This version of this document may be referenced as: DMST 1.10
1. Background
(a)Duress Pty Ltd ACN 613 710 026 (we, us, our, etc) supplies Safety Devices and/or Safety Services (Safety Products) designed to help assist individuals in emergencies.
(b)You (you, your, etc) want to acquire Safety Products to help protect certain individuals associated with you e.g. your employees or contractors (End Users).
(c)These terms and conditions (these terms) apply when we supply goods and/or services (including Safety Products) to you.
2. Safety Products
Safety Products include:
(a)Safety Devices – such as hardware that can e.g report an End User’s location to a monitoring service and support alerts and communication in an emergency.
(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. Monitoring Services may include the bundled supply of a Safety Device or Safety App on a rental basis.
We may add Safety Products our product range from time to time, or remove them. These terms apply to all our Safety Products.
3. Supply Scenarios
Typically, we supply Safety Products under the following scenarios:
(a)Sale & Monitor – where we sell to you a Safety Device or Safety App for a one-off Charge, and provide Monitoring Service in respect of it for ongoing Charges over an agreed Term;
(b)Rent & Monitor – where we rent to you a Safety Device or Safety App, and provide Monitoring Service in respect of it, for ongoing Charges over an agreed Term; and
(c)Sale Only – where we sell a Safety Device or licence for a Safety App for a one-off Charge, and you arrange for a third party to monitor it, at your cost.
4. Your Contract
We supply goods or services under your contract, consisting of:
(a) Part I (Our liability to you) of these terms;
(b)Special Terms – see clause 5;
(c)Order/s – see clause 6;
(d)Product Schedule – see clause 7;
(e)Price List – see clause 8;
(f)Acceptable Use Policy; and
(g)the rest of these Terms.
5. Special Terms
(a)You and we may agree particular terms (Special Terms) that apply to your contract.
(b)A term is a Special Term if it is:
(i)included in an Order; or
(ii)recorded in a separate document, signed by you and us, that expressly nominates it as a Special Term
(c)A Special Term may relate to Charges or any other aspect of your contract.
6. Orders
(a)On request, we will consult with you to prepare a draft order (Order) which may specify:
(i)Safety Products;
(ii)Charges;
(iii)Minimum Term for any Safety Service;
(iv)Billing Period;
(v)payment terms; and
(vi)Special Conditions.
(b)You may submit an 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.
(c)We reserve the right not to accept an Order.
(d)Your Order is accepted when we confirm acceptance in writing.
7. Product Schedules
Product Schedule means terms and conditions that apply to a particular Safety Product or class of Safety Products, as published on our Web Site.
8. Price List
(a)We may publish a list (Price List) of standard Charges.
(b)The Price List applies by default if we supply a Safety Product and your contract does not provide for a different Charge.
(c)We may vary the Price List from time to time, but without retrospective effect.
9. Inconsistency
To the extent of any inconsistency between the parts of your contract;
(a)Part I (Liability) overrides anything except Special Terms that expressly reference, and vary, Part I (Liability);
(b)otherwise, an item that is higher in the list in clause 4 overrides an item that is lower –
(c)but nothing overrides any provision applicable to ‘ACL Consumers’ or ‘ACL Small Businesses’.
10. Moves Adds and Changes (MAC) Order
(a)If you wish to move, add to or change the Safety Products we already supply to you, you may give us an Order so requesting (MAC Order). For instance, you may wish to add more Safety Devices under an existing Sale & Monitor arrangement.
(b)If your MAC Order is for additional Safety Products at:
(i)the same pricing as your last Order; or
(ii)pricing otherwise pre-agreed between us –
we will process it as an Order.
(c)If your MAC Order is for Safety Products at different pricing from your last Order:
(i)we will notify you of any new or amended Charges that apply to the MAC Order (which may include ETCs where a MAC Order would reduce the value of Safety Products we supply to you);
(ii)you may confirm or withdraw the MAC Order within the next 30 days.
(d)We will implement a MAC Order as soon as practicable (e.g. deliver and activate the additional Safety Devices) and then:
(i)your contract is taken to be varied in accordance with the MAC Order; and
(ii)the new or amended Charges apply as notified (and any ETCs are payable).
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. Sale & Monitor / Rent & Monitor
In a Sale & Monitor or Rent & Monitor scenario, your contract:
(a)starts when we accept your Order (Start Date); and
(b)then continues until we have completed Licence Registration – see clause 15; and
(c)then further continues for the Minimum Term; and
(d)then further continues for any Extension Period/s; and
(e)then ends (End Date).
Between the Start Date and the End Date is the Term.
13. Auto-extension
(a)To ensure that your Monitoring Service remains active, we support Auto-extension of your contract Term.
(b)The Term automatically extends by one year:
(i)at the end of the Minimum Term; and
(ii)at the end of each Extension Period –
(Auto-extension).
(c)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 in respect of the Extension Period.
(d)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.
14. Trial Services
If we agree to supply you a Trial Service:
(a)The Trial Term is one month, unless we agree to a different period.
(b)Charges for the Trial Term will apply as per the Price List.
(c)Subject to clause 14(d), at the end of the Trial Term:
(i)the service is subject to Part D, with a Minimum Term of 12 months; and
(ii)Charges apply as per the Price List.
(d)Clause 14(c) does not apply if:
(i)there is a written agreement between us for a different arrangement; or
(ii)before the end of the Trial Term, you:
(A)give us written notice that you wish to cancel service at the end of the Trial Term; and
(B)return to us any Safety Devices we supplied for the purposes of the Trial Service.
15. Registering your Monitoring Service licence
(a)When we are to provide a Monitoring Service, the steps are:
(i)First, we register a licence in our monitoring system for your service (Licence Registration).
(ii)From that point, the system will allow you to log in and nominate an End User for the service (End User Nomination).
(b)You are responsible for End User Nomination.
(c)Periodic Charges for a Monitoring Service commence when we have completed Licence Registration. Note that your End User is able to download and install a Safety App at any time, even if any Safety Device you have ordered is still in transit.
16. Sale Only
In a Sale Only scenario, the Software Licence Terms in Schedule 1 apply in perpetuity to a Safety App.
17. Safety Products
(a)We will supply Safety Products in accordance with your contract.
(b)Safety Products will perform in accordance with their Product Descriptions in all material respects, subject to being used in accordance with Product Recommendations. We do not warrant, and are not liable for, the performance of a Safety Product used in breach of Product Recommendations.
18. Charges
Our Charges may include:
(a)Additional Charge e.g. where we agree to supply Safety Products out of the scope of your contract.
(b)ETC or Early Termination Charge e.g. where we accept a MAC Order reducing your spend on Monitoring Service.
(c)Gateway Charge – which applies if we authorise a third party of your choice to provide monitoring services to you, for provision of our platform gateway service.
(d)Licence Charge – which is a Periodic Charge applicable to ongoing use, maintenance and updating of software we supply e.g. Safety Apps or software installed on a Safety Device you buy or rent.
(e)Periodic Charge e.g. an amount payable Monthly, quarterly or annually for a service.
(f)One-time Charge e.g. a one-time payment such as the outright purchase price for a Safety Device. A Licence Charge also applies in respect of software installed on the Safety Device.
(g)Set Up Charge e.g. in relation to commissioning of a Safety Device.
(h)Up Front Charge i.e. an amount payable on or immediately after we accept an Order or a MAC Order.
19. Invoicing and late billing
1. Invoicing
We may invoice you for a Charge or Charges at any time, but you need only pay an invoice by its Due Date.
2. Late billing
We will endeavour to include in each invoice all Charges for the relevant Billing Period. As this may not always occur, we may include unbilled charges in any later invoice(s) issued up to 120 days after the date the unbilled Charge accrued.
20. Payment
1. Obligation to pay
In consideration for our supply of Security Products, you must pay our Charges.
2. Due Date
Unless we and you agree otherwise, you must pay an invoice within 7 days after we send it (Due Date).
3. Interest on arrears
If you do not pay any amount invoiced by its Due Date, we may charge you a late fee of 10% per annum with monthly rests, calculated on the daily balance of the overdue amount from the due date until the date of payment in full.
4. Method
(a)You must pay each invoice in:
(i)AUD; or
(ii)if you are located outside Australia, another currency we specify –
by:
(iii)Direct Debit; or
(iv)if we approve in writing – by cleared funds transferred to the bank account notified from time to time.
(b)Where you must pay by Direct Debit:
(i)Direct Debit payment is a precondition to supply of Security Products to you.
(ii)We may suspend supply of Security Products if Direct Debit arrangements are not maintained.
(iii)You must not cause to be reversed any Direct Debit payment to us, 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.
21. 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 the express consent of us or our licensor.
(c)For the length of the contract, we may use your brand mark in our collateral, such as websites and brochures.
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:
(i)retain a copy of it, and view it, for as long as we consider reasonably necessary;
(ii)supply it to police or another law enforcement agency on lawful request.
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:
(i)individuals who enter Consumer Contracts (as defined in the ACL) – we call those persons ACL Consumers in these terms – refer to the Dictionary for the detailed definition; and
(ii)businesses that enter Small Business Contracts (as defined in the ACL) – we call those persons ACL Small Businesses in our terms – refer to the Dictionary for the detailed definition.
(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:
(i)that cannot be excluded; and
(ii)where the consumer’s rights in case of breach cannot be limited by your contract, or can only be limited to a certain extent.
(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:
(i)replacing the goods or supplying equivalent ones;
(ii)repairing the goods;
(iii)paying the cost of replacing the goods or of acquiring equivalent ones; or
(iv)paying the cost of having the goods repaired; and
(b)in relation to these services, 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.
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:
(i)a police or other law enforcement request for information or evidence in relation to you (or an End User) or your (or an End User’s) use of a Safety Product; or
(ii)a court or other competent authority’s direction for provision of information or evidence in relation to you (or an End User) or your (or an End User’s) use of a Safety Product; or
(iii)a demand from a legal practitioner for information or evidence in relation to you (or an End User) or your (or an End User’s) use of a Safety Product.
(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:
(i)a Safety Product is actually or allegedly used in a way that breaches any Law or infringes the rights of any third party; and
(ii)we suffer Loss or reasonably incur expenses as a result.
(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:
(i)we may register our interest in a Rental Device under the PPSA; and
(ii)the PPSA Terms apply to your contract.
(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;
(b)you threaten not to pay us money that you owe us, or will owe us in the future;
(c)you cause to be reversed any Direct Debit payment to us (except with our prior written agreement);
(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;
(e)you are subject to an Insolvency Event (except for as long as an Insolvency Protection Stay applies – see clause 56);
(f)it becomes technically infeasible for us to continue the Safety Service;
(g)there is an emergency that warrants it;
(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;
(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
(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:
(i)legislative or regulatory requirements, or
(ii)the order of a court or lawful direction of a competent authority –
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:
(i)an Early Termination Charge;
(ii)a reasonable administration Charge; and
(iii)Charges incurred up to the date on which your contract ends.
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;
(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:
(i)you are a corporation; and
(ii)your contract started on or after 1 July 2018 –
our enforcement of certain rights may be stayed by the operation of sections 415D, 434J or 451E of the Corporations Act (Insolvency Protection Stay).
(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:
(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.
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:
(i)verbally or in writing; or
(ii)by voice call (including an a robocall call or a recorded message that contains the notice) or, if you do not answer a voice call, by leaving voicemail.
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;
(b)if we give it to you by voicemail during business hours in your locality – two hours later;
(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;
(d)if we fax it during business hours in your locality – two hours later, subject to our fax machine receiving a successful transmission confirmation;
(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;
(f)if we email it during business hours in your locality – two hours later, subject to a ‘delivery failure’ message not being received;
(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
(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.
2. Form of notice
You must give a notice in writing.
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.
(b)We are not liable to you for any delay in the provision of any Safety Product.
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.
(i)A ‘person’ includes any entity which can sue and be sued.
(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.
(m)Any matter in a party's discretion is in its absolute and unfettered discretion.
(n)A reference to a document includes the document as modified from time to time and any document replacing it.
(o)The words ‘in writing’ include any communication sent by letter, fax or email or any other form of communication capable of being read.
(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.
(q)Money amounts are stated in AUD unless:
(i)otherwise specified in this document; or
(ii)you are located outside Australia – in which case we may elect to specify charges in another currency.
(r)Money amounts are exclusive of any applicable GST.
(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
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).
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.
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.
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:
(i)replacing the goods or supplying equivalent ones;
(ii)repairing the goods;
(iii)paying the cost of replacing the goods or of acquiring equivalent ones; or
(iv)paying the cost of having the goods repaired; and
(b)in relation to these services, 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.
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.
(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.
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:
You must not allow an End User to (and an End User must not) use or rely on a Safety Product if:
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.
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:
(i)ensuring that our Security Interest is enforceable, perfected and otherwise effective under the PPS Law;
(ii)enabling us to gain first priority (or any other priority agreed to us in writing) for our Security Interest; and
(iii)enabling us to exercise rights in connection with the Security Interest.
(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:
(i)section 95 (notice of removal of accession to the extent it requires us to give a notice to you);
(ii)section 96 (retention of accession);
(iii)section 125 (obligations to dispose of or retain collateral);
(iv)section 130 (notice of disposal to the extent it requires us to give a notice to you);
(v)section 132(3)(d) (contents of statement of account after disposal);
(vi)section 132(4) (statement of account if no disposal);
(vii)section 135 (notice of retention);
(viii)section 142 (redemption of collateral); and
(ix)section 143 (reinstatement of security agreement).
(b)The following provisions of the PPS Law:
(i)section 123 (seizing collateral);
(ii)section 126 (apparent possession);
(iii)section 129 (disposal by purchase); and
(iv)section 130 (notice of disposal to the extent it requires us to give a notice to you);
(v)section 134(1) (retention of collateral) –
confer rights on us. You agree that in addition to those rights, we shall, if there is default by you, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any Rental Device, not only under those sections but also, as additional and independent rights, under your contract and you agree that we may do so in any manner we see fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
(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.
4. Non-disclosure
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 on your part to ensure that section 275(6)(a) of the PPS Law continues to apply. The agreement in this clause is made solely for the purpose of allowing to us the benefit of section 275(6)(a) and we shall not be liable to pay damages or any other compensation or be subject to injunction if we breach this clause.
5. No competing security interest
You must not create, purport to create or permit to be created any Security Interest in a Rental Device other than with our express written consent.
6. Sub-hiring Equipment during Security Period
(a)Except to your End User, you must not lease, hire, bail or give possession of (sub-hire) a Rental Device to anyone else unless we (in our absolute discretion) first consent in writing. Any such sub-hire must be in writing in a form acceptable to us and must be expressed to be subject to our rights under your contract.
(b)You must take all steps including registration under PPS Law as may be required to:
(i)ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPS Law;
(ii)enable us to gain (subject always to our rights) first priority (or any other priority we agree to in writing) for our Security Interest; and
(iii)enable each of us to exercise our respective rights in connection with our Security Interest.
7. Costs
We may recover from you the cost of doing anything under this Schedule 4, including registration fees and the costs of notification.
7. Dictionary
In this Schedule 4:
PMSI means a purchase money security interest under the PPS Law.
PPS Law means the Personal Property Securities Act 2009.
Security Interest means a security interest under the PPS Law.
On December 2016, Version 0.9 was in effect this was replaced on the 1st Of December 2020 with Version 1.00 here is the link to the previous copy and exactly what it said ‘Click here to view’
(a) By accessing, downloading, installing or using the Duress application (Application), you are subject to the following terms, which may be updated by us from time to time:
(i) The terms and conditions in this document (Terms); and
(ii) our Privacy Policy (duress.com/privacy-policy).
(b) Before accessing, downloading, installing or using the Application, you should read both the Terms and the Privacy Policy carefully.
(c) The Terms in this document permit users to access and use the Application including using the services and functionality made available through the Application, viewing Product Content (defined in clause 2(c)) provided by Duress and third parties, communicating with Duress and reviewing product and service information.
(d) You agree to be bound by these Terms by:
(i) Clicking to accept the Terms, where this option is made available to you when you sign up as a User; or
(ii) Using or accessing any part of the Application.
(e) If you do not agree to these Terms, you are not permitted to access and use the Application and you should immediately cease using the Application.
(f) Duress may from time to time review and update these Terms to take account of new laws, regulations, products or technology. Your use of the Application will be governed by the most recent Terms posted within the Application or on our website at www.Duress.com (Website). By continuing to use the Application, you agree to be bound by the most recent Terms. It is your responsibility to check the Terms regularly which can be accessed via the Application or on the Website for updated versions of the Terms.
(g) Duress is committed to ensuring that the Application is efficient and up-to-date. As such, the Application is subject to change at any time and for any reason without notice and may contain errors. Such change may also include Application update(s) from time to time without notice. The Application is currently available through the major app stores (and for any additional systems we decide to extend the availability of the Application to), and you will need to download the updates to continue using the Application. We give no guarantee that such update(s) will always work with your Os version that you have installed on your device.
(a) By accessing, downloading, installing or using the Duress application (Application), you are subject to the following terms, which may be updated by us from time to time:
(b) We will endeavour to react to any emergency declared but we are not a replacement for 000 (or any equivalent emergency contact number in your country). You need to take responsibility for your own safety and security. Please call 000 (or any equivalent emergency contact number in your country) immediately if you are in danger or in an emergency. We do not guarantee that any notification message delivered via the Application will be received by our emergency responders or the emergency services.
(c) The Application enables Users to access various materials, including geographical map, live video streaming, contact details of response team and police and any other content provided by us to you including third party content (Product Content).
(d) You agree and acknowledge that by using or accessing any part of the Application you allow Duress and its response teams and a nominated member or employer of a company, corporation or organisation providing the Duress app on your behalf to access your information including but not limited to your location, your live video streaming, your contact details and any other content we deem necessary for the purpose of carrying out the services at any time including when you trigger any of the Application’s smart triggers.
(a) In order to access the Application, you must sign up to be a User. You will need to register your details through the Application.
(b) To ensure that our response teams provide the most accurate details to the police in the event of an emergency, you will be requested to provide your name, email address, home address and a photograph of yourself during the sign up process. For security purposes, we will also require you to set a 4 digit pin (Pin) which will be prompted every time you use the Application.
(c) Once you have signed up for an account, you will be required to enter your Pin each time you wish to log on to the Application.
(d) If you are aged below 18 years, you are required to seek permission from your parent or guardian before registration. You are taken to have received prior permission from your parent or guardian when you register through the Application.
(e) You warrant that all information and data provided by you in the registration is accurate, complete and up to date. You will promptly inform us if there is any change to this information or data.
(f) You agree that you will not disclose, or permit disclosure of, the Pin to any person. You will be fully responsible for all acts and omissions of any person who accesses your account using your Pin, as if they were your own acts and omissions. We will not in any event be liable for any loss, damage, claims, costs or expenses arising out of the use or misuse of your Pin, and you will indemnify us against all loss, damage, claims, costs or demands in this regard.
(g) You may elect to change your Pin at any time using the facility provided through the Application. You must immediately notify us of any Pin which is lost, disclosed or becomes inoperable or used in an unauthorised manner.
(a) We retain all rights to make available any advertisements we deem fit on the Application on our own behalf and on behalf of any third parties.
(b) You agree for data to be sent to third parties and advertisements to be displayed on your Application when you use or access any part of the Application.
(a) In order to use and access the Application, you will have to purchase the Subscription. The Subscription is a monthly or yearly subscription fee as specified on the Website or Application and any applicable taxes or charges (including any credit card fees or merchant fees) which may be levied on the transaction, goods or services, which will be charged to your credit card on a monthly or yearly basis from the time of your purchase.
(b) Subject to the remaining terms of this clause, you agree that we will charge and collect payment from you for the Monthly or Yearly Subscription Fee on a monthly or yearly basis when you click to purchase the Subscription.
(c) You may terminate your use of the Application at any time in accordance with clause 12(a) and no further charges will be made on your credit card from the last day of your subscription month and the Application will still be available to you until the last day of your subscription month.
(d) You acknowledge and agree that Duress will not refund any of the Monthly or Yearly Subscription Fee that has been charged on your nominated credit card whether in part or in whole to you from the time that you have clicked to purchase the Subscription until the termination or suspension of your use of the Application in accordance with clause 12.
(e) You acknowledge and agree that you are responsible for providing accurate information in relation to any purchases made on the Subscriptions, including providing correct and valid credit card or alternate payment information, name and address and contact information as may be required.
(f) To the extent that you do not comply with the requirements in clause 5(e), we may not be able to process your payments for the Subscriptions and we may terminate your use of the Application in accordance with clause 12(b).
(g) You acknowledge and agree that we work with third party suppliers to process your payments for the Subscriptions.
(h) Unless specified otherwise, all dollar amounts specified on the Website and Application are in Australian Dollars.
(a) Subject to the restrictions specified in clause 7, Duress grants you a worldwide, non-exclusive and non-transferable licence to download, use and access the Application for your own personal use in accordance with the Terms.
(b) By using and accessing any part of the Application, you acknowledge and agree that any services and Product Content made available to you is provided to you solely for the purpose of relaying your information to the police for emergency purposes only when any of the Application’s smart triggers have been activated.
(c) All rights pertaining to any information, photo, video, comment, review, content, communication, text, or other material that you post and submit to the Application (User’s Content) belongs to you. However, you acknowledge and agree that you are responsible for the User’s Content that you post and submit to the Application and by posting, linking or submitting your User’s Content to the Application, you grant to Duress a worldwide, non-exclusive, non-transferable and royalty free licence to download, use, access, copy, reproduce, distribute, transfer and publish the User’s Content it deems fit including without limitation, to carry out the services provided under the Application, to distribute to any media and for legal purposes.
(d) User’s Content that you post on the Application or otherwise provide or communicate to Duress will be treated as non-confidential and non-proprietary information.
(e) Duress has the right, but not the obligation, to monitor any User’s Content made available by you on the Application. Duress reserves the right, in its absolute discretion, to block, modify or remove any User’s Content contained on the Application without notice, and will not be liable in any way for possible consequences of such actions.
(a) Except as otherwise expressly permitted by Duress, you must not
(i) Use the Application for inappropriate or illegal purposes, for example, prank calling or false claims of an emergency;
(ii) copy, modify or make derivative works of the Application and the Product Content or any portion of the Application or the Product Content;
(iii) Reverse engineer or attempt to extract the source code of the Application;
(iv) Make available the Application or Product Content to any third parties without our prior written approval, for example, by sublicensing, leasing, assigning, redistributing publishing, transferring or selling;
(v) Engage in any commercial activity including marketing, advertising or commercial promotion of goods or services, resale, collect and use any product lists or information for the benefit of other merchants, data mine or use robots or other data collection methods;
(vi) Impersonate or falsely claim to represent a person or organisation;
(vii) Defame, abuse, stalk, harass, threaten or otherwise violate the legal rights of others, including without limitation, rights relating to privacy and publicity;
(viii) Upload, post, link to, or otherwise communicate or distribute any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful material or information, or otherwise use the Application in a manner which is unlawful or would infringe the rights of another person including any intellectual property rights;
(ix) Or post, link to, or otherwise distribute any information, material or item which contains a virus, trojan horse, worm or other harmful or disruptive component.
(b) Unauthorised and inappropriate use of the Application may give rise to the following:
(i) A claim for damages and/or may result in legal proceedings being taken against you; and/or
(ii) Suspension and/or termination of your use of the Application in accordance with clause 12(a).
(c) Duress provides no warranties and cannot guarantee that any file, program, access or use of the Application is free from viruses, malware or other harmful technology or material which could damage or infect your data, hardware, software or other equipment. By accessing and using the Application you assume all risk in this regard and you release Duress from all applicable liability and responsibility.
(a) The Application may contain links to other websites or applications. Duress provides those links as a ready reference for searching for third party goods and services on the internet and not as an endorsement of those websites, their operators, the goods, services or content that they describe.
(b) Other websites or applications which are linked to the Application are not covered by these Terms, and may have their own terms and conditions and privacy policy. If you choose to access these linked sites, you do so at your own risk. Duress is not responsible for and will not be liable in respect of the content or operation of those websites or applications any of the goods, services or content that they describe. Duress is not responsible for and will not be liable in respect of any incorrect link to an external website or applications.
(a) Subject to the consumer guarantees provided for in consumer protection legislation (including the Australian Consumer Law), Duress does not warrant that you will have continuous access to the Application. Duress will not be liable in the event that the Application is unavailable to you due to device or service limitations, malfunctions, upgrades, preventative or remedial maintenance activities or interruption in telecommunications supply.
(b) Duress does not guarantee the delivery of communications over the internet as such communications rely on third party service providers. Electronic communication (including electronic mail) is vulnerable to interception by third parties and Duress does not guarantee the security or confidentiality of these communications or the security of the Application.
(c) Duress does not provide, and has no control over, communications, networks or services, the internet or other technology required or used across the Application and accepts no responsibility for any direct or indirect loss in any form associated with them, whether due to congestion, technical malfunction, viruses or otherwise.
(d) Details contained on the Application relating to goods and services have been prepared in accordance with Australian law and may not satisfy the laws of another country. Duress does not warrant that:
(i) The goods or services available on this Application; or
(ii) The Application and its Product Content,
Comply with the laws of any other country. It is your responsibility to determine whether the goods or services comply with the laws of your jurisdiction.
(e) If you access and use the Application or its Product Content from outside Australia you do so at your own risk.
Any personal information submitted by you to Duress including for the purpose of purchasing a Subscription is subject to and will be handled in accordance with the Duress privacy policy (Privacy Policy). The Privacy Policy forms part of these Terms and is set out at http://www.duress.com/legal/privacy-policy You agree that, by using the Application or communicating with Duress, you have read the Privacy Policy, understood its contents and consented to its requirements.
(a) All intellectual property rights, including copyright and patents in the Application, Duress goods and services, and all components of them are owned or licensed by Duress or any of its related entities. You must not copy, modify or transmit any part of the Application.
(b) The Application contains trademarks, logos, service names and trade names of Duress or third parties which may be registered or otherwise protected by law. You are not permitted to use any trademarks, logos, service names, trade names or any other content or copies of the content appearing on the Application.
(c) You acknowledge that certain Product Content is provided under licence from third parties, which may be subject to intellectual property rights owned by those third parties.
(a) Subject to clause 5, you may terminate your Subscription at any time on written notice to Duress or via the third party supplier which manages your Subscription.
(b) Duress may at any time immediately suspend or terminate your access to the Application or any feature of the Application for any reason (including due to your breach or alleged breach of these Terms or failure to pay for the Subscriptions) in its sole discretion and without prior notice. Any indemnities given by you and any limitations of our liability survive such termination.
(c) Where reasonably able to do so, Duress will provide reasonable notice to you if it intends to discontinue your access or use of the Application.
(d) Unless provided otherwise, upon any suspension or termination, the rights and licences granted to you in these Terms will end and you must stop using the Application.
(a) To the full extent permitted by law, Duress excludes all warranties, whether express or implied, including any warranties or representations concerning availability of the Application, quality, completeness, accuracy, suitability, acceptability or fitness for purpose in relation to the Application, the Product Content, the User’s Content, the conduct of any users, all links to or from the Application and the goods and services listed, advertised or accessible on the Application.
(b) Subject to the consumer guarantees provided for in consumer protection legislation (including the Australian Consumer Law) Duress excludes all liability for any loss, damage, claim, cost or expense whatsoever arising out of or in connection with these Terms, the Application, the Product Content, the User’s Content and all links to or from the Application.
(c) Subject to the consumer guarantees provided for in consumer protection legislation (including the Australian Consumer Law) Duress excludes all liability for any loss, damage, claim, cost or expense whatsoever arising out of or in connection with the goods and services listed, advertised, accessible or made available on the Application.
(d) We are not responsible or liable for any loss or damage you or any third party may suffer or incur in connection with any services you receive after using the Application or for any acts, omissions, errors or defaults of any third party in connection with that service.
(e) Whilst every effort is made to ensure the Product Content information provided on the Application is current, we have no responsibility or liability for any errors contained in the information. Inclusion of any information on the Application is not an endorsement of any organisation, product or service.
You agree to fully indemnify Bodyguard Technologies Pty Ltd ACN 613 710 026 trading as Duress, its directors, officers, directors, employees, consultants, agents and affiliates in respect of all loss, damage, costs, expenses (including legal fees on a full indemnity basis), fines, penalties, claims, demands and proceedings howsoever arising, whether at common law (including negligence) or under statute, in connection with any of the following:
(a) Any breach of these Terms by you;
(b) Your access or use of the Application; or
(c) Your communications with Duress or any other third party.
These Terms are governed by and must be construed in accordance with the laws of the State of Victoria, Australia. You submit to the non-exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms, their performance and subject matter.
If you breach these conditions and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach these Terms.
Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.
The above Terms constitute the entire agreement of the parties and supersede any and all preceding and contemporaneous agreements between you and Duress. Any waiver of any provision of the Terms will be effective only if in writing and signed by a Director of Duress.
If you have questions about the Application, the Terms or Privacy Policy, please contact us at info@duress.com
Last updated: June 2018