Monitoring Agreement

BETWEEN: RavenCo. Pty Ltd (ACN 631 060 323) trading as SLABsense (“Monitoring Agent”)AND: The “Client”.

‍Background:
A. The Monitoring Agent provides monitoring Services and equipment for the purposes of capturing trend data related to the conditions contributing to and the resultant movement caused by slab heave or subsidence.
B. The Client wishes to engage the Monitoring Agent to provide Services and the parties agree to record the terms of their agreement in this Monitoring Agreement.
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‍It is agreed as follows:
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Definitions and Interpretation
‍In this Contract the following words and phrases mean:
“Additional Services” means any other services that the Client and Monitoring Agent agree will be performed by the Monitoring Agent after the date that this Agreement commences.
“Agreement” means this Monitoring Agreement and includes all amendments or variations to this Services Agreement.
“Business” means the business conducted by the Client as at the commencement of this Agreement.
“Confidential Information” means all trade-secrets, know-how, proprietary information and other data and information relating in any way to the business of a Party disclosed in connection with this Agreement.  Confidential Information excludes information (a) generally available in the industry other than because of a wrongful disclosure, (b) independently obtained or developed by a Party without breaching this Agreement, or (c) available to a Party on a non-confidential basis from a third person not bound by any confidentiality agreement or fiduciary obligation owed to the other Party.
“Discloser” means the Party that discloses information.
“Expenses” means any cost paid, or payable, by the Monitoring Agent to any third party in relation to the Services provided by the Client and any costs incurred by the Monitoring Agent for travel required outside of the Geelong region.
“Fees” means the price payable by the Client for the Services as identified in Item Five of Schedule One
“GST” means Goods and Services Tax as defined under the GST Act.
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth).“Intellectual Property” includes but is not limited to copyright, trademarks, logos, branding, designs, patents, processes and all other intellectual property that is capable of legal protection, regardless of whether such legal protection has been formally obtained.
“Law” means all applicable statutes, Acts, rules, regulations and by-laws current in the governing jurisdiction of this Contract together with all amendments and replacing laws.
“Notice” means a notice in writing including those sent by facsimile, letter, email and mobile device text messaging and conveyed in accordance with this Agreement.
“Party/Parties” means the Parties to this Agreement and includes their lawful successors and assigns.  Any reference to a party will include, where applicable, any subsidiary controlled by a Party or by the same persons who control that Party.
“Payment Terms” means the timeframe that the Client must pay the Monitoring Agent’s fees as described in any online store product description and or emailed quotation.
“Person” includes anybody that is recognised at Law in the Territory whether it be a natural person, an entity or corporation.
“Recipient” means the Party to whom Confidential Information is disclosed.
“Services” means the Services described in selected online store product descriptions and or emailed quotations.
“Timeframe” means the date described in selected online store product descriptions and or emailed quotations.In this Contract words importing any genders include all genders including the neuter gender.In this Contract words importing the singular include the plural and vice versa.

‍Acceptance
‍Acceptance of this Agreement will occur upon the Monitoring Agent receiving confirmation from the Client that the Client wishes to proceed to engage the Monitoring Agent to provide the Services.

‍Provision of Services
‍The Client engages the Monitoring Agent to provide the Client with the Services. The Monitoring Agent accepts the engagement and agrees to be bound by this Agreement.The Monitoring Agent will complete the Services in a timely manner and in accordance with any times reasonably agreed upon by the Monitoring Agent and the Client or The Monitoring Agent will provide the Services in accordance with the TimeframeThe provision of Services by the Monitoring Agent under this Agreement is not exclusive. The Monitoring Agent may provide similar Services to other clients. During the Term, the Monitoring Agent and the Client may agree for Additional Services to be provided under this Agreement. In that event, the Additional Services will be deemed as Services and subject to this Agreement.This Agreement will apply to all services provided by the Monitoring Agent to the Client from time to time.

‍Term
‍This Agreement commences upon payment and the Rental Term commences on the date agreed by both Parties until completion of the Services or until either Party terminates the engagement as provided in this Agreement.The Parties may agree at any time during the Term to extend the Term which must be documented in writing.The Parties acknowledge that the Timeframe is an indication only and the Timeframe may change through the duration of this Agreement.

‍Availability
‍The Monitoring Agent and the Client may agree when the Services will be performed to meet the Client’s requirements.Measurement and data collection from individual sensors is deemed functional if at least one measurement is successfully uploaded per week.Interruptions to Services due to external service providers and/or systems outside the Monitoring Agent’s control will not constitute a refundable lapse in service provision.

‍Reporting
‍The Monitoring Agent will provide the Services without day-to-day involvement of the Client but will respond to the Client’s reasonable requests in a timely fashion.The Monitoring Agent and Client agree to comply with any formal requirements agreed to.The Client agrees to report any issues about the Services to the Monitoring Agent as soon as practicable after the issue arises.The Monitoring Agent agrees to advise of any known Service outages via email within 7 days of the outage being identified.

‍Fees
‍In consideration for the Monitoring Agent providing the Services, the Client agrees to pay the Monitoring Agent the Fees within the Payment Terms.The Monitoring Agent will issue the Client with a tax invoice within 30 days of the Monitoring Agent, in its view, meeting a milestone or unless stated otherwise in the Payment Terms.The Fees are exclusive of GST.The Client agrees to pay any Expenses of the Monitoring Agent as identified in the tax invoice.If the Client has a dispute about the tax invoice, the Client should put its concerns in writing to the Monitoring Agent immediately.The Client is obliged to make payment in full of the Monitoring Agent ’s tax invoice, regardless of any dispute about payment. Payment disputes will be resolved in accordance with clause 28 of this Agreement. There is not right to set off a tax invoice with any amount that the Client claims is owing to it.

‍Default in Payment
‍If the Client fails to pay an invoice by the date payment is due, the Monitoring Agent in its sole discretion may cease providing the Services until all overdue payments are paid in full.Where the Client has failed to pay an invoice by the due date, the Monitoring Agent may terminate this Agreement in its sole discretion at any time providing 5 days written notice of termination to the Client. The obligation to pay the Monitoring Agent in accordance with this Agreement survives termination of your trade account.Payments not made by the due date may incur penalty interest daily at a rate that is 1.5% above the rate fixed under the Penalty Rates Interest Act (1983) Victoria that applies at the time that the payment is due.The Client will be liable to pay all expenses incurred by the Monitoring Agent arising from a default in payment by the Client, including but not limited to debt recovery costs, legal fees and disbursements on an indemnity basis.

‍Monitoring Agent warranties
‍The Monitoring Agent represents and warrants to the Client that:the Monitoring Agent has the necessary knowledge, experience and skills to provide the Services in a professional and competent manner; it will to comply with all applicable laws, statutes, regulations and Government rules relating to the provision of the Services.the Monitoring Agent will provide the Client with such information about the Services as reasonably requested by the Client from time to time; the Monitoring Agent will not do anything or fail to do anything which might cause harm or embarrassment to the Client or the Client’s business; and the Monitoring Agent will not do or fail to do anything which might cause the Client to be in breach of any obligations that the Client owes to any third parties (such as its customers) or by law.When attending the Client’s premises and using the Client’s facilities or equipment the Monitoring Agent will comply with all occupational health and safety and worksafe policies of the Client.The Monitoring Agent has and will retain at all times during the Term relevant insurances in relation to the provision of the Services by the Monitoring Agent. The Monitoring Agent will provide the Client will proof of insurance upon request.The Monitoring Agent may use sub-contractors to provide any of the Services. In such circumstances, it will be the responsibility of the Monitoring Agent to ensure that:the sub-contractors so engaged are suitably qualified, hold all necessary licences, and are otherwise able to perform the Services in a proper and workman-like manner;the sub-contractors so engaged do not by act or omission do or not do anything that would if done or not done by the Contractor be a breach any of the terms of this Agreement;the sub-contractors so engaged have current or necessary insurances.The Monitoring Agent is solely responsible for all fees payable to sub-contractors.

‍Confidentiality
‍Neither Party may disclose any Confidential Information to any third-party other than: As required by law;To its professional advisers where such advisers are under a similar duty of confidentiality with regards to the information; orIf the Confidential Information is already in the public domain (other than by way of a breach of this Clause).Each Party agrees that all Confidential Information is kept in a secure location so that no unauthorised person can gain access to the Confidential Information.Each Party agrees that de-identified details about the Client, the premises and any data related to the Services provided in this Agreement may be used or disclosed to third-parties for marketing or educational purposes providing that:The Client’s personal &/or business names are not disclosed without prior agreement;The premises address is not disclosed without prior agreement;Any reference to any other related Party is not disclosed without prior agreement;This clause shall survive the cessation of this Agreement.

‍Relationship
‍The relationship between the Monitoring Agent and the Client is that of a service provider, where the Monitoring Agent will agree to perform services for the Client on the terms contained in this Contract.Nothing in this Contract creates a relationship of joint venture, partnership, employment or agency.

‍Location and working facilities
‍If attending the Client’s nominated premises and using the premises facilities or equipment the Monitoring Agent will comply with all policies of the Client.Where installation of Services was not performed by the Monitoring Agent’s staff or representatives, any physical maintenance, replacement or other forms of manual, on premises intervention to the Monitoring Agent‘s devices are the responsibility of the Client.  Where agreed between the Monitoring Agent and the Client, the Monitoring Agent may consider travelling to provide the Services at a location requested by the Client. Additional Fees will apply. In such circumstances the Client must ensure that the Monitoring Agent has access to the facilities and equipment required by the Monitoring Agent to perform the Services at the location that the Monitoring Agent travels to.

‍TerminationEither party may terminate this Agreement by giving one month’s written notice at any time, unless a shorter notice period is agreed upon by the Parties.Either party may terminate this contract immediately on provision of written notice if:the other Party does or omits to do anything, which in the terminating party’s reasonable opinion could be construed as gross negligence, fraud, dishonesty or serious misconduct; or the other Party materially breaches this Contract and fails to remedy the breach within 3 days of receiving written notice requiring it to do so; or the other Party becomes bankrupt, insolvent, has a receiver or manager appointed over any of its assets, or goes into liquidation (otherwise than for the purposes of solvent reconstruction or amalgamation).Upon receiving notice of termination, the Client will pay all Fees payable to the Monitoring Agent up to the date of termination.Upon termination of this Agreement, the Client will return all property owned by the Monitoring Agent to the Monitoring Agent. The Client is responsible for any reasonable expenses relating to the Client returning the Monitoring Agent’s property to it.Should the Client be unable to return any or all property owned by the Monitoring Agent to the Monitoring Agent and in an undamaged state, the Client will pay penalty fees payable to the Monitoring Agent equal to six months rental per device.

‍Protection of Interests
‍During the term of this Agreement and for a period of 6 months after its cessation, neither party will directly solicit or knowingly employ or engage any employee or contractor of the other Party without the other Party’s prior written consent.During the term of this Agreement and for a period of 6 months after its cessation, the Client will not solicit or endeavour to encourage in any way, directly or indirectly, any customer or supplier of the Monitoring Agent to terminate or restrict their relationship with the Monitoring Agent.

‍Health, Safety and Security
‍The Client must ensure that, if the Services are to be carried out on the Client’s property, the property is safe and that all facilities provided by the Client to the Monitoring Agent for the purposes of carrying out the Services are safe.

‍Intellectual Property rights
‍Subject to clause 16.2 all Intellectual Property created by a Party under this Agreement, remains the property of that Party unless otherwise agreed, including upon termination of this Agreement.To the extent if the Services include the creation of Intellectual Property by the Monitoring Agent for the Client, then all ownership rights in the Intellectual Property will pass to the Client upon completion of the Services and receipt of all payments owing to the Monitoring Agent by the Client under this Agreement.For the duration of this Agreement, each Party grants the other Party a non-exclusive, non-transferable, revocable licence to use any Intellectual Property created by a Party for the purposes of this Agreement.Each Party will ensure that the Intellectual Property is used, copied, supplied or reproduced in accordance with this Agreement.On the expiration or earlier termination of this Agreement, each Party must cease using all Intellectual Property of the other Party in its possession, custody and control and must return the Intellectual Property to the other Party.

‍Limitation of Liability
‍The Client acknowledges that the Monitoring Agent is not liable for any failure in the Services if that failure is attributable to or caused by any failure of the Client or by any third-party vendor engaged by the Client.The Monitoring Agent is not responsible for the implementation of any recommendations provided by the Client within the Client’s premises.To the extent permitted by law, all statutory warranties that can be expressly are hereby excluded.To the extent permitted by law, the maximum liability of the Monitoring Agent under this Agreement is limited to the supply of the Services again, or a 50% refund of the incurred monitoring fee.The Client agrees to indemnify the Monitoring Agent and its affiliates from and against:loss of or damage to property of the Monitoring Agent caused by the Client, its officers, employees, agents or sub-contractors;any claim, demand, loss or expense incurred by the Monitoring Agent in dealing with any claim against it including legal costs and expenses resulting from any act or omission by the Client, its officers, employees, agents or subcontractors in connection with this Contract; andany breach by the Client of its obligations under this Agreement including any loss or damage attributable to such a breach.

‍Applicable Law
The Parties agree that this Agreement is governed by the laws of Victoria and the Parties submit to the exclusive jurisdiction of the courts in Victoria.

‍Final Agreement
The Parties agree that this Agreement supersedes all prior contracts between the Parties in relation to the Services.  

‍Amendments
This Agreement can be amended by mutual agreement of the Parties, evidenced in writing.

‍Force Majeure
Neither party is liable to the other for failing to meet its obligations under this Agreement to the extent that the failure was caused by an act of nature or other circumstances beyond the party’s reasonable control. However, where a party has been unable to perform its obligations for a period of 60 days or more, the party may immediately terminate this Agreement by giving notice in writing to the defaulting party.

‍Assignment
Neither Party will assign its rights and obligations under this Contract without first obtaining the written consent of the other Party. Consent will not be unreasonably withheld.

‍No Waiver
No failure to exercise or delay in exercising any right or remedy by either Party will constitute a waiver by that Party of that or any other right or remedy available to it.

‍Notices
‍A notice required under this Agreement must be in writing and signed for the party giving notice by an authorised officer, attorney or solicitor.Any notice given pursuant to this Agreement will be deemed to be validly given if it is personally delivered, posted (by registered mail), emailed, or forwarded by facsimile transmission to the usual address for the party that is used for the purposes of communication under this Agreement.Any notice given pursuant to this Contract will be deemed validly given:in the case of personal delivery, when received; in the case of post, on the last day of a period provided as the usual time for delivery according to the delivery provider; if sent by email or facsimile:during ordinary business hours, when received; after ordinary business on the next business day; on the condition that the sender can produce a confirmation receipt that the email or facsimile was validly sent.

‍Disputes
‍If a dispute or difference arises in connection with this Agreement (“Complaint”), the aggrieved party must give the other party written notice of the Complaint, setting out the nature of the Complaint and the resolution that the aggrieved party is seeking.Any dispute or difference between the parties arising out of or in connection with this Agreement which cannot be settled by negotiation between the parties within 14 days of notice being provided under clause 25.1 must first be referred to conciliation by a conciliator agreed between the parties at a place agreed by the parties.Any dispute or difference which is not settled by conciliation in accordance with clause [above] within 30 days of the dispute arising must be forthwith referred for determination by a person appointed for that purpose by the President of the Institute of Arbitrators, Victorian Division and which person is an expert in the field in which the dispute arises.The decision of the person appointed to determine the dispute is final and binding on the parties.Failing Agreement within 14 days after either party has given to the other a written request to agree in the appointment of an arbitrator, upon the application of a party, the dispute shall be determined by an arbitrator to be appointed by the President of the time being of the Victorian Bar.

‍Drafting Disadvantage
‍Nothing in this Agreement is to be construed to the disadvantage of a Party because the other Party was responsible for the preparation of this Agreement.Each Party acknowledges and represents to each other that it has had the opportunity to seek and obtain separate and independent legal advice before entering into this Contract. If either Party has entered into this Contract without first taking legal advice it has done so at is sole and absolute discretion and it will not be entitled to rely upon the absence of legal advice as a defence to any breach of the clauses of this Agreement.

‍Severability
If any clause of this Agreement is invalid under any applicable law, the clause will be limited, construed or altered to the extent necessary to render it valid.  If necessary, the invalid clause will be deleted from the Agreement and the remaining clauses will remain in full force and effect.