Jurisdiction Specific Terms

Effective Date: June 2022

Sensat | Jurisdiction Specific Terms

Effective Date: June 2022

1.           AUSTRALIA

1.1          Modifications to Platform Terms

1.1.1    Definitions: In the Platform Terms, unless the context otherwise requires, these terms will be given the following meanings:

"Australian Consumer Law" means Schedule 2 of the Competition and Consumer Act 2010 (Cth);

"Business Day" means a day not being a Saturday, Sunday, public holiday on which trading banks are generally open for business in Melbourne, Victoria;

"Sensat" means Sensat Australia Pty Ltd;

1.1.2        Liability: Clause 7.1 of the Platform Terms is deleted and replaced with the following clause:

7.1 Nothing in this Contract excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited.  This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.

1.1.3        Non-excludable provisions: The following clause is inserted as a new clause 7.5 of the Platform Terms:

7.5 If any guarantee, warranty, term or condition is implied or imposed in relation to the Contract under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a "Non-Excludable Provision"), and Sensat is able to limit the Customer’s remedy for a breach of the Non-Excludable Provision, then the liability of Sensat for breach of the Non-Excludable Provision is limited to one or more of the following at Sensat’s option:

(a) the supplying of the services again; or

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

1.1.4       Relief: Clause 9.5 of the Platform Terms is deleted and replaced with the following clause:

9.5 Sensat shall not be in breach of this Contract or otherwise liable to the Customer for any failure to perform, or delay in performing, its obligations under the Contract to the extent that such failure or delay is due to any failure to perform by the Customer, or any delay in the Customer performing its obligations. On the occurrence of such failure, Sensat shall be entitled to a reasonable extension of time in order to perform its obligations.

1.1.5     Confidentiality: Clause 10.2(f) of the Platform Terms is deleted and replaced with the following clause:

(f) a party is otherwise subject to an obligation of confidence under Applicable Law with respect to that Confidential Information.

1.1.6     Governing law and jurisdiction: Clause 18.7 of the Platform Terms is deleted and replaced with the following clause:

18.7 This Contract and any non-contractual obligations arising in connection with it shall be governed by and construed in accordance with the laws of the State of Victoria, Australia. The courts sitting in Victoria, Australia, shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

1.1.7     Entire Agreement: Clause 19 of the Platform Terms is deleted and replaced with the following clause:

19.1 Subject to clause 19.4, the Contract constitutes the entire agreement and understanding between the parties relating to its subject matter, and supersedes and extinguishes any other agreement or understanding (written or oral) between the parties relating to the same subject matter.

19.2 To the maximum extent permitted by law, Sensat disclaims all warranties not expressly set out in this Contract, including any implied warranties of non-infringement, merchantability, acceptable quality, fitness for purpose and any warranty that anything supplied by Sensat under the Contract will meet the Customer's requirements or work in combination with any third party software, hardware, or services. In particular, Sensat does not guarantee that the Subscription Services or anything else supplied under the Contract will be uninterrupted or error-free and the Customer acknowledges that the Subscription Services may be subject to limitations, delays and other problems inherent in the use of communications networks and facilities, including the internet. Sensat makes no representations, except as expressly set out in this Contract, and excludes any liability for any representations to the fullest extent permitted by law.

19.3 Subject to clause 19.4, neither party shall rely on, nor shall have any remedy in respect of, any promise, assurance, agreement, statement, warranty, undertaking or representation made (whether innocently or negligently) by any other party or any other person, except as expressly set out in the Contract and in respect of which its sole remedy shall be for breach of contract. Any such promise, assurance, agreement, statement, warranty, undertaking or representation, including any advertising or description contained in any catalogue or brochure, is hereby excluded and withdrawn.

19.4   Nothing in the Contract limits any liability either party may have in connection with any representations or other communications (either oral or written) made before or after entering into the Contract, where such liability cannot be excluded by law.

1.2         Modifications to Data Capture Terms

1.2.1       Definitions: In the Data Capture Terms, unless the context otherwise requires, these terms will be given the following meanings:

"Applicable Data Protection Laws" means:

(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data;

(b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Sensat is subject, which relates to the protection of personal data; and

(c) any other law, statute or binding regulation, which relates to the protection of personal data, that is applicable to the relevant party in connection with the Agreement.

"Australian Consumer Law" means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

"Business Day" means a day not being a Saturday, Sunday, public holiday on which trading banks are generally open for business in Melbourne, Victoria .

"Data Breach" means any (i) unauthorised access to Personal Information; (ii) disclosure of Personal Information; or (iii) loss of Personal Information; that is likely to result in serious harm to one or more individuals.

"Personal Information" has the meaning given to that term in the Privacy Act 1988 (Cth).

"Sensat" means Sensat Australia Pty Ltd, a company registered in Australia under ACN 660 096 962 and whose registered office address is at 58 Gipps Street, Collingwood, 3066 Victoria, Australia.

1.2.2       Variations: Clause 7.2 of the Data Capture Terms is deleted and replaced with the following clause:

7.2 In the event that any alteration or modification to the Services becomes necessary due to a matter for which the Customer or its employees or agents are responsible (including, but not limited to, any alteration or modification being made to the premises where the Services are to be carried out or to any of the Customer’s plant or to any plan or design relating to such premises or plant to be constructed, altered or modified), Sensat shall be entitled to increase the Charges to cover any additional costs incurred by Sensat as a result of the alteration or modification. Sensat shall give the Customer written notice of the increased Charges as soon as reasonably practicable after becoming aware of the increased costs.

1.2.3       Charges and Payments: Clauses 8.3 of the Data Capture Terms are deleted and replaced with the following clause:

8.3 Time for payment shall be of the essence of the Agreement and in the event of the Customer’s failure to comply with the terms as to payment, Sensat shall have the right, on written notice to the Customer, to suspend or all part of the Services until payment has been made in full. The Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.3 will accrue at an annual rate equal to the Reserve Bank of Australia’s cash rate target plus 4%.

1.2.4       Clause 8.6 of the Data Capture Terms is deleted.

1.2.5       Defects: Clause 10 of these Data Capture Terms is deleted and replaced with the following clause:

10 Insofar as permitted by law, Sensat disclaims all warranties or conditions not expressly set out in these Data Capture Terms, including any warranties implied by law as to the merchantability or satisfactory quality, nature or fitness for any particular purpose of the Deliverables and Services. Save as provided in this clause 10 and in clause 14, to the maximum extent permitted by law, Sensat shall not be under any liability, whether in contract, delict or otherwise, in respect of defects in the Services.

1.2.6       Termination: Clauses 11.3(c) and 11.3(f) of these Data Capture Terms are deleted and replaced with the following sub-clauses:

(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed under the Corporations Act 2001 (Cth) to be insolvent;

(f) a liquidator or provisional liquidator is appointed to the other party or jurisdiction a receiver, receiver and manager, official manager, trustee or similar official is appointed over any of the assets or undertakings of the other party;

1.2.7        Health and Safety: Clause 12.2 shall be deleted and replaced with the following clause:

12.2 When Sensat’s employees, subcontractors, officers or agents are present at the Customer’s premises or Sites, the Customer shall be responsible for providing all safety equipment and other such materials necessary to comply with all health and safety legislation.

1.2.8       Limitation of Liability: Clauses 14.4, 14.5 and 14.7 are deleted and replaced with the following clauses:

14.4 Nothing in these Data Capture Terms excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited.  This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.

14.5 Subject to clause 14.2 and clause 14.4, Sensat’s total liability to the Customer:

(a) for damage to property caused by the negligence of its employees and agents in connection with the Agreement shall not exceed one million Australian Dollars (AUD$ 1,000,000) for any one event or series of connected events;

(b) for all other loss or damage which does not fall within clause 14.5(a) shall not exceed an amount equal to one hundred and twenty-five per cent (125%) of the Charges.

14.7 Customer shall notify Sensat of any event giving rise to a claim under this Agreement as soon as reasonably practicable after the Customer becomes aware of the event having occurred. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

1.2.9       Non-excludable provisions: The following clause is inserted as a new clause 14.8 of the Data Capture Terms:

14.8 If any guarantee, warranty, term or condition is implied or imposed in relation to the Data Capture Terms under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a "Non-Excludable Provision"), and Sensat is able to limit the Customer’s remedy for a breach of the Non-Excludable Provision, then the liability of Sensat for breach of the Non-Excludable Provision is limited to one or more of the following at Sensat’s option:

(a) the supplying of the Services or Deliverables again; or

(b) the payment of the cost of having the Services or Deliverables supplied again.

1.2.10 Data Protection: Clause 18 of the Data Capture Terms is deleted and replaced with the following clause:

18.1 Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. Sensat shall collect, use, access, modify, transfer and disclose (including disclosing to persons located outside Australia) Personal Information as set out in its privacy notice at https://www.sensat.co/legal-privacy-notice.

18.2 The Customer agrees to provide all necessary notifications and obtain any necessary permissions or consents in connection with Sensat’s use of Personal Information or Confidential Information as contemplated by the Agreement.

18.3 The Customer must only disclose Personal Information to Sensat if disclosure is strictly necessary for the Customer to receive the full benefit of the Services or fulfill the Customer’s obligations under the Agreement.  The Customer must not disclose any sensitive personal information to Sensat, including any payment card data or any other information that is sensitive information under the Privacy Act 1988 (Cth).

18.4 If either party becomes aware of any Data Breach involving the other party’s Personal Information, it must notify the other party without undue delay.

18.5 Except as permitted under clause 18.6, the Customer must not disclose to any third party (including any government agency) the existence or circumstances surrounding any Data Breaches related to the Agreement, unless it has Sensat’s prior written approval (not to be unreasonably withheld).

18.6 If the Customer is required by law to report a Data Breach notified under clause 18.4 to a government agency or other third party, the Customer shall: (i) notify Sensat and explain its reasons for reaching that conclusion; (ii) give Sensat a reasonable opportunity to issue a notice in relation to the Data Breach to the government agency or other third party that will discharge any notice obligations to which the Customer is subject to; and (iii) only issue a notice in relation to the Data Breach if Sensat fails to issue a notice under clause 18.6(ii) within 3 Business Days (or such period as agreed between the parties) and in that case, the Customer must not identify Sensat in the notice unless required by law to do so.

1.2.11 Entire Agreement: The following clause is inserted as a new clause 21.3 of the Data Capture Terms:

21.3 Nothing in the Agreement limits any liability either party may have in connection with any representations or other communications (either oral or written) made before or after entering into the Agreement, where such liability cannot be excluded by law.

1.2.12 Law and Jurisdiction: Clause 27 of the Data Capture Terms is deleted and replaced with the following clause:

27.1 The Agreement and any non-contractual obligations arising in connection with it shall be governed by and construed in accordance with the laws of the State of Victoria, Australia.

27.2 The courts sitting in Victoria, Australia shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

1.3 Modifications to User Terms of Access ("the User Terms")

1.3.1       Contracting Sensat entity: Clause 1.2 of the User Terms is deleted and replaced with the following:

1.2 These User Terms are a legally binding contract between you and Sensat Australia Pty Ltd ("Sensat", "we", "us" and "our"). Please contact us if you have any questions about these User Terms. You may contact us at contact@sensat.co.uk or at the address below:

Sensat Digital Limited

15 Ironmonger Row

London EC1V 3TJ

United Kingdom

1.3.2       Limitations: Clause 3.1 of the User Terms is deleted and replaced with the following:

3.1 To the maximum extent permitted by law, we make no representation or warranties, except for the warranties expressly set out in these User Terms, to you relating to the Platform, which is made available or provided to you at all times on an 'as is' and 'as available' basis, and without responsibility for accuracy, timeliness, correctness, reliability and completeness. To the maximum extent permitted by law, we do not warrant that the availability, use or function of the Platform or third-party content will be uninterrupted, error free, or free of harmful components. The User acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of communications networks and facilities, including the internet.

1.3.3        Liability: Clause 4.3 of the User Terms is deleted and replaced with the following clause:

4.3 Nothing in these User Terms excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited.  This may include the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) which contains guarantees that protect the purchasers of goods and services in certain circumstances.

1.3.4 Liability: The following clauses are inserted as new clauses 4.4 and 4.5 of the User Terms:

4.4 Subject to clause 4.3, we are not liable to each other (whether arising under contract, tort including negligence, statute or otherwise) for any indirect or consequential loss or damage or any special or exemplary loss or damage. In addition, subject to clause 4.3, we are not liable to you (whether arising under contract, tort including negligence, statute or otherwise, and whether such loss is direct or indirect) for: (a) any loss to the extent caused by an act or omission of a third party; (b) any errors or omissions in any User Data; (c) any actions taken by us at the Customer’s direction; nor (d) any loss of sales, turnover, revenue, profits or opportunity, loss of or interruption to business, loss of or damage to reputation or goodwill, loss of anticipated savings, or wasted management or administrative time, in each case resulting from the use or the inability to use the Platform.

4.5 If any guarantee, warranty, term or condition is implied or imposed in relation to the User Terms under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) or any other applicable legislation and cannot be excluded (a "Non-Excludable Provision"), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to one or more of the following at our option:

(a) the supplying of the Platform and related services again; or

(b) the payment of the cost of having the Platform and related services supplied again.

1.3.5       Entire Agreement: Clause 11.1 of the User Terms is deleted and replaced with the following clause:

11.1 The User Terms, including any terms incorporated by reference into these User Terms, constitute the entire agreement and understanding between the parties relating to its subject matter, and supersedes and extinguishes any other agreement or understanding (written or oral) between the parties relating to the same subject matter. However, nothing in these User Terms limits any liability either party may have in connection with any representations or other communications (either oral or written) made before or after entering into these User Terms, where such liability cannot be excluded by law.  To the maximum extent permitted by law, we disclaim all warranties not expressly set out in these User Terms, including any implied warranties of non-infringement, merchantability, acceptable quality, fitness for purpose and any warranty that anything supplied by us under these User Terms will meet your requirements or work in combination with any third party software, hardware, or services. We make no representations, whether express or implied, and excludes any liability for any representations, to the fullest extent permitted by law.

1.3.6 Governing Law and Jurisdiction: Clause 12 of these User Terms is deleted and replaced with the following clause:

12 Governing Law and Jurisdiction

These User Terms, including the Acceptable Use Terms, and any non-contractual obligations arising in connection with it shall be governed by and construed in accordance with the laws of the State of Victoria, Australia. The courts sitting in Victoria, Australia, shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these User Terms, including the Acceptable User Terms, or its subject matter or formation (including non-contractual disputes or claims).

2.              ALL OTHER NON-UK JURISDICTIONS

The terms apply as shown without modification.


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