TERMS AND CONDITIONS SMTV
Supply of Product & Services including Delivery & Installation. - Version 1 - 18th December 2021
Document Audience: All Customers using the SMTV Hardware & Software System
BACKGROUND
A. The SMTV System is an integrated digital media platform that delivers SmartCast and other IP services within multiple dwelling unitresidential accommodation, hospitality, resort, and aged-care venues.
The Customer is in the business of owning, managing or operating hotels and/or resorts and the like.
B. The Customer agrees to use the SMTV System Services at the Location and shall be regarded in the context of and in accordance with the Terms & Conditions Agreement as the manager in principle of the business accepting responsibility for its use.
OPERATIVE PROVISIONS
THE PARTIES AGREE in consideration of this Agreement and of the clauses on the part of the Customer contained herein as follows:
1. Definitions
‘You’ means the business, company or other legal entity named as Customer under this Agreement and to the extent permitted by law, references to “you” and “your” include your employees, contractors, agents and permitted assignees.
‘We’ means SMTV as Supplier under this Agreement and to the extent permitted by law, references to “we”, “us”, “our” and “ours” includes SMTV employees, contractors, agents and permitted assignees.
‘Bill-to Party’ means the entity to which any charges are invoiced under this Agreement
‘Business Centre / Kiosk’ means the shared facilities provided by you at the Location for non-exclusive use by Users for phoning, faxing, photocopying, printing and internet access etc.
‘Business Day’ means any weekday on which the trading banks are open in the town or city of or nearest to the Location or your offices or ours, whichever is appropriate in the context of its use
‘Business Hours’ means the hours from 8:30am to 5:00pm on a Business Day
‘Capabilities’ means the range of services delivered by the SMTV System at the Location
‘Commencement Date’ means the date agreed to be the starting date for services under this Agreement or the date the installed SMTV System first becomes operational and is handed over to you, whether that installation is in full or is the first part of serial instalments at the Location
'Conference Room' means the space(s) and facilities available at the Location for group assembly and meeting purposes.
'Confidential Information' shall include all information involving the fabrication or manufacture of the SMTV System and its components including matters of a technical nature, research and development, information, notes of products, knowhow, trade secrets, engineering or other data, specifications, processes, formulae, manufacturing planning or marketing procedures, techniques or information, accounting procedures, financial information and further but without prejudice the generality of the foregoing shall include the possible or likely function, purpose of application of any confidential information either directly or indirectly or arising out of or in any way attributable to the SMTV System.
‘Content’ means any audio or visual representation delivered via the SMTV System by means, including but not limited to Television, Movies, Video, Advertising and Internet
‘Document Issue Date’ is the date on the title page of this Agreement
‘Force Majeure’ means an event described as an act of God, landslip, landslide, lightning, earthquake, fire, storm, flood, blockade, epidemic, civil disturbance, explosion, war, hostilities, labour disputes and industrial actions, the binding order of any court, governmental or local authority, or any other cause, whether of the kind described in this clause or not, not within the control of the invoking party and which by the exercise of due diligence such party is unable to prevent or overcome.
‘GST’ means the Goods and Services Tax charged on the supply of goods and services in accordance with the GST legislation or rulesgoverning or regulating the imposition of GST in Australia
‘Guest’ means a person or persons for whom you make a room or rooms exclusively available for short-term temporary accommodation with or without fee
‘Infrastructure’ means the Ethernet or fibre cabled backbone, MATV / TV Coax network, internal data network and associated equipment installed at the Location that is provided by you for use by us for the delivery of the Capabilities.
'Intellectual Property Rights' means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields
‘SMTV’ means the company Four X Two Pty Ltd;
'Location' means the physical address and premises as described in the Schedule at which the SMTV System is installed
'SMTV' is an abbreviation of the word Smartv.Cloud
'SMTV’ System' means the collection of all equipment, servers, switchgear, gateways and software etcetera supplied and/or owned by or licensed to us and making up the necessary components to deliver the Capabilities. It does not mean include the guestroom SMTV Devices or other Useritems
'Media' means the media on which any software or digital content is stored, recorded to or from, or played or printed.
‘Owner’ means the company Four x Two Ltd PTY when referring to equipment in which SMTV holds title and that is located or installed at the Location.
‘PMS’ means Property Management System and is intended to include any third-party software product and system used by the Customer the Location to manage guest bookings, reservations, point of sale, telephone and other amenities and that may be linked to the SMTV System.
‘Port(s)’ means the Wi-Fi wall termination point which connects the room device to the SMTV System equipment
‘Room(s)’ means the individual guest room space(s) regardless of size, specification, title or description, used for example in the context of studio, room, suite, apartment etcetera, as occupied by a resident or guest whether permanently or from time to time within the
Location. This does not include any group or public access area or conference rooms or the like.
‘Schedule’ means the schedule of items appended to and forming part of this agreement that relate to the specific installation at the Location or Locations at which the equipment and SMTV System is delivered and commissioned.
'Server' means the SMTV application, data and web server(s) and associated switches, gateways and network equipment supplied and installed by or belonging to us.
'Services' means the range of processes, procedures and technologies we use to deliver the Capabilities
'Services Fee' means the amounts payable by You to Us for the delivery of the services described in the Schedule.
'Software' means the SMTV Proprietary software program and other licensed software and documentation in the SMTV servers and associated equipment utilized to deliver the Capabilities.
‘User’ means any Guest, Customer, visitor and any other person or organisation that uses or selects to use any content and services on, from or through the SMTV System at the Location.
Words used in these terms which begin with capital letters have the meaning given in this Clause or as those words appear in this Agreement. When we use words like “we”, “us”, “our” and “ours” in this document, it is to SMTV that we refer.
Words importing the singular include the plural and vice versa and words importing one gender shall include all other genders. Headings are for ease of reference only and shall not affect the interpretation of this Agreement.
Reference to a Clause or Clauses in the Agreement refer to those clauses in this Agreement unless otherwise qualified.
The prices of the Products and Services delivered under this Agreement are quoted in Australian Dollars and shall be increased by the amount of any GST or other governmental charges payable with respect to the sale of the Products and Services now in effect or becoming effective after the date thereof.
TERMS AND CONDITIONS
2. Commencement and Term of Agreement
2.1 The term starts from the Commencement Date for the duration defined in the Schedule. In the absence of a Commencement Date the Agreement shall commence on the date of first services billed under this Agreement.
2.2 The terms of renewal are outlined in the clause ‘Renewal Term’
3. Conditions of Agreement
3.1 Use of the Software is limited to the SMTV System Server(s) and Network hardware, Guestroom and Public Area Access Points, System Modules or other equipment installed by us at the Location
3.2 For the duration and any extensions of this Agreement we have exclusive rights at the Location for the supply, installation and delivery of the services described as the Capabilities, and any additional services or functions that may be added by agreement between the parties.
3.3 This Agreement applies to the combined services listed as the Capabilities and separation of the services will be allowed.
3.4 Just because we do not insist on your compliance with any one or more of your obligations under this Agreement does not mean that we waive our right to insist on that compliance at some later date
4. Copies
You shall not copy any of the Software save as provided under this Agreement and shall promptly notify SMTV on becoming aware of any unauthorised use or copying.
5. Modifications and Integration
5.1 We reserve the right to modify or update the whole or any part of the SMTV System Software as may be required by us from time to time, without notice to you. Such modifications or updates will not affect the ability of the Software to perform the Capabilities. Where such an update or modification involves equipment owned by you, we will provide notice but your authorisation for us to do so is not required.
Any change or upgrade of the user interface and/or functionality of the SMTV System requested by you after that initially delivered under this Agreement will be chargeable to you and delivered under our System Services Change Request procedure
5.2 You shall not adjust, modify or reverse-engineer any part of the SMTV System Software or pass to any third party to so do nor combine or incorporate any part of the Software in or with any other product, service, program or system without our express consent.
5.3 Any unauthorised use of or modification by you of any part of the Software shall constitute a fundamental breach of the terms of this Agreement and without limiting our rights at law shall:
a. be deemed a discharge and release of all our liability in respect of any warranted or implied performance obligations of the Software; and
b. at our sole discretion constitute an assignment to us of any Intellectual Property rights of such alteration or modifications
5.4 Any integration or other connectivity between the SMTV Software and any other third-party application, including but not limited to Property Management Systems (PMS) and other of your business-related functions, can only be undertaken with our express consent. Whilst we will reasonably assist with integration, it shall be one of a direct relationship between you and your PMS or other third-party provider. Unless otherwise agreed between us all third-party costs associated with PMS integration or other services are your responsibility.
5.5 We do not accept responsibility for any issues arising out of the performance, function or failure of any third-party software or application associated with any service integrated with the SMTV System.
6. Fair Use Policies
Where SMTV Wi-Fi services are provided to Guests you agree that Internet Services to Users will be provided under a fair use policy (“Fair Use Policy”) provided by or acceptable to us. Notice of and access to the Fair Use Policy shall be a prerequisite to User access to the Internet via the SMTV System. From time to time, we may monitor use of the User Internet to check compliance with the Fair Use Policy or to investigate suspected breaches. We are not required to enforce the Fair Use Policy. However, we reserve the right to suspend or terminate services without notice to any User if, in our view, that User is in breach of the Fair Use Policy and is adversely affecting the experience of other Users
7. Services and Support Fees and Payments
7.1 Where you are not the Bill-To Party you will guarantee prompt payment of the services and support fees. Just because we fail to invoice you in time or at all does not absolve you from payment of the monthly amounts due.
7.2 We will invoice you in advance for a Minimum Guest Wi-Fi Services Fee payable under the terms described in the attached Schedule.
7.2 Although we may continue to provide services after you fail to pay us as required under this Agreement, we reserve the right to exercise any rights that we may have under this Agreement at any time
7.3 You agree that if our expenses in relation to this Agreement increase we may vary the Guest Wi-Fi and Conference Support Fees by providing written notice to you (via invoice.)
7.4 If you dispute in good faith any part of the amount invoiced by us you will pay the undisputed portion on or before the due date. If the dispute regarding the remainder cannot be resolved between the parties within a reasonable timeframe it may be referred to the dispute resolution procedure prescribed.
SYSTEM OPERATION AND MAINTENANCE
8. SMTV System Software and Services, Server(s) and other Equipment
8.1 You will provide us ready access to the SMTV Server upon us giving you reasonable notice. This means physical access to equipment for maintenance or other purposes.
8.2 For the duration of this agreement, and at no cost to you, we will maintain the SMTV System Server hardware in proper working order at its full capacity for the purpose for which it was intended at the date of its installation.
Exclusions:
We will not be liable for component or system failure due to heat stress where:
a. the SMTV System Server, core switchgear and internet access controller are in a space where the temperature exceeds 25°C
b. any other of the SMTV System gateways and floor switchgear is in any space where the temperature exceeds 35°C
We will not be liable for component, system or services failure where any equipment not specified for the purpose is installed in an outdoor environment (for example balconies and as distinct from enclosed indoor) where the equipment or ancillary item is exposed to the elements or susceptible to indirect exposure to moisture or condensation, or is
a. stored in a dirty or dusty environment preventing adequate ventilation flow
b. subjected to any physical abuse or has unrelated items stacked upon or against it
c. moved without our express consent
d. disconnected in any way without our express consent
8.3 We will provide initial on-site training to familiarise your staff with the correct operation of the SMTV System. Such training shall take place during and / or immediately following installation.
8.4 You shall provide at your own cost the first line of User support for your guests. This base level of support is confined to initial contact with and assistance to users and communications with the SMTV Help Desk if necessary.
8.5 We provide a 24/7 free-call Help Desk. Where a support call is escalated to our technicians we will endeavour to respond and commence to remedy the fault within 8 hours of being notified by the Help Desk. If notification of the fault is later than 4.30pm on any day the remedy attempt time may be carried over to the next day.
8.6 If you report a fault and we find that there is no fault, or the fault was not caused by us or the SMTV System, we reserve the right to charge you for any work done to try to find the fault, repair it or undertake other work you may request us to do. Such charges will be at our published Professional Services Schedule rates in force at the time
8.7 You shall operate and store the SMTV System equipment with due care and diligence. You shall supply at your cost any consumable items such as remote-control batteries
8.8 You undertake to take all reasonable care of the related network cabling and Infrastructure necessary for the operation of the SMTV System.
8.9 Unless caused directly by us, you will be responsible for any physical loss of or damage to any equipment owned by us whilst at the Location, however such loss or damage occurs, and for its repair or replacement
8.10 You undertake to give us at least two (2) business days’ notice of any intended shutdown at the Location for intended technical, engineering, maintenance or commercial reasons where it involves the disconnection or loss of any data or power to any SMTV System equipment and advise expected duration until services are restored. We will not be responsible for any degradation or loss of service or data arising from accidental, non- notified or unauthorised data, internet or power disruption to or the tampering with, moving, adjusting or disconnection of SMTV System Equipment. You undertake that equipment owned by us at the Location will be under your control. You must not remove or mask any marking which identifies it as belonging to us. Removal of that equipment from the Location will only be by us upon termination or expiry of this Agreement.
9. Use, Modifications and Updates – System Software and Server Equipment hardware
9.1 We may from time to time modify, update and improve the SMTV System Software, or Server hardware. Such modifications, updates and improvements will not affect the ability of the SMTV System to perform the Capabilities. We will provide notice and seekauthorisation from you beforehand. Such authorisation shall not be unreasonably withheld.
9.2 The parties may at any time propose upgrades to the SMTV System software or hardware and other technology at the Location. Such proposals will be considered in good faith and consider the current agreement, viability and general interests of both parties. While any such agreement will not be unreasonably withheld we will be the final arbiter in any technology upgrade decisions
9.3 Any unauthorised use or modification of any part of the SMTV System Software, Servers or equipment shall constitute a fundamental breach of the terms of this Agreement and without limiting our rights at law shall be deemed a discharge and release of all our liability in respect of any warranted or implied performance obligations of the SMTV System, Servers and equipment; and we may at our sole discretion terminate this Agreement
10. Performance and Delivery of Service
10.1 Any request for an additional level of service or upgrade of technology or equipment beyond that in place at the Commencement Date, that may be required to meet an increased demand from, for example, changes to your marketing of the services, new or expanded guest services, technologies and changes in content delivery, shall be implemented by us to your account.
10.2 Notwithstanding the findings of any site survey or statement in any scope of works our performance and delivery of services is dependent on the initial and on-going reliability and quality of the cabling and Infrastructure at the Location, especially that connecting our servers and associated SMTV equipment to the Guest room access point. Internet delivery to Users is dependent on the capacity, capability and quality of service from your ISP
10.3 We will make every reasonable endeavour to deliver the promised services. However, given the nature of legacy MATV and data systems and reliance on third party providers we cannot promise that the services will be continuously available or without faults. Any compromise or degradation of services arising from issues related to the Infrastructure supplied by you to us at the Location is your responsibility. You agree to remedy in good time any infrastructure or ISP service issues that we may raise with you from time to time. We will not be responsible for any SMTV System outage or degradation of services arising from power surges or outages, or actions by your employees, contractors or other third-party providers engaged by you. Because of the nature of changing web technologies and non-notified automatic updates of third-party web sites we cannot guarantee that our system web browser will always be compatible with all internet web pages.
11. Ownership and Right of Entry
11.1 Title to SMTV equipment not purchased by you remains with us always and you shall hold such equipment as bailee for us.
11.2 All Intellectual Property rights in the SMTV System, including the Software, and any other material used in any way in conjunction with theSMTV System are retained by us.
11.3 The SMTV System incorporates as part of its system and processes the use of Licenses issued to us by third parties. The rights to such licenses subsist with us and are extinguished upon termination or expiry of this Agreement unless we otherwise agree.
12. Obligations and Responsibilities
12.1 We agree to allow the use of our logo on any media to promote SMTV services at the Location
12.2 For promotional purposes you agree to allow us to refer to you as a user of the SMTV System. We agree that such reference shall be your public hotel, resort or trading name and location only and will not include any other information that may be in breach of this agreement.
12.3 You undertake to provide for our use and at no charge, reasonable high-speed broadband internet connectivity with your ISP for your Users via the SMTV System.
13. Security
You shall provide a secure environment for the SMTV System Server and associated equipment, including copies of our proprietary SMTV software, data and information.
14. Risk
Risk of loss or damage to the Server Equipment, Software and Media owned by us shall pass to you upon delivery to the Location. Should, from the time of delivery and through the term of this Agreement, you become aware of any loss or damage to the equipment, Software or the Media you must notify us as soon as possible in writing advising the nature and extent of such loss or damage
15. Indemnities
15.1 During the term of this Agreement, you shall maintain public liability insurance, and other insurances in such amounts and on such basis as shall be reasonable or as may from time to time be required of you to cover all claims, demands, actions, costs, damages, judgments, penalties, expenses and liabilities of any kind whatsoever arising directly or indirectly out of your or a User’s use of the SMTV System and you will have current public liability insurance sufficient to cover us while attending the Location for any lawful purpose;
15.2 You indemnify and hold us harmless from and against all claims of any kind or nature arising from your possession and use of the SMTV System and its use by Users at the Location or in any way otherwise arising. You must keep us indemnified from and against all costs, losses, damages, claims, proceedings and liability, arising from:
a. any breach of any of your obligations or representations under this Agreement; or
b any negligence or wilful act or omission by you, your agents, employees or contractors, or its use by any User at the Location or in any way otherwise arising.
15.3 Your liability to indemnify us shall be reduced to the extent that such cost, loss, damage, claim, proceeding or liability was caused or contributed to by our negligence or wilful act or omission.
15.4 Our liability to you (including your officers, employees, agents, contractors and Users) will not include any indirect, incidental, special or consequential damages, including loss of revenue, profits, anticipated profits, savings or data. It does not matter whether the loss was foreseeable, arose from negligence and even if warning was given of its possibility. Any representation, warranty, condition or undertaking that would be implied in this agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law. Nothing in this agreement excludes, restricts or modifies any condition, warranty, right or remedy that cannot be excluded, restricted or modified.
15.5 Our liability for breach of a condition or warranty that cannot be excluded is limited, at our option, to re-supplying or paying the cost of re-supplying SMTV services and repairing, replacing or paying the cost of repairing or replacing goods.
16. Events of Default
16.1 The occurrence of any one or more of the following events shall constitute an Event of Default under this Agreement without, except as expressly provided for below, the necessity for any notice or demand of any kind or character to be given on our part:
a. You default on or fail to settle any payment owed to us by its due date for any chargeable goods or services we have provided you;
b. Any representation, warranty or covenant made or given by you or in any certificate executed pursuant to this Agreement or relating to any transaction contemplated hereby shall prove to have been false or misleading in any material respect;
c. You default in the performance of any other term, covenant or condition contained in or implied by this Agreement, and not having corrected the default within 10 business days of being so notified of it by us;
17. Breach
17.1 Where you commit an event of default we may at our discretion:
a. upon giving you not less than 2 business days prior written notice and without further notice suspend and render inoperative the services and support provided under this Agreement until such breach has been remedied. Just because we suspend services under this breach clause it does not mean that any monies charged and owing during the period of suspension are not owed and such monies will accrue as though under normal services delivery.
b. upon giving you not less than 21 days prior written notice of the Event of Default and you have not remedied that Event of Default within those 21 days then we may elect to terminate this Agreement early whereupon all unpaid moneys owing by you to us shall immediately become due and payable and we reserve the right to seek from reasonable costs of recovery and removal of our equipment
In case of Early Termination, we reserve the right to receive interest from you on outstanding payments at the default rate described in the Schedule.
Notice of any breach will be by email to the person(s) recognised by us as responsible for the relationship with us, accounts payable, or general or operational management at the Location.
17.2 Upon or after the date of termination you shall permit us entry as and when required by us at the Location to conduct an audit and remove our equipment. You shall also return to us all Software (including all copies, authorised or otherwise) and media.
18. Early Termination
18.1 For the purposes of this agreement the phrases “termination”, “early termination” or “terminated early” means the ending of this agreement for whatever reason before it has run the course of the full initial or extended term(s).
18.2 Your right to use the SMTV System and any associated software and intellectual property belonging to us expires upon termination of this Agreement or extension thereof
19. End of Term
19.1 For the purposes of this Agreement the phrase “End of Term” means the natural expiry of this Agreement, it has run the full term (or extension thereof).
19.2 You shall return to us the Confidential Information and any other of our items mentioned in this Agreement which are not your property.
19.3 Any equipment returned to us shall be in the condition that is considered within the normal range of wear and tear on the equipment given its length of service through the term of the Agreement
19.5 Your right to use the SMTV System and any associated software and intellectual property belonging to us expires upon expiry of this Agreement or extension thereof
20. Confidentiality and Access to Information
20.1 Each party must keep confidential all information described as such in the Definitions. The parties have the right to disclose such information to their employees insofar as it is necessary for them to know the information for the use of the Services, and to representatives of potential or actual contractors or agents after execution by each such representative of a like confidentiality agreement:
20.2 Both parties will keep the contents of this Agreement and associated Schedule confidential:
20.3 Notwithstanding the provisions of 20.1 you and we may disclose information if and to the extent that:
a. such disclosure is required by laws, regulations or orders of a court;
b. the information is generally available in the public domain except where that is a result of a disclosure in breach of this Agreement; and
c. a party can prove that it knew the Information before it was disclosed to it by the other party
20.4 For the purposes of determining usage information, you agree to allow us to gather User information and transaction details as and when they occur between the site PMS Systems and/or the SMTV System at the Location. This information will be made available to and shared with you as direct feeds into any integrated PMS application and/or as part of the SMTV reporting process.
21. Entire Agreement
This Agreement supersedes any prior Agreement, arrangement and undertaking between the parties related to SMTV Services at the Location and constitutes the entire Agreement between the parties relating to the SMTV System at the Location.
22. No Partnership or Agency
Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties or constitute you as agent of SMTV.
23. Force Majeure
23.1 Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement if such delay or failure is due to a Force Majeure event. This clause 23.1 does not apply to any obligation to pay money for liabilities incurred prior to the Force Majeure event
23.2 The parties are expected to use all reasonable endeavours to overcome or avoid the force majeure.
23.3 Notices of Force Majeure must be served in accordance with the Notices Clause of this agreement. It is, however, expected that the parties will also communicate Force Majeure concerns at an operational level.
24. Notices
24.1 Except for any exceptions any other notice, document request or demand or other communication (Notices) shall be in writing and may be served personally or sent by email or registered post or person to persons mail to the known address of the party concerned
24.2 Notices served personally shall be deemed to be given upon delivery. Those sent by registered post shall be deemed to be served 7 days after the date of posting and those sent by email on the day after the date of sending, unless an email read receipt is received by us.
24.3 The address for such notices or documents for the parties, until notification of any change thereto, shall be that address set out in this Agreement
25. Renewal Term
25.1 This Agreement will continue until you terminate it by giving us prior written notice that you wish to do so, as follows;
(a) If you want this Agreement to end at the expiry of the Term, your notice must be given at least 90 days before the end of the Term; otherwise this Agreement will be extended by a further 12 months;
(b) You may terminate this Agreement at the end of any further 12-month period or in any subsequent month by giving us at least 90 days prior written notice;
26. Assignment
You shall not assign any benefit of this Agreement or any rights or obligations without our prior written consent, such consent not being arbitrarily or unreasonably withheld
27. Law
This Agreement shall be governed by and construed in accordance with the laws for the time being in force in Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of Australia. Any provision of this Agreement which is illegal, void or unenforceable will be ineffective only to the extent that it is illegal, void or unenforceable and without invalidating the remaining provisions.
28. Waiver
No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach
29. Variation
No variation of this Agreement will be effective unless in writing and signed by both parties
30. Severability
Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement. Such invalidity shall not affect the validity of the remaining provisions of the Agreement
31. Representations
31.1 You expressly represent and warrant that you are a duly organised and legally incorporated entity in the country of the Location, in good standing and with full power and authority to enter into and complete the transactions under this Agreement in respect to the Location. Furthermore, you warrant that you comply with all and any necessary legal, business and industrial regulations required in Australia to conduct your business under this Agreement.
31.2 This Agreement is enforceable in accordance with its terms and neither the execution nor performance of this Agreement hereunder by you does or will conflict with or constitute a breach of or default under your organising documents, any contracts or commitments to whichyou are a party, or any applicable law or regulation in the jurisdiction in which you are incorporated or otherwise organised, or any applicable law or regulation of Australia.
31.3 We expressly represent and warrant that we are a duly organised corporation, in good standing and with full power to enter into and complete the transactions required hereunder. This Agreement is enforceable against us in accordance with its terms and neither the execution nor performance of this Agreement by us does or will conflict with or constitute a breach of or default under our certificate of incorporation or by-laws, any contracts or commitments to which we are a party, or any applicable Australian law or regulation.
31.4 No Revenue Guarantees: You agree that we do not make any warranties or representation as to potential revenue or income stemming from the use of the SMTV System under this Agreement
32. Dispute Resolution
Any dispute, difference or claim arising out of this agreement that is not resolved to the satisfaction of either party within 30 days of the dispute being notified to the other will, at the option of either party, be referred to mediation in the first instance and, if the dispute cannot be resolved through mediation, referred for final and binding resolution by way of arbitration as follows:
32.1 Mediation may be initiated by either party writing to the other identifying the dispute which is being suggested for mediation. The parties will agree on a suitable person to act as mediator or will ask the Arbitrators’ and Mediators’ Institute of Australia Inc (IAMA) to appoint a mediator. The mediation will be in accordance with, and subject to IAMA Mediation and Conciliation Rules:
32.2 If the mediation is terminated without the satisfaction of both parties submitted to arbitration in accordance with, and subject to IAMA Rules for the Conduct of Commercial Arbitrations.
Notwithstanding the existence of a dispute or difference each party shall continue to perform the Contract
SETUP & OPERATING REQUIREMENTS
33. Acceptance of Software and Fair Use Policies
33.1 Upon commissioning of the SMTV hardware and software, the customer will use them in accordance with this document. The customer agrees that Internet Services to all SMTV equipment at the location will be provided under a Fair Use Policy provided by or acceptable to SMTV. Notice of and access to the Fair Use Policy shall be a prerequisite to the SMTV system operating to an acceptable level.
From time to time SMTV will monitor the available bandwidth to ensure the Fair Use Policy is not impacting the operating ability of the SMTV system. In the event of service degradation, SMTV will notify the customer with a view to remedy at the customer cost. SMTV accepts no responsibility for delivery of SMTV system where changes, modifications outside of SMTV control take place and negatively impact the SMTV system
34. Delivery of Goods
34.1 SMTV shall delivery the SMTV system hardware as agreed on the date mutually agreed. The customer will ensure the location has adequate space to accept and store all goods in a secure onsite space, before and during the complete installation process. In the event goods cannot be accepted and redelivery is required additional charges will apply.
35. SMTV System Hardware and Services
(a) Installation and maintenance of the SMTV System will be performed by SMTV, its employees, contractors, or agents.
(b) Installation may be subjected it's to a site survey of the location conducted on all behalf of SMTV any issues arising from such a survey will be communicated to the customer.
The installation will be based on an agreed scope of works which outlines installation requirements for the Customer and SMTV at the Location. An installation will proceed when:
i. SMTV is advised by the Customer that the premises and infrastructure to be used are in a state of readiness as defined in the Scope of Works.
ii. SMTV is reasonably satisfied that the existing infrastructure is of a general acceptable standard and fit for the purpose to support delivery of the capabilities. If the SMTV system has deployed over the existing cable at the location SMTV will make every reasonable endeavour to use that cabling but it is not responsible if that any of the cabling cannot be utilized as a reliable connection. Such occurrences will be reported to the customer who must remedy any faults or deficiencies at its cost
(c) Where placement of the SMTV in the guest rooms is to be undertaken by SMTV, the location will be described in the Scope of Works. Agreed room access to be documented in the Scope of Works which will include minimum quantity of rooms to available for installation during the hours of 7am to 7pm.
(d) Any costs associated with a later variation to installation requested by the Customer will be to the Customer’s account.
(e) For the expedient preparation and installation, the Customer is to provide SMTV proper and timely access to all facilities, equipment and necessary items at the Location.
(f) The Customer is to provide a secure location, as reasonably approved by SMTV for the operational placement and storage of any Network Equipment which maybe required.
(g) Access into the SMTV network equipment housed in the Location as shall not be permitted unless expressly authorised by SMTV. SMTV undertakes to provide the Customer with prior notice of dates and identity of the person(s) requiring such access. This clause means physical access to the SMTV equipment in itself (for maintenance or other reasons), not necessarily to the location where the equipment is housed.
(h) SMTV shall for the duration of the agreement, and at no cost to the customer maintain the SMTV System hardware and software in proper working order and condition and in substantial repair and keep and maintain the SMTV System at its full capacity for the purpose for which it was intended at the date of its installation.
(i) SMTV will provide the Customer staff with initial onsite training, so they are familiar with the correct way to operate the SMTV System so it can be utilized to perform all intended capabilities. Such training shall take place during and / or immediately following commencement of the installation of the System.
(j) The Customer shall provide at their own cost the first line of SMTV System user support for their guests, customers and vistors. This base level of support is confined to initial contact with the assistance to users and communications with the SMTV Technical Support Services if necessary.
SMTV will provide the Customer managers and staff at the Location with support 24/7, 365 free call Help Desk Support. Where support requires escalation to SMTV technical staff, SMTV will endeavour to respond and commence to remedy the fault within 24 hours of being notified by the Help Desk.
(k) The Customer shall operate, maintain and store the SMTV equipment with due care and diligence and in compliance with the Instructions and recommendations of the SMTV as to operation, maintenance, and storage thereof. The Customer shall supply and maintain consumables items where required by the SMTV system, such as print materials and remote controls and batteries, at the Customers cost.
(i) Unless caused directly by SMTV or its contractors or agents, the Customer will be responsible for ant physical damage to equipment owned by SMTV whilst at the Location, however such loss or damage occurs and for its repair or replacement. Any such loss or damage is to be reported to SMTV without delay.
(l) The Customer undertakes to give at least two business days’ notice to SMTV of any intended shutdown of any part or all the Location for intended technical, engineering maintenance or commercial reasons where such a shutdown involves the disconnection or loss of any data or power to any SMTV network equipment and to advise expected duration and reconnection times. The Customer undertakes to advise SMTV when power and data services are restored after such shut down. SMTV will not be responsible for any degradation or loss of service arising from accidental, non-notified or unauthorised data, internet, or power disruption to or tampering with, moving adjusting or disconnection of the SMTV equipment.
(m) The Customer will provide a secure facility at the location for holding any warranty replacement stock at the Location. Details of Warranty stock are listed on the Handover document on completion of installation. This stock must not be used for any purpose other than replacement of faulty SMTV equipment at the Location. No other use is permitted without express consent of SMTV. The use by the Customer of any Warranty Replacement Stock must be reported to SMTV as soon as practically possible. SMTV will instruct the Customer to return the SMTV any faulty items from the Location for prompt repair and/or replacement.
36. Performance and Quality of Service.
Notwithstanding the findings of any SMTV Site Survey or statement in any Scope of Works, SMTV performance and quality of service is dependent on the initial and ongoing reliability and quality of the network Infrastructure at the Location, especially to and from SMTV network equipment to the Guest room and the quality of service from the Customers Internet Service Provider.
SMTV will make every reasonable endeavour to deliver the promised services, capabilities, performance, and quality of service. However, given the nature of legacy telecommunications, MATV and data systems the reliance on third party providers SMTV cannot promise the services will be continuous available without faults. Any compromise or degradation of services arising from issues related to the infrastructure supplied by the Customer to SMTV at the Location is the responsibility of the Customer. The Customer agrees to remedy in good time and to the best of their ability any infrastructure or Internet Service Provider quality of service issues that may arise by SMTV from time to time. Likewise, SMTV will not be responsible for any outage or degradation or service performance arising from actions by the Customer employees, contractors or other third-party providers engaged by the Customer at the Location. Such events and failure on the part of the Customers Internet Service Provider do not detract from the Quality-of-Service record of SMTV at the Location.
Because of the nature of the constantly changing web technologies and non-notified automatic updates of third-party web sites SMTV cannot guarantee that its system will always be compatible with all internet web pages.
Though the SMTV System supports many different media content playback, SMTV cannot guarantee that all media types are compatible