22. IP Rights – Generated Content

Where a Safety Product generates audio or video content relating to your End Users:

(a)You own the IP in content.

(b)You licence us to:

23. IP Rights

(a)We own or license all other IP Rights in 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 (or sub-license) you to use the above IP Rights strictly as and to the extent necessary to make use of Safety Products as contemplated by your contract.

(c)Subject to clause 23(b), you will have no interest in any IP of us or our licensors.

(d)You must not copy, modify or transmit any part of the Application.

H. Australian Consumer Law

24. Australian Consumer Law (ACL)

(a)Some provisions of the ACL apply to:

(b)A term or note in your contract headed ‘ACL Consumers’ applies to you if you are an ACL Consumer, but not otherwise.
(c)A term or note in your contract headed ‘ACL Small Businesses’ applies to you if you are an ACL Small Business, but not otherwise.

25. ACL Consumers, ACL Small Businesses and Unfair Contract Terms

(a)Our contract terms apply to a wide variety of customers and circumstances, and must reasonably protect our interests across that wide variety.

(b)If you are an ACL Consumer or an ACL Small Business, 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 or rely on that term without also taking steps to appropriately mitigate any unfairness.

26. Consumer Guarantees

(a)Under the ACL, consumers (as defined in the ACL) have the benefit of certain Consumer Guarantees:

(b)Your contract never operates to exclude the Consumer Guarantees (where they apply) or to limit your remedies for breach of them (in a way not permitted by law).

I. Our liability to you

27. Australian Consumer Law

1. Rights and remedies for PDH goods and services
If we supply you with goods or services of a kind ordinarily acquired for personal, domestic or household (PDH) use or consumption you have important rights under the Australian Consumer Law (ACL) including Consumer Guarantees and remedies. Nothing in your contract limits those rights and remedies in any way.

2. Rights and remedies for non-PDH goods costing no more than $40,000
If we supply you with goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and cost no more than $40,000 :

(a)in relation to these goods, our liability for failure to comply with a Consumer Guarantee (other than certain guarantees about ownership and undisturbed use) is limited to:

(b)in relation to these services, our liability for failure to comply with a Consumer Guarantee is limited to:

Nothing in your contract further limits our liability in relation to these goods or services in any way.

28. Personal injury or death of End User

If:
(a)there is a Claim in negligence against you in relation to personal injury or death of an End User; and

(b)we caused or contributed to the Claim by our negligence –
we accept liability on ordinary principles of law including laws about proportionate liability.

29. Service Level Agreements

If a Safety Product includes a Service Level Agreement (SLA), our liability is limited to any remedy or rebate specified by the SLA.

30. Capped Direct Loss

(a)Subject to clause 30(b), 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 laws about proportionate liability.

(b)Subject to clauses 27 to 29, our aggregate liability in respect of all Liability Events that occur in any Year cannot exceed the aggregate of all Charges you pay for Safety Services supplied in that Year.

31. Liability otherwise excluded

Subject to clauses 27 to 30, 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.

J. Your liability to us

32. Charges

You must pay us all Charges under your contract.

33. Loss of or damage to Rental Device

You must pay us the fair value of any Rental Device that you fail to return to us if and when required. You must also pay us fair compensation for any damage to a Rental Device before it is returned.  Fair wear and tear does not count as damage.

34. Loss to which we do not contribute

You must indemnify us for any Loss we suffer as a result of or in connection with:

(a)your use of a Safety Product; or

(b)a Claim against you or us by a third party in relation to a Safety Product we supply to you –

except to the extent that we caused or contributed to the Loss by our negligence, breach of any Law or breach of your contract.

35. Liability – legal requests, etc

(a)This clause applies where we reasonably incur expenses as a result of or in connection with:

(b)We may issue you a Charge to cover our expenses.

36. Your liability to us – (alleged) illegal use, etc

(a)This clause applies where:

(b)We may issue you a Charge to cover our Loss and expenses.

37. Survival

Your obligations under this Part J survive termination of your contract.

K. Rented Safety Devices

38. Renting

(a)As part of a Rent & Monitor scenario, we will supply you with a Safety Device by way of rental (Rental Device).  It remains our property at all times.
‍
(b)The rental term of a Rental Device may not match the Term of your Monitoring Service.  If so, your contract will specify the term (Rental Term), rental Charges and other conditions that apply.

(c)If your contract includes a note that ‘PPSA Terms apply’ or similar:

(d)If you damage a Rental Device (fair wear and tear excepted, we may issue you a Charge for its repair or (if necessary) replacement.

(e)If you lose a Rental Device, we may issue you a Charge for its replacement.

(f)Subject to payment of any Charges under clauses 38(d) and (e), we will repair or replace a lost or damaged Rental Device during the Rental Term.

(g)Rental Devices (including replacements) may be new, or used and refurbished.  A replacement Rental Device may not include accessories that were bundled with the Rental Device it replaces.

(h)At the end of the Rental Term, you must return a Rental Device to us in good condition (fair wear and tear excepted).  We may issue you a Charge for failure to do so.

(i)Schedule 4 applies when we supply Rental Devices.

L. ExtraCare

39. Optional ExtraCare

(a)We may offer an optional protection arrangement regarding accidental damage (ExtraCare).  We are not obliged to offer ExtraCare and you are not obliged to accept it.

(b)ExtraCare is an additional benefit, and Charges apply.  You are only covered by ExtraCare if you have paid the Charges.

(c)We will repair or replace a Safety Device that is accidentally damaged while ExtraCare is current.  A concessional repair or replacement Charge (Excess) may apply. There may be a limit on the number of repairs/replacements available.

(d)A replacement Safety Device may be new, or used and refurbished.  It may not include accessories that were bundled with the Safety Device it replaces.

(e)Because of the way in which ExtraCare is financed, ETC is 100% of unpaid balance.

M. Privacy

40. Data collection

As a result of providing Safety Products, we may collect data including:

(a)GPS information;

(b)personnel contact details and other Personal Information;

(c)Video and Audio recordings;

(d)debugging Information; and

(e)device usage information.

41. Compliance with Privacy Law

Each of us must comply with Privacy Law in relation to your contract and Safety Services.

42. Use of Personal Information

(a)Subject to Privacy Law, we may use Personal Information and other data that we collect for the purpose of supplying and maintaining Safety Products (including diagnostics).

(b)We will not disclose such Personal Information to any third party for gain.

N. End Users

43. End Users

(a)End Users are persons to whom you allocate Safety Devices and/or Safety Apps.

(b)If you are an individual who obtains a Safety Device and/or Safety App for your personal use, you are also the End User.

44. Software Licence Terms

Use of Safety Devices and/or Safety Apps by End Users is subject to the Software Licence Terms in Schedule 1.  You must ensure that End Users comply with those terms, and acknowledge that their use of Safety Devices and/or Safety Apps may terminate if they breach them.

45. Product Recommendations

You must ensure that End Users comply with Product Recommendations, and acknowledge  that failure to observe them may result in Safety Products not working properly, or at all, or may otherwise compromise safety.

46. Acceptable Use Policy

You must ensure that End Users comply with the Acceptable Use Policy, and acknowledge that their use of Safety Devices and/or Safety Apps may terminate if they breach it.

47. Indemnity

You indemnify us against any Loss we suffer as a result of a breach of clauses 44, 45 or 46.

48. Storage of audio/video

You must ensure that all End Users are aware that, subject to Privacy Law, we may retain recordings of audio and or video communications in connection with a Monitoring Service, for lawful purposes.

49. Management of End Users

(a)We have no contractual relationship with End Users.

(b)You are solely responsible for managing your End Users, allocating Safety Products to them, training them regarding Safety Products and communicating with us about issues arising with respect to your contract or Safety Products.

(c)We may publish product information and/or training materials dealing with Safety Products, how and when to use them, what their proper uses and limitations may be, and other relevant matters.  You must ensure that your End Users are familiar with this information and materials.

O. Termination, suspension, etc

50. Termination & suspension by us (1):  Early termination

We may terminate your contract, or suspend or restrict a Safety Service if, in relation to that or any other contract:
(a)you fail to pay us any money that is due;
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(b)you threaten not to pay us money that you owe us, or will owe us in the future;
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(c)you cause to be reversed any Direct Debit payment to us (except with our prior written agreement);
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(d)you are in material breach of your contract and have not cured the breach within 7 days after we give you written notice of the breach;
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(e)you are subject to an Insolvency Event (except for as long as an Insolvency Protection Stay applies – see clause 56);
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(f)it becomes technically infeasible for us to continue the Safety Service;
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(g)there is an emergency that warrants it;
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(h)you have told us that you no longer require the Safety Service;
‍
(i)if we reasonably suspect fraud or attempted fraud involving the Safety Service;
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(j)we suspend, become entitled to suspend, the Safety Service, and the suspension or entitlement continues for more than a month (except for as long as an Insolvency Protection Stay applies – see clause 56); or
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(k)in any other circumstances stated elsewhere in your contract.

51. Termination & suspension by us (2):  Other events

(a)We may terminate your contract or suspend performance of our obligations under your contract if you die or are subject to an Insolvency Event, if we have a reasonable belief that we are unlikely to receive or retain payments for amounts due and payable by you under your contract  (except for as long as an Insolvency Protection Stay applies – see clause 56).

(b)We may terminate your contract or suspend or limit or vary performance of our obligations under it to comply with:

to the extent the legislative or regulatory requirements or order or direction unavoidably requires us to do so.

52. Early termination by you

(a)You are not entitled to simply choose to terminate your contract during its Minimum Term.

(b)Our Charges are priced on the basis that you will complete your Minimum Term.  

(c)If we agree that you may terminate your contract early, we may charge you:

53. Post-termination

If your contract ends:

(a)Our obligations to you under your contract are at an end.

(b)We may invoice you for any Safety Products we have not yet invoiced and all other amounts we are entitled to under your contract.

(c)All invoices are payable within 7 days.

(d)You authorise us to Direct Debit any outstanding Charges.

(e)You must return to us, promptly, any of our rented Safety Devices under your control.  (If you fail to do so, we may bill you a reasonable Charge for it.)

(f)Any cause of action that either of us had against the other pre-dating the termination is not affected,

(g)The limitations of liability, and rights of indemnity, under your contract continue.

Otherwise, your contract is at an end for all purposes.

54. Suspension of Service

We may suspend Safety Service at any time, without liability and immediately and (except in the case of an emergency or your death) by reasonable notice to you, if:

(a)you fail to pay any amount owing to us under your contract by its Due Date;

(b)you breach your contract, including terms relating to your use of a Safety Product or the  Acceptable Use Policy, and that breach cannot be remedied;

(c)you breach your contract, and that breach can be remedied, but you do not remedy it within 30 days of receipt of a notice from us requiring the breach to be remedied;

(d)you are subject to an Insolvency Event (except for as long as an Insolvency Protection Stay applies – see clause 56);

(e)we reasonably suspect that you, an End User or any person in connection with the Safety Product is fraudulent or where evidence suggests illegal conduct in relation to the Safety Product;

(f)we reasonably believe that you may be a credit risk in relation to the Safety Product (except for as long as an Insolvency Protection Stay applies – see clause 56);

(g)you are a natural person (ie not a company) and you die;

(h)there is an emergency that warrants suspension;

(i)we are required to do so to comply with any law or direction of any Regulator; or

(j)we are otherwise entitled to do so under your contract.

55. Charges during a period of suspension

If we suspend Service:

(a)because of your fault or breach of your Contract – you remain liable for all Charges payable under your Contract during the period of suspension;
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(b)otherwise – you are entitled to a pro rata reduction in Charges in respect of the period of suspension.

56. Insolvency Protection Stays

(a)If:

(b)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.

(c)This clause 56 does not prevent us from disputing that an Insolvency Protection Stay applies, or making an application for an Insolvency Protection Stay to be lifted in whole or part or otherwise exercising our legal rights.

P. General

57. Cooperation

If there are operational or performance issues with a Safety Service, you must reasonably assist our processes an efforts to troubleshoot and rectify them.

58. 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:

(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.

59. Assignment, etc

(a)You hereby consent to us assigning, transferring or novating any of our rights, remedies, powers, duties and obligations under your contract to any person (Transferee), without your further consent.  In the case of novation, to avoid any doubt, you hereby consent to the release of our liabilities and obligations under your contract and their assumption by the Transferee.

(b)You cannot assign, transfer or novate any of your rights, remedies, powers, duties and obligations under your contract, unless we agree in writing.

60. Notices – from us to you

1. How we give notices
Subject to clause 60.2, we may give notice to you in connection with, or as required by, your contracts:

(a)in person;

(b)by fax;

(c)by email;

(d)by post;

(e)by Instant Messaging; or

(f)in any other way allowed by law –

or by giving you (by one of the above means) notice of the address of a web page where the notice can be read.

2. Form of notice

(a)If your contract, or any Law, requires a notice to be in writing, we will give it in writing.

(b)Otherwise, we may give a notice:

3. Address or number for notices
We may direct a notice to:

(a)a number or address that we reasonably believe to be current;

(b)in any event, the most recent number or address that you have notified to us; and

(c)if you are a company, your registered office.

4. Time of receipt
A notice is taken to have been received:

(a)if we give it to you in person (including a voice call you are a party to) – at the time of delivery;
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(b)if we give it to you by voicemail during business hours in your locality – two hours later;
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(c)if we give it to you by voicemail outside business hours in your locality – at 9am on the next Business Day in your locality;
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(d)if we fax it during business hours in your locality – two hours later, subject to our fax machine receiving a successful transmission confirmation;
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(e)if we fax it outside business hours in your locality – at 9am on the next Business Day in your locality, subject to our fax machine receiving a successful transmission confirmation;
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(f)if we email it during business hours in your locality – two hours later, subject to a ‘delivery failure’ message not being received;
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(g)if we email it outside business hours in your locality – at 9am on the next Business Day in your locality, subject to a ‘delivery failure’ message not being received;
‍
(h)if we post it – at noon on the second Business Day after posting;
‍
(i)if we send it by Instant Message during business hours in your locality – two hours later;
‍
(j)if we send it by Instant Message outside business hours in your locality – at 9am on the next Business Day in your locality;
‍
(k)if we send you notice of the address of a web page – two hours after that notice is taken to have been received; or
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(l)if there is evidence that you received it at an earlier time – that earlier time.

61. Notices – from you to us

1. How you give notices
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.
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2. Form of notice
You must give a notice in writing.
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3. Time of receipt
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.

62. Governing law

Your Contract is governed by and must be construed in accordance with 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 and ACL Small Businesses:  Your contract is governed by and must be construed in accordance with 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.

63. Entire agreement

Your contract is the entire agreement between you and us regarding its subject matter, and you acknowledge that:

(a)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; and

(b)you have not relied on any representation that is not expressly set out in your contract.

64. Delays

(a)Time is not of the essence in the performance of our obligations, including the provision of Service, under your contract.
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(b)We are not liable to you for any delay in the provision of any Safety Product.
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ACL Consumers and ACL Small Businesses:  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.

65. 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.

Q. Dictionary & Interpretation

66. Dictionary

In your contract, unless the context indicates otherwise:
ABN means Australian Business Number.
Acceptable Use Policy means:

(a)Schedule 2; and

(b)any other policy we may publish on our Web Site directed to prohibiting use of our Safety Products in ways that are unreasonable, unlawful, anti-social, excessive or so as to cause harm to any person –
as amended from time to time.

ACL means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act.
Authority means a Public Authority and/or a Private Authority.
Billing Period means the period so specified in an Order or (if no period is specified) a Month.
Business Day means a day that is not a statutory public holiday in Melbourne, Victoria or a Saturday or Sunday.
CCA means the Competition and Consumer Act 2010.
Charge means any amount we are entitled to 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 in respect of, a third party loss).
Competition and Consumer Act means the Competition and Consumer Act 2010.
Confidential Information of a Party means all information in whatever form (including, verbal, or recorded on paper or by electronic means) relating or belonging to that Party which that Party indicates, or which by its nature, is confidential, but excludes information which (a) is already in the possession of a Disclosee or (b) becomes known or generally available to the public – except if that results from a breach of confidentiality by a Disclosee (in which case it remains Confidential Information) or (c) a Disclosee independently develops.
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; (i) 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.  Where they apply, Consumer Guarantees are Non-excludable Rights.
Corporations Act means the Corporations Act 2001.
Default means a breach of your contract.
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 (which may be a deposit account or a credit card 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.
Disclosee means a person who receives the Confidential Information of a Discloser.
Discloser means a person whose Confidential Information is disclosed to a Disclosee.
Dollar, AUD or $ means Australian dollars.
Due Date – see clause 20.
Early Termination Charge or ETC means:

– but never less than zero.
End Date – see clause 12.
End User – see clause 1(b).
End User Nomination – see clause 15.
ExtraCare – see clause 39(a).
Future IP Rights means IP Rights that arise or are created after the Effective  Date and includes future copyright within the meaning of the Copyright Act 1968.
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, means the happening of any one or more of the following events: (a) the person being unable to pay their debts as and when they fall due; (b) a receiver, receiver and manager, administrator, liquidator, trustee for creditors or trustee in bankruptcy or analogous person being appointed over the person's undertaking or assets or any of them; (c) if the person is a natural person, an application and filing for bankruptcy being made in respect of the person; or (d) if the person is a corporation – (i) an application for winding up or other process seeking orders which, if granted, would render the person an externally-administered body corporate being filed and not being withdrawn within 20 Business Days; (ii) the person being or becoming the subject or an order, or a resolution being passed, for the person's winding up or dissolution; or (iii) the person entering into, or 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 a deed of company arrangement, or arrangement, composition or compromise, 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 by which the Parties can exchange messages.
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 relevant to this Agreement or a Party, as updated or replaced from time to time, and includes a binding direction of an Authority.
Liability Event means:

(a)a single event, act or omission that gives rise to Direct Loss for which we are or may be liable, whether in contract, tort or otherwise; or

(b)a series or combination of events, acts and/or omissions that gives rise to Direct Loss for which we are or may be liable, whether in contract, tort or otherwise –
and a Liability Event is deemed to have occurred:

(c)in the case of a single event, act or omission – on the date when it occurred; and

(d)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.

Licence means the software licence in Schedule 1.
Licence Charge means a Charge for ongoing use of our software (whether as a Safety App or installed on a Safety Device) including maintenance releases and updates we issue.
Licence Registration – see clause 15.
Loss means Direct Loss and/or Consequential Loss.
MAC Order – see clause 10(a).
Minimum Term – see clause 11.
Minimum Term ExtraCare Charges means the Charges for ExtraCare that would be payable in respect of a Minimum Term.
Minimum Term Rental Device Charges means the Charges for Rental Devices that would be payable in respect of a Minimum Term.
Minimum Term Service Charges means the Charges for Safety Services that would be payable in respect of a Minimum Term.
Month means a Named Month, and includes (on a pro-rated basis) a portion of a Named Month at the start and/or end of a specified period.
Monitoring Services – see clause 2(c).
Named Month means each of January, February, March, etc.
Part means a section of this Agreement so titled and identified by a letter of the alphabet.
Party means you or us.
PPSA means the Personal Property Securities Act 2009.
PPSA Terms means the document titled BodyGuard PPSA Terms, available on our Web Site.
PPSR means the Personal Property Securities Register established and maintained under the PPSA.
Personal Information means the same as in the Privacy Law.
PMSI means a Purchase Money Security Interest under the PPSA.
PPSA means the Personal Property Securities Act 2009.
PPSR means the register established under the PPSA.
Privacy Law means (a) the Privacy Act 1988 including the Australian Privacy Principles, and (b) any other Law (whether Commonwealth or State) that applies to a Party with respect to the privacy of information and (c) any other Law that obliges a Party to maintain privacy or confidentiality with respect to information or communications.
Privacy Policy means an APP Privacy Policy within the meaning of the Privacy Law.
Private Authority means an authority, administrator, regulator or body that is not a Public Authority but has authority in relation to a Party eg .au Domain Administration Ltd in relation to Australian domain names.
Product Description means our description of the nature, features and limitations of a Safety Product, usually set out on our Web Site.
Product Recommendations means:

(e)Schedule 3; and

(f)any other recommendations we may publish on our Web Site directed to the deployment, use, servicing, repair and maintenance of a Safety Product –

as amended from time to time.
Public Authority means any governmental, semi-governmental, administrative, fiscal, statutory, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
Rent & Monitor – see clause 3(b).
Rental Device – see clause 38.
Rental Term – see clause 38.
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 – services we supply to you including Monitoring Service.
Sale Only – see clause 3(c).
Sale & Monitor – see clause 3(a).
Schedule means a section of this Agreement so titled and identified by a number.
Software means the computer code comprising a Safety App.
Software Licence Terms means the terms in Schedule 1.
Start Date – see clause 12.
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 for the purposes of the GST Law.
Term – see clause 12.
Trial Service means a trial of Safety Product.
Trial Term means the term of a Trial Service.
Web Site means duress.com
Year means each year beginning on the Start Date or an anniversary of the Start Date, and includes any broken part of a year immediately before the End Date.

67. Interpretation

In your contract:
‍
(a)Headings do not have substantive effect or operation.
‍
(b)Footnotes have substantive effect and operation.
‍
And unless the context indicates otherwise:
‍
(c)If an expression is defined in the Dictionary in clause 66, that is what it means.
‍
(d)If an expression is defined in the Dictionary, grammatical derivatives of that expression have a corresponding meaning.
‍
(e)Expressions like ‘includes’, ‘including’, ‘eg’ and ‘such as’ are not words of limitation.  Any examples that follow them are not to be taken as an exhaustive list.
‍
(f) A schedule to a document is part of that document.
‍
(g)A reference to the singular includes the plural and vice versa.
‍
(h)There is no significance in the use of gender-specific language.
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(i)A ‘person’ includes any entity which can sue and be sued.
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(j)A ‘person’ includes any legal successor to or representative of that person.
‍
(k)Anything that is unenforceable must be read down, to the point of severance if necessary.
‍
(l)Anything a party can do, it may do through an appropriately authorised representative.
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(m)Any matter in a party's discretion is in its absolute and unfettered discretion.
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(n)A reference to a document includes the document as modified from time to time and any document replacing it.
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(o)The words ‘in writing’ include any communication sent by letter, fax or email or any other form of communication capable of being read.
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(p)A reference to all or any part of a Law includes that Law as amended, consolidated, re-enacted or replaced from time to time.
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(q)Money amounts are stated in AUD unless:

(r)Money amounts are exclusive of any applicable GST.
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(s)Your contract must not be construed against the interests of a Party on the grounds that the Party proposed or drafted all or part of this Agreement

1. Software Licence Terms

1. Grant of Licence

Bodyguard Technologies Pty Ltd ACN 613 710 026 (‘we’, which includes any transferee of the IP Rights in the Application) grants to you and your End User (you) a non-transferable licence (Licence) to use:

(a)the software installed on a Safety Device that we supply; and

(b)the Safety App on a compatible device that you supply (User Device).

2. Further application of Licence

The Licence will govern any content, materials, or services accessible from or purchased within Application as well as upgrades we provide that replace or supplement an earlier version of the Application, unless such upgrade is accompanied by other licence terms

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3. Prohibitions

(a)You may not transfer, redistribute or sublicense the Application and, if you sell your User Device to a third party, you must remove the Application from the User Device before doing so.

(b)You may not copy (except as permitted by the Licence), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-source components included with the Application).

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4. Consent to use of data

You agree that we may collect and use technical data and related information, including but not limited to technical information about your Safety Device or User Device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other any other services to you related to the Application. We may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies.

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5. Termination

(a)The Licence is effective until terminated by you or us.

(b)The Licence is conditional on your compliance with its terms and is void at any time when you fail to comply with any of its terms.

6. Liability

1. Rights and remedies for PDH goods and services
If we supply you with goods or services of a kind ordinarily acquired for personal, domestic or household (PDH) use or consumption you have important rights under the Australian Consumer Law (ACL) including Consumer Guarantees and remedies.
Nothing in your contract limits those rights and remedies in any way.
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2. Rights and remedies for non-PDH goods costing no more than $40,000
If we supply you with goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and cost no more than $40,000 :
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(a)in relation to these goods, our liability for failure to comply with a Consumer Guarantee (other than certain guarantees about ownership and undisturbed use) is limited to:

(b)in relation to these services, our liability for failure to comply with a Consumer Guarantee is limited to:

3. Exclusion of implied terms

(a)Any representation, warranty, condition or undertaking (whether in favour of you or of us) that would be implied in your contract by legislation, common law, equity, trade custom or usage or otherwise is excluded from your contract to the fullest extent permitted by law.
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(b)We do not warrant or represent the performance, accuracy, reliability or continued availability of the Application or that it will operate free from faults, errors or interruptions.
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4. Limitation
To the fullest extent allowed by law in no event shall we be liable for personal injury or any incidental, special, indirect, or consequential damages whatsoever, including, without limitation, damages for loss of profits, loss of data, business interruption, or any other commercial damages or losses, arising out of or related to your use of or inability to use the Application, however caused, whether in contract, tort, or otherwise, and even if we have been advised of the possibility of such damages.

7. Applicable law and jurisdiction

(a)To the fullest extent allowed by law the Licence and the relationship between you and us shall be governed by the laws of Victoria, Australia and the Commonwealth of Australia, excluding their conflicts of law provisions.

(b)You and us agree submit to the personal and exclusive jurisdiction of the State and Federal courts with jurisdiction in Victoria, Australia, to resolve any dispute or claim arising in connection with the Licence.

8. UNCISG excluded

The law known as the United Nations Convention on the International Sale of Goods is excluded from the Licence.

2. Acceptable Use Policy

1. No anticipated emergency
Safety Products are intended for use where:

• there is a risk of an emergency, but not the likelihood of an emergency;
• an emergency is possible but not expected or anticipated;
• 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:

• there is a likelihood of an emergency;
• an emergency is expected or anticipated; or
• there are usual circumstances at a particular time or place that significantly increase the likelihood of an emergency.

2. No use by minors
You may not allocate a Safety Device or a Safety App to a person under 18 years old, and such a person must not use a Safety Product.

3. Responsible use
Safety Products must not be used irresponsibly.  Irresponsible use includes:
(a)making prank, joke or unnecessary use of a Monitoring Service;
(B)making non-emergency use of a Monitoring Service other than for a reasonable amount of bona fide training, practice or testing purposes.

3. Product Recommendations

Failure to observe the following may result in Safety Products not working properly, or at all, or may otherwise compromise safety.

1. Keep Safety Devices and hardware that runs Safety Apps sufficiently charged at all times.

2. Ensure that Safety Devices and hardware that runs Safety Apps remain connected with strong signal to a compatible mobile network or corporate wifi network.

3. Promptly update Safety Devices and Safety Apps to new versions of applicable firmware or software.

4. Where possible, an End User should use an call their local police / emergency services number (e.g. 000 in Australia / 012 in some other countries – you are responsible for knowing your local number) as their primary source of emergency assistance.

5. Ensure that each End User has watched our ‘Duress Basics 123’ training video and any other End User training material we issue, before they use a Safety Product.  (You should keep training records.)

4. Security Interest in Rental Devices

1. PPS Law Security Interest

1. Application of Schedule

(a)This Schedule 4 applies when we supply a Rental Device.  We have a Security Interest in the Rental Device for the purposes of the PPS Law.

(b)The Security Interest is a PMSI to the extent that it can be under section 14 of the PPS Law.
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2. Registration and rights

(a)We may register our Security Interest.  You must do anything (such as obtaining consents and signing documents) which we  require for the purposes of:

(b)Our rights under your contract are in addition to and not in substitution for our rights under other law (including the PPS Law) and we may choose whether to exercise rights under our agreement and/or under such other law, as we see fit.

3. 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 in respect of goods that are not used predominantly for personal, domestic or household purposes:

(b)The following provisions of the PPS Law: