DURESS MASTER TERMS
(version DMST 1.15)(June 2022)
A.– Introduction
1. Background
Duress Pty Ltd ACN 613 710 026 (we, us, our) supplies Safety Products. You want to acquire Safety Products to help protect you and/or individuals associated with you (End Users). These terms and conditions (terms) apply to the supply Safety Products by us to you.
As a condition of use of any Safety Product, your End Users must comply with this contract and any applicable Product Schedule and Acceptable Use Policy.
2. Safety Products
Safety Products include:
(a) Safety Devices – such as hardware that can report an End User’s location to a monitoring service and support alerts and communication in an emergency (and accessories).
(b) Safety Apps – software that may be installed on an End User’s smart phone or other device allowing it to function like a Safety Device.
(c) Safety Services – such as a Monitoring Service, where we monitor Safety Devices or Safety Apps used by End Users, and action alerts and communication in an emergency.
We may add or remove Safety Products from time to time.
3. Supply scenarios
We supply Safety Products in the following manner:
(a) Sale & Monitor – we sell to you a Safety Device or Safety App and provide a Monitoring Service over an agreed Term;
(b) Rent & Monitor – we rent to you a Safety Device or Safety App and provide a Monitoring Service over an agreed Term;
(c) Sale Only – we sell a Safety Device or a Safety App licence and you arrange for a third party to monitor it at your cost.
4. Resale
Unless we agree otherwise, you must not resell or resupply the Safety Products.
B.– Your contract
5. Your contract
Your contract with us consists of:
(a) Special Terms – see clause 6;
(b) Orders – see clause 7;
(c) Product Schedules – see clause 8;
(d) Price List – see clause 9;
(e) Acceptable Use Policy; and
(f) the rest of these Terms.
6. Special Terms
You and we may agree particular terms (Special Terms) that apply to your contract. A term is a Special Term if it is included in an Order or recorded in a separate document signed by you and us, that expressly nominates it as a Special Term.
7. Orders
You may submit an order for Safety Products (Order) via an order form, online portal or other means that we approve from time to time. Call us or see our Web Site for the current ordering process. Your Order is accepted when we confirm acceptance in writing. We reserve the right not to accept an Order.
8. Product Schedules
We may publish a schedule (Product Schedule) of additional terms and conditions that apply to a particular Safety Product or class of Safety Products from time to time on our Web Site.
9. Price List
We may publish a list (Price List) of standard Charges from time to time. The Price List applies if we supply a Safety Product and your contract does not provide for a different Charge.
10. Inconsistency
If there is any inconsistency between parts of your contract:
(a) Part I (Liability) overrides everything else (except Special Terms that expressly vary Part I (Liability));
(b) otherwise, an item that is higher in the list in clause 5 overrides an item that is lower –
but nothing overrides any provision relating to ‘ACL Consumers’ or ‘ACL Products’.
C.– Term of your contract
11. Minimum Term
The Minimum Term for the supply of Safety Services is:
(a) the period stated in your Order; or
(b) if no period is stated – 12 months.
12. Auto-extension
(a) To ensure that your Monitoring Service remains active, we support auto-extension (Auto-extension) of your contract Term. The Term automatically extends by one year:
(i) at the end of the Minimum Term; and
(ii) at the end of each Extension Period.
(b) You may cancel your contract within the first six months of an Extension Period, and we will give you a pro rata refund for any Charges you have prepaid for the Extension Period.
(c) Otherwise, if you notify us that you no longer require Auto-extension, your contract ends immediately before the next Auto-extension was due to occur.
13. The Term of your contract
Your contract:
(a) starts when we accept your Order (Start Date); and
(b) continues until registration is complete – see clause 16; and
(c) further continues for the Minimum Term and any Extension Period/s; and
(d) then ends (End Date).
Between the Start Date and the End Date is the Term.
D.– Supply of Safety Products
14. Safety Products
Safety Products will perform in accordance with their Product Descriptions in all material respects, subject to being used in accordance with Product Recommendations and Acceptable Use Policy.
15. Not a substitute for emergency services
Where possible, you (and your End Users) should use local emergency services numbers as your primary source of emergency assistance. You are responsible for knowing and ensuring your End Users know the local emergency services numbers.
16. Acknowledgement of Safety Product limitations
By purchasing and using the Safety Products, you understand and acknowledge that:
(a) Safety Products that are not connected to a network will have limited or no functionality. Due to the nature of mobile network technologies, the network and devices forming part of the Safety Products, or as provided by you or your End Users, may experience drop-outs from time to time.
(b) certain functions of the Safety Products may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or our suppliers, or because of other causes beyond our reasonable control.
(c) you must not use the Safety Products as a sole risk mitigation strategy in any medical, emergency or similar applications that require fail-safe technology because the wireless connectivity inherent in the Safety Products is not designed or intended for these applications. All use of the Safety Products is at you and your End Users; own risk;
(d) we do not warrant that use of the Safety Products, (including any related connectivity or software) will be uninterrupted or error free.
(e) we do not accept any responsibility or liability for the usability of the Safety Products with any of your (or your End Users’) devices or applications.
17. Registering your Monitoring Service
(a) When we provide a Monitoring Service:
(i) we register a licence in our system for your service;
(ii) then you can log in and nominate an End User.
(b) Charges for your Monitoring Service commence when we complete registration.
(c) Your End Users may download a Safety App at any time, even if a Safety Device you have ordered is still in transit.
18. Renting Safety Devices
(a) Any Safety Devices rented to you (Rental Devices) remain our property at all times. Rental Devices may be new or used and refurbished.
(b) Your contract will specify the rental term (Rental Term), rental Charges and other conditions that apply. The Rental Term may not match the Term of your Monitoring Service.
(c) We may Charge you if you lose or damage (other than fair wear and tear) a Rental Device. If you pay such Charges, we will replace or repair a lost or damaged Rental Device.
(d) A replacement Rental Device may not include accessories that were bundled with the Rental Device it replaces.
(e) At the end of the Rental Term, you must return the Rental Devices in good condition (fair wear and tear excepted). We may issue you a Charge for failure to do so.
(f) You must not allow any person other than an End User to use or take possession of a Rental Device.
(g) The PPSA Terms apply to your contract. You must not create, or allow any person to create, a Security Interest in a Rental Device.
19. DuressCare cover for Safety Devices
(a) We offer optional coverage relating to accidental damage to Safety Devices (DuressCare). We are not obliged to offer DuressCare and you are not obliged to accept it.
(b) If you pay the DuressCare Charges we will replace or repair a Safety Device that is accidentally damaged while DuressCare is current. An excess Charge may apply. There may be a limit on the number of repairs/replacements available.
(c) A replacement Rental Device may not include accessories that were bundled with the Rental Device it replaces.
20. Trial Services
If we supply you with a trial service for a Safety Product:
(a) The term of the trial is 14 days, unless we agree to a different period.
(b) Charges for the trial will apply as per the Price List.
(c) You may cancel the trial during the term of the trial by giving us written notice and returning any Safety Devices supplied to you for the trial.
(d) If you do not cancel the trial then, unless otherwise agreed, from the end of the trial period Charges will apply as per the Price List with a Minimum Term of 12 months.
21. Moves Adds and Changes (MAC) Order
(a) If you wish to move, add to or change the Safety Products we supply to you, you may give us an Order (MAC Order).
(b) If your MAC Order is for Safety Products at different pricing from your last Order we will notify you of any new or amended Charges and you may confirm or withdraw the MAC Order within the next 30 days.
(c) If accepted by us, we will implement a MAC Order as soon as practicable and your contract will be taken to be varied in accordance with the MAC Order.
22. Communications
(a) We will use reasonable endeavours to promptly notify you and your End Users of any interruption or disruption to the Safety Services or Safety Apps.
E.– Charges, Invoicing and Payment
23. Charges
Our Charges may include:
(a) Additional Charge – where we supply Safety Products out of the scope of your contract.
(b) Early Termination Charge – where we allow you to terminate your contract before the end of the Minimum Term.
(c) Gateway Charge – where we authorise a third party to provide monitoring services to you.
(d) Licence Charge – for ongoing use, maintenance and updating of our software.
(e) One-time Charge – a one-time payment such as the purchase price of a Safety Device.
(f) Periodic Charge – an amount payable monthly, quarterly or annually for supply of a Safety Product.
(g) Rental Charge – for ongoing rental of a Rental Device.
(h) Set Up Charge – for commissioning a Safety Device.
(i) Up Front Charge – an amount payable on or immediately after we accept an Order or a MAC Order.
24. Invoicing and late billing
(a) Unless we and you agree otherwise, you must pay an invoice within 7 days after we send it (Due Date).
(b) We will endeavour to include all Charges in each invoice for the relevant Billing Period. However, we may include unbilled charges in later invoice(s) issued up to 120 days after the date the unbilled Charge accrued.
(c) If you do not pay any amount invoiced by its Due Date, we may charge interest at the Default Rate, calculated on the daily balance of the overdue amount from the Due Date until the date of payment in full.
25. Method of payment
(a) You must pay each invoice in AUD (or, if you are located outside Australia, in another currency we specify) by Direct Debit (or, if we approve it in writing, by funds transfer to the bank account notified from time to time).
(b) If you pay by Direct Debit:
(i) We may suspend supply of Security Products if the Direct Debit arrangements are not maintained.
(ii) You must not reverse any Direct Debit payment, unless you have our prior written approval. Otherwise, you must pay our reasonable costs (including legal fees if necessary) of reinstating the transaction.
(c) Where you pay by standing Direct Debit, we may extract payment 7 days after we send the invoice.
F.– Trade Marks and other IP
26. Trade Marks
(a) We own or license any registered or unregistered trade mark used in or in connection with a Safety Product.
(b) You must not reproduce, publish or otherwise use any such trade mark without our express consent.
(c) For the length of the contract, we may use your brand mark in our collateral, such as websites and brochures.
27. IP Rights in Safety Products and Software
(a) We own or license all IP Rights in the Safety Products and in any IP we create in connection with or for the purposes of your contract (even if requested or suggested by you).
(b) We license you (and your End Users) to use our IP Rights to the extent necessary for you to use the Safety Products as contemplated by your contract. You have no other interest in or to our IP Rights.
(c) You must not copy, reverse-engineer, disassemble, attempt to derive the source code of, modify, create derivative works of, transfer, redistribute or sublicense the Software or other Safety Products.
28. IP Rights in audio and video content
Where a Safety Product generates audio or video content you own the IP in that content but license us to:
(a) retain a copy of it, and view it, for as long as we consider reasonably necessary; and
(b) supply it to law enforcement agencies on lawful request.
29. Confidential information
You must not use our Confidential Information accept for the sole purpose of using Safety Products in accordance with your contract. You must not disclose our Confidential Information to any person (other than End Users and your employees, officers and advisors on a need to know basis) accept as required by law.
G.– Australian Consumer Law
30. ACL Consumers and Unfair Contract Terms
(a) The ACL protects persons who enter Consumer Contracts (as defined in the ACL) or Small Business Contracts (as defined in the ACL) (ACL Consumers) from unfair contract terms.
(b) If you are an ACL Consumer, and a term of your contract would (except for this clause) be ‘unfair’ within the meaning of section 24 of the ACL, we will not apply that term without taking steps to mitigate any unfairness.
(c) A term in your contract headed ‘ACL Consumers’ applies if you are an ACL Consumer, but not otherwise.
31. ACL Products and Consumer Guarantees
(a) The ACL also specifies that the acquisition of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption or that cost no more than $40,000 (or such higher limit as may be specified from time to time) (ACL Products) are subject to important rights including Consumer Guarantees and remedies. Subject to the following clauses, nothing in your contract limits these rights and remedies in any way.
(b) If we supply you with goods that are ACL Products then our liability for failure to comply with a Consumer Guarantee (other than certain guarantees about ownership and undisturbed use) is limited to:
(i) repairing, replacing or supplying equivalent goods; or
(ii) paying the costs of repairing, replacing or acquiring equivalent goods.
(c) If we supply you with services that are ACL Products then our liability for failure to comply with a Consumer Guarantee is limited to:
(i) supplying the services again; or
(ii) paying the cost of having the services supplied again.
H.– Our liability to you
32. Your rights under the ACL are paramount
Noting in this Section H overrides your rights under Section G or under the ACL.
33. Service Level Agreements
(a) If a Safety Product includes a Service Level Agreement (SLA), our liability is limited to any remedy or rebate specified by the SLA.
(b) In relation to an interruption or delay relating to a Safety Product, where you are not entitled to a SLA rebate or credit, we limit our liability to an amount equal to the charges billed for the affected Safety Service for the period of interruption or delay.
34. Capped liability for Direct Loss
Unless clause 33 applies, we accept liability for Direct Loss, to the extent it is caused by our negligence or breach of your contract, on ordinary principles of law including about proportionate liability, provided that, subject to clauses 30 to 33, our aggregate liability in respect of any Liability Event cannot exceed the aggregate of all Charges you pay for Safety Products in the month in which the Liability Event occurred.
35. Liability otherwise excluded
Subject to clauses 30 to 34, our aggregate liability to you in respect of all Claims and Losses arising under or in connection with your contract or any Safety Products is nil.
I.– Your liability to us
36. Your use of a Safety Product
You must reimburse us for any Loss we suffer in connection with your (or an End User’s) use, or alleged use, of a Safety Product in a way that breaches any Law or infringes the rights of any third party, except to the extent that we contributed to the Loss by our negligence, breach of any Law or breach of your contract.
37. Expenses relating to legal requests for information
You must reimburse us for any expenses we reasonably incur in connection with a request for information from a law enforcement agency, court, Authority or legal practitioner in relation to you (or an End User) or your (or an End User’s) use of a Safety Product.
38. Costs relating to breach of Acceptable Use Policy
You must reimburse us for any costs we reasonably incur in connection with a breach of the Acceptable Use Policy by you (or an End User), including but not limited to:
(a) excess charges for data;
(b) penalties or increased charges from our suppliers
(c) our internal costs of identification, remediation and enforcement of a breach of the Acceptable Use Policy.
J.– Privacy
39. Data collection
In connection with providing Safety Products, we may collect Personal Information about End Users and other data including:
(a) personnel contact details;
(b) GPS and location information; and
(c) video and audio recordings.
We may also collect statistical and aggregated data about the use and operation of the Safety Products, including debugging information and device usage information (“Aggregated Data”). Such Aggregated Data will not identify you or any individual.
40. Use of collected data
(a) We may use and disclose the Personal Information and other data that we collect for the purpose of supplying Safety Products (including diagnostics). We may use and disclose Aggregated Data for any purpose.
(b) We may also disclose such Personal Information and other data relating to you (or an End User), or your (or an End User’s) use of a Safety Product, if requested by a law enforcement agency, court, Authority or legal practitioner, or otherwise required by applicable law.
(c) You must ensure that End Users are aware, and accept, that we may use and disclose their Personal Information in the manner set out in this clause 37 and this contract.
(d) Without limiting your obligations under this clause, as part of the registration process of the Safety Products, we may give certain privacy statements and obtain certain privacy consents from End Users. We may refuse to provide the Safety Products to an End User who refuses to give required privacy consent.
41. Compliance with Privacy Law
(a) We will comply with applicable Privacy Laws in relation to our provision of Safety Products.
(b) You must comply with applicable Privacy Laws in the use of the Safety Products.
42. Compliance with Surveillance Legislation
(a) You must comply with the applicable Surveillance Legislation in the use of the Safety Products, including where relevant ensuring that your End Users consent to the functionality of the Safety Products.
(b) Without limiting clause (a), you must not, and ensure that your End users do not use the Safety Products to:
(i) make a visual and/or audio recording of a private activity or private conversation;
(ii) track the geographical location of a person without their express or implied consent.
(c) You acknowledge and agree that the use of the Safety Products, including the making of any visual and/or audio recording in emergency circumstances are reasonably necessary for the protection of the lawful interests of you and/or your End Users.
K.– End Users
43. End Users
End Users are persons to whom you allocate Safety Devices and/or Safety Apps. If you obtain a Safety Device and/or Safety App for your personal use, you are the End User.
44. Management of End Users
(a) You are solely responsible for managing your End Users, allocating Safety Products to them, training them to use Safety Products and communicating to us any issues they may encounter when using Safety Products.
(b) We may publish product information and/or training materials relating to Safety Products. You must ensure that your End Users are familiar with this information and materials.
(c) You must ensure that your End Users comply with the Product Recommendations and the Acceptable Use Policy. A failure to comply with these requirements could result in their use of Safety Products being terminated or Safety Products not working properly.
(d) We may communicate directly with End Users including in relation to service, support and administrative messages, reminders, technical notes, updates, security alerts and information related to the use of the Safety Products.
(e) You must reimburse us if we suffer any Loss in connection with a breach of this clause.
L.– Termination, suspension, etc
45. Termination & suspension by us
We may terminate your contract, or suspend or restrict supply of a Safety Product if:
(a) you fail to pay us any money that is due;
(b) you are in material breach of your contract and that breach cannot be remedied or is not remedied within 14 days;
(c) you are subject to an Insolvency Event (except for as long as an Insolvency Protection Stay applies – see clause 60);
(d) you are a natural person (ie not a company) and you die;
(e) if we are reasonably required to do so due to an emergency, technical issues, regulatory or legal requirements or suspected or attempted fraud or illegal or prohibited use of a Safety Product; or
(f) in any other circumstances stated in your contract.
46. Termination & suspension by you
You may terminate your contract if:
(a) we are in material breach of your contract and that breach cannot be remedied or is not remedied within 14 days;
(b) we are subject to an Insolvency Event (except for as long as an Insolvency Protection Stay applies – see clause 50); or
(c) in any other circumstances stated in your contract.
47. Effect of termination and suspension
You acknowledge and agree that where we exercise our rights to termination or suspension, you and your End Users (as applicable) will no longer be able to access the Safety Services and Safety Apps. We will endeavor to provide you and your End Users with reasonable notice of any such termination of access.
48. Early Termination Charges
Our Charges are priced on the basis that you will complete your Minimum Term. If we agree that you may terminate your contract early, we may charge an amount (Early Termination Charge) equal to:
(a) 60% of Safety Services Charges for the Minimum Term less Safety Services Charges already paid during Term; plus
(b) 80% of Rental Device Charges for the Minimum Term less Rental Devices Charges already paid during Term; plus
(c) 90% of DuressCare Charges for the Minimum Term less DuressCare Charges already paid during Term –
provided that the amount will never be less than zero.
49. Suspension Charges
If we suspend supply of a Safety Product:
(a) due to your conduct – you remain liable for all Charges during the period of suspension; and
(b) otherwise – you are entitled to a pro rata reduction in Charges during the period of suspension.
50. Post-termination
If your contract ends:
(a) We may invoice you for any Charges not yet invoiced and all other amounts we are entitled to under your contract.
(b) Any cause of action that either of us had against the other pre-dating the termination is not affected.
(c) The limitations of liability and rights of indemnity under your contract continue.
Otherwise, your contract is at an end for all purposes.
51. Insolvency Protection Stays
(a) If you are a corporation and your contract started on or after 1 July 2018 our enforcement of certain rights may be stayed by sections 415D, 434J or 451E of the Corporations Act (Insolvency Protection Stay). If and for as long as an Insolvency Protection Stay operates, we do not assert an entitlement to enforce any right that is subject to it.
(b) This clause 50 does not prevent us from disputing that an Insolvency Protection Stay applies, or applying for an Insolvency Protection Stay to be lifted in whole or part, or otherwise exercising our legal rights.
M. General
52. Amendments
We may amend these DMST from time to time, in which case the new DMST will supersede prior versions. We will notify you not less than ten (10) days prior to the effective date of any such amendment and your continued use of the Safety Products following the effective date of any such amendment may be relied upon by us as your consent to any such amendment.
53. Cooperation
If there are operational or performance issues with a Safety Service, you must reasonably assist our processes and efforts to troubleshoot and rectify them.
54. GST
(a) In this clause, an expression within a pair of asterisks means the same as in the GST Act.
(b) Charges are taken to be GST inclusive unless they are expressed to be ‘GST exclusive’, ‘+ GST’ or similar.
(c) Where any amount is GST inclusive, it is the gross amount, inclusive of any GST payable in respect of any *taxable supply* for which that amount is paid. Otherwise:
(i) The *consideration* payable by you represents the *value* of any *taxable supply* for which payment is to be made.
(ii) If we make a *taxable supply* for a *consideration*, which represents its *value*, then you must pay immediately the amount of any GST payable in respect of the *taxable supply*.
(d) If these terms require you to pay, reimburse or contribute to an amount paid or payable by us in respect of an *acquisition* of a *taxable supply* from a third party, the amount you must pay, reimburse or contribute will be the value of the *acquisition* by us less any *input tax credit* to which we are entitled plus, if our recovery from you is a *taxable supply*, any GST payable under this clause.
(e) We may recover any GST payable under this clause in the same manner as our Charges.
55. Notices – from us to you
(a) Subject to clause 53(b), we may give notice to you in connection with, or as required by, your contract in person, by fax, by email, by post, by Instant Messaging or in any other way allowed by law or by giving you notice of the address of a web page where the notice can be read.
(b) If any Law requires a notice to be in writing, we will give it in writing. Otherwise, we may give a notice in writing, electronically, by voice call (including robocall call or recorded message) or by leaving a voicemail.
(c) We may direct a notice to your registered office, the most recent number or address that you have notified to us or any other number or address that we reasonably believe to be current.
(d) A notice is taken to have been received:
(i) if we give it to you in person or by a voice call you are a party to – at the time of delivery;
(ii) if we post it – at noon on the second Business Day after posting;
(iii) if we give it to you by voicemail, email, Instant Message or fax during business hours in your locality – two hours later;
(iv) if we give it to you by voicemail, email, Instant Message or fax outside business hours in your locality – at 9am on the next Business Day in your locality;
(v) if we send you notice of the address of a web page – two hours after that notice is taken to have been received; or
(vi) if there is evidence that you received it at an earlier time – that earlier time.
56. Notices – from you to us
(a) Our Web Site includes Contact Details, including instructions about how to give a notice to us. This may be by email (to a specified address for notices) or any other way we specify. We may change these instructions from time to time. You should check the appropriate way to give us a notice each time you wish to send us one.
(b) A notice is taken to have been received at noon on the next Business Day in Melbourne, Victoria, Australia, subject to a ‘delivery failure’ message not being given.
57. Entire agreement
Your contract is the entire agreement between you and us regarding its subject matter. You agree that your contract does not include any term, condition, warranty, representation or guarantee that is not expressly set out in it, other than a Consumer Guarantee to the extent it may not lawfully be excluded.
58. Assignment, etc
We may assign, transfer or novate your contract to a purchaser of our business, without your further consent. You may not assign, transfer or novate any of your rights or obligations under your contract unless we agree in writing.
59. No waiver
A failure, delay, relaxation or indulgence by us in exercising any power or right conferred under your contract (such as a right that we have due to your breach of your contract) does not operate as a waiver of the power or right.
60. Delays
Time is not of the essence in the performance of our obligations under your contract. We are not liable to you for any delay in the provision of any Safety Product.
ACL Consumers: If your contract does not fix a time within which a Safety Product will be provided and the time is not to be determined in a way agreed between us, we shall supply it within a reasonable time and you may have rights and remedies under the ACL if we fail to do so.
61. Governing law
Your Contract is governed by the laws of Victoria, Australia. You and we submit to the exclusive jurisdiction of the courts of Victoria, Australia and the Commonwealth of Australia.
ACL Consumers: Your contract is governed by the laws of your State or Territory of residence. You and we submit to the exclusive jurisdiction of the courts of that State or Territory and the Commonwealth of Australia.
N.– Dictionary & interpretation
62. Dictionary
In your contract, unless the context indicates otherwise:
Acceptable Use Policy means Part A of Schedule 1 and any other policy we may publish from time to time relating to acceptable use of our Safety Products.
ACL means the Australian Consumer Law.
Authority means any governmental, semi-governmental, administrative, fiscal, statutory, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity and includes private authorities that have authority in relation to a party (eg .au Domain Administration Ltd).
Billing Period means the period so specified in an Order or, if no period is specified, a calendar month (including, where required, part thereof on a pro-rata basis).
Business Day means a day that is not a statutory public holiday in Melbourne, Victoria or a Saturday or Sunday.
Charge means an amount we may charge under your contract.
Claim means any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim, counterclaim or a claim for contribution to or indemnity).
Confidential Information of a party means all information in any form relating or belonging to the party of a confidential nature, but excludes information which (a) becomes known or generally available to the public (except as a results of a breach of confidentiality) or (b) is independently develops or already known to the disclosee.
Consequential Loss means (a) economic loss; (b) business interruption; (c) loss of revenue, profits, actual or potential business opportunities or contracts; (d) anticipated savings; (e) loss of profits; (f) loss of data; (g) punitive, aggravated or other forms of non-compensatory damages and (h) consequential loss within the meaning of Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26.
Consumer Guarantee means the consumer guarantees provided for by sections 51 to 63 of the ACL.
Corporations Act means the Corporations Act 2001.
Default Rate means the sum of (a) two percentage points and (b) Commonwealth Bank's 90 day bank bill rate or, if there is no such reference rate, Commonwealth Bank's rate for overdraft facilities in excess of $100,000 available to prime commercial customers from time to time – expressed as an annual percentage.
Dictionary means this list of defined terms.
Direct Debit means a payment that is deducted by us from your nominated financial institution account.
Direct Loss means loss or damage suffered by a person and arising in connection with or out of your contract or anything done under it, excluding Consequential Loss.
Dollar, AUD or $ means Australian dollars.
Due Date – see clause 24.
DuressCare – see clause 19.
Early Termination Charge – see clause 46.
End Date – see clause 13.
End User – see clause 1.
GST means goods and services tax under the GST Law.
GST Act means the A New Tax System (Goods and Service Tax) Act 1999.
GST Law means the same as in the GST Act.
Insolvency Event means, in relation to a person: (a) the person being unable to pay their debts as and when they fall due; (b) a receiver, administrator, liquidator or trustee in bankruptcy or analogous person being appointed; (c) if the person is a natural person, an application for bankruptcy being made; or (d) if the person is a corporation – (i) an application for winding up or external administration being filed and not being withdrawn within 20 Business Days; (ii) the person resolving to enter into a deed of company arrangement or an arrangement, composition or compromise with, or assignment for the benefit of, its creditors generally or any class of creditors, or proceedings being commenced to sanction such an arrangement, other than for the purposes of a bona fide scheme of solvent reconstruction or amalgamation.
Instant Messaging includes SMS, iMessage and any similar instant messaging service.
IP means anything in which IP Rights subsist.
IP Rights means all industrial and intellectual property rights of any kind which may subsist in Australia or anywhere else in the world, including without limitation: (a) patents, copyright, rights in circuit layouts, designs, trademarks (including goodwill in those marks) and domain names; (b) any application or right to apply for registration of any of the rights referred to in paragraph (a) of this definition; and (c) all rights of a similar nature to any of the rights in paragraphs (a) or (b) of this definition – whether or not such rights are registered or capable of being registered; and (d) future IP Rights.
Law means any law, Act, regulation, binding code or industry standard, as updated or replaced from time to time, and includes a direction of an Authority.
Liability Event means an event, act or omission, or series or combination of events, acts or omissions, that give rise to Direct Loss for which we are or may be liable, whether in contract, tort or otherwise. A Liability Event is deemed to have occurred:
(a) in the case of a single event, act or omission – on the date when it occurred; and
(b) in the case of a series or combination of events, acts and/or omissions – on the date when the first event, act or omission in the series or combination occurred.
Loss means Direct Loss and/or Consequential Loss.
MAC Order – see clause 21(a).
Minimum Term – see clause 11.
Monitoring Service – see clause 2(c).
PPSA means the Personal Property Securities Act 2009.
PPSA Terms means Part C of Schedule 1 or any other PPSA Terms that we publish from time to time on our Web Site.
Personal Information means the same as in the Privacy Law.
PMSI means a Purchase Money Security Interest under the PPSA.
Privacy Law means (a) the Privacy Act 1988 including the Australian Privacy Principles, (b) any other Law (whether Commonwealth or State) that applies to a party with respect to the privacy and (c) any other Law that obliges a party to maintain privacy or confidentiality of information or communications.
Product Description means a description of the nature, features and limitations of a Safety Product, published by us from time to time usually on our Web Site.
Product Recommendations means Part B of Schedule 1 and any other recommendations we may publish from time to time relating to the deployment, use or maintenance of a Safety Product.
Rental Device – see clause 18(a).
Rental Term – see clause 18(b).
Safety App – see clause 2(b).
Safety Device – see clause 2(a).
Safety Product means goods or services that we supply to you including Safety Devices, Safety Apps and Safety Services.
Safety Service means services we supply to you including Monitoring Services and related Software.
Schedule means a schedule of this agreement.
Security Interest means a security interest under the PPSA.
Software means software comprising, or that we allow you to use in connection with, a Safety Product (including a Safety App or a Monitoring Service).
Start Date – see clause 13.
Surveillance Legislation means all applicable laws relating to electronic surveillance devices that are applicable to you including the Surveillance Devices Act 1999 (Vic) or the corresponding legislation in your jursdiction.
Tax means any tax, rate, levy, impost or duty (other than a tax on the gross overall income of any person) and any interest, penalty, fine or expense relating to any of them.
Tax Invoice means a valid tax invoice under GST Law.
Term – see clause 13.
Web Site means duress.com
63. Interpretation
Unless the context indicates otherwise:
(a) If an expression is defined in the Dictionary, grammatical derivatives of that expression have a corresponding meaning.
(b) Expressions like ‘includes’ and ‘eg’ are not words of limitation and any examples provided are not exhaustive.
(c) A reference to the singular includes the plural and vice versa and one gender include all genders.
(d) A ‘person’ includes any entity that can sue and be sued and any legal successor to or representative of that person.
(e) A reference to a document or a Law includes the document or Law as modified or replaced from time to time.
(f) The words ‘in writing’ include any communication sent by any other form of communication capable of being read.
(g) Money amounts are exclusive of any applicable GST.
(h) Anything that is unenforceable must be read down, to the point of severance if necessary.
Schedule 1
A.– Acceptable Use Policy
1. No anticipated emergency
Safety Products are intended for use where:
(a) there is a risk of an emergency, but not the likelihood of an emergency;
(b) an emergency is possible but not expected or anticipated;
(c) there are no unusual circumstances at a particular time or place that significantly increase the likelihood of an emergency.
You must not allow an End User to (and an End User must not) use or rely on a Safety Product if:
(d) there is a likelihood of an emergency;
(e) an emergency is expected or anticipated; or
(f) there are usual circumstances at a particular time or place that significantly increase the likelihood of an emergency.
2. Responsible use
Safety Products must not be used irresponsibly. Irresponsible use includes:
(a) making prank, joke or unnecessary use of a Monitoring Service; or
(b) making non-emergency use of a Monitoring Service where it is not reasonably necessary for the protection of the lawful interests of the user, other than for a reasonable amount of bona fide training, practice or testing purposes.
3. Unintended use
You must not use Safety Products (or any part of them, including SIM cards or associated telecommunications services) other than for the purpose of a workplace tool to protect the safety of your employees. Without limitation, unintended use includes:
(a) using the Safety Product in a way that a reasonable person would not regard as ordinary, including but not limited to using a Safety Product to record a private conversation or private activity ;
(b) removal and use of SIM cards in devices other than the Safety Devices;
(c) using the Safety Product (or any part of it) for re-supply to another person or in any way that is of a commercial use;
(d) using the Safety Product (or any part of it) in a fraudulent manner or in a manner that commercially disadvantages us, for example by using, promoting or enabling the re-purposing of the Safety Device or associated telecommunications services for excessive or automated re-routing, spam or bulk messaging or anything else which is not standard machine to machine communication by the Safety Device.
B. – Product Recommendations
4. Safety Devices and Safety App devices
Failure to observe the following may result in Safety Products not working properly and may compromise safety.
(a) Keep Safety Devices and devices that run Safety Apps charged at all times.
(b) Ensure that Safety Devices and devices that run Safety Apps remain connected to a compatible mobile or corporate wifi network.
(c) Promptly update Safety Devices and Safety Apps to new versions of applicable firmware or software.
5. Training
You must ensure that each End User watches our ‘Duress Basics 123’ training video and any other End User training material we issue before using a Safety Product. You must keep training records.
C. – Security Interest in Rental Devices
6. PPS Law Security Interest
(a) We have a Security Interest in the Rental Device for the purposes of the PPS Law. The Security Interest is a PMSI to the extent that it can be under section 14 of the PPS Law.
(b) We may register our Security Interest. You must do anything which we require for the purposes of ensuring that our Security Interest is enforceable, perfected and otherwise effective under the PPS Law. Our rights under PPS Law are in addition to our rights under your contract.
(c) We may recover from you the cost of doing anything reasonably necessary to protect our interest in the rental Device under this clause, including registration fees.
7. PPS Law exclusions and waivers
(a) The following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law, are ‘contracted out’ of your contract for goods that are not used predominantly for personal, domestic or household purposes – sections 95, 96, 125, 130, 132(3)(d), 132(4), 135, 142 and 143.
(b) The following provisions of the PPS Law confer rights on us – sections 123, 126, 128, 129 and 134(1). These rights are in addition to our rights under your contract.
(c) You waive your rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.
(d) We and you agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. You must do everything necessary to ensure that section 275(6)(a) of the PPS Law continues to apply. This clause is for the purpose of allowing us the benefit of section 275(6)(a). We shall not be liable to pay damages or any other compensation or be subject to injunction if we breach this clause.
PRODUCT SCHEDULE: International Monitoring
1. Dictionary
In this Product Schedule:
International Monitoring Service is a Monitoring Service provided to an End User in an International Territory.
International Territory means those countries outside Australia in which we provide International Monitoring Services from time to time. A full list of International territories are available from us, and will, unless otherwise stated, exclude Afghanistan, Chechnya, Democratic Republic of Congo, Iraq, Israel (West Bank, Gaza and Occupied Territories only), Somalia, Syria and Libya.
2. Application
This Product Schedule – International Monitoring applies where we provide International Monitoring Services to the End User. To the extent there is any inconsistency between a clause in this Product Schedule and the Master Terms, the provisions in this Product Schedule are to take precedence in relation to the International Monitoring Services.
3. Requirements
In order to receive International Monitoring Services, you must have a Safety Device, or the device on which you have installed the Safety Software must be able to generate an appropriate emergency signal; comply with any requirements we notify to you; and otherwise be compliant with the applicable device documentation and warranty, and applicable United States regulations for devices of that type.
4. International Monitoring service
We have contracted GEOS Travel Safety LTD., also doing business as GEOS, a Company incorporated in Guernsey, Channel Islands and having a registered office at Provident House, Suite 6, Havilland Street, St. Peter Port GY1 2QE and having offices at 550 Club Drive, Montgomery, TX 77316 (GEOS) to provide International Monitoring Services utilising their International Emergency Response Coordination Center, (IERCC) . The Safety Products transmit emergency signals along with applicable registration data information and available location information to the IERCC. The IERCC provides International Monitoring Services 24 hours a day, 7 days a week and 365 days a year. Upon receipt of an emergency signal, GEOS personnel:
(a) contact as available the primary and secondary contacts identified by the End User to attempt to validate the emergency signal;
(b) identify appropriate emergency responder(s) according to available location information;
(c) contact the appropriate emergency responder(s) and inform them of the relevant facts in GEOS’ possession (including available registration data information and/or location information);
(d) GEOS may contact an appropriate Embassy according to End User registration data and/or location information, either in the country identified by your location information or the appropriate Washington-based Embassy, and provide them all relevant facts in GEOS’ possession; and
(e) provide updates of location information as available to the identified emergency responder.
Upon contacting the emergency responder(s) and/or, as appropriate, the Embassy, and informing them of all relevant facts, both we and GEOS are released from all further legal responsibility and/or obligation to take any further action whatsoever.
Should GEOS have reasonable cause to believe that an emergency condition does not exist, GEOS reserves the right to solely contact the primary and secondary contacts identified by you.
5. Use and misuse of service
Both we and GEOS intend that International Monitoring Services will be available at all times in the International Territories where your Safety Product is operative. However, it is possible that at some time and some locations, we will not receive your transmission or that your transmission will be delayed. You are solely responsible for any charges that may be assessed by emergency responders for either false emergency signals and/or in relation to search and rescue activities resulting from you or your authorised users’ transmission of an Emergency Signal. In addition, both we and GEOS reserve the right to assess a fee in the case of deliberate or negligent misuse of the International Monitoring Service.
6. Limitation of Liability
You acknowledge and agree that to the fullest extent permitted by law, GEOS and its related entities expressly exclude liability for any Claim, including injury or death, and any Loss which may arise out of or in connection with the provision of the International Monitoring Services (including any delay in providing or failing to provide the International Monitoring Service) or its use by you or someone authorised by you to utilise the Safety Products.
Both we and GEOS exclude all liability, whether resulting from contract, tort (including liability for negligence or breach of statutory duty) or otherwise in respect of any Loss or Claim resulting from the acts or omissions of third party providers, including GEOS, for any faults, failures or inadequacies of the GPS satellite system, any mobile communications infrastructure, a device that does not comply with these terms, the International Monitoring Service or the emergency monitoring and response provided by us or our subcontractors.
We and our service providers, including GEOS, shall not be liable to you or be deemed to be in breach of these terms in respect of any failure or delay in the provision of International Monitoring Services caused by:
(a) matters outside of our or GEOS’s reasonable control, which shall include but is not limited to the outbreak of hostilities, riot, civil disturbance, acts of terrorism, fire, explosion, flood, snow, fog, or other inclement weather conditions, failure of telecommunications or satellite systems, electrical power failures or fluctuations, surges in the electrical mains or currents induced into damage caused by electromagnetic interference, theft, malicious damage, strike, lock out or industrial action of any kind; or
(b) failure or delay in us or our subcontractors responding to emergency signals.