Terms & Conditions

1. CIM Services

CIM grants the Customer the right to access and utilise agreed modules of the PEAK Platform and to receive the Services described in the Service Agreement on the terms and conditions set out in these Standard Terms and Conditions during the Term.

2. PEAK Platform

2.1 Customer acknowledges that the PEAK Platform comprises proprietary software and hardware owned and maintained by CIM. In the event that CIM, installs a data capture device (CIM Device) at a Customer's premises and/or installs software on any computer or computer network which is controlled by the Customer, this agreement will also cover such device and that software.

2.2 Customer consents to the installation of the PEAK Platform on its premises or other infrastructure (nominated by Customer) and grants to CIM the right for CIM's personnel to enter upon those premises or other infrastructure for installation and maintenance purposes during usual business hours by prior arrangement. Customer acknowledges that it is responsible for the installation and ongoing operation and maintenance of electrical power and a suitable communications link between each Centre and CIM's operations centre.

2.3 Although CIM does not warrant that the Service will be complete, continuous or error-free, CIM will:

(a) use reasonable endeavours to notify Customer of any errors or defects in the Service or Machine Level Data no later than 5 business days after CIM becomes aware of them; and

(b) correct any such errors or defects as soon as reasonably practicable after CIM becomes aware of them.

2.4 CIM may enhance or alter the features of the PEAK Platform, provided it does not materially and adversely reduce the core functionality of the Services supplied to the Customer. CIM will give the Customer reasonable prior notice of any change it expects to have a material adverse effect on the Customer's use of the Services.

3. Maintenance and Support

3.1 Support: CIM will provide Customer with technical support services in accordance with this Clause 3.

3.2 Technical support does not include the diagnosis and rectification of any fault which CIM in its absolute discretion considers results from:

(a) the improper use, operation or neglect by Customer of a CIM Device where that causes the PEAK Platform to fail to perform;

(b) the modification by Customer of the CIM Device or their merger (in whole or in part) with any other software by any person other than by CIM where the same causes the Platform to fail to perform;

(c) the use or accessing of the PEAK Platform on equipment other than that which has been approved by CIM;

(d) the failure by the Customer to implement recommendations in respect of or solutions to faults previously advised by CIM, in writing;

(e) any repair, adjustment alteration or modification of the CIM Device or the PEAK Platform by any person other than CIM without CIM's prior written consent;

(f) any breach by the Customer of any of its obligations under any maintenance agreement with any person or company in respect of the Customer's infrastructure which directly or indirectly causes the PEAK Platform to malfunction or cease to function;

(g) the use of the CIM Device or the PEAK Platform for a purpose for which they were not designed; and

(h) data being rekeyed from customer's source into CIM's format by the Customer at such low level of accuracy that it causes the PEAK Platform to fail to perform.

3.3 CIM may at its sole discretion upon request by the Customer provide technical support notwithstanding that the fault results from any of the circumstances described in clause 3.2.

3.4 CIM is entitled to levy reasonable Additional Charges if technical support is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Customer's request to have been unnecessary.

3.5 The Customer may need to provide CIM with remote access to the Customer's network infrastructure for the purposes of technical support. If for any reason remote access is not available or appropriate and field service is required then, CIM is entitled to levy additional charges in respect of reasonable and verifiable travel costs and disbursements incurred by CIM for the purpose of technical support.

3.6 The Customer acknowledges and permits CIM's right to remotely monitor their usage and performance of the PEAK Platform.

3.7 CIM reserves the right to temporarily suspend the provision of technical support to specific User(s) if, in CIM's reasonable opinion, the applicable User(s) have not been trained sufficiently and/or do not have the capability to use the PEAK Platform without unreasonable use of CIM's support services. Before exercising this right, CIM will discuss the relevant circumstances with the Customer in good faith and attempt to agree a resolution.

3.8 The Customer accepts responsibility for supplying and maintaining their own Building Management System and acknowledges that the PEAK Platform has not been developed to meet the individual requirements of the Customer.

3.9 Scheduled Maintenance: CIM will schedule maintenance of the PEAK Platform as far as practicable in consultation with Customer's nominated Representative. Where it is necessary to perform scheduled maintenance during operating hours, CIM will give Customer at least 24 hours' notice of that maintenance.

3.10 Enhancements and Fixes: CIM will periodically issue enhancements and fixes to improve the performance of PEAK Platform and the Services. Where the PEAK Platform needs to be offline for that purpose, CIM will as far as practicable consult with Customer's nominated Representative and give Customer at least 24 hours' notice of that downtime.

4. Use of Machine Level Data

4.1 Depending on the capabilities of the Building Management System and installed equipment, CIM will take periodic snapshots of the data stream captured by the PEAK Platform (Raw Data) or, where that is not possible, take copies of any log files provided by the Building Management System (Log Files) to the PEAK Platform. Raw Data and Log Files are referred to in this Agreement as Machine Level Data.

4.2 CIM acknowledges Customer's ownership of any Machine Level Data provided to it by the PEAK Platform. CIM is not responsible for the loss or corruption of Machine Level Data.

4.3 Customer grants to CIM a royalty free, fully paid, perpetual, irrevocable, non-exclusive, worldwide license to use its Machine Level Data to enable the provision of Services to Customer and to conduct analysis and processing of that Machine Level Data (alone or in conjunction with other data owned or accessed by CIM) and for the development and enhancement of the PEAK Platform and the creation of CIM Data. For the avoidance of doubt Machine Level Data is Confidential Information of the Customer.

4.4 Customer acknowledges and agrees that CIM's selection, compilation, analysis and processing of Machine Level Data creates data sets and other insights (CIM Data) that are and remain the exclusive property (including the Intellectual Property Rights therein) of CIM for all purposes including for the provision of the Services to Customer and for improving the PEAK Platform and use by CIM at any time in the future.

4.5 CIM encourages Customer to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to the PEAK Platform and the Services (collectively, "Feedback"). If Customer provides such Feedback, Customer grants to CIM a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to use, license, and commercialize Feedback (including by incorporation of such Feedback into the Services and the PEAK Platform without restriction).

5. Customer’s Obligations

5.1 Warranties: Customer, on its behalf and on behalf of its Affiliates warrants and represents to CIM that:

(a) it will use Data Outputs (including advice of any faults, where that advice is generated through the Services) only in accordance with and for the purposes of this Agreement;

(b) it has and retains sole exclusive responsibility for the rectification of any faults and any impact that faults may have or not have on Customer's infrastructure and equipment; and

(c) collection and sharing of Machine Level Data with the PEAK Platform activities do not infringe the rights of any third party with whom Customer has contracted, including the operator or owner of any component of a Building Management System.

5.2 The Customer is responsible for obtaining and maintaining, at its cost, any and all equipment and ancillary software and services needed to connect to, access or otherwise use the PEAK Platform or the Services including, without limitation, internet connections, hardware, servers, software, operating systems, networking and web servers.

5.3 The Customer is responsible for the following:

(a) determining those personnel who will have access to the PEAK Platform or the Services and the level of access (being the Authorised Users);

(b) controlling the level of access given to Authorised Users;

(c) resolving any issues that Authorised Users have with their level of access;

(d) revoking or adjusting the level of the access of any of the Authorised Users;

(e) the use to which the Authorised Users put the PEAK Platform or the Services;

(f) setting up and launching use of the PEAK Platform or the Services except to the extent to which CIM agrees to assist the Customer do so; and

(g) providing sufficient (having regard to the nature of the Customer's business) telecommunications bandwidth and security for the computer network by which the PEAK Platform or the Services is accessed.

5.4 Unless otherwise permitted by the Law, the Customer must not (and must ensure that Authorised Users must not):

(a) resell, reframe, distribute or on-sell the PEAK Platform or any of its functions, modules or documentation;

(b) include the PEAK Platform or any of the functions or modules in any service bureau or outsourcing or managed service offering;

(c) modify or adapt or create copies or derivative works of CIMs documentation or functionality of the PEAK Platform;

(d) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the PEAK Platform;

(e) build a competitive application or service;

(f) copy any features, functionality or graphics of CIM documentation, or the PEAK Platform;

(g) use the PEAK Platform to access services or modules other than the modules the Customer is authorised to use;

(h) assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the PEAK Platform or the Services on behalf of any third party or make available the same to any third party;

(i) remove or alter any copyright or other proprietary notice on any of CIM documentation, or the PEAK Platform;

(j) sub-licence, assign, novate or otherwise part with the benefit or burden of the Agreement in whole or in part;

(k) sub-licence the use (in whole or in part) of the PEAK Platform or the Services; or

(l) deal in any other manner with any or all of its rights and obligations under the Agreement.

5.5 The Customer is responsible for managing issue, supervision and security of passwords issued to Authorised Users and must take all other actions as CIM reasonably instructs to maintain or enhance the security of the PEAK Platform and the Authorised Users' access.

5.6 The Customer must comply with CIM Policies and any instructions given to the Customer by CIM in CIM documentation.

5.7 The Customer must take all reasonable precautions to ensure that it maintains the security of its access to the PEAK Platform. Without limiting the generality of this obligation, the Customer must not allow any person other than an Authorised User to access the PEAK Platform.

5.8 The Customer is responsible for Authorised Users' use of the PEAK Platform. Accordingly, the Customer must:

(a) ensure all Authorised Users comply with this Agreement and CIM Policies;

(b) co-operate in all matters relating to this Agreement with CIM;

(c) provide in a timely manner such information as CIM may request and ensure that all such information is accurate in all material respects;

(d) implement and enforce a policy prohibiting the use of any single user login by more than one person and notify CIM as soon as Customer becomes aware of a breach of this policy;

(e) ensure that its network and systems comply with any required prerequisite technical specifications no later than the Start Date or such other deadline agreed between the parties in writing from time to time;

(f) be liable for any acts or omissions of Authorised Users;

(g) be solely responsible for procuring and maintaining its Building Management Systems, monitoring equipment, network connections and telecommunications links from its systems to any third party's data centres, and all problems, conditions, delays delivery failures and all loss or damage arising from or relating to the Customer's network connections or telecommunications links;

(h) be solely responsible for the selection of the Building Management Systems and monitoring equipment to ensure it is suitable to meet the individual requirements of the Customer; and

(i) be solely responsible for all problems, conditions, delays delivery failures and all loss or damage arising from or relating to the Customer's Building Management Systems and monitoring equipment.

6. Proprietary Rights

6.1 Intellectual Property means all (i) patents, patent applications, patent disclosures and inventions (whether patentable or not), (ii) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names, and registrations and applications for the registration thereof together with all of the goodwill associated therewith, (iii) copyrights and copyrightable works (including computer programs, mask works, compilations, tables, manuals, advisory notices and other literary works and cinematograph films) and applications thereof, (iv) trade secrets, know-how and other confidential information, (v) waivable or assignable rights of publicity, waivable or assignable moral rights and (vi) unregistered and registered design rights and any applications for registration thereof; and (vii) database rights and all other forms of intellectual property a party creates or to which it acquires rights.

6.2 CIM is the sole and exclusive owner of, and retains all right, title and interest in, the CIM Device, the PEAK Platform and all Intellectual Property embodied in them as well as in CIM Data, together with the right to sub-license others in respect thereof. CIM may also use hardware and software components provided by third parties in the development and provision of the PEAK Platform and of CIM Data. Nothing in this Agreement confers any right, title or interest in the CIM Device, the PEAK Platform or the CIM Data on the Customer and/or any Affiliate, except the right to use the CIM Device, the PEAK Platform and the CIM Data provided to Customer by CIM in accordance with the terms of this Agreement.

7. Confidential Information

7.1 Confidential Information means all information relating to the business, clients, policies, strategies, practices, or procedures of either party, together with its Intellectual Property, and rules created in conjunction with the Customer. Notwithstanding the foregoing, Confidential Information does not include information which:

(a) is or becomes public knowledge through no fault of the other party;

(b) has been independently acquired or developed by the other party; or

(c) is required to be disclosed by law.

7.2 The Customer acknowledges and agrees, on its own behalf and on behalf of its Affiliates and Authorised users, that the grant of access and provision of the Services is subject to the following conditions, namely, that Customer will not without CIM's express prior written permission:

(a) permit individuals other than Authorised Users to access or utilise any part of the PEAK Platform;

(b) modify, translate, reverse engineer, decompile, disassemble or create derivative works from any part of the PEAK Platform; or

(c) use or attempt to use any part of the PEAK Platform, either alone or in conjunction with any device program or service, in a manner intended or designed to circumvent technological measures employed to control access to, or the rights in, the PEAK Platform, the Machine Level Data or any alerts or faults.

7.3 The parties agree that they will:

(a) not use nor permit the use of the other party's Intellectual Property or Confidential Information except as contemplated by this Agreement;

(b) ensure that all of their employees, officers and agents who receive or have access to Confidential Information are bound under the terms of their employment, engagement or agency, before they receive or are granted access to any of the Confidential Information, in the same manner and to the same extent as the recipient is bound by this Agreement, as if they were the recipient;

(c) keep the other party's Confidential Information secret and confidential; and

(d) not, directly or indirectly disclose the other party's Confidential Information to any other person or publish, use, reproduce, copy or allow the other party's Confidential Information to be published, used, reproduced, or copied to any other person except in connection with this Agreement.

7.4 Neither party may issue press releases, announcements or statements attributable to the other party relating to this Agreement without the express prior written consent of the other party to the form and manner of the announcement or release, unless that announcement or release is required to be made by law or by the rules of a stock exchange. Customer consents to CIM's limited and reasonable use of Customers name and logo solely to publicly acknowledge that Customer is a user of the Services and the Peak Platform.

7.5 Each party agrees that it will do all things within its power to protect the Intellectual Property and Confidential Information of the other party, including:

(a) notifying the other party as soon as possible if it becomes aware of any infringement or threatened infringement of the Intellectual Property and Confidential Information of the other party; and

(b) executing all documents and taking all actions reasonably necessary to assist the other party in any proceedings or action taken by it to protect its Intellectual Property or Confidential Information.

8. Privacy and Data Protection

8.1 In this clause, "Personal Information" has the meaning given in the Privacy Act 1988 (Cth), and "Privacy Laws" means the Privacy Act 1988 (Cth), the Australian Privacy Principles, and any other applicable law, code or registered binding scheme relating to the handling of Personal Information.

8.2 Each party will comply with the Privacy Laws in connection with its activities under this Agreement.

8.3 To the extent CIM handles Personal Information in providing the Services, it will do so in accordance with the Privacy Laws and CIM's privacy policy (available at cim.io/privacy-policy), as updated from time to time. CIM will not use Personal Information contained in Machine Level Data other than as reasonably necessary to provide the Services and as permitted under clause 4.

8.4 The Customer warrants that it has all rights, consents and authorisations necessary to provide, and to authorise CIM to collect and handle, any Personal Information made available to CIM through the PEAK Platform or otherwise under this Agreement, and that CIM's handling of that Personal Information in accordance with this Agreement will not breach any Privacy Law or any obligation owed by the Customer to a third party.

8.5 Each party will implement and maintain reasonable technical and organisational security measures appropriate to the nature of the Personal Information it handles under this Agreement.

8.6 If a party becomes aware of an "eligible data breach" (as defined in Part IIIC of the Privacy Act 1988 (Cth)) affecting Personal Information handled under this Agreement, it will notify the other party as soon as reasonably practicable, and the parties will cooperate in good faith to investigate, remediate and, where required, give any notification to the Office of the Australian Information Commissioner and affected individuals required under the Notifiable Data Breaches scheme.

9. Exclusion of Consumer and Other Warranties

9.1 "AS IS": CIM provides the Services on an "as is" basis. Although CIM agrees to use reasonable commercial endeavours to ensure accuracy and reliability of the Services, CIM does not warrant the accuracy of the Machine Level Data or the CIM Data, or any other Information provided to Customer as part of the Services, and is not liable for inaccuracies or omissions whether caused through failure of the PEAK Platform or caused through inaccuracies, omissions, or other technical failure of data supplied to CIM by third parties or Customer.

9.2 Exclusion: Subject to clause 9.3, Customer acknowledges that the Services do not include any goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption and, accordingly, except as expressly provided in these Standard Terms and Conditions and to the full extent permitted by law, all express or implied warranties, representations and statements regarding the Services and their use or utility (including without limitation their merchantability or fitness for any particular purpose) are excluded. To the maximum extent allowed by law, CIM disclaims all warranties of any kind (express, implied, statutory or otherwise), including warranties of merchantability, accuracy, title, non-infringement or fitness for a particular purpose, and any warranties arising from usage of trade, course of dealing or course of performance. Without limiting the foregoing, CIM does not warrant that the PEAK Platform or the Services will meet the requirements of Customer or others, or will be accurate or operate without interruption or error. Customer acknowledges that in entering this Agreement it has not relied on any promise, warranty or representation not expressly set out in this Agreement.

9.3 Australian Consumer Law.

(a) Nothing in this Agreement excludes, restricts or modifies any guarantee, condition, warranty, right or remedy conferred on the Customer by the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law) or any other applicable law that cannot lawfully be excluded, restricted or modified (a "Non-Excludable Right").

(b) To the extent the Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, and to the maximum extent permitted by section 64A of the Australian Consumer Law, CIM's liability for a failure to comply with a Non-Excludable Right (other than a guarantee under sections 51 to 53 of the Australian Consumer Law) is limited, at CIM's option, to: (i) the resupply of the Services; or (ii) the payment of the cost of having the Services resupplied.

(c) To the extent any Non-Excludable Right applies and CIM is not entitled to limit its liability under clause 9.3(b), CIM's liability for that failure is governed by clause 10.

10. Limitation of Liability

10.1 Subject to clauses 9 and 10.2, but only to the extent permitted by applicable law, the aggregate liability of either party to the other party (either directly or as a third party defendant in any action or proceeding) for any claim arising out of or relating to this Agreement or the provision of the Services under this Agreement is limited to the aggregate Fees paid by the Customer to CIM in the 12 months ending with the date of the breach or representation.

10.2 To the extent permitted by applicable law, in no event shall either party be liable to the other party for any loss of revenue, loss of profits, cost of cover, loss of business opportunity loss of anticipated savings loss of goodwill or any other special, incidental, consequential, indirect or punitive damages, however caused and regardless of theory or liability, including negligence, notwithstanding that either party has been made aware or advised of the possibility of such damages.

10.3 The liability cap in clause 10.1 does not apply to:

(a) any liability that cannot be excluded or limited by law;

(b) the Customer's obligation to pay Fees and other amounts due under this Agreement;

(c) the Customer's breach of clause 5.4 (use restrictions) or any infringement or misappropriation of CIM's Intellectual Property;

(d) either party's fraud, or wilful misconduct; and

(e) either party's liability for death or personal injury caused by its negligence.

10.4 The PEAK Platform is not designed for any purpose requiring fail-safe performance, including stock trading, financial transaction processing, operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, weapons systems, or other management or operation of hazardous facilities or applications for which failure could result in death, personal injury, or severe physical, property, or environmental damage (each, a "High Risk Activity"). CIM, its licensors, and suppliers expressly disclaim all warranties of fitness for any such use.

11. Insurances

11.1 During the Term, CIM will, at its own expense, obtain and maintain with reputable insurers:

(a) public and products liability insurance;

(b) professional indemnity insurance; and

(c) workers compensation insurance to the full extent of CIM's liability under applicable workers compensation legislation,

each for amounts and on terms that are reasonable and customary for a business of CIM's nature and size, and not less than any minimum amounts specified in the Service Agreement.

11.2 CIM will, if reasonably requested by the Customer, provide reasonable evidence that the insurances required under clause 11.1 are current and effective.

12. Fees

12.1 Customer must promptly pay all invoices submitted by CIM within 14 calendar days of the date of the invoice or the otherwise applicable due date specified in the Service Agreement and without any deduction or set off.

12.2 If a Fee is not paid by the due date, the outstanding amount accrues interest from the due date until the date payment is received at a rate equal to 10% per annum, calculated daily. Overdue payments and accrued interest are payable on demand.

12.3 With effect from 1 July each year, CIM may increase the Fees by an amount equal to the percentage increase in the Consumer Price Index (All Groups, weighted average of eight capital cities) over the preceding 12 months. CIM will give the Customer at least 30 days' written notice of any such increase.

12.4 If CIM agrees to provide additional services to the Customer (including training or Support which is supplementary to the technical support services provided by CIM) the Customer will pay Fees for the provision of those services as agreed in writing with the CIM.

12.5 Without limitation of clause 12.3, CIM may increase the Fees after the expiry of the Initial Term by giving the Customer at least 60 days' written notice. Where any such increase, together with any increase under clause 12.3 in the same 12-month period, exceeds CPI plus 1%, the Customer may terminate this Agreement by written notice given before the increase takes effect, and any Fees paid in respect of a period after the termination date will be refunded on a pro-rata basis. If the Customer does not terminate, the increased Fees take effect on the date specified in the notice.

12.6 On CIM's request the Customer will cause Fees to be paid by providing to CIM an authority enabling CIM to directly debit the Customer's bank account for amounts due to CIM or such other payment method as may be authorised by CIM from time to time.

12.7 The Customer will, in addition to any other amounts specified in the Agreement, reimburse on demand to the CIM any charge incurred by CIM relating to a rejection by a bank or financial institution of the Customer's payment to the CIM.

12.8 Without prejudice to any other right or remedy CIM may have, if the Customer fails to pay CIM on the due date CIM may suspend the Customer's access to the PEAK Platform and receipt of Services until payment has been made in full. Time for payment is of the essence of the Agreement.

13. Taxes

13.1 In this clause, words and expressions defined in the GST Act have the same meaning, and "GST Act" means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

13.2 Unless expressly stated otherwise, all Fees and other amounts payable under this Agreement are exclusive of GST.

13.3 If CIM makes a taxable supply under or in connection with this Agreement, the Customer must pay to CIM, in addition to the consideration for that supply, an amount equal to the GST payable on that supply. The Customer must pay that additional amount at the same time as the consideration to which it relates, but is not required to do so until CIM has issued a valid tax invoice.

13.4 If either party is required to reimburse or indemnify the other for a cost or expense, the amount payable is the cost or expense less any input tax credit to which the party incurring it is entitled, plus any GST payable on the reimbursement or indemnity.

13.5 The Customer must make all payments under this Agreement free of any deduction or set-off. All amounts are exclusive of any other tax, levy or similar governmental charge (other than tax on CIM's net income). If any such tax, or any value added tax or equivalent imposed in a jurisdiction outside Australia, is payable on a supply made to the Customer, the Customer must bear that tax, and if CIM is required to account for it, the Customer must gross up the amount payable so that CIM receives the net amount it would have received had the tax not applied.

14. Force Majeure

CIM is not, and may not be construed to be, in breach of this Agreement for any failure or delay in fulfilling or performing the Services when and to the extent such failure or delay is caused by or results from acts beyond CIM 's reasonable control, including: strikes, lock-outs, or other industrial disputes; trespass, sabotage, theft or other criminal acts, export bans, sanctions, war, terrorism, riot, civil unrest, or government action; failure of Internet connectivity or backbone or other telecommunications failures, breakdown of plant or machinery; nuclear, chemical, or biological contamination; fire, flood, natural disaster, extreme adverse weather, or other acts of God (each a "Force Majeure Event"). CIM will use reasonable efforts to mitigate the effects of such Force Majeure Event. CIM will give the Customer notice of the event as soon as practicable and will as soon as the event ceases to affect performance of the obligations under this Agreement resume compliance with the terms of this Agreement.

15. Termination

15.1 The Customer may cancel the Subscription by notifying CIM in writing, with cancellation taking effect at the end of the then-current Term. The Customer has no right to terminate for convenience during the Initial Term or any Renewal Term, except as provided in clause 15.2. At least 60 days before the end of each Term, CIM will notify the Customer in writing of the upcoming renewal and the Fees that will apply. The Subscription will renew for a further Renewal Term unless either party gives at least 30 days' written notice before expiry of the then-current Term.

15.2 This Agreement terminates:

(a) if either party gives written notice of a material breach of this Agreement by the other party, and the breach is not remedied within 10 Business Days after receipt of the notice; or

(b) if either party goes into administration or liquidation either compulsorily or voluntarily (save for the purpose of solvent reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets or if either party makes an assignment for the benefit of or composition with its creditors generally or threatens to do any of these things and additionally commits a breach of this Agreement and the other party gives notice that it elects to terminate this Agreement.

15.3 CIM may terminate this Agreement prior to the expiration of the Initial Term upon giving 30 days written notice to Customer:

(a) if CIM is unable for any reason successfully receive a data stream from which it can extract Raw Data; or

(b) if the business of CIM is materially affected by a change in ownership or in the way in which the business is operated.

In the event of termination by CIM under this clause 15.3, CIM will refund to the Customer a pro-rated portion of the Fees already paid to CIM by Customer which are attributable to the remaining balance of the Term.

16. Consequences of Termination

16.1 Upon termination of this Agreement each party will remove any reference to the other from its advertising and/or promotional material.

16.2 Any termination of the Agreement pursuant to clause 15 is without prejudice to any other rights or remedies a party may be entitled to under the Agreement or at Law and must not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

16.3 For a period of 30 days after termination or expiry of this Agreement, CIM will, on the Customer's written request, make available to the Customer for export the Machine Level Data then held by CIM in a commonly used, machine-readable format. After that period, CIM may delete or de-identify Machine Level Data in accordance with its standard data-retention practices, subject to the licence in clause 4.3 and CIM's continuing rights in CIM Data under clause 4.4.

17. Notices

17.1 Except as otherwise provided in this Agreement, all notices will be in writing and deemed given on: (a) personal delivery; (b) when received by the addressee if sent by a recognized overnight courier (receipt requested); (c) the third business day after mailing; or (d) the first business day after sending by email, (provided that the sender has not received a message to the effect that email was not delivered or that the recipient is 'out of office', but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee's time) it is regarded as received at 12.00 noon (addressee's time) on the following Business Day.

17.2 Email will be sufficient for notices regarding a Claim or alleged breach. Notices will be sent to the address of the party as set forth in the Service Agreement or as subsequently advised in writing.

18. General

18.1 The Customer may not assign or novate this Agreement without CIM's prior written consent. CIM may assign or novate this Agreement, in whole or in part, to an Affiliate or in connection with a merger, acquisition, corporate reorganisation or sale of all or substantially all of its assets, on written notice to the Customer.

18.2 This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior representations, understandings and agreements.

18.3 No variation of this Agreement is effective unless in writing and signed by both parties, except where these Standard Terms and Conditions expressly permit CIM to make a change.

18.4 A failure or delay by a party to exercise a right under this Agreement does not operate as a waiver of that right.

18.5 If any provision of this Agreement is held invalid or unenforceable, it is to be read down or severed to the minimum extent necessary, and the remaining provisions continue in full force.

18.6 If there is any inconsistency between these Standard Terms and Conditions and the Service Agreement, the Service Agreement prevails to the extent of the inconsistency.

19. Governing Law

This Agreement is governed by the law in force in NSW, Australia and the parties submit to the non-exclusive jurisdiction of the courts of that State.