Terms and Conditions

The terms and conditions (Terms and Conditions) govern your access to and use of the Nuonic Services (Services). Please scroll down and read all of the following Terms and Conditions carefully before continuing to use the Services.

These Terms and Conditions are a legally binding contract between you and Nuonic Pty Ltd. You must comply and guarantee that any authorised user complies (as though they were you) with these Terms and Conditions and any relevant laws.

If you do not agree to abide by these Terms and Conditions nor guarantee any of your authorised user’s compliance with these Terms and Conditions, do not use, or continue to use the Services or any related services referenced herein.

1. Definitions

In this Agreement:

Agreement means the Agreement Specifics and these Terms and Conditions;

Agreement Specifics means the Agreement Specifics that will be provided to you in the Nuonic App for acceptance after your request for GPS-based FTC services has been approved by Nuonic;

Applicable Laws means all legislation and subordinate legislation in force from time to time in Australia (including common law and equity as applicable from time to time) and relevant to the claiming of and entitlement to Fuel Tax Credits (including any policies, practices or procedures of the ATO);

ATO means the Australian Taxation Office;

Business Day means a day other than a Saturday, Sunday, public holiday or bank holiday in Brisbane, Australia;

Customer means the Customer specified in the Agreement Specifics;

Confidential Information means all information, regardless of its form, provided by or on behalf of a party to the other party that is by its nature confidential or is designated by the Disclosing Party as confidential (including the Vehicle Data);

Consequential Loss means any loss, damage, cost or expense which is indirect or consequential, including any of the following:

  • (a) loss of revenue, loss of profits, loss of opportunity to make profits, loss of contracts, loss of goodwill, loss of business reputation, loss of business opportunity, loss of use, loss of interest, damage to credit rating, special exemplary or punitive damages, increased or wasted overhead costs;
  • (b) arises as a result of production or other downtime, which relates to expenses caused by breach of this Agreement, or outgoings rendered futile by such breach;
  • (c) is not an immediate result of a breach of this Agreement; or
  • (d) any loss which does not directly or naturally flow in the normal course of events from the occurrence of the events giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into this Agreement.

Data Release Deed means a deed granted by the Customer in favour of its Telematics Provider in respect of the release of Vehicle Data in the form agreed between Nuonic and the Telematics Provider from time to time;

Disclosing Party means a party whose information is disclosed, or made available, to the other party;

Fee means the fee applicable for the Services as specified in the Agreement Specifics;

Force Majeure Event includes the following events beyond the reasonable control of a party:

  • (a) act of nature;
  • (b) war or terrorism;
  • (c) national emergency;
  • (d) epidemic;
  • (e) act or inaction of government or regulatory agency; and
  • (f) industrial action outside that party's own workforce;

Fuel Tax Credit means an entitlement arising under section 41-5 of the Fuel Tax Act 2006 (Cth);

GST has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Insolvency Event means an event by which a party is:

  • (a) rendered insolvent;
  • (b) placed in or under receivership, liquidation or official management or administration;
  • (c) wound up or a resolution is made for its winding-up;
  • (d) made subject to any arrangement, assignment or position (otherwise than as a result of voluntary corporate reconstruction); or
  • (e) subject to any other event that has a similar effect to any of the events above in this definition;

Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secrets, semiconductor or circuit lawyer rights, trade, business, domain or company names, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;

Non-excludable Australian Consumer Law means rights or guarantees a party may have under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (and any equivalent State or Territory legislation) or other rights in relation to the supply of goods or services (such as terms implied into a contract by the Australian Securities and Investments Commission Act 2001 (Cth) or any equivalent State or Territory legislation) that cannot lawfully be excluded;

Nuonic means Nuonic Pty Ltd ACN 613 269 364;

Nuonic App means the telematics data analysis software for fuel apportionment calculations developed by Nuonic and marketed under the Nuonic brand marks and name.

Services means the analysis of data or provision of software-based tools as detailed in the Agreement Specifics;

Telematics Provider means the company responsible for providing GPS-based vehicle tracking services to the Customer;

Term means the length of time the Services will be provided for, as detailed in the Agreement Specifics;

Vehicle means a particular vehicle identified by the Customer in respect of which Nuonic agrees to analyse Vehicle Data;

Vehicle Data means, in respect of a Vehicle, telematic data captured by or in the possession, custody or control of the Customer which is required to calculate the Fuel Tax Credits; and

Vehicle Data Analysis Agreement means any agreement between the Customer and Nuonic for the provision of data analysis services by Nuonic to the Customer, but does not include this Agreement.

2. Term

This Agreement commences on the date of this Agreement and continues for the Term unless earlier terminated under the provisions of this Agreement. The Parties may extend the Term by written agreement.

3. Vehicle Data Analysis

  • (a) In consideration of payment of the Fee and for the duration of the Term, Nuonic agrees to provide the Services to the Customer on the terms and subject to the conditions in this Agreement. Nuonic must provide the Services with the reasonable care, skill and diligence expected of a skilled and competent professional in the particular fields relevant to the Services.
  • (b) This Agreement will only become binding on Nuonic upon acceptance by the Customer of the Agreement Specifics.
  • (c) The Nuonic App is provided on an "as available" basis. While Nuonic strives to ensure the app is available continuously, it does not guarantee that the app will always be available, uninterrupted, accurate or error-free;
  • (d) Nuonic reserves the right to suspend or restrict access to some features of the app for maintenance or breach of this Agreement by the Customer;
  • (e) Nuonic will not be liable if the app is unavailable at any time or for any period; and
  • (f) The Customer will be solely responsible for maintaining the confidentiality and security of its Nuonic App account information.

4. Obligations of the Customer in Respect of Data Analysis

In consideration of the provision of the Services, in addition to payment of the Fees, the Customer agrees to:

  • (a) grant to Nuonic a non-exclusive, non-transferable licence to use, copy, modify, adjust, and/or aggregate the Vehicle Data for the purpose of performing the Services;
  • (b) provide such information and or assistance as is reasonably required by Nuonic in order to provide the Services;
  • (c) consider requests by Nuonic to aggregate such Vehicle Data and use and disclose that information in de-identified form as part of research, advice and other information products Nuonic develops, including, without limitation, benchmarking and transport system analysis services; and
  • (d) comply at all times with all Applicable Laws.

5. Fees

5.1 Fees

The Customer agrees that the Fee will be payable as specified in the Agreement Specifics by the method and in the manner required by Nuonic.

5.2 Payment

Nuonic agrees to provide the Customer with a tax invoice in respect of the Fees. The Fees are due and payable in accordance with the payment terms specified in the Agreement Specifics.

5.3 Goods and Services Tax

All payments due to Nuonic, unless already stated to be GST inclusive, are to be increased by the amount of any GST liability Nuonic has in relation to supplies Nuonic makes to which those payments relate.

6. Confidentiality

Each party must keep confidential all of the other party's Confidential Information except where such Confidential Information:

  • (a) is in or becomes part of the public domain other than as a result of a breach of this Agreement by either party to this Agreement;
  • (b) was known to the other party at the time of disclosure of the Confidential Information except as a result of a prior confidential disclosure to the other party by the Disclosing Party;
  • (c) is disclosed to the other party by any third party who is not known by the other party to be acting in breach of a confidentiality obligation owed to the Disclosing Party;
  • (d) is required by any law, or any requirement of any court, tribunal, authority, regulatory body or stock exchange, to be disclosed; or
  • (e) is to be disclosed in connection with any legal proceedings or disputes relating to this Agreement, or any agreement made in connection with it.

7. Representations and Warranties

Each party represents and warrants to the other party that:

  • (a) (power) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; all corporate action on the part of the Customer, its officers, board of directors and shareholders necessary for the performance of its obligations under this Agreement has been taken; this Agreement constitutes its valid and legally binding obligation, enforceable against it in accordance with the terms hereof; it is a corporation in good standing in its jurisdiction of incorporation, and it has had the opportunity to consult with counsel of its own choosing; and
  • (b) (no representations) except as expressly set forth herein, no representations of any kind or character have been made to induce it to execute and enter into this Agreement.

8. Intellectual Property

Each party maintains its Intellectual Property Rights that existed prior to execution of this Agreement. This Agreement does not give the Customer any Intellectual Property Rights or any other rights in the techniques and/or methodology used by Nuonic in providing the Services, including to analyse the Vehicle Data for the purposes of providing an estimate of the use of the Vehicle on non-public roads, which remain the sole and exclusive property of Nuonic. Subject to the confidentiality requirements in this Agreement, any newly developed intellectual property resulting from the Services will be owned by Nuonic, including any modifications or updates to any Nuonic systems, methods, processes or know-how used to analyse the Vehicle Data.

9. Limitation of Liability

  • (a) Each party agrees and acknowledges that:
    • (i) Nuonic is not liable for any loss or damage arising out of the Services to the extent such loss or damage arises a consequence of the content of the Vehicle Data or any other data or information provided by the Customer to Nuonic;
    • (ii) notwithstanding anything to the contrary contained in this Agreement, to the extent permitted by law and subject to clause 9(c) below, the maximum aggregate amount to which a party may be entitled with respect to any claim made under this Agreement will be the lower of: (A) the amount paid or payable to Nuonic in the 12 months prior to the event that gave rise to the claim, or (B) AUD 250,000; and
    • (iii) except as otherwise specified in this Agreement and for those required under any Non-excludable Australian Consumer Law, Nuonic makes no warranties or representations about the Services or their accuracy, reliability, completeness, currency, or ability to achieve any purpose.
  • (b) Neither party will be liable to the other for:
    • (i) any indirect or Consequential Loss, damage or costs incurred by a party; or
    • (ii) any loss or damage of any kind resulting from or in connection with negligence or breach of a term, condition or warranty that may be implied into this Agreement except for liability under Non-excludable Australian Consumer Law.
  • (c) To the extent permitted by law, where Nuonic's liability is not excluded under Non-excludable Australian Consumer Law, Nuonic's liability for a claim arising out of the Services is limited to providing the Services again.

10. No Tax Advice

The Customer acknowledges and agrees that the Services do not include the provision of tax advice and that any information provided by Nuonic should not be relied upon as such. The Customer agrees and acknowledges that there are many factors and considerations which influence entitlement to Fuel Tax Credits beyond non-public road use and that the provision of the Services does not guarantee an entitlement to Fuel Tax Credits. The Customer's use of the Services for the purpose of claiming Fuel Tax Credits or for any other purpose is at the Customer's sole risk. The Customer should engage the Services of a qualified accountant or tax agent prior to making any application for Fuel Tax Credits.

11. Costs

Each party must pay its own costs of negotiating, preparing and executing this Agreement and fulfilling their respective obligations under this Agreement.

12. Status of Parties

The relationship between Nuonic and the Customer is that of principal and contractor. Nothing in this Agreement will be taken as constituting any relationship of employment, partnership, agency or joint venture between Nuonic and the Customer or any other person involved in the performance of the Services. The Customer has no authority to bind Nuonic or enter into contractual relations on behalf of Nuonic.

13. Force Majeure

  • (a) A party will be relieved of its obligations to the extent those obligations are prevented by a Force Majeure Event and for the duration of that Force Majeure Event.
  • (b) A party must immediately notify the other party of any Force Majeure Event and take all reasonable steps to resume the performance of its affected obligations as soon as reasonably possible.
  • (c) Each party may elect to terminate this Agreement if substantially all of a party's obligations are suspended by a Force Majeure Event for more than 30 days.

14. Notices

Any communication under or in connection with this document:

  • (a) (In writing) must be in writing;

  • (b) (Address) must be addressed as shown below (or as otherwise notified by that party to the other party from time to time): Nuonic

    Address: Suite 26, Level 4, 97 Boundary Street, West End, QLD 4101

    Email: accounts@nuonic.com.au

    Customer

    Address: As set out in the Agreement Specifics

  • (c) (Writing) must be in writing and given by the party making the communication or (on its behalf) by the solicitor for, or by any attorney, director, secretary or authorised agent of that party;

  • (d) (Delivery) must be delivered or posted by prepaid post to the address of the addressee, in accordance with clause 14(b); and

  • (e) (Receipt) will be deemed to be duly received:

    • (i) (in the case of prepaid post) on the third day after the date of posting;
    • (ii) (in the case of email) on the date and time at which it enters the addressee's information system (as shown in a confirmation of delivery report from the sender's information system, which indicates that the email was sent to the email address of the addressee notified); and
    • (iii) (in the case of delivery by hand) on delivery,

but if the communication is taken to be received on a day that is not a Business Day or after 5:00 pm, it is taken to be received at 9:00 am on the next Business Day.

15. Termination

  • (a) A party may terminate this Agreement:
    • (i) if the other party has breached a material term of this Agreement and is not able to cure such breach within 30 days of receiving notice of such breach from the non-breaching party;
    • (ii) if the other party is subject to an Insolvency Event; or
    • (iii) for convenience without reason or liability by giving the other party at least 30 days' prior written notice of such termination.
  • (b) The termination or expiry of this Agreement does not affect:
    • (i) any rights accrued by a party prior to termination;
    • (ii) obligations of confidentiality, which shall continue for a period of 2 years after termination; or
    • (iii) the operation and continuation of any other Vehicle Data Analysis Agreement then in existence and which has not expired or has not been terminated, and any such other Vehicle Data Analysis Agreement will continue to have effect in accordance with its terms.

16. General

16.1 This Agreement is governed by and shall be construed in accordance with the laws applying in the State of Queensland, Australia. Any claims or disputes in connection with this Agreement shall be brought in the courts having jurisdiction in Queensland.

16.2 This Agreement can only be amended, supplemented, replaced or novated by another document signed by the parties.

16.3 This Agreement may be executed in any number of counterparts and by the parties on separate counterparts. Each counterpart constitutes an original of this document, and all together constitute one document.

16.4 This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.

16.5 Any right that a person may have under this Agreement is in addition to, and does not replace or limit, any other right that the person may have.

16.6 Any provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.

16.7 The Customer may not assign or transfer in whole or in part its rights and obligations under this Agreement without the prior written consent of Nuonic.