Guardian Additional Contract Provisions – Products and Services (EMEA)
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 EU GDPR or UK GDPR as applicable.
Additional Terms means any additional terms attached, or provided, to the Customer by Seeing Machines which apply to the Customers use of the Products or Services. By signing the Sales Documentation the Customer is taken to have agreed 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 relevant Sales Documentation.
Currency means the currency of the Charges under this Contract, as specified in the Sales Documentation.
Data Protection Law means: 1) the EU GDPR insofar as it is applicable; (2) the UK GDPR insofar as it is applicable; 3) any other applicable laws relating to data protection and privacy.
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 alleged breach of any representation, warranty or obligation herein, or a disagreement regarding the validity, interpretation, performance or nonperformance of any provision herein, or the validity, scope and enforceability of Dispute Resolution Procedures, or any dispute regarding any damages arising from the termination of this Contract. Any attempt by either party to obtain or enforce equitable remedies, including but not limited to preliminary or permanent injunctions, rectification or specific performance must not be deemed a Dispute.
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 16.13.
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.
EU 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.
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.
UK GDPR means EU GDPR as it forms part of UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018 and the Data Protection Act 2018.
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.
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 Client.
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.
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 the EU GDPR or UK GDPR, such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses or Binding Corporate Rules covering the transfer.
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.
Seat of Arbitration means Berlin, Germany.
Seeing Machines means Seeing Machines Germany GmbH, company number HRB 251932 of Theresienstraße 1, 80333 Munich, Germany.
Seeing Machines Group means Seeing Machines and any entity that directly or indirectly controls, is controlled by, or is under common control with Seeing Machines Limited.
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 Client, 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 (i) where the EU GDPR applies, the contractual clauses annexed to the European Commission’s Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (“EU SCCs“); and (ii) where the UK GDPR applies, the “International Data Transfer Addendum to the EU Commission Standard Contractual Clauses” issued by the Information Commissioner under s.119A(1) of the Data Protection Act 2018 (“UK Addendum“).
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 €300 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 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 the 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 agreeing on additional Sales Documentations with Seeing Machines. 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. Each Sales Documentation signed by the Customer and Seeing Machines shall be a separate contract, which shall incorporate these terms by reference.
3.2 No other terms. In the event a Customer issues a Purchase Order, such Purchase Order 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 Customer will need to agree a new Schedule of Installation and pay any resulting Charges.
4.4 Scheduled Delivery. The delivery periods or delivery dates stated in the Sales Documentation], or any other documentation provided by Seeing Machines, are non-binding, unless these have been agreed in writing as binding in the individual case. In the case of non-binding delivery periods or delivery dates, Seeing Machines is not in default until a reasonable period for delivery, specified by Customer in writing, has expired without result.
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 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. If the services provided qualify as works (Werkleistungen) Seeing Machines shall bear the risk of accidental loss or deterioration of the work until acceptance by the Customer. If the Customer is in default of acceptance, the risk shall pass to the Customer at the time of default.
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. The Customer is responsible for accepting the installation of the Product in writing, at the time of installation. Acceptance may not be refused due to insignificant (minor) defects. Acceptance shall be deemed to have occurred if, after completion of the work, Seeing Machines has set the Customer a reasonable deadline for acceptance and the Customer has not rejected acceptance within this period, stating at least one defect. Unless otherwise agreed, a period of 4 weeks shall be deemed a reasonable deadline.
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 the Seeing Machines Group. The Customer must only use Personnel approved by Seeing Machines to install, commission and for all maintenance items relating to the Products. The Customer must not tamper with or attempt to repair, re-program or maintain 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. 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 subject to 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, UK or EU export control laws or U.S, UK or EU 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 that may be subject 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 this Clause 7. The respective prices for Products and Services shall be specified in the Sales Document.
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 Consumer Price Index (Verbraucherpreisindex) (as published by the German Statistical Federal Office (Statistisches Bundesamt) (for the 12 months prior to the anniversary) plus 2%.
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. If the payment period is exceeded, the Customer is in default, without any further reminder being necessary. Timeliness of payment is based on the date of receipt of the invoice amount on the stated account. Seeing Machines may charge interest on late payments at the statutory rate. In all cases the right to claim further damages remains reserved.
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 Client, 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 Client. Seeing Machines may elect to separately invoice any partial delivery.
7.8 Subscription Services Invoicing. Seeing Machines will raise 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 raised on 30 April and continue for the Subscription Period.
7.9 Suspension of Services for Non Payment. If Customer is in default of payment with at least two payments arising from the business relationship with Seeing Machines, Seeing Machines may immediately suspend the supply of Products and/or Services without notice to the Customer.
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.
7.12 No Set Off or Retention Right. Any offsetting or exercising of a right of retention by Customer on the basis of counter-claims which are disputed or which have not yet become res judicata is excluded, unless the counter-claims are based on the same contractual relationship.
8. Warranty
8.1 Product Warranty.
8.1.1 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.
8.1.2 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.
8.1.3 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.
8.1.4 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 reasonable care, skill and judgment, in a 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 Statutory Warranty Rights:
8.7.1 Requirements for asserting statutory warranty rights regarding Products. Customer’s statutory warranty rights arising from product defects presuppose that Customer has examined the Products on delivery and has given notification of any defects in the proper manner pursuant to Section 377 HGB.
8.7.2 Requirements for asserting statutory warranty rights regarding Provision of Services as Works. If the Customer accepts a service that qualifies as work (Werkleistung) despite being aware of a defect, the Customer’s statutory warranty rights regarding the work shall be (i) limited as set forth in clause 8.7.3 and (ii) subject to the Customer expressly reserving such rights due to the defect at the time of acceptance.
8.7.3 Limitation of statutory warranty rights. The costs of the examination of the Products are borne by Customer. Seeing Machines will rectify the defect (subsequent performance) by removal of the defect (repair) or delivery of a new item (replacement), at its own choice. Such subsequent performance is rendered without acknowledgement of any legal duty. In the event of repair, the remaining part of the original limitation period starts to run when the repaired Products have been returned. The same applies in the event that defective Products are replaced. If the subsequent performance rendered is not successful, Customer can withdraw from the contract by written notification. Any further claims of any kind arising from product defects are excluded, subject to any limited compensation claims in accordance with section 12. The limitation period for rights arising from product defects is one year from the date of delivery or acceptance. However, this limitation does not apply if (i) a defect has been fraudulently concealed, or (ii) a guarantee has been provided in respect of the quality of a Product (in this regard, the warranty regulation or limitation period arising from the guarantee if any will apply). In the event of damage claims, this limitation also does not apply in the following cases: (i) injury to life, limb or health, (ii) malicious intent, (iii) gross negligence of management bodies/officers or executives of Seeing Machines, and (iv) liability under the German Product Liability Act (Produkthaftungsgesetz).
8.8 Limitations on assistance. The contents of Seeing Machines Materials are 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 Client. Whilst Seeing Machines Materials will be formulated with reasonable 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 Client; 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 Client. Subject to the Customer complying with the terms of this Contract, Seeing Machines grants to the Customer a non-exclusive, personal, non-transferable license during the relevant Subscription Period to use 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 10 (Confidentiality). he 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 Client); or (b) with Seeing Machines’ prior written consent. Licensing costs to the Customer are bundled with the Service costs for the Subscription Period. The provisions of Sections 69c to 69e of the German Copyright Act (UrhG) shall remain unaffected.
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 and to the extent possible under applicable law, Seeing Machines will control the defense or settlement of any Infringement Claim.
10.2 Indemnity. Subject to the rest of this clause 10.1 and the limitations of liability set out in clause 12, Seeing Machines will indemnify the Client, and keep the Customer indemnified in case of an Infringement Claim in accordance with its statutory obligations to do so. Seeing Machines’ obligations under this indemnity are contingent upon the Client: (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, it being understood, however, that any failure of Client to comply with (a) – (d) above will only relieve Seeing Machines from its indemnity obligation to the extent such failure prejudiced the defense against the Infringement Claim.
10.3 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.
10.4 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 Client; (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 Client.
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 Seeing Machines’ liability for damage arising from simple negligence is limited to damage arising from breach of essential contractual duties the fulfilment of which is vital to the proper execution of the contract, and the observance of which the contracting party usually relies on and can reasonably rely on; however, in this case Seeing Machine’s liability is restricted to the typically foreseeable damage. This limitation of liability applies in the same way in regard to damages which have been caused by gross negligence on the part of employees or agents of Seeing Machines who are not management bodies/officers or executives of Seeing Machines.
12.2 In the cases of clause 12.1, liability is limited to 2 times the purchase price of the delivery concerned. In the cases of clause 12.1, the limitation period is two years from the date on which the claim has arisen and Customer has gained knowledge of the circumstances justifying the claim. Independently of the knowledge of Customer, the claim becomes time-barred five years after the event which has given rise to the damage. The limitation period in the case of compensation claims based on defects is set out in clause 8.7.3.
12.3 The above limitations of liability apply in regard to all compensation claims, irrespective of the legal basis thereof, with the exception of compensation claims of Customer which (i) are based on intent, (ii) are provided under the German Product Liability Act, (iii) are based on defects which have been fraudulently concealed, (iv) are based on defects in regard to which a guarantee has been provided as to the quality of the Products (in regard to such defects, any liability regulation and limitation period arising from the guarantee applies), (v) are based on injury to life, limb or health, or (vi) are based on gross negligence of management bodies or senior executives of Seeing Machines.
12.4 The above limitations of liability apply also in regard to compensation claims of Customer against management bodies/officers, executives, employees or agents of Seeing Machines.
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). Following the Initial Subscription Period the contract shall automatically renew for successive twelve (12) month periods (each a ‘Renewal Subscription Period‘), unless either Party gives written notice of termination at least ninety (90) days prior to the end of the then-current 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) materially breaches this Contract and does not remedy the breach within two months of written notice by the other Party; (b) a Party materially breaches any term of this Contract which cannot be reasonably remedied (including a breach of confidentiality (clause 10) or Intellectual Property (clause 8)); 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. Each Party’s statutory right to terminate the Contract for cause shall remain unaffected.
13.3 Termination for Convenience by Seeing Machines. Seeing Machines may terminate this Contract at any time by providing Customer with at least twelve (12) 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, and 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 or Seeing Machines exercises its right to terminate under clause 13.2, 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. The Customer shall be entitled to prove that Seeing Machines has incurred lower losses.
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 Product Data to third parties, except as permitted by this Contract 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:
i. comply with all Data Protection Laws in the Processing of Personal Data,
ii. not Process or cause to be Processed Personal Data other than (a) as set out in this Contract (including clause 14.1), or (b) on documented Customer instructions 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,
iii. taking into account the nature of the Processing, Seeing Machines will implement appropriate technical and organisational measures, insofar as possible, to respond to requests to exercise Data Subject rights under Data Protection Laws,
iv. provide reasonable assistance to the Customer in responding to requests to exercise Data Subject rights under Data Protection Laws,
v. promptly notify the Customer if Seeing Machines receives a request from a Data Subject in respect of Personal Data and ensure that it does not respond to that request except on documented instructions from the Customer or as required by Data Protection Laws or other laws to which Seeing Machines is subject, in which case Seeing Machines will to the extent permitted by Data Protection Laws or other laws inform the Customer of that legal requirement before responding to the request,
vi. promptly notify the Customer upon Seeing Machines becoming aware of a Personal Data Breach and provide reasonable assistance in the event of an investigation related to the Personal Data Breach, each party at its own costs, and
vii. will take reasonable steps to ensure the reliability of any employee and agent, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Personal Data, as strictly necessary for the purposes of the Contract, and to comply with Data Protection Laws in the context of that individual’s duties to Seeing Machines, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
c. Assistance. The Customer and Seeing Machines agree to provide reasonable mutual assistance with any data protection impact assessment, and prior consultations with Supervising Authorities
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 of 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. Seeing Machines and the Customer agree to enter into the Standard Contractual Clauses in respect of any Restricted Transfer of Personal Data.
ii. Effect: 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 are to include, but not limited, to: 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. have obtained 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, the European Union, 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 Client.
16. General
16.1 Currency. All monetary amounts are in the Currency.
16.2 Notices: Any notice to be given under this Contract must be in writing and may be given by post, email or personal delivery. Notices to the Customer shall be sent to the contact at the start of these terms. Notices to Seeing Machines shall be sent to General Counsel & Company Secretary, Seeing Machines Limited, 80 Mildura Street, Fyshwick, ACT, Australia 2609, legal@seeingmachines.com. Any notice shall be deemed to have been received (a) when left at the address mentioned above (if delivered personally) or (b) two business days after posting by first class post addressed as required above (if given by post); or (c) one business day after transmission (if given by email).
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. The consent of any person who is not a party to this Contract is not required to rescind, vary, suspend, enforce or terminate this Contract or any of its terms, or to assign or transfer any rights or obligations, or to grant any waiver under or in connection with this Contract, at any time.
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. 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, statement, assurance, undertaking or representation which is not specifically stated in this Contract.
16.7 Counterparts. This Contract may be executed in any number of counterparts and by the different parties on separate counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of this Contract.
16.8 Order of Precedence. In the event of any inconsistency between the provisions of these terms and the Sales Documentation, the terms will prevail.
16.9 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 for example mobilisation, war, terrorism, insurgency, natural disasters, fire, or other unforeseeable circumstances for which the Party is not responsible such as strikes or lawful lockouts, or operational or transport disruptions, or defective delivery by suppliers 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 plus a reasonable start-up period. If the obstacle continues for six weeks or more, both parties can withdraw from the Contract by written notification. This clause will not apply to any obligation to pay money.
16.10 Exclusion of Vienna Convention. The UN Convention for International Sale of Products will not apply to this Contract.
16.11 Governing Law and Jurisdiction. This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by German law.
16.12 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 unless any such action is necessary to preserve the rights and/or interests of the party. This section shall be without prejudice to either party’s rights, if applicable, to terminate this Contract for convenience.
16.13 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, either party may, by written notice to the other party (Arbitration Notice) require that the Dispute be submitted for arbitration
under the Rules of Arbitration of the International Chamber of Commerce in force at the date of the agreement (“ICC Rules“):
(a) the arbitration will be conducted at the Seat of Arbitration unless the Parties agree to a different venue in which case the legal seat of the arbitration will remain unaffected;
(b) the arbitration will be conducted in English;
(c) the arbitration will be governed by the laws of Germany;
(d) the Dispute will be resolved by single arbitrator appointed pursuant to the ICC Rules. Notwithstanding the above, the parties may subsequently agree in writing to appoint a three-member arbitral tribunal pursuant to the procedures set forth in the ICC Rules;
(e) the decision of the arbitrator/s will be final and binding on the parties; and
(f) the cost of the arbitration will be shared equally between the parties unless the arbitrator determines otherwise after providing the parties reasonable opportunity to present its case on costs.
16.14 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.
