Guardian Additional Contract Provisions – Products and Services (Americas)
Effective October 2025
1. Background
1.1 Seeing Machines Limited has developed the Guardian products and services to monitor a driver’s attentiveness to enable intervention if a fatigue or distraction event is detected.
1.2 The Customer intends to purchase the Guardian product and services for use in the Customer’s vehicles.
1.3 Seeing Machines intends to provide the Guardian product and services to the Customer, and the Customer agrees to accept the Guardian product and services, subject to the terms and conditions as set out below.
2. Definitions
The terms: Controller, Commission, Data Subject, Member State, Processing, Personal Data, Personal Data Breach and Supervisory Authority have the same meaning as in the GDPR.
Affiliates means any entity that, directly or indirectly, controls, is controlled by, or is under common control with a specified entity, including any holding company, subsidiary, or subsidiary of a holding company of that entity, where “control” means the power to direct or cause the direction of the management and policies of the entity, whether through ownership of voting securities, by contract, or otherwise.
Additional Terms means any additional terms attached to, or referenced in, the Customer by Seeing Machines which apply to the Customer’s use of the Products or Services. By signing the Sales Documentation the Customer is agreeing to be bound by the Additional Terms and such Additional Terms are incorporated herein.
Charges means the fees and charges for the Products and Services (including Translation Costs, if applicable) as set out in the Sales Documentation.
Customer means the Customer specified in the Sales Documentation.
Confidential Information means any information provided by one party to the other, or otherwise obtained by that party (whether oral, written or viewed by inspection) which is marked as “proprietary” or “confidential” or similar language or which the recipient knows or reasonably should know is proprietary or confidential. Confidential Information also includes: (a) the terms of this Contract and any Purchase Order; (b) Intellectual Property, software, specifications, ideas, concepts, plans, formulas, drawings, procedures, manufacturing instructions, financial information, reports, technical information and forecasts; (c) the Seeing Machines Materials; (d) information about the Customer’s operations, finances, End-Users and operator performance; and (e) information about the operations, finances, employees, subcontractors, technology, know-how, forecasts, plans or policies of any company in the Seeing Machines Group.
Consumer means an individual or entity that purchases goods or services for personal use, rather than for commercial purposes.
Contract means this agreement which is comprised of these terms and the Sales Documentation.
Currency means the currency of the Charges under this Contract, as specified in the Sales Documentation.
Data Protection Law means any laws relating to data protection and privacy which apply to the Parties activities contemplated hereunder.
Documentation means documents about the Products or Services as provided by a Seeing Machines company from time to time, and includes: Data Authorisation, Guardian Management Document, Project Management Plan, the Customer’s Configuration Requirements, Fatigue Intervention Plan, Guardian Live Website User Guide, Installation manual, Driver’s Guide, or Manager’s Guide.
Dispute means any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of the agreement to arbitrate contained herein.
Dispute Notice means a written notice from one party to the other party of the existence of a Dispute.
Dispute Resolution Procedure means the dispute resolution procedure described in Clause 16.11.
End of Life means the date on which Seeing Machines ceases to market, sell, or distribute a Product or Service.
End of Support means the date on which Seeing Machines ceases to provide support services, updates, or maintenance services for a Product or Service.
End-User means each person who has access to, uses or operates the Products, including the Customer’s Personnel, employees, invitees, agents and subcontractors (but not including Seeing Machines’ Personnel). To avoid any doubt, an End-User is a Data Subject.
Force Majeure Event means any acts, events, omissions or accidents which is beyond the control of the affected party including any industrial dispute, strike, lockout, failure of a utility service or transport network, act of God, storm, earthquake, fire, flood, declared natural disaster, pandemic, epidemic, quarantine, biological contamination, entry and exit restrictions, war, terrorism, riot, civil commotion, malicious damage or change in any law, governmental order, rule, regulation or direction.
GDPR means Regulation (EU) 2016/679 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data.
Incoterm means DDP.
Infringement Claim means any claim made against the Customer alleging that any part of the Product, Services or Seeing Machines Materials infringes a third party’s Intellectual Property Rights.
Initial Subscription Period has the meaning given in clause 13.1.
Intellectual Property or Intellectual Property Rights include copyright, trademark, design, patents (whether registered or not), circuit layout rights, trade, business or company names, domain names, or other proprietary rights, Confidential Information or any rights to registration of such rights existing in any country and whether created before on or after the start of this Contract.
Jurisdiction means Business Court, Oakland County, Michigan, USA or the U.S. District Court – Eastern Michigan District
Message Queue means, if selected by Customer as an optional service, the message queue services hosted by Amazon Web Services Inc, which is used to provide a subset of the Product Data to the Customer.
Payment Terms means the terms of payment of the invoices issued by Seeing Machines for the Charges.
Personnel means a party’s officers, employees, agents, representatives and subcontractors.
Place of Arbitration means Oakland County, Michigan, USA.
Product and Guardian means the Seeing Machines Guardian Product including any accessories, as specified in the Sales Documentation.
Product Data means any information, data and content (including video and images, GPS and other vehicle data) captured or generated by the Product or in the course of providing the Services, including data about End-Users (which may include Personal Data).
Product Warranty means the warranty in relation to the Product.
Purchase Order means a purchase order issued by the Customer pursuant to this Contract, if any.
Renewal Subscription Period has the meaning given in clause 13.1.
Restricted Transfer means:
a) a transfer of Personal Data to a Processor or Sub-Processor, or
b) an onward transfer of Personal Data to a Processor or Sub-Processor, or between a Processor or Sub-Processor,
in each case, where in the absence of an adequacy decision pursuant to Article 45(3) GDPR, such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses.
Sales Documentation means the quote or estimate provided by Seeing Machines to the Customer which contains details on the number of Products, Services and Charges.
Schedule of Installation means the dates when the Product and related hardware components are to be installed and commissioned into service, including details on who the installer is and where the installation is to be conducted, as agreed in writing between Customer and Seeing Machines.
Seeing Machines means Seeing Machines Inc. of 28345 Beck Rd. Suite 310, Wixom, MI 48393, USA.
Seeing Machines Group means Seeing Machines and its Affiliates.
Seeing Machines Materials means materials created by or on behalf of the Seeing Machines and provided to Customer in the course of performing this Contract including the Documentation, Software, designs, drawings, Specifications, reports generated by the Products or about the performance of the Products, and materials or reports provided as part of the Services.
Services means the services of installing the Products, and the ongoing monitoring, reporting and support, and any additional services as agreed by both parties in writing.
Software means all software provided by Seeing Machines to the Customer, including any software that may be embedded or integrated into any Products and any ‘software as a service’ or hosted software services, including Guardian in-vehicle system software, Guardian Live, Application Programming Interface and Message Queue.
Specifications means the written specifications for the manufacture and performance of the Products or Services as published by Seeing Machines from time to time.
Standard Contractual Clauses means the international data transfer model clauses for the transfer of Personal Data to third countries as released by the European Commission and published at https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32010D0087.
Subscription Period means the Initial Subscription Period and Renewal Subscription Period, if any.
Sub-Processor means the entities appointed by or behalf of Seeing Machines to Process Personal Data, in connection to this Contract as listed on the Seeing Machines Sub-Processor Link available here: https://seeingmachines.com/seeing-machines-sub-processor-list/
Threshold Amount means US$350 per day.
Warranty Claim Process means the process for the Customer to claim a remedy under a Services Warranty or Product Warranty, as set out at [Overview] Customer Support – Warranty Returns.
Warranty Period means 12 months, or such other period as specified in the Sales Documentation, from the date of delivery of the Product to the Customer in accordance with the Incoterm.
3. Contract Formation
3.1 Master Terms. From the date the Sales Documentation is signed by the Customer, the terms of this Contract apply to supply of Products and/or Services to the Customer by Seeing Machines as set out in that Sales Documentation. The Customer may order additional Products and/or Services from time to time by notifying Seeing Machines in writing. Any subsequent orders will not be binding unless and until they are accepted in writing by Seeing Machines and will be subject to the terms at the time.
3.2 No other terms. Any Purchase Orders issued by the Customer will be governed by the terms of this Contract. If there is any inconsistency between this Contract or a Purchase Order, the terms of this Contract will prevail.
4. Supplying Products and Services
4.1 Supply. Seeing Machines will supply the Products and/or provide the Services to the Customer as specified in the Sales Documentation.
4.2 Scheduling. Once a Schedule of Installation has been agreed, the Customer must provide Seeing Machines with a minimum 48 hours’ notice to reschedule or cancel those Services; otherwise the Customer must pay Seeing Machines’ non-recoverable/refundable costs incurred as follows:
4.2.1 costs associated with sub-contractors where Seeing Machines has engaged a sub-contractor to provide Services or additional services, up to the Threshold Amount per day per sub-contractor,
4.2.2 costs associated with travel, accommodation and car hire.
4.3 Discharge of Installation or Training Services. If Seeing Machines attends a location to deliver the Services in accordance with a Schedule of Installation or this Contract and:
4.3.1 the Customer vehicles are unavailable, or
4.3.2 the Customer staff are unavailable for Guardian certification training if required
Seeing Machines are taken to have fully performed the agreed Services and are entitled to payment for them. Customer will need to schedule and purchase new installation Services.
4.4 Scheduled Delivery. Once the Customer has placed an order, and the order has been accepted by Seeing Machines, Seeing Machines will use commercially reasonable efforts to make the Products available for delivery to the Customer, and/or to provide the Services, by the date/s agreed in writing; however these dates are targets only and Seeing Machines will not be liable in any way for late delivery.
4.4.1 Incoterms. The delivery terms are as per the Incoterm. Seeing Machines will provide the Customer with necessary information upon request that may be required to comply with the appropriate import/export laws for the destination country.
4.4.2 Defective Shipments. The Customer will notify Seeing Machines in writing of any damage during shipping, quantity shortages or incorrect Product shipments within one week of receiving the shipment. Otherwise, the Customer is deemed to waive any rights with respect to such damage, shortages or incorrect shipments. Seeing Machines reserves the right to request evidence of damaged or incorrect shipments.
4.4.3 Return. The Customer may only return a Product as expressly set out in the limited warranty in clause 8.1 and Seeing Machines is not required to accept any return unless the Customer follows the Warranty Claims Process and provides a Return Material Authorisation (RMA) number.
4.5 Sub-contracting. Seeing Machines may subcontract its obligations to provide Products or perform Services. In the event that Seeing Machines subcontracts any of its obligations, Seeing Machines remains responsible to the Customer for the performance of its obligations.
4.6 End of Life and End of Support. Seeing Machines shall provide Customer with written notice at least twelve (12) months prior to any End of Life or End of Support date for any Product or Service covered under this Contract. Such notice shall include:
4.6.1 the applicable End of Life or End of Support date which shall be at least 12 months after the expiration of the 12 month notice period;
4.6.2 last date for placing orders for the Product which is End of Life;
4.6.3 availability and end dates for spare parts, accessories and replacement components;
4.6.4 description of any replacement products or services available;
4.6.5 migration or transition options; and
4.6.6 impact on existing support and maintenance obligations, if any.
4.7 Support During Transition Period. During the period between the End of Life or End of Support notice and the actual End of Life or End of Support date, Seeing Machines shall: (a) continue to provide technical support and maintenance Services in accordance with the terms of this Contract; (b) assist Customer in transitioning to any replacement products or services; (c) supply spare parts and replacement components subject to availability; and (d) honour all existing warranty obligations.
5. Title and Risk
5.1 Title. The Customer will have title to a Product when the Customer pays for that Product in full.
5.2 Risk. The Customer will bear risk in Products in accordance with the Incoterm.
6. Customer Responsibilities
6.1 Installation. The Customer is responsible for coordinating access to facilities and vehicles in accordance with the Schedule of Installation. The Customer agrees to have the Product installed in each vehicle by drilling and securing the equipment onto the dash or other parts of the vehicle as advised by Seeing Machines.
6.2 Facilities. If the Customer is to provide facilities for the delivery of Services, the following will apply:
6.2.1 Access to Services. The Customer will provide Seeing Machines’ Personnel adequate access to water, amenities, electrical power, and reasonable conditions in which Services are performed, including but not limited to shade from the sun and reasonable shelter from environment conditions such as hot and cold climates.
6.2.2 Access to Vehicles. The Customer must provide Seeing Machines’ Personnel with access to vehicles to install the equipment in accordance with the Schedule of Installation.
6.2.3 On-Site Safety. If the Customer provides Seeing Machines’ Personnel with use of, or access to, materials, systems, sites or facilities owned or controlled by the Customer or End-Users: (a) the Customer will take all reasonable steps to ensure that such facilities provide a safe working environment; (b) the Customer will notify Seeing Machines Personnel of any policies and procedures relating to safety, health and personal conduct which apply at the site; and (c) Seeing Machines’ Personnel must comply with those policies and procedures.
6.3 Acceptance of Products. The Customer is deemed to have accepted the installation of the Product at the time of installation unless a written notice of non-acceptance is provided on a timely basis. Where the Product is installed by Seeing Machines the Customer has 30 days from the date of installation to advise Seeing Machines of any identified defects related to the installation of the Product.
6.4 Use of the Products. The Customer must use and operate (and will ensure that End-Users use and operate) the Products in a safe manner, for the purpose for which they were intended, and in accordance with any Documentation or instructions provided by a Seeing Machines or any of its Affiliates. . The Customer must only use Personnel approved by Seeing Machines to install, commission and maintain items relating to the Products. The Customer must not tamper with or attempt to repair, re-program or alter the Products unless approved by Seeing Machines.
6.5 End-User Management. The Customer must ensure that each End-User of the Products and Services is made aware of the Products and Services, and their organisational role in supporting and using the Products and Services.
6.6 SIM cards. Unless otherwise set out in the Sales Documentation, the Customer is responsible for providing, and all costs associated with obtaining, SIM cards for each Guardian unit, such SIM cards must meet the technical specifications provided by Seeing Machines.
6.7 Restrictions on Transfer. The Customer must not sell, assign, transfer, or otherwise dispose of any rights in the Products provided under this Contract to any party that is restricted by export control laws or regulations, or any country which is subject to sanctions, including but not limited to restricted parties or countries as applicable Australian or U.S. export control laws or sanctions. The Customer must comply with all applicable export control laws and regulations governing the sale, transfer, or assignment of the Products. This includes ensuring that any End-Users of the Products are not listed on any restricted parties lists maintained by relevant government authorities. The Customer shall notify Seeing Machines immediately if they become aware of any potential violation of this clause 6.7 or if they intend to sell, transfer, or assign rights in the Products to any party in any manner that may be restricted to export controls or sanctions. The Customer agrees to indemnify and hold harmless Seeing Machines from any claims, losses, damages, or expenses arising out of or related to a breach of this clause 6.7.
7. Price and Payment
7.1 Charges. The Customer will pay Seeing Machines the Charges, in accordance with these Payment Terms.
7.2 Increase in Charges. Seeing Machines may increase the Charges on each anniversary of the date the Sales Documentation is signed by the Customer, by the Producers Price Index (as published by the Australian Bureau of Statistics for the 12 months prior to the anniversary).
7.3 Expenses. The Customer must reimburse Seeing Machines for all expenses reasonably incurred by Seeing Machines in providing the Products and/or Services, including travel, car-hire, accommodation and per-diem expenses. Seeing Machines must seek the Customer’s consent before incurring any expense over the Threshold Amount and will provide reasonable supporting details on its invoices.
7.4 Interest on Late Payments. Seeing Machines may charge interest on late payments at the rate of 10% per annum, calculated daily from the due date.
7.5 Taxes. All prices shown are excluding tax. Where Seeing Machines is obliged to charge, pay or account for a value added tax, goods and services tax, sales tax or other similar consumption tax or is subject to any customs, import, tariff or similar duty as part of the sale of Products and/or Services, Seeing Machines will increase the invoiced price by the amount of such tax or charge.
7.6 Withholding Tax. The Customer must make all payments for Charges under this Contract to Seeing Machines without any withholding or deduction, unless required by law. If a law requires the Customer to deduct or withhold an amount on account of taxes from any payment made by the Customer, then the Customer must:
7.6.1 make that required withholding or deduction and pay the required amount to the relevant taxing authority within the time allowed and in the minimum amount required by law;
7.6.2 provide Seeing Machines with the original receipts for that payment to the relevant taxing authority (or any other evidence reasonably satisfactory to Seeing Machines); and
7.6.3 pay an additional amount to Seeing Machines so that, after making all required withholdings or deductions, Seeing Machines receives an amount equal to the payment it would have received if those withholdings or deductions had not been required.
7.7 Product Invoicing. Seeing Machines will invoice the Customer for Product upon Seeing Machines shipping the Product to the Customer. Seeing Machines may elect to separately invoice any partial delivery.
7.8 Subscription Services Invoicing. Seeing Machines will issue invoices for Services at the end of each calendar month during the Subscription Period. For existing Products, Seeing Machines will continue to invoice the Customer monthly. For new Products, Seeing Machines will commence invoicing the Customer for the Services 30 days from the end of the calendar month in which the Product was shipped. For example, Product is shipped on 10 February. Seeing Machines will invoice for the first month of Services on 30 March. The next Service invoice will be issued on 30 April and continue for the Subscription Period.
7.9 Suspension of Services for Non Payment. If any payments are overdue by more than 30 days, Seeing Machines may immediately suspend the supply of Products and/or Services without notice to the Customer. As a condition of any subsequent supply, Seeing Machines may vary the Customer’s Payment Terms. Should Seeing Machines vary the Payment Terms it will notify the Customer in writing, the Customer is taken to have accepted the varied Payment Terms by placing an order for Products or continuing to use the Services.
7.10 Other Services Invoicing. Seeing Machines will invoice the Customer for any other Services consumed by the Customer at the time that those Services are consumed or used by Customer.
7.11 Payment Due Date. All payments for Products and Services provided under this Contract shall be due thirty (30) days from the date of the invoice issued by Seeing Machines.
8. Warranty
8.1 Product Warranty. For the duration of the Warranty Period, Seeing Machines warrants to the Customer that each Product will:
(a) conform in all material respects with its Specifications; and
(b) be free from material failures due to manufacturing, material or workmanship defects.
8.1.1 The Product Warranty does not cover, and under no circumstances will Seeing Machines be responsible under the Product Warranty, for:
(a) consumable items;
(b) fair wear and tear;
(c) use of the Products other than in registered vehicles operating on public roads and the Customer acknowledges the Product is not designed or warranted for use in off-road or specialty vehicles and must not be used in such.
(d) defects or faults caused by:
(i) the Customer or End-Users’ operation, maintenance or use of the Products in a manner not in compliance with its instructions and Documentation;
(ii) misuse, tampering, mishandling, neglect, alteration, unauthorised or improper installation, destructive testing or unauthorised attempts at repair or maintenance
(iii) unauthorised attempts at removal from the vehicle or deliberate damage (to any part, including cables and mounts);
(e) power failure, power surge or other hazard causing or materially contributing to the defects; and
(f) compliance with the Customer’s designs, specifications or proprietary information.
8.1.2 The Customer acknowledges that the Specifications are likely to change from time to time and that changes to the Specifications do not extend the Warranty Period. Upon the Customer’s request, Seeing Machines will confirm to the Customer the details of the then-current Specifications.
8.1.3 The Product Warranty only applies to Products manufactured by Seeing Machines. For other Products, Seeing Machines will pass through to the Customer the benefit of any manufacturer’s warranty to the extent Seeing Machines is able to do so.
8.2 Services Warranty. During the Subscription Period and subject to the rest of this clause 8.2, Seeing Machines warrants to the Customer that the Services will be provided: (a) promptly, carefully, exercising all due care, skill and judgment, in an efficient and professional manner and in accordance with generally accepted professional and business practices; and (b) using appropriately trained and skilled Personnel (Services Warranty).
8.3 Exclusions. Subject to Clause 8.8, each of the Product Warranty and Service Warranty ceases to apply where: (a) the Customer does not comply with its obligations set out in this Contract, including any Customer Responsibilities set out in this Contract; (b) the Customer knew of the failure (which would otherwise be a breach of warranty) prior to purchase; or (c) the fault or defect (which would otherwise be a breach of warranty) is caused by factors outside Seeing Machines’ reasonable control.
8.4 Warranty Claims. Any claim under the Product Warranty or Service Warranty must be made as soon as reasonably practical after the Customer or End-User becomes aware of the potential claim. A claim made after the Warranty Period is not covered by the Product Warranty.
8.5 Warranty Claims Process. To make a claim under the Product Warranty or Service Warranty the Customer must comply with the Warranty Claim Process.
8.6 Remedy. Where Seeing Machines accepts a claim is covered by the Product Warranty or Service Warranty, Seeing Machines will – at its own cost – take all reasonable steps to promptly remedy the claim, such as repairing or replacing defective Products, or re-performing Services. Seeing Machines (a) will bear the shipping expense for Product returned to Seeing Machines for warranty service in compliance with this Contract but (b) will not bear shipping expense and will return to sender any Product returned without obtaining prior authorization and RMA number or otherwise not covered by the Product Warranty. As part of its RMA process, Seeing Machines may issue a new or refurbished replacement Product, which is warranted for the remainder of the original Product’s Warranty Period. If, after Seeing Machines has assessed the returned Product, the fault is not covered by the Product Warranty, the Customer agrees to pay for Seeing Machines’ costs of handling the RMA and investigating the claim, repairing or replacing the Product (at Seeing Machines’ then-current price list), and all shipping charges.
8.7 Implied Warranties: To the fullest extent allowed by law, Seeing Machines excludes all other warranties, express, implied or statutory including fitness for purpose. If this Contract is subject to laws which do not allow Seeing Machines to exclude implied warranties, to the extent permitted by those laws, any implied warranties are limited in duration to the Warranty Period.
8.8 Limitations on assistance. The contents of Seeing Machines Materials is intended for information purposes only and Seeing Machines makes no warranty, or claim or representation, express or implied, in relation to any Seeing Machines Materials provided to the Customer. Whilst Seeing Machines Materials will be formulated with all due care, Seeing Machines is not liable to the Customer for the use of or reliance on such Seeing Machines Materials.
9. Intellectual Property
9.1 Ownership. The Customer acknowledges that: (a) Seeing Machines retains ownership of all Intellectual Property Rights in the Seeing Machines Materials and all Intellectual Property Rights used or embodied in a Product; (b) any Software is licensed, not sold, to the Customer; and (c) no manufacture to the Customer’s specifications entails ownership by or conveyance to the Customer of any Intellectual Property Right in any invention or resulting product.
9.2 License to Customer. Subject to the Customer complying with the terms of this Contract, Seeing Machines grants to the Customer a non-exclusive, personal, non-transferable license to use, copy and distribute to End-Users (but not to modify) the Seeing Machines Materials, solely to the extent necessary for the Customer and End-Users to use the Products and/or Services in accordance with this Contract, and subject to clause 11 (Confidentiality). The Customer must not (and must ensure that End-Users do not) alter, reverse engineer, disassemble, decompile or copy any Product or Software. The Customer may not sub-license the Seeing Machines Materials to any third party except: (a) to a related body corporate of the Customer (subject to the same restrictions as the license granted to the Customer); or (b) with Seeing Machines’ prior written consent. Licensing costs to the Customer are bundled with the Service costs for the Subscription Period.
9.3 Third Party Software. The Software may include third party software which may be subject to additional or different terms or conditions. To the extent that any third-party software terms conflict with the terms of the Contract, the third-party software terms will prevail with respect to the Customer’s use and distribution of the applicable third-party software. The Customer agrees to observe all third-party software terms.
10. Infringement Claims
10.1 Defend or Settle. Subject to the rest of this clause 10, Seeing Machines will control the defense or settlement of any Infringement Claim.
10.2 Indemnity. Subject to the rest of this clause 10, Seeing Machines will indemnify the Customer, and keep the Customer indemnified against, all damages, liabilities, losses and costs (including the Customer’s reasonable lawyer’s fees) suffered or incurred by the Customer in respect of such Infringement Claim (but Seeing Machines will not be liable for any indirect or consequential loss or damage arising in connection with such Infringement Claim). Seeing Machines’ obligations under this indemnity are contingent upon the Customer: (a) promptly notifying Seeing Machines in writing of any actual or threatened Infringement Claim; (b) cooperating with Seeing Machines in defense of any such claim; (c) taking commercially reasonable steps to mitigate any loss or liability caused by the Infringement Claim; and (d) not settling any Infringement Claim without Seeing Machines’ prior written consent.
10.3 Sole remedy. This clause constitutes Seeing Machines’ sole liability and the Customer’s sole remedy (whether under this Contract or otherwise) in connection with any actual, suspected or alleged infringement of any third-party Intellectual Property Rights.
10.4 Rectify. If an Infringement Claim has been made or threatened or Seeing Machines considers the Product or Seeing Machines Materials or the Services may infringe any third party’s rights, Seeing Machines has the option to: (a) modify the Product, Services or Seeing Machines Materials (at Seeing Machines’ expense) so it becomes non-infringing; (b) obtain a license for the Customer (at Seeing Machines’ expense) to continue using the Product, Services or Seeing Machines Materials; or (c) terminate the license of the infringing Seeing Machines Material and refund all of the Charges paid by the Customer for the infringing Product, Services or Seeing Machines Material.
10.5 Exclusions. Seeing Machines shall have no liability or obligation in respect of Infringement Claims arising from: (a) use of a superseded or altered release of the Software if infringement would have been avoided by the use of a current unaltered release of the Software that Seeing Machines had provided to the Customer; (b) Products, Seeing Machines Materials or Services that are modified after delivery without Seeing Machines’ written consent, where the infringement would not have occurred but for such modification; (c) a combination of Products, software, processes or materials other than those provided for or specified by Seeing Machines, and the infringement would not have occurred but for such combination; (d) Products, materials or Services being marketed, sold, used, or serviced outside of the scope of the license granted to the Customer by Seeing Machines; or (e) any Infringement Claim asserted by a related body corporate of the Customer.
11. Confidentiality
11.1 Obligations. Where a party (recipient) receives any Confidential Information from the other party (discloser), the recipient must: (a) keep the information secure and confidential; (b) not use, disclose or reproduce the information for any purpose other than the purposes of this Contract; and (c) ensure that its Personnel do not do, or omit to do anything, which if done or omitted to be done by it, would breach this clause. The obligations under this clause 11 continue after the expiration or termination of this Contract.
11.2 Permitted use. Notwithstanding clause 11.1, the recipient may use or disclose the information to the extent necessary to comply with any law or the requirements of a regulatory body (including a stock exchange), or to obtain professional legal, insurance or accounting advice, or for use in legal proceedings regarding this Contract.
11.3 Exceptions. Clause 11.1 does not apply to Confidential Information which: (a) is in or becomes part of the public domain other than through breach of an obligation of confidence; (b) was known to the recipient at the time of disclosure, unless such knowledge arose through breach of an obligation of confidence; (c) was independently developed by the recipient; and (d) is acquired from a third party who was entitled to disclose it.
12. Liability
12.1 Disclaimer. The Customer (for itself and on behalf of each End-User) acknowledges and agrees that: (a) while the Products and Services are intended to help contribute to safer vehicle operation, Seeing Machines does not guarantee that high risk events, unsafe driving, collisions or other events will be prevented as a result of using the Products and/or Services; (b) Seeing Machines does not warrant that the Product and/or Software will perform error free or uninterrupted or that the Product or Services will detect all possible fatigue or distraction events; and (c) even with the Product installed and operating correctly, the Customer and End-User retain the responsibility for safely operating their vehicles.
12.2 Exclusion of Indirect Loss. To the fullest extent permitted by law, Seeing Machines excludes all liability for indirect, special, punitive, or consequential loss, damage or expense including but not limited to any plant-down-time, loss of Product, loss of revenue, loss of profit, loss or corruption of data or data use, loss of or damage to reputation, business interruption, loss of contract, loss of anticipated savings or benefits, or any loss arising under or in connection with this Contract and whether arising under this Contract, statute, in tort (for negligence or otherwise), or on any other basis in law or equity, even if such party has been advised of the possibility of such.
12.3 Liability Limit. To the fullest extent permitted by law, the liability of Seeing Machines for any and all claims relating to Products or Services is limited at Seeing Machines’ option to: (a) In the case of Products: repairing or replacing the Products or paying the cost of supplying equivalent Products; (b) in the case of Services: providing the Services again or paying the cost of supplying equivalent Services. In no event will Seeing Machines’ aggregate liability arising out of, connected with, or resulting from this Contract whether arising under this Contract, statute, in tort (for negligence or otherwise), or on any other basis in law or equity exceed the total of all Charges paid by the Customer during the Term to Seeing Machines under this Contract.
12.4 Contribution. The liability of Seeing Machines will be reduced proportionately to the extent that the Customer’s, or the Customer’s Personnel’s, acts or omissions causes or contributes to, directly or indirectly, the loss or damage for which Seeing Machines is liable.
13. Subscription Term & Termination
13.1 Subscription Period. The Initial Subscription Period begins on the date which is one month after Seeing Machines dispatches the Product to the Customer and continues for 36 months (Initial Subscription Period). At the expiration of the Initial Subscription Period the contract shall automatically renew for an additional twelve (12) months, unless either party provides written notice of its intention to terminate the contract in accordance with this clause 12 (Renewal Subscription Period). At the expiration of the Renewal Subscription Period, the contract shall automatically renew for an additional twelve (12) month term, at the expiration of that Renewal Subscription Period, unless either party provides written notice not to renew at least ninety (90) days prior to the expiration of the then current Renewal Subscription Period. During the Subscription Period the Customer subscribes to receive an ongoing license of the Software and Services with the Product.
13.2 Termination for Cause. Either party may terminate this Contract if: (a) a Party (the Breaching Party) breaches this Contract and does not remedy the breach within two months of written notice by the other Party; (b) a Party breaches any term of this Contract which cannot be reasonably remedied (including a breach of confidentiality (clause 11) or Intellectual Property (clause 9)); or (c) a Party becomes bankrupt or subject to an event of insolvency including without limitation if the Party is unable to pay its debts as and when they fall due.
13.3 Termination for Convenience by Seeing Machines. Seeing Machines may terminate this Contract at any time by providing Customer with at least three (3) months’ prior written notice.
13.4 Termination for Convenience by Customer. Subject to clause 13.6, Customer may terminate this contract at any time during the Term by providing Seeing Machines with at least twelve (12) months prior written notice.
13.5 Charges payable upon termination for Cause. Upon termination under clause 13.2, if the Customer is the Breaching Party the Customer will pay the remainder of the Contract value to Seeing Machines (including Product, Services and licensing for the remainder of the Term, including any Subscription Period that runs beyond the end of the Term).
13.6 Charges payable upon termination for convenience. If Customer exercises its right to terminate for convenience under clause 13.4, the Customer shall pay an early termination fee calculated as the Charges for the monthly Guardian Subscription Services multiplied by the number of months remaining in the Initial Subscription Period (Early Termination Fee). This Early Termination Fee represents a genuine pre-estimate of Seeing Machine’s losses from early termination and is not a penalty.
13.7 Consequences of Termination. Upon termination of this Contract:
13.7.1 All licenses granted under this Contract immediately terminate,
13.7.2 Customer must pay to Seeing Machines all outstanding amounts including the Early Termination Fee, if applicable,
13.7.3 Seeing Machines will cease to provide the Services to the Customer until otherwise notified; and
13.7.4 any rights accrued by either party prior to termination remain enforceable.
14. Data and Data Protection & Privacy
Any terms not defined within this clause shall be as defined under Data Protection Laws.
14.1 Ownership & Use of Product Data.
14.1.1 Seeing Machines acknowledges that the Customer retains ownership of all Product Data and related Intellectual Property Rights. The Customer represents and warrants that it is the owner or authorized licensor of the Product Data and related Intellectual Property Rights and has all the rights to grant the license in clause 14.1.4.
14.1.2 Seeing Machines will retain diagnostic data for a period of 2 months only. All other data (video, trip and event data) will be retained for a period of 12 months.
14.1.3 The Customer agrees that it will only use the Product Data (including any data provided through the Message Queue service that is subsequently modified by the Customer) to the extent necessary for the Customer’s internal business purposes, such as workplace safety management & improvement and staff training & performance management, and such use is subject to clause 11 (Confidentiality). The Customer agrees that it will not commercially exploit, sell, transfer or license the Product Data (including any data provided through the Message Queue service that is subsequently modified by the Customer) to any third party except: (a) to a related body corporate of Customer (subject to the same restrictions as this clause); or (b) with Seeing Machines’ prior written consent.
14.1.4 Subject to the Customer’s rights under clause 14.1.3, the Customer hereby grants to Seeing Machines an exclusive, perpetual, worldwide, royalty-free, irrevocable and transferable license (and right to sub-license) to collect, use, copy, process and modify Product Data or statistical or aggregated information based on or related to any Product Data for the following purposes:
(a) operating and delivering the Services to the Customer;
(b) developing, improving and enhancing Seeing Machines’ products and services, including by using Product Data to train and improve machine learning algorithms and models;
(c) conducting research, analytics, benchmarking and statistical analysis relating to the Services including research that may lead to new commercial offerings, provided that any disclosure to third parties will be on an aggregated and de-identified basis and in accordance with applicable law.
14.1.5 Seeing Machines will ensure that any use of Product Data for product improvement, research, or commercialisation does not result in the disclosure of identifiable Personal Data to third parties, except as permitted by this agreement or required by law. All uses of Product Data will comply with applicable privacy, confidentiality, and data protection obligations.
14.1.6 Clauses 14.1.1, 14.1.3, 14.1.4, 14.1.5, 14.1.6 and 14.1.7 and survive termination of this Contract.
14.1.7 The Customer acknowledges and agrees that in certain circumstances, Seeing Machines may be required by law or court order to release Product Data and/or Personal Data including data relating to End-Users.
14.2 Processing data and data security
a. Roles: The parties agree that for the purposes of Data Protection Laws the Customer is the Controller and Seeing Machines is a Processor, acting on instructions from the Customer.
b. Seeing Machines Responsibilities. Seeing Machines will comply with all Data Protection Laws in the Processing of Personal Data.
c. Assistance. The Customer and Seeing Machines agree to provide reasonable mutual assistance with any mandated data protection impact assessment, and prior consultations with Supervising Authorities, which the Customer or Seeing Machines considers to be required by Data Protection Laws, each Party at its own cost.
d. Appointment of Sub-Processor. Seeing Machines agrees with respect to each Sub-Processor, it will:
i. prior to the Sub-Processor Processing Personal Data, carry out reasonable due diligence to ensure that the Sub-Processor is capable of providing the level of protection for Personal Data required under Data Protection Laws; and
ii. ensure that the agreement between Seeing Machines and Sub-Processor is governed by a written enforceable contract including terms which offer at least the same level of protection for Personal Data as those set out in Data Protection Laws.
e. Deletion or Return of Personal Data.
i. Subject to this term, Seeing Machines will delete Personal Data consistent with the Guardian Live 12 months deletion cycle and ensure the deletion of all copies of Personal Data, unless Processing is required by Data Protection Laws or other laws to which Seeing Machines is subject, in which case Seeing Machines must to the extent permitted by Data Protection Laws or other laws inform the Customer to which the Personal Data relates of that legal requirement before Processing the Personal Data.
ii. Upon written request from the Customer Seeing Machines will provide written certification, by email or otherwise, to the Customer that it and each Sub-Processor has fully complied with this term within 7 days of cessation of services involving the Processing of Personal Data.
f. Restricted Transfers.
i. Standard Contractual Clauses. As may be required by law, Seeing Machines and the Customer agree to enter into the Standard Contractual Clauses in respect of any Restricted Transfer of Personal Data.
ii. Effect: As may be required by law, the Standard Contractual Clauses will come into effect on the Parties becoming a party to them, or commencement of a Restricted Transfer of Personal Data.
g. Customer Responsibilities. The Customer will:
i. comply with all Data Protection Laws and surveillance laws in the Processing of Personal Data, which the Customer or End-User is subject;
ii. provide such notices to End-Uses as reasonably required to comply with the notice requirements under Data Protection Laws. Such notices may include, without limitation: 1) Data Subject rights under Data Protection Laws; 2) categories of Personal Data processed pursuant to this Contract, including Special Category; and 3) information about Processors and Sub-Processors pursuant to this Contract;
iii. promptly notify Seeing Machines on becoming aware of a Personal Data Breach in relation to Product Data and provide reasonable assistance in the event of an investigation related to the Personal Data Breach, each party at its own costs;
iv. obtain informed consent, including explicit consent as required, from End-Users prior to, or at the time, the End-User uses Products and/or Services pursuit to this Contract; and
v. evidence End-User consent as reasonably required by Seeing Machines in the provision of Products and/or Services, or as required by Data Protection Laws or other laws to which Seeing Machines is subject.
h. Direction and Authority to process and transfer personal data.
The Customer agrees:
i. to Seeing Machines transferring and Processing Personal Data in Australia, the United Kingdom and the United States of America; and
ii. that that in the provision of Services under this Contract, the Sub-Processors are authorised to Process Personal Data in accordance with the provisions of this Contract.
15. Restrictions on Resale
15.1 Prohibition on resale to Consumers. The Customer warrants that the Product will not be re-sold to Consumers.
15.2 Warranty and Indemnity. The Customer warrants that, prior to any resale, it will remove the Product from any item, vehicle, or system in which it has been installed. The Customer agrees to indemnify, defend, and hold harmless Seeing Machines from and against any and all claims, liabilities, damages, losses, costs, or expenses (including reasonable legal fees) arising out of or in connection with any breach of this clause 15 by the Customer.
16. General
16.1 Currency. All monetary amounts are in the Currency.
16.2 Interpretation. In this Contract, words like including, for example, such as or similar expressions are to be interpreted as meaning including, without limitation. If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this document, but the rest of this document is not affected. If this Contract is translated into another language, then to the extent permitted by law, the English language text will prevail. The provisions of this Contract are the result of negotiations between the parties; accordingly, this Contract must not be construed in favor of or against either party by reason of the extent to which the party prepared it.
16.3 Third Party Beneficiaries. This Contract confers rights and remedies on each member of the Seeing Machines Group including Seeing Machines Limited, incorporated in Australia (ACN 093 877 331). No other third party has rights or remedies under this Contract.
16.4 Variation and Waiver. No variation of this Contract will be of any force or effect unless it is in writing and signed by the parties to this document. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this document, does not amount to a waiver of any obligation of, or breach of obligation by, another party. A waiver by a party is only effective if it is in writing. A written waiver by a party is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
16.5 Novation and assignment. The Customer must not purport to assign, novate or otherwise transfer any interest under this Contract without the prior written consent of Seeing Machines, which will not be unreasonably withheld. Seeing Each party must promptly sign any agreement or document required to effect any such approved assignment, novation or transfer.
16.6 Entire Agreement. This Contract contains everything the parties have agreed in relation to the matters it deals with. The Customer acknowledges it has not relied on any warranty or representation which is not specifically stated in this Contract. To the extent the Customer’s terms and conditions are supplied to Seeing Machines in respect of the Products or Services (including as referred to in a Purchase Order or other document), those terms and conditions are of no legal effect and do not constitute part of this Contract.
16.7 Order of Precedence. In the event of any inconsistency between the provisions of these terms and the Sales Documentation, the terms will prevail.
16.8 Force Majeure. In the event that a party is prevented from performing, or is unable to perform, any of its obligations under this Contract due to a Force Majeure Event and if such party have used reasonable efforts to avoid such occurrence and minimize its duration and has given written notice to the other party, then the affected party’s failure to perform will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence. This clause will not apply to any obligation to pay money.
16.9 Exclusion of Vienna Convention. The UN Convention for International Sale of Products will not apply to this Contract.
16.10 Governing Law and Jurisdiction. This Contract is governed by and is to be construed in accordance with the laws applicable in the Jurisdiction. Each party irrevocably submits to the non-exclusive jurisdiction of the courts located there (and courts of appeal) provided that each party shall have the right to enforce a judgment of those courts in a jurisdiction in which the other party is incorporated or in which it has any assets.
16.11 Dispute Resolution. Each party shall use its best efforts to resolve any Dispute between them promptly and amicably and without resort to any legal process within 28 days of receipt of a written Dispute Notice by one party to the other party of the existence of such Dispute. No further action may be taken until each of the parties have met in good faith to discuss and settle such Dispute. Such meeting may be face-to-face or by electronic means. This section shall be without prejudice to either party’s rights, if applicable, to terminate this Contract for convenience.
16.12 Alternative Dispute Resolution. In the event of any Dispute between the parties relating to this Contract, the Parties agree that the following dispute resolution procedures must be followed:
Step One: A senior executive of each party, not involved in the Dispute will negotiate in good faith over a period of at least fourteen (14) days after a Dispute Notice has been raised. The senior executives will continue to negotiate past the fourteen (14) day period for as long as both senior executives agree that progress towards a resolution is being made.
Step Two: If the discussions at Step One fail to resolve the relevant Dispute, such unresolved Dispute shall be determined by arbitration in the Place of Arbitration before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable in view of the amount in dispute. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In addition:
(a) the arbitration will be governed by the substantive laws of the Jurisdiction;
(b) the parties will do all things necessary to meet with the arbitrator within twenty (20) days of their appointment with the aim of resolving the Dispute;
(c) the decision of the arbitrator will be final and binding on the parties;
(d) the cost of the arbitration will be shared equally between the parties unless the arbitrator determines otherwise; and
(e) each party will bear its own costs in relation to the arbitration.
16.13 Legal Proceedings. Neither party may issue any legal proceedings in respect of any Dispute arising under this Contract, except for urgent interlocutory or injunctive relief or as permitted in Clause 16.12.
