Terms and Conditions

Product and Services Agreement

This Product and Services Agreement (Agreement) is entered into between PestSense Pty Ltd (ACN 649 331 199) (we, us or our) and you, the individual or entity named in our invoice, or otherwise purchasing Goods or Services from us via our Site, together the Parties and each a Party.

1. Supply of Goods and Services

In consideration of your payment of the Fees, we will provide the Goods and Services (as applicable) in accordance with this Agreement, whether ourselves or through our Personnel.
If this Agreement expresses a time within which the Goods and Services (as applicable) are to be supplied, we will use reasonable endeavours to provide the Goods and Services (as applicable) by such time, but you agree that such time is an estimate only.
Third Party Products or Services: Where you engage third parties to operate alongside our Services (for example, any third-party software systems or hardware), those third parties are independent of us and you are responsible for (meaning we will not be liable for) the goods or services that they provide, unless we expressly agree otherwise.
If we are responsible for delivering the Goods to you, we will use reasonable endeavours to deliver the Goods by the time agreed between the Parties, and risk in the Goods will pass to you once we have delivered the Goods to the agreed delivery location. The Party responsible for the costs of delivery will be as outlined in the invoice, or as otherwise agreed between the Parties in writing.
If you are responsible for collecting the Goods from us, you must collect the Goods by the time agreed between the Parties, and risk in the Goods will pass to you once you have collected the Goods from the agreed collection location. You will be responsible for the costs of collection.

The following provisions apply where Goods are sold to you:

Title in the Goods will only pass to you on the date that you pay the relevant Fees in full in accordance with this Agreement.
Where Goods are supplied to you without payment in full, you:
1. are a bailee of the Goods until title in them passes to you;
2. irrevocably appoint us to be your attorney to do all acts and things necessary to ensure our retention of title to the Goods, including the registration of any security interest in our favour with respect to the Goods; and
3. must not allow any other person to have or acquire any security interest in the Goods without our prior written consent.
Where we supply you with Goods from third parties, these may come with warranties against defects from those third parties (which we will pass on to you), but we provide no other warranty in respect of such Goods unless otherwise communicated by us to you in writing.

2. Your Obligations

You agree to (and to the extent applicable, ensure that your Personnel agree to):
1. comply with this Agreement, all applicable Laws, and our reasonable requests;
2. provide us (and our Personnel) with access to any premises agreed between the Parties (and its facilities) and any other premises as is reasonably necessary for us to provide our Goods and Services, free from harm or risk to health or safety at the times and on the dates reasonably requested by us or as agreed between the Parties;
3. provide us (and our Personnel) with access to your Systems as necessary for us to provide the Services;
4. provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide our Goods and Services; and
5. not (or not attempt to) disclose, or provide access to, our Goods and Services to third parties without our prior written consent.
You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 2.

3. Fees and Payment

Our Fees and payment methods will be set out at the time you purchase the Goods or Services. If you choose to pay your Fees using one of our third-party payment processors, you may need to accept their terms and conditions (if this is the case, these will be set out at the time you make payment).
If any payment has not been made in accordance with this Agreement, we may:
1. cease supplying our Goods and Services, including suspending your access to the Software;
2. recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs);
3. charge interest on any overdue amounts at a rate equal to the your country’s central bank’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly; or
4. enter any premises where the unpaid Goods are stored or held, for the purpose of retrieving and taking possession of those Goods, and you agree to provide any access, items and consents required to enable us to do so.
You are responsible for paying any taxes associated with your use of the Goods or Services, for example sales taxes, value-added taxes or withholding taxes (unless we are required by law to collect these on your behalf).

4. Software Services and Software Licence

This clause applies where we agree to provide you with Software Services as part of the Services.
Software Licence: Where applicable, we grant you and your Authorised Users a right to use the Software (which may be suspended or revoked in accordance with this Agreement). This right cannot be passed on or transferred to any other person, unless we agree otherwise in writing.
You may invite Authorised Users to access and use the Software under your Account. Each of your Authorised Users will require a login (which is linked to your Account), in order to access and use the Software. You are responsible for ensuring that your Authorised Users comply with this clause. You may change who your Authorised Users are at any time through your Account, and what access rights or permissions they have when using the Software. You and your Authorised Users must keep your information up-to-date, keep usernames and passwords secure and confidential, and notify us if you become aware of, or have reason to suspect, any unauthorised access to the Software.
1. Each Authorised User must agree to our Terms of Service on first logging into the PestSense platform, in order to access the Software

Prohibited Uses: You must not (and you must ensure that your Authorised Users do not):
1. access or use the Software in any way that is improper or breaches any Law, infringes any person’s rights (for example, intellectual property rights and privacy rights), or gives rise to any civil or criminal liability;
2. interfere with or interrupt the supply of the Software, or any other person’s access to or use of the Software;
3. introduce any viruses or other malicious software code into the Software;
4. use any unauthorised or modified version of the Software, including but not limited to for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the Software;
5. attempt to access any data or log into any server or account that you are not expressly authorised to access;
6. use the Software in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing;
7. circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or
8. access or use the Software to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.
9. We may suspend your access to the Software where we reasonably believe there has been any unauthorised access to or use of the Software (such as the unauthorised sharing of login details for the Software). If we suspend your access to the Software, we will let you know within a reasonable time of doing so, and we will work with you to resolve the matter, or if it cannot be resolved, then we may terminate this Agreement and your access to the Software will end.
We make no guarantees that the Software will be available 100% of the time. The Software may be disrupted during certain periods, including, for example, as a result of scheduled or emergency maintenance. The Software may also interact with, or be reliant on, products or services provided by third parties, such as cloud hosting service providers. To the maximum extent permitted by Law, we are not liable for disruptions or downtime caused or contributed to by these third parties. We will try to provide you with reasonable notice, where possible, of any disruptions to your access to the Software.
Where you engage third parties to operate alongside the Software (for example, any third party software systems you wish to integrate with the Software), those third parties are independent of us and you are responsible for the goods or services they provide, unless we expressly agree otherwise in this Agreement.

5. Intellectual Property and Data

We own all intellectual property rights in the Goods and Services (including the Software). This includes how the Goods and Services look and function, as well as our copyrighted works, trademarks, inventions, designs and other intellectual property. You agree not to copy or otherwise misuse our intellectual property without our written permission (for example, to reverse engineer or discover the source code of our intellectual property), and you must not alter or remove any confidentiality, copyright or other ownership notice placed on the Goods or Services.
We may use any feedback or suggestions that you give us in any manner which we see fit (for example, to develop new features), and no benefit will be owed to you as a result of any use by us of your feedback or suggestions.

Your Data

We do not own any of Your Data, but when you provide us with Your Data and Usage Data, you grant us the right to access, analyse, back-up, copy, store, transmit and otherwise use Your Data during the Term (and for a reasonable period of time afterwards). We may use Your Data (or disclose it to third party service providers) to:
1. supply the Services to you and your Personnel (for example, to enable you and your Personnel to access and use the Services), and otherwise perform our obligations under this Agreement;
2. diagnose problems with the Services (including to troubleshoot any issues);
3. improve and develop the Services; or
4. perform analytics for the purpose of remedying bugs or issues with the Services.
You understand that, from time to time, we may need to share your data with our third party diagnostics and other providers. Where we share your data with such third parties, we agree that we shall only share such data for diagnostic and troubleshooting purposes, and shall use take all reasonable steps to ensure that of Your Data that is in the third party’s possession is:
1. not sold or rented to third parties; and
2. destroyed once the troubleshooting or diagnostics services have been completed.
You acknowledge and agree that because of the nature of the internet, the processing and transmission of Your Data by us may occur over various networks, and may be transferred unencrypted.
You are responsible for (meaning we are not liable for):
1. the integrity of Your Data on your Systems; and
2. where Your Data includes Personal Information, ensuring that you have the right to collect and disclose such Personal Information to us in accordance with the Australian Privacy Act 1988 (Cth), the United Kingdom Data Protection Act 2018, and other applicable Laws relating to privacy.
Analytics: We may create anonymised statistical data from Your Data and usage of the Services (for example, through aggregation), including your Usage Data. Once anonymised, we own that data and may use it for our own purposes, such as to provide and improve the Services, to develop new services or product offerings, to identify business trends, and for other uses we communicate to you. This may include making such anonymised data publicly available, provided it is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.
You acknowledge and agree that if you do not provide Your Data to us, it may impact your ability to receive the Services.
During the Term, we agree to retain Your Data for a period of 24 months after the date that such data is provided to us by you. Following the 24 month retention period, we shall have no obligation to retain Your Data unless:
1. retention of Your Data by us is necessary:
  1. for the provision of the Services;
  2. to the extent required by Law or pursuant to any information technology back-up procedure; or
  3. we have agreed to do so in writing with you.
This clause 5 will survive termination or expiry of this Agreement.

6. Confidential Information and Personal Information

While using the Good or Services, you may share confidential information with us, and you may become aware of confidential information about us. You agree not to use our confidential information, and to take reasonable steps to protect our confidential information from being disclosed without our permission, and we agree to do the same for your confidential information. This also means making sure that any Authorised Users, employees, contractors, professional advisors or agents of ours or yours only have access to confidential information on a ‘need-to-know basis’ (in other words, the disclosure is absolutely necessary), and that they also agree to not misuse or disclose such confidential information.
However, either you or we may share confidential information with legal or regulatory authorities if required by law to do so.
We collect, hold and disclose and use any Personal Information you provide to us in accordance with our privacy policy, available on the Site, and applicable privacy laws.
You must only disclose Personal Information to us if you have the right to do so (such as having the individual’s express consent).
We may need to disclose Personal Information to third parties, such as our related companies or our service providers (for example, IT and administrative service providers and our professional advisors).
Where we are required by law to report on our activities, you acknowledge that from time to time we may request certain information from you in order to meet our requirements, and you agree to provide us with such information within the timeframes reasonably requested by us.
This clause 6 will survive the termination or expiry of these Terms.

7. Consumer Law Rights and Warranty Against Defects

In some jurisdictions, you may have guarantees, rights or other remedies provided by law (Consumer Law Rights), and this Agreement does not restrict your Consumer Law Rights. We will only be bound by your Consumer Law Rights and the express wording of this Agreement.
If you enter this Agreement in Australia, nothing in this Agreement should be interpreted to exclude, restrict or modify the application of, or any rights or remedies you may have under, any part of the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)).
We provide a warranty for the PestSense Remote Monitoring System equipment supplied by us to you (Warranty). The details of the Warranty are as set out on our Site, or as otherwise provided by us to you.
This clause 7 will survive the termination or expiry of this Agreement.

8. Liability

Despite clause 8.2, to the maximum extent permitted by Law, but subject to your Consumer Law Rights, you indemnify us from and against any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:
1. any official investigation or inquiry into you, your Personnel or your operations, by a regulatory authority under powers granted to it by Law (including without limitation, any legal costs we incur as a result, or any actual economic loss we suffer if our business is publicly associated with such an investigation or inquiry); and
2. any Personal Information provided by you to us in breach of the Australian Privacy Act 1988 (Cth), the UK Data Protection Act 2018, or other applicable Laws relating to privacy.
Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:
1. neither Party will be liable for Consequential Loss;
2. a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
3. (where our Goods and Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to:
  1. replacing the Goods or the supply of equivalent Goods, or the payment of the cost of replacing the Goods or of supplying equivalent Goods;
  2. repairing the Goods, or the payment of the cost of having the Goods repaired; or
  3. supplying the Services again or paying the cost of having the Services supplied again; and
4. our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Fees paid by you to us in respect of the supply of the relevant Goods and Services to which the Liability relates.
This clause 8 will survive the termination or expiry of this Agreement.

9. Term and Termination

This Agreement commences on the Commencement Date and will operate for the Minimum Order Period (Term). At the end of the Term, this Agreement will be automatically renewed for recurring one-month periods, unless terminated by either Party on written notice to the other Party (Renewal Term).
Either Party may terminate this Agreement at any time by giving 30 days’ notice in writing to the other Party. The cancellation will take effect at the end of the Term, or the then-current Renewal Term, as applicable.
This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
1. the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
2. the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.
Upon expiry or termination of this Agreement:
1. without limiting and subject to your Consumer Law Rights, any payments made by you to us for Goods and Services already supplied are not refundable to you;
2. you are to pay for all Goods and Services supplied prior to termination, including Goods and Services which have been supplied and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
3. you agree to grant us such rights of access to any premises where the Goods are located to allow us (or our Personnel) to recover or repossess any Goods which we retain title to;
4. by us pursuant to clause 9.3, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
5. we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 6.
Upon termination or expiry of this Agreement, you may request that we provide you with a copy of your documents and information that we have in our possession within 30 days of the date of termination. We may, in our sole discretion, provide you with a quote for us to undertake such additional services (setting out, among other things, the scope of the service and any additional fees), where permitted by law. If you agree to the quote, we will provide the additional service to you in consideration for your payment of the additional fees. You understand that we otherwise have no obligation to provide you with such copy of your data and information after the date of termination.
Where this Agreement is terminated by you pursuant to clause 9.2 or by us in accordance with clause 9.3 within the Minimum Order Period, you agree to pay us:
1. the Early Termination Fee (if specified). You acknowledge and agree that the Early Termination Fee is a genuine pre-estimate of our loss; and
2. our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees).
Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
This clause 9 will survive the termination or expiry of this Agreement.

10. General

Amendment: We may amend this Agreement at any time by providing written notice to you. By continuing to use the Goods and Services after the notice, or 30 days after notification (whichever date is earlier), you agree to the amended Agreement. If you do not agree to the amendment, you should cease using the Goods and Services.
Assignment: You must not transfer or assign this Agreement (including any benefits or obligations you have under this Agreement) to any third party without our prior written consent. We may assign or transfer this Agreement to a third party, or transfer any debt owed by you to us to a debt collector or other third party.
Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first meeting a representative of the other Party within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting:
1. where you are a resident or incorporated in Australia, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation; or
2. where you are not a resident or incorporated in Australia, either Party may refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration, with such arbitration to be conducted in Brisbane, Australia, before one arbitrator, in English and in accordance with the ACICA Arbitration Rules.
Events Outside of Our Control: We will not be liable for any delay or failure to perform our obligations if such delay or failure is caused or contributed to by an event or circumstance beyond our reasonable control.
Governing Law: This Agreement is governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice must be sent by email, and will be deemed to have been served at the time of transmission.
Publicity: Despite clause 6, with your prior written consent, you agree that we may advertise or publicise the broad nature of our supply of our Goods and Services to you, including on our website or in our promotional material.
Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
Subcontracting: We may subcontract the supply of any part of our Goods and Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.

11. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:

Account means an account accessible to you for the use of the Software, under which Authorised Users may be granted with access to the Software.

Agreement means these terms and conditions and any agreed invoice issued under it and any documents attached to, or referred to in, each of them.

Authorised Users means your Personnel that are authorised to use the Software.

Business Day means a day on which banks are open for general banking business in Brisbane, Queensland, excluding Saturdays, Sundays and public holidays.

Commencement Date means the earlier of the date this Agreement is (a) executed by the last Party; (b) accepted on the Site; or (c) accepted in accordance with the terms of our invoice, including by making any payment of the Fees.

Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Fees will not constitute “Consequential Loss”.

Consumer Law Rights has the meaning given in clause 7.1.

Early Termination Fee is as set out in an invoice, or on the Site (as applicable).

Fees means the fees set out in the invoice or on the Site (as applicable), as adjusted in accordance with this Agreement.

Goods means the goods to be supplied as set out in the invoice or on the Site (as applicable), as adjusted in accordance with this Agreement.

Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of our Goods and Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Minimum Order Period means the minimum order period set out on our Site or invoice.

Personal Information means any information or opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a tangible form or not.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

Services means the services set out in our invoice or on the Site, as adjusted in accordance with this Agreement.

Site means our website https://pestsense.com

Software means the software as a service that we agree to provide to you as part of the Services, as set out in the relevant invoice or on the Site (as applicable).

Systems means all hardware, software, networks, telecommunications and other information technology systems used by a Party from time-to-time.

Terms of Services means our terms of service, available at https://pestsense.com/eula as amended from time to time.

Usage Data means information collected about how the Services are accessed and used by you, including but not limited to your user behaviour, frequency of use, performance data, feature utilisation, and technical information about your device, operating system, and browser.

Your Data means the information or data supplied by you and your Personnel when receiving the Services, or stored or generated by your use of the Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with the Services. Your Data does not include any data or information that is generated as a result of your usage of the Services that is a back-end or internal output or an output otherwise generally not available to users of the Services.

Warranty against Defects

In this Warranty:

We, us, or our means PestSense Pty Ltd, a company registered in Australia with company registration number (ACN) 649 331 199. Our

contact details are set out at the end of this warranty;

You, or your means the purchaser, lessee or the original end-user of the Goods;

Goods means the PestSense Remote Monitoring System equipment supplied to you by us, pursuant to our Terms and Conditions.

(AUS Only) Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. (International customers (outside of Australia)This warranty is attached to and forms part of the Terms and Conditions.

1 Warranty

We provide this Warranty to you in addition to any rights or remedies you have under the (AUS) Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)), (UK) Consumer Rights Act 2015 or any other applicable law in the jurisdiction you are a resident or otherwise incorporated (Consumer Law Rights).
Subject to the terms of this Warranty, if during the first 12 months from the date of purchase of the Goods from the Supplier (Warranty Period) the Goods prove defective by reason of improper workmanship or materials, we will resupply the Goods or issue a full or partial refund to you with respect to any amount paid for the defective part (or all) of your Goods. (AUS Only: Your Consumer Law Rights may extend beyond the Warranty Period).
If your model of Goods is no longer available or in production, we will use our best endeavours to resupply an appropriate equivalent model.

2 Making a valid warranty claim

To claim the benefit of this Warranty, you must:
1. notify us by email as soon as you become aware that the Goods are defective and in any event, within 14 days of when you become aware that the Goods are defective with evidence of proof of purchase of your Goods from us and a description and photographs of the claimed defect;
2. provide any other information reasonably required by us to assess your claim.
Where we accept your claim under this Warranty, clause 1.2 will apply.

3 When this warranty applies and when it does not

This Warranty does not cover any defect which is caused (or partly caused) or contributed to, by any:
1. act or omission, accident, or negligence by you or any third party not engaged by us;
2. failure on your part to follow any instructions or guidelines (including any manual) provided by us in relation to your Goods or properly maintain your Goods in accordance with any of our instructions or guidelines (including any manual);
3. use of your Goods otherwise than for any application or use specified by us;
4. continued use of your Goods (where such use is not reasonable) after any defect in your Goods becomes apparent or would have become apparent to a reasonably prudent person;
5. failure by you to notify us of any defect in your Goods within a reasonable period of time after you become aware of or ought to have reasonably become aware of the relevant defect;
6. reasonable wear and tear of your Goods;
7. act of God or force majeure event (including but not limited to war, riot, invasion, act of terrorism, contamination, earthquake, flood, fire, or other natural disaster, or any other event or circumstance beyond our reasonable control); or
8. installation, repair, replacement, maintenance, altering, overhauling or otherwise compromise of the Goods by you or any person other than us.

General

This Warranty is only valid and enforceable in the country of product purchase.
No third party reliance: The benefit of this Warranty is for you only, and no other person or third party can rely on or make a claim under this Warranty.
No Assignment or transfer: This Warranty or the benefit under this Warranty cannot be assigned or transferred to any other person or third party.
Severance: If any provision of this Warranty is held to be void, invalid or illegal or unenforceable in any jurisdiction, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or part of that provision) will be severed from this Warranty without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

For any questions or notices, please contact us at:

PestSense Pty Ltd (ACN 649 331 199)

Email: legal@pestsense.com

Web: https://pestsense.com