General Conditions

1. Background

  • Octant has developed and owns the rights to Octant AI, a cloud-based, artificial intelligence programme which provides real time actionable insights and predictions in relation to construction projects, to assist its customers in mitigating project time and cost overruns.
  • The Customer ’s business includes construction projects and the Customer wishes to use Octant AI to assist it in managing its projects.

2. Octant AI Licence

  • Octant AI owns and retains all right, title and ownership of the Octant AI Products.
  • Octant AI grants to the Customer a non-transferrable, non-sublicensable licence to utilise the Octant AI Products during the Term in connection with the operation of the Customer’s business, in consideration for payment by the Customer of the Licence Fees.

3. Ownership of Intellectual Property

  • Subject to clause 4, all Customer Data and any Intellectual Property Rights in it is owned by the Customer and shall vest in the Customer on creation.
  • The Customer acknowledges and agrees that Octant AI, including all enhancements, modifications, improvements or developments made by a party to it, or directly or indirectly derived or resulting from the use of Products under this Agreement, shall remain the exclusive property of Octant and is used under exclusive licence from Octant.
  • Clause 3 will survive the termination or expiration of this Agreement.

4. Confidentiality and use of Customer Data

  • Subject to clause 2, unless it is in accordance with this Agreement, neither the Customer nor Octant shall use, exploit or disclose, or permit any of its officers, employees, agents, contractors, or related bodies corporate to:
  1. use, exploit or disclose to any person any Confidential Information disclosed to it by the other party under this Agreement; or
  2. reverse engineer, dissemble or decompile any prototypes, software or other tangible objects, including Octant AI, which embody the Confidential Information disclosed to it by the other party under this Agreement; or
  3. resell, lease, licence or provide Octant AI in any way not expressly permitted through this Agreement.
    • Clause 1 does not apply to any Confidential Information which:
  4. is generally available to the public (other than as a result of the wrongful disclosure by the other party); or
  5. is required to be disclosed by any law.
    • All Customer Data provided by the Customer for use by Octant AI will remain confidential to the Customer. All Customer Data will be stored separately by Octant to all other customers’ data in a secure location, to be permanently deleted by it within 30 days after termination of this Agreement.
    • Clauses 1, 4.2 and 4.3 survive the termination or expiration of this Agreement.

5. Billing and Payments

  • At the commencement of each month Octant AI will bill the Customer for the Licence Fees by issuing a tax invoice to the Customer’s authorised representative’s email address. All accounts are payable within 30 days of the invoice date.
  • All Licence Fees are exclusive of GST, and the applicable GST will be added to the invoice amount in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  • To continue accessing the Octant AI Products, the Customer must make timely payments. Lack of payment or delayed payment of the License Fees may incur a suspension of access to the Products until payment is received.
  • At its sole discretion, Octant AI may modify the terms of Billing and Payments in writing to the Customer. Modifications to these Billing and Payment terms may takes forms including, but not neccessarily limited to, the following: promotion codes, written contract variations, other contract amendments from time to time.

6. Limitation of Liability

  • Except as otherwise expressly stated in this Agreement, neither Party, its respective officers, agents, employees, consultants, related bodies corporate,  subcontractors nor vendors, is liable to the other Party or its respective officers, agents, employees, consultants, related bodies corporate,  subcontractors or vendors, whether under any cause or causes of action, whether in tort, contract, equity, statute, or on any other basis in law or equity (including but not limited to claims and liability under or for breach of contract, negligence, professional errors or omissions, misrepresentation, strict liability, indemnity and breach of express or implied warranty) for:
  1. loss of actual anticipated revenue or profits, business interruption, loss of use of property, loss by reason of shutdown or non-operation, loss of business (including financing) opportunity or productivity, increased capital or operating costs or increased financing costs;
  2. any type or amount of indirect, special or consequential damages, howsoever claimed, calculated or characterised;
  3. any punitive, aggravated or exemplary damages; and
  4. any interest or costs orders calculated on any basis.
  • Notwithstanding any other provisions of this Agreement, the total and aggregate liability of either Party under this Agreement, under any cause of action including in contract, tort (including negligence) or otherwise is limited to fifty percent of the value of the Licence Fees paid by the Customer.
  • Clauses 1 and 6.2 do not apply to claims or liability for:
  1. fraud;
  2. gross negligence (being an act or omission done, or omitted to be done with reckless disregard for the consequences of the act or omission);
  3. death or injury caused by breach of this Agreement or the negligence of either Party, its employees or agents;
  4. infringement of any Intellectual Property Rights, or breach of confidence caused by or arising out of a Party’s intentional, reckless or negligent act and/or omission.
  5. liability which by law cannot be contracted out of.

7. Termination for Convenience and Return of Customer’s Data

  • Subject to clause 2, this Agreement shall be effective from the Commencement Date and shall continue for the Term. The Term may be extended by mutual agreement between the parties at least 30 days prior to expiry of the Term, in which event the provisions of this Agreement will continue to apply to the extended Term.
  • This Agreement may be terminated by the Customer for convenience after the 6-month period beginning on the Commencement Date, by providing 14 days’ notice in writing to Octant at any time until (but excluding) the day that is 7 months after the Commencement Date, upon which the Agreement shall continue for its full Term.
  • On the termination or expiry of this Agreement however caused the Customer shall pay to Octant AI all sums due to Octant AI up to and including the date of expiry or Within 14 days following termination and subject to the payment of all sums due in full, the Customer may request a single encrypted copy of all Customer Data as at the date of termination, which shall be sent to the Customer by secure means, and at Octant AI’s expense.

8. General

  • If any provision of the Agreement is held to be unenforceable, invalid, void or illegal for any reason, then that provision will to the extent possible be deemed to have been severed and omitted from the Agreement without affecting the enforceability, validity or legality of the remaining provisions (or parts of those provisions) which will continue in full force and effect.
  • Neither Party shall, for the duration of this Agreement, and for a period of six months following termination, directly or indirectly induce or attempt to induce any employee of the other Party who has been engaged in connection with this Agreement to leave the employment of that other
  • Consent by either Party to a breach of any express or implied term of this Agreement shall not constitute consent to any subsequent
  • This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and supersedes all prior discussions, understandings and agreements between the Parties and their agents and all prior representations and expressions of opinion by any Party to the other
  • Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, nor authorise any Party to make or enter into any commitments for or on behalf of any other
  • Neither Party shall be responsible for any failure or delay in complying with the terms of this Agreement (including but not limited to delays in delivery), where the failure or delay result from events beyond that Party’s control and which cannot be mitigated using reasonable commercial endeavours. Where such events continue for more than 60 days, either Party may terminate on giving notice to the other.
  • Any legal notices or demands shall be in writing and sent by registered post or delivered by one Party to the other at the most recently specified Notices delivered by courier shall be deemed to have been received upon the signing by the recipient of the confirmation note of the courier.
  • This Agreement is to be governed by the laws of the Commonwealth of Australia. Each party submits to the non-exclusive jurisdiction of the courts of Queensland.

9. Definitions

In this Agreement the following terms have the following defined meanings:

Agreement means this deed between Customer and Octant AI.

Commencement Date means the commencement date set out at Item 1 of the Specific Conditions.

Confidential Information means all information of whatever kind or nature which one Party discloses to the other whether in tangible or visible form, as data or electronic files, film or video or information that is communicated orally, and is either identified or marked as being confidential or which by its nature:

  1. is clearly of a confidential nature or amounts to a trade secret, or is commercially sensitive,
  2. may not be readily available to others engaged in a similar business to that of the discloser, and is not in the possession of the recipient at the date of receipt from discloser,
  3. is received in circumstances which imply confidentiality; or
  4. which would, if disclosed contrary to the terms of this Agreement, be damaging to the business of the discloser.

By way of illustration, and without limitation, the Customer acknowledges that the results of any performance tests of the Products, constitute Confidential Information, and Octant AI acknowledges that the Customer Data is the Confidential Information of the Customer.

Customer Data means the data agreed in writing between the parties, in the form agreed to (as amended from time to time) owned by the Customer, and as the context requires includes data:

  1. inputted by the Customer, or Octant AI on behalf of the Customer for the purpose of and required for, using the Products; and
  2. output by Octant AI, including its reports and predictions on Customer projects and/or activities.

GST means Goods and Services Tax payable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property Rights means any intellectual or industrial property rights, whether registered or unregistered, in Octant AI or other subject matter including:

  1. all patents, trade-marks, copyright, designs, trade secrets, know-how and other rights in any design, materials, processes, documents and methods of working; and
  2. all licences and other rights to protect confidential information in, to use or to grant the use of those items in a);

but excluding Moral Rights.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

Octant AI means:

  1. an artificial intelligence machine that learns from project empirical data, scans project data in near-real time, builds knowledge and uses this to make forecasts in relation to projects relevant to this agreement, owned by Octant AI Pty Ltd and used under exclusive licence by Octant AI; and
  2. means, as the context of this Agreement requires, the specific, cloud-based Products provided to the Customer under this Agreement.
  3. means as the context of this Agreement requires, Endeavour Programme Pty Ltd trading as Octant AI and related Parties.

Party means the parties to this Agreement, any Related Body Corporate to each of them, and any of their agents, officers, employees and contractors.

Product means the Octant AI product(s) and module(s) provided to the Customer under this Agreement as set out in Item 4 of the Specific Conditions.

Licence Fees means the fees payable by the Customer to Octant AI for the provision and use by it of the Products, as set out and in the manner calculated at Item 5 of the Specific Conditions.

Related Body Corporate has the same meaning as under the Corporations Act 2001 (Cth).

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