OnDemand Subscription for Australia and New Zealand
This On-Demand Subscription Agreement
IMPORTANT: DO NOT USE THIS SERVICE UNTIL YOU HAVE READ AND AGREED TO THIS LICENSE AGREEMENT. This is an agreement between you ("Customer") and Pitney Bowes Software Pty Ltd (ABN: 93 070 492 410) ("PBS"). By clicking next to "I ACCEPT" prior to accessing the Service or by executing a Subscription Order, you are agreeing to the terms of this On-Demand Subscription Agreement (the "Agreement"). IF YOU ARE NOT WILLING TO BE BOUND BY THE AGREEMENT, click next to "I DO NOT ACCEPT" and terminate your access to the Service. The terms of this Agreement shall only apply to the extent Customer and PBS has not executed a separate On-Demand Subscription Agreement for the same Service.
1. Definitions. For the purposes of this Agreement, the following terms shall have the corresponding definitions:
"Allotment" shall mean the number of Transactions (as defined below) subscribed to by Client during a given Term;
"Available Hours of Operation" shall mean twenty-four (24) hours per day, seven (7) days per week exclusive of Scheduled Downtime, described in Section 9(b), below, and downtime arising from causes beyond the reasonable direct control of PBS, such as the interruption or failure of telecommunications or digital transmission links, hostile network attacks or a Force Majeure event, as set out in Section 14, below;
"Available Hours of Support" shall mean the hours set out in the Documentation during which time Client may obtain technical support for the Services;
"Client Data" shall mean any data, such as an address record, telephone number or user query, or other material submitted by Client to the Service or provided by Client to PBS for the performance of the Service;
"Documentation" shall mean PBS’s guide for the Service maintained on PBS’s website that describes the functionality and service level support for the Service;
"Service" shall mean the subscription services offered by PBS as more fully described in Exhibit 1;
"Subscription Order" shall mean Exhibit 1 or a subsequent document pursuant to which Client acquires the right to access the Service;
"Transaction" shall mean the submission and processing of each individual Client Data to the Service or the response to each individual Client Data oruser query submitted to the Service; and
"Term" shall mean the term of the Agreement set out in Section 3, below.
2. Grant of Rights. PBS hereby grants Client a non-exclusive, non-transferable right to access and use the Service identified in the Subscription Order during the term of the Subscription Order, subject to the terms of this Agreement and the Subscription Order. PBS reserves all rights to the Service not expressly granted by this Agreement.
3. Term of Agreement.
a) This Agreement is effective on the Effective Date and shall remain in effect for an initial Term of twelve (12) months (the "Initial Term"). Thereafter, this Agreement shall continue in effect until all Subscription Orders have expired or been terminated. PBS may terminate this Agreement in accordance with Sections 5(c) and 13, below.
b) Each Subscription Order shall be effective on the date set out therein and shall remain in effect, subject to Section 3(a), above, during the term identified in the Subscription Order. Each Subscription Order shall automatically renew for twelve (12) month terms unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the applicable term of the Subscription Order.
c) Upon termination of this Agreement or expiration of the term of a Subscription Order, Client shall immediately cease use of the Service and PBS and Client shall promptly return all Confidential Information of the other party. Sections 4, 6, 7, 8, 11, 12, 17 and 18 shall survive termination of this Agreement indefinitely or to the extent set out therein.
4. Fees; Payment Terms.
a) Client shall pay to PBS the fees set out in each Subscription Order. Except as otherwise set out in a Subscription Order, all fees are stated in and shall be paid in Australian dollars. Except as otherwise provided in a Subscription Order, PBS may change the monthly or other usage fees upon thirty (30) days notice to Client. Any increase in fees shall not be effective until the commencement of the subsequent Term Client shall also be responsible for the payment of any applicable sales, use, value added, personal property, Internet-related or other taxes and government charges imposed on the Services, except taxes relating to PBS’s net income.
b) All fees, expense reimbursements and taxes under this Agreement are due thirty (30) days from date of invoice. Client shall pay a late charge of one-and-one-half percent (1.5%) per month on any fees not paid by the due date. If Client fails to pay any invoices by the due date, PBS may suspend performance of the Services upon ten (10) days written notice to Client.
c) Client agrees to purchase access to the Service as indicated in the applicable Subscription Order, which may be used during the term of the Subscription Order (not to exceed twelve (12) calendar months). Service(s) purchased may not be carried over into subsequent terms. Upon request, PBS will issue Client a report detailing the current number of Transactions charged against Client’s Allotment, one (1) time per calendar quarter.
5. Client Responsibilities.
a) Except as otherwise provided in a Subscription Order, Client shall use the Service solely for its internal business purposes and shall not use the Service on behalf of or make the Service available to any third party. All Client Data submitted to the Service must be submitted in PBS’s submission format in accordance with the Documentation or any other format agreed to by the parties. Client shall also comply with applicable laws governing use of the Services, including, without limitation, any data protection or privacy laws.
b) Client shall identify to PBS its personnel responsible for Client’s use of the Service, including any technical, administrative and contract matters. Client shall be solely responsible for the content of all Client Data submitted to the Service and shall comply with all laws, rules and regulations relating to the use, disclosure and transmission of such Client Data.
c) Client shall not use the Service to send or store infringing, obscene, threatening or unlawful or tortuous material or disrupt other users of the Service, network services or network equipment. Disruptions include, but are not limited to, denial of service attempts, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, or use of the Service to make unauthorized entry to any other device accessible via the network or Service. In addition, Client shall not reverse engineer, decompile or disassemble the Service. The occurrence of any of the foregoing shall be deemed a material breach and PBS may immediately terminate this Agreement upon notice to Client.
6. Confidentiality.
a) During the term of this Agreement, each party may have access to certain confidential and proprietary information of the other party, (collectively, the "Confidential Information"). Confidential Information shall include, but is not limited to: (i) the Service, Documentation, Client Data; (ii) customer lists, prospect lists, existing agreements with vendors and business partners of either party, pricing proposals; (iii) marketing, sales, financial and other business information, data and plans; (iv) research and development information; (v) formulas, methods, know-how, processes, designs, new products, performance tests, proprietary computer software, bug fixes, reported problems with the Service; (vi) information concerning the service providers of either party; and (vii) any other information identified in writing as confidential or information that the receiving party knew or reasonably should have known was confidential.
b) Confidential Information shall be used solely for each party’s performance under this Agreement and the exercise of its rights hereunder and shall not be disclosed to any third party. PBS may, subject to the terms of this Agreement, disclose Client’s Confidential Information to any entity controlling, controlled by or under common control with PBS or a third party consultant or contractor assisting PBS with the Service or any of PBS’s other obligations under this Agreement. PBS shall require such third party consultant or contractor to agree in writing to confidentiality provisions at least as protective of confidential information as the provisions set out herein. Each party shall take reasonable precautions, at least as great as the precautions it takes to protect its own confidential information, to maintain the Confidential Information in strict confidence.
c) Confidential Information shall not include any information that the receiving party can establish: (i) is or subsequently becomes publicly available through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to disclosure of such information; (iii) is subsequently disclosed to receiving party by a third party who is not in breach of an obligation of confidentiality; or (iv) is independently developed by the receiving party without the use or benefit of the Confidential Information. Confidential Information may be disclosed under a court order, or a valid subpoena, to the extent counsel for the receiving party determines in its reasonable discretion that the disclosure of such Confidential Information is reasonably required and promptly notifies the disclosing party in writing of such determination and provides the disclosing party an opportunity to seek an appropriate protective order prior to disclosing such Confidential Information.
d) Either party may be irreparably damaged if the obligations under this Section are not enforced and such party may not have an adequate remedy in the event of breach by the other party of its obligations. The parties agree, therefore, that such party may be entitled, in addition to other available remedies, to an injunction restraining any actual, threatened or further breaches of the other party’s obligations under such Section or any other appropriate equitable order or decree
7. Proprietary Rights; Suggestions. Client shall retain all right, title and interest in and to all Client Data. Client grants PBS a royalty-free, worldwide, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the operation of the Service.
8. Non-infringement; Indemnification.
a) PBS shall indemnify, defend and hold Client harmless from any claim that the Service provided by PBS hereunder infringes or misappropriates any copyright, patent, trademark or trade secret. PBS shall have control of the defense and shall defend at its own expense, any claim or litigation to which this indemnity relates. Client shall notify PBS promptly of any such claim and shall reasonably cooperate with PBS, upon PBS’s request and at PBS’s cost, to defend such claim.
b) In the event of an infringement claim or if Client’s use of the Service is otherwise enjoined, PBS shall have the right to: (i) offer a non-infringing replacement Service, at no cost to Client, which replacements shall be functionally equivalent to the Service (ii) procure, at no cost to Client, the right to continue to use the Service, or (iii) direct Client to terminate use of the Service. If PBS directs Client to terminate use of the Service, Client’s remedies, in addition to the indemnification set out herein, shall be limited to a refund of any prepaid but unused fees for the Service.
c) PBS shall not indemnify Client or be liable for claims arising from the use of the Service with data, hardware or software not provided by PBS or Client’s use of the Service other than as described in this Agreement and the Documentation.
d) Client shall indemnify, defend and hold PBS harmless against any claim arising from: (i) Client’s use of the Service in a manner not permitted under this Agreement; (ii) a claim that the Client Data or any other data, files or other materials provided by Client to PBS infringes any patent, copyright, trademark or other intellectual property right or misappropriates any trade secret; (iii) a violation of any law, rule or regulation regarding the protection of personal data or the use or access to the Service; or (iv) acts of gross negligence or willful misconduct. Client shall have control of the defense and shall defend at its own expense, any claim or litigation to which this indemnity relates. PBS shall notify Client promptly of any such claim and shall reasonably cooperate with Client, upon Client’s request and at Client’s cost, to defend such claim.
9. PBS Responsibilities; Support.
a) PBS shall use best efforts to make the Services available during the Available Hours of Operation. Support for the Service shall be available during the Available Hours of Support. Support shall consist of telephone technical support to assist Client with the use of the Service and shall be provided in accordance with the Documentation. Telephone support calls may be monitored or recorded.
b) The Service may be inaccessible or inoperable during certain periods to permit PBS (or its third party hosting service provider, if applicable) to perform maintenance support services (“Scheduled Downtime”). PBS shall use reasonable commercial efforts to minimize any disruption, inaccessibility and/or inoperability of the Services in connection with the Scheduled Downtime or other disruption of Service.
10. Training. In consideration of the fees set out in a Subscription Order, Client may attend the training class identified therein. Training shall be provided, unless otherwise agreed to by the parties, as an online webinar or a prerecorded training session.
11. Warranties; Disclaimers.
a) PBS represents and warrants to Client that the Service shall materially conform to the Documentation. PBS further represents and warrants that any consulting or support shall be performed in a professional manner in accordance with generally accepted industry standards and practice. PBS does not warrant the operability or accuracy of any Client Data processed by PBS.
b) SUBJECT TO SECTION 11(D) AND EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT, PBS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. EXCEPT AS PROVIDED IN SECTION 8, PBS SHALL NOT BE LIABLE FOR ANY LOSS OF CLIENT DATA OR LOSS OR DAMAGE IN CONNECTION WITH OR ARISING OUT OF THE INTERRUPTION OR LOSS OF USE OF THE SERVICE.
c) THE SERVICE IS DEPENDENT ON ADDRESS, DEMOGRAPHIC, BUSINESS AND A VARIETY OF OTHER DATA PROVIDED BY THIRD PARTY DATA PROVIDERS. EXCEPT AS SET OUT IN SECTION 8, SECTION 11(A) AND SECTION 11(D), ACCESS AND USE OF ANY OR ALL SUCH DATA AND SOFTWARE IS PROVIDED WITHOUT ANY WARRANTIES OR GUARANTEES REGARDING ACCURACY, COMPLETENESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE.
d) Provisions of the Competition and Consumer Act 2010 (Cth) and Australian Consumer Law and other statutes in some cases either cannot be excluded, restricted or modified; or can only be restricted or modified to a limited extent. If any provisions of those types do apply, then to the extent permitted by law PBS’s liability under those provisions is limited as follows. PBS’s liability is limited, at its option, to supply the services again or the payment of the cost of having the services supplied again.
12. Limitation of Liability.
a) SUBJECT TO SECTION 12(C), EXCEPT FOR PBS’S LIABILITY UNDER SECTION 8, PBS’S TOTAL LIABILITY TO CLIENT ARISING OUT OF THIS AGREEMENT IN TORT, CONTRACT OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO PBS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF SUCH CLAIM.
b) SUBJECT TO SECTION 12(C), UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE, REGARDLESS OF THE CAUSE, FOR ANY: (I) LOSS OR DAMAGE TO PROFITS, CONTRACTS, BUSINESS, ANTICIPATED SAVINGS OR OPPORTUNITIES; OR (II) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM THIS AGREEMENT OR THE PRODUCTS OR THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c) Nothing in this Agreement shall exclude or restrict either party’s liability for: (i) death or personal injury resulting from the negligence of a party or its employees acting in the course of their employment; (ii) fraudulent misrepresentation; or (iii) any other cause of action which cannot be limited or excluded under applicable law.
13. Default. If either party is in breach of any provision of this Agreement, breaching party shall have fifteen (15) days following written notice from the non-breaching party, or an additional period of time as reasonably agreed to by the parties, to cure such breach. If Client, as breaching party, is unable to timely cure such breach, PBS’s remedies shall include, without limitation, the right to terminate this Agreement or suspend performance of the Services and Client’s rights hereunder. If PBS terminates this Agreement or any of the rights granted hereunder, Client shall remain liable for all fees due under this Agreement prior to the date of such termination and no amount previously paid to PBS shall be refunded. If PBS, as breaching party, is unable to cure such breach, Client may terminate this Agreement and any Subscription Order then in force with no further cost or liability to PBS.
14. Force Majeure. Neither party shall be liable for and each party shall be excused from, any failure to deliver or perform or for delay in delivery or performance due to causes beyond its reasonable control, including, but not limited to, governmental actions, including postal authorities, fire, shortages, civil disturbances, transportation problems, interruptions of power or communications, failure of Internet service, hosting or telecommunication service providers, natural disasters, acts of war or terrorism or acts of God.
15. Assignment. Client shall not assign any of its rights or obligations under this Agreement, including the Subscription Order without the prior written consent of PBS, which consent shall not be unreasonably withheld, delayed or denied.
16. Publicity. Neither party shall use the name of the other party in any press release or other marketing collateral without the written consent and prior approval of the other party; provided, however, PBS may include Client’s name in any client list.
17. Applicable Law and Jurisdiction. This Agreement shall be governed by the laws of the State of New South Wales, Australia, without reference to principles of conflict of laws. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia in respect of all disputes related to this Agreement.
b) If any action or proceeding (including arbitration) is brought in connection with this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees arising from such action or proceeding.
18. Audit Rights. PBS may upon reasonable notice to Client and at PBS’s sole cost and expense, audit Client’s records to determine compliance by Client with the terms and conditions of this Agreement. Client shall provide all reasonable assistance to PBS during such audit.
19. General.
a) No waiver of or failure to act regarding any breach of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or other provisions hereof.
b) Any notice alleging a breach of this Agreement shall be in writing and shall be sent by overnight courier or delivered in person to the party’s address set forth in this Agreement. Any other notice required to be provided by either party under this Agreement may be sent by United States mail or e-mail to the individual designated by Client, and to PBS at the email addresses designated in the applicable Subscription Order.
c) If any provision of this Agreement, or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall be severed herefrom and the remaining provisions of the Agreement shall remain in full force and effect.
d) If Client desires to retain PBS to provide any consulting services related to Client’s use of the Service, Client and PBS shall execute a separate consulting agreement.
20. Entire Agreement. This Agreement constitutes the entire agreement between PBS and Client, and supersedes all proposals, purchase orders, understandings, representations, prior agreements or communications relevant to Client’s use of the Service. This Agreement also supersedes any preprinted terms contained on a purchase order or similar document issued by Client subsequent to the execution of this Agreement or a Subscription Order and such preprinted terms shall have no force or effect. Client has not been induced to enter into this Agreement by any representations or promises not specifically stated herein. Neither this Agreement nor a Subscription Order shall be construed against the party that prepared such document, but instead shall be construed as if both parties prepared the Agreement or Subscription Order. This Agreement shall be signed by authorized representatives of PBS and Client.