Terms & Conditions

AI Imaging solutions

This document, together with any quotations accepted by you, sets out the terms of our engagement to provide goods and services. It constitutes the terms which, if accepted, will define the manner in which you agree to do business with Saphi Pty Ltd.

By accepting any quotations provided by Saphi Pty Ltd you agree to be bound by the terms and conditions contained in this document.

1. Background

  • 1.1 Saphi provides an AI imaging system (System) comprised of the Software and the Hardware (collectively, the “Solution”) marketed under the brand ‘Shellshock Ai’.
  • 1.2 Saphi wishes to offer for sale the Hardware and agrees to grant a Licence to the Customer for the purposes of utilising the Solution for the Permitted Use, and the Customer has agreed to accept the Licence and wishes to purchase the Hardware from Saphi in accordance with the terms of this Agreement.
  • 1.3 This Agreement is intended to be legally binding and the parties agree to give effect to the arrangements contemplated by it.

2. Grant of Licence

  • 2.1 Subject to the further terms and conditions set out in this Agreement, from the Start Date, Saphi grants the Customer a temporary, royalty-free, non-exclusive, non-transferable, non-assignable right to use the Solution and any further accompanying Documentation solely to enable the Customer to use the Solution for the Permitted Use set forth in Part 5 of the Engagement Form and to perform its obligations under this Agreement for the duration of the Term (Licence).
  • 2.2 Notwithstanding clause 2.1 above, this Agreement does not constitute a Licence of the Source Code and nothing in this Agreement shall give to the Customer any right to access or use the Source Code.

3. Term

  • 3.1 Provided the Licence is not terminated in accordance with clause 10, the Licence will commence on the Start Date and will continue for the Term selected in Part 4 of the Engagement Form (the “Initial Licence Period”). The Licence will automatically renew for sequential one (1) year periods (each a “Renewal Period”) unless either party notifies the other party in writing at least thirty (30) days prior to the end of the then current Term that it wishes the Term to expire at the end of the then current Term without the next automatic one (1) year extension taking place. For the avoidance of doubt, the Initial Licence Period along with any applicable Renewal Period collectively referred to as the “Term”.
    Non-Exclusivity
  • 3.2 During the Term, the parties acknowledge and agree that the provision of the Solution shall be non-exclusive and does not restrict Saphi or any Affiliate of Saphi from contracting with any other person or entity for the distribution, performance or delivery of the Solution.

4. Intellectual Property Rights & Copyright

Pre-Existing IP

  • 4.1 A party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the date of this Agreement will not be altered, transferred or assigned by virtue of this Agreement.
    Relevant IP
  • 4.2 The Customer acknowledges and agrees that it is not acquiring any Intellectual Property Rights (other than the Licence) in or to the Relevant IP and the Trade Marks, information or material (including Confidential Information) relating to the Solution and that Saphi owns and retains title to all Relevant IP owned by Saphi (including Saphi Data).
  • 4.3 The Customer acknowledges and agrees that any Saphi Data that is captured, collected and/or shared as a part of providing the Solution:
    (i) is Saphi’s intellectual property, and the Customer has no proprietary right, title to, or interest in Saphi Data pertaining to the Software; and
    (ii) Saphi, shall, in its absolute discretion, be entitled to use the Saphi Data for any purpose as determined by Saphi in its absolute discretion.
  • 4.4 The Customer acknowledges and agrees it must not take any step to invalidate or prejudice Saphi’s title thereto or to any Relevant IP owned by a third party, and licensed by Saphi to the Customer hereunder. When using the Solution, the Customer must comply with the law including, without limitation, copyright laws.
  • 4.5 The Customer acknowledges and agrees that Saphi has entered into this Agreement in reliance on the assumption that the Customer’s utilisation of the Solution will not infringe the Intellectual Property Rights of a third-party.
  • 4.6 This Licence is not a sale. Title, copyright and any other rights in the Relevant IP will remain with Saphi or its Affiliates (where applicable). Unauthorised copying of the Solution or failure to comply with the above restrictions will result in automatic termination of this Agreement.
  • 4.7 Nothing in this Agreement affects the ownership of Moral Rights in the Software.
    Customer Data
  • 4.8 Saphi acknowledges and agrees that any Customer Data that is captured, collected and/or shared with Saphi during the Term is the Customer’s intellectual property, and Saphi has no proprietary right, title to, or interest in the Customer Data. 
  • 4.9 Notwithstanding clause 4.8 above, the Customer grants or will procure for Saphi a right to use the Customer Data only for the purposes of this Agreement or as otherwise agreed between the parties acting reasonably. For the avoidance of doubt, any Customer Data that is captured, collected and/or shared with Saphi will  be used by Saphi at its discretion.

Use of Trade Marks

  • 4.10 The Customer shall conform to the reasonable requirements of Saphi in relation to the use of the Trade Marks on the Solution and any packaging and in all related promotional and advertising materials. Any goodwill or other benefit derived as a result of any use of any of Saphi’s Trade Marks shall inure to the sole benefit of Saphi.
  • 4.11 The Customer shall not, at any time during or after the Term:
    (i) claim any right, title, or interest in or to, attempt to register in any jurisdiction, or do anything that may adversely affect the validity or enforceability of, any of the Trade Marks; and/or
    (ii) adopt, register or use in any manner whatsoever any name, mark, logo, title, expression, word, device, symbol, or combination thereof, which in any way imitates, resembles, dilutes, or is similar to any of the Trade Marks. Furthermore, at Saphi’s reasonable request and expense, the Customer shall do all things necessary to assist Saphi in the protection of its Trade Marks in the Territory.

Marketing

  • 4.12 Saphi reserves the right to use the Customer as a case study for Saphi’s marketing material (including on its Website on social media, in press releases, testimonials and clippings) for the purposes of promoting Saphi and the Customer agrees and consents to such use, unless the Customer provides Saphi express written notice revoking such consent. For the avoidance of doubt, this shall not permit Saphi to publish or disclose any Confidential Information of the Customer, otherwise than in accordance with this Agreement.

5. Obligations and Acknowledgements of the Parties

Joint Obligations

  • 5.1 The parties acknowledge and agree that:
    (a) they shall exercise all reasonable care and skill in performing their duties and obligations under this Agreement;
    (b) they shall comply with all federal, state, local and foreign laws in the Territory, constitutions, codes, statutes and ordinances of any governmental authority that may be applicable to the Customer, its activities under this Agreement, the Solution, including all applicable taxation laws and regulations affecting the activities of either party under or in connection with this Agreement;
    (c) they will conduct their business in a professional manner, in accordance with good business practice, and in a manner that reflects favourably at all times on each other, the Solution, and the good name, goodwill and reputation of each party; and
    (d) they, and any of their associated entities, Affiliate, successors or permitted assigns shall not otherwise use any of the Confidential Information or Saphi provided training to support, maintain or otherwise service a third party’s products.
    Saphi Obligations
  • 5.2 Saphi shall:
    (a) be honest and diligent and provide the Solution to the best of its knowledge and abilities;
    (b) at all times maintain reasonable ethical, professional and technical standards;
    (c) in relation to any Personal Information of any Customer, supplier or Representative of the Customer, any user or prospective user or any other person, comply with Privacy Laws, information sheets and other relevant material issued from time to time by the Commonwealth Privacy Commissioner;
    (d) provide the Customer and its personnel with such reasonable technical and marketing information, training and support as the Customer considers reasonably necessary to enable use of the Solution in the manner contemplated by the parties acting reasonably and subject to the terms set forth in clause 14.1 and clause 14.2;
    (e) take all reasonable steps to maintain all licenses to all Relevant IP not owned by Saphi necessary for the commercialisation of the Solution in the Territory, and if Saphi is unable to maintain any such licenses, Saphi shall take all reasonable steps to promptly develop or obtain a license to alternative intellectual property that is at least comparable to such intellectual property to enable the continued commercialisation of the Solution in the Territory; and
    (f) use all reasonable endeavours to maintain the availability of the Software.
    Customer Obligations
  • 5.3 The Customer shall:
    (a) at all times exercise reasonable care in using the Solution, including proper use and maintenance in accordance with Saphi’s reasonable instructions;
    (b) not use the Relevant IP in any way that could damage the reputation of Saphi or the goodwill or the Intellectual Property Rights associated with the Relevant IP or to support any activities outside of the scope of the business;
    (c) not permit any third party to use the Relevant IP and/or Documentation, without the prior written consent of Saphi; and
    (d) unless permitted by Law or as otherwise expressly permitted in this Agreement, the Customer, its Affiliates and Representatives must not, nor must the Customer, its Affiliates and Representatives:
    (i) reproduce, copy, download, scrape, store, publish, transmit, transfer, communicate, distribute, disseminate, sell, rent, lend or otherwise use the Solution, in any form or by any means;
    (ii) make the Solution available to any person other than an authorised user;
    (iii) convert material downloaded from the Software into an electronic format other than the one in which it was supplied;
    (iv) modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, or copy the Solution or otherwise attempt to discern the source code of the components of the Software or reproduce all or any portion of the said components;
    (v) remove, alter, circumvent or tamper with any trade marks, copyright notices, copyright protection devices, disclaimers or other legal notices;
    (vi) combine the whole or any part of the data available on the Software with any other software, data or material;
    (vii) store or use any part of such data in an archival database or other searchable database except as forming part of any work product;
    (viii) where applicable, remove any proprietary notices, labels or marks on the Solution or the Documentation; or
    (ix) post the Software to any location that is electronically accessible to the general public, including, but not limited to: electronic bulletin boards, web sites, and ftp sites.
    (e) take out and maintain insurance, including public and product liability and workers compensation insurance, with a reputable insurer in respect of their obligations under this Agreement. The limit of the Customer’s insurance policies shall be commercially reasonable from the perspective of the country in which the Customer is domiciled. A certificate of currency of such insurance must be provided to Saphi within five (5) Business Days of a written request for evidence of such insurance.
  • 5.4 The Customer’s use of the Solution is strictly limited to the Permitted Use set out in Part 5 of the Engagement Form.

6. Fees and expenses

  • 6.1 In consideration for the Licence granted by Saphi to the Customer throughout the duration of the Term, the Customer shall pay Saphi fees (plus GST) for the provision of the Solution as set out Part 6 and Part 7 of the Engagement Form (Fees).
  • 6.2 All Fees payable to Saphi shall be made by electronic transfer from a bank account or credit card or debit card nominated by the Customer.
    Hardware Fee
  • 6.3 The Hardware Fee shall be invoiced in advance to the Customer from the Start Date for the full amount payable in accordance with the Hardware Fees for the Hardware Plan selected by the Customer set out in Part 6 of the Engagement, unless otherwise agreed between the parties in writing.
  • 6.4 Payment of the Hardware Fee shall be made to Saphi’s nominated bank account via electronic funds transfer within thirty (30) days after the date of receipt by the Customer of a tax compliant invoice from Saphi, unless otherwise agreed between the parties in writing.
    Software Fee
  • 6.5 The Software Fee shall be invoiced to the Customer on the Start Date. Thereafter, the Software Fee shall be invoiced to the Customer on an annual basis, in accordance with the Software Fees for the Software Package selected by the Customer in Part 7 of the Engagement Form.
  • 6.6 Payment of the Software Fee shall be made to Saphi’s nominated bank account via electronic funds transfer within thirty (30) days after the date of receipt by the Customer of a tax compliant invoice from Saphi, unless otherwise agreed between the parties in writing.
  • 6.7 After the Term, the Customer may not use or deal with the Solution in any way unless the Customer has agreed to fees payable to Saphi for use of the Solution on an on-going basis.
    Variation
  • 6.8 Saphi may change its pricing in respect to the Solution from time to time subject to providing the Customer with reasonable written notice of such change in pricing.
    Additional Services
  • 6.9 Any fees for Additional Services requested by the Customer will be negotiated separately and agreed between the parties in writing.

7. Hardware Delivery and Software Access

Hardware Delivery

  • 7.1 Unless otherwise agreed between the parties, delivery of the Hardware shall be to the Customer’s nominated address set out in Part 2 of the Engagement Form. The Hardware shall not be delivered to the Customer until such time payment of any invoice rendered for the Software Fee and Hardware Fee in accordance with clause 6 has been received by Saphi in full.
  • 7.2 Upon delivery of the Hardware to the Customer, the title will transfer to the Customer, and shall be deemed accepted by the Customer. The Customer must report to Saphi any damaged Hardware within three (3) days of the delivery date, failing which the delivered Hardware will be deemed to have been accepted by the Customer in its current state, and the Customer waives its rights to any Claim against Saphi. While Saphi shall use all reasonable endeavours to fulfil promptly all orders for the Hardware placed by the Customer, Saphi shall not be under any liability to the Customer for any failure to deliver by any estimated delivery date.
    Software Integration and Access
  • 7.3 The Customer acknowledges and agrees that access to the Software shall be limited to the following (unless otherwise agreed between the parties):
    (a) via the Customer’s Smart City Network with Long Range Wide Area Network (LoRaWAN);
    (b) if the Customer does not have LoRaWAN, the Software (which includes the Saphi Data), will be sent via 4G to a platform of the Customer’s choosing; or
    (c) the Software shall be transmitted from the Hardware over 4G to Saphi’s server and can be accessed via an Application Programming Interface (API) endpoint.
    Suspension or modification of the Solution
  • 7.4 Saphi may discontinue or revise any or all aspects of the Solution at its sole discretion and without prior notice to take account of (for example but without limitation) changes in Law or circumstance relating to the Solution.
  • 7.5 Saphi may suspend access to the Solution, in whole or in part, until further notice, with immediate effect:
    (a) to periodically maintain or improve the Solution and related systems;
    (b) to comply with any order, instruction or request of any government, any emergency services organisation, or other competent judicial, administrative or regulatory authority; or
    (c) if Saphi believes that the Solution may be used in such a way as may constitute a breach of this Agreement.
  • 7.6 Saphi shall use its best endeavours to minimise disruption to the use of the Solution.

8. Confidentiality

  • 8.1 Each party must:
    (a) not, without the prior written consent of the other party, use or disclose any of the other party’s Confidential Information except as expressly permitted to do so by this Agreement or as required by law or any regulatory authority;
    (b) use the other party’s Confidential Information solely for the purposes of complying with its obligations and exercising its rights under this Agreement;
    (c) implement and maintain security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information whilst it is in the first-mentioned party’s possession or control; and
    (d) return or, at the other party’s option, destroy all Confidential Information of the other party that is in the first-mentioned party’s possession or control upon request by the other party or the expiry, revocation or termination of this Agreement for any reason.
  • 8.2 A party may disclose the other party’s Confidential Information to the first-mentioned party’s employees or professional advisors but only to the extent that they have an actual need to know the Confidential Information in order for the first-mentioned party to properly perform its obligations under this Agreement. The first-mentioned party must ensure that all such employees and professional advisors:
    (a) comply with the obligations in this Agreement as if each of them was a party to this Agreement in its place; and
    (b) do not do, or omit to do, anything which, if done or omitted to be done by it, would constitute a breach of this Agreement by it,
    and the Customer acknowledges and agrees that the Customer will be responsible for, and liable to Saphi in respect of, the actions and omissions of any and all of the aforementioned employees and professional advisors in relation to such Confidential Information as if they were the Customer’s own actions or omissions.
  • 8.3 This clause will survive the termination of this Agreement.

9. Disclaimer of Liabilities and Warranties

  • 9.1 The Solution and accompanying Documentation are licensed “as is.”
  • 9.2 Subject to clause 12.1, to the extent permitted by law, all implied warranties and conditions are excluded. In no event (including but not limited to any act or omission on Saphi’s part) will Saphi be liable to the Customer for any consequential, incidental or indirect damages (including damages for loss of business profits, business interruption, loss of business information and the like), whether foreseeable or unforeseeable, arising out of the use of or inability to use the Solution, Documentation or accompanying written materials.
  • 9.3 If any law or regulation including but not limited to the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law, confers rights and remedies on the Customer in relation to the provision by Saphi of the Solution which cannot be excluded, restricted or modified (Non-excludable Rights), Saphi does not exclude any Non-excludable Rights but Saphi does exclude all other conditions and warranties implied by custom, law or statute.
  • 9.4 Except as provided for by the Non-excludable Rights:
    (a) the Solution used by the Customer are provided without warranties of any kind, either express or implied;
    (b) Saphi does not warrant that the Solution will be complete or free from all errors;
    (c) Saphi does not assume and shall have no liability for:
    (i) failure to deliver the Solution within a specified time period;
    (ii) availability and delays in delivery of the Solution;
    (iii) any failure or interruption of the Solution;
    (iv) damage caused by the Solution due directly or indirectly to causes beyond the control of Saphi including, but not limited to a Force Majeure Event;
    (v) maintenance and storage of data; or
    (vi) disclosure of or failure to protect personally identifiable data.
    (d) Saphi does not warrant that information will continue to be available to Saphi to enable Saphi to keep the Solution up-to-date; and
    (e) all representations are expressly excluded and the Customer has not relied on any representations in trialing the Solution.
  • 9.5 To the fullest extent permitted by law, Saphi’s liability for breach of any implied warranty or condition which cannot be excluded, but can be limited, is limited, at Saphi’s option to any of the following:
    (a) the replacement of the of the Solution or supply of equivalent Hardware or Software;
    (b) the repair of the Solution; or
    (c) the payment of the cost of having the Solution repaired,
    and shall not in any event exceed the amounts actually paid by the Customer to Saphi during the six (6) month period immediately preceding the event giving rise to such liability.

10. Termination

Termination with Notice

  • 10.1 Saphi may, without limitation to its rights under clause 10.4, terminate this Agreement at any time by giving at least thirty (30) days written notice to the Customer.
  • 10.2 The Customer may, without limitation to its rights under clause 10.4, terminate this Agreement at any time by giving at least ninety (90) days written notice to the Saphi and Saphi may waive all or part of such notice period.
  • 10.3 The Customer may provide Saphi with written notice 30 (thirty) days prior to the completion of the Term that it does not wish for the Agreement to automatically renew, such that the Agreement shall terminate at the end of such notice period. If the Customer does not provide such notice, this Agreement will automatically renew for the additional Term as per clause 3.1.
    Termination for Breach
  • 10.4 Each party may terminate this Agreement with immediate effect by written notice to the other party if
    (a) the other party materially breaches this Agreement where:
    (i) such breach is irremediable; or
    (ii) if remediable, the other party fails to remedy the breach within thirty (30) days of written notice by the terminating party;
    (iii) an Insolvency Event occurs in respect of the other party; or
    (iv) a Force Majeure Event preventing the performance of this Agreement continues for more than ninety (90) Business Days.
    Effect of Termination
  • 10.5 Upon termination of this Agreement for any reason, the Customer shall immediately cease using or dealing with the Solution in any way and Saphi may request that the Customer must destroy such Software, copies, revisions, enhancements and upgrades by erasing them from the Media and must certify in writing to Saphi that they have been destroyed. Notwithstanding this clause 10.5, the Customer is not required to uninstall the Hardware, unless Saphi otherwise requests that the Customer do so in writing.
  • 10.6 Any termination of this Agreement shall not affect any accrued rights or liabilities of either party, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.
  • 10.7 Any provision of this Agreement that ought by its nature to survive the termination of this Agreement, shall survive, as shall clause 4 (Intellectual Property Rights & Copyright); clause 8 (Confidentiality); clause 9 (Disclaimer of Liabilities and Warranties); clause 10 (Termination); clause 11 (Indemnity); clause 12 (Warranties, Exclusions and Limitation of Liability); and clause 13 (Privacy).

11. Indemnity

Indemnity for breach of Agreement

  • 11.1 The Customer will indemnify and hold Saphi harmless against all Losses that may be suffered or incurred by Saphi arising directly or indirectly out of, or in connection with, any breach by the Customer of this Agreement.
    Indemnity for third-party claims
  • 11.2 The Customer will indemnify and hold Saphi harmless against all Losses that may be suffered or incurred by Saphi arising directly or indirectly out of, or in connection with, any Claim brought, or threatened to be brought, by a third party against Saphi alleging that the Integrations or the exploitation of the Relevant IP by Saphi constitutes an infringement of any Intellectual Property Rights of the third party, subject to clause 11.3(b) and except to the extent that such infringement arises from modification or alteration of the Integrations or of the Relevant IP without the prior written consent of the Customer.
  • 11.3 In the event of any third-party claim arising for the purposes of clause 11.2, Saphi shall:
    (a) notify the Customer of the third party claim in writing as soon as reasonably practicable after Saphi becomes aware of it; and
    (b) before terminating this Agreement or bringing any Claim against the Customer, give the Customer a reasonable opportunity to:
    (i) modify, alter or substitute the infringing part of the Relevant IP at the Customer’s own expense in order to avoid continuing infringement, or
    (ii) procure the authority from the relevant third party to continue exploiting the infringing Relevant IP.

12. Warranties, Exclusions and Limitation of Liability

Saphi Warranties

  • 12.1 Saphi, its Affiliates and its Representatives represent and warrant to the Customer that as at the Start Date, the following warranties are true and correct and not misleading:
    (a) Saphi is a duly incorporated company validly existing under the laws of its jurisdiction of incorporation and has the power and authority to execute, deliver and perform its obligations under this Agreement;
    (b) Saphi has the right to grant the licence granted under clause 2.1; and
    (c) the use by the Customer of the Relevant IP will not infringe any trade mark or other intellectual property rights of any person, nor give rise to payment by the Customer of any royalty to any third party or to any liability to pay compensation.

Customer Warranties

  • 12.2 The Customer, its Affiliates and its Representatives represent and warrant to Saphi that as at the Start Date, the Customer is a duly incorporated company validly existing under the laws of its jurisdiction of incorporation and has the power and authority to execute, deliver and perform its obligations under this Agreement;

Limitation of Liability

  • 12.3 Subject to clause 9, neither party will be liable to the other party for any special, indirect or consequential damages, loss or anticipated profits or loss of revenue, arising from this Agreement however caused whether in tort (including negligence), contract, statute, equity or otherwise.

13. Privacy

  • 13.1 If the Solution provided by Saphi involves the processing of Personal Information, both parties warrant that they will comply with their respective obligations under any applicable Privacy Legislation and the terms of this Agreement.
  • 13.2 The Customer must indemnify and hold Saphi harmless against all Losses sustained, incurred or suffered by Saphi arising as a result of the Customer’s breach of clause 13.1.
  • 13.3 By accepting this Agreement, the Customer agrees to be bound by the provisions of the Privacy Policy located on the Website.

14. General

Ongoing Support

  • 14.1 Saphi shall provide the Customer with reasonable technical support by email or phone, during normal business hours of 9:00am — 5:00pm AEST/AEDT to the contact name(s) listed in Part 2 of the Engagement Form or another person nominated by the Customer (Support Services). The Support Services shall include, at a minimum, two (2) hours per month. The Support Services are conditional on the Customer remaining current on all payment obligations and providing Saphi with all reasonable information requested by Saphi from time to time.
  • 14.2 The Customer acknowledges and agrees that for that any Support Services that exceeds two (2) hours per month, or in circumstances where the Customer requires on-site technical support (On-Site Support), Saphi’s hourly rates (which shall be provided to the Customer upon request) shall be proportionally charged for work involving periods of less than one hour structured in thirty (30) minute units, with two (2) units per hour, for example, the time charged for an attendance of up to thirty (30) minutes will be one (1) unit and the time charged for an attendance between thirty (30) and sixty (60) minutes will be two (2) units. Saphi shall keep and maintain accurate records of the number of hours of Support Services and/or On-Site Support in respect of which the hourly rate applies and provide the Customer with a copy of such records upon reasonable notice as may be requested by the Customer from time to time. Saphi reserves the right to vary its hourly rates at its sole discretion.

Further assurances

  • 14.3 Each party must (at its own expense, unless otherwise provided in this Agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this Agreement.

Third parties

  • 14.4 This Agreement is made for the benefit of the parties to it and their successors and permitted assigns and sub-licensees and is not intended to benefit, or be enforceable by, anyone else.

Costs

  • 14.5 Except as otherwise expressly provided in this Agreement, each party must pay its own costs and expenses in respect of the preparation, negotiation and execution of this Agreement.

Relationship of the Parties

  • 14.6 This Agreement does not create any partnership, joint venture or agency relationship between the parties.
  • 14.7 The Customer may not enter into any agreements or incur any liabilities on behalf of Saphi without Saphi’s prior written consent and may not represent to any person that it has any authority to do so.

Entire Agreement

  • 14.8 This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Software. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.

Severability

  • 14.9 Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement. Such invalidity shall not affect the validity of the remaining provisions of the Agreement.

Waiver

  • 14.10 No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this Agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this Agreement.

Notices

  • 14.11 All notices which are required to be given under this Agreement must be in writing and must be sent to the address of the recipient set out on the first page of this Agreement or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or (if sent by email and unless agreed otherwise), when the email enters the recipient’s mail server.

Assignment

  • 14.12 The Customer shall not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of Saphi.

Variation

  • 14.13 No variation of this Agreement will be Start unless in writing and signed by both parties.

Counterparts

  • 14.14 This Agreement shall be executed in counterparts by the respective parties, each of which when so executed shall be deemed to be an original all of which, taken together, shall constitute one and the same Agreement, provided this Agreement shall be of no force and effect until the counterparts are exchanged.

Electronic exchange

  • 14.15 Delivery of an executed counterpart of this Agreement by email in PDF or other image format, will be equally Start as delivery of an original signed hard copy of that counterpart.

Dispute Resolution

  • 14.16 The parties agree:
  • (a) to attempt in good faith to resolve any dispute between them in connection with any matter arising out of this Agreement;
  • (b) any agreement reached between the parties must be reduced to writing and will be binding on the parties;
  • (c) where a dispute cannot be resolved informally as between the parties, and a period of ten (10) Business Days has elapsed, the parties must seek to agree on the procedural rules and timetable for resolving the dispute through mediation; and
  • (d) such mediation is to occur by the appointment of a suitable mediator appointed by the parties, or in the absence of agreement, a mediator appointed by the New South Wales Bar Association, or any entity which replaces it.

Governing Law

  • 14.17 This Agreement 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 and construed in accordance with the laws applicable in New South Wales, Australia and the parties agree to submit to the exclusive jurisdiction of the courts of New South Wales.

15. Definitions and interpretation

Definitions

  • 15.1 In this Agreement, unless the context or subject matter otherwise requires:
    Additional Fees means any additional charge, fee or tax that is not included in the Fees but may be payable by the Customer to Saphi or to any third party, and which fees can be amended by Saphi from time to time.
    Additional Services means any additional services that Saphi may offer to the Customer during the Term outside the scope of the Hardware Package or Software Package, which the Customer may wish to purchase from Saphi (but is not obliged to do so).
    Affiliate means in relation to a party, that party, or another company if that other company:
    (a) holds a majority of the voting rights in it; or
    (b) is a member of it and has the right to appoint or remove a majority of its board of director; or
    (c) is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it; or
    (d) or if it is a subsidiary of a company that is itself a subsidiary of that other company.
    Authorised Representative means any Representative that is authorised by the Customer and/or Saphi to enter into legally binding agreements on behalf of the Customer and/or Saphi.
    Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Sydney, New South Wales are open for business.
    Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whatsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.
    Confidential Information means information of every kind:
    (a) which includes, but is not limited to, the Solution, the Documentation, Saphi Data, Customer Data, strategies, forecasts, projects, plans, documents and financial information of a party including, marketing information, computer records, software, trade secrets, drawings, designs, plans, concepts not reduced to product form and all other documents, records and information of a party which is of a confidential nature, including past, current or future affairs of either party and which, from its nature and content is or would reasonably be expected to be confidential; and
    (b) which is the property of that party or any Affiliate or Representative of that party; and
    (i) is disclosed in writing, orally or by any other means by that party or by any person on that party’s behalf to the party or an employee, officer or agent of the other party; or
    (ii) comes to the knowledge of the other party or an employee, officer or agent of the other party by any means,
    (c) but does not include information which is or becomes generally available to the public (other than as a result of the wrongful disclosure by a party or any Affiliate of the party).
    Corporations Act means the Corporations Act 2001 (Cth).
    Customer Data means any data and/or information that the Customer would otherwise be able to access without using the Solution, and which does not include Saphi Data.
    Documentation means any operating manuals, training materials, user guides, technical documentation, brochures, instructional material, advertising literature, functional and technical drawings, videos, online tutorials, templates, tools, procedures, diagrams and such other materials that accompany the Software and the Hardware provided by Saphi to the Customer from time to time to be used by the Customer in utilising the Software and Hardware for the Permitted Use or otherwise to assist the Customer to accomplish the purposes of this Agreement.
    Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
    (a) acts of God, flood, storm, drought, earthquake or other natural disaster;
    (b) epidemic or pandemic, including any industrial action or circumstances where there is Government enforced prohibition due to COVID-19 or any other pandemic or epidemic restricts the parties from fulfilling their obligations of this Agreement;
    (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
    (d) nuclear, chemical or biological contamination or sonic boom;
    (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; and
    (f) collapse of buildings, breakdown of plant or machinery, fire, explosion or accident.
    GST has the same meaning given to that expression in the GST Law.
    GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
    Hardware means the hardware items used in conjunction with the Software as further specified in the Inclusions for the Hardware Plan selected by the Customer in Part 6 of the Engagement Form.
    Hardware Fee means the fees to be paid by the Customer to Saphi for the Hardware Package selected by the Customer as set out in Part 6 of the Engagement Form and on the terms specified in clause 6.
    Hardware Package means the hardware packages which a Customer may select to purchase the Hardware as described in Part 6 of the Engagement Form, which sets out the Hardware Plan, Hardware Fee, Number of Systems and Inclusions.
    Hardware Plan refers to the plan selected by the Customer in Part 6 of the Engagement Form, being, the Bare Essentials, Enhanced or Night Vision Premium, or any other plan that may be introduced by Saphi in its absolute discretion during the Term of the Agreement.
    Inclusions refers to the features included in the Hardware Plan and the Software Plan in Part 6 and Part 7 of the Engagement Form as the case may be, or any other inclusions that may be introduced by Saphi in its absolute discretion during the Term of the Agreement.
    Insolvency Event means any of the following:
    (a) a person is or states that the person is unable to pay from the person’s own money all the person’s debts as and when they become due and payable;
    (b) a person is taken or must be presumed to be insolvent or unable to pay the person’s debts under any applicable legislation;
    (c) an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a corporation;
    (d) an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporation or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within seven (7) days;
    (e) a controller or analogous person is appointed in respect of any property of a person;
    (f) a corporation is deregistered under the Corporations Act 2001 (Cth) or notice of its proposed deregistration is given to the corporation;
    (g) a distress, attachment or execution is levied or becomes enforceable against any property of a person;
    (h) a person enters into or takes any action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of the person’s creditors or members or a moratorium involving any of them; or
    (i) anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of a person.
    Intellectual Property Rights means the registered trademarks, designs, patent and copyrights and any and all intellectual and industrial property rights throughout the world whether vested or contingent, including rights of any kind (whether registered or unregistered) in or relating to:
    (a) inventions, technological innovations, discoveries and novel designs, protected formulae, formulations, trade secrets, recipes, processes, know-how, operating systems, whether or not registered or registrable as patents, innovation patents (or any similar or analogous rights) or designs, including developments or improvements of equipment, technology, business methods or techniques, illustrations, photographs;
    (b) literary works, artistic works and any other works and subject matter in which copyright (including future copyright and rights in the nature of or analogous to copyright) may, or may upon creation of the works and subject matter, subsist anywhere in the world;
    (c) trade marks and service marks, including goodwill in the business concerned in the relevant goods and/or services; and
    (d) trade, business, company names or internet domain names,
    irrespective of when or where such thing is created or developed.
    Law includes:
    (a) any treaty, statute, regulation, by-law, ordinance or subordinate legislation in force from time to time;
    (b) the common law and the law of equity;
    (c) any binding court order, judgment or decree;
    (d) any applicable industry code, policy or standard, in each case enforceable by law; and
    (d) any applicable direction, policy, rule or order that is given in writing by a Regulator, in each case enforceable by law.
    Licence means the licence granted in clause 2.1.
    Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:
    (a) liabilities on account of tax;
    (b) interest and other amounts payable to third parties;
    (c) legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
    (d) all amounts paid in settlement of any Claim.
    Media means the media on which the Software is recorded or printed.
    Moral Right means:
    (a) a right of attribution of authorship;
    (b) a right not to have authorship falsely attributed;
    (c) a right of integrity of authorship; and/or
    (d) a right of a similar nature,
    which is conferred by statute, and which exists or comes to exist anywhere in the world, in a deliverable form comprised within this Agreement.
    Number of Systems refers to the number of Systems the Customer has specified that they would like to purchase in respect to the Hardware Package and Software Package in Part 6 and Part 7 of the Engagement Form.
    On-Site Support has the meaning given to it in clause 14.2.
    Personal Information means any information relating to an individual; who can be identified directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person or the equivalent or corresponding definition under any applicable Privacy Legislation.
    Privacy Legislation means the Privacy Act 1988 (Cth) and any applicable analogous legislation in any other jurisdiction from time to time.
    Privacy Policy means the privacy policy of Saphi located via the domain [insert].
    Relevant IP means all Intellectual Property Rights in the Solution, Saphi Data, Documentation and any related documentation or information provided by Saphi in connection with the System and this Agreement.
    Representatives means, in respect of a person (including Saphi and the Customer), the employees, officers, directors, consultants, agents and professional advisers of that person; and “Representative” shall have the same meaning.
    Saphi Data means any and all data relating to the Solution provided to the Customer by Saphi, or that becomes available to the Customer as a consequence of its use of the Solution, including data embedded in the Solution, images acquired, analytics, metrics and reports or any other insights derived by using the Solution.
    Software means Saphi’s proprietary software included in the Relevant IP and includes, systems and updates, mathematical codes, binary or source code, object code, Saphi Data, programs, routines and other functions associated with the business of Saphi, including data management, cloud-based data, analytics outputs, operating systems, software patches, updates, fixes, add-on components, and/or web services, and as further provided for in Part 7 of the Engagement Form.
    Software Code means the Software code in human-readable form or any part of the Software code in human-readable form, including any files, data or code compiled to create the Software or decompiled from the Software, regardless of the storage format.
    Software Fee means the fees to be paid by the Customer to Saphi for the Software Package selected by the Customer as set out in Part 7 of the Engagement Form and on the terms specified in clause 6.
    Software Package means the software package(s) which a Customer may select to licence the Software as described in Part 7 of the Engagement Form, which sets out the Software Plan, Software Fee, Number of Systems and Inclusions.
    Software Plan refers to the plan selected by the Customer in Part 7 of the Engagement Form, or any other plan that may be introduced by Saphi in its absolute discretion during the Term of the Agreement.
    Solution means Saphi’s dynamic AI imaging system, comprised inter alia of the Software and the Hardware that will be licensed to the Customer pursuant to the terms of this Agreement. Unless the context otherwise requires, references herein to the Solution shall be deemed to include the Software and the Hardware.
    Support Services has the meaning given to it in clause 14.1.
    Term means the term prescribed in clause 3.1.
    Territory means Australia together with any other countries or regions that the parties agree shall be included in the Territory from time to time by agreement in writing.
    Trade Marks means trademarks, trade names, logos, design marks, service marks, service names, trade dress, and brand names of Saphi.
    Website means Saphi’s website located via the domain https://saphi.engineering/.

Interpretation

  • 15.2 In the interpretation of this Agreement, unless the context or subject matter otherwise requires:
    (a) a reference to a background note or recital, clause, schedule, annexure, attachment or exhibit is to a background note or recital, clause, schedule, annexure, attachment or exhibit of or to this Agreement.
    (b) in calculating any period of time commencing from a particular day, the period commences on the following day and the following day counts as part of that period.
    (c) where an expression, word or phrase is given a particular meaning, then other parts of speech based on that expression, word or phrase and other grammatical forms of that expression, word or phrase, have corresponding meanings.
    (d) the rule of interpretation which sometimes requires that a document be interpreted to the disadvantage of the party which put the document forward, does not apply.
    (e) a reference to this Agreement or any other agreement, arrangement or document, includes any variation, novation, supplementation or replacement of them.
    (f) where an expression is defined anywhere in this Agreement, it has the same meaning throughout.
    (g) a reference to any gender includes all genders.
    (h) headings are for convenience of reference only and do not affect interpretation.
    (i) a mention of anything after include, includes or including, does not limit what else might be included.
    (j) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and also any subordinate legislation issued under, that legislation or legislative provision.
    (k) a reference to dollars or $ is to an amount in American currency.
    (l) the singular includes the plural and vice versa.
    (m) a reference to any party to this Agreement or to any other document or arrangement, includes that party’s legal personal representatives, substitutes (including, without limitation, any person taking by novation), successors and permitted assigns.
    (n) a reference to a person includes a body corporate, partnership, joint venture, incorporated or unincorporated association, authority, State, government, or government or quasi-government body.
    (o) an agreement, representation or warranty by or in favour of two or more persons, binds or is for the benefit of all of them jointly and each of them individually.

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