OviDrive®™ SaaS Agreement

This contract (which will be emailed out to you upon submitting the sign up form) has a 30 day cooling off period.

This agreement or the contents of this page cannot be copied, adapted or changed in any way without seeking prior written approval from OviDrive Pty Ltd. Copyright © 2018-2019, All rights reserved

IN SHORT

Have you got the power?

You are authorised to act on behalf of the business, represent the business and are authorised by the business to enter agreements with product and service providers such as OviDrive Pty Ltd.

The Subscription

You are entering a monthly subscription agreement with OviDrive®™ for each vehicle specified in the sign up form at a price of $14.95/car/month exclusive of GST. One of our representatives will call you to complete your user profile over the phone.

The OBD Devices

You are placing an order for OviDrive®™ OBD devices equivalent to the number of cars specified in the form. The cost is $49/device exclusive of GST. You can order devices on our website or one of our representatives will call you to complete the order over the phone.

Duration

The subscription agreement for every car is a 36 month no lock in contract, also known as a month to month commitment, between the business you are representing and OviDrive Pty Ltd, which can be cancelled any time by a 30 day notice.

Full Software as a Service Agreement

PARTIES

  1. Ovidrive Pty Ltd ACN 607 107 522 of 6/193 Carr Place Leederville, Perth WA 6007 (“Ovidrive, We, or Us”)
  2. You and the business you represent (“Customer or You”)

 

BACKGROUND

  1. Ovidrive is a provider of computer software and services relating to vehicle fleet management.
  2. The Customer wishes to enter into an agreement with Ovidrive in relation to the provision of its computer software and services.
  3. Ovidrive is prepared to provide, and the Customer is prepared to obtain, the computer software and services on the Terms and Conditions of this Agreement.

 

ITEM SCHEDULE

Item    Description     Details

  1. Commencement DateThe date you submit the “Sign up” form
  2. TermThree years (36 months) commencing on the Commencement Date
  3. Fees1.         A one-time setup fee of $49.00 plus GST (charged monthly in advance) per Active Vehicle and Active Connected Vehicle;
  4. A monthly fee (charged monthly in advance) of $9.95 plus GST per Active Vehicle; and
  5. A monthly fee (charged monthly in advance) of $14.95 plus GST per Active Connected Vehicle.

The Fees will increase each year on the anniversary date of the Commencement Date by 0 percent. All fees are in Australian Dollars

  1. Payment Date15th of each month (in advance)
  2. Supported PlatformsSupported Browsers
  • Internet Explorer version 6+
  • Firefox version 3+
  • Apple Safari version 5+
  • Google Chrome version 20+

Recommended browsers: Google Chrome, Apple Safari, Firefox

Supported Mobile Devices

  • Apple iPhone 3GS, 4, 4S, 5, 5S (iOS 6.0+) and 6 (iOS 8.1+)
  • Apple iPod Touch 4th generations (iOS 6.0+)
  • Android Devices with version 2.3 or greater**

Recommended devices: Apple iPhone 5, 5s, 6; Samsung Galaxy S5, S6 generations

**NB: We do not guarantee that the Ovidrive Software will work successfully on all Android Devices due to the array of Android devices and configurations available.

  1. Special Conditions

 

 

TERMS AND CONDITIONS

  1. DEFINITIONS

In the construction of this Agreement, unless the contrary intention appears:

“Active Connected Vehicle” means a vehicle, which must be no earlier than a 2005 manufactured model, managed by You through the Ovidrive Software and which has an OBD2 Device installed.

“Active Vehicle” means a vehicle, which must be no earlier than a 2005 manufactured model, managed by You through the Ovidrive Software.

“Agreement” means this document and includes any Item Schedule to this document.

“Business” means the commercial activity of Ovidrive including but not limited to the creation, production, and/or supply of software and related services.

“Business Day” means a day on which banks are generally open for business in Western Australia.

“Commencement Date” means the commencement date set out in Item 1 of the Item Schedule.

“Confidential Information” means, without limiting the generality of this agreement information (including Data) relating to the business, customers/clients, products and affairs of either of the parties and their affiliates deemed confidential by the parties and their respective affiliates or which the parties know or ought reasonably to have known to be confidential, and trade secrets, including without limitation designs, processes, pricing policies, methods, inventions, technology, technical data, financial information and know-how relating to the business and activities of either of the parties and their affiliates.

“Client User” means any person or entity that is Your client and who is provided access to the Ovidrive Software and is able to use it on a restricted basis.

“Client Driver” means any person that drives an Active Vehicle or Active Connected Vehicle that is part of a fleet owned and/or operated by a Client User.

“Data” means all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of You that is generated by or stored using, or inputted into, the Ovidrive Software either directly by You or a Client User, or through a OBD2 Device. Data includes data belonging to a Client User.

“Fees” means the fees payable by You for the Services as set out in Item 3 of the Item Schedule.

“GST” means goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

“Item Schedule” means the schedule to this Agreement setting out various relevant items.

“Intellectual Property” means all intellectual property rights associated with Ovidrive, its Business the Technology, the Ovidrive Software, the Ovidrive Application, and/or Services including all copyright, patents, trademarks, design rights, trade secrets, domain names, documentation , know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application and any intellectual property rights not otherwise described here.

“Improvements” means any addition variation change or improvement to the Intellectual Property, Ovidrive Software, and/or Technology of any nature which arises out of or results from Your association or engagement of Us or otherwise because of Your relationship with Us and is to include anything made, created, or modified by You.

OBD2 Device means a device provided by Us which which is to be installed in an Active Connected Vehicle and which, in conjunction with the Services, allows the collection of Data relating to the Active Connected Vehicle through a Bluetooth connection with the Ovidrive Application.

“Ovidrive Software” means Our vehicle fleet management software to which You and/or Client Users are given access through the Portal as part of the Services.

“Ovidrive Application” means Our vehicle fleet management smart phone application to which Client Drivers are given access as part of the Services.

“Payment Date” means the date set out in Item 4 of the Item Schedule.

“Personal Information” means information which is relevantly subject to the Privacy Act 1988 (Cth) and otherwise has the meaning given to the term in the Privacy Act 1988 (Cth).

“Portal” means the internet portal provided by Us and through which You and the Client Users can access the Ovidrive Software, the Services, and/or the Technology.

“Services” means the services provided by Us under this Agreement including, but not limited to, the licensing and/or provision of access to the Ovidrive Software, Ovidrive Application, and/or use of any Technology.

“Special Conditions” means the conditions set out in Item 6 of the Item Schedule.

“Supported Platforms” means the Supported Browsers and Supported Mobile Devices set out in Item 5 of the Item Schedule which have been tested for use with the Ovidrive Software and which are compatible with the Ovidrive Software.

“Technology” means the OBD2 Device or any hardware (including its software) created or manufactured by or for Ovidrive that is provided to You as part of the Services.

“Term” means the term set out in Item 2 of the Item Schedule.

“Terms and Conditions” means these terms and conditions.

“Underlying Systems” means, without limitation, the technology, IT solutions, systems and networks (including software and hardware) used to provide the Services,

“Website” means www.ovidrive.com or such other website as Ovidrive nominates from time to time.

  1. INTERPRETATION

In the construction of this Agreement, unless the contrary intention appears:

(a)        a reference to a person includes a corporation or any other legal entity;

(b)       the singular includes the plural and vice versa;

(c)        headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;

(d)       the term “includes” (or any similar term) means “includes without limitation”; and

(e)        a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.

  1. TERM & FURTHER TERM

(a)        This Agreement commences on the Commencement Date and, unless terminated earlier, continues for the duration of the Term.

(b)       If the Term expires and the Agreement has not been terminated earlier, the Agreement will continue as an agreement on a month-to- month basis.

(c)        If this Agreement continues on a month-to- month basis, either party may provide the other with 28 days written notice of the Agreement being terminated and on the expiration of the notice, the Agreement comes to an end.

  1. FEE, INVOICE, PAYMENT AND TIMING OF PAYMENT

(a)        We will issue a Tax Invoice to You for Fees monthly in advance.  At the commencement of the Agreement, the first Tax Invoice for Fees will be issued on a pro-rata basis for Services up to the next Payment Date.

(b)       The Fees are to be paid on or before the Payment Date.

(c)        If Fees become overdue by 30 days or more , the provision of Services will be suspended until such time as all outstanding Fees have been paid in full.

  1. SERVICES & GRANT OF LICENCE

Subject to Your compliance with terms of this Agreement, and in consideration of the payment of the Fee, We will:

(a)        provide the Services (which will meet the description set out in Schedule 1 to this Agreement); and

(b)       grant You a non-exclusive right to use the Ovidrive Software, Ovidrive Application, and Technology.

  1. SERVICE AVAILABILITY

(a)        We will use reasonable efforts to ensure the Services are available to You and Client Users around the clock on every day of the year.

(b)       You agree that We may, without the need to give You prior notice, interrupt the Services or make the Services unavailable in order to implement updates, fixes and undertake maintenance in respect of the Services or the Technology.

(c)        In the event that We make the Services unavailable for the reasons set out in this clause, You are not entitled claim any any refund, discount or any other compensation for any losses whatsoever.

  1. TRAINING

(a)        We will provide You and up to five Client Users with a total of two hours training in the use of the Ovidrive Software and the installation of OBD2 Devices.

(b)       Additional training, if required, will be charged at such training rates as may apply at that time.

  1. THIRD-PARTY FEATURES

In the event any part of the Services interoperates with third-party features (including any software programs) (“Third-party Features”), You agree, if You utilise any of these, that:

(a)        Your right to access and/or use the Third-party Features is governed by the terms and conditions stipulated by the provider of the Third-party Features and not by this Agreement;

(b)       We do not give any warranty or make any representation as to reliability of any Third-party Features;

(c)        We are not responsible for examining or evaluating the content or accuracy of any Third-party Features;

(d)       We are not liable for any loss or damage resulting from the use of any Third-party Features by You or Your Client User.

  1. YOUR OBLIGATIONS

(a)        You must use, and You must ensure that any Client User uses, the Services:

(i)         strictly in accordance with the Agreement;

(ii)        for the purposes set out in the Agreement only; and

(iii)       in accordance with any prevailing law and statute including but not limited to any laws preventing spamming.

(b)       You must not, and You must ensure that the Client User does not, resell the Services or make the Services available to any third or other party unless expressly authorised by this Agreement or by Us in writing.

(c)        When accessing or otherwise using the Services, You must not, and You must ensure that Client User does not:

(i)         attempt to undermine the security or integrity of the Underlying Systems;

(ii)        use, or misuse, the Services in any way so as to impair the functionality of the Services or the Underlying Systems or impair or disrupt the ability of any other person or entity to lawfully use the Service;

(iii)       view, access or copy nor attempt to view, access or copy any material or data other than that which You or the Client User is expressly authorised to access under this Agreement;

(iv)       use or otherwise deal with all or part of the Services or the Technology in a manner that breaches Our rights in any way;

(v)        unless authorized by Us, disclose, or provide to any other person, any secure information in connection with your account (including passwords) that may allow them to gain access to Your account or a Client User account.

(d)       You and the Client Users are each solely responsible for the regular and proper maintenance and service of any Active Vehicle and/or any Active Connected Vehicle, and to keep in these in good working order consistent with any instructions from the relevant vehicle’s manufacturer.

  1. CLIENT USERS

(a)        You may:

(i)         appoint Client Users;

(ii)        You may allocate the Client Users with such restricted access to the Ovidrive Software as You may in Your discretion determine as being appropriate;

(iii)       You may provide Client Users with OBD2 Devices for provision by them to Client Drivers for installation in Active Connected Vehicles;

(iv)       You may provide Client Users and/or Client Drivers with access to, and use of, the Ovidrive Application

(b)       Where a Client User is appointed, You will provide Us with the Client User name and any other information that We reasonably require.

(c)        You must ensure that each Client User and Client Driver complies with:

(i)         relevant parts of these Terms and Conditions; and

(ii)        all relevant road rules and regulations when using the Ovidrive Application.

(d)       You agree that, without limiting the operation of these clauses in any way, the indemnity in clause 26 and the limitation of lability in clause 27 apply to:

(i)         any breach by You of subclause (c) above and/or any liability arising as a result; and

(ii)        any failure by a Client User and/or a Client Driver to comply with subclauses (c)(i) and (ii).

  1. TECHNICAL SUPPORT

We will provide the telephone help desk or online support services as outlined at Our Website.

  1. DATA

(a)        You have sole responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness, and rights ownership of all Data.

(b)       You will retain ownership of the Data. However, any Data that has been processed through the Ovidrive Software, Ovidrive Application, and/or Technology that becomes an output is owned by Us.

(c)        We may require access to the Data to exercise Our rights and/or perform Our obligations under the Agreement and, in this regard, You provide Us with Your consent to do so.

(d)       If requested to do so by Us, You must provide, or procure, such further consents and approvals as may be necessary for Us to access the Data.

(e)        Where any third-party consents are necessary to hold their Data, You must obtain all necessary consents from the relevant individual or entity to enable Us to hold this Data.

  1. LIMITATIONS

(a)        You agree that there are limitations to the ability of the Ovidrive Software, Ovidrive Application and Technology to assist Your business and that the Ovidrive Software, Ovidrive Application, and Technology:

(i)         do not detect faulty or aberrant input Data;

(ii)        do not consider all matters that may be relevant to Your business or otherwise that should be considered when making decisions;

(iii)       should not be used by You as a substitute for independent and appropriately qualified decisions in relation to Your business or otherwise.

(b)       You will, in addition to, and not reliant on, using the Ovidrive Software, Ovidrive Application, and Technology, have appropriate strategies in place to manage all risks and make appropriate decisions.

  1. BACK UPS

(a)        We will take reasonable measures to back up all Data stored by Us.

(b)       We will store Data in secure Cloud based servers which may, at Our discretion, be located within or outside of Australia.

(c)        You must keep a separate back-up copy of all Data used by You.

  1. OBD2 DEVICE

(a)        You must maintain and take good care of, and You must ensure that the Client Users and Client Drivers maintain and take good care of, all OBD2 Devices that are provided as part of the Services.

(b)       You must comply, and ensure that a Client User and/or Client Driver complies, with Our instructions in relation to the installation and use of OBD2 Devices.

(c)        Any OBD2 Device or other Technology ordered or delivered to You cannot be exchanged or returned for any reason except on expiry or other termination of this Agreement.

(d)       If an OBD2 Device or other Technology or any part of it is or become defective, You must notify Us in writing of the existence and nature of the defects within seven days of becoming aware of the issue (“Defective Technology”).

(e)        To the extent We may need to inspect the Defective Technology, You must permit Us, or procure any necessary permission, to enter the premises where the Defective Technology is located.

(f)        If We agree that the Defective Technology is in fact defective, We may, at our discretion, supply a replacement to You. Our obligations and/or liability in this regard is limited to the supply of a replacement ODB2 Device or other Technology.

(g)        You are responsible for any freight charges relating to the return of Defective Technology and the supply of the replacement.

  1. UPDATES AND NEW RELEASES

(a)        We may, but do not have to, offer updates or new releases of the Ovidrive Software and/or Technology We provide to You or the Client User under this Agreement (“Update or New Release”).

(b)       In the event, We decide to offer a Update or New Release, You and Your Client Users are obliged to accept the Update or New Release.

(c)        This Agreement will continue to apply in all respects to:

(i)         any New Release or Update; and

(ii)        the original Technology whether outdated, superseded, or replaced by the New Release or Update.

 

  1. INTELLECTUAL PROPERTY RIGHTS

(a)        You acknowledge that the Intellectual Property is the property of Ovidrive and You have no interest in any of the Intellectual Property as a result of this Agreement.

(b)       To the extent that We provide You a license to use Our Intellectual Property, You must do so, and ensure that Client Users do so, in accordance with Our instructions, policies, and guidelines.

(c)        Except as may be expressly permitted by this Agreement, You must not, and You must ensure that Client Users do not:

(i)         reproduce, make error connections to or otherwise modify or adapt any of the Intellectual Property or create any derivative works based upon the Intellectual Property;

(ii)        de-compile, disassemble or otherwise reverse engineer any of the Intellectual Property or permit any third-party to do so.

(d)       If You makes any Improvement to the Intellectual Property (including Ovidrive Software and/or any Technology) of any nature arising out of this Agreement or any use of the Intellectual Property, then:

(i)         all rights, title and interest of any nature in the Improvements vest solely in Ovidrive absolutely and We are entitled to enforce and exploit any or all of Our rights under this Agreement or otherwise at law or in equity in respect of the Improvements without restriction or limitation by You;

(ii)        You agree that You have no rights, title or interest in the Improvements whatsoever; and

(iii)       upon You making any Improvement, You must immediately notify Us of the Improvement and provide precise details of the nature and extent of the Improvement.

(e)        You will, both during and after the term of this Agreement, do all such acts and things and sign all such documents as We may reasonably request to secure to Us ownership or registration rights in the Improvements.

  1. RETENTION OF TITLE

We retain full title in any Technology provided to You.

  1. ASSIGNMENT

Neither party may assign its rights, obligations or undertakings under this Agreement without the prior written consent of the other party (consent not to be unreasonably withheld).

  1. NON-EXCLUSIVE AGREEMENT

We will be free to offer and provide similar or the same services covered by this Agreement to other persons or entities and nothing in the Agreement is to operate to limit Our right to grant further licenses in relation to the Ovidrive Software and/or Technology to any other person or entity.

  1. NO PARTNERSHIP OR AGENCY

(a)        Nothing in this Agreement creates a partnership between the parties or appoints You as agent of Ovidrive or Ovidrive as agent for You.

(b)       Neither party has the authority or power to bind the other party or to contract in the name of and create a liability against the other party.

  1. CONFIDENTIALITY

(a)        The parties agree that they will not, during the term of this Agreement or any time thereafter, either directly or indirectly, disclose or use Confidential Information acquired during, and because of, this Agreement, except as necessary in order to perform the obligations of one to the other in accordance with this Agreement, or with the prior written consent of an authorised officer of the party whose Confidential Information is disclosed.

(b)       In the event of the failure of either party to comply with this provision, the injured party will be entitled to seek injunctive relief, in addition to all other remedies which may otherwise be available to that party and to such other and further relief as may be proper and necessary to ensure compliance with the confidentiality provisions of this Agreement, including, but not limited to a claim for damages, and the institution of civil or criminal actions, as may be appropriate.

(c)        Confidential Information will not include such information that is already part of the public domain prior to this Agreement being entered into or which, during the term of this Agreement, has become public knowledge, without the involvement, directly or indirectly, of the parties.

(d)       Confidential Information may be disclosed by either party, even without the consent of the other, when expressly required or mandated by law or when specifically required to be disclosed by any court of competent authority.

  1. DISPUTES

The parties must use their best endeavours to resolve any substantial dispute or claim about this Agreement or its performance (which, for the avoidance of doubt, does not include any dispute or claim by Us in relation to unpaid Fees) (Dispute) in accordance with the following process (Dispute Process):

(a)        a party may at any time give the other party notice of a Dispute (Dispute Notice);

(b)       within 10 Business Days from the date on which the Dispute Notice is delivered to the other party (Dispute Notice Date), the other must deliver to the party that issued the Dispute Notice a written response (Answer);

(c)        the Dispute Notice and Answer must each include a statement of the party’s position, a summary of arguments supporting that position, and what action (if any) that party thinks will resolve the Dispute;

(d)       representatives of the parties who are authorised to resolve the Dispute must meet within 20 Business Days of the Dispute Notice Date negotiate in good faith to resolve the Dispute. For the avoidance of doubt, such meeting does not have to be conducted face-to-face.

  1. NOTICES

(a)        Any communication to be given by a party under this Agreement must be in writing addressed in accordance with the particulars for that party appearing in this Agreement as may be notified in writing by that party to the other parties.

(b)       Each communication must be delivered by hand or prepaid post or sent by email or facsimile.

(c)        A communication is deemed to be received:

(i)         if hand delivered – on the next following business day;

(ii)        if sent by email – when a delivery receipt is generated;

(iii)       if posted – on the second business day after posting; and

(iv)       if sent by facsimile – on the next following business day unless the receiving party has requested re-transmission before the end of the business day.

  1. TERMINATION

(a)        Either party may immediately terminate this Agreement, by notice in writing to the other, in the following instances:

(i)         when the other party makes any voluntary arrangement with its creditors or becomes subject to an administration order;

(ii)        when a court order is issued to wind up that other party or to place it under judicial management or a resolution is passed for its winding up or liquidation;

(iii)       when the other party ceases, or threatens to cease, to carry on its business or becomes insolvent, whether voluntarily or involuntarily;

(iv)       anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other party;

(v)        in case of fraud or criminal acts by the other party in relation to the activities of either party which could have an adverse effect on the other, whether directly or indirectly;

(vi)       in the event either party breaches this Agreement, and the relevant breach cannot be remedied.

(b)       If either party is in breach of this Agreement, and the breach can still be remedied, the non-breaching party may give the other party a notice specifying the breach and requiring the breaching party to rectify the breach within 10 Business Days from receipt of the notice. The non-breaching party may terminate this Agreement by notice in writing to the other party if the latter fails to rectify the breach within the 10-day period.

(c)        The termination of this Agreement is without prejudice to any rights that have accrued to a party before the date of termination.

  1. MUTUAL INDEMNITIES

Each party indemnifies and holds the other, its directors, officers and representatives, free and harmless, from and against any and all losses, damages, liabilities, actions, suits, proceedings and claims of whatever nature, including legal fees or other expenses incurred, brought about by claims or charges from any individual, corporate entity, organisations, government agencies and instrumentalities or any other interested party, due to any act or omission or breach of any obligation in this Agreement, or the fault or negligence of a party, its directors, officers, representatives, employees, authorised representatives, contractors, whether in relation to the terms of this Agreement or not.

  1. LIMITATION OF LIABILITY

(a)        Other than an obligation to pay any amount due pursuant to this Agreement, in no event will a party’s liability arising out of or in connection with this Agreement or the Services exceed, in the aggregate, the total fees paid by You to Us for the particular Services to which such liability relates.

(b)       Nothing in this Agreement will make a party liable to the other party for indirect, special, consequential, exemplary, incidental loss or damage (including but not limited to loss of goodwill, loss of profit, loss of revenue, loss of expected savings, opportunity costs, loss of business, loss of reputation and business interruption) whether arising in contract, tort (including negligence), under any statute or otherwise arising from or related in any way to this Agreement or its subject matter.

  1. FORCE MAJEURE

Except for payment obligations, neither party will be liable for delay or failure to perform any obligation under this Agreement if the delay or failure is caused by any circumstances beyond defaulting party’s reasonable control, including but not limited to Acts of God, war, civil disorder or industrial disputes. If such delay or failure continues for a period of more than 30 days the party not subject to the force majeure will be entitled to terminate this Agreement by written notice to the other.

  1. SPECIAL CONDITIONS

The Special Conditions (if any) are incorporated in and form part of this Agreement.

  1. ENTIRE AGREEMENT

This Agreement comprises the entire understanding of the parties concerning its subject matter and there are no covenants, terms, conditions or obligations oral or written, express or implied other than those contained in this Agreement.

  1. SEVERABILITY

If any of the provision or stipulation contained in this Agreement or any document executed in connection to it is declared invalid, illegal or unenforceable by a competent court or agency, the remaining provisions will not be in any way affected or impaired.

  1. GOVERNING LAW

The laws of the State of Western Australia govern the Agreement and the parties expressly submit to the jurisdiction of the Courts of Western Australia in determining any issue arising out of the Agreement.

  1. COUNTERPARTS

(a)        The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement.

(b)       A party may enter the Agreement by signing and emailing a counterpart copy to the other party.