THIS AGREEMENT dated the Thirtieth day of June 2022

 

1.  Introduction

DRIVE IQ TECHNOLOGY PTY LIMITED ACN 638 678 136 (referred to throughout this proposal as "we", "our" or "us") offers to provide you and your oirganisation (referred  to  throughout  this  proposal  as "you"  or  "your")  access  to  and  use  of  the  services  identified  in  this proposal on the terms detailed below.

 

1.  Executive summary

1. We offer to make the services known as Drive IQ available for your use on a perpetual montly license agreement, subject to the more detailed provisions of this proposal which follow.
    

2. The fees payable by you for access to the Drive IQ Services ("Service Fee") are as per APPENDIX A - Schedule of Rates (Fees).  

The signing authority must place their initials against the relevant charges for the options chosen.

 

1. Acceptance of this proposal

1. This proposal remains open for acceptance for a period of 30 days from the date on which we provide it to you (or such longer period as we may agree). If you wish to accept this proposal, you may do so by confirming acceptance by email, facsimile or other written notice.
    

2. We would be happy to discuss changes to this proposal with you. If we agree in writing to modifications to this proposal. then you may accept the modified proposal by confirming your acceptance by email, facsimile or other written notice.
    

3. Unless otherwise agreed in writing, Drive IQ and all other services

we provide to you will be governed by the attached Terms and Conditions.

 

1. Duration of arrangements

1. The arrangements covered by this proposal will commence on your acceptance of this proposal or any varied form of this proposal and will continue for a term of 3 (three) months.
    

2. The provision of the Services will automatically be extended for a further term of 1 (one) month on a continually renewing basis, commencing from the expiration of the initial term or any extended term unless you or we give written notice to the other that you or we do not wish the arrangements to be extended. A notice of this kind must be given not less than 30 (thirty) days prior to either: the expiration of the then current term; or the expiration of the renewed term.

 

1. Restraint
   Either of the named parties in this agreement their Related Bodies Corporate(s), Personnel and/or the Personnel of its Related Bodies Corporate(s) must not;
    

1. approach any person who is at the Termination Date of this agreement or was at any time during the one-year period before the Termination Date of this agreement, a customer for products or services of the type provided at the Termination Date;
    

2. induce or encourage any employee to leave its employment; or
    

3. interfere with the relationship between any customers, employees of, or suppliers.

 

1.  Confidentiality

1. Other than expressly permitted under this Agreement, neither party may disclose to any person Information which is by its nature confidential;
    

2. which is designated as confidential by the party; or
    

3. which the other party knows or ought to know is confidential, and includes any and all:
    

4. trade secrets, financial, accounting, marketing, technical, scientific, customer, student and supplier information, ideas, concepts, formulas, know-how, technology, source code, operating procedures, processes, knowledge or other information belonging to, used by or relating to a party other than information which is in the public domain (except information in the public domain as a result of a breach of confidence)

The obligations under this clause will continue for a period of 12 (twelve) months after the expiry or termination of this contract.

 

1.  Drive IQ implementation and other services

1. Our responsibilities;
    

1. Initial set up of Drive IQ to agreed specifications in Appendix B

2. Set up security access

3. Testing systems and changes

4. Data Transfer to systems specified by VWFSA

5. In addition, we will host and support the services from a technical perspective and provide technical help where needed. 

6. The   setup   and   customisation   should   be   completed in approximately 45 days.

7. We will notify you within seven (7) days as new versions are released, so you can decide if you want to upgrade. We will also advise you of a date by which any upgrades will be provided and installed along with a release notice explaining the changes made in the latest version. Some upgrades may involve significant engineering and involve a potential change of fees, which will be negotiated with your account manager at the time. We encourage you to accept upgrades. We may be unable to offer future support agreements to people still using a version more than one release behind the current version
    

1. Your responsibilities;
    

1. You are responsible for the provision and maintenance of any content which is to be incorporated in and made available using the Services. (If you require our assistance to modify or maintain your content then, if we are able to assist, we will provide that assistance to you for a fee based on our then applicable time and materials rates).

2. Where we request that you make a decision regarding any issue, you will promptly consider that request and advise us of your decision without delay.

3. You will promptly provide any information or other assistance which we may reasonably require.

4. At your expense, you must obtain all necessary hardware, software, access to the internet and anything else required to enable you to access and use the Drive IQ Services.

5. You are responsible for maintaining user access, including changing passwords as required, and deleting users who have left your employment.

6. You must ensure that all fees are paid monthly in advance, and within invoicing terms of 7 days.

 

1.  Help Desk Support

1. We will provide you with a Help Desk service, aimed at helping ensure the Drive IQ Services are accessible in accordance with any applicable specifications.
    

2. We can answer questions about use of the Drive IQ Services and help with technical issues.
    

3. The Help Desk service is available during normal working hours, being 9.00am -5.00pm in Sydney, NSW Australia.
    

4. Service is provided by phone and email.
    

5. We will try to answer questions immediately or on the same day.
    

For issues that require further investigation on our part, we will act promptly (within 48 hours) and keep you informed of progress.
 

1. It is best if you refer questions to us via one person in your organisation and that (where possible) you provide us with complete details of the problem.

 

1.  Information & assumptions we have relied upon

1. This attachment identifies the information and assumptions we have relied upon in preparing and costing our proposal.
    

2. If any information or assumption is inaccurate or incorrect in any material respect,
    

3. then we reserve the right to vary the terms of our engagement (including our Fees) to the extent reasonably required to take into account the inaccuracy or error.
    

4. We have assumed that you will:

5. promptly comply with your responsibilities (as specified in the proposal) as and when we reasonably require you to do so;
    

6. promptly provide any assistance reasonably requested by us; and
    

7. ensure that all users undertake appropriate training and maintain appropriate skill levels.

 

1.  Terms & Conditions governing provision of services

1. All Drive IQ services and other services we provide are subject to the following terms & conditions. 

 

1.  Definitions and Interpretation

Unless the context otherwise requires the following words have the following meaning: -

1. “Contract Duration” means the initial term of our engagement specified in the proposal plus any agreed extensions;
    

2. “Fees” means the fees set out in the proposal;
    

3. “Password” means the code or codes required for you or a User to obtain access to or use the Drive IQ services;
    

4. “Payment Terms” means the terms for payment of Fees set out in the proposal;
    

5. “Proposal” means the proposal provided by us to you (including all attachments) and includes any written variations to that proposal agreed to by us;
    

6. “Restrictions” means by any limitations on the types or extent of use specified in the Proposal or these terms and conditions;
    

7. “Review Date” means 31 March of the relevant year, at which time our fees may increase by written notice.
    

8. “Services" means the Drive IQ Services and other services identified in the Proposal and any other services which we agree to provide;
    

9. “Services Program” means the program set out in the Proposal (if any) for delivery of any of the Services;
    

10. “User” means any person who accesses or uses the Drive IQ services; and
     

11. “Your Responsibilities” means your responsibilities as specified in the proposal and these terms and conditions. 

 

1.  Payment for Services

1. You must pay us the Fees in accordance with the provisions of the Payment Terms.
    

2. Subject to clause 20, payment of Fees must not be refused or delayed, notwithstanding any dispute between you and us.
    

3. If a genuine dispute arises regarding the amount of a Fee, you may suspend payment of the disputed amount pending resolution of the dispute but you must pay all other amounts in accordance with the Payment Terms.
    

4.  If you fail to pay any amount to us by the due date, then (without limiting any other remedies)

1. we may temporarily or permanently suspend the provision of all or some Services; and

2. you must pay interest on the amount due calculated from the due date until the date of payment at a rate which is two per cent higher than the rate which is or would be charged by our bank on an overdraft facility of $100,000.

 

1.  Access to and use of Services

1. You must ensure that access to and use of the Services complies at all times with any Restrictions.
    

2. You must not resell our Services and you must not permit third parties to access or use our Services, except to the extent expressly authorised by us in writing.
    

3. You must only provide Password information and permit access to and use of the Services by your officers, employees and contractors in accordance with any Restrictions. Contractors must only be allowed to access and use the Services to the extent necessary to enable them to provide services to you.
    

4. You must maintain user access, including changing Passwords as required, and deleting users who have left your employment.
    

5. Only a User who has been granted a Password may access and use the Services. You must ensure that each User complies with these terms and conditions including (without limitation) any Restrictions.
    

6. Each User must maintain the security and secrecy of their password. In particular, a User must not tell anyone what their Password is and must take all necessary precautions to prevent unauthorised access or use.
    

7. A User must not permit any other person to access to use or modify services by using that User’s password.
    

8. Users must undertake recommended training and maintain
   appropriate skill levels with respect to access to, and use of services.
    

9. We will take reasonable measures to prevent unauthorised access and use of the Services but you acknowledge that notwithstanding these measures unauthorised access and use of the Services may occur.

 

1.  Provision of Services

1. will provide the Services to you in accordance with the Services Program.
    

2. The services will be provided to you for the contract Duration unless our engagement is terminated at some earlier time in accordance with these terms and conditions.
    

3. The Services are provided to you on a non-exclusive and non-transferrable basis.
    

4. The services will be provided in accordance with sound and accepted professional practice existing at the date of your acceptance of the Proposal.
    

5. Our provision of the Services if subject to you;

1. 7b. Complying with Your Responsibilities as and when required by us; and

2. 20. paying Fees to us in accordance with the Payment Terms.

1. The Services may be provided by us or by a suitable contractor appointed by us.
    

2. We will endeavour provide the Services without unreasonable delay but we will not be liable for any failure or delay in the provision of the Services which is caused or contributed to by you or your contractors or an event outside our direct reasonable control.
    

3. You acknowledge that our provision of Services and your access to and use of the Services will be dependent on the adequacy and reliability of your infrastructure and on various third parties over whom we have no control (such as telecommunications service providers and ISP's). Accordingly, we do not provide any warranty or assurance regarding the time for completion by us of any Services or the reliability, availability or quality of Services.
    

4. You acknowledge that from time to time the Services will be unavailable due to scheduled or unscheduled maintenance and that we will have no liability for such unavailability. We will endeavour to program scheduled maintenance so as to limit its impact on your operations.
    

5. Where the Services suffer from a defect which is within our direct control, we will endeavour to achieve the problem resolution times set out in the following table:
    

 

Defect Severity

Target Resolution

Critical

Services are not available to

response times or outage levels are so high that Services are not used.

14 business hours after we receive

notification of the defect.

Serious

A significant proportion of Services are not available or response times or outage levels are so high that those Services are not used

28 business hours after we receive

notification of the defect

Defects other than Critical or Serious defects

70 business hours after we receive

notification of the defect

 

1. A “defect” is where the Services are not being provided in accordance with the Proposal or any specifications published by us as a result of some deficiency in our software. A "defect" does not include any problems caused by improper use of the Services, failure to comply with any of our recommendations or requirements including any requests for assistance, use of the Services equipment or third parties’ programs or services other than those approved by us, or supplying information available through recommended training or in user documentation. If we reasonably conclude that any services you request are not covered by defect support, then you must pay for those services at our then applicable rates.
    

2. You agree to provide us with particulars of the defect in a format specified by us and to provide us with any required assistance in the diagnosis of the defect.
    

3. Content you or your users submit as part of the use of the Services will be stored in the cloud within Australia using specialist third party cloud service providers who will apply industry standard security processes to protect your information. For so long as this agreement continues and Fees are paid when due, users will be able to access and use the submitted information. Our hosted service providers will create a back-up copy of the data held by us on your behalf on a regular basis. We will use our best efforts to provide 99.9% durability and availability, and will not be liable for data failures that are beyond our control. If you are in default of this agreement, your access to this content may be restricted until the default is rectified.
    

4. We may modify the functionality and other characteristics of the software used to provide the Services from time to time and this may have consequential impacts on the Services provided to you.

 

1.  Variation of Services to be provided

1. If we suggest or if you request a variation of the Services to be provided pursuant to the Proposal including (without limitation) the provision by us of additional services, we will provide you with a written proposal specifying the cost and other terms upon which we would be prepared to agree to that variation.
    

2. Neither you nor we are obliged to agree to any variation, but you and we agree to review and discuss any variation proposal in good faith.

 

1.  Intellectual Property Rights, Data, Confidentiality, Privacy and Compliance

1. We retain all copyright and other intellectual property rights in our software, know-how and the materials we apply or produce in delivering the Services including any deliverables and we retain or obtain all intellectual property rights with respect to any copies, reproductions, adaptations, additions to, enhancements, alterations, modifications or translations made of that software, know how or those materials.
    

2. We warrant that our provision of the Services will not infringe the intellectual property rights of any third party and we agree to indemnify you against any liability you may reasonably sustain if our provision of the Services infringes the intellectual property rights of any third party. If any aspect of the Services infringes a third-party's   intellectual   property   rights, we   will   arrange   a non-infringing work-around, obtain a licence at our cost permitting your use of the relevant Services or suspend the availability of such Services.
    

3. You will give us notice of any infringement of our copyright or any other right of ours that comes to your attention.
    

4. You authorise us (and our contractors) to use any content or other

material you provide as required by us in order to provide the Services and you warrant that this use of any content or other material provided by you will not infringe the intellectual property rights of any third party. You will indemnify us and our contractors against any liability we or they may reasonably sustain if the content or other material you provide infringes the intellectual property rights of any third party.
 

1. You will retain ownership of your content and of the data which you or your Users submit to our systems as part of their use of the Services. Upon termination of the agreement Drive IQ commit to providing a full database extraction to the owner of the data within 30 days.
    

2. We must treat as confidential all information (other than information in the public domain) which you provide to us including (without limitation) information relating to your business operations. We agree not to disclose such information to any other party without your prior written permission. We may only use such information and may only disclose this information to the extent necessary to enable us to perform our obligations in accordance with the Proposal.
    

3. You must treat as confidential all information (other than information in the public domain) which we provide to you including (without limitation) information relating to our software and systems, our pricing and our business operations. You agree not to disclose such information to any other party without our prior written permission. You may only use such information and may only disclose this information to your employees to the extent necessary to give effect to the objectives identified in the Proposal.
    

4. Upon termination, each of us must return to the other party all copies of confidential information received from that party.
    

5. You must ensure that you comply with any applicable provisions of the Australian Privacy Principles with respect to your use of the Services in connection with the collection, storage and use of any personal information.
    

6. With respect to your use of the Services, you must ensure that configuration of Drive IQ Services comply with any and all applicable provisions of the National Consumer Credit Protection

Act (NCCP).
 

1. The provisions of this clause 6 shall survive and continue to be binding upon you and us, notwithstanding termination.

 

1.  Warranties and Liability

1. To the extent permitted by law and unless stated otherwise in this document, you agree to indemnify and hold harmless Drive IQ, its employees and agents and promise to keep them indemnified against any loss, claim, action, settlement, award, judgment, expense, loss, breach or damage of whatsoever kind or nature and howsoever arising that the we might suffer as a result of any inaccuracy of the Software and/or the Materials including any unauthorised use of the Software and/or Materials by you.
    

2. If any warranty or condition is implied by relevant legislation which may not be excluded or restricted (a " non-excludable term") our liability for any breach of a non-excludable term is limited solely to the resupply of the relevant Service or payment to you of the cost of having the Service provided again (at our option).
    

3. Apart from the express warranties contained in these terms and conditions and subject to any non-excludable terms, all warranties with respect to the Services are hereby expressly excluded. We accept no liability for the provision of the Services, whether arising by reference to the provisions of the Proposal, implied terms, tort or otherwise howsoever. If circumstances arise where you are entitled to claim damages from us notwithstanding the provisions of these terms and conditions, our liability to you for the aggregate of all such claims (regardless of the basis on which you are entitled to claim from us including, without limitation, negligence) is limited to the lesser of:
    

   1. The amount of any actual loss or damage which you sustain;

   2. An amount equal to the Fees received by us from you during the preceding 12 (twelve) months.
       

4. You acknowledge that you have relied upon your own skill and judgement in determining the appropriateness of the Services for your own particular purposes and you have not relied on any statement or representation made by us or on our behalf.
    

5. In no event will we be liable for any indirect or consequential loss or damage, loss of or damage to data, loss of profits, loss of savings or loss of revenue even if we have been advised of the possibility of such damages.

 

1.  Default

1. If a party (the "Defaulting Party") commits any default with respect to the due observance or performance of any of its obligations under these terms and conditions, then the other party (the "Innocent Party") may, without prejudice to any other rights the Innocent Party may have, give written notice to the Defaulting Party identifying the default and requiring that the default be remedied (a "Default Notice").
    

2. If the Defaulting Party fails to remedy a default within 14 days after receipt of a Default Notice or, where the default is not capable of being remedied within 14 days and the Defaulting Party fails within that period to commence to remedy the default or fails to diligently proceed to remedy the default, then the Innocent Party may terminate the arrangements between you and us by written notice to the Defaulting Party.
    

3. A party may terminate the arrangements governed by these terms and conditions by written notice if it reasonably considers that the other party is or is likely to become insolvent.
    

4. No refund of any pre-payment will be made if termination occurs.

 

1.  Additional Terms

1. You agree not to assign or transfer or otherwise deal in any way with any rights we grant or obligations you undertake without our express written permission, which permission may be granted or granted subject to conditions or refused in our absolute discretion.
    

2. Neither party shall, without the prior written consent of the other party, employ or enter into contractual arrangements with, offer employment or contractual arrangements to, or solicit requests for employment or contracts from, any current or former employee or contractor of the other party for a period commencing on the acceptance of the Proposal and ending 12-months after termination of all contractual arrangements between you and us.

 

1. No right will be waived by a party except by express written notice signed by that party.

 

1. If any provision of these terms and conditions is found to be invalid, unenforceable or illegal, then that provision will be deemed to be deleted to the extent necessary to remove the invalid, unenforceable or illegal portion and the balance of these terms and conditions will remain binding.

 

1. If any dispute arises between you and us which cannot be resolved by negotiation, you and we will confer and seek to agree the most appropriate mechanism for resolution of the dispute before commencing any proceedings, provided that this provision will not apply where you or we reasonably conclude that injunctive or other urgent proceedings are necessary to protect its position.

 

1. Notices or other formal communications may be given by hand delivery, by mail or by email or facsimile transmission and will be deemed to be received:

 

1. in the case of hand delivery, upon delivery;

 

1. in the case of mail, three (3) business days after the date of posting the article; or

 

1. in the case of email or facsimile, upon completion of transmission

 

1. The Proposal is the complete and exclusive statement of the agreement between you and us and it supersedes all proposals or prior agreements, oral or written, and all other communications relating to the subject matter of the Proposal.

 

1. The   parties   are   independent   contractors   and   are   not   in   a partnership or joint venture relationship. Neither you nor we may purport to act on behalf of the other party unless expressly authorised to do so in writing.

 

1. Due to the ongoing nature of these arrangements, we may vary any aspect of the arrangements (including any of these terms and conditions and the provisions of the proposal) by giving you not less than 60 days written notice of the variation(s). If you do not wish to be bound by the variation(s), you may terminate the agreement by written notice of termination to be provided to us not less than 30 days before the variation(s) takes effect.

 

1. If any provision of these terms is unlawful, void or for any reason unenforceable, then that provision shall be deemed severed from these terms and shall not affect the validity and enforceability of any remaining provisions.

 

1. The arrangements between you and us are made in accordance with, and are subject to, the laws of New South Wales. You and we irrevocably agree that all legal proceedings arising in connection with these arrangements must be prosecuted in the Courts of New South Wales.

 

1. Any person accepting the Proposal on your behalf warrants that they are duly authorised to do so.

 

1. Upon acceptance of this proposal, a Client Specification Agreement will be produced in consultation with you.  This document will outline key features, specifications and customisation costs. It is required to be signed by an authorised signatory, and returned to us, and will constitute an addendum to this proposal.

 

 Investment and Payment Terms​

1. You must pay us fees in accordance with APPENDIX A and your selections on the enclosed Table 1.1. Authorised signatory should initial against the services selected.
    

2. License Fees are due strictly monthly in advance to ensure continued access to your service. All fees are plus GST, and are due monthly in advance.
    

3. Usage Fees are payable monthly in arrears.
    

4. Any periodic fees or time and materials rates specified in this proposal may be increased by us from time to time by written notice. Unless exceptional circumstances arise which substantially increase our costs, we will only increase our fees once in each calendar year, with the increase taking effect on 31 March of the relevant year (a "Review Date"). No annual increase will apply on the first Review Date if this occurs within the first 12 months after the date of your acceptance of this proposal (but increases may apply on each subsequent Review Date)

 

APPENDIX A

 

Table 2.1 - Fee Schedule (all figures are GST exclusive)

Activity

Service Provider

Fee Payable

Initial Set up and Customisation of DriveIQ “Vroom” Product

Drive IQ Technology Pty Ltd

$24,990

Monthly Software License Fee 

Drive IQ Technology Pty Ltd

$1990*

Additional Development outside of initial scope 

Drive IQ Technology Pty Ltd

$550 per hour

Submission of Complete Lead Data to VWFS nominated system 

Drive IQ Pty Limited

$99 per submission

Submission of Incomplete Lead Data to VWFS nominated system 

Drive IQ Pty Limited

$29 per submission

*Monthly License Fees apply to each unique URL where the Vroom product is hosted.

 

Initial Setup

Initial setup refers to the proposed services outlined in Appendix B

Submission - Complete Lead Data

Complete Lead Data refers to customer data where the client has completed all of the application screens in the proposed DriveIQ solution in Appendix B. 

Submission - Incomplete Lead Data

Incomplete Lead Data refers to customer data where the client has not completed all of the application screens in the proposed DriveIQ solution in Appendix B.

Submission Process

Lead Data will be submitted either via a Human Programming Interface located either locally in Australia or via our Philippines Business Process Outsourcing Team 

APPENDIX B

 

Scope of Services

1. Development and customisation of the “Vroom” product to meet brand guidelines for Cupra Finance in accordance with the proposed design located HERE and last updated September 13th 2022. 

 

1. Integration of the “Vroom” product with the Cupra Australia website including all required code, and two way data transfer.

 

1. Develop and Implement On-Brand communications to key stakeholders based on agreed status changes provided by both DriveIQ and VWFSA.

 

1. Data transfer from DriveIQ to VWFS nominated systems; currently “Catalyst” application processing system.

 

1. Review and confirmation of DriveIQ’s data security and privacy protocols