclosed prior to the execution of and entry into this Agreement will be subject to the provisions of clause 10.
(d) If the receiving party is required by law to disclose the Confidential Information of the disclosing party, then the receiving party must promptly notify the disclosing party of that matter and must seek appropriate orders or undertakings from the Court or relevant government agency preserving the confidentiality of that information. The receiving party must also disclose the minimum amount of Confidential Information to the extent permitted by law.
(e) The receiving party must promptly return or destroy all Confidential Information of the disclosing party on the earlier of the termination of this Agreement or a written request to do so from the disclosing party.
The restrictions imposed by this Agreement on the use or disclosure of Confidential Information do not apply to any Confidential Information that:
(a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information;
(b) is generally available to the public without a breach of this Agreement by the receiving party;
(c) at the time of disclosure, was known to the receiving party free of any obligation of confidentiality; or
(d) the disclosing party agrees in writing may be disclosed by the receiving party.
Bluewater may identify the Customer in its promotional materials. The Customer may request that Bluewater stop doing so by submitting an email to customersuccess@bluewatercontrol.com.
11.1 The parties agree that all amounts payable under this Agreement are expressed on a GST exclusive basis. If GST is payable in relation to a Taxable Supply, then the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement.
11.2 In clause 11, the terms “GST”, “Taxable Supply” and “Input Tax Credit” have the meaning given in A New Tax System (Goods and Goods Tax) Act 1999 (Cth).
Bluewater may at its sole discretion suspend the Customer’s use of the Bluewater Service or terminate this Agreement if an applicable fee or other amount payable by a Reseller is not paid by the relevant due date.
If:
(a) the Reseller terminates all orders relating to the Customer;
(b) Bluewater terminates any of the Reseller’s orders relating to the Customer for cause; or
(c) the contractual relationship between Bluewater and the Reseller relating to the sale of Bluewater Services is terminated,
then Bluewater may (depending on the Customer’s choice):
(i) directly provide the affected Bluewater Service to the Customer pursuant to Bluewater’s then current terms and conditions for the Bluewater Service for a mutually agreed fee; or
(ii) recommend to the Customer other resellers or third parties for the provision of the affected Bluewater Service.
Nothing in this Agreement creates a relationship of employment, trust, agency, partnership or fiduciary between the parties.
This Agreement contains the entire agreement and understanding between the parties in respect of its subject matter and supersedes any prior agreement or understanding between the parties on anything connected with that subject matter.
Bluewater may modify this Agreement from time to time. If a revision meaningfully reduces your rights, Bluewater will use reasonable efforts to notify the Customer (by, for example, sending an email to the Customer’s account contact in your Order Form, or in the Product itself). If Bluewater modifies the Agreement during your Subscription Term, the modified version will be effective upon the next renewal of a Subscription Term. In this case if the Customer objects to the updated Agreement, as your exclusive remedy, then the Customer may choose not to renew, including cancelling any terms set to auto-renew. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
Any provision of, or the application of any provision of, this Agreement that is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.
Waiver of any right, power, authority, discretion or remedy arising on default under this Agreement must be in writing and signed by the party granting the waiver. A failure or delay in exercise, or partial exercise, of a right, power, authority, discretion or remedy created or arising on default under this Agreement does not result in a waiver of that right, power, authority, discretion or remedy.
This Agreement is governed by the law in force in New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.
This Agreement may not be assigned or transferred by the Customer without the prior written consent of Bluewater. Bluewater may assign or transfer this Agreement to an Affiliate without having to obtain the prior written consent of the Customer.
Bluewater may subcontract all or part of the Bluewater Service to any of its Affiliates or third parties. Bluewater is responsible for all breaches of this Agreement caused by its Affiliates or third parties.
It is agreed that a delay in the performance that is caused by conditions beyond the reasonable control of the performing party is not a breach of this Agreement (except in relation to an obligation to pay). The time for performance will be extended for a period equal to the duration of the conditions preventing performance. The foregoing provisions do not apply to an obligation to pay any amounts due and payable under this Agreement.
All notices must be in writing and given to the address set out in the Order Form. A notice may be sent by post, facsimile transmission or email to the recipient’s address set out in the Order Form.
In this agreement:
Affiliates of a party means any legal entity in which a party, directly or indirectly, holds more than 50% of the entity’s shares or voting rights. To be clear, any legal entity will be treated as an Affiliate of the relevant party for the purposes of this Agreement so long as that party maintains more than 50% of that entity’s shares or voting rights.
Authorised Users means any individual to whom the Customer grants access authorisation to use the Bluewater Service that is an employee, agent, contractor or representative of the Customer or the Customer’s Affiliates.
Bluewater means Bluewater Control Pty Ltd (ACN 614 164 519).
Bluewater Materials means any materials provided or developed by Bluewater (independently or with a Reseller’s and/or a Customer’s co-operation) in the course of the performance under this Agreement, including in the delivery of any support or Bluewater Services to the Customer. To be clear, the Bluewater Materials do not include the Customer Data, Customer Confidential Information or the Bluewater Service.
Bluewater Service means (a) Bluewater’s cloud-based mobility management “platform” offered under a subscription basis; (b) Bluewater’s “managed platform” product, bundling managed services with the platform; and (c) any other services outlined in the Order Form offered outside our hosted platform (e.g. training, analysis and implementation) provided by Bluewater to the Customer under the Order Form.
Business Days means a day on which banks are open for business in Sydney.
Business Partner means a legal entity that requires use of a Bluewater Service in connection with Customer’s and its Affiliate’s internal business operations. These may include, customers, distributors, service providers or suppliers of the Customer.
Confidential Information means:
(a) with respect to the Customer:
(i) the Customer Data;
(ii) the Customer marketing and business requirements;
(iii) the Customer implementation plans; or
(iv) the Customer financial information;
(b) with respect to Bluewater:
(i) the Bluewater Service, Documentation, Bluewater Materials and analyses under clause 2.2; and
(ii) information regarding Bluewater research and development, product offerings, pricing and availability;
(c) Confidential Information of either Bluewater or the Customer also includes information which the disclosing party protects against unrestricted disclosure to others that:
(i) the disclosing party or its representatives designates as confidential at the time of disclosure; or
(ii) should reasonably be understood to be confidential given the nature of the information and circumstances surrounding its disclosure.
Customer means the party identified in the Order Form.
Customer Confidential Information means Confidential Information of the Customer.
Customer Data means any content, materials, data and information that Authorised Users enter into a system of a Bluewater Service or that Customer derives from its use of and stores in the Bluewater Service such as Customer specific reports. To be clear, Customer Data and its derivatives will not include Bluewater’s Confidential Information.
Documentation means the then current technical and functional documentation of Bluewater as well as any descriptions of the roles and responsibilities for the Bluewater Services which is made available to the Customer with the Bluewater Service.
Initial Subscription Term means the initial term of a Bluewater Service subscription which is identified in the applicable Order Form.
Order Form means an order form concluded between Bluewater or a Reseller and the Customer which references these Terms of Use.
Reseller means a party holding an agreement with Bluewater as a non-exclusive reseller of Bluewater Services. Resellers typically offer the Bluewater Platform as part of their broader managed service offering.
Subscription Term means the term of the Bluewater Service subscription of which the initial term is identified in the Order Form, including all renewals.
Terms of Use means this document.
In this Agreement:
(a) the singular includes plural and conversely;
(b) headings are used for convenience only and do not affect interpretation of this Agreement;
(c) where any word or phrase is given a defined meaning, any other grammatical form of that word or phrase has a corresponding meaning;
(d) references to clauses, schedules, or annexures refer to clauses, schedules or annexures of this Agreement;
(e) a reference to any party to this Agreement or any other agreement or document includes the party's successors and permitted assigns;
(f) the words “including”, “for example” or similar expressions are not words of limitation; and
(g) no rule of construction of documents shall apply to the disadvantage of a party, on the basis that the party put forward this document or any relevant part of it.
End.
Effective 1 January 2021
This Agreement is between you and Bluewater Control Pty Ltd (ABN 14 614 164 519) (“Bluewater”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. Bluewater may modify this Agreement from time to time, subject to the terms in clause 13.3. This Agreement applies whether you purchase Bluewater Services directly from Bluewater, or through a Reseller.
By signing an Order Form, or by using and accessing Bluewater Services, you indicate your agreement to be bound by this Agreement.
This agreement consists of the following parts:
(a) the Order Form;
(b) the Terms of Use; and
(c) the Documentation.
(“Agreement”)
If there is any conflict between the Order Form, these Terms of Use and the Documentation, to the extent of the inconsistency, the document higher in the list will prevail over a document lower in the list.
Bluewater grants the Customer a temporary, limited, non-exclusive, non-transferable and world-wide right to use the Bluewater Service, the Bluewater Materials and the Documentation solely for the Customer’s internal business operations.
Bluewater will:
(a) provide the Bluewater Service as described in the Order Form;
(b) use reasonable security technologies in providing the Bluewater Service; and
(c) will comply with all applicable laws when providing the Bluewater Service.
The Bluewater Service may be modified by Bluewater at any time. Modifications may include optional new features for the Bluewater Service, which the Customer may use subject to the then current Documentation.
The Customer will not:
(a) reverse engineer, copy, translate dissemble, decompile or make derivative works of the Bluewater Service;
(b) circumvent the operation or security of the Bluewater Service; or
(c) transfer any content or data that is unlawful or infringes any intellectual property rights of another person when using the Bluewater Service.
The Customer may permit Authorised Users to use the Bluewater Service. That usage is subject to the restrictions set out in the Agreement. Access credentials for the Bluewater Service may not be used by more than the number of users stated in the Order Form or agreed to by Bluewater, but may be transferred from one individual to another if the original user is no longer permitted to use the Bluewater Service. The Customer is solely responsible for breaches of this Agreement caused by Authorised Users.
Third party facilities, including software programs, may be necessary for access to the Bluewater Services. The Customer agrees that its right to make any use of such facilities is governed by the terms of the relevant third party licence or service agreement and not by this Agreement, and that title to such facilities remain with the applicable licensor. Customer acknowledges that any third party software provided within or contained in the Bluewater Services is provided “as is” and without warranty of any kind.
The Initial Subscription Term of the Bluewater Services is specified in the Order Form (“Initial Term”) and shall automatically renew for the same term (‘Renewal Term”) following the Initial Subscription Term unless either party gives written notice 45 days prior to end of the Initial Subscription Term or any Renewal Term of its intention to cancel the Bluewater Services described in applicable Order Form. Subscription pricing for each service is grandfathered under auto-renewals.
(a) In consideration of the supply of the Bluewater Services by Bluewater during the Subscription Term, the Customer agrees to pay the fees set out in the Order Form in accordance with the Order Form (whether or not the Order Form is issued by Bluewater or the Reseller).
(b) If the Customer purchases any Bluewater Services through a Reseller, the Customer owes payment to the Reseller as agreed between the Customer and the Reseller. The Customer acknowledges that Bluewater may terminate the Customer’s rights to use the Bluewater Services if Bluewater does not receive its corresponding payment from the Reseller.
(c) Unless otherwise specified in the Order Form, the subscription fees under the Order Form will remain fixed during the Subscription Term unless the Customer’s mobile services in operation managed in the Bluewater Platform exceed the number specified in the Order Form by greater than 10%. When this occurs the subscription fee may be increased to include the additional mobile services in the next billing period, or at the end of the calendar quarter for monthly subscriptions. Bluewater may, upon request, decrease the fee if there is a reduction in mobile services, up to but not below, the amount specified in the Order Form. Any new changes to the subscription fee for new services will be priced at the rate in the initial Subscription Term Order Form and co-terminate with the Initial Term or any renewal period.
(a) The Customer is solely responsible for the accuracy and completeness of its own Customer Data and the provision of it to Bluewater for the purpose of providing the Bluewater Service. The Customer retains all rights to the Customer Data. The Customer grants to Bluewater and its Affiliates, as well as subcontractors, a non-exclusive right to process the Customer Data solely to provide and support the Bluewater Service. Bluewater will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct or otherwise permit. When accessing the Bluewater Services through a Reseller, you consent that Bluewater may disclose any information, including Customer Data and/or personal data, contained on the Bluewater Platform to the Reseller.
(b) You agree that Bluewater may monitor the use of the Bluewater Services, and create anonymised aggregate information from Customer Data. This aggregated data will not contain personal information and may be combined with aggregate data Bluewater collects from other customers. You agree that Bluewater owns all rights in aggregate data and we may use aggregate data for any purpose, including publishing such data.
(c) Customer Data held on the Bluewater Service is hosted in Australia. If you select to use one of the Bluewater Connector products, for the purpose of integrating with your internal systems, you acknowledge and accept that this may involve the routing of such data through a country outside of Australia (for example, USA).
The Customer will collect, use, handle and maintain all personal data contained in the Customer Data in compliance with applicable privacy and data protection laws, including the Privacy Act 1988 (Cth). The Customer warrants that it has all necessary consent to use and disclose personal information (as defined in the Privacy Act 1988 (Cth)) as contemplated by this Agreement.
The Customer will maintain reasonable security standards for its Authorised Users’ use of the Bluewater Service. Bluewater will use reasonable endeavours to maintain reasonable security standards for the Bluewater Services. The Customer Acknowledges that use of the Bluewater Services involves transmission of information over networks that are not owned, operated or controlled by Bluewater, and Bluewater is not responsible for any lost, altered, intercepted or stored information across such networks.
(a) Subject to cause 4.4(b), during the Subscription Term, the Customer can:
(i) access its Customer Data at any time; and
(ii) export and retrieve its Customer Data in a standard format subject to any technical limitations specified in the Documentation.
(b) During the Subscription Term Bluewater retains a database archive of Customer Data for 3 years from the date Bluewater receives the Customer Data.
(b) Following the expiry of the Subscription Term, Bluewater will delete or overwrite the Customer Data unless an applicable law requires its retention. Any retained Customer Data will be held by Bluewater in accordance with the confidentiality provisions of these Terms of Use.
(a) A party may terminate this Agreement:
(i) upon 30 days’ prior written notice of the other party’s material breach (including, without limitation, the Customer’s failure to pay the Reseller any fees due for the Bluewater Service) unless the breach is rectified during that 30 day period; or
(ii) immediately, if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches clauses 9 or 13.8.
(b) Bluewater may terminate this Agreement if the relevant Bluewater Services that this Agreement relates to are terminated between Bluewater and the Reseller.
Upon the effective date of expiration or the termination of this Agreement:
(a) the Customer’s right to use the Bluewater Service and all Bluewater Confidential Information will end, and the Customer’s data will be deleted from Bluewater databases
(b) the Customer will pay all fees which are due and payable to Bluewater without set-off, counterclaim or condition.
Bluewater may suspend use of the Bluewater Service if:
(a) continued use by the Customer may result in material harm to the Bluewater Service or its users;
(b) the Customer breaches the Agreement;
(c) The Customer fails to pay any sums under the Agreement.
Bluewater will notify the Customer of the suspension. Bluewater will limit the suspension in time and scope as reasonably possible under the circumstances.
Clauses 6, 7, 8, 9, 14, 12.3 and 12.4 will survive the expiration or termination of this Agreement.
The Customer warrants that it will comply with all applicable laws and regulations when using the Bluewater Service.
(a) Bluewater will use reasonable endeavours to make the Bluewater Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
(b)Subject to clause 6.2(c) and 6.2(e) the Bluewater Platform will have a Platform Availability of 99.5% of the time during each billing Month.
(c) Clause 6.2(a) does not apply to any performance or availability issues:
(i) Due to a Scheduled Downtime for which a regular maintenance window or deployment activity is planned to be carried out. Bluewater will endeavour to notify the Customer in advance of such activity;
(ii) Due to other Scheduled Downtime windows for which the Customer has been notified at least five (5) business days prior to such a Scheduled Downtime;
(iii) Due to unavailability caused by factors outside Bluewater’s reasonable control, such as unpredictable and unforeseeable events that could not have been avoided even if reasonable care had been exercised;
(iv) That result from the Customers unauthorized action or lack of action when required, or from Customer employees, agents, contractors, or vendors, or anyone gaining access to the Bluewater Platform by means of the Customer’s passwords or equipment, or otherwise resulting from the Customer’s failure to follow appropriate security practices;
(v) Due to the result from the use of services, hardware, or software not provided by Bluewater, including, but not limited to, issues resulting from inadequate bandwidth, network availability, or related to third-party software or services; and
(vi) For licenses reserved, but not paid for, at the time of the relevant Incident.
(d) In this clause 6.2 the following words have the following meanings:
“Bluewater Platform” means Bluewater’s cloud-based mobility management “platform” offered under a subscription basis.
“Downtime” means the Total Minutes in the Month during which the productive version of the applicable Bluewater Platform is not available, except for Scheduled Downtimes.
"Incident" means (i) any single event, or (ii) any set of events, that result in Downtime.
“Maximum Available Minutes” are measured 24 hours at 7 days a week during a billing Month.
“Month” means a calendar month.
“Platform Availability” is calculated per billing Month using the following formula: Platform Availability % = (Maximum Available Minutes-Downtime)/(Maximum Available Minutes) x 100.
“Scheduled Downtime” Bluewater Platform unavailability due to planned servicing, maintenance or system deployment activities.
(e) The Customer acknowledges that Bluewater’s failure to meet the level of Platform Availability set out in clause 6.2(a) does not constitute a breach of this Agreement.
During the Subscription Term, we will provide Support for the Bluewater Service in accordance with the following guidelines and the Applicable Order Form.
Support entitlements
Customer Portal Administrators
L1: Application down
An error that renders the Bluewater Platform inoperative. If the Platform is down or does not function at all, and there is no workaround to the problem.
L2: Serious Degradation
One element of the Bluewater Platform is unavailable or degraded causing a major impact on productivity, but the Platform as a whole remains operational.
L3: Low Impact / Enquiry
Issues of minimal impact as workaround exists, or a general request.
Initial Response Time
L1: 2 business hours
L2: 6 business hours
L3: 2 business days
Support hours
9AM-5PM (AEST) Excluding Public Holidays
To the maximum extent permitted by law, except as expressly provided in this Agreement, neither Bluewater nor its subcontractors make any representations or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any Bluewater Services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. The Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of Bluewater or product roadmaps in obtaining subscriptions for any Bluewater Service.
The Customer will indemnify Bluewater against all liability, cost, damages and claims brought against Bluewater and its Affiliates and subcontractors by any third party related to the Customer Data, use by the Customer of the Bluewater Services, breaches by the Customer of confidentiality or privacy, or infringement of Bluewater’s intellectual property rights.
To the extent permitted by law, Bluewater and its licensors will not be responsible under this Agreement:
(a) if a Bluewater Service is not used in accordance with the Documentation;
(b) for liability caused by the Reseller, the Customer or any third-party product or service (for the avoidance of doubt, this includes any orders or requests placed by the Customer that are not fulfilled or actioned by the Reseller or Customers’ provisioning party);
(c) if the Bluewater Service is used in conjunction with any product or service not provided by Bluewater;
(d) for any Customer activities not permitted under this Agreement; or
(e) for any loss or corruption of data.
Bluewater and its licensors will not be liable for any claims or damages arising from inherently dangerous use of any of the Bluewater Services provided under or in connection with this Agreement.
To the extent permitted by law, Bluewater’s liability for a breach of this Agreement (including liability for negligence) is limited to the subscription fees paid by the Customer in the 12-month period immediately preceding the breach of this Agreement.
To the maximum extent permitted by law, neither party will be liable to the other party for any consequential loss or damage. The following losses constitute consequential loss, whether they arise directly or indirectly from the relevant acts or omissions of a party:
(a) loss of profit, use, rental or other benefit;
(b) loss of production, revenue, actual or potential opportunity;
(c) damage to goodwill or reputation;
(d) loss of anticipated savings;
(e) business interruption; or
(f) any form of consequential loss (that is, loss does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the loss).
Nothing in this Agreement excludes any rights a consumer as defined in schedule 2 to the Competition and Consumer Act 2010 (Cth) may have against Bluewater under the Competition and Consumer Act 2010 (Cth), if applicable. When supplied to a consumer, Bluewater’s Services come with guarantees that cannot be excluded under the Australian Consumer Law. Where a mandatory term or consumer guarantee is implied by law, our liability for breach of such term or consumer guarantee is limited, at our option, to:
(a) if the breach relates to goods:
(i)the replacement of the goods or the supply of equivalent goods;
(ii)the repair of the goods;
(iii) the payment of the cost of replacing the goods;
(iv) the payment of the cost of having the goods repaired; or
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
Bluewater, its Affiliates or its licensors own all intellectual property rights in and related to the Bluewater Service, the Bluewater Materials, Documentation, design contributions, related knowledge or processes and any derivative works of them. All rights not expressly granted to the Customer are reserved to Bluewater, its Affiliates or its licensors.
The Customer retains all rights in and related to the Customer Data. Bluewater may use the Customer Data for the sole purpose of providing the Bluewater Service.
The Customer undertakes that it will not assert any right, title or interest in the Bluewater Service, the Bluewater Materials or Documentation other than the right to use those products or services in accordance with this Agreement. The Customer undertakes that it will not register a security interest on the Personal Properties Securities Register in the Bluewater Service, the Bluewater Materials or Documentation.
(a) The receiving party will keep confidential all Confidential Information of the disclosing party.
(b) The receiving party will not disclose the Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorised Users whose access is necessary to enable it to exercise its rights or perform its obligations under this Agreement and who are under an obligation to keep that information confidential. Notwithstanding the foregoing provision, the Customer will not disclose the Agreement or the pricing to any person without the prior written consent of Bluewater.
(c) It is agreed that all Confidential Information of either party disclosed prior to the execution of and entry into this Agreement will be subject to the provisions of clause 10.
(d) If the receiving party is required by law to disclose the Confidential Information of the disclosing party, then the receiving party must promptly notify the disclosing party of that matter and must seek appropriate orders or undertakings from the Court or relevant government agency preserving the confidentiality of that information. The receiving party must also disclose the minimum amount of Confidential Information to the extent permitted by law.
(e) The receiving party must promptly return or destroy all Confidential Information of the disclosing party on the earlier of the termination of this Agreement or a written request to do so from the disclosing party.
The restrictions imposed by this Agreement on the use or disclosure of Confidential Information do not apply to any Confidential Information that:
(a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information;
(b) is generally available to the public without a breach of this Agreement by the receiving party;
(c) at the time of disclosure, was known to the receiving party free of any obligation of confidentiality; or
(d) the disclosing party agrees in writing may be disclosed by the receiving party.
Bluewater may identify the Customer in its promotional materials. The Customer may request that Bluewater stop doing so by submitting an email to customersuccess@bluewatercontrol.com.
11.1 The parties agree that all amounts payable under this Agreement are expressed on a GST exclusive basis. If GST is payable in relation to a Taxable Supply, then the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement.
11.2 In clause 11, the terms “GST”, “Taxable Supply” and “Input Tax Credit” have the meaning given in A New Tax System (Goods and Goods Tax) Act 1999 (Cth).
Bluewater may at its sole discretion suspend the Customer’s use of the Bluewater Service or terminate this Agreement if an applicable fee or other amount payable by a Reseller is not paid by the relevant due date.
If:
(a) the Reseller terminates all orders relating to the Customer;
(b) Bluewater terminates any of the Reseller’s orders relating to the Customer for cause; or
(c) the contractual relationship between Bluewater and the Reseller relating to the sale of Bluewater Services is terminated,
then Bluewater may (depending on the Customer’s choice):
(i) directly provide the affected Bluewater Service to the Customer pursuant to Bluewater’s then current terms and conditions for the Bluewater Service for a mutually agreed fee; or
(ii) recommend to the Customer other resellers or third parties for the provision of the affected Bluewater Service.
Nothing in this Agreement creates a relationship of employment, trust, agency, partnership or fiduciary between the parties.
This Agreement contains the entire agreement and understanding between the parties in respect of its subject matter and supersedes any prior agreement or understanding between the parties on anything connected with that subject matter.
Bluewater may modify this Agreement from time to time. If a revision meaningfully reduces your rights, Bluewater will use reasonable efforts to notify the Customer (by, for example, sending an email to the Customer’s account contact in your Order Form, or in the Product itself). If Bluewater modifies the Agreement during your Subscription Term, the modified version will be effective upon the next renewal of a Subscription Term. In this case if the Customer objects to the updated Agreement, as your exclusive remedy, then the Customer may choose not to renew, including cancelling any terms set to auto-renew. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
Any provision of, or the application of any provision of, this Agreement that is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.
Waiver of any right, power, authority, discretion or remedy arising on default under this Agreement must be in writing and signed by the party granting the waiver. A failure or delay in exercise, or partial exercise, of a right, power, authority, discretion or remedy created or arising on default under this Agreement does not result in a waiver of that right, power, authority, discretion or remedy.
This Agreement is governed by the law in force in New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.
This Agreement may not be assigned or transferred by the Customer without the prior written consent of Bluewater. Bluewater may assign or transfer this Agreement to an Affiliate without having to obtain the prior written consent of the Customer.
Bluewater may subcontract all or part of the Bluewater Service to any of its Affiliates or third parties. Bluewater is responsible for all breaches of this Agreement caused by its Affiliates or third parties.
It is agreed that a delay in the performance that is caused by conditions beyond the reasonable control of the performing party is not a breach of this Agreement (except in relation to an obligation to pay). The time for performance will be extended for a period equal to the duration of the conditions preventing performance. The foregoing provisions do not apply to an obligation to pay any amounts due and payable under this Agreement.
All notices must be in writing and given to the address set out in the Order Form. A notice may be sent by post, facsimile transmission or email to the recipient’s address set out in the Order Form.
In this agreement:
Affiliates of a party means any legal entity in which a party, directly or indirectly, holds more than 50% of the entity’s shares or voting rights. To be clear, any legal entity will be treated as an Affiliate of the relevant party for the purposes of this Agreement so long as that party maintains more than 50% of that entity’s shares or voting rights.
Authorised Users means any individual to whom the Customer grants access authorisation to use the Bluewater Service that is an employee, agent, contractor or representative of the Customer or the Customer’s Affiliates.
Bluewater means Bluewater Control Pty Ltd (ACN 614 164 519).
Bluewater Materials means any materials provided or developed by Bluewater (independently or with a Reseller’s and/or a Customer’s co-operation) in the course of the performance under this Agreement, including in the delivery of any support or Bluewater Services to the Customer. To be clear, the Bluewater Materials do not include the Customer Data, Customer Confidential Information or the Bluewater Service.
Bluewater Service means (a) Bluewater’s cloud-based mobility management “platform” offered under a subscription basis; (b) Bluewater’s “managed platform” product, bundling managed services with the platform; and (c) any other services outlined in the Order Form offered outside our hosted platform (e.g. training, analysis and implementation) provided by Bluewater to the Customer under the Order Form.
Business Days means a day on which banks are open for business in Sydney.
Business Partner means a legal entity that requires use of a Bluewater Service in connection with Customer’s and its Affiliate’s internal business operations. These may include, customers, distributors, service providers or suppliers of the Customer.
Confidential Information means:
(a) with respect to the Customer:
(i) the Customer Data;
(ii) the Customer marketing and business requirements;
(iii) the Customer implementation plans; or
(iv) the Customer financial information;
(b) with respect to Bluewater:
(i) the Bluewater Service, Documentation, Bluewater Materials and analyses under clause 2.2; and
(ii) information regarding Bluewater research and development, product offerings, pricing and availability;
(c) Confidential Information of either Bluewater or the Customer also includes information which the disclosing party protects against unrestricted disclosure to others that:
(i) the disclosing party or its representatives designates as confidential at the time of disclosure; or
(ii) should reasonably be understood to be confidential given the nature of the information and circumstances surrounding its disclosure.
Customer means the party identified in the Order Form.
Customer Confidential Information means Confidential Information of the Customer.
Customer Data means any content, materials, data and information that Authorised Users enter into a system of a Bluewater Service or that Customer derives from its use of and stores in the Bluewater Service such as Customer specific reports. To be clear, Customer Data and its derivatives will not include Bluewater’s Confidential Information.
Documentation means the then current technical and functional documentation of Bluewater as well as any descriptions of the roles and responsibilities for the Bluewater Services which is made available to the Customer with the Bluewater Service.
Initial Subscription Term means the initial term of a Bluewater Service subscription which is identified in the applicable Order Form.
Order Form means an order form concluded between Bluewater or a Reseller and the Customer which references these Terms of Use.
Reseller means a party holding an agreement with Bluewater as a non-exclusive reseller of Bluewater Services. Resellers typically offer the Bluewater Platform as part of their broader managed service offering.
Subscription Term means the term of the Bluewater Service subscription of which the initial term is identified in the Order Form, including all renewals.
Terms of Use means this document.
In this Agreement:
(a) the singular includes plural and conversely;
(b) headings are used for convenience only and do not affect interpretation of this Agreement;
(c) where any word or phrase is given a defined meaning, any other grammatical form of that word or phrase has a corresponding meaning;
(d) references to clauses, schedules, or annexures refer to clauses, schedules or annexures of this Agreement;
(e) a reference to any party to this Agreement or any other agreement or document includes the party's successors and permitted assigns;
(f) the words “including”, “for example” or similar expressions are not words of limitation; and
(g) no rule of construction of documents shall apply to the disadvantage of a party, on the basis that the party put forward this document or any relevant part of it.
End.
This Agreement is between you and Bluewater Control Pty Ltd (ABN 14 614 164 519) (“Bluewater”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. Bluewater may modify this Agreement from time to time, subject to the terms in clause 13.3. This Agreement applies whether you purchase Bluewater Services directly from Bluewater, or through a Reseller.
By signing an Order Form, or by using and accessing Bluewater Services, you indicate your agreement to be bound by this Agreement.
This agreement consists of the following parts:
1. the Order Form;
2. the Terms of Use; and
3. the Documentation.
("Agreement")
If there is any conflict between the Order Form, these Terms of Use and the Documentation, to the extent of the inconsistency, the document higher in the list will prevail over a document lower in the list.
Bluewater grants the Customer a temporary, limited, non-exclusive, non-transferable and world-wide right to use the Bluewater Service, the Bluewater Materials and the Documentation solely for the Customer’s internal business operations.
1. Provision of services and support
Bluewater will:
1. provide the Bluewater Service as described in the Order Form;
2. use reasonable security technologies in providing the Bluewater Service; and
3. will comply with all applicable laws when providing the Bluewater Service.
The Bluewater Service may be modified by Bluewater at any time. Modifications may include optional new features for the Bluewater Service, which the Customer may use subject to the then current Documentation.
The Customer will not:
1. reverse engineer, copy, translate dissemble, decompile or make derivative works of the Bluewater Service;
2. circumvent the operation or security of the Bluewater Service; or
3. transfer any content or data that is unlawful or infringes any intellectual property rights of another person when using the Bluewater Service.
The Customer may permit Authorised Users to use the Bluewater Service. That usage is subject to the restrictions set out in the Agreement. Access credentials for the Bluewater Service may not be used by more than the number of users stated in the Order Form or agreed to by Bluewater, but may be transferred from one individual to another if the original user is no longer permitted to use the Bluewater Service. The Customer is solely responsible for breaches of this Agreement caused by Authorised Users.
Third party facilities, including software programs, may be necessary for access to the Bluewater Services. The Customer agrees that its right to make any use of such facilities is governed by the terms of the relevant third party licence or service agreement and not by this Agreement, and that title to such facilities remain with the applicable licensor. Customer acknowledges that any third party software provided within or contained in the Bluewater Services is provided “as is” and without warranty of any kind.
The Initial Subscription Term of the Bluewater Services is specified in the Order Form (“Initial Term”) and shall automatically renew for 12 month periods (“Renewal Term”) following the Initial Subscription Term unless either party gives written notice 45 days prior to end of the Initial Subscription Term or any Renewal Term of its intention to cancel the Bluewater Services described in applicable Order Form.
1. In consideration of the supply of the Bluewater Services by Bluewater during the Subscription Term, the Customer agrees to pay the fees set out in the Order Form in accordance with the Order Form (whether or not the Order Form is issued by Bluewater or the Reseller).
2. If the Customer purchases any Bluewater Services through a Reseller, the Customer owes payment to the Reseller as agreed between the Customer and the Reseller. The Customer acknowledges that Bluewater may terminate the Customer’s rights to use the Bluewater Services if Bluewater does not receive its corresponding payment from the Reseller.
3. The subscription fees under the Order Form will remain fixed during the Subscription Term unless the Customer’s mobile services in operation managed in the Bluewater Platform exceed the number specified in the Order Form by greater than 10%. When this occurs the subscription fee may be increased to include the additional mobile services in the next billing period, or at the end of the calendar quarter for monthly subscriptions. Bluewater may, upon request, decrease the fee if there is a reduction in mobile services, up to but not below, the amount specified in the Order Form.
1. The Customer is solely responsible for the accuracy and completeness of its own Customer Data. The Customer retains all rights to the Customer Data. The Customer grants to Bluewater and its Affiliates, as well as subcontractors, a non-exclusive right to process the Customer Data solely to provide and support the Bluewater Service. Bluewater will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct or otherwise permit. When accessing the Bluewater Services through a Reseller, you consent that Bluewater may disclose any information, including Customer Data and/or personal data, contained on the Bluewater Platform to the Reseller.
2. You agree that Bluewater may monitor the use of the Bluewater Services, and create anonymised aggregate information from Customer Data. This aggregated data will not contain personal information and may be combined with aggregate data Bluewater collects from other customers. You agree that Bluewater owns all rights in aggregate data and we may use aggregate data for any purpose, including publishing such data.
The Customer will collect, use, handle and maintain all personal data contained in the Customer Data in compliance with applicable privacy and data protection laws, including the Privacy Act 1988 (Cth). The Customer warrants that it has all necessary consent to use and disclose personal information (as defined in the Privacy Act 1988 (Cth)) as contemplated by this Agreement.
The Customer will maintain reasonable security standards for its Authorised Users’ use of the Bluewater Service. Bluewater will use reasonable endeavours to maintain reasonable security standards for the Bluewater Services. The Customer Acknowledges that use of the Bluewater Services involves transmission of information over networks that are not owned, operated or controlled by Bluewater, and Bluewater is not responsible for any lost, altered, intercepted or stored information across such networks.
1. Subject to cause 4.4(b), during the Subscription Term, the Customer can:
1. access its Customer Data at any time; and
2. export and retrieve its Customer Data in a standard format subject to any technical limitations specified in the Documentation.
2. During the Subscription Term Bluewater retains a database archive of Customer Data for 3 years from the date Bluewater receives the Customer Data.
3. Following the expiry of the Subscription Term, Bluewater will delete or overwrite the Customer Data unless an applicable law requires its retention. Any retained Customer Data will be held by Bluewater in accordance with the confidentiality provisions of these Terms of Use.
1. A party may terminate this Agreement:
1. upon 30 days’ prior written notice of the other party’s material breach (including, without limitation, the Customer’s failure to pay the Reseller any fees due for the Bluewater Service) unless the breach is rectified during that 30 day period; or
2. immediately, if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches clauses 9 or 13.8.
2. Bluewater may terminate this Agreement if the relevant Bluewater Services that this Agreement relates to are terminated between Bluewater and the Reseller.
Upon the effective date of expiration or the termination of this Agreement:
1. the Customer’s right to use the Bluewater Service and all Bluewater Confidential Information will end, and the Customer’s data will be deleted from Bluewater databases
2. the Customer will pay all fees which are due and payable to Bluewater without set-off, counterclaim or condition.
Bluewater may suspend use of the Bluewater Service if:
1. continued use by the Customer may result in material harm to the Bluewater Service or its users;
2. the Customer breaches the Agreement;
3. The Customer fails to pay any sums under the Agreement.
Bluewater will notify the Customer of the suspension. Bluewater will limit the suspension in time and scope as reasonably possible under the circumstances.
Clauses 6, 7, 8, 9, 14, 12.3 and 12.4 will survive the expiration or termination of this Agreement.
The Customer warrants that it will comply with all applicable laws and regulations when using the Bluewater Service.
1. Bluewater will use reasonable endeavours to make the Bluewater Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
2. Subject to clause 6.2(c) and 6.2(e) the Bluewater Platform will have a Platform Availability of 99.5% of the time during each billing Month.
3. Clause 6.2(a) does not apply to any performance or availability issues:
1. Due to a Scheduled Downtime for which a regular maintenance window or deployment activity is planned to be carried out. Bluewater will endeavour to notify the Customer in advance of such activity;
2. Due to other Scheduled Downtime windows for which the Customer has been notified at least five (5) business days prior to such a Scheduled Downtime;
3. Due to unavailability caused by factors outside Bluewater’s reasonable control, such as unpredictable and unforeseeable events that could not have been avoided even if reasonable care had been exercised;
4. That result from the Customers unauthorized action or lack of action when required, or from Customer employees, agents, contractors, or vendors, or anyone gaining access to the Bluewater Platform by means of the Customer’s passwords or equipment, or otherwise resulting from the Customer’s failure to follow appropriate security practices;
5. Due to the result from the use of services, hardware, or software not provided by Bluewater, including, but not limited to, issues resulting from inadequate bandwidth, network availability, or related to third-party software or services; and
6. For licenses reserved, but not paid for, at the time of the relevant Incident.
4. In this clause 6.2 the following words have the following meanings:
“Bluewater Platform” means Bluewater’s cloud-based mobility management “platform” offered under a subscription basis.
“Downtime” means the Total Minutes in the Month during which the productive version of the applicable Bluewater Platform is not available, except for Scheduled Downtimes.
"Incident" means (i) any single event, or (ii) any set of events, that result in Downtime.
“Maximum Available Minutes” are measured 24 hours at 7 days a week during a billing Month.
“Month” means a calendar month.
“Platform Availability” is calculated per billing Month using the following formula: Platform Availability % = (Maximum Available Minutes-Downtime)/(Maximum Available Minutes) x 100.
“Scheduled Downtime” Bluewater Platform unavailability due to planned servicing, maintenance or system deployment activities.
5. The Customer acknowledges that Bluewater’s failure to meet the level of Platform Availability set out in clause 6.2(a) does not constitute a breach of this Agreement.
Except as expressly provided in this Agreement, neither Bluewater nor its subcontractors make any representations or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any Bluewater Services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free.The Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of Bluewater or product roadmaps in obtaining subscriptions for any Bluewater Service.
The Customer will indemnify Bluewater against all liability, cost, damages and claims brought against Bluewater and its Affiliates and subcontractors by any third party related to the Customer Data, use by the Customer of the Bluewater Services, breaches by the Customer of confidentiality or privacy, or infringement of Bluewater’s intellectual property rights.
To the extent permitted by law, Bluewater and its licensors will not be responsible under this Agreement:
1. if a Bluewater Service is not used in accordance with the Documentation;
2. for liability caused by the Reseller, the Customer or any third-party product or service;
3. if the Bluewater Service is used in conjunction with any product or service not provided by Bluewater;
4. for any Customer activities not permitted under this Agreement; or
5. for any loss or corruption of data.
Bluewater and its licensors will not be liable for any claims or damages arising from inherently dangerous use of any of the Bluewater Services provided under or in connection with this Agreement.
To the extent permitted by law, Bluewater’s liability for a breach of this Agreement (including liability for negligence) is limited to the subscription fees paid by the Customer in the 12-month period immediately preceding the breach of this Agreement.
To the maximum extent permitted by law, neither party will be liable to the other party for any consequential loss or damage. The following losses constitute consequential loss, whether they arise directly or indirectly from the relevant acts or omissions of a party:
1. loss of profit, use, rental or other benefit;
2. loss of production, revenue, actual or potential opportunity;
3. damage to goodwill or reputation;
4. loss of anticipated savings;
5. business interruption; or
6. any form of consequential loss (that is, loss does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the loss).
Nothing in this Agreement excludes any rights a consumer as defined in schedule 2 to the Competition and Consumer Act 2010 (Cth) may have against Bluewater under the Competition and Consumer Act 2010 (Cth), if applicable. When supplied to a consumer, Bluewater’s Services come with guarantees that cannot be excluded under the Australian Consumer Law. Where a mandatory term or consumer guarantee is implied by law, our liability for breach of such term or consumer guarantee is limited, at our option, to:
1. if the breach relates to goods:
1. the replacement of the goods or the supply of equivalent goods;
2. the repair of the goods;
3. the payment of the cost of replacing the goods;
4. the payment of the cost of having the goods repaired; or
2. if the breach relates to services:
1. the supplying of the services again; or
2. the payment of the cost of having the services supplied again.
Bluewater, its Affiliates or its licensors own all intellectual property rights in and related to the Bluewater Service, the Bluewater Materials, Documentation, design contributions, related knowledge or processes and any derivative works of them. All rights not expressly granted to the Customer are reserved to Bluewater, its Affiliates or its licensors.
The Customer retains all rights in and related to the Customer Data.Bluewater may use the Customer Data for the sole purpose of providing the Bluewater Service.
The Customer undertakes that it will not assert any right, title or interest in the Bluewater Service, the Bluewater Materials or Documentation other than the right to use those products or services in accordance with this Agreement. The Customer undertakes that it will not register a security interest on the Personal Properties Securities Register in the Bluewater Service, the Bluewater Materials or Documentation.
1. The receiving party will keep confidential all Confidential Information of the disclosing party.
2. The receiving party will not disclose the Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorised Users whose access is necessary to enable it to exercise its rights or perform its obligations under this Agreement and who are under an obligation to keep that information confidential. Notwithstanding the foregoing provision, the Customer will not disclose the Agreement or the pricing to any person without the prior written consent of Bluewater.
3. It is agreed that all Confidential Information of either party disclosed prior to the execution of and entry into this Agreement will be subject to the provisions of clause 10.
4. If the receiving party is required by law to disclose the Confidential Information of the disclosing party, then the receiving party must promptly notify the disclosing party of that matter and must seek appropriate orders or undertakings from the Court or relevant government agency preserving the confidentiality of that information. The receiving party must also disclose the minimum amount of Confidential Information to the extent permitted by law.
5. The receiving party must promptly return or destroy all Confidential Information of the disclosing party on the earlier of the termination of this Agreement or a written request to do so from the disclosing party.
The restrictions imposed by this Agreement on the use or disclosure of Confidential Information do not apply to any Confidential Information that:
1. is independently developed by the receiving party without reference to the disclosing party’s Confidential Information;
2. is generally available to the public without a breach of this Agreement by the receiving party;
3. at the time of disclosure, was known to the receiving party free of any obligation of confidentiality; or
4. the disclosing party agrees in writing may be disclosed by the receiving party.
Bluewater may identify the Customer in its promotional materials. The Customer may request that Bluewater stop doing so by submitting an email to customersuccess@bluewatercontrol.com .
1. The parties agree that all amounts payable under this Agreement are expressed on a GST exclusive basis. If GST is payable in relation to a Taxable Supply, then the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement.
2. In clause 11, the terms “GST”, “Taxable Supply” and “Input Tax Credit” have the meaning given in A New Tax System (Goods and Goods Tax) Act 1999 (Cth).
Bluewater may at its sole discretion suspend the Customer’s use of the Bluewater Service or terminate this Agreement if an applicable fee or other amount payable by a Reseller is not paid by the relevant due date.
If:
1. the Reseller terminates all orders relating to the Customer;
2. Bluewater terminates any of the Reseller’s orders relating to the Customer for cause; or
3. the contractual relationship between Bluewater and the Reseller relating to the sale of Bluewater Services is terminated,
then Bluewater may span.__group0:
4. directly provide the affected Bluewater Service to the Customer pursuant to Bluewater’s then current terms and conditions for the Bluewater Service for a mutually agreed fee; or
5. recommend to the Customer other resellers or third parties for the provision of the affected Bluewater Service.
Nothing in this Agreement creates a relationship of employment, trust, agency, partnership or fiduciary between the parties.
This Agreement contains the entire agreement and understanding between the parties in respect of its subject matter and supersedes any prior agreement or understanding between the parties on anything connected with that subject matter.
Bluewater may modify this Agreement from time to time. If a revision meaningfully reduces your rights, Bluewater will use reasonable efforts to notify the Customer (by, for example, sending an email to the Customer’s account contact in your Order Form, or in the Product itself). If Bluewater modifies the Agreement during your Subscription Term, the modified version will be effective upon the next renewal of a Subscription Term. In this case if the Customer objects to the updated Agreement, as your exclusive remedy, then the Customer may choose not to renew, including cancelling any terms set to auto-renew. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
Any provision of, or the application of any provision of, this Agreement that is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.
Waiver of any right, power, authority, discretion or remedy arising on default under this Agreement must be in writing and signed by the party granting the waiver. A failure or delay in exercise, or partial exercise, of a right, power, authority, discretion or remedy created or arising on default under this Agreement does not result in a waiver of that right, power, authority, discretion or remedy.
This Agreement is governed by the law in force in New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.
This Agreement may not be assigned or transferred by the Customer without the prior written consent of Bluewater. Bluewater may assign or transfer this Agreement to an Affiliate without having to obtain the prior written consent of the Customer.
Bluewater may subcontract all or part of the Bluewater Service to any of its Affiliates or third parties. Bluewater is responsible for all breaches of this Agreement caused by its Affiliates or third parties.
It is agreed that a delay in the performance that is caused by conditions beyond the reasonable control of the performing party is not a breach of this Agreement (except in relation to an obligation to pay). The time for performance will be extended for a period equal to the duration of the conditions preventing performance. The foregoing provisions do not apply to an obligation to pay any amounts due and payable under this Agreement.
All notices must be in writing and given to the address set out in the Order Form. A notice may be sent by post, facsimile transmission or email to the recipient’s address set out in the Order Form.
In this agreement:
Affiliates of a party means any legal entity in which a party, directly or indirectly, holds more than 50% of the entity’s shares or voting rights. To be clear, any legal entity will be treated as an Affiliate of the relevant party for the purposes of this Agreement so long as that party maintains more than 50% of that entity’s shares or voting rights.
Authorised Users means any individual to whom the Customer grants access authorisation to use the Bluewater Service that is an employee, agent, contractor or representative of the Customer or the Customer’s Affiliates.
Bluewater means Bluewater Control Pty Ltd (ACN 614 164 519).
Bluewater Materials means any materials provided or developed by Bluewater (independently or with a Reseller’s and/or a Customer’s co-operation) in the course of the performance under this Agreement, including in the delivery of any support or Bluewater Services to the Customer. To be clear, the Bluewater Materials do not include the Customer Data, Customer Confidential Information or the Bluewater Service.
Bluewater Service means (a) Bluewater’s cloud-based mobility management “platform” offered under a subscription basis; (b) Bluewater’s “managed platform” product, bundling managed services with the platform; and (c) any other services outlined in the Order Form offered outside our hosted platform (e.g. training, analysis and implementation) provided by Bluewater to the Customer under the Order Form.
Business Days means a day on which banks are open for business in Sydney.
Business Partner means a legal entity that requires use of a Bluewater Service in connection with Customer’s and its Affiliate’s internal business operations. These may include, customers, distributors, service providers or suppliers of the Customer.
Confidential Information means:
1. with respect to the Customer:
1. the Customer Data;
2. the Customer marketing and business requirements;
3. the Customer implementation plans; or
4. the Customer financial information;
2. with respect to Bluewater:
1. the Bluewater Service, Documentation, Bluewater Materials and analyses under clause 2.2; and
2. information regarding Bluewater research and development, product offerings, pricing and availability;
3. Confidential Information of either Bluewater or the Customer also includes information which the disclosing party protects against unrestricted disclosure to others that:
1. the disclosing party or its representatives designates as confidential at the time of disclosure; or
2. should reasonably be understood to be confidential given the nature of the information and circumstances surrounding its disclosure.
Customer means the party identified in the Order Form
Customer Confidential Information means Confidential Information of the Customer.
Customer Data means any content, materials, data and information that Authorised Users enter into a system of a Bluewater Service or that Customer derives from its use of and stores in the Bluewater Service such as Customer specific reports. To be clear, Customer Data and its derivatives will not include Bluewater’s Confidential Information.
Documentation means the then current technical and functional documentation of Bluewater as well as any descriptions of the roles and responsibilities for the Bluewater Services which is made available to the Customer with the Bluewater Service.
Initial Subscription Term means the initial term of a Bluewater Service subscription which is identified in the applicable Order Form.
Order Form means an order form concluded between Bluewater or a Reseller and the Customer which references these Terms of Use.
Reseller means a party holding an agreement with Bluewater as a non-exclusive reseller of Bluewater Services. Resellers typically offer the Bluewater Platform as part of their broader managed service offering.
Subscription Term means the term of the Bluewater Service subscription of which the initial term is identified in the Order Form, including all renewals.
Terms of Use means this document.
In this Agreement:
1. the singular includes plural and conversely;
2. headings are used for convenience only and do not affect interpretation of this Agreement;
3. where any word or phrase is given a defined meaning, any other grammatical form of that word or phrase has a corresponding meaning;
4. references to clauses, schedules, or annexures refer to clauses, schedules or annexures of this Agreement;
5. a reference to any party to this Agreement or any other agreement or document includes the party's successors and permitted assigns;
6. the words “including”, “for example” or similar expressions are not words of limitation; and
7. no rule of construction of documents shall apply to the disadvantage of a party, on the basis that the party put forward this document or any relevant part of it.
Bluewater Control Pty Limited (us/we/our) respects your right to privacy and is committed to safeguarding the privacy of our customers and website visitors. We adhere to the Australian Privacy Principles contained in the Privacy Act 1988 (Cth). This policy sets out how we collect, store, use and disclose your personal information.
Personal information is information or an opinion about an identified or reasonably identifiable individual, whether or not the information or opinion is true and whether or not the information is recorded in a material form.
We will, from time to time, receive and store personal information you enter onto our website, provide to us directly or give to us in other forms. We collect and hold personal information about individuals for the provision of our products and services and purposes connected to those products and services.
You may provide basic information such as your name, phone number, phone usage data, address and email address to enable us to send information, provide updates and process your product or service order. We may collect additional information at other times, including but not limited to, when you provide feedback, when you provide information about your personal or business affairs, change your content or email preference, respond to surveys and/or promotions, provide financial or credit card information, or communicate with our customer support.
We collect personal information from you in a variety of ways, including when you interact with us electronically or in person, when you access our website and when we provide our services to you. We may receive personal information from third parties. If we do, we will protect it as set out in this privacy policy.
The purpose for which we hold, use and disclose personal information includes:
conducting our business, for example completing our transactions with you;
providing you with information, updates and our services;
making you aware of new and additional products, services and opportunities available to you;
to improve our products and services and better understand your needs; and
for our internal administrative, research, planning, marketing and product development.
If there is a change of control in our business or a sale or transfer of business assets, we reserve the right to transfer to the extent permissible at law our user databases, together with any personal information and non-personal information contained in those databases. This information may be disclosed to a potential purchaser under an agreement to maintain confidentiality. We would seek to only disclose information in good faith and where required by any of the above circumstances.
We will not use or disclose personal information for any secondary purpose, unless that secondary purpose is related to the primary purpose for which we have collected that information, and you would reasonably expect the disclosure in the circumstances, or unless you consent to that use or disclosure.
We may contact you by a variety of measures including, but not limited to telephone, email, SMS or mail.
We do not disclose information that we collect to entities located outside of Australia.
We are committed to ensuring that the information you provide to us is secure. In order to prevent unauthorised access or disclosure, we have put in place suitable physical, electronic and managerial procedures to safeguard and secure information and protect it from misuse, interference, loss and unauthorised access, modification and disclosure.
The transmission and exchange of information is carried out at your own risk. We cannot guarantee the security of any information that you transmit to us, or receive from us. Although we take measures to safeguard against unauthorised disclosures of information, we cannot assure you that personal information that we collect will not be disclosed in a manner that is inconsistent with this Privacy Policy.
You may request details of personal information that we hold about you in accordance with the provisions of the Privacy Act 1988 (Cth). A reasonable administrative fee may be payable for the provision of information. If you would like a copy of the information which we hold about you or believe that any information we hold on you is inaccurate, out of date, incomplete, irrelevant or misleading, please email us at customersuccess@bluewatercontrol.com.
We reserve the right to refuse to provide you with information that we hold about you, in certain circumstances where permitted to so by law.
If you have any complaints about our privacy practices, please feel free to send in details of your complaints to Level 1, 1 Sussex Street, Sydney, NSW 2000, Australia or by email to customersupport@bluewatercontrol.com. We take complaints very seriously and we will attempt to resolve your complaint.
If you do not consider our response satisfactory, you may contact the Australian Privacy Commissioner at its website www.oaic.gov.au or by telephone on 1300 363 992.
Please be aware that we may change this Privacy Policy in the future. We may modify this Policy at any time, in our sole discretion and all modifications will be effective immediately upon our posting of the modifications on our website or notice board. Please check back from time to time to review our privacy policy.
When you visit our website When you come to our website (https://site.www.bluewatercontrol.com/) we may collect certain information such as browser type, operating system, website visited immediately before coming to our site, etc. This information is used in an aggregated manner to analyse how people use our site, such that we can improve our service.
We may from time to time use cookies on our website. Cookies are very small files which a website uses to identify you when you come back to the site and to store details about your use of the site. Cookies are not malicious programs that access or damage your computer. Most web browsers automatically accept cookies but you can choose to reject cookies by changing your browser settings. However, this may prevent you from taking full advantage of our website.
Our website may from time to time use cookies to analyses website traffic and help us provide a better website visitor experience. In addition, cookies may be used to serve relevant ads to website visitors through third party services such as Google Adwords. These ads may appear on this website or other websites you visit.
Third party sites Our site may from time to time have links to other websites not owned or controlled by us. These links are meant for your convenience only. Links to third party websites do not constitute sponsorship or endorsement or approval of these websites. Please be aware that we are not responsible for the privacy practises of other such websites. We encourage our users to be aware, when they leave our website, to read the privacy statements of each and every website that collects personal identifiable information.
1 Jan 2022
Effective 1 June 2023
This User Data Policy applies to your use of the Bluewater Service (the Service) as a User of Bluewater Control Pty Ltd (ABN 14 614 164 519) ("Bluewater") or our Service Resellers. This User Data Policy applies to the data Bluewater processes on behalf of our Users (User Data) in our capacity of providing the service. This User Data Policy does not apply to any information or data collected by Bluewater for other purposes, such as information collected on our websites or through other channels for marketing purposes. Please see the Bluewater Privacy Policy (found at: https://www.bluewatercontrol.com/privacy-policy/) that covers this information.
Bluewater processes User Data under the direction of our Users and has no direct control or ownership of the personal data we process. Users are responsible for complying with any regulations or laws that require providing notice, disclosure and/or obtaining consent prior to transferring the data to Bluewater for processing purposes. Terms not otherwise defined herein shall have the meaning as set forth in the Bluewater Terms of Service (the "Agreement"). In the event of conflict between this User Data Policy and the Agreement, the terms of the Agreement will prevail.
Bluewater respects your right to privacy and is committed to safeguarding the privacy of our Users and their data. We adhere to the Australian Privacy Principles contained in the Privacy Act 1988 (Cth) (the "Act").
Our Users use the Service to manage their mobility workflow and telecom expense management and reporting.
At the direction of the User Bluewater uploads User information (telecom catalogues, billing data, employee names and details, company cost centres) into the Service on a regular basis in accordance with our agreements with our Users, and we store it in our service provider's & apos servers. In addition to Bluewater, the User and/or its representatives may upload information into the Service. Bluewater does not control the content of the information that our Users or their representatives input into the system. Any information uploaded into the User Service, by Bluewater or the User, is collectively the User Data.
Our agreements with our Users prohibit us from using any User Data, except as necessary to provide and improve the Service, as permitted by this User Data Policy, and as required by law.
We use the information collected through our Service for the following purposes: to provide the Service; to respond to User support requests; and to otherwise fulfill the obligations under the Bluewater Terms of Service.
When you use our Service, we automatically collect information about your computer hardware and software, for the purposes of providing and improving the Service. This information can include your IP address, browser type, domain names, the files viewed on our portal (e.g. HTML pages, graphics), operating system, clickstream data and access times. For the purposes it is collected, we do link this automatically collected data to Personal Information (as defined in the Act) such as names, emails, Company details and phone numbers.
The User Data collected and retained in our Service is retained according to the relevant agreements between you and Bluewater. User Data is retained in accordance with the Agreement as long as you remain an active User. Your data is deleted upon your written request or after an established period following the termination of all User agreements. In general, User Data is deleted after your paid Service ends and your portal becomes inactive.
We are committed to ensuring that the information you provide to us is secure. In order to prevent unauthorised access or disclosure, we have put in place suitable physical, electronic and managerial procedures to safeguard and secure information and protect it from misuse, interference, loss and unauthorised access, modification and disclosure.
Please be aware that we may change this User Data Policy in the future. We will post any changes on this page, and if the changes are significant, we will provide an update to the User Contact in your agreement with Bluewater. We will also keep prior versions of this User Data Policy in an archive for your review.
These API Terms of Use are between Bluewater Control Pty Ltd (ABN 14 614 164 519) (Bluewater) and any user of a Bluewater API (API User) and are incorporated by reference into the Bluewater Terms of Use and each Partner Agreement, respectively. By using and accessing a Bluewater API, an API User indicates their agreement to be bound by these API Terms of Use.
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