Acceptance of Terms
Welcome to Tokara Link & Data Services (“Services”).
You must agree to the following terms and conditions applying to the Tokara Link & Data Services by ticking the relevant tick box, or clicking the “I AGREE” button or signing the Tokara Agreement form. Permission to use the services described in this agreement is conditional upon you, the Customer (User), Accepting the terms below. That by using our services you (which includes you and your authorised personnel) are agreeing to be bound by the Position Partners Pty Ltd (Provider) terms, conditions and notices contained or referenced in this agreement.
In this Agreement the following terms shall have the meanings set out below, unless the context requires otherwise:
- “Agreement” means the Tokara Link and/or Data Agreement (completed online or via hard copy) and includes any annexures or documents incorporated by reference;
- “Agreement Form” means the document provided at point of sale that defines the included Services provided;
- “Australian Privacy Principles” means the relevant laws and principles that regulate the handling of personal information by Australian Government agencies and some private sector organisations;
- “Data” means cellular data connection;
- “Device” means Global Navigation Satellite System (GNSS) receiver hardware device, a hardware device running software, one or more wireless communication devices that supports connection to wireless services, collectively named a “Device”;
- “Initial Term” means the initial period of this Agreement as described on the Agreement Form;
- “Renewal Term” means frequency or period of the billing/invoicing cycle as described on the Agreement Form (after the initial term);
- “User” means you, the party specified in the Agreement and where the context requires, includes your employees agents, representatives, successors and assigns;
- “Provider” means Position Partners Pty Ltd ABN 56 130 367 065;
- “Pro Rata Fees” means fees recalculated to a whole month basis;
- “Services” means support, data, software and related information provided through this Agreement;
- “Subscription Fee” means the amount payable by the User to the Provider for the use of the Services pursuant to the Agreement and shown on the tax invoice supplied;
- “Standard Terms & Conditions” means the Standard Terms & Conditions of Sale that are posted on Position Partners web site and can vary from time to time:www.positionpartners.com.au;
- “Terms and Conditions” means these terms and conditions;
- “Tokara Link” means the infrastructure, software and method of providing remote connectivity to a device.
Scope of Agreement
- Subject to the Terms and Conditions of this Agreement, the Provider grants the User, a non-transferable and non-exclusive Agreement to use the Services described herein in the normal course of business.
Term of Agreement
- The Initial Term of this Agreement is for one (1) year.
- The commencement date is that specified in the Provider’s tax invoice or when the User takes delivery of the Services from the Provider.
- This Agreement shall automatically renew according to the terms of the Tokara Link Agreement Form unless either party provides written notice of its intention to vary or cancel the Agreement. Services renewed under this clause shall be on the same terms and conditions as set out in this Agreement, save that the Subscription Fee for any Renewal Term of the Agreement may be varied by the Provider.
Copyright and Ownership
- The User acknowledges that Services provided under this Agreement are subject to copyright and the User shall not permit any act which infringes that copyright, either during or after the expiry or termination of this Agreement.
- The User acknowledges that there is no transfer of title or ownership of the Services, and that any intellectual property shall remain the property of the Provider.
- The User agrees not to sell or provide the Services in any form to any other person or entity without written permission from the Provider.
Standard Terms & Conditions of Sales and Subscription Fees
- The User agrees to the Provider’s Standard Terms & Conditions of Sale that are posted on the Provider’s web site and may be subject to change from time to time (www.positionpartners.com.au).
- The User agrees to pay Subscription Fees specified on tax invoices provided to the User by the Provider, and within required trading terms.
- Fees may be calculated on a Pro Rata basis if required to align them with other Agreement Services.
- Failure of the User to pay any Subscription Fee or any other money owing to the Provider will entitle the Provider to immediately deactivate access to Services.
- Re-activation of Services after deactivation or termination will incur a reconnection fee.
- Access to Services is provided for specified periods of time and at fees that are subject to change from time to time.
- Applications shall exclude Safety-of-Life use or any other application where personal injury or death may occur.
- The User may authorise personnel associated with the User’s business to access and use the Services under this Agreement and the User agrees to inform all personnel of the terms, conditions and restrictions of the User. At all times, the User remains responsible under law for their compliance with the Agreement.
- The User is permitted to access Services provided that:
- Access or use of the Data is restricted to the Device owned and used by the User;
- It is not Transferred, sublicensed or resold to another individual or entity.
- The User shall be responsible for maintaining the confidentiality of usernames and passwords, and agrees that the Provider may terminate Services and access to Services if the User fails to do so. Additionally, the User is fully responsible for any and all activities that occur under their usernames and passwords. The User agrees to notify the Provider immediately of any unauthorised use of usernames and passwords or any other breach of security. The Provider will not be liable for any loss incurred as a result of another party using the User’s usernames or passwords, with or without their consent.
- The User acknowledges that no promise, representation, warranty or undertaking has been provided as to the suitability of the Services for their specific needs, and that they have relied on their own undertaking as to suitability and fitness for their purposes.
Restrictions & Misuse
- The User acknowledges that they will not interfere with or cause harm to any aspect of Services, including but not limited to interference with its data streams, hardware, and software or communication protocols.
- The User shall not use the Services for any purpose that is unlawful or prohibited by the Agreement terms and conditions. The Provider may restrict access to the Services or cancel the Agreement if there is a reasonable suspicion of, or any actual misuse or fraudulent use by the user.
- The User shall be responsible for any costs incurred by the Provider or any other party (including Legal fees) as a result of any misuse or fraudulent use of the Servi Misuse or fraudulent use includes, but is not limited to:
- Fraud or unauthorised access; or using the Services without permission or on a stolen or lost Device;
- Taking any action that imposes an unreasonable or disproportionately large data load on Services and essential infrastructure;
- Tampering with or making an unauthorised connection to Services;
- Reselling or re-billing Services to any other individual or entity;
- Use of Services in any other unauthorised or illegal manner.
Confidentiality & Privacy
- The User shall not use the Services to produce material or products for the purposes of commercialisation accept as otherwise expressly authorised by this Agreement or in writing by the Provider.
- The Provider is bound by the Australian Privacy Principles and any applicable codes of practice for the purposes of information provided to it by the User pursuant to this Agreement. Please read the Providers Privacy Statement that is available on the on-line: www.positionpartners.com.au/privacy.htm.
Coverage Area & Underlying Telecommunications Carrier
- The User acknowledges that Services may be subject to transmission limitations caused by a variety of factors such as atmospheric conditions, topographical obstructions, limitations of the underlying telecommunication carrier service and other natural or manmade conditions.
- The Provider shall not have any liability for events beyond the Provider’s control or the control of the Provider‘s subcontractors, or business partners, including, but not limited to, force majeure, acts of any governmental entity, acts of a public enemy, strikes, riots, earth quakes or severe weather conditions.
- The Provider has no control over, nor responsibility for any delays, limitations or deficiencies in any telecommunications equipment, telecommunications services or telecommunications coverage.
- The Provider may at any time discontinue or modify, enhance or make additions, permanently or temporarily, to all or any part of Services.
- The User understands and agrees that the underlying telecommunications carrier has no legal, equitable, or other liability of any kind to the User for claim arising in any way in connection with this Agreement, for any cause whatsoever, including but not limited to any disruption to the services provided in this Agreement.
Warranty & Indemnity
- Services are provided “as is” and “without promise”. Although the Provider undertakes to have backup systems and procedures, it assumes no responsibility for loss, missed delivery, timeliness or failure to provide, store or record measurements and information.
- The User agrees to indemnify the Provider and its officers and employees and agents, in respect of all claims for loss, damage or injury.
- To the full extent permitted by law, the Provider is not liable to the User for any direct, indirect, consequential or contingent loss, liability, cost, damage or expense in relation to or reliance on the services.
- Notwithstanding any damages that the User might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract, negligence or else), the entire liability of the Provider and any of its supplier’s arising from or related to this Agreement shall be limited to the value of that paid by the User for the Services.
- The Provider shall not be liable to the User, or any person claiming through the User for any loss or damage arising from suspension or termination of Services.
- Without prejudice to any other rights, the Provider may immediately terminate this Agreement if the User fails to comply with any of its terms and conditions or the Provider’s Standard Terms and Conditions of Sale.
- During a Renewal Term, the User or Provider may cancel the Agreement by notifying the other party in writing or electronic mail at least one (1) month prior to the end of the Renewal Term or Initial Term and cancellation will be effective at the end of the term.
- Upon termination of the Agreement for any reason the User must either return or certify as destroyed all copies of software, related materials and documentation obtained through the Agreement.
- Unless otherwise agreed in writing by the Provider, at the Provider’s sole selection, the Courts of any State or Territory in Australia will have exclusive jurisdiction in relation to all matters whatsoever concerning these terms and conditions. The User irrevocably waives any objection to the venue selected by the Provider in relation to any legal proceedings concerning these terms and conditions. The laws of the State or Territory chosen by the Provider for any such legal proceedings will govern these Terms and Conditions.