Preventure Resale Customer Terms and Conditions

Last Updated Date: June 5, 2023

1. ACCEPTANCE.

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.

1.2 You wish to resell access to the Platform to Customers in your Territory. Bardavon has agreed to grant you those rights as set out in this Agreement.

2 Appointment

2.1 Bardavon appoints you for the Term to use best endeavors to market and license the Platform, in accordance with the Appointment Type within the Territory.

2.2 Your appointment is limited to the Territory, as set out in Master Service Agreement, unless expanded with Bardavon’s prior written consent.

2.3 You may describe yourself as an authorized dealer or reseller of Bardavon’s Platform, but you must not describe yourself in any way as Bardavon’s agent. The parties agree that this Agreement does not constitute you as agent of, or as a partner with, Bardavon. You must not pledge Bardavon’s credit to any third party.

3 License

3.1 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 customers 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 Customers in breach of this Agreement (Customers);

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

(c) copy documentation as may be necessary to enable the use of the Platform in accordance with this Agreement; and

(d) allow your Personnel rights to use and operate the Platform for the purposes of providing Your Services, provided that you will be responsible and liable for any use of the Platform by your Personnel in breach of this Agreement, (together the Platform License).

4 Sub-licensing to Customers

4.1 You may only sub-license the Platform:

(a) if the sub-license with a Customer:

(i) is in a form that includes Customers being legally bound to the terms of the Bardavon Terms and Conditions;

(ii) prohibits any further sub-licensing of the Platform and Documentation by Customers (but the use of the Platform by Customers in accordance with the terms of the sub-license from you and the Bardavon Terms and Conditions does not constitute further sub-licensing);

(iii) contains an acknowledgment regarding ownership of the Platform by Bardavon and a prohibition on Customers asserting any right of ownership in the Platform;

(iv) makes no representations or warranties on behalf of Bardavon;

(v) is terminable by you immediately upon any unauthorized copying or disclosure of the Platform by the Customer to a third party;

(vi) requires Customers to protect the confidentiality of the Platform to at least the same degree as the Confidential Information clause in the Master Service Agreement;

(vii) does not grant any rights to Customers beyond the scope of these terms & conditions and the Master Service Agreement; and

(viii) contains similar representations, warranties and acknowledgements as given by you under this Agreement.

4.2 You must by notice to a Customer, require the Customer to cease or rectify such unauthorized copying or disclosure of the Platform as soon as practicable after you become aware of such unauthorized copying or disclosure and exercise your termination right in the event that the Customer does not cease or rectify such unauthorized copying or disclosure within 5 Business Days after receiving notice from you requiring it to do so.

5 Management of Customer Agreements

5.1 To ensure the proper support for Customers, you must, within 5 Business Days of entering into a Customer Agreement, provide Bardavon with a copy of the Customer Agreement (excluding pricing information) including details of the term and termination rights of the parties to the relevant Customer Agreement.

5.2 You must, 30 Business Days prior to the expiry of the then-current term of a Customer Agreement, notify Bardavon whether you have commenced or intend to:

(a) commence negotiations with the Customer to extend the term of the relevant Customer Agreement for a further term (Extended Customer Agreement); or

(b) terminate or allow to expire the Customer Agreement.

5.3 As soon as you become aware that you will not be entering into an Extended Customer Agreement and the relevant Customer Agreement will expire at the end of its current term, you must notify Bardavon.

5.4 You must not more than 10 Business Days after the expiry or termination of a Customer Agreement, notify Bardavon whether Customer Agreement expired or was terminated (and if it was terminated, by which party).

6 Novation of Customer Agreements

6.1 Where the Term or Extended Term expires and Customer Agreements exist between you and Customers at the expiry date of the Term (Term End), you must immediately inform Customers that it is no longer capable of licensing the Platform and that with effect from the Term End their Customer Agreement will either be:

(a) terminated as set out in their Customer Agreement; or

7 Conditions of Platform License

7.1 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.

7.2 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.

7.3 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.

7.4 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.

8 Fees, orders and invoices

8.1 You agree to buy access licenses for the Platform (End User License) from Bardavon and Bardavon agrees to sell End User Licenses to you, while this Agreement continues, at the Price, as updated by any subsequent price list.

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

8.3 You must place orders for End User 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.

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

8.5 Where Bardavon receives an order from you or a Customer, Bardavon:

(a) has no obligation to provide access to the Platform or the Customer 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;

(c) will supply the Platform in such a way, as to comply with any applicable Laws; and

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

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

8.7 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.

8.8 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.

9 Intellectual property rights

9.1 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.

9.2 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.

9.3 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.

9.4 This clause 9 will survive termination of your Account.

10 Your responsibilities and obligations

10.1 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.

11 Customer’s Referral Responsibilities

11.1 In connection with referrals of prospective customers hereunder, the Customer making a referral (the “Referring Party”) shall:

(a) Provide accurate and complete information to Bardavon regarding the prospective customer. This information shall include at a minimum: name, address, city, state, zip, phone and type of business in which the prospective customer participates;

(b) Cooperate with Bardavon and the prospective customer and facilitate the communication between them in establishing a business relationship under this Agreement;

(c) Make no representation concerning Bardavon or its products or services, except as set forth in any printed documentation furnished to Customer by Bardavon: and

(d) Except pursuant to this agreement, do not reproduce, reference, distribute, or utilize any Trademark of Bardavon, except solely for the purposes of identifying Bardavon’s products or services, without the prior written approval of Bardavon.

12 Bardavon’s Referral Acceptance Responsibilities

12.1 In connection with referrals of prospective customers hereunder, the Bardavon shall:

(a) Respond in writing (electronic mail being acceptable) as soon as reasonably practicable to each Proposed Referral Notice from the Customer, and in no event more than five (5) business days from the date of the Proposed Referral Notice, to confirm to the Customer that the referred prospect described in the Proposed Referral Notice is a Registered Lead of the Referring Party (in other words and without limitation, that the Customer is eligible to receive Commissions from sales by Bardavon to such prospective customer).

(b) Subject to Orders and Acceptance Section, negotiate in good faith with the referred prospect for the provision of the referred products or services.

(c) Subject to Orders and Acceptance Section, assume responsibility for (as applicable) licensing, implementation, customization, and maintenance and support of the referred product or service for the prospect in accordance with the terms of the Bardavon’s agreement(s) for the provision of those products or services with the referred prospect, provided that Bardavon shall have no obligation whatsoever to the Customer with respect to the Bardavon’s performance, or lack thereof, under or with respect to any agreement between the Bardavon and the referred prospect; and

(d) Subject to Orders and Acceptance Section, make arrangements directly with the referred prospect for payment of any amounts payable under an agreement for the provision of those products or services between the referred prospect and Bardavon.

13 Commissions

13.1 Bardavon shall pay Customer such commissions within 30 days after the end of the calendar month in which Bardavon receives (on an as-collected basis) the corresponding license, services, or other fees from Customer’s referred prospect.

13.2 “Registered Lead” means a prospective customer of Bardavon described in a Proposed Referral Notice that the Customer refers to Bardavon during the term of this Agreement in accordance with Customer’s Referral Responsibilities Section and Bardavon’s Referral Acceptance Responsibilities Section and where such referred prospect has not previously been identified, contacted, or referred through Bardavon’s other efforts or by another representative of Bardavon, as set forth in Bardavon’s confirmation, pursuant to Bardavon’s Referral Acceptance Responsibilities Section, that such referred prospect is a Registered Lead of the Customer with Bardavon.

14 Orders and Acceptance

14.1 All orders for a referred product or service shall be subject to acceptance in writing by Bardavon. 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.

15 Indemnity and liability

15.1 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;

(c) unavailability, outage or interruption to the Platform or your systems;

(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.

15.2 This clause 11 will survive the termination or expiry of this Agreement.

16 Termination

16.1 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.

16.2 Upon expiry or termination of this Agreement:

(c) we will immediately cease providing the Services;

(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.

16.3 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.

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

16.5 This clause 12 will survive the termination or expiry of this Agreement.

17 General

17.1 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.

17.2 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).

17.3 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.

17.4 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.

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

17.6 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.

17.7 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.

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

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

17.10 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.

18 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;

(c) relates to the Disclosing Party’s business, assets or affairs; or

(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.

19 Interpretation

19.1 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.

Effective Date: 07/01/2023