1. Interpretation
1.1 In this Agreement:
Additional Goods means hardware or equipment specified in a Sales Order.
Additional Services means any services, including any consultancy services (e.g. analysis of data), specified in a Technical Proposal.
Agreement means the agreement comprising these Conditions and, to the extent incorporated into the agreement by way of these Conditions, the Technical Proposal and any Sales Order.
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended or replaced from time to time.
Business Day means a day that is not a Saturday, a Sunday or a gazetted public holiday in Melbourne, Victoria.
Commencement Date means the date on which the Technical Proposal is signed by the Customer.
Conditions means the terms and conditions set out in this document.
Confidential Information has the meaning given in clause 18.3, subject to clause 18.4.
Customer means the customer specified in the Technical Proposal.
Customer Support Services means remote support for the Software between 9:00am and 5:00pm on a Business Day.
Delivery means delivery of the Products to the Location (or Locations).
Delivery Date(s) means the date (or dates) specified in the Technical Proposal or Sales Order (as applicable) or otherwise agreed between the parties in writing on which the Products are to be Delivered.
Extended Warranty Fee means the fee payable for any extension of the warranty in respect of any Purchased Products, if any, specified in the Technical Proposal.
Fatigue Risk Profiler Services means the provision of access to OPTALERT Australia’s fatigue risk profiler system by Customer personnel nominated by the Customer to OPTALERT Australia.
Fees means the Rental Fee, Implementation Fee, Product Fees, Ongoing Reporting Services Fee, Ongoing Fatigue Risk Profiler Services Fee, Ongoing Licence Fee, Extended Warranty Fee, Upgrade Fees and any other fees specified in the Technical Proposal or any Sales Order, including in relation to any Services or Additional Goods (each as applicable).
Generated Data means:
(a) data generated or collected by OPTALERT Australia’s Products by OPTALERT Australia in carrying out its obligations under this Agreement; and
(b) reports generated from the data by OPTALERT Australia in providing the Reporting Services under this agreement,
Hardware means each OPTALERT processing unit, visible indicator, speaker, repeater, connection point, cabling, pair of OPTALERT glasses and item of hardware for transmission of vehicle event data for Reporting Services (to the extent such hardware is required to transmit data for the purposes of providing the level of Reporting Services purchased by the Customer, as specified in the Technical Proposal or Sales Order (as the case may be)).
Implementation means the implementation of the Hardware and Software at the Location or Locations by OPTALERT Australia personnel as specified in the Technical Proposal or a Sales Order (as applicable), and includes fitting of OPTALERT Australia glasses.
Implementation Date(s) means the date (or dates) specified in the Technical Proposal or Sales Order (as applicable) or otherwise agreed between the parties in writing on which the Products are to be Implemented.
Implementation Fee means the fee for Implementation specified in, or calculated in accordance with, the Technical Proposal or a Sales Order (as applicable).
Initial Term means the initial term specified in the Technical Proposal.
Intellectual Property Rights means all intellectual property rights existing anywhere throughout the world, including but not limited to the following rights:
(a) patents, copyright, rights in circuit layouts, designs, trademarks, service marks, business names, trade names and any right to have confidential information kept confidential; and
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a),
whether or not such rights are registered or capable of being registered.
Licence means the licence granted by OPTALERT Australia under clause 4.
Location means the location or locations specified in the Technical Proposal or otherwise agreed in writing.
Maintenance Release means a release of the Software which corrects faults or improves performance or provides additional functionality and is made available by OPTALERT Australia from time to time (but does not include an Upgrade).
Network Operator means a mobile or wireless network operator whose services or infrastructure are used (directly or indirectly) by OPTALERT Australia in the provision of any of the Services.
Ongoing Fatigue Risk Profiler Services Fee means the ongoing fee for the provision of Fatigue Risk Profiler Services, if any, specified in or calculated in accordance with the Technical Proposal or Sales Order (as applicable).
Ongoing Licence Fee means the ongoing licence fee, if any, specified in or calculated in accordance with the Technical Proposal.
Ongoing Reporting Services Fees means the fees for the provision of Reporting Services, if any, specified in or calculated in accordance with the Technical Proposal or Sales Order (as applicable).
OPTALERT Australia means OPTALERT Australia Pty Ltd ACN 121 747 591 of Level 6, 3 Newton Street, Cremorne VIC 3121, Australia.
OPTALERT Australia IP has the meaning given in clause 16.1.
Payment Date has the meaning given in clause 11.5.
PPSA means:
(a) the Personal Property Securities Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and
(b) any amendment made at any time to any other legislation as a consequence of the PPSA.
Products means the OPTALERT fatigue monitoring system (comprising the Hardware and the Software) and any Additional Goods.
Product Fees means the fees for the purchase of the OPTALERT fatigue monitoring system (comprising the Hardware and the Software) specified in or calculated in accordance with the Technical Proposal (if applicable).
Purchased Products means the Products specified in the Technical Proposal or any Sales Order as being purchased by the Customer, if any.
Renewal Term has the meaning given in clause 2.2.
Rental Fee means the monthly rental fee specified in the Technical Proposal (if applicable).
Rented Products means the Products specified in the Technical Proposal or any Sales Order as being rented by the Customer, if any.
Reporting Services means transmission of reports generated from vehicle system data to Customer personnel nominated by the Customer to OPTALERT Australia on a schedule agreed between the parties from time to time.
Sales Order has the meaning given to that term in clause 9.
Service Fees means the fees specified in or calculated in accordance with the Technical Proposal or Sales Order (as applicable) for the provision by OPTALERT Australia of any Services.
Services means the Implementation, Customer Support Services, any Training Services and any Additional Services.
Software means the object code versions of:
(a) the OPTALERT vehicle operating system and the OPTALERT algorithm, as installed on the OPTALERT processing unit;
(b) the OPTALERT download software; and
(c) the OPTALERT fitment software,
including any Maintenance Releases and Upgrades made available to the Customer under this Agreement from time to time.
Term means the Initial Term and any Renewal Terms, unless this Agreement is terminated earlier in accordance with its terms.
Technical Proposal means the Technical Proposal to which these Conditions are attached.
Training Services means the provision of a continual improvement program designed to raise the level of awareness across the Customer’s organisation of driver fatigue issues.
Upgrade means a major new release or version of the Software which corrects faults or improves performance or provides additional functionality and is made available by OPTALERT Australia from time to time.
Upgrade Fee means the fee for the provision of an Upgrade, if any, specified in or calculated in accordance with the Technical Proposal or any Sales Order (as applicable).
User Documentation means:
(a) the supporting documentation supplied under this Agreement for the Products, containing technical information relating to, and describing the functions and operations of, the Products; and
(b) any other documentation supplied by OPTALERT Australia to the Customer from time to time in relation to the Customer’s use of the Products,
in each case, as updated from time to time.
Website means the website through which the Fatigue Risk Profiler Services are delivered, being http://www.optalertreports.com or any other website nominated by OPTALERT Australia in writing from time to time.
writing includes facsimile transmission, email and comparable means of communication.
2. Term
2.1 This Agreement commences on the Commencement Date and continues for the Initial Term, unless this Agreement is terminated earlier in accordance with clause 20.
2.2 Following the expiry of the Initial Term, this Agreement will automatically extend for further 12 month periods (each a Renewal Term), unless:
(a) not less than three months prior to the expiry of the Initial Term or the then-current Renewal Term (as the case may be), the Customer notifies OPTALERT Australia, or OPTALERT Australia notifies the Customer, in writing that it does not wish to renew this Agreement for a further term (Termination Notice); or
(b) this Agreement is terminated earlier in accordance with clauses 11.8(a) or 20.
3. Supply of Purchased Products and rental of Rented Products
3.1 Provided the Customer has paid the Product Fees, OPTALERT Australia agrees to supply the Purchased Products in accordance with the terms set out in this Agreement.
3.2 Subject to monthly payment of the Rental Fee, OPTALERT Australia agrees to rent the Rented Products to the Customer in accordance with the terms set out in this Agreement.
3.3 The quantity for each of the Purchased Products and Rented Products is the quantity set out in the Technical Proposal or Sales Order (as applicable).
3.4 OPTALERT Australia reserves the right to make any changes in the specification of the Products which are required to conform with any applicable safety or other statutory requirements or which do not materially affect their quality or performance, whether the Products are supplied to OPTALERT Australia’s specifications or otherwise.
4. Licence
4.1 Subject to the payment of the Product Fees and/or the monthly payment of the Rental Fee (as applicable) and the payment of the Implementation Fee (if any) and the Ongoing Licence Fee (if any) in accordance with this Agreement, OPTALERT Australia:
(a) grants to the Customer a non-exclusive, non-transferable licence to use the:
(i) Software; and
(ii) User Documentation,
during the Term in accordance with this Agreement solely in connection with use of the Products; and
(b) agrees to make available to the Customer Maintenance Releases (if any).
4.2 If an Upgrade Fee applies then, subject to payment of that Upgrade Fee for each Upgrade, OPTALERT Australia agrees to make that Upgrade available to the Customer.
5. Reporting Services and Fatigue Risk Profiler Services
5.1 Subject to payment of the Product Fees and/or the Rental Fees (as applicable) and the Ongoing Reporting Services Fees, OPTALERT Australia will provide to the Customer the Reporting Services to the level specified in the Technical Proposal or a Sales Order (as applicable) during the Term.
5.2 Subject to the payment of the Ongoing Fatigue Risk Profiler Services Fee, OPTALERT Australia will provide to the Customer, through the Website, the Fatigue Risk Profiler Services specified in the Technical Proposal or a Sales Order (as applicable) during the Term.
5.3 If the Customer purchases any Fatigue Risk Profiler Services, the Customer will be issued with the number of accounts specified in the Technical Proposal or any Sales Order with an associated user name and password to access the Website. The Customer is responsible for maintaining the confidentiality of that user name and password, and is fully responsible for all conduct carried out under the provided user name and account.
5.4 Subject to clause 18, the Customer acknowledges that OPTALERT Australia may use Generated Data for any purpose.
5.5 OPTALERT Australia acknowledges that the Customer may use Generated Data solely for, and the Customer must ensure that its personnel use that data solely for:
(a) the purposes of the individual to whom the data relates; and
(b) the Customer’s own business purposes.
6. Delivery and Implementation
6.1 Subject to the Customer having paid the Product Fees as required under clause 1 and/or the first monthly Rental Fee as required under clause 3.2 (as applicable), OPTALERT Australia will Deliver the Products on the Delivery Date(s) and Implement the Products on the Implementation Date(s) at the Location(s).
6.2 If Delivery or Implementation does not occur on the applicable date(s) as a result of the Customer’s unavailability (or the unavailability of any required Customer personnel or vehicles), OPTALERT Australia may charge the Customer an additional fee for Delivery or Implementation (as the case may be) to recover the reasonable costs incurred by OPTALERT Australia as a result of that unavailability.
7. Risk and Property
7.1 Risk of damage to or loss of the Products will pass to the Customer at the time the Products leave OPTALERT Australia’s premises.
7.2 Notwithstanding Delivery or Implementation, and the passing of risk in the Products or any other provision of these Conditions, title in the Hardware comprised in any Purchased Products will not pass to the Customer until OPTALERT Australia has received in cash or cleared funds payment in full of all Fees of which payment is due at the time of Implementation.
7.3 Notwithstanding Delivery or Implementation, and the passing of risk in the Products or any other provision of these Conditions, title in the Rented Products will not pass to the Customer and the Customer has no interest in the Products other than as lessee.
7.4 Until such time as title in the Hardware comprised in any Purchased Products passes to the Customer, and in the case of Rented Products at all times, the Customer will hold the Products as OPTALERT Australia’s fiduciary agent and bailee, and must keep the Products properly stored, protected and insured and identified as OPTALERT Australia’s property.
7.5 The Customer will not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of OPTALERT Australia under clause 7.2 or 7.3 (as applicable), and if the Customer does so, all moneys owing by the Customer to OPTALERT Australia (without prejudice to any other right or remedy of OPTALERT Australia) will immediately become due and payable and the security interest in the Products will become enforceable.
7.6 If the Customer breaches this Agreement, OPTALERT Australia may require the Customer to deliver up to OPTALERT Australia any Products which remain the property of OPTALERT Australia under clause 7.2 or 7.3 (as applicable) and, if the Customer fails to do so promptly, the Customer authorises OPTALERT Australia to enter any premises of the Customer or any third party where the Products are stored and repossess the Products.
7.7 If any Products delivered to or repossessed by OPTALERT Australia under clause 7.6 are not in the same condition (excepting fair wear and tear) when they are returned to or repossessed by OPTALERT as they were in when they were Delivered by OPTALERT, OPTALERT may charge the Customer an additional fee to repair or replace these Products.
8. Services
8.1 Subject to payment of the Product Fees and/or the Rental Fees (as applicable), OPTALERT Australia will provide the Customer Support Services.
8.2 Subject to payment of the applicable Fees (as set out in the Technical Proposal or the applicable Sales Order), OPTALERT Australia will provide to the Customer any Training Services specified in the Technical Proposal or a Sales Order (as applicable).
8.3 Notwithstanding any provision of this Agreement, the Customer acknowledges and agrees that OPTALERT Australia has no obligation to provide any services to correct:
(a) problems or errors in the operation of the Products arising from defects in the operation of any other hardware or software;
(b) problems or errors in the operation of the Products arising from a failure to operate it in accordance with the User Documentation (or any other directions given by OPTALERT Australia);
(c) problems or errors caused by work performed on related systems by third parties not in accordance with instructions from OPTALERT Australia;
(d) problems or errors caused by alterations or amendments made to the Software, or modifications made to the Hardware or Additional Goods, performed by a party other than OPTALERT Australia or its authorised subcontractors; and
(e) any other problems or errors caused by unauthorised or improper use of the Products.
9. Additional Goods and Services
9.1 If the Customer requires any additional hardware, equipment or services, the parties may agree and sign a sales order setting out the relevant information, including details of those goods or services and the fees and charges applicable to those goods or services (Sales Order). To avoid doubt, OPTALERT Australia is not obliged to enter into any Sales Order with the Customer. These Conditions will apply to any Additional Goods or Additional Services provided under each executed Sales Order.
10. Management
10.1 On or promptly after the Commencement Date, each of OPTALERT Australia and the Customer must appoint an individual to act as its key contact person to discuss the Products, Services and this Agreement (Project Manager).
10.2 The Project Managers will meet every three months during the Term in Melbourne, Australia (or such other place as is agreed in writing between the parties) to discuss the relationship and the Agreement. If the parties meet in person, each party will bear their own costs for travelling to and attending the meetings contemplated by this clause 2.
10.3 The Project Managers must co-ordinate an annual site visit to the Locations by OPTALERT Australia personnel, for the purposes of assisting the Customer with its use of the Products, if requested by the Customer.
11. Payment
11.1 OPTALERT Australia may invoice the Customer for:
(a) the Fees, other than the Rental Fees (which are payable in accordance with clause 11.5) and the Fees payable in respect of any Additional Goods or Additional Services – in accordance with the Technical Proposal;
(b) the Fees payable in respect of any Additional Goods or Additional Services – in accordance with the applicable Sales Order; and
(c) other amounts payable under this Agreement – as and when the Customer’s liability to pay any such amount arises.
11.2 Where specified in the Technical Proposal or a Sales Order, OPTALERT Australia may invoice the Customer for all reasonable expenses incurred by OPTALERT Australia or its personnel in providing Services to the Customer under this Agreement.
11.3 Each invoice issued by OPTALERT Australia is due and payable on the due date provided on that invoice.
11.4 Time is of the essence in respect of payment of all amounts due under this agreement.
11.5 The Rental Fee, if any, for the first calendar month of the Term is due and payable on the Commencement Date and for subsequent calendar month of the Term is due and payable on the same date of each subsequent calendar month during the Term (each a Payment Date). For the avoidance of doubt, the Rental Fee is payable even if the Product is not used.
11.6 If specified in the Technical Proposal or otherwise requested by the Customer or OPTALERT Australia, the Customer will execute in favour of OPTALERT Australia an automatic payment authority in the form attached to these Conditions for the payment of the Rental Fee and any other Fees or other amounts payable by the Customer under this Agreement.
11.7 OPTALERT Australia may deduct payments under the automatic payment authority executed by the Customer under clause 11.6 as follows:
(a) the Rental Fee – on or around each Payment Date; and
(b) any other Fees or other amounts payable under this Agreement – as and when the Customer’s liability to pay any such amounts arises.
11.8 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to OPTALERT Australia, OPTALERT Australia may (at OPTALERT Australia’s sole discretion):
(a) terminate this Agreement, repossess any Rented Products and revoke all licences granted under this Agreement;
(b) charge the Customer interest (both before and after any judgment) on the amount unpaid at the rate of five per cent per annum above the Australia and New Zealand Banking Group Reference Rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); and/or
(c) recover from the Customer, in addition to the outstanding payment, all costs incurred by OPTALERT Australia in collecting the outstanding payments including, without limitation, all legal costs (on a solicitor and own client basis) and all debt collection agency costs.
12. GST
12.1 Any consideration to be paid or provided (including but not limited to the price of the Products) for any supply made or to be made by OPTALERT Australia under or in connection with this Agreement, has, except to the extent otherwise specifically provided in writing, been determined without regard to any GST payable on that supply by OPTALERT Australia (GST exclusive consideration).
12.2 To the extent that any supply made or to be made by OPTALERT Australia under or in connection with this Agreement is a taxable supply, the GST exclusive consideration for that supply must be increased by, and OPTALERT Australia must be paid by the Customer, an additional amount on account of GST, to be calculated by multiplying the GST exclusive consideration for the relevant supply by the prevailing GST rate.
12.3 The additional amount calculated under clause 12.2 must be paid to OPTALERT Australia by the Customer, without any set off or deduction from any other amount at the same time and in the same manner as the GST exclusive consideration must be paid or provided.
12.4 If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the supply to which that loss, cost or expense relates, and then increased in accordance with clause 12.2 (if applicable).
12.5 Expressions defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) and used in this clause 12 have the same meanings as given to them in the GST Act.
13. Warranties and Limitation of Liability
13.1 Subject to clauses 13.2 and 13.5 to 13.11, OPTALERT Australia warrants that for a period of 12 months from the Delivery Date, the Purchased Products will be free from defects that have a material impact on their functionality or performance.
13.2 If a defect arises in a Purchased Product and the Customer notifies OPTALERT Australia of that defect not more than 20 Business Days after becoming aware of the defect, within the applicable 12 month period, OPTALERT Australia will make all necessary repairs or, at OPTALERT Australia’s sole discretion, replace the defective part of the Purchased Product or refund the price of the defective part of the Purchased Product, at no charge to the Customer.
13.3 Subject to clauses 13.4 to 13.11, for each month in which the Rental Fee has been paid by the due date in clause 11.5, OPTALERT Australia warrants that each Rented Product will be free from defects that have a material impact on their functionality or performance throughout the Term.
13.4 If a defect arises in a Rented Product and the Customer notifies OPTALERT Australia of that defect not more than 20 Business Days after becoming aware of the defect OPTALERT Australia will make all necessary repairs or, at OPTALERT Australia’s sole discretion, replace the Rented Product or refund any Rental Fees paid in advance in respect of the Rented Product, at no charge to the Customer.
13.5 The warranties in clauses 13.1 and 13.3 will not apply in respect of any defect in the Products arising from:
(a) fair wear and tear;
(b) wilful damage or negligence by any person other than OPTALERT Australia; or
(c) Implementation by anyone other than OPTALERT Australia or a party authorised and approved by OPTALERT Australia, or configuration, commission or use of the Products other than strictly in accordance with this Agreement (including clause 17) or the User Documentation, including without limitation, defects caused as a result of a failure to service or maintain the Products in accordance with OPTALERT Australia’s instructions, or caused by rough or negligent treatment or use of the Products.
13.6 Other than as expressly provided in these Conditions and to the extent permitted by law, all warranties (whether as to the quality, fitness for purpose or any other matter, including rights to use intellectual property), conditions, guarantees, rights, remedies, liabilities and other terms implied by statute, the common law, equity, trade custom, usage or otherwise (Implied Terms) are expressly excluded from this Agreement. If a supply under this Agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law, nothing contained in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law.
13.7 Any claim by the Customer which is based on any deficiency in the quantity of the Products supplied must be notified to OPTALERT Australia in writing within 48 hours from the applicable Delivery Date.
13.8 To the extent permitted by law (including, in the case of claims, losses, damages, costs or expenses arising out of the breach of any Implied Term, the Australian Consumer Law), the total liability of OPTALERT Australia and its related entities, and the Customer’s exclusive remedy for any and all claims, losses, damages, costs or expenses arising directly or indirectly out of any cause whatsoever in connection with the supply of the Products (including their design, suitability for use, Implementation or operation), the provision of any Services, Reporting Services or Fatigue Risk Profiler Services, or the use of the Website, whether based in contract, negligence, or otherwise, is expressly limited to, at OPTALERT Australia’s sole discretion:
(a) in the case of goods, the replacement of the goods (or that part of the goods in question) or the repair of the goods, the supply of equivalent goods or the refund to the Customer of the price of the goods (or a proportionate part of the price) or the payment by OPTALERT Australia of the cost of replacing, repairing or acquiring equivalent goods; and
(b) in the case of services, the resupply of the services or the cost of having the services resupplied.
13.9 To the extent permitted by law:
(a) OPTALERT Australia is not liable to the Customer for any consequential or indirect loss or damage (whether for loss of profit or business, loss of or damage to character, loss of opportunity, loss of goodwill or otherwise) which arises out of or in connection with the Products, the Services, the Website or otherwise in connection with this Agreement including any breach of this Agreement, or any negligence by or on behalf of OPTALERT Australia; and
(b) OPTALERT Australia’s total aggregate liability (including liability for negligence) for all claims, losses, damages, costs or expenses arising directly or indirectly under or in connection with the Products, the Services or otherwise in connection with this Agreement, is limited to the total amount paid by the Customer to OPTALERT Australia under this Agreement.
13.10 The information contained in any catalogue, brochure, operating instructions, product manual or advertisement of OPTALERT Australia is, to the best of OPTALERT Australia’s knowledge, true and correct. Any illustrations, specifications and suggestions regarding the use of the Products made in such catalogue, brochure, operating instructions, product manual or advertisement and in any OPTALERT Australia sample Products are intended solely for illustration, should not be relied on and are made without any guarantees, express or implied and do not form part of this Agreement. To the extent permitted by law, OPTALERT Australia disclaims any liability incurred in connection with the use of any information or suggestions made in such brochure, operating instructions, product manual or advertisement and any reliance thereon.
13.11 Without limiting clause 13.9, OPTALERT Australia will not be liable to the Customer or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of OPTALERT Australia’s obligations under the Agreement, if the delay or failure was due to:
(a) the failure or delay of the Customer; or
(b) environmental or other factors outside of the reasonable control of OPTALERT Australia, including the infrastructure and services provided by Network Operators
(c) any cause beyond OPTALERT Australia’s reasonable control (including any transport related circumstance or event that is unforeseeable and external to OPTALERT Australia).
13.12 OPTALERT Australia does not represent or warrant that the Website is free from computer viruses or any other defect or error which may affect the Customer’s software or systems or the uninterrupted, continuous and error free operation of or communication with the Website and the continuous provision of the Fatigue Risk Profiler Services. The Customer is responsible for protecting its own software and systems by installing and implementing appropriate security and system checks.
14. Extended warranty
14.1 Subject to payment of the applicable Extended Warranty Fee, the period of the warranty provided under clause 13.1 will be extended for the additional period specified in the Technical Proposal or otherwise agreed in writing.
15. Indemnities
15.1 The Customer agrees to indemnify and hold OPTALERT Australia harmless against all claims, losses, damages, costs or expenses, arising directly or indirectly out of any claims, suits or actions of any kind whatsoever made or brought against OPTALERT Australia, including those brought by the Customer, for injury to or death of any and all persons and for damage to property (including any Rented Products) arising out of or sustained in connection with:
(a) the Customer’s failure to comply with applicable federal, state or local laws, ordinances, regulations, rules, codes or standards; or
(b) the operation or use of the Products by the Customer or any other work performed under or in connection with this Agreement, whether based upon contract, negligence, other tort or otherwise, unless such claims, suits or actions arise out of OPTALERT Australia’s breach of warranty, negligence or wilful misconduct (in which event OPTALERT Australia’s liability is limited as set out in clause 13 above).
16. Intellectual Property Rights
16.1 The Customer acknowledges and agrees that all existing and future Intellectual Property Rights that relate to or subsist or reside in the Products (including any improvements to the Products and any data or information generated through use of the Products by, or in any way relating to, the Customer, its personnel or any other person) (OPTALERT Australia IP) is owned by OPTALERT Australia or its licensors.
16.2 If, in contravention of clause 17.2(b), the Customer modifies or authorises the modification of any Product, the Customer acknowledges and agrees that all copyright and other Intellectual Property Rights in the contravening modifications (including any data or information generated through use of the modifications by, or in any way relating to, the Customer, its personnel or any other person) will automatically be assigned to OPTALERT Australia on their creation. To facilitate this, the Customer irrevocably assigns to OPTALERT Australia any existing or future OPTALERT Australia IP that the Customer may have or may otherwise have acquired in the Products (including any improvements to the Products and any data or information generated through use of the modifications by, or in any way relating to, the Customer, its personnel or any other person). If OPTALERT Australia elects not to terminate this Agreement for the Customer’s breach, those modifications will be included in the Licence, from the time of creation of those modifications.
16.3 Without limiting clause 16.1, the Customer acknowledges and agrees that the materials displayed on the Website, including without limitation all text, photographs, illustrations, artwork, graphical content, names, logos and trade marks are the property of OPTALERT Australia or its licensors. Except to the extent permitted under clause 5.5, the Customer agrees not to reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or communicate any such material to any third party without OPTALERT Australia’s prior written consent.
17. Use of Software and Website
17.1 The Customer must:
(a) use the Software and the Website only for its internal business purposes;
(b) comply with all reasonable directions issued by OPTALERT Australia regarding use of the Software and the Website;
(c) use the Software and the Website in accordance with the User Documentation; and
(d) ensure that all Customer personnel who use the Software or the Website are properly trained in the operation of the Software or the Website (as applicable).
17.2 The Customer must not, and must not allow any person other than OPTALERT Australia to:
(a) copy the Software or the User Documentation;
(b) alter, modify, tamper with, decompile, disassemble, reverse engineer or attempt to reverse engineer the Software or otherwise attempt to derive the Software’s source code from the object code, except to the extent permitted by applicable law;
(c) sell, rent, lease, sub-license, assign or otherwise transfer the Software to any person;
(d) demonstrate the Software or the Website or the use of either of them to a person without OPTALERT Australia’s written consent; or
(e) use the Software to develop, or combine the Software with, any other software.
17.3 The Customer must not provide or otherwise disclose OPTALERT Australia’s drawings, designs and samples to third parties or re-engineer or dismantle any of the Products for the purpose of studying the engineering of any of the Products or copy, decompile, disassemble, electronically transfer, or translate into another computer language any software embedded or otherwise integrated in the Products or the Website.
18. Confidentiality
18.1 Each party (Recipient) must keep Confidential Information of the other party (Disclosing Party) confidential, only use it for the purposes of this Agreement and not disclose it or allow it to be disclosed to any third party.
18.2 The obligations of confidentiality under these Conditions do not extend (whether before or after this Agreement is formed) to disclosure by the Recipient:
(a) to a related body corporate of the Recipient, or to a bank or other lending agency to the extent necessary for arranging financing of its obligations under this Agreement;
(b) to the extent necessary to ensure the efficient operation of the Agreement;
(c) to the extent required by law or by the rules of a stock exchange, where the Recipient has taken all reasonable steps to oppose or prevent the disclosure and to limit, as far as possible, the extent of the disclosure (except that this paragraph does not require OPTALERT Australia to disclose any information of the kind referred to in section 275(1) of the PPSA); or
(d) to any adviser, consultant, expert, contractor or subcontractor who has a need to know (and only to the extent that each has a need to know) and who has been made aware that the Confidential Information must be kept confidential.
18.3 For the purposes of this clause 18, Confidential Information of a party (Disclosing Party) means all information and data of that party treated by that party as confidential, other than information that:
(a) is, or becomes part of, the public domain otherwise than by breach of this Agreement by either party;
(b) is obtained by the other party from a person (other than the Disclosing Party) lawfully entitled to disclose such information;
(c) is independently developed by the other party; or
(d) was in the other party’s possession prior to disclosure to it by the Disclosing Party.
18.4 Generated Data is deemed to be Confidential Information of the Customer only to the extent that the identity of any individual or the Customer can reasonably be ascertained from that Generated Data. The Customer acknowledges and agrees that OPTALERT Australia is free to use Generated Data that has been anonymised without restriction.
19. Audit
19.1 The Customer must:
(a) provide OPTALERT Australia and its officers, employees or professional advisers with access to the Customer’s premises, books, records, documents, reports, equipment and other property relevant to the performance of its obligations under this Agreement; and
(b) permit the taking of copies or extracts of such books, records, documents or reports to enable OPTALERT Australia and its officers, employees or professional advisers to conduct appropriate audits of all or any part of the Customer’s fulfilment of its obligations under this Agreement.
19.2 The Customer must bear the reasonable costs and effort of its compliance with this clause 19.
20. Termination
20.1 Without limiting any of the other provisions in these Conditions, OPTALERT Australia may terminate this Agreement by notice to the Customer:
(a) if the Customer breaches clause 11, 14, 16, 17 or 18;
(b) if the Customer breaches any other provision of this Agreement and fails to rectify the breach within 10 Business Days after receiving notice requiring it to do so;
(c) if the Customer challenges the validity or ownership of the OPTALERT Australia IP; or
(d) if any event referred to in clause 20.2 happens to the Customer.
20.2 The Customer must notify OPTALERT Australia immediately if:
(a) the Customer becomes bankrupt or insolvent or enters into liquidation (other than a voluntary liquidation for the purpose of reconstruction, amalgamation or similar reorganisation);
(b) the Customer enters into any arrangement or composition with its creditors or any of them, or has a receiver, a receiver and manager, a trustee, an administrator or an agent in possession appointed;
(c) the Customer is unable to pay its debts as and when they fall due;
(d) the Customer disposes of the whole or part of its assets, operations or business other than in the ordinary course of business, or ceases to carry on business; or
(e) a mortgagee exercises its rights under any security of which the Customer is the mortgagor or chargor.
20.3 Without limiting any of the other provisions in this Agreement, if the Customer fails to perform any of the terms of this Agreement, OPTALERT Australia may, at its option, defer further supply of the Products, if any, until such default is made good.
20.4 On termination of this Agreement:
(a) the Licence will immediately terminate;
(b) if any of the Products are rented to the Customer, the Customer must immediately cease using those Products and must return those Products to OPTALERT Australia;
(c) the Customer must immediately cease using the Software and (to the extent it is able) must delete all portions and copies of it as directed by OPTALERT Australia and, if requested by OPTALERT Australia, must certify in writing that deletion; and
(d) the Customer must immediately pay to OPTALERT Australia all amounts that are payable and outstanding under the Agreement as at the termination date including (where applicable) reimbursement of all reasonable expenses incurred by OPTALERT Australia for Services provided up to the date of termination.
21. PPSA
21.1 The Customer acknowledges that these Conditions create a security interest in the Products supplied to the Customer for the purposes of the PPSA. In addition, the Customer grants OPTALERT Australia a charge in all Products supplied to the Customer under this Agreement. The charge secures the performance by the Customer of its obligations to OPTALERT Australia and all amounts owing by the Customer to OPTALERT Australia.
21.2 Nothing in this Agreement may be construed as an agreement or consent by OPTALERT Australia to:
(a) subordinate any security interest granted in favour of OPTALERT Australia in favour of any person; or
(b) defer or postpone the date of attachment of any security interest granted in favour of OPTALERT Australia.
21.3 The Customer must not create or cause to be created a security interest over, or in respect of its rights in, the Products, other than a security interest arising under these Conditions and other than a security interest granted by the Customer in all of its assets in favour of a bank or similar financial institution.
21.4 The Customer must not, without OPTALERT Australia’s prior consent, allow:
(a) the Products to become mixed or commingled with any other property;
(b) the Products to become an accession to any other property; or
(c) any other property to become an accession to the Products.
21.5 The Customer must do all things and provide all information necessary to enable OPTALERT Australia to perfect its security interest in the Products, including:
(a) ensuring that the security interest is enforceable against third parties, or otherwise effective; and
(b) assisting OPTALERT Australia to complete the registration of any financing statement or financing change statement (each as defined in the PPSA).
21.6 The Customer must pay all costs incurred by OPTALERT Australia in connection with the registration of a financing statement or financing change statement (each as defined in the PPSA) in respect of a security interest granted by the Customer in favour of OPTALERT Australia.
21.7 The Customer must immediately notify OPTALERT Australia if any other person attempts to enforce a security interest in the Products.
21.8 The Customer undertakes not to change any of its details recorded in a financing statement registered by OPTALERT Australia (including changing its ACN or any ABN allocated to a trust of which it is trustee or becoming the trustee of a trust) without giving OPTALERT Australia 10 business days’ prior notice.
21.9 OPTALERT Australia may apply or appropriate all money received from the Customer as OPTALERT Australia sees fit (including so as to enable OPTALERT Australia to preserve any purchase money security interest (as defined in the PPSA)). An application or appropriation by OPTALERT Australia will override any appropriation made by the Customer. For the purposes of section 14(6)(a) of the PPSA, this clause 21.9 constitutes the method of payment application agreed by the parties.
21.10 To the extent permitted by law, the Customer irrevocably waives its right to receive notice of a verification statement (as defined in the PPSA) in respect of each security interest granted in favour of OPTALERT Australia.
21.11 To the extent permitted by law, the Customer and OPTALERT Australia contract out of sections 125, 132(3)(d), 142, 143 and (if permitted by section 115(7)) Part 4.3 (other than sections 123(1), 126, 128, 129(1), 133, 134(1), 136(1) and 136(2)) of the PPSA. The Customer irrevocably waives any rights under sections 95, 118, 121(4), 130 and 132(4) of the PPSA.
21.12 Where OPTALERT Australia has rights or powers in addition to, or existing separately from, those in Chapter 4 of the PPSA, those rights and powers will continue to apply and are not limited or excluded (or otherwise adversely affected) by the PPSA.
22. General
22.1 Any indemnity or obligation of confidence under these Conditions is independent and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement, including clauses 1, 7, 10, 12, 13, 14, 16, 17, 18, 19, 4, this clause 22 and clause 23.
22.2 The Customer may not assign any of its rights or obligations under this Agreement without the prior consent of the OPTALERT Australia. OPTALERT Australia may assign or novate all or any of its rights under this Agreement.
22.3 No variation to this Agreement is binding unless agreed in writing by an authorised representative of each party.
22.4 Any notice required or permitted to be given by either party to the other under these Conditions must be in writing addressed to that other party at its registered office or principal place of business or such other address as notified to the party giving the notice.
22.5 Any waiver by OPTALERT Australia of any breach of this Agreement by the Customer must be in writing and no such waiver will constitute a waiver of any subsequent breach of the same or any other provision of this Agreement.
22.6 Part or all of any provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions of this Agreement continue in force.
22.7 Both parties are independent contractors under this Agreement. Nothing contained in these Conditions is intended nor is to be construed so as to constitute OPTALERT Australia and the Customer as partners, agents or joint venturers with respect to this Agreement. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.
22.8 Each party must use reasonable efforts to do all things necessary or desirable to give effect to this Agreement.
22.9 This Agreement is governed by the laws of Victoria, Australia and subject to the non-exclusive jurisdiction of the courts of Victoria, Australia.
22.10 To the extent permitted by law, this Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with that subject matter (including any statement or representation made in any sales presentation or literature, quotation, price list, invoice or other document or information issued by OPTALERT Australia, whether or not in writing.)
22.11 Any stamp duty, duties or taxes of a similar nature (including fines, penalties and interest) payable in connection with this Agreement or any transaction contemplated by this Agreement must be paid by the Customer.
23. Interpretation
23.1 In this Agreement;
(a) headings are for ease of reference only and do not affect the meaning of this agreement;
(b) the singular includes the plural and vice versa and words importing a gender include other genders;
(c) other grammatical forms of defined words or expressions have corresponding meanings;
(d) a reference to a clause, paragraph, schedule or attachment is a reference to a clause or paragraph of or schedule or annexure to this agreement and a reference to this agreement includes any schedules and attachments;
(e) a reference to a document or agreement, including this agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
(f) a reference to any provision of a statute is to be construed as a reference to that provision as amended, re-enacted or extended at the relevant time;
(g) a reference to ‘A$’, ‘$A’, ‘dollar’ or ‘$’ is a reference to Australian currency;
(h) a reference to ‘US$’ or ‘$US’, is a reference to the United States of America’s currency.
(i) a reference to a specific time for the performance of an obligation is a reference to that time in the State, Territory or other place where that obligation is to be performed; and
(j) a reference to a party includes its executors, administrators, successors and permitted assigns.
23.2 If there is any conflict, apparent conflict or ambiguity in or between these Conditions and the provisions of the Technical Proposal or a Sales Order, the provisions of these Conditions will take precedence unless the parties expressly agree otherwise in the Technical Proposal or Sales Order (as applicable).
23.3 No terms and conditions included in the Technical Proposal, any Sales Order or any other document will apply to the provision of the Products, the Services, the Reporting Services, the Fatigue Risk Profiler Services or any Additional Goods except to the extent those terms and conditions are incorporated into this Agreement by these Conditions or OPTALERT and the Customer expressly agree in writing that those terms and conditions will apply.