Purchase Terms Of Use - Auto Innovation Centre

TLDR / PLAIN ENGLISH VERSION (This does NOT void any details below but at least you might read it)

Our goods and services are designed to help companies develop products for the automotive aftermarket. We spend a lot of time developing our scan data packs trying to deliver a premium product at a very competitive price. You are purchasing the right to use this data for your product development, not the data pack itself. The distribution or re-sale of this product is not permitted as it makes it very hard for us to help you in the future. If you are issuing our data outside your company to support your product development, please ensure you have a suitable NDA with the receiving company to protect yourselves and us too.

Any questions feel free to call us- we are pretty easy to deal with.

TERMS OF SALE

This document sets out the terms and conditions upon which Auto Innovation Centre Pty Ltd ACN 634 944 657 of 7-8 Bastow Place, Mulgrave, Victoria (Supplier) will provide goods and services to you (Customer). Please read carefully and if you agree to our terms, sign and date where indicated.

1. DEFINITIONS

In this document unless the context indicates otherwise, the following words have the following meanings:

Account means the account registered by the Customer for the purpose of accessing the Supplier’s Products.

Claim means any claims including actions, complaints, debts, demands, dues, proceedings, suits or other legal recourse (whether in contract or tort (including negligence), at law or in equity) and including any causes of action or rights to bring or make any such claim.

Consequential Loss includes but is not limited to loss of business, loss of revenue, loss of contract, lost opportunity costs, loss of profits, loss of goodwill, loss in value of reputation, loss in value of Intellectual Property, special loss, legal costs and expenses.

Customer’s Agents means the Customer’s employees, officers and any Third Party Service Provider who has returned an executed IP Deed to the Supplier.

Customer’s Materials means any Intellectual Property or objects owned by the Customer including vehicle parts or accessories, data or other information provided by the Customer to the Supplier for the purpose of a Special Order Product.

Event of Default means any of the following on the part of the Customer:

committing any breach of these Terms;
repudiating these Terms, or, in the reasonable opinion of the Supplier, evincing an intention to repudiate, these Terms;
undergoing a change of control without the prior written consent of the Supplier;
misleading the Supplier in any material way; and/or
an insolvency event occurring in respect of the Customer.

GST has the same meaning given to that expression in A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.

Intellectual Property means all intellectual property and similar proprietary rights (including rights held under licence) in any jurisdiction, whether or not registered, including all rights in and to:

original works of authorship, whether copyrightable or not, copyrights and all renewals, modifications, translations and any relevant moral rights;
patents (including any design patents method patents and utility patents), patent applications, continuations, utility models, industrial designs, inventors’ certificates and invention disclosures;
trademarks, service marks, brand names, certification marks, trade dress and names, business names, product numbers and other indications of origin;
know-how, designs, technical information, models, drawings, specifications, prototypes, enhancements, improvements and derivative works.

IP Deed means the deed poll annexed/linked to these Terms.

Licence means the licence in respect of the Supplier’s Intellectual Property in the Product, granted to the Customer pursuant to clause 12.1(b) of these Terms.

Loss means any loss, damage, debt, deficiency, diminution in value, charge, cost, expense, fine, outgoing, penalty or other liability of any kind or character (including legal fees, other professional fees, debt recovery fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all amounts paid in settlement for any claim, complaint, demand, proceeding, litigation, action, or other legal recourse whether under statute, contract, tort or otherwise, but does not include Consequential Loss unless otherwise specified in these Terms.

NDA means the non disclosure agreement annexed/linked to these Terms.

Price means the price of the Product and/or the Special Order Product (as applicable).

Product means any and all of the products listed on the Supplier’s website or otherwise purchased by the Customer from the Supplier, which may include 3D scan data, 3D prints, testing services, reports regarding technical and/or testing information for vehicles, vehicle components and/or vehicle accessories, associated services and, unless otherwise specified, includes a Special Order Product.

Purchase Price means the total amount listed on invoices for the Products including the Price and any applicable disbursements, delivery costs, insurance costs, taxes, charges or interest payable.

Special Order Product means a product that is custom ordered by the Customer including testing services, 3D scanning, 3D prints and any other Product as notified by the Supplier as a Special Order Product.

Supplier’s Agent means the Supplier’s employees, officers, agents or subcontractors and the employees, officers, agents or subcontractors of the Supplier’s holding company.

Third Party Service Provider means a third party contracted to provide engineering services to the Customer and/or conduct work for the Customer (excluding development services) which requires access to the Product for the purpose of State or Federal approvals.

2. INTERPRETATION

In this document unless the context otherwise requires:

words importing the singular include the plural and vice versa;
words importing persons include individuals, entities, firms, companies and corporations and vice versa;
references to clauses and schedules are references to the relevant clauses and schedules to these Terms and reference in any schedule to these Terms;
any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
headings do not affect the interpretation of these Terms;
an expression used or defined in the Corporations Act 2001 (Cth) has the same meaning in these Terms;
any reference to a party includes the party’s permitted assignees and successors, including executors and administrators and legal representatives;
any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or by-law made under that enactment; and
the word “including” (and related forms) means “including without limitation”.

3. TERM

These Terms will commence on the earlier of the date the Customer signs these Terms or agrees to be bound by these Terms on registering an Account (Date) and will continue until terminated in accordance with these Terms (Term).

4. SUPPLY OF PRODUCTS

These Terms apply to all transactions between the Customer and Supplier relating to the supply of Products now and in the future and prevail over any terms provided by the Customer to the Supplier at any time or in any manner.
The Customer must only use the Products in accordance with these Terms.

5. ORDERS, INVOICING AND PAYMENT

The Customer must place an order for any Product with the Supplier in accordance with the Supplier’s order process and requirements (Order).
The Supplier may accept or reject an Order in its absolute discretion.
The Customer must pay the Purchase Price to the Supplier before delivery of the Products.
All representations made on an invoice are made on the basis that errors and omissions are excepted.
All prices exclude Australian GST unless otherwise expressed.
Where the Supplier accepts an Order, the Supplier has no obligation to deliver the Products to the Customer until payment is received for the Products unless otherwise agreed in writing by the parties.
The Customer must not cancel an Order unless:

the request is made in writing to the Supplier; and
the Customer agrees to reimburse the Supplier for any Loss, including Consequential Loss, incurred by the Supplier payable within 10 days of receipt of an invoice from the Supplier setting out the Loss.

The Products to be supplied to the Customer are as described in the accepted Order and suchOrder prevails over any specification or requirements stipulated by the Customer which is not included in the accepted Order.

For Special Order Products:

the Customer must pay a 50% deposit of the Price on the Order being accepted by the Supplier and the balance of the Purchase Price is to be paid before delivery of the Special Order Product, unless otherwise agreed in writing between the Supplier and the Customer; and

the parties will enter into an NDA (link).

6. FAILURE TO PAY

If the Customer fails to pay the Purchase Price by the due date set out on the invoice or as otherwise provided in these Terms:

the Customer must indemnify the Supplier for any Loss and Consequential Loss; and
the Supplier may engage debt collection services, commence legal proceedings, charge interest on any money owing until payment at the rate of 12% per annum, calculated daily and/or terminate these Terms with immediate effect.

The Customer agrees that in addition to an artificer’s lien and any other rights the Supplier may have under statue or common law, the Supplier:

has a lien over the vehicle or good (including any Products), in respect of which Products are provided and may exercise the lien against the vehicle or good (including any Products), as security for payment in full of the Purchase Price for the Product supplied by the Supplier;
the Customer agrees that the Supplier may exercise a lien against a vehicle and/or good (including any Products) for which Products were provided, in respect of any payment of the Purchase Price for Products supplied by the Supplier; and
the Customer agrees that the Supplier’s lien in this clause extends and remains in force until payment is received in full for the Purchase Price, and, if additional to the Purchase Price, the payment of storage fees and third party costs, for example delivery costs paid for by the Supplier.

7. DELIVERY

The Customer is liable for all delivery charges and/or delivery insurance of the Products unless the Supplier agrees in writing otherwise. If such charges are paid by the Supplier, those charges are not refundable if included in the Purchase Price in the event the Products are later returned.
If the Supplier accepts liability for delivery charges and/or delivery insurance, the Customer agrees to indemnify the Supplier from any Loss which occurs to the Products during delivery including any Consequential Loss.
Upon delivery of Products by the Supplier to the Customer, the Customer must sign a proof of delivery (if applicable).
The Supplier will make all reasonable efforts to have the Products delivered to the Customer or the Customer’s designated agent as agreed between the parties (or if there is no specificagreement then at the Supplier’s reasonable discretion), however, the Customer agrees that any delivery times made known by the Supplier are estimates only. To the extent permitted by law, the Supplier will not be liable for:

any failure to deliver or delay in delivery for any reason;
any damage, Loss or Consequential Loss due to unloading; or
damage to property caused upon entering premises to deliver the Product.

The Supplier may deliver the Products by separate instalments. 23458-3649-1799, v. 1
The Customer acknowledges and agrees that the Supplier has the right to use different delivery methods and companies and the Supplier has the right to choose the Supplier’s preferred delivery method and provider.
If the Customer fails to collect or take delivery of the vehicle or good (including any Products):

the Customer may, at the discretion of the Supplier, be liable for Loss suffered by the Supplier, including reasonable administrative costs incurred by the Supplier; and
the Supplier will be entitled, at its discretion, to organise for the redelivery and/or storage of the vehicle or good (including any Products) at the Customer’s cost and risk.

The Supplier will provide to the Customer with an invoice itemising the reasonable administrative cost, redelivery charges and/or storage charges as applicable.

8. TITLE AND RELATED MATTERS

The legal and equitable title to the Product will remain with the Supplier and will not pass to the Customer until such time as full payment (in cleared funds) of the Purchase Price is received by the Supplier for all Products ordered by the Customer and for all other moneys owed by the Customer to the Supplier.
Until title to such Product passes to the Customer, the Customer acknowledges and agrees that:

the Customer holds the Product as bailee for the Supplier and that a fiduciary relationship exists between the Customer and the Supplier, showing the Supplier’s ownership of the Product and if required, must deliver the Products up to the Supplier; and
the Customer is liable to compensate the Supplier for all Loss in relation to damage to the Product while in the Customer’s possession.

9. RISK

Risk in the Products passes to the Customer on the Product being delivered to the Customer (including delivery by downloading or collection by or on behalf of the Customer), the Product leaving the Supplier’s premises for delivery (including all risks associated with delivery) or title in the Products passing to the Customer, whichever is the earlier.

10. SPECIAL ORDER PRODUCT

The Supplier may at any time develop a Product or another Special Order Product, including for other customers of the Supplier, that is identical, substantially similar or similar to the Special Order Product ordered by the Customer.

11. CUSTOMER’S INTELLECTUAL PROPERTY

The Customer grants the Supplier and the Supplier’s Agent an irrevocable, perpetual, royalty free licence to use the Customer’s Materials for the Special Order Product.
Unless otherwise agreed in writing between the parties, all Intellectual Property in the Special
Order Product, including any copy, adaption or modification of the Special Order Product, will vest in and will be owned by the Supplier, including where the development of the Special Order Product is based on the Customer’s Materials and the Customer’s instructions.
To the extent that the Customer provides the Supplier with any Intellectual Property, including as part of the Customer’s Materials, the Customer indemnifies the Supplier against all Loss, including Consequential Loss or damage, including legal costs incurred by the Supplier arising from any actions, claims or demandmade by any third party which claims any Intellectual Property rights, title or interest to such Intellectual Property or materials, or the Customer’s Materials.

12. SUPPLIER’S INTELLECTUAL PROPERTY

The Customer acknowledges that the Supplier is the owner of the Intellectual Property in the Products and these Terms do not confer any right, title or interest in the Intellectual Property other than as set out in these Terms.
On payment of the Purchase Price for the Product, the Supplier grants to the Customer a revocable, limited, non-exclusive, non-transferable, and non-sublicensable Licence to use the Supplier’s Intellectual Property in the Product in accordance with these Terms. To avoid doubt, a separate Licence is created for each Product purchased by the Customer.
The Customer must not provide, distribute, sell or disclose the Product (or a copy of the Product) to any person. However, the Customer may disclose the Product (or a copy of the Product) to the Customer’s Agent.

13. THIRD PARTY SERVICE PROVIDERS

If the Customer wishes to disclose the Product (or a copy of the Product) to a Third Party Service Provider, the Customer must first arrange for the Third Party Service Provider to execute the IP Deed (link) and return an executed copy to the Supplier before the Product (or a copy of the Product) is provided to the Third Party Service Provider.

14. CUSTOMER’S WARRANTIES AND OBLIGATIONS

The Customer warrants and represents to the Supplier that:

it has legal capacity, power and for entities, the individual entering into these Terms has authority to bind the Customer;
if the Customer is a trustee of a trust, the Customer as trustee has the power under the trust deed to enter into these Terms and to comply with its obligations under these Terms, including using the trust assets to meet the Customer’s obligations under these Terms, and the Customer agrees that these Terms binds the Customer in their capacity as trustee and in the Customer’s own capacity;
it will comply with any reasonable directions given to the Customer by the Supplier from time to time;
it will act lawfully and will comply with any applicable licenses, laws, regulations, industry codes of conduct, health and safety requirements and Australian standards in relation to using the Product, in providing related services (if any) and in the conduct of the Customer’s business generally;
it will not disclose or otherwise use the Product other than in compliance with these Terms;
it will comply with these Terms including clause 13;
in using the Product, it will not infringe any person’s Intellectual Property; and
it is not aware of any actual or potential conflict of interest or contravention of law in it using the Product or ordering a Special Order Product.

15. SUPPLIER’S WARRANTY AND OBLIGATIONS

The Supplier warrants and represents to the Customer that it has legal capacity, power and authority to enter 33458-3649-1799, v. 1 into these Terms and it has all rights in relation to the Product and to perform its obligations as set out in these Terms.

16. LIMITATION OF LIABILITY AND INDEMNITY

To the extent permitted by law, the Supplier’s liability is limited as follows:

the Supplier’s liability for any claims is limited at the Supplier’s option to either:

replacing the Product or supplying equivalent products;
repairing the Product; or
reimbursement of the Price; and

the Supplier is not liable for any direct or indirect Loss, Consequential Loss, reasonably foreseeable loss or damage to person or property.

To the extent permitted by law, all warranties whether express or implied, statutory or otherwise with regard to the Product are hereby excluded.
The Customer acknowledges, agrees and accepts:

that it is responsible for ensuring the Product purchased is fit for the purpose for which it is intended; and
that it is not relying upon any representation made by the Supplier or its representatives whether in writing or verbally as to the suitability of the Product for the purpose intended and the Customer acknowledges that it is responsible for undertaking its own due diligence with respect to the Product and the respective fitness for purpose.

The Customer is liable for and indemnifies and agrees to indemnify, hold harmless, release and discharge the Supplier in respect of any Claim, Loss or Consequential Loss as a result of:

the use of the Product by the Customer, including any act or omission by the Customer in connection with the use of the Product;
any Loss, including Consequential Loss, damage or injury suffered by a third party, caused by any negligence, omission or deliberate act by the Customer;
any breach by the Customer or Customer’s Agents of these Terms or its obligations or warranties under these Terms; or
the use of the Product by a Third Party Service Provider given access to the Product by Customer whether or not the IP Deed has been entered into or complied with.

To the extent permitted by law, the remedies of the Customer in the event of any breach of these Terms by the Supplier, including any Loss will be limited to damages which under no circumstances will exceed the Price.

17. TERMINATION

If an Event of Default occurs in respect of the Customer, the Supplier may do one or more of the following by notice in writing to the Customer:

terminate these Terms;
suspend the Licence for a specified period and/or until a specified condition is met by the Customer;
terminate the Licence;
make all money owing by the Customer to the Supplier, immediately due and payable;
cease supply or delivery of any or all Products to the Customer;
repossess or claim repossession of any Product where title has not passed to the Customer and the Supplier or person
authorised by the Supplier, may enter upon the Customer’s premises, or any premises where the Product is situated as the invitee of the Customer, for that purpose without liability for trespass or any resulting damage in retaking possession of the Product; and/or
charge interest on any money owing until payment at the rate of 12% per annum, calculated and compounded daily.

If the Supplier commits any material or persistent breach of these Terms, the Customer may (but is not obliged to) provide the Supplier with a notice of breach in writing. If the Supplier fails to remedy the breach within 30 days after the date of its receipt of such notice, or such other reasonable time advised in the notice of breach which may not be less than 30 days, the Customer may terminate these Terms with immediate effect upon providing the Supplier with a further notice of termination in writing and all monies owing to the Supplier by the Customer will become immediately due and payable, any order placed but not yet delivered will, in the absolute discretion of the Supplier, either be cancelled or delivered on the basis of cash in advance.

18. SURVIVAL

The Customer’s obligations under these Terms (including in respect of the Licence and IP Deed) and any provisions of these Terms that, expressly or by implication, are intended to survive its termination will survive termination of these Terms.

19. IPSO FACTO LEGISLATION

If any provision of these Terms is otherwise unenforceable by virtue of the operation of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), upon the occurrence of an event in respect of a particular party, notwithstanding any other provision of these Terms, to the extent permitted by law:

time is of the essence in respect of all obligations of that party under these Terms (whether falling due for performance before, upon or after the occurrence of that event); and
any breach of these Terms by that party (whether occurring before, upon or after the occurrence of that event), will (alone or, severally, in combination with the occurrence of that event) be deemed to be a breach of these Terms, and, if any such breach has occurred or occurs, the parties acknowledge and agree that such provision will instead be enforceable by virtue of the occurrence of that breach.

20. FORCE MAJEURE

Except for the payment of the Purchase Price for Products dispatched to the Customer (as required by the terms of these Terms or as otherwise agreed in writing between the parties), neither party has any liability under these Terms or may be deemed to be in breach of these Terms for any delays or failures in performance of these Terms which result from circumstances beyond the reasonable control of that party (including without limitation as a result of any strike, war, terrorist attack, trade dispute, fire, flood, tempest, theft, epidemic, 43458-3649-1799, v. 1 pandemic or breakdown in machinery of any kind, disruption to electricity (or any other utility), or breakdown or disruption of any electronic communication support system).
The party affected by these circumstances must promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
If such circumstances continue for a continuous period of more than 6 months, either party may terminate these Terms by written notice to the other party.
If the Supplier is unable to fulfil or complete an order placed by the Customer within the time frame required by the Customer due to a circumstance in clause 20.1(a) or 20.1(b), then the Supplier may cancel the order without the Customer having a claim against the Supplier for Loss, Consequential Loss, damage, costs or expenses arising from such a cancellation.

21. AMENDMENT

These Terms may be varied by agreement in writing between the parties or where the Customer holds an Account, by notice and acceptance of the variation.

22. ASSIGNMENT

The Supplier may assign, license or sub-contract all or any part of its rights and obligations under these Terms, to another person without notice to the Customer.
The Customer must not assign or otherwise transfer any or all of its rights and obligations under these Terms without the prior written agreement of the Supplier.

23. CHANGE IN CONTROL

The Customer must no later than 14 days prior to any change of ownership, change in registered particulars or alteration or addition to the shareholding or directorship, provide full details of the proposed change, alteration or addition to the Supplier and obtain their consent.

24. SET-OFF

The Customer does not have a right of set-off in any
Claim:

brought by the Supplier against the Customer for default in payment; or
brought by the Customer against the Supplier, and the Customer agrees that this clause can be produced as a bar of any proceeding for set-off.

25. ENTIRE AGREEMENT

These Terms contain the whole agreement between the parties in respect of the subject matter of the agreement.
The parties confirm that they have not entered into these Terms on the basis of any representation that is not expressly incorporated into these Terms.

26. NO WAIVER

No failure or delay by the Supplier in exercising any right, power or privilege under these Terms will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
The rights and remedies provided in these Terms are cumulative and not exclusive of any rights and remedies provided by law.

27. FURTHER ASSURANCE

Each party to these Terms must at the request and expense of the other do all things reasonably necessary to carry out the provisions of these Terms or to make it easier to enforce.

28. SEVERANCE

If a provision of these Terms is invalid or unenforceable in a jurisdiction:

it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

29. NOTICES

A notice or other communication connected with these Terms has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in these Terms or sent by email to the email address of the addressee.Each party must promptly advise the other party of any changes to the parties contact details.

30. LAW AND JURISDICTION

These Terms are governed by, and shall be construed in accordance with, the laws of Victoria, Australia. The parties irrevocably agree that the courts of Victoria, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, these Terms or its subject matter or formation.

31. COUNTERPARTS

These Terms may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same Terms. 53458-3649-1799, v. 1