KLAU GEOMATICS Terms and Conditions of Sale_May_2018 CLEAN v.1.docx Page 1 of 13 3477-9205-6842, v. 1
This document sets out the terms and conditions that apply to the contract for the supply of the Products specified in the Quotation or Invoice between Klau Geomatics Pty Ltd, ABN 53 132 851 775, (Geomatics) and the Customer.
In this Contract, unless the context requires otherwise:
Business Day means:
(a) in the case of delivery of Products – a Monday to Friday in the place where the Products are to be delivered to the Customer excluding any gazetted or recognised public holiday in that place; and
(b) in all other cases – a Monday to Friday in Sydney, Australia excluding any gazetted or recognised public holiday.
Confidential Information means all information or data provided by or acquired from the Discloser by the Recipient, directly or indirectly, whether before, on, or after the date of this Contract which is not generally known to the public, relating to the Discloser’s past, present or future, structure, business activities, strategies, plans, assets (including IPR), products, services, financial affairs, trade secrets, ideas, concepts, techniques know-how and processes, suppliers, business partners, customers and contractual arrangements with suppliers, business partners and customers whether disclosed for the purposes of this Contract but excludes information which:
(a) is in or becomes part of the public domain otherwise than through breach of this Contract by the Recipient or another obligation of confidence owed to the Discloser by the Recipient or any of its directors, officers, employees, agents or subcontractors;
(b) the Recipient can prove, by contemporaneous written documentation, was already known to the Recipient at the time of disclosure by the Discloser or any of the Discloser’s directors, officers, employees, agents or subcontractors (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
(c) the Recipient acquired from a person who is not under any obligation of confidence to the Discloser.
The contract has the meaning given in clause 2.2.
Consumer Contract means a contract for the acquisition of goods or services as a “consumer” as that term is defined in section 3 of the Australian Consumer Law or analogous legislation in a jurisdiction outside Australia if applicable.
Customer means the person or legal entity identified in the Invoice.
Delivery Location means the place specified in the Order Confirmation or Invoice as the place to which the Products will be delivered or, if no place is specified in either the Order Confirmation or the Invoice, the place designated by the Customer and agreed by Geomatics for delivery of the Products.
Discloser means a party in its capacity as a discloser of Confidential Information. Force Majeure means any circumstance beyond the reasonable control of a party including acts of God, natural disasters, acts of war, riots and terrorist acts.
Hardware means the tangible item or items comprising the Product, excluding the Software.
Insolvency Event means:
(a) if the Customer is located in Australia – being in liquidation or provisional liquidation or under administration, having a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise KLAU GEOMATICS Terms and Conditions of Sale_May_2018 CLEAN v.1.docx Page 3 of 13 3477-9205-6842, v. 1 insolvent, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason, taking any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event; and
(b) if the Customer is located outside Australia – any act analogous to the acts or circumstances described in paragraph (a).
Intellectual Property Rights or IPR means all present and future rights conferred by statute, common law or equity in any territory or jurisdiction throughout the world, known as of the date hereof or thereafter devised, in or in relation to copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions and Confidential Information, and other rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
Invoice means the invoice or invoices issued by Geomatics for the supply of the Product
IPR Claim means any claim, demand or proceedings alleging that a Product (including any part or Product replaced under warranty) or the Customer’s use of a Product (including any part or Product replaced under warranty) infringes any Australian IPR or moral rights (as that term is defined in the Copyright Act 1968 (Cth)) of a third party.
Loss means any loss, expenses, costs, damages and claims.
Geomatics means Klau Geomatics Pty Ltd, (ABN 53 132 851 775), of 2 Weemala Crescent, Bawley Point, NSW 2539 Australia
Order Confirmation means formal acknowledgement of the Customer’s Purchase Order issued by Geomatics to the Customer (which acknowledgement may be via email) or, if Geomatics does not issue a formal acknowledgement, the first Invoice issued by Geomatics in accordance with clause 3.1
Price means the total price excluding Tax as specified in the Invoice payable by the Customer for the Products
Product means the Hardware and the Software and all other components of each product.
Product Documentation means any documentation provided by Geomatics to the Customer which describes the operation and functionality of a Product.
Purchase Order means a document or email issued by the Customer offering to purchase the Products specified in the Quotation and which includes a reference to the Quote or the reference number included on the Quote.
Quotation or Quote means the quote for the Product provided by Geomatics or a related body corporate before, at the same time as or after the date of this document including as part of or attached to this document.
Recipient means a party in its capacity as a recipient of Confidential Information.
Services means support or warranty or other services provided by Geomatics to the Customer under this Contract.
Software means any firmware, configuration files or other software which is
(i) installed or embedded in the Hardware (Firmware) or
(ii) separately supplied to Customer by Geomatics as desktop client software which is intended for use with the outputs from the Software installed on the Hardware (Desktop Software) and
(iii) (iii) any Updates to items (i) or (ii).
(a) any value added tax, goods and services tax, sales tax or any other tax on the supply of services or goods in the jurisdiction in which the services are supplied to the Customer; or
(b) any tax, levy, duty, charge, impost, deduction or withholding however it is described that is imposed by a government agency, together with any related interest, penalty, fine or other charge, other than one that is imposed on net income of the other party in any jurisdiction.
Update means a version of Software which is provided to correct errors or bugs or improve the previous version.
2. FORMATION OF CONTRACT
2.1. No contract comes into existence until Geomatics accepts the Purchase Order by issuing an Order Confirmation. Any payment tendered by the Customer with or following the issuance of a Purchase Order or the acceptance of the payment by Geomatics will not result in the formation of a contract. A contract is deemed to come into existence at the time and place where the Order Confirmation is issued by Geomatics. 2.2. The contract between Geomatics and the Customer for the sale of the Products (Contract) will comprise: 2.2.1. this document; 2.2.2. the Invoice (in relation to Price only); 2.2.3. the Order Confirmation; and 2.2.4. the Quotation, in order of precedence. All prior representations made by either party, other documentation issued by Geomatics and any purchase order or other document issued by the Customer including any terms and conditions on such documents are excluded from this Contract and are of no effect. 2.3. The Customer confirms that it has read and accepted the terms of this document, the Order Confirmation and the Quotation and that it will on issuance accept the terms and conditions of the Invoice. 2.4. Once Geomatics has issued an Order Confirmation, a Purchase Order may not be varied or cancelled by the Customer except with the express consent of Geomatics or if clause 4.8 applies. The granting of consent will be entirely at the discretion of Geomatics and may be subject to the payment by the Customer to Geomatics of a sum equivalent to the Losses, including loss of profit, cost and expenses of Geomatics caused by the variation or cancellation (such sum being reasonably determined by Geomatics). 3. PRICE AND PAYMENT 3.1. Geomatics will issue an Invoice or such other information as required by law to the Customer. The final Price for the Products is the Price specified in the Invoice. 3.2. The Customer will pay or reimburse Geomatics on demand for all applicable shipping charges, handling charges, import duties and customs charges applicable to the Products. 3.3. The Customer will pay all Taxes in addition to payment of the Price. 3.4. The Customer must pay each Invoice in full within 30 days of the date of the Invoice in cleared funds by telegraphic transfer or direct bank deposit in the currency of the Invoice into a bank account nominated by Geomatics in the Invoice or following issuance of the Invoice. 3.5. The Customer will be responsible for any bank charges in making the payment including any foreign currency exchange costs. If any Invoice requires the Customer to pay an instalment of the Price before shipment, the Customer acknowledges and agrees that Geomatics will be KLAU GEOMATICS Terms and Conditions of Sale_May_2018 CLEAN v.1.docx Page 5 of 13 3477-9205-6842, v. 1 under no obligation to deliver any Products to the Customer unless the Customer has paid the instalment. 3.6. The Customer must not withhold payment or make any deduction from the invoiced Price or any other amount owing to Geomatics without Geomatics’ prior written consent. 3.7. Receipt of any part payment by Geomatics (including any instalment payment specified in an Invoice) will not constitute payment for the Products. 3.8. Geomatics may in its discretion allocate a payment that does not specifically identify the Invoice for which the payment is made in satisfaction of money owing under any outstanding Invoices without regard to the date of those Invoices. 3.9. Geomatics may charge interest on any overdue money at the rate which is 1.0 per cent per month or the maximum amount permitted under applicable laws, calculated from the due date for payment of the outstanding amount until the date of payment by the Customer. Any payment made by the Customer will be credited first against any interest that has accrued. 3.10.Geomatics will be entitled to recover from the Customer all legal and other costs incurred by Geomatics arising from the Customer’s default in payment and the collection of any overdue money. 4. DELIVERY TERMS 4.1. Any timeframes quoted by Geomatics for delivery of the Products are estimates only. Geomatics will use its reasonable endeavours to supply the Products in the quantities specified in the Order Confirmation in accordance with the quoted timeframe. . 4.2. Geomatics will not be liable for any Loss suffered by the Customer arising out of any delay or failure to deliver the Products (or any part of them) in accordance with the quoted timeframe or failure to deliver the Products in the quantities specified in the Order Confirmation. 4.3. Geomatics is entitled to refuse to deliver the Products to the Customer if there are any outstanding Invoices under this Contract or any other contract between Geomatics (or any of its related bodies corporate) and the Customer. 4.4. Delivery of the Products will be made on a Business Day in the manner and at the place specified in the Order Confirmation or if not specified, delivery will be on a Business Day and otherwise as determined by Geomatics. 4.5. The Customer agrees to accept delivery of the Products at any time between 9.00am to 6.00pm on a Business Day. 4.6. Subject to clause 4.8, if Geomatics fails to deliver some or all of the Products pursuant to this Contract, the Customer will not be entitled to cancel this Contract or any other order, contract or delivery. 4.7. If the Customer does not, or indicates to Geomatics that it will not, take or accept delivery of any of the Products, then these Products will be deemed to have been delivered when Geomatics was willing to deliver them. 4.8. The Customer may cancel an order for Products purchased under a Consumer Contract if Geomatics is unable to deliver the Products within a reasonable period from the estimated delivery date. 4.9. Geomatics will not be liable for shortage of Products on delivery unless the Customer notifies Geomatics or its agents of the shortfall at the time of delivery at the Delivery Location and confirms the notification to Geomatics in writing within five Business Days. The Customer will not be entitled to withhold payment of any portion of the Price which remains outstanding whilst any claim is being investigated by Geomatics. 4.10.The Customer will be deemed to have accepted the Products with effect from the date of KLAU GEOMATICS Terms and Conditions of Sale_May_2018 CLEAN v.1.docx Page 6 of 13 3477-9205-6842, v. 1 delivery to the Delivery Location unless the Customer notifies Geomatics or its agents at the time of delivery that it does not accept the Products and confirms the notification to Geomatics within one Business Day in writing. The Customer will not be entitled to withhold payment of any portion of the Price which remains outstanding whilst any claim is being investigated by Geomatics. 4.11.If the Customer has purchased Products as a reseller, the Customer must not alter, remove, conceal or tamper with any labelling, serial numbers or other means of identification displayed on or otherwise used in relation to the Products. 4.12.Geomatics may suspend or cancel delivery of the Products if Geomatics reasonably believes that the Products may cause injury or damage or may infringe the IPR of any person, or if any payment owing from the Customer to Geomatics under this Contract or any other contract remains outstanding. No such suspension or cancellation will in any way constitute admission of liability or fault by Geomatics. 4.13.If the Customer wishes to return a Product and receive a refund or credit, the Customer must obtain the prior written approval of Geomatics before returning the Product (which approval Geomatics may give in its absolute discretion and subject to any conditions it stipulates). Without limitation to any other right of Geomatics in relation to consenting to the return of any Product, Geomatics may charge an administration fee in respect of the returned Product. If Geomatics consents to the return of any Product: 4.13.1. Geomatics will issue a return authorisation number and specify the address to which the Productmust be returned by the Customer; and 4.13.2. the Customer must return the Product to the address specified by Geomatics freight free in good and saleable condition in the original packaging in which it was supplied together with the return authorisation number issued by Geomatics and any other information provided by Geomatics when consenting to the return of Product. 5. LICENSE OF SOFTWARE 5.1. Geomatics grants the Customer a non-exclusive, non-transferrable licence to use the Software (in object code form only) for the purposes of operating the Product in order to sense and record data inputs, analyse that input data and create data outputs in which become photogrammetry inputs to be used the course of Customer’s business. 5.1.1. The Customer’s use of the Firmware is limited to use on the single item of Hardware in which the Firmware is embedded and solely as embedded in, or for execution on the Hardware. 5.1.2. The Customer’s use of the Desktop Software is limited to use in conjunction with the Firmware and the Hardware. 6. LIMITATIONS 6.1. The Customer must not, directly or indirectly: 6.1.1. copy, modify, decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Software to human-readable form, make an adaptation of, communicate to the public or otherwise disclose the Product hardware, or the design or the Software; 6.1.2. copy, modify, reverse engineer, or make an adaptation of the Product, or communicate to the public or otherwise disclose the IPR in the Product including the Hardware and the Software; 6.1.3. transfer, assign or sublicense its license rights to any other person or attempt to do so, and any actual or attempted transfer, assignment or sublicense will be void except a transfer or assignment in conjunction with the sale or transfer of the Products to a purchaser of the Customer permitted in accordance with clause 7.1.5; KLAU GEOMATICS Terms and Conditions of Sale_May_2018 CLEAN v.1.docx Page 7 of 13 3477-9205-6842, v. 1 6.1.4. unless directed to do so or approved by Geomatics, make error corrections to or otherwise modify Software, or permit third parties to do so; 6.1.5. extract the Firmware from one Product or download Software from Geomatics’ website (or other sources) and install it in another Product or any other product (including any secondhand Product which the Customer has obtained) 6.1.6. attempt to re-create or derive any of Geomatic’s IPR contained in the Product. The Customer indemnifies and will keep indemnified Geomatics in respect of all Loss that Geomatics suffers or incurs as a consequence of or arising from the Customer’s failure to comply with this clause 6. 6.2. The Customer acknowledges and agrees that title in the Software remains with Geomatics or its licensors 7. PRODUCT USAGE 7.1. The Customer acknowledges and agrees that: 7.1.1. the Products are not of a type that are intended to be used, and will not be used by the Customer for, personal, domestic or household purposes or in the operation of nuclear or chemical facilities, applications controlling aircraft or other modes of human mass transportation, life support systems, motor vehicles, or other equipment in which the failure of the Software could lead to death, personal injury, or severe physical or environmental damage; 7.1.2. the Hardware is intended to be payload carried on an Unmanned Aerial Vehicle (UAV) or a manned aircraft, however the Product does not, and is not intended to interact with flight management systems; It is the Customer’s exclusive responsibility to choose an appropriate UAV or manned aircraft for this type of payload (the Product) taking account of all relevant circumstances including payload weight limits, and to ensure safe and legal operation of the UAV or aircraft at all times. 7.1.3. the Products will not become fixtures, be co-mingled with other goods or be used up in any production process; and 7.1.4. except where Customer has purchased Products as a reseller, the Products provided under this Contract are for the Customer’s internal use; and 7.1.5. unless expressly permitted by Geomatics or in the case of a sale by the Customer of all or part of its assets or business (in which case, the Customer must give Geomatics written notice of the sale either prior to the effective date of the sale or as soon as possible after completion of the sale), the Customer cannot resell the Products, lease the Products to others, hire the Products to others or otherwise make the Products available for commercial gain. 8. EXPORT CONTROL 8.1. If the Customer exports, imports or otherwise transfers any of the Products, the Customer will be responsible for complying with applicable laws and regulations (“Applicable Export Laws”), and for obtaining any required export or import authorisations. Customer acknowledges that provision of Products may be restricted or prohibited with respect to the Customer, or the country or nature of end-use. Customer understands and accepts that such Applicable Export Laws shall include, but shall not be limited to, those of Australia, Canada, the United States of America, the United Kingdom and the European Union (EU) and the laws of the jurisdiction in which the Products are utilized. Customer understands and accepts that Geomatics shall not dispatch any Product to the Customer for use, diversion, export, re-export or import (a) to or in a restricted country; (b) by any entity or person on any denial/debarment KLAU GEOMATICS Terms and Conditions of Sale_May_2018 CLEAN v.1.docx Page 8 of 13 3477-9205-6842, v. 1 list; or (c) for any prohibited use, as designated by Applicable Export Laws. Applicable Export Laws are subject to change and the onus is upon the Customer to ensure that it familiarises itself with Applicable Export Laws which specify: (a) restricted countries; (b) denial/debarment lists; and (c) prohibited uses. Customer hereby warrants to Geomatics that the Customer shall not utilise, divert, export, re-export or import, and shall not permit any third-party to utilise, divert, export, re-export or import, any Products or part thereof: (a) to or in a restricted destination; (b) to any entity or person listed on any denial/debarment list; or (c) for any prohibited use, as designated by Applicable Export Laws. 8.2. The Customer indemnifies and will keep indemnified Geomatics in respect of all Loss that Geomatics suffers or incurs as a consequence of or arising from the Customer’s failure to obtain any regulatory or other approvals required to export, import or transfer the Product. Geomatics may suspend its performance under this Contract to the extent required by laws applicable to either party. 9. RISK AND TITLE 9.1. Legal and beneficial ownership in the Products will not pass to the Customer until the Customer has paid the Price for the Products in full. 9.2. Risk of loss of or damage to the Products will remain with Geomatics until the earlier of: 9.2.1. the passing of title to the Products to the Customer; and 9.2.2. delivery of the Products by Geomatics to the Customer in accordance with clause 4. After this time, risk of damage to, or loss or deterioration of, the Products from any cause passes to the Customer. 9.3. Until the Customer has paid the Price for the Products to Geomatics in full: 9.3.1. the Customer must not alter, remove, conceal or tamper with any labelling, serial numbers or other means of identification displayed on or otherwise used in relation to the Products; 9.3.2. in the event of the Customer’s failure to make a payment when due, Geomatics or its representative will be entitled, without the necessity of giving any notice, to enter premises occupied by the Customer or where the Products are located to search for and remove any of the Products without in any way being liable to the Customer. If the Products or any of them are wholly or partially attached to or incorporated in any other product, Geomatics may (when practical) disconnect them in any way necessary to remove the Products; and 9.3.3. the Customer indemnifies and will keep indemnified Geomatics in respect of all Loss that Geomatics suffers or incurs as a consequence of taking action in accordance with clause 9.3.2, including any transportation and storage charges and such Loss, must be paid by the Customer to Geomatics on demand (subject to verification of such Losses by Geomatics). 6.4 Geomatics may apply amounts received in connection with this Contract to satisfy obligations secured by a security interest contemplated or constituted by this Contract in any way Geomatics determines in Geomatics’ absolute discretion. 10. WARRANTY 10.1.Legislation may provide consumer guarantees or impose obligations on Geomatics in respect of Consumer Contracts which cannot be excluded, restricted or modified, or only to a limited extent. This Contract is subject to such legislation. 10.2.The Customer acknowledges that Geomatics does not warrant that use of the Product will be uninterrupted or error-free. KLAU GEOMATICS Terms and Conditions of Sale_May_2018 CLEAN v.1.docx Page 9 of 13 3477-9205-6842, v. 1 10.3.The term of warranty (“Warranty Period”) for the Product is twelve (12) months from the date of shipment. 10.4.Geomatics warrants that, during the Warranty Period: 10.4.1. The Product will operate substantially in accordance with the Product Documentation; 10.4.2. the Hardware will be free from material defects in material and workmanship and conform to Geomatics’ specifications; 10.4.3. the Software will be free from material defects which affect performance based on Geomatics’ specifications; and 10.4.4. for Hardware and Software that is manufactured by a third-party, Geomatics will extend the warranty coverage provided by the third party, but Geomatics does not independently warrant any third-party Hardware or Software and the third-party’s warranty term may not coincide with the Warranty Period. 10.5.The foregoing warranties do not extend to (a) nonconformities, defects or errors in the Product due to accident, abuse, misuse or negligent use of the Product; use of the Product in a manner other than that specified in the Product Documentation or otherwise expressly authorised by Geomatics in writing; environmental conditions not conforming to Geomatic’s specifications; or failure to follow prescribed installation, operating and maintenance procedures; (b) defects, errors or nonconformities in the Products due to modifications, alterations, additions or changes not made in accordance with Geomatic’s specifications or as authorized in writing by Geomatic; (c) normal wear and tear; (d) damage caused by a crashed UAV, force of nature or act of any third person; (e) shipping damage; (f) service or repair of the Products and/or Accessories by the Customer without the prior written consent of Geomatic; (g) Products designated by Geomatics as beta site test samples, experimental, developmental, preproduction, sample, incomplete or out of specification Products; (h) returned Products if the original identification marks have been removed or altered; (i) the Customer’s failure to undertake any actions which Geomatics instructed the Customer to take previously or to install any replacement component previously provided by Geomatics as part of the Warranty; (j) reverse engineering, disassembly or modification of Products; (k) the Customer’s failure to install an Update; (l) any Product purchased from a vendor other than Geomatics or an authorised reseller or distributor appointed by Geomatics; (m) if the Product has been acquired as part of the Customer’s sale or purchase of assets or sale of a business; (n) a Product which has been used other than in standard Geomatics assemblies or configurations as defined in the Product Documentation. 10.6.Customer’s exclusive remedy for a claim under this warranty shall be limited to the repair or replacement, at Geomatic’s option, at Geomatic’s facility, of defective or nonconforming Hardware or, in the case of Software, provision of an Update for implementation by the Customer. All Products returned under warranty shall be returned to Geomatics prepaid by the Customer. In the event that the returned Product is confirmed by Geomatics to be a warranted failure, the Product shall be returned to the Customer prepaid by Geomatics. 10.7.The Products presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the Products. If the Products are capable of retaining user-generated data, the repair of the Products may result in loss of the data, which loss is at the risk of Customer. KLAU GEOMATICS Terms and Conditions of Sale_May_2018 CLEAN v.1.docx Page 10 of 13 3477-9205-6842, v. 1 11. CONFIDENTIAL INFORMATION 11.1.The Recipient undertakes to do the following in relation to all Confidential Information disclosed to it by the Discloser: 11.1.1. only use or reproduce (in any media or format) the Confidential Information for and to the extent necessary to perform its obligations or exercise its rights under this Contract; 11.1.2. only disclose the Confidential Information to its officers, employees, agents and subcontractors who need to know that Confidential Information to allow the Recipient to perform its obligations or exercise its rights under this Contract; 11.1.3. keep the Confidential Information under its effective control and secure from theft, loss, and unauthorised access, use and disclosure at all times and subject to the same security measures to which it subjects its own Confidential Information and comply with all of the Discloser’s reasonable security requirements notified to the Recipient that relate to the Confidential Information; 11.1.4. notify the Discloser immediately if the Recipient becomes aware of any actual, suspected or likely breach by the Recipient, or its directors, officers, employees, agents or subcontractors of this clause 11.1 and cooperate with any investigation relating to any actual, suspected or likely breach of this clause 11.1. 11.2.The Recipient may disclose Confidential Information of the Discloser pursuant to a: 11.2.1. legally enforceable requirement to do so, including an order of a court or tribunal of competent jurisdiction; or 11.2.2. requirement of a government agency, stock exchange or other regulatory body, and in this instance, the Recipient must: 11.2.3. to the extent possible, notify the Discloser immediately it anticipates that it may be required to comply; 11.2.4. if disclosure cannot be avoided, only disclose the Discloser’s Confidential Information to the extent reasonably necessary to comply; and 11.2.5. do all things, execute all documents and give all assistance reasonably required by the Discloser to enforce any obligation of confidence imposed or required to be imposed by this clause 11, including by obtaining a protective order or other confidential treatment of the Confidential Information to be disclosed, if requested by the Discloser. 11.3.The Recipient acknowledges that: 11.3.1. a breach of this clause 11 may have a materially adverse effect upon the Discloser; 11.3.2. damages arising from a breach of this clause 11 may be difficult to ascertain or may not be an adequate or appropriate remedy; and 11.3.3. in addition to and without limiting any other remedy or right the Discloser may have, the Discloser is entitled to interim, interlocutory and permanent injunctions or any of them to prevent a breach of this clause 9 and to compel specific performance of it. 12. INTELLECTUAL PROPERTY RIGHTS 12.1.The Customer acknowledges and agrees that all IPR in the Products remains with Geomatics or its licensors, as applicable. 12.2.Each party will notify the other party as soon as it becomes aware that an IPR Claim may or has been made, or reasonably believes an IPR Claim may be made. 12.3.Subject to clause 12.4, if an IPR Claim is made or a party has notified the other that an IPR KLAU GEOMATICS Terms and Conditions of Sale_May_2018 CLEAN v.1.docx Page 11 of 13 3477-9205-6842, v. 1 Claim may be made, Geomatics will investigate the IPR Claim and, at its option and expense, do one of the following: 12.3.1. use reasonable efforts to secure the rights for the Customer to continue to use the affected Product free of any claim or liability for infringement; or 12.3.2. replace or modify the affected Product so that the Product or its use does not infringe the IPR of any other person without any degradation of the performance or quality of the affected Product and the Customer must comply with any direction issued by Geomatics in relation to any replacement or modification and use of the Product pending replacement or modification; or 12.3.3. direct that the Customer cease using the affected Product, re-take possession of the affected Product and refund to the Customer the Price. 12.4.Geomatics will not have any liability under clause 12.3 to the extent that the IPR Claim arose as a consequence of: 12.4.1. anything that the Customer or any person on the Customer’s behalf or at the Customer’s request has done to the Product; or 12.4.2. any combination of the Product with any goods or services not provided by Geomatics to the Customer; or 12.4.3. Geomatics complying with a request or direction issued by the Customer. 13. LIMITATION OF LIABILITY 13.1.The Warranties in clause 10 are given in place of all excludable warranties, conditions, guarantees, terms, undertakings and obligations implied by statute, common law, trade usage, course of dealing or otherwise including warranties or conditions of merchantability, fitness for purpose, satisfactory quality or compliance with description and non-infringement, all of which are excluded to the fullest extent permitted by law. 13.2.Subject to clauses 13.3 and 13.4, where any terms, conditions, warranties or guarantees are implied by law into this Contract which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent, the liability of Geomatics to the Customer under the implied terms, conditions, warranties or guarantees is limited, at the option of Geomatics to: 13.2.1. in the case of goods, the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the reasonable cost of having the goods repaired; or 13.2.2. in the case of services, the supplying of such services again; or the payment of the reasonable cost of having such services supplied again. This limitation does not apply to exclude any guarantee that relates to the right to sell, quiet possession or clear title under Australian law, or to any other conditions, warranties or guarantees implied by law which cannot be excluded, restricted or modified. 13.3.To the fullest extent permitted by law, under no circumstances will a party be liable to the other party for special, incidental, or indirect damages or for any economic consequential damages or any loss of profit, loss of revenue, loss of interest, loss of data, loss of use, loss of goodwill or business opportunities, reputational damage, business interruption (or any other similar financial loss), which arise directly or indirectly, in connection with this Contract, however that liability arises including in contract or tort, liability under indemnity or for any other common law, equitable or statutory cause of action or otherwise. This clause will not prevent Geomatics from recovering the Price from the Customer. Geomatics is not liable for loss or damage KLAU GEOMATICS Terms and Conditions of Sale_May_2018 CLEAN v.1.docx Page 12 of 13 3477-9205-6842, v. 1 suffered by Customer or any third party arising from crashing or unsafe operation of a UAV. 13.4.Subject to clause 13.2 and clause 13.3, to the extent permitted by law and except as provided otherwise in this Contract, Geomatics’ maximum cumulative aggregate liability to the Customer regardless of basis (including indemnity, warranty, fundamental breach, negligence, misrepresentation or other contract or tort claim) is limited to the total amount paid by the Customer to Geomatics (excluding Taxes) under this Contract. 13.5.The liability of a party for any Losses incurred by the other party will be reduced proportionately to the extent that the Loss is caused or contributed to by the other party or its personnel or contractors. Without limitation to the foregoing, the Customer expressly acknowledges and agrees that Geomatics has no obligation or liability to the Customer under this clause 13 or otherwise to the extent such obligation or liability is based upon or arises from: 13.5.1. the gross negligence or willful misconduct of the Customer or any of its directors, officers, employees, agents or subcontractors; or 13.5.2. any breach of this Contract by the Customer, including clause 11 and/or any use of any Products or Software in breach of any terms of this Contract. 13.6.Nothing in this Contract limits or excludes Geomatics’ liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors. 14. BREACH AND TERMINATION 14.1.If the Customer: 14.1.1. fails to make any payment when due; 14.1.2. breaches a clause of this Contract which is not capable of remedy; or 14.1.3. breaches a clause of this Contract which is capable of remedy and fails to remedy the breach within 14 days of the date of a notice issued by Geomatics which identifies the breach and requests the Customer to remedy the breach: Geomatics may terminate this Contract by written notice to the Customer effective immediately or from a later date specified in the notice and then the following will apply: 14.1.4. Geomatics’ obligations under clause 4 are suspended; 14.1.5. the Customer’s rights to use the Products are suspended; 14.1.6. Geomatics may terminate this Contract by giving the Customer written notice effective from the date of the notice or a later date specified in the notice; and 14.1.7. Geomatics may retain any money paid by the Customer in relation to this Contract and apply such money against any Loss incurred by it in relation to the default by the Customer. 14.2.If Geomatics: 14.2.1. breaches a clause of this Contract which is not capable of remedy; or 14.2.2. breaches a clause of this Contract which is capable of remedy and fails to remedy the breach within 14 days of the date of a notice issued by the Customer which identifies the breach and requests Geomatics to remedy the breach, the Customer may terminate this Contract by written notice to Geomatics effective immediately or from a later date specified in the notice and in this instance, the Customer’s rights to use the Products continue. 15. FORCE MAJEURE 15.1.Neither party will be liable for any delay or failure to perform its obligations under this Contract (other than payment obligations) if such delay is due to Force Majeure. KLAU GEOMATICS Terms and Conditions of Sale_May_2018 CLEAN v.1.docx Page 13 of 13 3477-9205-6842, v. 1 15.2.If a delay of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended. 15.3.If the Force Majeure continues for 30 days, either party may terminate this Contract by written notice to the other party effective from the date of the notice or a later date specified in the notice. 16. DATA PROTECTION AND PRIVACY 16.1.Personal information provided by the Customer to Geomatics will be stored and used by Geomatics only in accordance with applicable privacy and data protection laws. Geomatics does not sell Customers’ personal information to third parties. 17. GENERAL 17.1.In this Contract, unless the contrary intention appears: 17.1.1. a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency; 17.1.2. a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation; 17.1.3. the word “including” and similar expressions are not words of limitation; 17.1.4. a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; and 17.1.5. where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day. 17.2.Any notice in connection with this Contract will be deemed to have been duly given when made in writing and delivered or sent by post or email to the party to whom such notice is intended to be given, at the address or email of that party in this Contract or to such other address or email as may from time to time be notified in writing to the other party. 17.3.If any provision of this Contract is invalid, illegal or unenforceable, this Contract takes effect (where possible) as if it did not include that provision. 17.4.Any failure by Geomatics to insist upon strict performance by the Customer of any provision in this Contract will not be taken to be a waiver of any existing or future rights of Geomatics in relation to the provision. 17.5.Except where clause 7.1.5 applies, the Customer must not assign or otherwise deal with its rights or obligations under this Contract without the prior written consent of Geomatics. The Customer is responsible for all Taxes or fees payable on or associated with the assignment. 17.6.The Contract is governed by the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and courts hearing appeals from those courts. 17.7.This Contract contains the entire agreement of the parties with respect to its subject matter and may only be amended in writing. 17.8.This Contract does not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner. 17.9.The parties agree that subject to this Contract, the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 does not apply to the supply of Products under this Contract.