Preventure Terms and Conditions

Bardavon Terms and Conditions

PeerWell Terms and Conditions

1 Background

1.1 Bardavon enables safety professionals to reduce workplace injury risk in a measurable way, using wearable technology, video analysis and valid, reliable data. Bardavon enables workers to reduce their own injury risk using wearable technology to measure movements, receive alerts when they move in an unsafe or inefficient way and set challenges/earn rewards.

2 License

2.1 Subject to the terms of this Agreement, Bardavon grants to you during the Term, in the Territory only, a non-exclusive, non-transferable license to:

(a) sub-license to your Enrollees the right to access and use the Platform on your own contractual terms, provided that you will be responsible and liable for any use of the Platform by such Enrollees in breach of this Agreement;

(b) use the Platform for the purposes of providing your services; and

(c) use the Platform and ensure Enrollees’ use of the Platform conforms to the Terms of Use Agreement presented in the Platform.

3 Conditions of Platform License

3.1 Unless otherwise stated in the Master Service Agreement, you must not (and must ensure your Personnel, Customers or any other person does not):

(a) copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile the Platform or any part of the Platform or otherwise attempt to discover any part of the source code;

(b) use any unauthorized, modified version of the Platform, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorized access to the Platform;

(c) use the Platform in a manner that is contrary to any Laws or in violation of any Intellectual Property Rights or privacy rights;

(d) incorporate third party software into the Platform without the prior written of approval of Bardavon;

(e) publish, post, upload or otherwise transmit data that contains any viruses, trojan horses, worms, time bombs, malware, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with information or property of any person;

(f) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Platform;

(g) take any action that may compromise or jeopardize Bardavon’s Intellectual Property Rights in the Platform or otherwise;

(h) remove or deface any confidentiality, copyright or other proprietary notice placed on the Platform;

(i) make any representations or warranties to any third parties that could be construed as being representations or warranties from Bardavon in relation to the Platform or any other matter;

(j) other than set out in this Agreement, use the Platform in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login or time-sharing of the Platform;

(k) do any other thing in relation to the Platform specifically prohibited by Bardavon in the documentation or otherwise communicated by Bardavon to you in writing as being prohibited;

(l) use the Platform to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;

(m) use the Platform in any way that damages, interferes with or interrupts the supply of the Platform;

(n) reveal your passwords to others or allow others to use your passwords;

(o) use the Platform to carry out security breaches or disruptions of a network;

(p) access or attempt to access the source code; and

(q) sub-license the Platform or make the Platform available to any person except to Customers, as permitted under this Agreement.

3.2 You must ensure that all usernames and passwords of your Personnel required to access the Platform are kept secure and confidential. You must immediately notify Bardavon of any unauthorized use of passwords or any other breach of security upon becoming aware of the same. You must take all other actions that are deemed reasonably necessary to maintain or enhance the security of the computing systems and networks and access to the Platform.

3.3 You must strictly comply with the Platform License entered into between the parties and any breach of such Platform License by you will be deemed to be a material breach of this Agreement by you.

3.4 You acknowledge:

(r) the value of the Intellectual Property Rights is such that an award of damages or an account of profits might not be an adequate remedy for a breach of this clause 7; and

(s) Bardavon may, without having to prove any actual damage, take any action or seek any remedy including but not limited to seeking an injunction in relation to any actual or threatened breach of this clause 7.

4 Fees, orders and invoices

4.1 You agree to buy access licenses for the Platform from Bardavon and Bardavon agrees to sell licenses to you, while this Agreement continues, at the Price, as updated by any subsequent price list.

4.2 Despite anything contained in this Agreement to the contrary, Bardavon may change the Price without notice in its absolute discretion from time to time.

4.3 You must place orders for licenses with Bardavon in accordance with Bardavon’s processes and procedures, as notified from time to time and as set out in the Master Service Agreement.

4.4 You must pay for the licenses by one of the methods set out in the Master Service Agreement. The payment will be processed upon receipt of the order.

4.5 Where Bardavon receives an order from you, Bardavon:

(a) has no obligation to provide access to the Platform or the Enrollee(s) until payment is received for the Platform, unless otherwise agreed by Bardavon;

(b) will use all reasonable endeavors to ensure that the Platform is available;

(d) will ensure that the Platform is of a merchantable quality for resale by you.

4.6 You must pay the Price specified in the Master Service Agreement or at the time that you place your order. All amounts are stated in US dollars or as otherwise indicated by Bardavon.

4.7 In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provides to Bardavon is true and complete, that you are authorized to use the debit card or credit card to make the payment, that your payment will be honored by the card issuer, and that you will maintain sufficient funds in your account to cover the Price.

4.8 If invoices are unpaid for 60 days, Bardavon has the right to engage debt collection services for the collection of unpaid and undisputed debt, and the right to commence legal proceedings for any outstanding amounts owed to Bardavon. You are liable for and must pay all costs including debt collection, commission, solicitor’s fees and any out-of-pocket expenses. Bardavon may report you to credit reporting agencies. Bardavon’s pricing structure or payment methods may be amended from time to time at Bardavon’s sole discretion.

5 Intellectual property rights

5.1 All Intellectual Property (including copyright) developed, adapted, modified or created by Bardavon or Bardavon’s personnel (including in connection with this Agreement, the Platform, the Hardware, the SaaS Services and the Services) will at all times vest, or remain vested, in Bardavon.

5.2 You must not, without Bardavon’s prior written consent:

(a) copy or use, in whole or in part, any of Bardavon’s Intellectual Property;

(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Bardavon’s Intellectual Property to any third party; or

(c) breach any Intellectual Property Rights connected with the Platform or the Hardware, including (without limitation) altering or modifying any of Bardavon’s Intellectual Property, causing any of any of Bardavon’s Intellectual Property to be framed or embedded in another website or creating derivative works from any of Bardavon’s Intellectual Property.

5.3 You acknowledge and agree that Bardavon will own any suggestions, enhancement requests, recommendations or other feedback provided by you, your personnel or customers, relating to the Services.

5.4 This clause 9 will survive termination of your Account.

6 Your responsibilities and obligations

6.1 You must, at your expense:

(a) provide Bardavon with all materials and all reasonable assistance and cooperation in order for Bardavon to supply the Services in an efficient and timely manner, including obtaining from authorized users any consents necessary to allow you and your personnel to engage in the activities described in this Agreement and to allow Bardavon to provide the Services;

(b) provide Bardavon and Bardavon’s personnel with reasonable access to your environment and Premises, including all systems, information technology and telecommunications services (Environment), if necessary for Bardavon to supply the Services;

(c) ensure that only your personnel and authorized users access and use the Services and such use and access is in accordance with this Agreement;

(d) ensure all information provided to Bardavon is kept up-to-date and the email address you provide is valid and regularly checked; and

(e) make any changes to your Environment, such as system upgrades, which may be required to support the delivery and operation of any Services or Hardware.

7 Orders and Acceptance

7.1 All orders for a referred product or service are contingent upon Bardavon’s approval. Decisions regarding contract terms, credit, and all billing and shipments, shall be made only by Bardavon. Bardavon reserves the right to decline to accept any order received from or through a referred prospect from the Customer for the purchase of a product or service; to revise delivery dates; and to discontinue the sale of a product or service, or to otherwise determine the terms and conditions of any relationship between the Bardavon and the referred prospect.

8 Indemnity and liability

8.1 Despite anything to the contrary, to the maximum extent permitted by Law:

(a) Bardavon will not be liable to you for any Consequential Loss, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

(b) failure or delay in providing the Platform;

(d) guarantee or warranty if you choose to not follow any of Bardavon’s recommendations provided through the Platform;

(e) the Hardware, including the functionality, use or installation of the Hardware;

(f) any act or omission of third parties (including, without limitation, any third parties engaged by you to install the Hardware at your Premises);

(g) breach of this Agreement or any Laws; (specifically workplace health and safety and workplace surveillance Laws if applicable); or

(h) breach of any person’s privacy or other rights when using the Hardware, where caused or contributed to by any:

(i) event or circumstance beyond Bardavon’s reasonable control;

(j) a fault, defect, error or omission in your Environment or data; or

(k) act or omission of you, your related parties, personnel or a third-party service provider, and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Platform.

8.2 This clause 8 will survive the termination or expiry of this Agreement.

9 Termination

9.1 This Agreement will terminate immediately upon written notice by:

(a) us, if:

(i) you (or any of your Personnel) breach a material provision of this Agreement and that breach has not been remedied within 10 business days of being notified by us;

(ii) you fail to provide Bardavon with clear or timely instructions or information to enable Bardavon to provide the Services;

(iii) for any other reason outside Bardavon’s control which has the effect of compromising Bardavon’s ability to provide the Services; or

(iv) you are unable to pay your debts as they fall due; and

(b) you, if we:

(i) are in breach of a material term of this Agreement, and that breach has not been remedied within 10 business days of being notified by you; or

(ii) are unable to pay Bardavon’s debts as they fall due.

12.2 Upon expiry or termination of this Agreement:

(d) you agree that any payments made by you to Bardavon are not refundable to you, and you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement; and

(e) you agree to grant Bardavon such rights of access to any premises where the Hardware is located to allow Bardavon (or Bardavon’s Personnel) to immediately recover or repossess Hardware belonging to us.

9.3 We will retain your documents (including copies) as required by Law or regulatory requirements. Your express or implied Agreement to this Agreement constitutes your authority for Bardavon to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.

9.4 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.

9.5 This clause 9 will survive the termination or expiry of this Agreement.

10 General

10.1 Force Majeure: If a party (Affected Party) is unable to perform any of its obligations under this Agreement due to an event or circumstance beyond its reasonable control (Force Majeure) and it gives the other party prompt written notice of such, the Affected Party’s obligations will be suspended to the extent necessary. The Affected Party must use reasonable efforts to limit the impact of the event on its performance and must continue to perform its obligations in full as soon as the Force Majeure ceases.

10.2 Disputes: Neither party may commence court proceedings relating to any dispute arising from, or in connection with, this Agreement without first meeting with a senior representative of the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).

10.3 Notices: Any notice given under this Agreement must be in writing and addressed to the details set out in the Master Service Agreement. Any notice may be sent by standard post or email and will be deemed to have been served on the expiry of 4 Business Days in the case of post, or at the time of transmission in the case of email.

10.4 Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to this Agreement does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.

10.5 Relationship of parties: This Agreement is not intended to create a partnership, joint venture or agency relationship between the parties.

10.6 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions.

10.7 Assignment: You must not assign any rights or obligations under this Agreement, whether in whole or in part, without Bardavon’s prior written consent. Bardavon may assign any rights or obligations under this Agreement, whether in whole or in part, without your consent.

10.8 Entire Agreement: This Agreement contains the entire understanding and Agreement between the Parties in respect of their subject matter.

10.9 Amendment: Bardavon may, at any time and at Bardavon’s discretion, vary this Agreement by publishing varied terms on the Platform.

10.10 Governing law: This Agreement is governed by the Laws of the State of Delaware. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in the State of Delaware and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts. We make no representation that the Services complies with the laws (including Intellectual Property Laws) of any country outside of Australia and the USA. If you access the Services from outside Australia and the USA, you do so at your own risk and are responsible for complying with the Laws in the place you access the Services.

11 Definitions

In this Agreement, unless the context otherwise requires, capitalized terms have the meanings given to them in this Agreement, the Master Service Agreement, and:

Agreement means these terms and conditions, all schedules (including the Master Service Agreement), annexures and attachments included, or referred to, in this Agreement.

Appointment Type is defined in the Master Service Agreement.

Business Day means a day on which banks are open for general bank business in the State of Delaware, excluding Saturdays, Sundays and public holidays.

Commencement Date means the date of the Master Service Agreement.

Confidential Information includes information which:

(a) is disclosed to the Receiving Party in connection with this Agreement at any time;

(b) is prepared or produced under or in connection with this Agreement at any time;

(d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Customer Agreement means an agreement entered into between you and the Customer for the provision of services to that Customer including the provision of the Platform.

Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel, authorized users, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services.

Intellectual Property means any copyright, registered and unregistered trademarks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or Intellectual Property rights, whether registrable or not, including in respect of Intellectual Property.

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licenses, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the provision of the Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Minimum Order Requirement is defined in the Master Service Agreement.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.

Platform means the software as a service platform and the provision of the Hardware as set out in the Master Service Agreement and at www.Bardavon.live.

Platform License is defined in clause 3.

Bardavon Terms and Conditions means the Bardavon Terms and Conditions for the supply of the Platform to customers as set out on www.Bardavon.live.

Privacy Policy means any privacy policy set out on Bardavon’s Platform.

Third Party Inputs means third parties, or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.

Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement.

12 Interpretation

12.1 In this Agreement, unless the context otherwise requires:

(a) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(b) a reference to any legislation or Law includes subordinate legislation or Law and all amendments, consolidations, replacements or re-enactments from time to time;

(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

(f) a reference to a covenant, obligation or Agreement of two or more persons binds or benefits them jointly and severally;

(g) a reference to time is to local time in New South Wales; and

(h) a reference to $ or dollars refers to the currency of Australia from time to time.