Terms and Conditions

1. Definitions and Interpretation

1.1 In these Terms

Additional Charges means the charges set out in the Charges Schedule;

Affiliates means with respect to any party, any other entity controlling, controlled by or under common control with such party. The terms “control”, “controlling” and “controlled”, as used in this definition shall mean the legal, beneficial or equitable ownership, directly or indirectly, of more than 50% of the issued share capital or more than 50% of the voting rights, or the power, directly or indirectly, to appoint a member of the board of directors or similar governing body of such entity;

Agreement means these Terms and Conditions of Supply;

Confidential Information means information of commercial, proprietary or other value disclosed by one Party to the other Party which is identified as confidential or might reasonably be considered to be confidential and that has not come into the public domain or been independently developed;

Charges Schedule means the charges set out at www.kinesisfleet.com/

Commencement Date the earlier of (a) the Customer using the Service or (b) seven (7) days from the date the Supplier dispatches the Hardware;

Contract means a contract between the Parties for the sale of Products, or provision of the right for the Customer to use for the duration of a contract the Products and / or licence (as applicable) any of the Products provided by the Supplier and/or for the Services entered into between the Customer and Supplier in accordance with clause 3;

Customer means the entity purchasing or acquiring the right to use and/or licence the Products provided by the Supplier and/or is the purchaser of Services, as applicable;

Data Reports means visual and other representations of telematic data accessible through the Website;

Firmware means the Supplier’s proprietary tracking unit management and control software;

Fleet means the vehicles, assets or personas to be tracked or traced via the Services;

Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the Party affected (including power failures, industrial disputes, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

Hardware means vehicle telematics units and associated peripherals which may or may not include Firmware, SIM card and network airtime and Onboard Unit

Initial Term the first time period of a grant of a licence to use the Product and paid for by the Customer as set out in the Sales Order Confirmation;

Installation means fitting the Hardware into the Fleet;

Intellectual Property means any patent, registered or unregistered design right, trade mark or other proprietary rights inherent in the Products any copyrights and database rights, all other similar or equivalent intellectual or commercial rights or property subsisting under the laws of each and every jurisdiction throughout the world whether registered or not, and whether vested, contingent or future and all reversions, renewals, revivals and extensions of any of the foregoing, and all rights under licences, consents, orders, statutes or otherwise in relation to any of the foregoing;

Kinesis and Kinesis Fleet are trading names of the Supplier and the Supplier’s parent company, Radius Payment Solutions Limited (Company number: 08260702), a limited company incorporated in United Kingdom;

Kinesis Platform means the IT systems that run the Service;

Location Data means data on the geographical position of the Fleet and other messages sent to or by the Fleet;

Mobile Communication Services means the mobile electronic communication services used for transmitting Location Data;

Non-Return Fee: means the amount set out on the Charges Schedule;

Onboard Unit means an electronic device that can be used for obtaining, capturing and transmitting Location Data and other driver behaviour events via satellite tracking and for sending and receiving such data;

Prices means the price:

a) for the Products and the Services set out in the Sales Order Confirmation; or

b) as agreed between the Customer and the Supplier; or

c) as published on the Supplier’s website from time to time; or

d) as set out in the Charges Schedule from time to time;

PAYGO Customer means an entity who is Supplied the Product and Services on a rolling monthly basis;

PPSA means the Personal Property Securities Act 2009 (Cth);

Products means the Hardware which is purchased by the Customer or provided to the Customer by the Supplier for the Customer to use for the duration of a Contract for the supply of Services and where applicable the Software and Firmware

Renewal Period shall be on a rolling quarterly basis as the set out in the original Sales Order Confirmation;

Sales Order Confirmation means the confirmation sent by the Supplier to the Customer;

Security Interest has the meaning given to that term in the PPSA;

Services means the delivery of such services as agreed with the Customer from time to time;

SIM means Subscriber Identity Module card providing network airtime;

Software means the Supplier’s proprietary application software and third party licensed software where applicable in existence at the commencement of the Contract or developed as a product of the Services;

Statistical Data has the meaning given in clause 10.5;

Supplier means Radius Fleet Services Pty Ltd, a private company incorporated in Australia (ABN 78 636 118 226) having its main business location at VIC 3122;

Terms means this Agreement along with the Sales Order Confirmation and invoice;

Termination Fee means an amount equal to the equivalent of three times the monthly Prices;

and

Website means the content (including all and any displayed materials and graphics such as databases, maps, photographs, and other images) of the Supplier websites at www.velocityfleet.com and www.kinesisfleet.com which shall contain the Data Reports.

1.2 The ejusdem generis rule is not intended to be used in the interpretation of these Terms; it follows that a general concept or category utilised in these Terms will not be limited by any specific examples or instances utilised in relation to such a concept or category.

1.3 The singular shall include the plural and vice versa and words denoting persons shall include bodies corporate and unincorporated associations of persons.

2. These Terms

These Terms contain the only conditions upon which the Supplier will deal with the Customer, and they govern all Contracts to the exclusion of all other terms and conditions.

3. Basis of Contract

3.1 Each order for Products given by the Customer to the Supplier will be deemed to be an offer by the Customer to purchase or acquire for the Customer’s use for the Contract duration (and in the case of Software and Firmware, licence) Products from the Supplier subject to these Terms and in order for a Contract to come into force the Supplier shall send a Sales Order Confirmation to the Customer.

3.2 Notwithstanding the above, use of the Products and/or the Services will, in any event, constitute acceptance of these Terms by the Customer and a Contract will come into force between the Parties on the basis of these Terms.

4. Delivery & Installation

4.1 Unless otherwise agreed in writing:

4.1.1 all Hardware will be delivered by the Supplier to the Customer’s premises or to such other address as may be agreed by the Parties;

4.1.2 risk in the Hardware will pass from the Supplier to the Customer when the Products are delivered to or where applicable collected by the Customer;

4.1.3 subject to clause 10.1, where the Customer installs the Hardware or appoints another person to install the Hardware, the Supplier shall not be liable for any loss or damage whatsoever, arising directly or indirectly, as a result of any negligence or failure to comply with the Supplier’s instructions in installing the Hardware;

4.1.4 where the Customer requests Installation of the Hardware by the Supplier an Installation date will be agreed with the Customer and the Installation may be performed by a third party engaged by the Supplier. Where the Customer cancels an arranged Installation with less than twenty-four (24) hours’ notice, or otherwise fails to present the vehicle at the agreed date, time or place of Installation the Supplier may charge the Customer a late cancellation charge of one hundred and ninety nine Australian dollars ($199) (excluding GST) per vehicle as amended from time to time.

5. Title

5.1 Where the Customer purchases the Hardware from the Supplier, legal and equitable title to the Hardware (excluding where applicable, Firmware and SIM card) will pass from the Supplier to the Customer upon the later of:

5.1.1 delivery of the Hardware; and

5.1.2 receipt by the Supplier of all amounts due from the Customer to the Supplier under any Contract or other agreement.

5.2 Until title to the Hardware (excluding where applicable Firmware and SIM card) has passed to the Customer:

5.2.1 the Customer will hold the Hardware as fiduciary agent and bailee of the Supplier;

5.2.2 the Customer will as applicable: (i) store the Hardware in a secure, safe, dry and clean environment separately from other products and goods; (ii) ensure that the Hardware is easily identifiable as belonging to the Supplier; (iii) not deface, destroy, alter or obscure any identifying mark on the Hardware or their packaging; (iv) ensure that no charge, lien or other encumbrance is created over the Hardware; and (v) deliver up the Hardware to the Supplier upon demand.

5.2.2.1 the Customer agrees that this Agreement and any Contract may constitute a security agreement for the purpose of the PPSA, in which case the Supplier may register any Security Interest arising under or on connection with them on the Personal Property Securities Register (established under the PPSA);

5.2.2.2 the Customer agrees that it does not have a Security Interest over the Supplier and will not register any Security Interest on the Personal Property Securities Register (established under the PPSA) against the Supplier;

5.2.2.3 the Customer shall provide (at its own cost) all assistance reasonably required to register a Security Interest or to otherwise give effect to the rights of the Supplier in respect of the Hardware or any Security Interest under this clause 5.2;

5.2.2.4 to the extent this Agreement or a Contract give rise to a Security Interest under the PPSA, the parties contract out of each provision which section 115(1) or 115(7) of the PPSA permits them to contract out. To the extent permitted by law, any disposal or other exercise of a right, power or remedy under this Agreement or a Contract or otherwise will only be taken to be under a provision of the PPSA if the exercising party so elects;

5.2.2.5 the Customer waives its right to receive:

5.2.2.5.1 each notice which section 157(3) of the PPSA permits it to waive and, to the extent capable of being waived, notice under any other provision of the PPSA; and

5.2.2.5.2 anything from the Supplier under section 275 of the PPSA and agrees not to make any request of the Supplier under that section; and

1.1.6 the Customer and the Supplier agree not to disclose information of the kind mentioned in section 275(1) of the PPSA. The Supplier agrees it will not authorise the disclosure of any information as contemplated by section 275(7)(c) of the PPSA.

5.3 Where a Customer has not paid for the Hardware, the Customer’s right to possession of the Hardware shall terminate immediately in the event of:

5.3.1 the Customer being the subject of a bankruptcy order or it entering into any form of liquidation

5.3.2 the Customer ceases to trade; or

5.3.3 the Customer seeks to or does encumber or in any way charge the Hardware.

5.4 All Hardware which is supplied by the Supplier to the Customer for the Customer’s use for the duration of the Contract for the supply of Services, shall at all times remain the Supplier’s property and the Customer shall not in any manner whatsoever hold itself out to be the owner of the Hardware nor deny title thereto to the Supplier, nor shall the Customer sell, lend, rent, encumber, dispose or part with possession of such Hardware, except in accordance with the Supplier’s express written instructions or prior consent.

5.5 The Supplier may bring an action for the price of the Hardware, and any other amounts due under a Contract, notwithstanding that title to the Hardware has not passed to Customer.

6. Undertakings and obligations of the Customer

6.1 The Customer shall:

6.1.1 only use the Products for their purpose and in a careful and proper manner in compliance with the Supplier’s instructions and specifications;

6.1.2 procure that all restrictions and obligations imposed on it by this Agreement apply equally to its group companies and its customers; and

6.1.3 ensure that all such group companies and its customers fully comply with all such restrictions and obligation.

7. Prices and Payment

7.1 The applicable Prices in respect of the Services provided to the Customer by the Supplier shall be as set out in the Sales Order Confirmation.

7.2 Each purchase of Services by the Customer under a Sales Order Confirmation shall be subject to these Terms. In the event of a conflict between the provisions of these Terms and any Sales Order Confirmation, the Sales Order Confirmation shall prevail.

7.3 No Order shall be deemed to be accepted by the Supplier unless and until the Sales Order Confirmation has been signed by a duly authorised officer or employee of the Supplier and its signature has been notified to the Customer.

7.4 The Customer shall pay the Prices, via direct debit, to the Supplier in accordance with this clause and as specified in an applicable Sales Order Confirmation. Unless otherwise specified in the Sales Order Confirmation, payment of all amounts due shall be made by the Customer within 14 days of the date of invoice.

7.5 All Prices payable under a Contract are exclusive of all goods and services tax and other taxes and duties applicable to the sale, licencing and supply of the Products or provision of the Services which will be payable by the Customer.

7.6 A party must pay GST on a Taxable Supply made to it under a Contract. It must do so at the same time and in the same manner as it is required to pay the consideration for the Taxable Supply to which the GST relates. A party making a Taxable Supply to another party under a Contract will issue a tax invoice in the format required by law to the other party for the Taxable Supply at the same time as the consideration for the Taxable Supply is due. Each party must do anything reasonable to assist the other party to comply with its GST obligations in relation to a Contract. Any capitalised terms used in this clause which are not defined in this Agreement have the same meaning as those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

7.7 If the Customer does not pay any amount properly due to the Supplier under or in connection with a Contract on or before the due date, the Supplier may charge the Customer interest on the overdue amount at the rate of 8% per year above the business overdraft rate of Commonwealth Bank of Australia (or any replacement of this rate as identified by the Supplier) from time to time, or the maximum rate allowable by law (which interest will accrue daily until the date of actual payment and be payable on demand).:

7.8 Unless agreed otherwise in writing, all Prices can be changed by the Supplier upon giving the Customer 30 days written notice.

7.9 The Customer shall make all payments properly due under a Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise.

 

8. Warranty

8.1.The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (“Warranty Period”), the Products shall:

8.1.1 conform in all material respects with their description;

8.1.2 be free from material defects in design, material and workmanship;

8.1.3 be of acceptable quality and

8.1.4 be fit for any purpose held out by the Supplier.

8.2 Subject to clause 3, if:

8.2.1 the Customer gives notice in writing during the Warranty Period within 10 Business Days of discovery that some or all of the Products do not comply with the warranty set out in clause 8.1; and

8.2.2 the Supplier is given a reasonable opportunity of examining such Products; and

8.2.3 the Customer (if asked to do so by the Supplier) returns such Products to the Supplier’s place of business at the Customer’s cost,

the Supplier shall, at its option, repair or replace the defective Products, or refund the price paid for the defective Products in full (where the Customer has purchased such Products).

8.3 The Supplier shall not be liable for the Products’ failure to comply with the warranty in clause 8.1 if:

8.3.1 the Customer makes any further use of such Products after giving a notice in accordance with clause 8.2;

8.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there are none) good trade practice;

8.3.3 the Customer alters or repairs such Products without the written consent of the Supplier;

8.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;

8.3.5 the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

8.4 Except as provided in this clause 8, the Supplier shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 8.1

8.5 These Terms shall apply to any repaired or replacement Products supplied by the Supplier under clause 8.2.

8.5.1 If a mandatory term is implied by law or a mandatory consumer guarantee applies to goods or services provided in connection with this Agreement, to the maximum extent permitted by law, the Supplier’s liability for breach of the term or guarantee is limited, at the Supplier’s option to:

8.5.1.1 in the case of goods not of a kind ordinarily acquired for personal, domestic or household use or consumption, either replacement or repair of the goods or payment of the cost of replacing or repairing the goods; and

8.5.1.2 in the case of services not of a kind ordinarily acquired for personal, domestic or household use or consumption, to either resupply of the services or the cost of the resupply of the services.

9. Website

9.1 Subject to and in accordance with the provisions of this Contract, the Supplier grants to the Customer for the duration of the Initial Term (and any Renewal Period thereafter) a personal, non-exclusive right to: access and browse the contents of the Website; and download and print Data Reports or any part thereof from the Website on the basis that no graphics on the Website shall be used separately from the corresponding text; and Customer shall not utilise the Supplier’s trademarks or trade names in any way without the express written consent of the Supplier save that the Customer shall ensure that the Supplier’s copy right and trade mark notices appear in all copies. No part of the Website may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service.

9.2 The Customer shall comply with any reasonable instructions or conditions relating to its use of the Website as may be posted on the Website or otherwise communicated to the Customer from time to time by the Supplier.

9.3 The Supplier shall supply the Customer with a unique, personalised user name and password to enable the Customer to access the Website and thereby use the Service. The Customer agrees that responsibility for the security of any user name or password issued pursuant to this clause 3 rests with the Customer;

9.4 The Supplier shall make the Kinesis Data Reports and the Location Data in respect of any data received from the Customer’s Onboard Unit available on the Website.

9.5 The Customer acknowledges and agrees that the availability of the Website (or relevant parts thereof) is dependent upon systems, technologies and other factors which are beyond the Supplier’s control including but not limited to Mobile Communication Services operated by third party providers and the Internet and interconnected systems. Due to the nature of such technologies, systems and other factors, problems including but not limited to, outages, link failures, power difficulties, network overloads, signal degradation and topographic, electromagnetic and other interferences and government intervention may have an adverse effect on the availability of the Website. The Supplier does not warrant that the features made available on the Website will continue to be supported by Mobile Communication Services or that the Customer will be able to use the features made available on the Website as part of the Services for the intended use, due to the fact that such depends partly on circumstances beyond the Supplier’s reasonable control.

9.6 The Supplier shall have the right at any time to temporarily suspend access to the Website for the purposes of maintaining or repairing the Website or any part thereof; and to make changes to the functionality, presentation, features, modes of access and material content in relation to the Website at any time without notice to the Customer

9.7 The Supplier will provide the Customer with SIM cards for each Onboard Unit that the Customer is entitled to use in accordance with the Contract, which the Customer shall use solely:

9.7.1 in combination with the Onboard Units; and

9.7.2 for transmitting Location Date between the Fleet and the Supplier’s platform as permitted as part of the Services.

10. Intellectual property rights and data

10.1 All Intellectual Property Rights in or arising out of or in connection with the Services or the Products (including the Hardware, Firmware and Data Reports) shall be owned by the Supplier.

10.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, or the Products, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

10.3 The Supplier owns all data generated by or related to the operation or performance of the Services (including the Data Reports and Location Data). This operational and performance data does not include any Personal information (which, for the avoidance of doubt, shall be dealt with subject to the provisions of clause 13).

10.4 The Customer owns all data provided by or on behalf of the Customer to the Supplier in connection with the Services. The Supplier may use this data as required for the purpose of performing the Services.

10.5 The Customer authorizes the Supplier to retain and use a copy of the data referred to clause 10.4 above, in anonymized aggregated form (such that the identity of the Customer and any Data Subject is not ascertainable) for the purpose of carrying out data analytics in relation to the services provided to its customers and otherwise developing new products and services (Statistical Data).

10.6 The Customer hereby grants the Supplier a non-exclusive, royalty free, fully-paid, irrevocable worldwide right and licence to access, review, analyse, use, manipulate, copy, and modify the Statistical Data for its own purposes, including but not limited to using the information to produce and distribute reports, analyses and data based upon the Statistical Data. However, except as regards such anonymization and use of the Statistical Data, the Supplier shall not use for its own purposes or disclose to any third parties Statistical Data that identifies the Customer or any of the drivers of the Customer’s vehicles. It being understood, however, that the foregoing restriction shall not apply to disclosures of Statistical Data that are:

10.6.1 required by law in response to request from law enforcement authorities;

10.6.2 made in connection with a court order or other similar demand;

10.6.3 made in connection with a contemplated merger, acquisition or similar transaction;

10.6.4 made to the Supplier’s Affiliates or related companies; or

10.6.5 made to the Supplier’s service providers for delivering the Services, on behalf of the Supplier.

11. Liability

11.1 Nothing in this Agreement or any Contract shall be deemed to exclude or limit the Supplier’s liability in respect of:

11.1.1 death or personal injury resulting from negligence; or

11.1.2 fraud or fraudulent misrepresentation; or

11.1.3

11.2 shall the Supplier be liable for any loss of profits, income, revenue, use, production or anticipated savings, loss of business, contracts or commercial opportunities, loss of or damage to goodwill or reputation, any loss or corruption of any data, database or software or in respect of any special, indirect or consequential loss or damage whatsoever.

11.3 Subject to clauses 11.2 and 11.3, the Supplier’s maximum aggregate liability under the Contract or otherwise shall be limited to the net price paid or to be paid by the Customer in the first twelve months in the year in which the loss or damage occurred.

Clauses 11.2 and 11.3 apply regardless of the form of action, damage, claim, liability, cost, expense or loss, whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise pursuant to the Contract.

11.4 If a Party is prevented or delayed in the performance of any of its obligations under the Contract by a Force Majeure Event, then that Party will be excused from the performance or punctual performance, as the case may be, of its obligation, to the extent that such Force Majeure Event continues and agrees to use all reasonable endeavours to overcome or work around the Force Majeure Event so as to be able to perform its obligations under the Contract.

12. Term and Termination

12.1 The Contract will come into force on the Commencement Date, and will continue in force until, in case of:

12.1.1 a fixed term Contract including the supply of Services, the later of completion of: (i) performance of all Services; and (ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract;

12.1.2 a fixed term Contract for the supply of Services which includes the provision of Products for use by the Customer for the duration of that Contract, the later of completion of: (i) any agreed period for the supply of Services and Products under the relevant contract, as set out in the Sales Confirmation Order; and (ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract; or

12.1.3 a PAYGO Customer Contract, when terminated by either Party.

12.2 In the case of either:

12.2.1 a fixed term Contract including the supply of Services; or

12.2.2 a fixed term Contract for the supply of Services, which includes the provision of Products, for use by the Customer for the duration of that Contract if neither party terminates the Contract, the Contract shall automatically roll on for the Renewal Period and subsequent Renewal Periods until terminated be either party in accordance with clause 12.

12.3 The Supplier may, without prejudice to any of its other rights arising under this Contract, on giving written notice, terminate the Contract:

12.3.1 on not less than 28 calendar days’ notice, such notice to expire on the last day of any calendar month; or

12.3.2 with immediate effect, if:

12.3.2.1 the Customer fails to observe or perform any material term or condition hereof, including in any event non-payment, and such default or breach (if capable of remedy) shall not be remedied within 20 calendar days after notice in writing, specifying the breach and requiring the same to be remedied, has been given; or

12.3.2.2 any of the following events occur: (i) the Customer goes into liquidation, or (ii) the Customer ceasing, or threatening to cease, to carry on business; or

12.3.2.3 there has been any delay or failure in performance under the Contract resulting from any event of Force Majeure, which delay or failure shall have continued for a period of three months.

12.4 In the event of termination in accordance with clause 12.3, the Customer shall pay any unpaid fees covering the remainder of the Initial Term and any subsequent Renewal Period.

12.5 In event that a PAYGO Customer terminates its Contract with the Supplier, the PAYGO Customer shall pay the Supplier the Termination Fee in accordance with the payment terms set out in clause 7.

12.6 Customer shall pay the Supplier a Non-Return Fee in accordance with the payment terms set out it clause 7.

12.7 In the event that a Contract for the supply of Services which includes the provision of Hardware for the duration of that Contract, is terminated, the Customer shall immediately return the Hardware to the Supplier. Where such Hardware is lost, damaged, or not returned to the Supplier on termination as required under these terms or an applicable Contract, the Customer shall pay the Supplier the Non Return Fee. For the avoidance of doubt if at any time the Customer does not have in its possession or control the Hardware delivered to it, the Supplier may treat the Hardware as lost unless the Customer can prove otherwise.

13. 13. Privacy

For the purposes of this clause 13, personal information has the same meaning as in the Privacy Laws. “Privacy Laws” means iall applicable privacy and data protection laws including the Privacy Act 1988 (Cth).

13.1 The Parties will each observe all provisions of the Privacy Laws, insofar as such provisions are applicable to that Party’s obligations under a Contract. This includes the obligation of the Customer to duly inform relevant individuals about the use of their personal information by the Supplier for the purposes set out in this Agreement.

13.2 The Supplier shall collect, hold and use personal information and the Location Data as required for the performance of this Agreement and the improvement of the Kinesis Service; and-

13.3.1 as required to comply with any law to which Supplier is subject, in which case the Supplier shall (to the extent permitted by law) inform the Customer of that legal requirement.

13.4 The Customer hereby consents to the transfer of its personal information outside of Australia, including in respect of the hosting of the Supplier’s data centres by a third party within the European Economic Area.

13.5 The Supplier shall take reasonable steps to protect any Personal information collected under a Contract which it holds against misuse, interference and loss, and unauthorized disclosure, access or modification.

13.7 Upon becoming aware of any unauthorised access to, or unauthorised disclosure of, the Customer’s personal information, the Supplier shall:

13.7.1 notify the Customer without undue delay and in any event within 72 hours; and

13.7.2 co-operate with the Customer and take such reasonable commercial steps as are directed by the Customer to assist in the investigation, mitigation and remediation of that unauthorised access or disclosure, provided in each case that the Customer shall reimburse Supplier in full for all costs (including for internal resources and any third party costs) reasonably incurred by Supplier in performing the obligations under this clause 13.5 to the extent the unauthorised access or disclosure, as the case may be, was not caused by Supplier.

13.8 The Supplier shall:

13.8.1 ensure that its employees who may have access to the personal information are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;

13.8.2 cease processing the personal information within 120 days upon the termination or expiry of the Agreement or, if sooner, the Service to which it relates and as soon as possible thereafter, either return, or securely wipe from its systems, the personal information and any copies of it or of the information it contains. For the avoidance of doubt this shall not apply to the Statistical Data which the Supplier shall be entitled to retain; and

13.8.3 to the extent permitted by law, make available to the Customer such further information and (as applicable) co-operate in the conduct of any audit or review exercise, as the Customer may reasonably require to provide assurance that Supplier are in compliance with the obligations set out in this clause 13, provided always that this requirement shall not oblige Supplier to provide or permit access to information concerning (i) Supplier internal pricing information; (ii) information relating to Supplier’s other customers (including any pricing information); (iii) any of Supplier non-public external reports; (iv) any internal reports prepared by Supplier internal audit function; (v) any intellectual property rights of the Supplier; or (vi) any information which would infringe the Privacy Laws. Further a maximum of one audit or review may be activated under this clause in any twelve (12) month period and provided always that the parties shall (acting reasonably) agree a mutually convenient date for the audit or review to take place.

13.9 The Customer warrants that:.

13.9.1 any personal information that the Customer discloses to the Supplier or stores or uses in connection with the Products has been collected in accordance with the Privacy Laws;

the individual to whom the personal information relates has been made aware of the identity of the Supplier and of the other matters of which the Customer is required to inform the person about whom it collects information and has obtained, and can demonstrate upon request, all necessary consents from such persons (including in respect of disclosure of the information to the Supplier and its Affiliates (including overseas recipients) for the purposes envisaged by this Agreement);

13.9.2 the disclosure of that personal information to, and its use by, the Supplier and its personnel under or in connection with a Contract is authorised by or under the Privacy Laws; and

13.9.2 it has complied with and shall, during the term of a contract, continue to comply with its obligations under the Privacy Laws;

and

13.9.3 Without limiting clause 13.7.2, the Customer and each individual using a vehicle within the Customer’s Fleet is aware of, and has consented to, the use of a device which tracks the location of relevant vehicles.

13.10 The Customer shall indemnify the Supplier and keep the Supplier indemnified against all claims, demands, actions, proceedings, damages charges, costs and expenses which may be brought against the Supplier in respect of or in connection in any way arising out of or in connection with a breach by the Customer of clause 13.7.

13.12 The Parties acknowledge that they have agreed that the Customer will respond to enquiries from individuals, any governmental and/or judicial body concerning the use of personal information by the Supplier and the Customer should have sufficient processes in place to handle such enquiries.

14. Confidential Information

14.1 Each Party agrees that for the duration of this Contract and for a subsequent period of three years they will at all times keep any Confidential Information of the other Party as confidential and shall not permit the same to be copied, used, disclosed or disposed of except in accordance with this Contract The provisions of this clause 14 shall not apply to Confidential Information which is already in the public domain or becomes so at a future date other than by breach of this Contract or which is required to be disclosed as a result of law or a court order.

 

15. General

15.1 No breach of any provision of these Terms or the Contract will be waived except with the express written consent of the Party not in breach.

15.2 If any provision of these Terms or the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of these Terms or the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the Parties, in which case the entirety of the relevant provision will be deemed to be deleted).

15.3 Contracts or this Agreement may not be varied except by a written document signed by or on behalf of each of the Parties.

15.4 The Supplier shall be entitled to amend these Terms by publication on the Supplier’s website, which amendments shall enter into force on the date that the Customer is notified thereof and apply to all Contracts entered into after that date.

15.5 The Supplier may freely assign its rights and obligations under these Terms or the Contract without the Customer’s consent. Save as expressly provided in a Contract, the Customer may not without the prior written consent of the Supplier assign, transfer, charge, license or otherwise dispose of or deal in a Contract or any rights or obligations under these Terms or the Contract.

15.6 Each Contract is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party save for any third party software sub-licensing provisions. The right of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to a Contract is not subject to the consent of any third party.

15.7 The Contract constitutes the entire agreement between the Parties in relation to its subject matter, and supersedes all previous agreements, arrangements and understandings between the Parties in respect of that subject matter, provided always that the usage of the Website by the Customer shall be governed by the Website Terms and Conditions.

15.8 Failure or delay by either Party in enforcing or partially enforcing any provision of this

Contract will not be construed as a waiver of any of its rights under this Contract. Any waiver by one Party of any breach of, or any default under, any provision of the Contract by the other Party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.

No term or condition of these Terms will be construed adversely to a party solely on the ground that the party was responsible for the preparation of these Terms or that provision.

15.9 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by the laws applicable in the State of Victoria, Australia. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the State of Victoria and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.