1.1 These terms and conditions, as amended from time to time in accordance with clause 1.2 (Conditions) govern the provision of Reports and Equipment offered by Xsights Digital Pty Ltd ACN 623 659 932 (Xsights) pursuant to registration on the Xsights' website at www.xsights.io (Website).
1.2 Xsights may amend these Conditions from time to time by not less than 1 month's notice to the Subscriber and subject to any such amendment not taking effect until after the expiry of the Initial Term.
1.3 By registering pursuant to the Website, you (and the entity you represent) (Subscriber) agree to be bound by these Conditions.
1.4 The following constitute the Contract between Xsights and the Subscriber:
1.5 If there is any ambiguity, discrepancy or inconsistency between the above documents, these Conditions takes precedence.
1.6 Otherwise than as set out above, all capitalised terms used in these Conditions, including the Schedule, are defined in clause 2.
Agreed Rate means amount equal to the Australian Financial Markets Association bank bill swap (BBSW) rate quoted on Reuters page “BBSW” for bank bills of a tenor of 90 days plus 2% per annum.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day means a day on which banks are open for business in Perth, Western Australia excluding a Saturday, Sunday or public holiday in that city.
Consequential Loss means:
even if a party is advised in advance of the possibility of any such losses or damages.
Consumer has the meaning given to it in the Australian Consumer Law.
Consumer Guarantee means any statutory guarantee provided to Consumers under Division 1 of Part 3-2 of the Australian Consumer Law.
Contract is defined in clause 1.3.
Data means the data generated by the Equipment.
Defect means a defect in the Equipment that results in Xsights being unable to provide the Reports in accordance with the Contract, but does not include any:
Dispatch Date means the date of dispatch of the Equipment by Xsights in accordance with clause 6.1.
Equipment means such hardware as is required to generate data accessible by Xsights that is necessary for the production of the Reports.
Equipment Price means $399 plus GST.
GST means goods and services tax or similar value added tax levied or imposed in Australia pursuant to A New Tax System (Equipment and Services Tax) Act 1999 (Cth).
Initial Term means the period of 24 months commencing on the Dispatch Date.
Insolvency Event means in respect of a party, the following events: appointment of an administrator, appointment of a liquidator, appointment of a provisional liquidator, appointment of a controller (including any receiver or receiver and manager), insolvency, bankruptcy, winding up or any event analogous to these events.
Operating Week means the times during each week of the Term that the Subscriber's business at the Location will be open.
Premises means the premises specified in the Subscription Details.
Registration Date means the date the Subscriber registers on the Website to be provided with the Equipment and the Services.
Reports means the weekly reports, the monthly reports and online reports described in the Schedule.
Subscriber’s Personnelmeans the Subscriber’s officers, employees, agents and contractors (other than Xsights) and their respective employees and agents.
Subscription Details means the subscription details inserted by the Subscriber at the time of registering on the Website.
Subscription Price means $35.00 plus GST per month of the Term, with the first month commencing on the Dispatch Date.
Tax Invoice means any document or record treated by the Commissioner of Taxation as a tax invoice or as a document entitling a recipient to an input tax credit.
Term means the term of the Contract as described in clause 3.
WIFI means the family of radio technologies that is commonly used for the wireless local area networking (WLAN) of devices which is based around the IEEE 802.11 family of standards.
Xsights means Xsights Digital Pty Ltd ACN 623 659 932.
3.1 The term of the Contract commences on the Dispatch Date and continues for:
4.1 In consideration for the Equipment Price, Xsights must supply the Subscriber with the Equipment on the terms and conditions set out in the Contract.
4.2 In consideration for the Subscription Price, Xsights must supply the Subscriber with the Reports on the terms and conditions set out in the Contract.
5.1 Xsights must invoice the Subscriber for, and the Subscriber must pay, the Equipment Price on the Registration Date in accordance with clause 5.3.
5.2 Xsights must invoice the Subscriber for the Subscription Price at the time payment is made by the Subscriber in accordance with clause 5.3.
5.3 The Subscriber agrees to the Equipment Price (including the payment for any replacement Equipment and delivery costs under clause 10.2) and the Subscription Price being paid by credit card and must give to Xsights, on the Registration Date, authority for such amounts to be paid by charge to the Subscriber’s credit card with the first Subscription Price payment being made on the date of dispatch of the Equipment by Xsights and then monthly thereafter.
5.4 If the Subscriber fails to make any payment due to Xsights under the Contract by the due date for payment, then, without limiting Xsights' other remedies, the Subscriber shall pay interest on the overdue amount at the Agreed Rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount.
6.1 Xsights must dispatch to the delivery address specified in the Subscription Details the Equipment to the Subscriber by registered post or courier as soon as practicable after the Registration Date.
6.2 The Subscriber must:
6.3 Risk in the Equipment passes to the Subscriber upon delivery of the Equipment to the Subscriber.
6.4 Title to the Equipment passes to the Subscriber upon payment of the Equipment Price by the Subscriber in accordance with clause 5.1.
7.1 Xsights must deliver the Reports by the means, and with the frequency, specified in the description of the Reports in the Schedule.
7.2 Xsights may utilise the Data for such purposes as Xsights determines in its sole discretion, including the generation and provision to third parties of reports utilising and interpreting that Data, subject to:
The Subscriber must, at its cost, obtain and maintain all necessary approvals or consents from the persons and authorities whose or consent is required (or which it is usual to obtain) for the lawful installation and maintenance of the Equipment and the generation and collection of the Data, and at Xsights' request, which request may be made from time to time, provide evidence to the satisfaction of Xsights (acting reasonably) that all such approvals and consents have been obtained and are current.
9.1 The Subscriber must, at its sole cost, ensure the availability of:
9.2 The Subscriber is solely responsible for ensuring the availability of, and must pay for, all electricity and power used by the Equipment and is responsible for the continuance of availability of the electric current to the Equipment.
9.3 Xsights' rights and remedies and the Subscriber's duties and obligations (including the payment of Subscription Price) under the Contract will not be affected by reason of any failure of nor of any interruption to the availability of supply of electric current to the Equipment or the unavailability of WIFI howsoever arising.
9.4 Xsights has no liability under the Contract for any failure to provide any, or any complete, Reports where such failure has arisen by reason of any failure of or interruption to the availability of supply of electric current to the Equipment, or equipment to which or in which the Equipment is attached or installed, or the unavailability of WIFI or internet connectivity, howsoever arising.
9.5 Xsights shall not be responsible for radio or television interference with the Equipment.
10.1 Subject to clause 10.3, the Subscriber must maintain and service the Equipment (and if necessary acquire replacement Equipment in accordance with clause 10.2) to ensure the Equipment remains in full operating condition during the Term.
10.2 If the Equipment requires replacement during the Term, other than by reason of a Defect for which Xsights is liable under clause 10.3, the Subscriber must acquire, and Xsights must provide to the Subscriber, the replacement Equipment for the Equipment 10.2 If the Equipment requires replacement during the Term, other than by reason of a Defect for which Xsights is liable under clause 10.3, the Subscriber must acquire, and Xsights must provide to the Subscriber, the replacement Equipment for the Equipment
10.3 Xsights must repair, or at Xsights' option replace, the Equipment if any Defect arises in the Equipment in the period of 12 months after delivery of the Equipment to the Subscriber, subject to the Subscriber returning the Equipment to Xsights by registered express post. Xsights must reimburse the Subscriber for such postage costs and must return the repaired or replaced Equipment to the Subscriber at Xsights' cost.
10.4 Xsights has no liability under the Contract for any failure to provide any, or any complete, Reports where such failure has arisen by reason of any defect in the Equipment other than a Defect.
10.5 To the extent, if any, that any Consumer Guarantees apply to the goods supplied by Xsights under the Contract, the following statement applies to those goods:
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.
11.1 If GST is imposed on any supply made by Xsights in connection with the Contract, Xsights may recover from the Subscriber, in addition to the Subscription Price, an amount equal to the GST payable in respect of that supply.
11.2 Xsights must first provide the Owner with a Tax Invoice before the Owner is required to pay the GST amount to the Subscriber.
Each party must keep confidential, and not use or disclose, the terms of the Contract except:
13.1 The Subscriber indemnifies Xsights for any losses suffered or incurred by Xsights arising out of, or in connection with, any wrongful act or omission of the Subscriber or the Subscriber's Personnel and claims made by third parties in connection with the Subscriber’s performance or non-performance of the Subscriber’s obligations under the Contract. This indemnity will be reduced to the extent that the loss is caused, or contributed to, by Xsights or Xsights' officers, employees or agents (which, for the avoidance of doubt, do not include the Subscriber or the Subscriber's Personnel).
13.2 Neither party is liable to the other for Consequential Loss in relation to the Contract
The exclusions of liability in the Contract, including under clause 13.2, do not apply to liability in relation to fraud, property damage, death, personal injury or any other liability which cannot be restricted by law.
14.1 Either party may terminate the Contract by giving not less than 1 month's written notice to the other party, subject to the date of termination specified in such notice falling after the end of the Initial Term.
14.2 Except to the extent that the notice or termination pursuant to the notice may be prohibited or stayed under the Corporations Act 2001 (Cth), a party may terminate the Contract by notice to the other party:
14.3 If a notice of termination issued by a party under clause 14.1, or termination pursuant to that notice, is prohibited or stayed under the Corporations Act 2001 (Cth), in no circumstances will the conduct of the party in issuing the notice be regarded as repudiatory conduct by that party.
14.4 Termination of the Contract, however it may occur, does not prejudice any claim that either party may have against the other under the Contract on termination.
15.1 Subject to clause 15.4, a notice must be in writing and:
or as otherwise notified to the party giving the notice.
15.2 For the purposes of clause 15.1, the addresses of the parties as at the date of the Contract are
15.3 A notice is deemed to be given and received:
15.4 A notice under clause 14 may only be delivered by hand or sent by post.
16.1 Words and phrases used in the Contract that have defined meanings in the PPSA have the same meaning as in the PPSA unless the context otherwise indicates.
16.2 If Xsights determines that the Contract (or a transaction in connection with it) is or contains a security interest for the purposes of the PPSA, the Subscriber agrees to do anything (including obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which Xsights asks and considers necessary for the purposes of:
16.3 Xsights does not need to give the Subscriber any notice required under the PPSA (including, without limitation, a notice of a verification statement under section 157 of the PPSA) unless the requirement for the notice cannot be excluded.
16.4 Notwithstanding clause 12, neither Xsights nor the Subscriber will disclose information of the kind mentioned in section 275(1) of the PPSA and the Subscriber will not authorise, and will ensure that no other party authorises, the disclosure of such information.
16.5 Clause 16.4 does not prevent disclosure where such disclosure is required under section 275 of the PPSA because of the operation of section 275(7) of the PPSA.
17.1 The Subscriber must not assign any right, benefit or interest under the Contract to any person or entity without the prior written consent of Xsights.
17.2 The Contract is governed by the law in force in Western Australia and each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in Western Australia
17.3 The Contract states all the express terms of the agreement between the parties in respect of its subject matter. It supersedes all prior representations, discussions, negotiations, understandings and agreements in respect of its subject matter.
17.4 Nothing in the Contract gives a party authority to bind the other party in any way. Nothing in the Contract imposes any fiduciary duties on a party in relation to the other party.
17.5 No waiver of a breach of any term of the Contract or of a default under the Contract will be effective unless in writing, signed by, or on behalf of, the parties and expressed to be such a waiver.
17.6 The rights and remedies contained in the Contract are cumulative and not exclusive of any rights or remedies provided by Law.
17.7 Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination or expiry of the Contract, clauses 1, 12, 13, 14.4, 16 and this clause 17 will survive the termination or expiry of the Contract
17.8 In the Contract:
A.. In this Schedule:
Bluetooth means a wireless technology standard for exchanging data between fixed and mobile Devices over short distances using short-wavelength UHF radio waves in the industrial, scientific and medical radio bands, from 2.400 to 2.485 GHz, and building personal area networks (PANs).
Day by Day Reporting means the total Number of Devices digitally seen within a 24 hour day.
Dwell Time means the amount of time a Device is within proximity to a Gateway, reported in 5 minute increments.
Gateway means a hardware device that allows data to flow from one discrete telecommunications network to another.
Hour by Hour Reporting means the Number of Devices digitally seen within each hour of the day.
Number of Devices means the number of Devices, with either WIFI or Bluetooth connectivity switched on, that are digitally seen within a proximity range of approximately 30 meters from the Gateway in any direction (noting that the Gateway cannot digitally see through concrete).
Week by Week Reporting means the total Number of Devices digitally seen within the week
B.. The Reports comprise the following:
1. Weekly report - a report in respect of each week of the Term that is generated and emailed weekly by no later than 1 Business Day after the end of the week to which the report relates, that is based on Data generated from the Equipment during the Operating Week, and sets out the following information in relation to that Operating Week with approximately 95% accuracy, presented in such form as Xsights determines in its discretion:
Monthly report - a report in respect of each calendar month of the Term that is generated and emailed monthly by no later than 1 Business Day after the end of the calendar month to which the report relates, that is based on Data generated from the Equipment during each Operating Week of the calendar month, and sets out the following information, with approximately 95% accuracy, presented in such form as Xsights determines in its discretion:
Online reports - live online reports available via the Website that are based on Data generated from the Equipment in real time, each of which sets out the following information as at the time of accessing the report with approximately 95% accuracy, presented in such form as Xsights determines in its discretion: