Athena IR-Tech Terms of Use

The following are the Terms of Use (“Terms of Use”) for the use of the Athena IR-Tech Transp-IR solution (the “Solution”). By purchasing the Solution from Athena Irrigation Technology Holdings Pty Ltd (“Athena”, “We”, “Us” or “Our”), you agree to these Terms of Use, which form a binding legal agreement between the company or other entity that has contracted to purchase the Solution (as set forth in Athena’s invoice) and any of its authorized users (collectively, “You”, or “Your”) and Athena. Athena reserves the right to make unilateral modifications to these Terms of Use and Your use of the Solution constitutes acceptance of these Terms of Use as well as any changes or modifications made to them of which You have been notified. If You do not accept these Terms of Use, You may not use the Solution.

A Customer’s signature on a Quote or Invoice containing these Terms or acknowledgement by email or any electronic manner is acceptance of these Terms. Even if the Customer does not sign or acknowledge any part of these Terms, if that Customer provides instructions for Athena to proceed with the supply of, and/or payment for, the Solution, and accepts any part of the Solution, or submits an Order for the Solution, that Customer is deemed to have accepted and agreed with these Terms. Until these Terms are accepted, Athena reserves the right to vary or alter any part of these Terms, including without limitation any fees specified in a Quote.

These Terms must be read in conjunction with any other applicable terms and conditions governing Athena. These Terms take precedence over any terms of trade contained in any document of the Customer or elsewhere.

 

1 – DESCRIPTION AND USE OF SOLUTION

The Solution consists of the installation of the Transp-IR hardware (“Hardware”) on the property (the “Property”) and Athena’s Transp-IR software, each of which is described in the invoice from Athena for the Solution (“Order”). The Hardware measures canopy temperature, ambient temperature, relative humidity, and solar radiation (“Field Data”) from the crop field in which it is installed on the Property and sends data to Athena by means of a cellular connection that is then analysed by Athena’s proprietary software (“Software”). Athena then calculates the “Crop Water Index” that indicates how well the crop is using the available water in the soil and presents that on a dashboard to indicate whether the crop needs irrigation. The combination of Field Data and Crop Water Index is considered to the be “Crop Water Index Data”.

 

2 – USE OF CROP WATER INDEX DATA

As between You and Athena, You own all right, title and interest in and to the Crop Water Index and Crop Water Index Data specific to Your Property; provided that You hereby grant to Athena a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sublicensable and fully transferable license to collect, access, store, analyse, use and disclose the Crop Water Index Data and any other data collected and analysed by the Solution on the Property for Athena’s business purposes, including to provide You the Solution, analysing and reporting aggregate trends in certain geographical areas, improving the Solution and Hardware, such as creating new features, and for such other purposes that Athena may determine in its discretion. Notwithstanding the foregoing, Athena will not disclose in reporting aggregate Crop Water Index Data the personally identifying information of its users or the specific identity of the company to which Crop Water Index Data relates, except to its employees, contractors and service providers, to a successor or assignee of Athena’s business, or as required by law or court order.

 

3 – MAINTENANCE AND ACCESS TO HARDWARE

During the Term of the Solution and to the extent applicable to the Solution you purchase, Athena will use reasonable efforts to maintain, service and replace the Hardware from time to time in its sole discretion, provided that Athena shall have no liability or responsibility to you for any damages or losses caused by the providing of, or failure to provide, such maintenance or service. In addition, if any act or omission by You results in damage to the Hardware, You shall reimburse Athena for the cost of any maintenance, service, or replacement of such Hardware resulting from or required by such damage.

During the Term of the Solution and to the extent applicable to the Solutions you purchase, You grant to Athena and its employees, subcontractors and agents (collectively, “Athena Personnel”) the right and permission to enter upon and access the Property at any time for the following purposes: (i) install the Hardware; (ii) remove or replace the Hardware; and (iii) inspect and perform maintenance and service on the Hardware. You agree to provide Athena and the Athena Personnel with such directions, combinations, locks and other materials and information necessary for Athena to enter upon and access the Property for the foregoing purposes and to instruct Your employees, security and other personnel (collectively “Your Personnel”) to allow Athena and the Athena Personnel to have such access to the Property and not to interfere with such access. You understand and agree that Your failure to do so may result in the interruption or termination of the Service.

Athena will notify you in advance at the contact information provided in Your Account when Athena Personnel intend to enter upon the Property. You agree to respond to such notification promptly and to advise Athena of any restrictions or limitations on access during the requested time of entry. You have the right to tell Us to delay Our access to the Property by a reasonable period of time because We understand that pesticide re-entry intervals, and other factors beyond your reasonable control may legally prohibit You from allowing Athena and Athena Personnel access to the Property for discrete intervals of time. However, You will use best efforts to schedule Our entry onto the Property at the earliest possible date following Athena’s notice to You and You understand that any delay in granting Us access to the Property may result in a degradation or interruption of Solution, for which We shall have no responsibility or liability.

 

4 – NOTIFICATION OF CHANGES TO THE SOLUTION

To the extent permitted by law, Athena reserves the right to update, amend, change, or modify the Solution (or any part thereof) and its features, costs, design, and structure (collectively, “Changes”) at any time in its sole discretion without notice, except that we will notify You of any Changes in pricing. If You continue to use the Solution after the effective date of such Changes, You will be deemed to have accepted such Changes and the Changes shall become effective as to You. Your sole and exclusive remedy if You do not agree to any such Changes is to withdraw from the Solution and terminate Your Account (but you will not be entitled to a refund for any fees already paid). Additionally, We reserve the right to terminate or suspend the Solution at any time and for any reason, with or without notice.

You further agree that Athena may impose limits on certain features or restrict access to part or all of the Solution without notice or liability to You. We may add additional features to the Solution that require payment or convert existing features to paid features. You agree that free access to all or a portion of the Solution or content at a point in time does not give You a right to continued free access to any or all of the Solution or content. You have no interest, monetary or otherwise, in any feature or content contained on the Solution.

 

5 – PRIVACY

Your privacy is important to us. By accepting the Terms of Use You unambiguously consent and opt-in to Athena collecting, processing, storing, and using Your personally identifiable information (“Personal Information”) and disclosing such Personal Information to third parties without giving prior notification, including but not limited to, third party providers that will store, process, and analyse such Personal Information in connection with the Solution, in accordance with Athena’s Privacy Policy, available at https://athenairtech.com.

In addition, unless You specifically decline to opt-in when registering for the Solution, You further expressly consent to Athena sending information to the email accounts listed in Your Account; such information may include, but is not limited to, notifications of Crop Water Index Data, updates to Your Accounts, and marketing materials which will inform You of special offers and products or services we believe would be of interest to You. Within each marketing email communication, You will be given the information necessary to opt-out from receiving such marketing materials in the future. In addition, You may sign up to receive certain notifications or information via text messaging. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.

 

6 – YOUR ACCOUNT

Each user of the Solution will be required to create an account (“Account”) by providing a user name and password. The user name and password are to be treated as confidential and should not be shared or disclosed to any third parties. You may never use another user’s Account without permission. When creating Your Account, you must provide accurate and complete information, and you must keep this information up to date. Athena will not be liable for any losses caused by any unauthorized use of your account. You are solely responsible for the activity that occurs on Your Account, whether or not authorized, and you must keep Your Account password secure. We encourage You to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with Your Account. You must notify Athena immediately of any breach of security or unauthorized use of Your Account.

You are responsible for notifying Athena of any address or email changes or errors in Your Account information. Athena is not responsible for any requests, communications, or correspondence that is lost, undeliverable, or delayed in the direct mail or via electronic mail.

 

7 – PAYMENT OF FEES 

You are responsible for paying all fees and charges issued by Athena in connection with Your use of the Solution (“Fees”). The schedule of Fees for the Solution will either be posted on the Athena IR-Tech website or set forth in the Athena invoice. Fees are billed annually and are due upon invoice date. All auto-renewed subscriptions are billed annually on the subscription start date to the payment method specified at time of purchase. Other charges, including charges for maintenance, service and replacement of Hardware resulting from or required by damage to the Hardware caused by any act or omission by You, will be invoiced to You as required and are due upon invoice date. If you cancel the Solution before the end of your current paid up year, your cancellation will take effect upon completion of the billing cycle that has already been paid. You also agree to pay any and all costs and expenses, including reasonable attorney’s fees, incurred by Athena in connection with collection of any amounts due hereunder.

 

8 – TITLE

(a) Legal title in the Athena Hardware will not pass to the Customer until all monies due and payable to Athena with respect to the Athena Hardware, and any applicable Quote, have been fully paid. This is so even if the Customer has taken possession of the Athena Hardware, or has enhanced or changed the Athena Hardware or performed work on them.

(b) Despite clause 8(a) where Athena Hardware is supplied by Athena to the Customer or its related company without payment in full of all monies payable in respect of the Athena Hardware, the Customer:

1. is a mere bailee of the Athena Hardware until property in the Athena Hardware passes to the Customer;
2. irrevocably appoints Athena its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in Athena’s favour with respect to the Athena Hardware under applicable law;
3. must be able to, upon demand by Athena, separate and identify as belonging to Athena the Athena Hardware from other goods which are held by the Customer;
4. must not allow any person to have or acquire any security interest in the Athena Hardware;
5. agrees that, pursuant to s157 of the Personal Property Securities Act 2009, to waive the right to receive a Verification Statement in respect of a security interest registered by Us;
6. agrees that Athena may repossess the Athena Hardware if payment is not made on or before the date for payment specified in the relevant Invoice (or such other date that Athena may, in Athena’s complete discretion, approve in writing); and
7. the Customer grants Athena or Athena’s agent an irrevocable licence to enter the Customer’s premises, or the premises where the Athena Hardware is located, in order to recover possession of Athena Hardware pursuant to this clause. The Customer indemnifies Athena in respect of any damage to property or personal injury which occurs as a result of Athena entering the Customer’s premises.

All Hardware shall remain the property of Athena and may be removed by Athena from the Property at the end of the Term of the Solution. You shall not sell, license, sublicense, rent, lease, mortgage, charge, encumber, pledge, loan, assign or otherwise transfer to any third party the Hardware, in whole or in part. Athena also reserves the right to replace Hardware at any time for any reason. You shall be responsible for any damage to or theft or loss of the Hardware while installed on the Property.

 

9 – Athena Software

9.1 Licence

(a) The Athena Hardware is bundled and supplied together with the Athena Software.

(b) Subject to payment of the Athena Subscription, Athena grants the Customer a non-exclusive, non-sublicensable, non-transferable, licence to use the Athena Software, solely for Customer’s internal use, strictly in accordance with this clause 5.1 (Licence).

(c) Athena shall retain all rights, title and interest in and to the Athena Software including all modifications, derivative works or improvements, and all related intellectual property rights.

9.2 Access

(a) In order to use the Athena Software the Customer will need to register with Athena and open an account.

(b) A Customer account is non-transferable. However, the Customer may allow employees, contractors or agents (Authorised Users) to access the Athena Software through its account.

(c) The Customer is responsible for all activities that occur under its account (even if those activities are not undertaken by the Customer or an Authorised User).

9.3 Customer obligations

The Customer Must:

(a) not copy, reproduce, translate, adapt, vary or modify the Athena Software without the express consent of Athena, except as expressly authorised by these Terms;

(b) supervise and control the use of the Athena Software in accordance with these Terms;

(c) ensure its Authorised Users are made aware of these Terms;

(d) use reasonable efforts to ensure that there is no unauthorised use of its account and not provide or otherwise make available the Athena Software in any form to any person other than those referred to in subclause (c) without the written consent of Athena; and

(e) only use of the Athena Software in compliance with all applicable laws and to not use, or allow any other person to use, the Athena Software for any illegal purpose.

9.4 Terms of Licence

(a) The Licence commences upon the Customer’s acceptance of these Terms and shall continue during the term set forth in the applicable Order or until terminated by Athena or the Customer.

(b) Termination by Customer. The Customer may stop using the Athena Software at any time. Termination does not relieve Customer of any obligation to pay any outstanding monies for Athena Products and/or Services, including Invoices for work already undertaken.

(c) Termination by Athena. Athena may, at any time, terminate the licence if:

(1) Customer breaches any provision of the Terms or act in a manner that clearly shows Customer do not intend to, or are unable to, comply with the Terms;

(2) Customer fails to make the timely payment of fees for Athena Hardware or Athena Subscription;

(3) Customer (i) decompiles, disassembles, or otherwise reverse engineer Athena Software or attempts to discover any source code or underlying ideas or algorithms of the Athena Software, (ii) removes any product identification, copyright or other notices embedded within the Athena Software, (iii) modifies or creates a derivative work of the Athena Software, (iv) relicenses, provides lease or lends the Athena Software to any third party, or uses the Software for timesharing or service bureau purposes, (v) copies the Athena Software or any portion thereof except as provided herein, or (vi) discloses any performance information or analysis from any source relating to the Athena Software;

(4) Customer physically, verbally, or through other means abuses, threaten, bully, or harass Athena or Athena personnel;

(5) Customer has repeatedly made complaints in bad faith or without a reasonable basis, and continue to do so after Athena has asked Customer to stop;

(6) Athena is required to do so by law (for example, where the provision of Athena Products or Services or Athena Software is, or becomes, unlawful);

(7) Athena elects to discontinue Athena Products or Services or Athena Software, in whole or in part.

(d) Customer shall be aware that the termination of the Licence shall impact the use of Athena Hardware.

(e) Termination of the Licence pursuant to this clause shall not affect any rights or remedies which Athena may have otherwise under these Terms or at law.

(f) The licence for the Customer to use Athena Products may also include additional licence terms and/or conditions imposed by a third party. If this is the case, Athena will notify the Customer of the licence terms and conditions and the Customer must comply with these terms and conditions when using the Athena Products.

 

10 – Personal Property Securities Act 2009

(a) These Terms constitute a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA). The interest of Athena in the Athena Solution and all proceeds from the sale of the Athena Solution by the Customer to a third party is a security interest. Expressions defined in the PPSA have the same meaning when used in this clause 10.

 

(b) The Customer consents to Athena registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonable required by Athena to facilitate registration. Until such time as title in the Athena Solution has passed to the Customer as contemplated by clause 8, the Customer agrees not to in any way assign, charge, lease or otherwise deal with the Athena Solution in such a manner as to create a security interest over the Athena Solution in favour of the Customer or any third party.

 

(c) The Customer waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.

 

(d) The Customer agrees that each of the following requirements or rights under the PPSA do not apply to the enforcement of Athena’s security interest in the Athena Solution or of these Terms:

(1) any requirement for Athena to give the Customer a notice of removal of accession;

 

(2) any requirement for Athena to give the Customer a notice of Athena’s proposed disposal of the Athena Solution;

 

(3) any requirement for Athena to include in a statement of account, after disposal of the Athena Solution, the details of any amounts paid to other secured parties;

 

(4) any requirement for Athena to give the Customer a statement of account if Athena does not dispose of the Athena Solution;

 

(5) any right the Customer has to redeem the Athena Solution before Athena exercises a right of disposal; and

 

(6) any right the Customer has to reinstate these Terms before Athena exercises a right of disposal of the Athena Solution.

 

11 – Evidence of amount owing

A certificate issued by a director, secretary or manager of Athena sent to the Customer shall be sufficient evidence at all times of an amount due to Athena by that Customer.

 

12 – Recovery costs payable by the Customer

Athena reserves the right to charge all costs incurred or which may be incurred in recovering or attempting to recover any products or amount owed by the Customer, including any debt collectors commission up to an amount of 20% and any solicitor’s costs and charges incurred in recovering or attempting to recover any amount owed by the Customer. Any part payment shall be firstly credited against interest then debt recovery charges.

 

13 – Proprietary Rights

You acknowledge and agree that Athena or its licensors or its licensees, own all right, title, and interest in and to the Solution, including all intellectual property rights associated with the Software and Solution and any information, data or material generated or created by the Solution (other than the Crop Water Index Data for Your Property). Except for the limited license expressly stated herein, You have no intellectual property rights in the Solution and Athena reserves all rights not expressly granted to You. You must comply with all laws when using the Solution as well as all applicable copyright, trademark, or other legal notices or restrictions.

If You send or transmit any communications, comments, questions, suggestions, or related materials to Athena, whether by letter, e-mail, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Solution, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non- proprietary. You hereby assign all right, title, and interest in, and Athena is free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Athena is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.

 

14 – Intellectual Property

(a) Athena will retain ownership of, and all Intellectual Property Rights in, the Athena Solution. Nothing in these Terms will be deemed to convey to the Customer or any third party any proprietary right, title, or interest to Athena’s Intellectual Property Rights.

(b) Other than the Licence granted under clause 5.1(b) Athena does not grant the Customer any rights in or to Athena’s Intellectual Property Rights or the intellectual property rights of a third party, and the Customer acknowledges and agrees that it has no other rights in and to Athena’s Intellectual Property Rights or those of a third party.

(c) The Customer acknowledges that, unless and to the extent stipulated to the contrary in these Terms, Athena is the sole owner of and retains all Intellectual Property Rights associated with the Athena Solution (including any updates, enhancements and new features Athena may provide) and all pre-existing materials which are incorporated into the Athena Solution, such as Athena’s specific processes, systems and methods.

(d) If the licence is terminated by Athena for no cause, thirty (30) days before the end of the licence term, Athena will use commercially reasonable efforts to allow the Customer to make a back-up copy of the Generated Data before the licence expires. At the end of this 30-day transition period, Customer will no longer have access to the Generated Data and Athena reserves the right to use, exploit and/or delete the Generated Data as Athena deemed appropriate. If the licence is terminated by cause, the licence expires and the end of the licence term and Customer will not have further access to the Generated Data.

(e) This clause survives expiry or termination of these Terms but only to give effect to the provisions in this clause .

 

15 – Confidentiality

(a) Athena may disclose Confidential Information to the Customer from time to time. The Customer shall use this Confidential Information for the purposes of receiving the Athena Solution and must not, without Athena’s prior written approval, use or disclose any Confidential Information unless Athena has specifically approved or if the Customer is legally compelled to do so. The Customer also acknowledges that Athena’s Intellectual Property Rights are confidential and consists of commercially sensitive information.

(b) The Customer must take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged by the Customer, also agree to the above, and do not make public or disclose Athena’s Confidential Information.

(c) The Customer must not make or cause to be made copies of the Confidential Information except to the extent reasonably necessary for the purpose for which Athena disclosed the Confidential Information to the Customer or otherwise where the express prior written consent has been obtained from Athena. The Customer must immediately notify Athena if it suspects or becomes aware of any unauthorised access, copying, use or disclosure of the Confidential Information.

(d) The Customer must maintain all necessary security measures to maintain the Confidential Information, in no event less than the same degree of care that the Customer would use to protect its own confidential information, to safeguard Confidential Information from access or use that is not authorised by Athena.

(e) The Customer must immediately, upon request at any time made by Athena, return or destroy the Confidential Information stored in any medium and certify that the Confidential Information has been destroyed.

 

16  – Term and Termination

Transp-IR cancellations notice period is 30 days

The Solution is provided for a period of one (1) year from the date the Solution is implemented at the Property or as otherwise set forth in the applicable invoice (the “Term”). The Term automatically renews for successive one-year periods, unless either party provides written notice of non-renewal before the cancellations notice period of the Solution current Term. Athena may, in its sole discretion, terminate or suspend Your Account and access to the Solution with ten (10) days written notice if You commit any material breach of these Terms of Use including failure to pay any sum due within ten (10) days.

To cancel your subscription, contact us before the cancellations notice period of your Term by email at admin@athenairtech.com. Upon termination You will have no further right or access to the Solution or other information provided by the Solution and you hereby grant Athena access to the Property to remove the Hardware. If Your access to the Solution terminates and You do not renew within twelve (12) months, Athena reserves the right to declare Your Account inactive and delete all information associated with Your Account, in its sole discretion. In such a case, a notice will be sent to Your email address on file with Athena thirty (30) calendar days in advance of the deletion of Your Account.

The provisions of Sections 2 and 8 through 13 and any claim by Athena for unpaid Fees will survive any termination or expiration of these Terms of Use or the Solution.

 

17 – Disclaimer of Warranties

EXCEPT AS SET FORTH ABOVE, ATHENA PROVIDES THE SOLUTION AND HARDWARE ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT OF THIRD PARTY RIGHTS. ATHENA MAKES NO WARRANTY THAT (i) THE SOLUTION OR ANY HARDWARE PROVIDED TO YOU WILL MEET YOUR REQUIREMENTS; (ii) THE SOLUTION WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THAT THERE WILL BE NO ERRORS IN THE SOLUTION OR HARDWARE, OR THAT ATHENA WILL FIX ANY ERRORS; OR (iv) THAT THE SOLUTION OR CROP WATER INDEX DATA WILL REDUCE WATER USAGE OR INCREASE CROP YIELDS. YOU UNDERSTAND THAT SOLUTION MAY BE AFFECTED OR INTERRUPTED BY WEATHER, HEAT, FLOODS, CELLULAR NETWORK INTERRUPTIONS AND OTHER FACTORS AND ACTS OF GOD, AND THAT ATHENA BEARS NO RESPONSIBILITY FOR THE SAME.

ANY CROP WATER INDEX DATA OR OTHER INFORMATION OBTAINED THROUGH USE OF THE SOLUTION ARE OBTAINED AT YOUR OWN DISCRETION AND RISK AND ATHENA SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE CAUSED TO YOU, YOUR PROPERTY, CROP YIELDS, CROP LOSSES, IRRIGATION SYSTEMS OR YOUR COMPUTER OR DATA OR FOR ANY BUGS, VIRUSES, TROJAN HORSES OR OTHER DESTRUCTIVE CODE RESULTING FROM USE OF THE SOLUTION OR ANY CONTENT OBTAINED FROM THE SOLUTION.

 

18 – Limitation of Liability / Release of Claims

YOUR USE OF THE HARDWARE AND THE SOLUTION IS ENTIRELY AT YOUR OWN RISK. ATHENA WILL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, SPECIAL, EXTRAORDINARY, OR CONSEQUENTIAL DAMAGES, LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION OR CROP DAMAGE, EVEN IF YOU HAVE INFORMED ATHENA OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT ATHENA SHALL HAVE NO RESPONSIBILITY OF LIABILITY FOR ANY DAMAGE OR LOSS TO PROPERTY OR CROPS, REDUCTION OR LOSS IN PRODUCTION, OR PERSONAL INJURY OR DEATH RELATING TO THE HARDWARE, SOFTWARE, OR SOLUTIONS OR THE CROP WATER INDEX DATA OR OTHER INFORMATION PROVIDED THROUGH THE SOLUTION. ATHENA’S TOTAL LIABILITY FOR ANY CLAIMS RELATING TO OR ARISING OUT OF USE OF THE SOLUTION OR THE HARDWARE SHALL BE LIMITED TO THE AGGREGATE FEES PAID YOU FOR THE SOLUTION DURING THE ONE (1) YEAR PERIOD PRIOR TO ASSERTION OF THE CLAIM.

 

19 – INDEMNIFICATION

You will defend, indemnify, and hold Athena harmless from and against any and all claims, actions, liabilities, losses, damages, settlements, judgments, arbitration awards, costs, and expenses, including without limitation, attorneys’ fees and expenses (collectively, “Claims”) resulting from, arising out of or relating to Your use of the Hardware, the Software and the Solution, including without limitation any claims for property damage, personal injury or death occurring on the Property relating to the Hardware, Software and Solution. Athena will promptly notify You in writing of any such Claim and will allow You to control, and will cooperate with You in, the defence and all related settlement negotiations; provided, however, that Athena may participate in such defence and negotiations through counsel of its own choosing at its own expense. You will reimburse Athena for all expenses incurred by Athena through such cooperation with You in the defence and related settlement negotiations. No settlement of a Claim may be made by You without Athena’s prior written consent, which shall not be unreasonably withheld.

 

20 – Changes to these Terms of Use

When We change these Terms of Use in a material manner, we will update the ‘last modified’ date at the bottom of this page. Your continued use of the Solution after any such change constitutes your acceptance of the new Terms of Use. Your sole and exclusive remedy if You do not agree to any such changes is to withdraw from the Solution and terminate Your Account (but you will not be entitled to a refund on any fees already paid).

 

21 – Miscellaneous

These Terms of Use constitute the full and complete understanding of You and Athena as to the subject matter hereof and may not be altered or modified, except by written amendment which is duly executed by both parties. Further, these Terms of Use will be construed and governed in accordance with the laws of South Australia. If any part of these Terms of Use are found void and unenforceable, it will not affect the validity of the balance of these Terms of Use, which will remain valid and enforceable according to its terms. No action, regardless of form, arising out of the Solutions under these Terms of Use may be brought by you more than one (1) year after the events that gave rise to the cause of action occurred.

 

These Terms of Use were last modified on August 9, 2023.