Terms and Conditions

for Didigy e-Surveillance Services

1. Definitions and Interpretation

1.1 In these Terms and Conditions, the following words and expressions shall have the following meanings:

Didigy means Didigy Hosted Solutions Pty Ltd - ACN 123 720 801
Didigy Application means the application form prescribed by Didigy and used by the Reseller to subscribe Customers for the Service.
Bandwidth means a broadband connection or dedicated bandwidth connection that provides a dedicated upstream bandwidth of 256kbps per camera.
Customer means the Reseller's end user client.
Commencement Date Requested means the date requested by the Customer for commencement of the Service by Didigy.
Commencement Date of Service means the actual commencement date of the Service by Didigy.
CPE means Customer Premise Equipment and is not part of Didigy System.
e-Surveillance Site means any customised e-Surveillance site.
Fees means the fees and charges payable by the Reseller to Didigy Hosted Solutions in respect of the Service provided to their Customer as prescribed by Didigy Hosted Solutions in Schedule A and applicable increases from time to time.
Guest means a person authorised by the Site owner to view the Customer's e-Surveillance Site.
Initial Contract Term means the first contracted subscription period agreed to by Didigy.
Recurring Monthly Charges means the monthly amount payable to Didigy by the Reseller.
Reseller means the Service reseller contracting Didigy e-Surveillance Wholesale Service.
Reseller Agreement means these Terms and Conditions together with Fees and any other charges to be charged during the Reseller Agreement Period together with trading and accounting terms with all agreed in writing between Didigy and the Reseller.
Reseller Agreement Period means the period of time the Reseller Agreement is valid.
Service means the service known as Didigy e-Surveillance that provides managed digital video content and surveillance services, as may be set out in the relevant Didigy Application from centrally hosted video storage and serving facilities connected to the Customer by a broadband/IP connection.
Site Owner means the person authorised by the Customer to be responsible for changing and maintaining the personalised Customer's e-Surveillance Site.
Software means the configuration software script downloaded into the Customer's CPE(s) to allow the implementation of the Service.
Standard Service means the basic Service provided by Didigy to the Reseller.
System means the storage and server systems, software applications and network communication facilities and any other equipment required by Didigy Hosted Solutions for the operation of the Service.
Term means the Initial Contract Term (as defined in Clause 2.2) and any renewal or
amendment of the same.
Work means any work the Reseller requests Didigy to perform in relation to the Service.

1.2 The headings or titles to the clauses in these Terms and Conditions are to facilitate reference and shall not be referred to or relied upon in the construction of any provision of these Terms and Conditions.

2. Commencement and Duration of Service

2.1 The Service shall commence on the Commencement Date Requested (as stated in the Didigy Form) or, in the event that Didigy is unable to provide the Service on the Commencement Date Requested, the date specified by Didigy in writing, as the Commencement Date of Service.

2.2 The Term of subscription for the Service shall be:

a) a period of twelve (12) months or other such period agreed, in writing, by Didigy and the Reseller and will be included in the Didigy Application; or

b) such other period as may be stipulated by Didigy as the relevant minimum period of subscription when the Reseller applies for the Service, calculated to commence on the Commencement Date of Service (the " Initial Contract Term"). Thereafter the Service shall continue in force for successive periods corresponding with the Initial Contract Term.

2.3 If any additional Services or features above the Standard Services are subsequently subscribed for, the Initial Contract Term herein shall be revised to commence from the Commencement Date of the said additional Services or features, unless Didigy agrees otherwise in writing.

3. Termination

3.1 Subject to Clause 3.2, Didigy or the Reseller may terminate the Service by giving to the other not less than thirty (30) days prior written notice.

3.2 On termination of the Service, the Reseller shall be liable to pay Didigy:

(a) where the termination date is the same as the expiry date of the Term;

i. the monthly recurring charges up to and including the date of termination; and

ii.any other fees or charges incurred through the supply of equipment by Didigy to the Reseller for supply of Service rendered by Didigy up to and including the date of termination;

(b) where the termination date is before the expiry date of the Term:

i. 100% of the monthly recurring charges for the remaining Term,

ii. any other fees or charges incurred through the supply of equipment by Didigy to the Reseller for supply of Service rendered by Didigy up to and including the date of termination;

4. Fees and Charges

4.1 If there is a revision of the Fees for the Service during the Initial Contract Term, then the Reseller shall not be entitled to those revision benefits. After the Initial Contract Term the Service shall continue until terminated and the same Fees shall, subject to these Terms, apply.

4.2 Didigy reserves the right to vary the Recurring Monthly Charges at any time after twelve (12) months from the Commencement Date of Service.

5. Service Requirements and Limitations

5.1 The Reseller acknowledges that Service availability is subject to:

(a) availability of resources including, without limitation, availability of a suitable network infrastructure at the time at which the Service is requested or delivered;

(b) geographic and technical capability of the Didigy network and of Didigy's delivery systems at the time at which the Service is requested or delivered; and

(c) provisioning time for equipment that is required by Didigy to provide the Service.

5.2 The Reseller acknowledges that:

(a) it must procure, configure, operate and maintain at its own expense any equipment or software needed to implement, receive and use the Service, unless Didigy expressly agrees otherwise in writing;

(b) it shall fully indemnify and hold Didigy harmless at all times against all actions, claims, proceedings, costs ( including legal costs), losses or damages whatsoever, which may be brought against Didigy by any person out of or in connection with any loss or damage to any equipment, including third party equipment, resulting from the Reseller’s or Customer's actions or omissions;

(c) the Customer must maintain good engineering and operational practices in the usage of its equipment; and

(d) the technical means by which Didigy supplies the Service is at Didigy's sole discretion.

5.3 The Reseller and / or the Customer shall not, under any circumstances, change or reconfigure the equipment or software used to implement, receive and use the Service.

5.4 The Customer must at all times subscribe to suitable Bandwidth as required by the Service.

5.5 The Reseller will provide a suitable facilities to:

(a) promptly and adequately deal with all 1st Level assistance for their Customers;

(b) advise Didigy of faults only after verifying that the Customer CPE and network connections are functioning properly;

(c) promptly and adequately communicate with Didigy to resolve any Service issues related directly to Didigy Systems.

5.6 If the Reseller reports a fault and, following investigation by Didigy, either no fault is found or Didigy determines that the fault is not with the Didigy System/s or the Service, then Didigy reserves the right to charge the Reseller a fee for the fault report at Didigy's then prevailing rate and Didigy's sole discretion.

5.7 The Reseller may, with the written consent of Didigy, purchase additional features or services ancillary to the Standard Service and, on provision of those additional services or features, these Terms and Conditions shall also apply to those additional services or features.

6. Limitation of Liability and Warranty of Didigy Hosted Solutions

6.1 Reseller agrees that use of the Service is entirely at Reseller's and Customer's own risk. Didigy services are provided "as is," without warranty of any kind, either express or implied, including without limitation any warranty for information, services, uninterrupted access, or products provided through or in connection with the Service, including without limitation the results obtained through the Service.

6.2 Didigy shall not be liable to the Reseller and / or their Customer for any and all loss (including any and all consequential and/or loss of profits), damage, cost or expense, whether direct or indirect, including any loss of or use of Reseller's or their Customer's DNS name, or any interruption of business, howsoever caused by any aspect of the Service (the "Damages"), including but not limited to circumstances where they may be caused by any inability to gain access to or use of the Service, any breach of any warranty, any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorised access to, alteration of, or use of any record, regardless of whether any of the above arise via any breach of contract, tortuous behavior, negligence, or under any other cause of action. Reseller specifically acknowledges that Didigy is not liable for the defamatory, offensive or illegal conduct of other Customers or third parties and that the risk of
suffering any Damage from any of the foregoing rests entirely with the Reseller and their Customer.

6.3. Without prejudice to the generality of the foregoing, Didigy shall not be responsible for any damages sustained by the Reseller and/or their Customer or any user authorised by the Reseller and/or their Customer as a result of any specific failure of the Service including but not limited to non receipt of email alerts, non receipt of SMS and/or MMS alerts, non detection of intrusions or movements by the camera or service, non recording or unclear recording of video images and the like.

7. Service Provision

7.1 The Service will be provided on a best effort basis.

7.2 Didigy shall charge for all Work at Didigy's then prevailing rate.

7.3 In addition to the Fees, a surcharge shall be payable for any Work on public holidays, the eve of public holidays, or outside the following hours:

Monday to Friday 8.30am - 6.00pm

7.4 Where the Reseller requests that Didigy provision the Service within a specific period Didigy shall, in consultation with the Reseller, determine the date ("Request for Service Date") to complete the Work.

7.5 If Didigy is unable to complete all or any of the Work on or before the Request for Service Date then the Reseller must either:

(a) cancel that part of the Work that Didigy is unable to complete on or before the Request for Service Date, without being liable to pay any cancellation charges; or

(b) accept that part of the Work that Didigy has completed, and pay for the same at Didigy's then prevailing rate; and the Reseller shall have no other claim against Didigy, and Didigy shall have no liability in contract, at law or in equity, for failure to complete the Work before the Request for Service Date.

7.6 If the Reseller requests to defer completion of the Work to a date after the originally
agreed Request for Service Date, the Reseller shall be liable to pay a reservation fee at Didigy's then prevailing rate. For the purposes of this clause, the period of reservation shall be the period between the originally agreed Request for Service Date and the date of completion of the Work.

7.7 If the Reseller cancels the Work, the Reseller shall be liable to pay the cancellation
charges at Didigy's then prevailing rate.

7.8 The service for Work will be provided on a best effort basis.

7.9 The Reseller and/or Customer must not use the service for monitoring activities, areas or any other purpose that will contravene any laws in the Reseller's and/or Customer's geographical jurisdiction. Didigy reserves the right to terminate the service and charge the balance of remaining contractual payments to the Reseller as a result of such breaches.

8. Consent to Use and Disclose Information and Data

The Reseller agrees that Didigy shall be entitled to use or disclose any information or data disclosed by the Reseller and/or the Customer to any authorised government authority in accordance with any applicable laws in force in the Resellers and/or Customers geographical jurisdiction when the request is made.

9. Privacy

The Reseller and Customer agree that:

(a) the placement of any camera will not violate or contravene any privacy legislation or relevant laws in the state or jurisdiction where the camera is located;

(b) they will jointly and severally indemnify and hold harmless Didigy against any and all actions by any party related to privacy;

(c) they will instruct authorised users of the Service in the proper use of the Service having regard to any and all appropriate privacy legislation;

(d) Didigy has the right to terminate the service and charge the balance of remaining contractual payments to the Reseller as a result of any breaches of privacy legislation.

10. Intellectual Property Rights

All rights, titles and interests in and to the Service and Didigy’s trademarks shall at all time remain with Didigy.

11. Changes and Modifications

11.1 Didigy reserves the right to change or modify the Service. Any changes or modifications to the Service will be effective upon posting of the revisions on the e-Surveillance Site.

11.2 Didigy reserves the right to at any time and from time to time, at its sole discretion, change and modify any terms and conditions contained in the Terms of Service as well as change or modify any addendum, policy or guideline incorporated by reference.

11.3 Didigy reserves the right to determine whether and when any such changes apply to both existing and future customers. Any changes or modifications will be effective
upon posting of the revisions on the e-Surveillance Site. The Reseller's and/or Customer's continued use of the Service after Didigy's posting of the revisions will constitute the acceptance of such changes or modifications.

12. General

12.1 The Reseller shall be bound by and shall fully observe and comply with the Reseller Agreement as well as such other terms and conditions as may be agreed or accepted by the Reseller. The rights and protections conferred on Didigy under these specific Terms and Conditions shall be additional to the rights and protections conferred on Didigy under the Reseller Agreement, any general Didigy terms and any other terms and conditions agreed or accepted by the Reseller.

12.2 Any Clause in the Reseller Agreement, these specific Terms and Conditions, or any other terms and conditions as may be agreed or accepted by the Reseller, that is invalid, unenforceable or illegal shall be enforced as nearly as possible in accordance with its terms, but shall otherwise be deemed severed and shall not affect the enforceability of any other Clauses, which Clauses shall continue to be valid and enforceable to the fullest extent permitted by law.

12.3 The Service provided by Didigy under these specific Terms and Conditions may not be re-sold or otherwise re-provided by the Reseller to any other person(s) whomsoever except in accordance with the negotiated Reseller Agreement.