Terms

1. These License Agreement terms (Terms) govern access to and use of SensorMine by individuals and organisations (Licensee, you, your).
2. By accessing or using SensorMine, or requesting or allowing another party to do so on your behalf, you accept these Terms as a binding contract.

3. You are responsible for:

   1. authenticating and approving Personnel before they access SensorMine;
   2. preventing unauthorised access by Personnel; and
   3. the acts and omissions of Personnel in connection with their access to and use of SensorMine.
4. If you do not accept and comply with these Terms, you may not access or use SensorMine.

Partner

1. We are not responsible for:

   1. your Partner’s acts, omissions or other obligations;
   2. any unauthorised representations or commitments made by your Partner about SensorMine;
   3. products or services that your Partner sells or provides to you that are not provided by us; or
   4. any refunds or credits, including for any part of the SensorMine Fees.

2. If you purchase SensorMine through a Partner:

   1. SensorMine pricing is independently set by your Partner; and
   2. you will be invoiced by, and all payments must be made directly to, your Partner, unless otherwise agreed.

Duration

1. These Terms take effect and bind the Parties from the date you are given access to SensorMine and apply until your access has been removed.

License to SensorMine

1. Subject to your compliance with these Terms, we grant you a non-transferrable, non-exclusive, royalty-free license to access and use SensorMine during the Subscription Period.

SensorMine Fees

1. You must pay the SensorMine Fees directly to us, through the Microsoft Azure Marketplace or to your Partner, as applicable.
2. A Subscription and the ability to access to SensorMine will start on the date the Subscription is activated and will end on the last day of the Subscription Period.

3. Unless otherwise agreed, you will be charged for the Subscription as follows:

   1. for monthly Subscription Periods, in advance at the start of each month;
   2. for annual Subscription Periods, in advance at the start of the Subscription Period; and
   3. any refunds or credits, including for any part of the SensorMine Fees.
4. At the expiry of your current Subscription Period your Subscription will automatically renew for the same period as your current Subscription (eg. an annual Subscription Period will renew for another year), and you will be charged in accordance with clause 6.3.

5. Your Subscription will automatically renew unless and until you notify us or your Partner in writing:

   1. for monthly Subscription Periods, no less than 10 business days; or
   2. any refunds or credits, including for any part of the SensorMine Fees.

   before the end of the current Subscription Period that you do not want your Subscription to renew.

Shipping of Devices

1. Where you purchase Devices directly from us, the Devices and Warranty Devices (if any) will be shipped by us to your nominated location, provided that nominated location is within a metropolitan area (unless otherwise expressly agreed in writing). We will insure the shipment to the nominated location at your expense.
2. Unless otherwise expressly agreed, 50% of the fees for ordered Devices are payable in advance (Deposit) with the remaining 50% payable once those Devices have been received by you (as evidenced by a signed delivery receipt).
3. We will not ship any Devices or Warranty Devices until the Deposit has been paid in full.
4. You are responsible for all shipping, handling and insurance costs and all customs, duties, tariffs and similar fees levied upon the delivery of Devices or Warranty Devices or on the physical Devices or Warranty Devices themselves (Delivery Costs).
5. If we are out of pocket for any Delivery Costs then we will be entitled to recover those costs from you.
6. Risk in the Devices and Warranty Devices will pass to you when they are delivered to your nominated location, as evidenced by a signed delivery receipt.
7. Title in the Devices and Warranty Devices will not pass to you until you have paid all amounts relating to the Devices in full.

Use of SensorMine

1. You must comply with any reasonable directions as notified by us to you from time to time in relation to your access to and use of SensorMine.
2. Your use of the Application Software is subject to additional terms specified by Microsoft under its Services Agreement (available here: https://www.microsoft.com/en-au/servicesagreement) and you agree to comply with those terms and any other vendor terms notified to you.

3. You must not (and you must ensure that your Personnel and any other person who you allow to access SensorMine on your behalf do not) do, or attempt to do, any of the following without our express permission:

   1. allow access to SensorMine by anyone other than properly authorised Personnel;
   2. sell, distribute, sublicense or transfer any part of your rights to access or use SensorMine;
   3. access or use SensorMine in any way other than as specifically permitted by these Terms;
   4. download, modify, adapt, translate, de-compile, disassemble, copy, reproduce, create, reverse engineer or reverse compile SensorMine (or any part of it), including attempting to discover the source code of the Application Software or the Embedded Software;
   5. remove or erase any part of SensorMine or disable, interfere with, disrupt or alter any SensorMine functionality;
   6. copy, share, distribute, alter, customise, modify or create derivative works of SensorMine or alter, change, remove or obscure any notices or other indications (including copyright notices) as to the ownership of SensorMine;
   7. circumvent or break any encryption, decryption or other security device or technology measure(s) contained in SensorMine or that control access to or use of SensorMine;
   8. tamper with, hinder the operation of, or make unauthorised modifications to SensorMine;
   9. access or discover the underlying algorithms or data models used by SensorMine to generate information or results; or
   10. use SensorMine for any unlawful purpose.

Support, releases, bug fixes, patching and updates

1. Subject to clause 9.3, Standard Support for SensorMine will be provided to you. Premium Support for SensorMine will only be provided to you if you have purchased Premium Support.
2. The details and terms of Standard Support and Premium Support are provided in our Support – Scope & Responsiveness document available at www.altra.cloud/legal. We may use overseas resources to provide support for SensorMine.
3. Support for Devices will instead be provided on the terms set out in Appendix 1 – Device Warranty and Support.
4. We may, in our absolute discretion, issue new releases of, update, bug fix and/or patch SensorMine as we deem necessary, provided that such releases, updates, bug fixes or patches do not materially adversely affect the functionality of SensorMine.
5. Unless otherwise agreed in writing, the version of SensorMine to which you are granted a license under these Terms will be the version of SensorMine which is at that time generally made available by us.

Licensee obligations

1. You are solely responsible (at your own cost) for:

   1. providing all equipment, software and internet access necessary to access and use SensorMine, unless otherwise agreed in writing;
   2. ensuring that your IT environment (and the IT environment of your users) interfaces with and is compatible with SensorMine;
   3. the security and use of log-in details and access credentials, and all access to and use of SensorMine; and
   4. creating and storing backups of Licensee Data.

2. You must:

   1. provide us with all reasonable assistance and cooperation as reasonably requested by us in the provision of SensorMine;
   2. only use Devices or BYO Devices with the Application Software;
   3. ensure that any information that you provide when you or your Partner registers you for SensorMine (including registering your Devices or BYO Devices) is, and remains, accurate, current and complete;
   4. immediately report any security violations or misuse of SensorMine to us;
   5. act reasonably and in good faith in exercising any right, remedy, discretion or obligation under these Terms, at law or otherwise; and
   6. comply with applicable laws, protocols, policies and guidelines issued by us from time to time.
3. If any delay or failure by us to comply with our obligations under these Terms is caused or contributed to by any failure by you or your Personnel to comply with your obligations under these Terms, then we will not be responsible for the delay or failure.
4. We may audit your use of SensorMine at any time (subject to us providing you with reasonable notice) and you agree to comply with our audit requests and audit processes.

Licensee Data

1. All rights (including Intellectual Property Rights), title and interests in the Licensee Data are owned solely by you.
2. You grant to us (and our Personnel) a non-exclusive, royalty-free, worldwide license to perform all acts with respect to Licensee Data as required to perform our obligations under these Terms.
3. We will maintain appropriate technical safeguards for the protection of the availability, confidentiality and integrity of the Licensee Data and will not use or disclose any Licensee Data other than in accordance with these Terms and the Microsoft Azure Marketplace terms (if applicable).
4. You acknowledge that your Partner, and other parties with whom you have an agreement, may also have access to your Licensee Data and that it is the obligation of such parties to handle that information in accordance with their own privacy and security policies.
5. You acknowledge that, unless otherwise agreed, Licensee Data will be stored in Australia.

6. You warrant that:

   1. you have all necessary rights and consents to use the Licensee Data and to permit us to use the Licensee Data in accordance with these Terms;
   2. the use of the Licensee Data by us in the manner permitted by these Terms will not breach any laws or the rights of any person;
   3. the Licensee Data does not contain any personal or sensitive information or any material which is unlawful; and
   4. you will not, and you will ensure that your Personnel do not, use SensorMine to transmit any Malicious Code.

7. You acknowledge that:

   1. it is your responsibility to ensure you keep copies of the Licensee Data; and
   2. we do not have any obligation to download, store or keep copies of Licensee Data either during your Subscription Period or after the end of your Subscription Period.

License Management Data

1. We will collect and use License Management Data to provision, invoice, manage and monitor SensorMine and your compliance with these Terms.  License Management Data will be stored in Australia.
2. Subject to clause 16, we may also use License Management Data to improve SensorMine and for internal business purposes.
3. With your prior consent we may also share License Management Data with your Partner and other parties who may be involved in providing SensorMine related services.

Data deletion

1. We will delete all Licensee Data 90 days from the last day of your Subscription Period.
2. You acknowledge and agree that Licensee Data will not be recoverable by us, you, your Partner or any third party once deleted.

Security

1. Credentials used to access SensorMine are confidential and you must ensure that this information is kept secure from unauthorised access, use or modification.
2. You are solely responsible for any use (or misuse) of SensorMine arising from a failure to keep information secure in accordance with clause 14.1.

Intellectual Property Rights

1. Subject to clause 11.1 we are the owner or authorised licensee of all Intellectual Property Rights:

   1. currently subsisting in SensorMine;
   2. in any augmentations, modifications, improvements or enhancements to, or derivatives of, SensorMine;
   3. in any materials (including technical specifications, marketing collateral, training material and and business processes) created or developed by us (whether for you, us, your Partner or another party) relating to SensorMine,

   collectively and separately referred to in these Terms as SensorMine IP.

2. We grant to you a non-transferrable, non-exclusive, royalty-free, revocable license to use SensorMine IP in connection with your use of SensorMine during the Subscription Period.
3. Where SensorMine IP is not already owned by us it will vest in and be exclusively owned by us immediately upon its creation and nothing in these Terms assigns or transfers ownership of any SensorMine IP to you, your Partner or any other party.

Confidentiality

1. Each Party will keep confidential, and not use or disclose other than as permitted in these Terms, any Confidential Information of the other Party, except:

   1. as required by law, a regulatory authority, or a stock exchange, provided that it gives the other Party written notice prior to disclosure;
   2. with the prior written consent of the Party who supplied the information;
   3. if the information comes into the public domain other than due to a breach of these Terms;
   4. if the recipient Party already knew or had, on a non-confidential basis, the information before receiving it; or
   5. if the recipient Party independently developed or acquired the information, without a breach of these Terms or other breach of confidence.
2. Each Party will take all prudent steps to protect the Confidential Information of the other Party.

Disputes

1. If a Dispute arises, neither Party may commence any proceedings unless it has first complied with this clause 17, except where a Party seeks urgent interlocutory relief.
2. A Party claiming a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute.
3. On receipt of that notice, the Parties must use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
4. If the Dispute is not resolved within 15 business days of notice being given pursuant to clause 17.2 (or within such further period agreed in writing by the Parties), the applicable Dispute resolution process below will apply.
5. While the relevant Dispute resolution procedure is being followed, both Parties must continue to fulfil their obligations under these Terms.
6. If you are incorporated in Australia or New Zealand, the Dispute will be referred to, and finally resolved by, arbitration in Melbourne, Australia in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Expedited Arbitration Rules for the time being in force, which rules are deemed to be incorporated by reference in this clause 17. The number of arbitrators will be one. The language of the arbitration will be English. The award of the arbitrator will be final and binding on the Parties.
7. If you are not incorporated in Australia or New Zealand, the Dispute will be referred to, and finally resolved by, arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which rules are deemed to be incorporated by reference in this clause 17. The number of arbitrators will be one. The language of the arbitration will be English. The award of the arbitrator will be final and binding on the Parties.
8. THE PARTIES EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR THE PURPOSES OF LITIGATING DISPUTES UNDER THESE TERMS.
9. Any Dispute must be brought in the respective Party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff or similar proceeding (Class Action).
10. The Parties expressly waive any ability to maintain any Class Action in any forum in connection with any Dispute. An arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a Party to the arbitration.
11. Any claim that all or part of this Class Action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.

Warranties and disclaimers

1. We warrant that SensorMine will substantially conform to any applicable product and service specifications that we provide to you in writing.

2. The warranty in clause 18.1 will not apply in relation to any defects or issues resulting from or attributable to:

   1. currently subsisting in SensorMany failure to comply with the SensorMine documentation or other express instructions;ine;
   2. a malfunction of your hardware, network or cloud environment;
   3. programs, data, equipment, systems, software or hardware not licensed or provided by us which are used by you in conjunction with SensorMine;
   4. any act or omission by you, your Personnel, your Partner or any third party in breach of these Terms; or
   5. a Force Majeure Event.
3. Your sole and exclusive remedy, and our sole liability, in connection with a breach of the warranty in clause 18.1, will be the re-supply of SensorMine, or if we determine that this is commercially impracticable, termination of your Subscription and a refund of any unused pre-paid SensorMine Fees for the remaining period of your SensorMine order.
4. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO ANY NON-EXCLUDABLE TERMS AND ANY EXPRESS WARRANTIES IN THESE TERMS, SENSORMINE IS PROVIDED BY US “AS IS”. WE EXCLUDE ALL WARRANTIES, REPRESENTATIONS, IMPLIED TERMS AND GUARANTEES NOT EXPRESSLY STATED IN THESE TERMS, INCLUDING ANY WARRANTY OR REPRESENTATION THAT SENSORMINE WILL BE FIT FOR ANY PARTICULAR PURPOSE OR WILL BE ERROR-FREE OR UNINTERRUPTED. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE OUTPUTS OF, OR ANY RESULTS OF USE OF SENSORMINE.
5. WITHOUT LIMITING CLAUSE 18.4, WE DO NOT SUPPORT, AND ARE NOT LIABLE IN ANY WAY, FOR ANY PARTNER OR THIRD PARTY SERVICES, PRODUCTS, PLATFORMS OR ADD-INS (OTHER PARTY SERVICES) OR FOR ANY FAILURE OF SENSORMINE CAUSED BY SUCH OTHER PARTY SERVICES.
6. SENSORMINE IS NOT DESIGNED OR INTENDED FOR USE IN LIFE SUPPORT, LIFE SUSTAINING, NUCLEAR OR OTHER APPLICATIONS IN WHICH FAILURE OF SENSORMINE OR RELATED SERVICES COULD REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE, OR CATASTROPHIC PROPERTY DAMAGE (EXCLUDED USES) AND YOU AGREE NOT TO USE SENSORMINE FOR OR IN RELATION TO SUCH EXCLUDED USES.
7. We will use commercially reasonable efforts to ensure that SensorMine is free of any Malicious Code.
8. Nothing in these Terms is intended to exclude any guarantees which by law cannot be excluded or modified. If we are liable for breach of any such guarantee or warranty, then to the extent permitted by law, our liability for that breach will be limited to re-supplying SensorMine in accordance with the respective guarantee.

9. You acknowledge and agree that:

   1. any use of, or reliance on, information which is made available to you through SensorMine is undertaken entirely at your own risk; and
   2. we do not control the transfer of data over the internet and that access to SensorMine may be subject to limitations, delays and other problems inherent in the use of the internet.

Indemnity

1. You will indemnify and (at our option) defend us, our Personnel and our Related Companies, from and against any Loss (including Loss arising in connection with third party claims) suffered, paid or incurred by us arising out of or in connection with:

   1. any breach by you or your Personnel of these Terms, except to the extent that such Loss is caused or contributed to by us; or
   2. any claim that our use of Licensee Data infringes the rights (including Intellectual Property Rights) of any other person; or
   3. any claim relating to Loss suffered because of your reliance on any information or results provided through SensorMine.

LIMITATION OF LIABILITY

1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER A PARTY, NOR ITS PERSONNEL OR RELATED COMPANIES, WILL BE LIABLE TO THE OTHER PARTY, ITS PERSONNEL OR RELATED COMPANIES, OR TO ANY OTHER PARTY, FOR ANY CONSEQUENTIAL LOSS ARISING FROM OR RELATING TO SENSORMINE OR THESE TERMS, WHETHER FORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHER CAUSE OF ACTION.
2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL OUR, OUR PERSONNEL OR OUR RELATED COMPANIES’ MAXIMUM CUMULATIVE LIABLITY TO YOU, YOUR PERSONNEL OR YOUR RELATED COMPANIES ARISING OUT OF OR IN CONNECTION WITH SENSORMINE OR THESE TERMS EXCEED THE AMOUNTS PAID BY YOU FOR SENSORMINE IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE, UP TO A MAXIMUM OF USD $100,000.

3. Nothing in these Terms limits or excludes the liability of a Party for:

   1. personal injury or death, or damage to or loss of real or personal property;
   2. breach of clause 6; or
   3. acts of fraud, misrepresentation or wilful misconduct.

RESPONSIBILITY

1. IT IS YOUR RESPONSIBILITY TO EXAMINE AND TEST SENSORMINE AFTER YOU HAVE BEEN GIVEN ACCESS TO DETERMINE WHETHER IT IS ACCEPTABLE TO YOU AND ADEQUATE AND SAFE FOR YOUR NEEDS AND USES.
2. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR USE OF AND RELIANCE ON SENSORMINE.
3. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND THAT THE LICENSE IS CONDITIONED ON YOUR REPRESENTATION TO US THAT YOU HAVE ACCEPTED AND AGREE TO BE BOUND BY THESE TERMS.

Termination

1. You may only terminate your Subscription if we materially breach these Terms and either that breach not able to be remedied or, if it is, we do not remedy it within 10 business days of receiving written notice from you requiring the breach to be remedied.

2. We may terminate your Subscription:

   1. if you have not paid a correctly rendered and undisputed invoice issued by us, your Partner, or through the Microsoft Azure Marketplace (as applicable) by its due date; or
   2. if you have not paid a correctly rendered and undisputed invoice issued by us, your Partner, or through the Microsoft Azure Marketplace (as applicable) by its due date; or

Consequences of expiry or termination

1. Upon the earlier of:

   1. termination of your Subscription in accordance with clause 22; and
   2. the expiry of your Subscription Period,
      then:
   3. your license to access and use SensorMine immediately ends;
   4. you must immediately cease using your Subscription and any Devices;
   5. we will be entitled to remove your access to SensorMine; and
   6. we will be entitled to delete any Licensee Data within 90 days, regardless of whether you have kept copies of that Licensee Data in accordance with clause 11.7.
2. Despite any other provision of these Terms, any obligations which are expressed to or, by their nature, survive termination or expiry will continue to the benefit of and be enforceable by the Parties.

Force Majeure Event

1. Subject to compliance with this clause 24, a Party will not be liable for any delay or non-performance of its obligations (other than an obligation to pay money) under these Terms to the extent that the delay or non-performance is caused or contributed to by a Force Majeure Event.

2. The affected Party must:

   1. do all reasonable things to avoid, minimise the duration of, and mitigate the consequences of the Force Majeure Event;
   2. promptly notify the other Party of the occurrence of the Force Majeure Event, providing full details of the Force Majeure Event, an estimate of its likely duration, the impacted obligations and the extent to which performance is likely to be affected, and the steps taken by the affected party under clause 24.2(a); and
   3. when the Force Majeure Event ends, recommence performance of the affected obligations and promptly notify the other Party.

Publicity

1. You grant to us the right to use your company’s name and logo for promotional purposes, including on websites, in press releases and in advertising and promotional material, unless indicated otherwise by you in written notice to us.

U.S. Government End Users

1. The following clauses apply if you are a U.S. Government End User.
2. SensorMine is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995).
3. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire SensorMine with only those rights set forth in these Terms.
4. SensorMine and related documentation are provided to U.S. Government End Users only as a commercial end item and only pursuant to these Terms.
5. With respect to end-users that are of any other government, similar conditions are likewise agreed upon between the Parties, to the effect that you acknowledge that SensorMine constitutes a pre-existing commercial product developed at private expense and provided to you only in accordance with these Terms and you have no rights not explicitly granted by us under these Terms.

Export controls

1. You represent and warrant that you will not:

   1. export, re-export or otherwise provide access to or use of SensorMine to any party that is listed on any sanctions or designated persons or parties lists or located in (or a national of) a country that is subject to a government embargo or that has been designated as a “terrorist supporting” country; or
   2. permit any of your Personnel to access or use SensorMine in violation of any applicable export control or economic sanctions laws.

General provisions

1. Order of precedence: In the case of any conflict or inconsistency between these Terms and the terms of any other agreement between the Parties (including a statement of work, master services agreement, partner agreement, work order or purchase order) then these Terms will take precedence in relation to the subject matter of these Terms.
2. Waiver: No waiver of a right or remedy under these Terms is effective unless it is in writing and signed by the Party granting it.
3. Rights cumulative: The rights of a Party under these Terms are cumulative and are in addition to any other rights of that Party.
4. Consents: A Party may conditionally or unconditionally give or withhold any consent and is not obliged to give its reasons for doing so.
5. Further steps: Each Party must promptly do whatever the other Party reasonably requires of it to give effect to these Terms and to perform its obligations under it.
6. Governing law and jurisdiction: These Terms are governed by and are to be construed in accordance with the laws applicable in the State of Victoria, Australia.
7. Assignment: A Party must not assign or deal with any right under these Terms without the prior written consent of the other Party. Any purported dealing in breach of this clause 28.7 is of no effect.
8. Relationship of Parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the Parties.

Definitions

• In these terms:
  ‍
  Application Software means our cloud-based software-as-a-service products pursuant to which you are given access to our software required to collect data from, and report on, Devices or BYO Devices.
  ‍
  BYO Devices means physical sensors, probes, gateways and gateway accessories used to collect and transmit data to the Application Software, which are not purchased from us (either directly or through a Partner).
  ‍
  Confidential Information of a Party means in respect of a Party (disclosing Party) any information obtained by the other Party from the disclosing Party, or from any Personnel or Related Company of the disclosing Party, that is by its nature confidential, is designated as confidential by the disclosing Party or that the other Party knows or ought reasonably to know is confidential, including a Party’s Intellectual Property Rights.

• Consequential Loss means any consequential, indirect, special, incidental, reliance or exemplary losses or damages, including:

  1. (a) loss of revenue, profit, anticipated profit, investment, production, use, opportunity, savings, anticipated savings, contracts or goodwill;
  2. (b) costs of procurement of substitute goods, deliverables, services, rights or technology or wasted overheads;
  3. (c) loss, damage or corruption of data or interruption in use or availability of data;
  4. (d) any loss not arising naturally (that is, according to the usual course of things) from the relevant breach, act or omission,

  even if a Party had been advised of the possibility of such losses or damages and whether such loss may reasonably be supposed to have been in the contemplation of the Parties, at the time they entered into these Terms, as the probable result of the relevant breach, act or omission.
  ‍

• ‍Devices means the physical sensors, probes, gateways and gateway accessories used to collect and transmit data to the Application Software, but not including BYO Devices.
  ‍
  Dispute means any dispute, controversy or claim arising out of, relating to or in connection with these Terms, including any question regarding their existence, validity, termination, breach, enforcement or interpretation.
  ‍
  Embedded Software means our generated code or software that is embedded within Devices.
  ‍
  Force Majeure Event means an event out of a Party’s reasonable control, such as an act of God, pandemic or epidemic, national emergency, insurrection, civil disorder, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), military operations or act of terrorism, shortage of power, or shortage of material from a normal source of supply, but excludes any act or omission of a Party.
  ‍
  Intellectual Property Rights means any rights normally covered with this term and includes existing and future copyrights, rights in designs, patents, trademarks, service marks, inventions, trade secrets, know how, and all rights in any applications or registrations of those rights whether registered or unregistered (and whether registrable or not) and existing anywhere in the world.
  ‍
  License Management Data means data collected and processed by us to provision, invoice, manage and monitor SensorMine and your compliance with these Terms, including billing contact details, Subscription activation, renewal and expiry dates, user and order history, activity and error logs and SensorMine performance data.
  ‍
  Licensee Data means your data which is ingested by SensorMine and reports generated for you by SensorMine.
  ‍
  Loss means all loss, liabilities, claims, losses, damages, costs and expenses (including legal costs, whether incurred by or awarded against a party), whether arising in contract, tort (including negligence) or otherwise.
  ‍
  Malicious Code means code, files, scripts, agents or programs designed or intended to do harm, such as disabling or impeding the normal operation of, or providing unauthorised access to, networks, systems, software or environments (including viruses, worms, time bombs and Trojan horses).
  ‍
  Microsoft Azure Marketplace means Microsoft’s commercial marketplace through which customers can purchase solutions from independent software vendors, including us.
  ‍
  Parties means us and you and Party means either us or you, as the context requires.
  ‍
  Partner means a person or entity authorised by us to sell or provide SensorMine to end users.
  ‍
  Personnel means your directors, officers, employees, agents, service providers and contractors and those of any of your Related Companies.
  ‍
  SensorMine means together a Subscription and any associated Devices (and includes any modified version or derivative of SensorMine).
  
  SensorMine Fees means the fees payable by you for SensorMine.
  
  Subscription means a subscription to access and use the System and Devices in accordance with these Terms.
  
  Subscription Period means the duration of your Subscription (as set out in an order directly with us or, if you are purchasing SensorMine through a Partner, the applicable agreement between you and your Partner), as renewed or terminated in accordance with these Terms.
  
  Support Terms means the terms and conditions set out in our Support – Scope and Responsiveness document, available at www.altra.cloud/legal.
  
  System means the proprietary system developed by us comprised of the Application Software, the Embedded Software, SensorMine documentation and any other related licenses, materials, items and services.
  
  U.S. Government End User means any agency or entity of the government of the United States.
  
  Warranty Devices means, for an order of at least 100 Devices with a Subscription, an additional 1% of Devices over and above the number of Devices initially ordered (up to a maximum of 5 Devices), which are to be used to replace defective Devices.

Construction

1. Unless expressed to the contrary, in these Terms:

   1. “business day” means any day on which registered banks are open for business in the location of the party who is to perform the relevant action under the given notice (excluding Saturday, Sundays and public holidays);
   2. any other reference to a “day” is to a calendar day;
   3. includes means includes without limitation;

   4. a reference to:

      1. a person includes a partnership, a joint venture, an unincorporated association, a corporation and a government or statutory body or authority;
      2. a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
      3. these Terms include all schedules and annexures to these Terms; and
   5. headings do not affect the interpretation of these Terms.

Device Warranty

1. We warrant on the terms set out in these Terms that each Device will be free from defects in material and workmanship for 12 months from that Device’s date of shipment (Device Warranty).

Device Warranty Process

1. If you consider that a Device is defective you must follow the process set out in this section 2 (Device Warranty Process).
2. As a first step you must contact us (if you purchased SensorMine directly from us) or your Partner (if you purchased SensorMine through a Partner) to attempt to resolve the issue remotely.
3. If the issue is not able to be resolved remotely you may return the Device to us for assessment. Before initiating a return, you must ensure that the Device is eligible to be covered under the Device Warranty.
4. You must complete a Return Merchandise Authorisation (RMA) form in our required format and return the RMA with the Device, to enable us to track the return and process your Device Warranty claim. We may not be able to process your Device Warranty claim without an accurately completed RMA.
5. The return of the Device to us is at your cost and risk. You must insure the Device during shipping and ensure that the Device is securely packed to prevent damage. Failure to ship the Device securely may void the Device Warranty.
6. Upon receiving the Device and RMA form we will assess the Device within a reasonable period to determine if it is defective and, if so, whether the defect is covered under the Device Warranty. Our determination of whether a Device is defective and whether it is covered under the Device Warranty is final.
7. If we determine that the Device is defective and that the defect is covered under the Device Warranty, we will ship you a replacement Device at our cost and risk.

8. If we determine that either the Device is not defective or that it is not covered by the Device Warranty, we will notify you. You will then have the option of:

   1. having the original Device shipped back to you at your expense;  
   2. purchasing a replacement Device and having it shipped to you at your expense; or
   3. not having any Device shipped to you.
9. If you elect to have the original Device or a replacement Device shipped to you, we will ship that Device to your nominated location at your expense, provided that location is within a metropolitan area (unless otherwise expressly agreed in writing).
10. We will not ship a replacement Device to you until any charges for the replacement Device have been paid in full.
11. Where we ship the original or a replacement Device to you, we will insure the shipment at your expense. Risk in the Device will pass to you when it is delivered to your nomination location, as evidenced by a signed delivery receipt.

Warranty Devices

1. If you are eligible to receive Warranty Devices, those Warranty Devices will be shipped on the same terms as the other Devices in the applicable order.
2. You may use Warranty Devices to replace Devices which are proceeding through Device Warranty Process.
3. Where we determine that at least 75% of provided Warranty Devices have been used to replace defective Devices, we may, in our discretion, provide sufficient additional Warranty Devices to replace the Warranty Devices that have been used, which will be shipped on the same terms as the initial Warranty Devices.

4. Before the end of the Subscription Period you will be given the option, by us directly or by your Partner, of:

   1. purchasing any remaining Warranty Devices in your possession at an agreed price; or
   2. returning any remaining Warranty Devices to us at your risk and expense.

   Where you purchased SensorMine through a Partner, it is your Partner’s, and not our, responsibility to contact you about these options.

5. If you do not select and action an option before your Subscription Period expires, then you will be deemed to have accepted the option in section 3.4(a) and you will be charged accordingly.

6. If you (or anyone on your behalf):

   1. deploy a Warranty Device as a new SensorMine deployment, rather than as a replacement for a defective Device; or
   2. otherwise deploy more than the number of Devices or BYO Devices stated in your SensorMine order(s) with us or your Partner (as applicable),
      then we may:
   3. increase your SensorMine Fee to account for the additional deployments; and/or
   4. restrict your excess usage.
7. All Devices (including defective Devices and Warranty Devices) that are returned to us become our property.

Exclusions

1. You are not entitled to Device support, and the Device Warranty will not apply, in relation to any defects or issues resulting from or attributable to:

   1. any of the events listed in clause 18.2;
   2. any accident, negligence, abuse, tampering with, damage to, or misuse or opening of a Device;
   3. installation, use, repair, maintenance or modification of a Device other than in accordance with the SensorMine documentation or our express instructions;
   4. a Device’s battery, including configuration or other use that excessively drains a Device’s battery or causes premature battery depletion;
   5. failure to comply with environmental and storage requirements as set out in our SensorMine documentation or our express instructions;
   6. use of SensorMine for personal, domestic or household purposes or consumption;
   7. use by you after notice from us to discontinue use a Device; and
   8. any form of damage caused during shipment of Device by you or on your behalf, including where caused by inadequate packaging.
2. We will not be liable for any loss of production, system or equipment downtime or similar, or for any Consequential Loss, in relation to any defective Device, regardless of whether the defect is covered by Device Warranty.
3. We are not responsible under the Terms, including under Device Warranty for your, your Partner’s or any other party’s software, firmware, information, or memory data contained in, stored on, or integrated with any Device.

Consumer Laws

1. You agree that you are not purchasing, and will not use, SensorMine for personal, domestic or household purposes or consumption or in any other way which may make SensorMine or your purchase or use of SensorMine subject to any consumer law applicable in the jurisdiction in which you purchased SensorMine or in which you use SensorMine.
2. To the extent permitted by law, you acknowledge that any warranties, guarantees or other protections under any consumer law applicable in the jurisdiction in which you purchased SensorMine or in which you use SensorMine do not apply to your purchase or use of SensorMine.