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Parties |
PPI Digital Pty Ltd ACN 640 780 105 of 10 McKinley Avenue, Malvern, Victoria 3144 (PPI Digital) |
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The party described inItem 1 ofSchedule 1 (Customer) |
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Background |
(A) PPI Digital owns the Hardware. (B) PPI Digital has agreed to sell, and the Customer has agreed to buy, the Hardware from PPI Digital on the terms and conditions of this Agreement. (C) Idencia owns the Software. (D) PPI Digitalis authorised by Idencia to act as its agent to grant the Software Licence from Idencia to the Customeron the terms and conditions set out in this Agreement and the Idencia EULA. |
It is agreed as follows:
1 Definitions and Interpretation
In this Agreement:
ACL means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Agreement means this agreement together with all schedules.
Claims means any claim, demand, action, proceeding, litigation, liability, indebtedness, obligation, investigation or judgement, however it arises and whether it is present or future, fixed or unascertained, actual or contingent (including by way of contribution or indemnity) whether at law, in equity, under statute or otherwise (and whether for costs, damages, fees, expenses or otherwise and including any Consequential Loss).
Commencement Date means the date this Agreement is signed by the Customer.
Consequential Loss means consequential, special, indirect, incidental, punitive or exemplary damages (including loss of income, loss of profits, loss of goodwill, wasted expenditure, reliance loss, expectation loss, loss of bargain, or any loss or gain for which restitution damages may otherwise have been capable of being awarded).
Fees means the fees payable by the Customer to PPI Digital pursuant to this Agreement, as described in Item 3 of Schedule 1, and includes the Hardware Price, Services Fees and Installation Price.
Force Majeure means acts of God including lightning, earthquakes and storms, strikes, lockouts or other industrial disturbances, acts of enemies of any country, sabotage, wars, terrorism, blockades, insurrections, riots, pandemics, epidemics, landslides, floods, fires, power spikes, blackouts or other electrical anomalies, washouts, arrests and restraints, civil disturbances, explosions, breakages of or accidents to machinery or delivery facilities, the orders of any court or governmental authority or change in the laws of the country in which Software Licence is provided, any act or default of the other party or any other cause whether of the kind herein enumerated or otherwise not within the control of the person claiming force majeure and which by the exercise of due diligence the person claiming force majeure is unable to overcome.
GST means the goods and services tax imposed by the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Further Hardware means any products purchased by the Customer from PPI Digital after the date of this Agreement pursuant to clause 2.2.
Hardware means the hardware described in Item 2 of Schedule 1.
Hardware Price means the price payable by the Customer to PPI Digital for the Hardware, as specifiedin Item 3 of Schedule 1.
Idenciameans Idencia, Inc., of 461 Boston Street, Topsfield, MA 01983.
Idencia Agreement means the agreement pursuant to whichIdencia authorises PPI Digital to act as Idencia’s agent and grant the Software Licence to the Customer, being the Software Services and Tag Reseller Agreement made between PPI Digital and Idencia and dated 16 September 2018, as varied from time to time.
Idencia EULA means the End User Licence Agreement between Idencia and the Customer set out in Schedule 2.
Insolvency Event means where a party is an individual, and commits an act of bankruptcy, has a bankruptcy petition presented against it or is made bankrupt; or is a corporation, and is, or declares that it is insolvent, or is unable to pay its debts as and when they fall due or has a liquidator appointed to it.
Installation Price means the price payable by the Customer to PPI Digital for installation of the Hardwareas specified in Item 3 of Schedule 1.
Intellectual Property Rights means statutory and other proprietary rights in respect of any trade marks, patents, circuit layouts, copyrights, confidential information and all other intellectual rights as defined in Article 2 of the convention establishing the world intellectual property organisation of July 1967 in the Software and the Hardware.
Loss means a loss, damage, liability, cost, charge, expense, penalty, fine, outgoing or payment suffered, paid or incurred.
Payment Terms means the times for payment for the Fees, as set out in Item 4 of Schedule 1.
Personnel means the employees, officers and agents/contractors of a party.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended.
Services Fees means the price payable by the Customer to PPI Digital for the Software Licence and the Support Services to be provided by PPI Digital to the Customer, as specifiedin Item 3 of Schedule 1.
Software means the Software as a Service (Saas) application known as Idencia.
Software Licence means the licence granted to the Customer by Idenciato use the Software in accordance with, and for the purposes set out in, this Agreement, as defined in clause 8.1.
Support Services means the remote support services to be provided by PPI Digital in accordance with clause 9.
Term means the duration of the Software Licence, commencing on the Commencement Date and ending as determined pursuant to the Idencia EULA.
Unauthorised Event means:
(a) use, or modification of the Software or the Hardware, not authorised by PPI Digital or contrary to the requirements of this Agreement or the Software Licence the directions of PPI Digital, Idenciaor either of their authorised nominees;
(b) any breach by the Customer of the Agreement; or
(c) an event of Force Majeure.
2 Purchase of Hardware
2.1 Purchase of Hardware
In consideration of the payment of the Hardware Price by the Customer to PPI Digital, PPI Digital agrees to sell the Hardware to the Customer.
2.2 Purchase of Further Hardware
(a) The Customer may request in writing for PPI Digital to supply it with Further Hardware from time to time during the Term.
(b) PPI Digital is not required to accept any request by the Customer for Further Hardware. If PPI Digital wishes to make an offer to supply Further Hardware following the Customer’s request, PPI Digital will notify the Customer of the price payable for the Further Hardware and any other terms applicable to the supply of the Further. This information constitutes a quotation given by PPI Digital to the Customer and is valid for30 days from date of issue. If the Customer accepts PPI Digital’s quotation within that 30 day period, PPI Digital will supply the Further Hardware to PPI Digital in accordance with the provisions of this Agreement.
(c) This Agreement will apply to all orders for Further Hardware placed by the Customer with PPI Digital to the exclusion of all other terms and conditions and cannot be varied or replaced by any other conditions, including the Customer’s terms and conditions (if any) unless otherwise expressly agreed in writing by PPI Digital.
(d) The Customer acknowledges and agrees that once PPI Digital has accepted a request for Further Hardware, the Customer cannot cancel or delay delivery of an order for Hardware without PPI Digital’s prior written consent. If PPI Digital agrees to cancel an order for Further Hardware, PPI Digital will notify the Customer of any cancellation fees that may apply.
3 Ownership and Risk
3.1 Title to the Hardware and Further Hardware
Until PPI Digital receives full payment in cleared funds for the Hardware or any Further Hardware:
(a) title in the Hardware and Further Hardware remains with PPI Digital;
(b) the Customer must hold the Hardware and Further Hardware so it can be identified as the property of PPI Digital (including by maintaining PPI Digital’s labelling and packaging) and keep the Hardware and Further Hardware separate from its goods;
(c) the Customer must hold the proceeds of any sale of the Hardware and Further Hardware on trust for PPI Digital in a separate account with a bank to whom the Customer has not given security; and
(d) PPI Digital may without notice, lawfully enter any premises where it suspects the Hardware and Further Hardware are and remove them, notwithstanding that they may have been attached to other goods or property, and for this purpose the Customer irrevocably licences PPI Digital to enter such premises and indemnifies PPI Digital from and against all costs, claims, demands or actions by any party arising from such action.
3.2 PPSA
(a) For the purposes of this Agreement:
(i) terms used in clause 3.2 that are defined in the PPSA have the same meaning as in the PPSA;
(ii) this Agreement is a security agreement and PPI Digital has a purchase money security interest in all present and future Hardwareand Further Hardware supplied by PPI Digital to the Customer and the proceeds of the Hardwareand Further Hardware received by the Customer;
(iii) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer to PPI Digitalat any particular time; and
(iv) the Customer must do whatever is necessary (including executing all documents) in order to give effect to the security interest created under this Agreement (including procuring any third party to take all necessary steps as PPI Digitalmay at any time require).
(b) Where permitted by the PPSA, the Customer:
(i) waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132 135 and 157 of the PPSA; and
(ii) agrees that: (i) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on PPI Digitalwill apply only to the extent that they are mandatory; (ii) where PPI Digital has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply; and (iii) pursuant to section 275(6) of the PPSA, neither PPI Digital nor the Customer is required to disclose to an interested person information regarding PPI Digital’s security interest.
(c) The Customer must not, without the prior written consent of PPI Digital:
(i) register a financing statement or a financing change statement in relation to the Hardware and Further Hardware pursuant to the PPSA;
(ii) make a demand to alter the financing statement in relation to the Hardware and Further Hardware pursuant to section 178 of the PPSA; or
(iii) grant any security interest, lien or other right over the Hardwareand Further Hardware.
(d) PPI Digital may allocate amounts received from the Customer in any manner PPI Digital determines.
3.3 Risk and Insurance
Risk in the Hardwareand any Further Hardware and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on delivery of the Hardwareand any Further Hardware to the Customer.
4 Delivery
(a) PPI Digital will arrange for the delivery of the Hardware and any Further Hardware to the Customer to the location set out in Item 5 of Schedule 1 or as otherwise agreed between the parties.
(b) The Customer must advise PPI Digital in writing within 7 days of delivery if there is damage to the Hardware or any Further Hardware, that the wrong Hardware or any Further Hardware has been received or that the quantity of the Hardware or any Further Hardware is incorrect.
(c) If the Customer does not give written notice to PPI Digital within 7 days of delivery of the Hardware and any Further Hardware of any of the matters specified in clause 4(b), the Customer is deemed to have accepted the Hardware and any Further Hardware (as applicable).
(d) Any period or date for delivery of Hardware and any Further Hardware stated by PPI Digital is an estimate only. PPI Digital:
(i) will use its reasonable endeavours to meet any such estimated dates for delivery; and
(ii) may make a partial delivery of Hardwareand any Further Hardwareunder this Agreement,
but will not be liable for any Loss suffered by the Customer or any third party for failure to meet any estimated delivery date or making a partial delivery.
(e) A completed driver’s manifest or delivery docket whether signed by the driver or by the Customer or its employee or agent will be proof of delivery of Hardware and any Further Hardware invoiced.
5 Warranties
PPI Digital warrants in favour of the Customer that:
(a) the Hardware and any Further Hardwarewhen delivered and installed:
(i) is of merchantable quality;
(ii) is fit for the purposes specified by the Customer (if any);
(iii) is free from any defects; and
(iv) will not be in breach of any person’s Intellectual Property Rights; and
(b) PPI Digital will at all times exercise reasonable care, skill, attention and diligence and will employ techniques of a good standard in accordance with good industry practice when complying with its obligations under this Agreement.
6 Fees
6.1 Fees
(a) The Customer must pay all Fees under this Agreement in accordance with the Payment Terms.
(b) All payments must be made by direct debit to PPI Digital’s nominated account (or in such other method agreed between the parties) in accordance with the Payment Terms to the detailsset out on PPI Digitals’ invoices.
6.2 Fees for Further Hardware
The Customer must pay for any FurtherHardware in full at the time the Customer accepts PPI Digital’s quotation for the Further Hardware.
6.3 Payment Default & Termination
If the Customer defaults in payment by the due date of any amount payable to PPI Digital or otherwise breaches this Agreement or suffers an Insolvency Event, all money payable under this Agreement by the Customer to PPI Digital on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and PPI Digital may, without prejudice to any of its other rights:
(a) charge the Customer interest on any sum due at the rate of 1% over the ninety (90) days bank bill rate then charged by ANZ, calculated daily, for the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify PPI Digital against, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with an Agreement or to recover any Hardware and/or any Further Hardware;
(c) at the Customer’s cost, take all steps necessary (including legal action) to recover the Hardware and/or any Further Hardware, including entering the Customer’s premises where the Hardware and/or any Further Hardware are, or are believed to be, located, and the Customer expressly consents to PPI Digital and its Personnel entering the premises for the purposes of recovering the Hardware and/or any Further Hardware;
(d) enforce any security interests in Hardware and/or any Further Hardware held by PPI Digital; and/or
(e) cease or suspend supply of any Support Services, further Hardware and/or any Further Hardware or the provision of credit facilities to the Customer.
7 Goods and Services Tax
(a) Except where a contrary intention appears, expressions set out in this clause bear the same meaning as those expressions in the GST Act.
(b) Except where express provision is made to the contrary, and subject to this clause, any consideration payable by any party under this Agreement represents the value of any taxable supply for which payment is to be made.
(c) Subject to clause7(d) if a party makes a taxable supply in connection with this Agreement for a consideration, which, under clauses7(b), represents its value, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
(d) A party’s right to payment is subject to a valid tax invoice being delivered to the party liable for the taxable supply.
8 Software Licence
8.1 Grant of Software Licence
Subject to the Customer’s payment when due of the Fee, the Customer is granted a limited, non-exclusive, royalty-free, non-transferrable, non-assignable and revocable licence, to use (but not the right to sub-licence the use of) and access the Software for the Term and otherwise on the terms and conditions set out in the Idencia EULA(Software Licence).
8.2 Release
The Customer acknowledges and agrees that the Software Licence is granted to it by Idencia, and not by PPI Digital. To the extent permitted by Law, the Customer unconditionally and irrevocably releases, relieves and discharges PPI Digital and its Personnel from all Claims arising directly or indirectly from or in connection with the Software, the Software Licence and any act or omission by Idencia, including any breach by Idencia or its Personnel of the obligations contained in the Idencia EULA.
9 Support Services
(a) PPI Digital will provide remote support services for the Software on the terms and conditions specified in this clause 9, consisting of:
(i) telephone support;
(ii) email support; and
(iii) remote dial-in support to the Software where necessary.
(b) The Customer must promptly notify PPI Digitaland Idencia via email: support@idencia.com and tim@pizer.com.au(or otherwise as notified by PPI Digital to the Customer from time to time) of any fault or defect in or apparent need for remedial maintenance of the Software (Service Request).
(c) PPI Digital will use commercially reasonable endeavours to respond to each Service Request (or to have or Idencia respond to each Service Request)in accordance with the Service Level Agreement set out in Schedule 3.
(d) PPI Digital’s obligations to provide support services under this clause 9 do not includeany support or maintenance of any Hardware, any other software owned or operated by the Customer, or resolution of any faults that result from an Unauthorised Event.
(e) If any fault in the Software requires assistance from Idencia, PPI Digital will work with Idencia to resolve the fault as expeditiously as possible.
(f) PPI Digital’s obligations to provide Support Services are subject to the Customer complying with the terms of the Software Licence and Idencia EULA.
(g) The Customer unconditionally and irrevocably acknowledges and agrees that PPI Digital will not be liable for (and is not required to provide Support Services for) any fault in any of the Software that:
(i) arises from any act or omission of the Idencia, the Customer or any other third party; or
(ii) any Unauthorised Event.
10 Customer’s Obligations
During the Term, the Customer unconditionally and irrevocably acknowledges and agrees to:
(a) maintain the Hardware in reasonably clean condition and good working order and ensure it is charged in accordance with the instructions provided with the Hardware and otherwise regularly;
(b) provide PPI Digital Personnel with reasonable access to all areasat its premises and the Hardware at all reasonable times and render all necessary assistance as is reasonably requested to enable PPI Digital to provide the Support Services; and
(c) enter into any arrangements, including with third parties, and do all things and sign all documents reasonably required to be done or signed to give effect to this Agreement and to enable this Agreement to be performed by the parties.
11 Termination
11.1 Termination if Idencia Agreement expires or is terminated
This Agreement and the Software Licence will terminate with immediate effect:
(a) on the expiry or termination of the Software Licence; and
(b) if the Idencia Agreement is terminated, expires or ends for any reason.
11.2 Termination for Insolvency and Breach
(a) Either party may terminate an Agreement:
(i) immediately on written notice to the other party where either party has a liquidator appointed to it; or
(ii) on 7 days written notice where the other party is breach of its obligations under this Agreement and such breach is not remedied within 14 days of written notice that specifies the breach.
(b) PPI Digital may terminate this Agreement on 7 days written notice to the Customer where the Customer is breach of its obligations under the Software Licence and such breach is not remedied within 14 days of written notice that specifies the breach.
11.3 Consequences of termination
(a) Upon expiry or early termination of this this Agreement and the Software Licence for any reason:
(i) the Customer must with effect from the date of termination:
(A) cease all use of the Software and the Intellectual Property Rights; and
(B) pay PPI Digital any Fees due and payable up to the date of termination or expiry;
(ii) PPI Digital:
(A) remove the Customer’s access to the Software; and
(B) is discharged from the performance of any further obligations under this Agreement from the effective date of termination.
(b) The Customer must not return, or attempt to return, the Hardware for any reason as a result of termination of this Agreement.
(c) Terminationof this Agreement does not affect the rights of a party which accrued prior to the effective date of termination.
12 Liability of PPI Digital
12.1 Statutory limitation of liability
To the extent permitted by law, all express or implied guarantees, terms, conditions and warranties in respect of the Hardware and the services provided under this Agreement are excluded. If any statute implies guarantees, terms, conditions and warrantiesinto this Agreement which cannot be excluded (including guarantees given under Division 1 of Part 3-2 of the ACL), such terms will apply to this Agreement, however, the liability of PPI Digital to the Customer (if the Customer is a Consumer or acquires the Hardware and the services provided under this Agreement as a Consumer (as that term is defined in the ACL)) for any breach of a consumer guarantee, warranty or condition imposed by the ACL is limited to such one or more of the following as PPI Digital decides:
(a) if the breach relates to goods:
(i) the replacement of those goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i) supplying those services again; or
(ii) the payment of the cost of having the services supplied again.
12.2 Limitation of liability – generally
To the extent permitted by law:
(a) PPI Digital’s maximum total aggregate liability arising out of or in connection with its performance of its obligations pursuant to this Agreement (including the supply or use of any Hardware or services)will:
(i) be reduced proportionally to the extent the Customer, the Customer’s Personnel or a third party contributed to the relevant liability; and
(ii) under no circumstances exceed the amount of the Fees actually paid by the Customer to PPI Digital under this Agreement; and
(b) PPI Digital will have no liability to the Customer for any Consequential Loss incurred in connection with this Agreement, the use of the Hardware or the Software, however caused, and regardless of whether a party has been advised of the possibility of such loss.
12.3 Customer Indemnities
The Customer indemnifies and will keep PPI Digital indemnified, against any Claim or Loss suffered or incurred by PPI Digital that is a direct result of:
(a) any fraud of the Customer or any of its Personnel;
(b) a material breach of this Agreement by the Customer or any of its Personnel;
(c) any liability of PPI Digital to Idencia caused by the Customer, including as a result of the Customer’s default under this Agreement or the Software Licence;and
(d) personal property, death or loss or damage to real or personal property caused by the Customer or any of its Personnel under or in connection with this Agreement,
except to the extent such Claim or Loss is caused or contributed to by PPI Digital or any of its Personnel, in which case the Customer’s liability will be reduced proportionately.
13 Force Majeure
Without limiting any other provision of this Agreement, PPI Digital will not be liable for any failure to perform or delay in performance of its obligations under this Agreement to the extent such failure or delay is caused by circumstances beyond its reasonable control. Those circumstances may include:
(a) an event of Force Majeure; or
(b) any act or thing done, or omission, by Idencia in connection with its obligations to:
(i) PPI Digital under the Idencia Agreement; or
(ii) the Customer under the EULA.
which has the effect of precluding PPI Digital from performing or causing the delayin the performance of its obligations under this Agreement.
If a dispute arises in relation to this Agreement, including any dispute as to the breach of, termination of or the rights or obligations of a party under this Agreement or as to any claim in tort, in equity or under any law, the parties must comply with this clause 14.
A party claiming that a dispute has arisen under or in relation to this Agreement must give written notice to the other party specifying the nature of the dispute (Dispute Notice).
If a party gives the other party a Dispute Notice, the parties must use their best endeavours to reach agreement as to the matters in dispute within fourteen (14) days of the service of such Dispute Notice.
If the matter or matters in dispute are not resolved within fourteen (14) days of receipt of a Dispute Notice, such matter or matters must be dealt with in accordance with clause 14.5.
(a) The parties must endeavour in good faith to resolve the dispute expeditiously using mediation techniques agreed by them.
(b) If the parties do not agree within fourteen (14) days of receipt of the Dispute Notice (or a further period as agreed in writing by them) as to:
(i) the mediation technique and procedure to be adopted;
(ii) the timetable for all steps in the mediation procedures; and
(iii) the selection and compensation of the independent person required for the mediation,
the parties must mediate the dispute according to the mediation rules of the Resolution Institute and the Chair of the Resolution Institute or the Chair’s nominee will select the mediator and determine the mediator’s remuneration, to be paid by the disputing party in equal proportions.
(c) The place of mediation of the dispute will be, in the absence of agreement to the contrary, Melbourne, Australia.
Unless otherwise agreed, the mediation process will terminate within fourteen (14) days of the commencement of the mediation. Once the mediation is terminated, either party will be entitled to commence court proceedings in relation to the matter or matters in dispute.
14.7 Injunctive or interim relief
Nothing in this clause 14 prevents a party seeking urgent injunctive or similar interim relief from a court or prevents PPI Digital issuing proceedings for outstanding Fees.
15 General
(a) Any notice, demand or other communication (Notice) to be given or required to be made pursuant to this Agreement is to be in writing and is to be given by express post, email or hand to the parties’ details set out in Item 6 of Schedule 1.
(b) A Notice is deemed to be given or served:
(i) where sent by express post, on the third business day following the day on which it was posted;
(ii) where sent by email, when the email enters the recipient’s mail server;
(iii) where delivered by hand during normal business hours on a business day on that day, or in any other case of hand delivery on the business day following the day of delivery.
(c) Notices or directions given verbally and not in writing shall not constitute valid notices.
The parties acknowledge and agree that theAgreement constitutes the entire agreement between the parties with respect to the subject matter hereof and except as expressly incorporated herein by reference, schedule or annexure, all antecedent representations negotiations and agreements are hereby superseded.
If a provision of this Agreementis void or voidable by either party or illegal or unenforceable, but would not be if it were read down and it is capable of being read down, it shall be read down accordingly. If, notwithstanding such reading down any provision is still void, voidable, illegal or unenforceable:
(a) if the provision would not be void, voidable, illegal or unenforceable if a word or words were omitted, such word or words are hereby severed; and
(b) in any other case the whole of any such provision is hereby severed,
and the remainder of this Agreementretains full force and effect.
Any delay or failure on the part of either party in exercising or relying upon any of its rights herein contained shall not constitute a waiver or abandonment of such right, provided the same is thereafter capable of being exercised or relied upon.
The rights and obligations of PPI Digital under this Agreement(including the right conferred by this sub-clause) may be assigned by PPI Digital to any body corporate wholly owned or controlled by PPI Digital or which acquires the assets of PPI Digital and the Customer hereby consents to any such assignment. The Customer may not assign this Agreement without the consent of PPI Digital.
15.6 Subcontracting
The Customer acknowledges and agrees that PPI Digital may satisfy any obligation that it has under this Agreement by engaging and/or sub-contracting a third party to perform the relevant obligation or obligations. If PPI Digital does so, PPI Digital acknowledges that it remains the party responsible for satisfying the obligation.
This Agreementmay be executed in any number of counterparts, all of which shall be deemed to constitute the one instrument. A party is entitled to treat, and it shall be deemed, that a document sent to it by email in portable document format (.pdf) by another party and executed by that other party is an original executed document.
Unless otherwise permitted pursuant to this Agreement, no part of this Agreementmay be amended or modified unless reduced to writing (including by email) making specific reference to the applicable part of the Agreementand either signed by the parties or their authorised representatives or confirmed by an exchange of emails between the parties’ authorised representatives.
Each party is responsible for its own costs in relation to the preparation and execution of this Agreement.
Except in respect of the Software Licence as provided for in the Idencia EULA, the law of Victoria governs this Agreementand the parties submit to the exclusive jurisdiction of the courts of or in the State of Victoria, and the courts of appeal therefrom.
Schedule 1 Details
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Item 1 |
Customer: |
Address: |
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Item 2 |
Hardware |
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Item 3 |
Fees: |
As set out in quotation number [xx] attached as Schedule 4. |
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Item 4 |
Payment Terms |
Hardware: [on order placement] Services Fees:[on order placement] Installation Fees: [on order placement] |
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Item 5 |
Place for delivery of Hardware |
[Address] |
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Item 6 |
Address for Notices |
If to PPI Digital: Attention: Tim Pizer Address: 10 McKinley Avenue, Malvern,Victoria 3144 Email: tim@pizer.com.au If to the Customer: Attention: Address: Email: |
Schedule 2 Idencia End User Licence Agreement
IDENCIA END USER LICENSE AGREEMENT
IMPORTANT – PLEASE READ CAREFULLY: DATE: ___________
This End User License Agreement (“Agreement”) constitutes a valid and binding agreement between Idencia, Inc., (together with its affiliates, successors and assigns “IDENCIA”) and you (“you,” or “your”) for the use of the IDENCIA Software, as the term is defined below. You must enter into this agreement in order to install and use IDENCIA Software.
BY USING THE IDENCIA SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE IDENCIA SOFTWARE.
THIS SOFTWARE AS A SERVICE AGREEMENT (the “Agreement”) is made as of the date first above written (the “Effective Date”) by and between Idencia, Inc., a Massachusetts corporation (“IDENCIA”) and the other party identified on the signature page below (the “Customer”). Customer and IDENCIA are individually hereinafter referred to as a “Party” and collectively as the “Parties”.
- Background; Standard Terms:
IDENCIA has developed the Service (as identified below) and Customer desires to use the Service in accordance with the terms and conditions of this Agreement. The basic service terms set forth in Section 2 below (the “Service Terms”) are in addition to the terms attached hereto as Exhibit A (the “Standard Terms and Conditions”), which collectively comprise the Agreement. Unless otherwise provided in the Standard Terms and Conditions, all capitalized terms set forth therein shall have the meaning given to them in the Service Terms. If any provision set forth in the Service Terms conflicts with any provision of the Standard Terms and Conditions, the provisions in the Service Terms will control.
- Service Terms
The following terms shall be used where referenced in the applicable provisions of the Standard Terms and Conditions:
Fee: A non-refundable amount of $[_____] (which will be subject to successive increases) paid by Customer upon execution of this Agreement and thereafter prior to the renewal or extension of the Term.
Notice Address:
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IDENCIA: |
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CUSTOMER: |
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Idencia, Inc. |
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Attention: Jeffrey M. Pollock |
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Attention: |
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Email: jpollock@idencia.com |
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Email: |
Service: Customer’s SaaS application known as: Idencia
Term: A period (the “Term”) that will commence on the Effective Date and continue for a term of twelve (12) months, unless terminated earlier as set forth in the Standard Terms and Conditions. The Term will renew for successive periods of twelve (12) months each, unless a Party provides written notice, prior to any such renewal, of its decision to not renew the Term.
IN WITNESS WHEREOF, this Agreement is entered into and effective as of the Effective Date.
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IDENCIA, INC. By: Name: Title:
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CUSTOMER [_____________] By: Name: Title:
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STANDARD TERMS AND CONDITIONS
- SERVICES
1.1 Performance. Subject to the terms and conditions of this Agreement, IDENCIA shall provide the Service to Customer during the Term, and Customer may access and use the Service for the sole purpose of managing inventory, production and quality control for its manufactured concrete or steel fabricator business. Additionally, Customer may permit its employees and contractors (each, a “User”) to access and use the Service solely for the benefit of Customer’s internal business purposes, provided, however, that Customer shall be responsible for ensuring that access to and use of the Service by Users is in accordance with the terms and conditions of this Agreement.
1.2 Service Levels. IDENCIA shall perform the Services in accordance with IDENCIA’s then current Service Level Agreement.
1.3 Proprietary Rights. Customer acknowledges IDENCIA’s proprietary rights in the Service and associated documentation and shall protect the proprietary nature of the Service and associated documentation. IDENCIA retains all right, title and interest in and to the Service and associated documentation. If Customer suggests any new features, functionality or performance for the Service that IDENCIA subsequently incorporates into the Service (or any other software or service), Customer hereby acknowledges that (i) IDENCIA shall own, and has all rights to use, such suggestions and the Service (or any other service) incorporating such new features, functionality, or performance shall be the sole and exclusive property of IDENCIA; and (ii) all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon IDENCIA. Customer shall not disassemble, decompile, reverse engineer, modify, transcribe, store, translate, sell, lease, or otherwise transfer or distribute the Service or its associated documentation, in whole or in part, without prior authorization in writing from IDENCIA. In the event of any breach of this Section 1.3, Customer agrees that IDENCIA will suffer irreparable harm and shall therefore be entitled to obtain injunctive relief against Customer.
- IDENCIA OBLIGATIONS
2.1 Security. Customer and Users will comply with all IDENCIA rules and regulations and security restrictions in connection with use of the Service. Each User will be assigned a unique User identification name and password for access to and use of the Service (“User ID”). Customer shall be solely responsible for ensuring the security and confidentiality of all User IDs. Customer acknowledges that it will be fully responsible for all liabilities incurred through use of any User ID and that any transactions under a User ID will be deemed to have been performed by Customer. Use of any User ID other than as provided in this Agreement shall be considered a breach of this Agreement by Customer.
2.2 Customer Information. Customer grants to IDENCIA a non-exclusive license to copy, use and display any and all personally identifiable data, information or communications sent, or entered by Customer and/or Users while accessing the Service (“Customer Information”) solely to the extent necessary for IDENCIA to provide the Service to Customer. Customer acknowledges that IDENCIA exercises no control whatsoever over the content of the Customer Information and it is the sole responsibility of Customer, at its own expense, to provide the information, and to ensure that the information Customer and Users transmit or receive complies with all applicable laws and regulations now in place or enacted in the future. Customer shall not and shall not knowingly permit Users to, provide Customer Information that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; (b) is defamatory, harassing, abusive, harmful to minors, obscene or pornographic; (c) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information; or (d) is materially false, misleading or inaccurate. IDENCIA may take whatever remedial action it determines in its sole discretion is appropriate if Customer Information violates these restrictions, including, but not limited to, immediate suspension or cancellation of the Service. IDENCIA is under no obligation, however, to review Customer Information for accuracy, potential liability or for any other reason.
2.3 Data Retention. Customer agrees that IDENCIA’s obligation to keep or maintain any Customer Information obtained in the course of performance of the Service shall not extend beyond the expiration of thirty (30) days following the termination of this Agreement. IDENCIA will provide a copy of Customer Information in the hosted format upon termination or expiration of the Agreement (at Customer’s expense), provided that Customer requests such copy, in writing, within thirty (30) days following the termination of this Agreement.
2.4 Data Collection. IDENCIA shall have the right to utilize data capture, syndication and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally identifiable data or information (including, without limitation, Customer Information) resulting from Customer’s and User’s access and use of the Service (“Blind Data”). To the extent that any Blind Data is collected by IDENCIA, such Blind Data shall be solely owned by IDENCIA and may be used by IDENCIA for any lawful business purpose without a duty of accounting to Customer, provided that the Blind Data is used only in an aggregated form, without specifically identifying the source of the Blind Data. Without assuming any obligations or liabilities of Customer, IDENCIA agrees to use commercially reasonable efforts to comply with the applicable U.S. laws and regulations respecting the dissemination and use such Blind Data.
2.5 Subcontracting. Customer acknowledges that IDENCIA shall have the right to subcontract performance of its hosting services, in which event the service terms provided by any third-party hosting provider (including, without limitation, any service levels that are stricter than the service levels offered by Customer) will be incorporated herein by reference.
3. CUSTOMER OBLIGATIONS
3.1 Hardware. Customer shall procure, install and maintain all equipment, Internet connections and other hardware (other than the hardware constituting the support center maintained at IDENCIA’s facilities) necessary for Customer and Users to connect to and access the Service.
3.2 Conduct. Customer agrees:
(i) not to copy, decompile, reverse engineer, disassemble, attempt to derive the source code, modify or create derivative works of the Service or any Service related documentation;
(ii) not to upload or distribute in any way files that contain viruses, trojans, worms, time bombs, logic bombs, corrupted files, or any other similar software or programs that may damage the operation of the Service or another’s computer;
(iii) not to use the Service for illegal purposes;
(iv) not to interfere or disrupt networks connected to the Service;
(v) not to upload, post, promote or transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature;
(vi) not to upload amounts of data and/or materials in excess of any limits specified by IDENCIA from time to time and not to create large numbers of accounts or otherwise transmit large amounts of data so as to clog the Service or comprise a denial of service attack or otherwise so as to have a detrimental effect on the Services; and
(vii) not to upload, promote, transmit or post any material that encourages conduct that could constitute a criminal offence or give rise to civil liability.
IDENCIA may take whatever remedial action it determines in its sole discretion is appropriate if Customer violates these restrIdenciaions, including, but not limited to, immediate suspension or cancellation of the Service.
3.3 Additional Costs. Customer will reimburse IDENCIA for actual travel and living expenses that IDENCIA incurs in providing Customer with any service outside the scope of the agreed upon Services.
- FEES AND PAYMENTS
4.1 Payments. All payments due to IDENCIA hereunder shall be made in United States Dollars. All payments not made when due shall be subject to late charges of the lesser of: (i) one and one-half percent (1.5%) per month of the overdue amount; or (ii) the maximum amount permitted under applicable law. Customer shall reimburse IDENCIA for all fees and expenses, including reasonable attorneys’ fees, IDENCIA incurs to collect, or attempt to collect, amounts owed by Customer to IDENCIA.
4.2 Taxes. Customer shall pay all sales, use and excise taxes relating to, or under, this Agreement, exclusive of taxes based on or measured by IDENCIA’s net income, unless Customer is exempt from the payment of such taxes and timely provides IDENCIA with evidence of such exemption.
- DISCLAIMER OF WARRANTIES
THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. IDENCIA MAKES NO REPRESENTATION OR WARRANTY (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ACCURACY MERCHANTABILITY, OR NONINFRINGEMENT. IDENCIA DOES NOT WARRANT THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
- INFRINGEMENT AND INDEMNIFICATION
6.1 Infringement Indemnity. IDENCIA will defend and indemnify Customer against a third-party claim that the Service used by Customer in accordance with this Agreement infringes or misappropriates any third-party intellectual property rights in the United States, provided that: (a) Customer agrees to notify IDENCIA promptly in writing of Customer’s knowledge of a claim; (b) IDENCIA has sole control of the defense and all related settlement negotiations; and (c) Customer shall provide IDENCIA with the assistance, information, and authority reasonably necessary to perform such defense. IDENCIA shall have no liability for any claim of infringement resulting from: (i) Customer’s alteration or modifications of the Service without IDENCIA’s prior written approval (ii) Customer Information; or (iii) the combination or use of the Service with software, data, or material not furnished by IDENCIA.
6.2 Mitigation/Termination. In the event that some or all of the Service is held or is reasonably believed by IDENCIA to infringe the rights of a third party, IDENCIA shall have the option, at its expense, to: (i) modify the Service to make it non-infringing; or (ii) obtain a license that permits Customer to continue using the Service. If neither of such options can be exercised by IDENCIA on a commercially reasonable basis and the infringing materials materially affect the Service or the ability of IDENCIA to meet its obligations under this Agreement, then IDENCIA may terminate this Agreement and Customer shall be entitled to recover from IDENCIA a portion of the Fee paid to IDENCIA prorated over the remainder of the Term.
6.3 Exclusive Remedy. This Section 6 states IDENCIA’s entire liability and exclusive remedy for infringement of third-party intellectual property rights.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL IDENCIA BE LIABLE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL IDENCIA’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CUSTOMER TO IDENCIA IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO A CLAIM ARISING HEREUNDER.
- TERM; TERMINATION
8.1 Termination by IDENCIA for Material Breach. Either Party may terminate this Agreement if the other Party is in material breach hereunder and has not cured the breach within thirty (30) days after written notice specifying the breach.
8.2 Automatic Termination. This Agreement, and all rights and obligations hereunder, shall automatically terminate in the event that Customer breaches any of its obligations under Sections 1.3 or 3.2.
8.3 Termination upon Insolvency. This Agreement may be terminated by a Party immediately and without notice in the event the other Party: (i) admits in writing its inability to pay its debts generally as they become due, (ii) makes a general assignment for the benefit of creditors, (iii) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it, (iv) is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent, (v) seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization, or (vi) ceases to do business itself or through a successor.
8.4 Effect of Termination. Upon termination of the Agreement for any reason, Customer’s right to use the Service shall immediately cease. Termination of this Agreement shall not relieve either party of any obligation accrued prior to the termination date. Termination shall not effect the obligations of the Parties under Sections 1.3, 2.3, 2.4, 4, 7, 8.4, 9 and 10.
- CONFIDENTIAL INFORMATION
9.1 Definition. “Confidential Information” means the Service, its associated documentation, IDENCIA’s pricing for the Service, and other information disclosed by IDENCIA under this Agreement that is labeled or otherwise designated as confidential or that by its nature would reasonably be expected to be kept confidential.
9.2 Exclusions. Notwithstanding the previous paragraph, IDENCIA’s Confidential Information shall not include information that (i) is or becomes publicly available through no act or omission of Customer; or (ii) was in Customer’s lawful possession prior to the disclosure and had not been obtained by Customer either directly or indirectly from IDENCIA; or (iii) is lawfully disclosed to Customer by a third party not bound by a duty of non-disclosure; or (d) is independently developed by Customer without access to or use of the Confidential Information.
9.3 Nondisclosure. Customer agrees to hold the Confidential Information in confidence. Customer agrees not to make the Confidential Information available in any form to any third party or to use the Confidential Information for any purpose other than performing its obligations or enjoying its rights under this Agreement. Customer agrees to use the same degree of care that it uses to protect its own confidential information of a similar nature and value, but in no event less than a reasonable standard of care, to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement. Customer represents that it has, with each of its employees who may have access to any Confidential Information, an appropriate agreement sufficient to enable it to comply with all of the terms of this Section 9.
9.4 Required Disclosure. Notwithstanding the foregoing, Customer may disclose the Confidential Information to the extent that such disclosure is required by law or court order, provided, however, that Customer provides to IDENCIA prior
written notice of such disclosure and reasonable assistance in obtaining an order protecting the Confidential Information from public disclosure.
9.5 Termination/Expiration. After termination or expiration of this Agreement, Customer shall return to IDENCIA any Confidential Information received during the term of this Agreement.
- MISCELLANEOUS
10.1 Relationship Between The Parties.This Agreement shall not be construed as creating any agency, partnership, joint venture, or other similar legal relationship between the Parties; nor will either Party hold itself out as an agent, partner, or joint venture party of the other party.
10.2. Compliance With Law. Each Party shall comply with all applicable laws and regulations of governmental bodies or agencies in its performance under this Agreement.
10.3. Notice.Whenever notice is required to be given under this Agreement, such notice shall be in writing and shall be delivered personally or by email or facsimile (and promptly confirmed by personal delivery, first class mail, courier or internationally-recognized delivery service), and addressed to the other Party at the Notice Address of such Party, or to such other address as the addressee shall have last furnished in writing to addressor.
10.4. Waiver.No waiver shall be implied from conduct or failure to enforce rights. No waiver shall be effective unless in a writing signed by both parties.
10.5. Severability. If any provision of this Agreement is held to be invalid, void or unenforceable, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect.
10.6. Assignment.Customer may not assign or delegate any of its rights, interest or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of IDENCIA. The sale of a controlling interest in Customer through a single transaction or a series of transactions shall be deemed an assignment hereunder for which IDENCIA’s consent is required. IDENCIA shall be entitled to assign and delegate this Agreement to successors in the event of a merger, acquisition or other change in control. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
10.7. Governing Law.This Agreement and all claims related to it, its execution or the performance of the parties under it, shall be construed and governed in all respects according to the laws of The Commonwealth of Massachusetts, without regard to the conflict of law provisions thereof. Any action or proceeding arising out of or relating to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction located within Essex County in The Commonwealth of Massachusetts.
10.8. Force Majeure. IDENCIA shall not be in default or otherwise liable for any delay in or failure of its performance
under this Agreement where such delay or failure arises by reason of any Act of God, or any government or any governmental body, war, insurrection, acts of terrorism, the elements, strikes or labor disputes, or other similar or dissimilar cause beyond the control of such party. Customer acknowledges that the performance of certain of IDENCIA’s obligations may require the cooperation of third parties designated by Customer and outside the control of IDENCIA. In the event such third parties fail to cooperate with IDENCIA in a manner that reasonably permits IDENCIA to perform its obligations, such failures shall be consider as causes beyond the control of the IDENCIA for the purposes of this Section and shall not be the basis for a determination that IDENCIA is in breach of any of its obligations under this Agreement or is otherwise liable. Either Party may terminate at its option this Agreement if any such situation continues for thirty (30) days and prevents the continued performance of this Agreement by the other Party.
10.9 Entire Agreement.This Agreement shall constitute the complete agreement between the Parties and supersedes all previous agreements or representations, written or oral, with respect to the subject matter hereof. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. It is expressly agreed that any terms and conditions of any purchase order or similar instrument of Customer shall be superseded by the terms and conditions of this Agreement to the extent that such terms may be in conflIdencia.
10.10. Counterparts; Facsimile Signatures. This Agreement may be executed in counterparts which, when taken together, shall constitute one and the same instrument. Facsimile and electronic signatures (including, without limitation, scanned signatures included as an attachment to an email) shall have the same effect as original signatures.
Schedule 3 Service Level Agreement
This Service Level Agreement sets forth the operational standards, support, and response standards provided by PPI Digital to the Customer. PPI Digital may modify this Service Level Agreement upon twenty (20) days’ prior written notice.
A1. OPERATIONAL STANDARDS; MAINTENANCE SCHEDuLE
A1.1 Availability. Except for the scheduled maintenance periods set forth in Section A1.2, the Service is available for online processing 24 hours a day, 7 days a week.
A1.2 Scheduled Maintenance. The Customer acknowledges that If necessary, IDENCIA may take the Service offline for maintenance during the following times, and PPI Digital will not be able to provide Support Services during these times:
- Major Scheduled Maintenance: Saturday 8:00 am to Sunday 8:00 am Eastern Time
- Minor Scheduled Maintenance: every day from 12:00 am to 3:00 am Eastern Time
A1.3 Unscheduled Maintenance. If the Service becomes unavailable and requires unscheduled maintenance, IDENCIA shall attempt to post a notice of the unscheduled maintenance on the web pages available to Customer.
A2. SUPPORT
PPI Digital support will be available Monday – Friday 8:00 am to 5:00 pm AEST, excluding public holidays.
A3. RESPONSE STANDARDS
A3.1 Support Response Times. PPI Digital will respond to requests for support as provided below:
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Severity Level |
Initial Response Time |
Support Obligation |
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Severity 1 |
Within 4 hours (during business hours) of initial notification by Customer to initiate problem determination |
Continuous good faith efforts until the problem is resolved or a reasonable work-around is achieved |
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Severity 2 |
Within 1 business day of initial notification by Customer to initiate problem determination |
Reasonable efforts to correct the reported error |
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Severity 3 |
Within 3 business days of initial notification by Customer to initiate problem determination |
Reasonable efforts to correct the reported error as appropriate |
A3.2 Limitations. Except as set forth in this Agreement, the support services do not include: (i) visits to Customer’s site or (ii) any services for any third-party equipment or software. In addition, PPI Digital has no obligation to correct any error resulting from a failure by Customer to implement any third-party software modification or upgrade recommended by PPI Digital.
A3.3 Uptime. IDENCIA will maintain the availability of the Software at least 99% of time during each month (as determined on a monthly average), excluding (i) IDENCIA’s scheduled maintenance periods set forth in Section A1.2 of this Service Level Agreement, (ii) any Service unavailability because of Customer’s software, hardware, or network connectivity, and (iii) any Internet outages.
Schedule 4 Quotation
Signing Page
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Dated: |
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EXECUTED as an agreement
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EXECUTED by pizer performance improvement pty ltd ACN 625 946 107 in accordance with section 127(1) of the Corporations Act2001 (Cth):
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Signature of sole director |
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Timothy Pizer |
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Name of sole director |
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EXECUTED by [COMPANY NAME]in accordance with section 127(1) of the Corporations Act 2001 (Cth): |
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Signature of sole director and secretary |
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Name of sole director and secretary (please print) |
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