THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF OUR SERVICES AS MADE AVAILABLE ON THE ZUORA PLATFORM.
SUBJECT TO EXCEPTIONS, THE PRIVACY ACT 1998 (CTH) (PRIVACY ACT) AND THE AUSTRALIAN PRIVACY PRINCIPLES (APPS) GOVERN THE HANDLING OF PERSONAL INFORMATION IN AUSTRALIA. IF THE PERSONAL INFORMATION RELATES TO PERSONS IN THE EUROPEAN UNION, THE GDPR MAY ALSO APPLY. THIS DOCUMENT SETS OUT HOW WE WILL MANAGE YOUR PERSONAL INFORMATION.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY SIGNING AND EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" REFER TO THAT ENTITY. IF YOU DO NOT HAVE THAT AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS AGREEMENT GOVERNS YOUR USE OF THE ZUORA PLATFORM (WHICH IS THE SUBJECT OF A SEPARATE AGREEMENT BETWEEN YOU AND ZUORA. TO THE EXTENT PERMITTED BY LAW, WE DO NOT ACCEPT ANY LIABILITY IN CONNECTION WITH THE USE OR CONTENT OF ANY ZUORA OR OTHER THIRD-PARTY PRODUCTS AND SERVICES.
This Agreement is effective between You and Us as of the date of You accepting this Agreement.
“Channel” means communication infrastructure including but not limited to electronic mail, short message service and social post.
”Confidential Information” of a party means any information: (a) relating to the business and affairs of that party; (b) relating to the customers, clients, employees, sub-contractors or other persons doing business with that party; (c) which is by its nature confidential; (d) which is designated as confidential by that party; or (e) which the other party knows or ought to know, is confidential, and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party, and in Our case, includes the Services and these terms.
"Digital Services" means the digital services that we agree to provide in an agreed Order Form.
"Fair Use Policy" means the Fair Use Policy set out in Annex B (which we may amend from time to time provided any change is not materially detrimental to You).
"Force Majeure" means any occurrence or omission outside a party’s reasonable control, as a direct or indirect result of which the party relying on the event is prevented from or delayed in performing its obligations under these terms (other than a payment obligation), and includes (a) law taking effect after the date of these terms; (b) disruption or unavailability of the internet; and (c) failure of a third party service provider to Us to provide services, including hosting services.
“GDPR” means the European Union General Data Protection Regulation.
"Intellectual Property Rights" means all industrial and intellectual property rights throughout the world, whether registered, unregistered or unregistrable, including all business names, copyright, patents, trademarks, service marks, trade names, designs, confidential information, trade secrets, know how, database rights, circuit layout rights, systems and domain names.
"Material" means software, firmware, tools, documentation, reports, data, diagrams, procedures, plans and other materials.
"Order Form" means the document for placing orders that has been agreed and entered into between You and Us. Order Forms are incorporated into this Agreement by reference.
"Partner" means an entity or individual that we use to deliver all or part of an order under this Agreement on our behalf.
"Personal Information has the meaning given to that term by the Privacy Act and, if the GDPR applies to that information, the meaning given to “personal data” in the GDPR.
"Privacy Act" means the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time.
"Privacy Laws" means: (a) the Privacy Act; (b) the Australian Privacy Principles (or APPs) contained in schedule 1 Privacy Act; (c) where applicable the GDPR and (d) all other applicable laws, regulations, registered privacy codes, privacy policies and contractual terms in respect of the processing of Personal Information.
"Professional Services" means the professional services delivered by Us or one of our Partners distinguished by a Professional Services Order Form, statement of work or scoping document.
"Services" means the Digital Services, Professional Services and any other the services we might provide to You.
"Service Term" has the meaning given in clause 11.2.
"We," "Us" or "Our" means the Pendula company Zipline Cloud Pty Ltd T/A Pendula Solutions.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement.
"Your Data" means all electronic data or information submitted by You using the Service or to Us or interpreted by the various products comprising the Service from your underlying data store.
2.1. Platform Limitations. Services may be subject to other limitations, such as limits on data storage space or on the number of calls You are permitted to make against Our application programming interface. The Services provide real-time information to enable You to monitor Your compliance with these limitations.
2.2. Third-Party API and functionality licensing. By entering into this Agreement You are acknowledging that Pendula can leverage API services from third-parties to enable facilities like short message service etc. If you wish to connect and use your own gateway privately with your own supplier you may – but integration must be validated and handled through a separate Professional Services agreement. Pendula is not liable for the integrity, accuracy, timeliness and security for any of the services provided by third-party API and functionality vendors which are used in providing our services.
3.1 Digital Services. Details of the Digital Services that we provide will be set out in an agreed Order Form. Use of the Digital Services is subject to our Fair Use Policy.
3.2 Access and inspection. On Our request, You must allow Us or a third party nominated by Us to access during business hours Your records and any premises, systems, equipment, personnel and information relating to this Agreement in order to audit Your compliance with this Agreement.
4.1. Fees. You shall pay all fees specified in all Order Forms. Except as otherwise specified in this Agreement or in an Order Form, fees are based on Digital Services purchased. Subject to clause 8.3, payment obligations are non-cancellable and fees paid are non-refundable unless We commit a material breach of this Agreement.
4.2. Invoicing and Payment. If You provide credit card information to Us, You authorise Us to charge such credit card for all Digital Services. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 14 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
4.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, we can charge interest on the unpaid balance at 2% per annum above the then-current overnight bank bill swap rate published by the Reserve Bank of Australia, and/or (b) We may condition future Service renewals and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
4.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorised Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend Services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue before triggering this acceleration and suspending Services to You.
4.5. Payment Disputes. We shall not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.6. Formal Collection of Payment. You hereby acknowledge that We hold the right to pursue payment collection through formal debt collection third parties if any amount owing by You under this or any other agreement for Services is 30 or more days overdue or if no effort to resolve a payment dispute has been made. All fees and costs incurred in securing these payments will be added to the total payable amount at the time of collection including Third-party collection fees and interest charges identified in 4.3 (Overdue Charges).
4.7. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder in addition to the fees for our Services. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorised by the appropriate taxing authority.
5.1. Reservation of Rights. Subject to the limited rights expressly granted in this Agreement, We reserve all rights, title and interest in and to the Services, including all related Intellectual Property Rights. No rights are granted to You hereunder other than as expressly set out in this Agreement. In addition:
1. if Materials are created by or on behalf of You in the course of receiving or using the Services (Developed Materials), We will own, and You assign to us, all Intellectual Property Rights in and to the Developed Materials (Developed IP) immediately from creation;
2. we grant You a non-exclusive, non-transferable, royalty free, personal licence during the term of this Agreement to use the Developed IP solely to the extent directly necessary for the purpose of performing Our obligations under this Agreement;
3. you must obtain consent from all personnel involved in the creation of the Developed Material for Us, and Our assigns and sub-licensees and their respective successors to:
4. reproduce, publish, adapt and communicate the Developed Material to the public without attributing authorship; and
5. alter the Developed Material or do anything else to the Developed Material, including adapting, reproducing, publishing, communicating to the public, adding, deleting, editing or modifying the text, format or structure of the Developed Material,
6. if the Developed Material includes any software, You must deliver to Us both the object code and source code for that software on request by Us; and
7. the indemnity in section 7.2 will include any claim, demand, suit or proceeding made or brought against Us by a third party alleging that the provision of the Developed IP or its enjoyment or use in accordance with this Agreement infringes the Intellectual Property Rights of a third party.
5.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted in this Agreement or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or Service, or (b) copy any features, functions or graphics of the Services. You must comply will all laws in relation to your receipt of the Services.
5.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
5.4. Licence to Your Data and Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services Your Data and any suggestions, enhancement requests, recommendations or other feedback provided by You, including users, relating to the operation of the Services.
5.5. Licences. Except to the extent set out elsewhere in this Agreement (including any Order Form), where Services are licensed to You, You are granted revocable, non-exclusive, non-transferable, non-sublicensable licence to use the Service for its intended purpose during the Services Term.
5.6 Prohibited conduct. You must not use the Service to: (a) to engage in unlawful or fraudulent behaviour; (b) to defame or harass any third party; (c) to gain unauthorised access to or interfere with any third party’s online resources or systems including by any form of hacking or other malicious interference; (d) to circumvent any security measures; (e) to distribute, view or create any material that: (i) is or may be pornographic, defamatory, offensive, obscene, illegal or unlawful; (ii) infringes any third party’s Intellectual Property Rights or (iii) in anyway breaches any Privacy laws; (f) to distribute unsolicited emails to third parties including bulk unsolicited emails; (g) to distribute a higher volume of outgoing messages than is acceptable to Us; (h) in a way that infringes any third party’s Intellectual Property Rights; (i) in a way that disrupts, misuses or excessively uses Our hardware, bandwidth access, storage space or Our other resources; (j) use automated data gathering, extraction or publication tools; (k) through act or omission, mislead or deceive others; (l) in any way that breaches any Privacy Laws; or (m) in any other manner that is unacceptable to Us (acting reasonably).
5.7 Suspension. Without limiting any other remedy We may have under these terms or at law, We may suspend the Your access to the Services at any time if: (a) We suspect that You have done or may do any of the things described in Sections 5.2 or 5.6 or in breach of Section 5.5; (b) a third party alleges that You have done or threatened to do any of the things described in Sections 5.2 or 5.6 or in breach of Section 5.5; or (c) We receive a request or notice from a third party (including any regulatory body) requiring Us to cease providing the Services to You or remove any content You makes available through the Services.
6.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
6.2. Subject to Section 8.3 and to the extent permitted by law, and other than the express warranties in this clause 6, all other warranties, guarantees and conditions, express or implied, statutory or otherwise, are excluded. The Services (including any content, software, functionality and operational platform or hosting services) are provided “as is”. Without limiting the generality of the previous sentence, We do not warrant that the Services will meet Your requirements, will operate in any combination that may be selected for use by You or in combination with other software, or will operate uninterrupted or error free. Furthermore, We do not warrant that all software errors, defects or inefficiencies will be corrected and we do not assume any liability for failure to correct any such errors, defect or inefficiency. We make no warranty, and You assume the entire risk, as to the capabilities, suitability, use or performance of any deliverables under this Agreement.
6.3. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Likewise, the various platform services that support the delivery of Services including but not limited to the Zuora platform, Amazon Web Services, third-party Channel gateway services may be unavailable from time to time or execute service delivery in a manner or timeframe that is not immediate. We are not responsible or liable for any of these failures.
We warrant that:
1. We will perform the Professional Services under this Agreement in a skilful, competent, and workmanlike manner; and
2. any deliverables delivered to You shall perform substantially in conformity with the specification contained in the statement of work.
The warranties contained in this Section 6.4 are effective for a period of sixty (60) calendar days from the date of delivery of the relevant Professional Service or deliverable. In the event for a breach of the warranty contained in Section 6.4(a) or 6.4(b), You must notify Us in writing within fifteen (15) calendar days of discovering the breach using the contact details in Section 13. Upon receipt of such notice, We will use reasonable endeavours to correct the deficiency without charge and in a timely manner. We will pay any reasonable expenses associated with the warranty claim. If, after a period of (30) calendar days following receipt by Us of the notice, We are unable to remedy the deficiency, We will refund that portion of the fee attributed to the deficient Professional Service or deliverable that is the subject of the breach. The warranties contained in this Section 6.4 do not apply if the Professional Service or deliverables fails to perform as a result of modification, accident, neglect or misuse, user error, or electrical power damage. Subject to Sections 6.5 and 8.3, You acknowledge that this paragraph sets out Our sole obligation and liability and Your sole and exclusive remedy for a breach of the express warranties contained in this Section 6.4.
6.5. Guarantees. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
7.1 Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of any Service as permitted under this Agreement infringes or misappropriates the Intellectual Property Rights of a third party (a "Claim Against You"), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defence and settlement of the Claim Against You (provided that We may not settle any Claim Against You without Your consent unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties, (ii) obtain a licence for Your continued use of the Services in accordance with this Agreement, or (iii) terminate such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such Services after the effective date of termination.
7.2 Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us. We will (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defence and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us without Our consent unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
8.1 Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU UNDER THIS AGREEMENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 7 (FEES AND PAYMENT FOR PURCHASED SERVICES) OR TO YOUR INDEMNIFICATION OBLIGATIONS UNDER 7.2.
8.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST OPPORTUNITIES, INCLUDING OPPORTUNITIES TO ENTER INTO ARRANGEMENTS WITH THIRD PARTIES, LOSS OF DATA, LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
8.3 Australian consumer law. Nothing in these terms is intended to limit any of Your rights under the Competition and Consumer Act 2010 (Cth). If the Competition and Consumer Act 2010 (Cth) or any other legislation states that there is a guarantee in relation to any goods or services supplied by Us in connection with these terms and Our liability for failing to comply with that guarantee cannot be excluded but may be limited, then Sections 8.1 and 8.2 do not apply to that liability. Instead Our liability for that failure is limited to (at Our election): (a) in the case of a supply of goods, Our replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or (b) in the case of a supply of services, Our supplying the services again or paying the cost of having the services supplied again.
9.1 Market Disclosure. When You become a customer, You agree to allow Us to reference You as a customer using Our technology on Our website and in print copy or marketing collateral. You will provide Us with an approved company logo that We may publish on Our website and/or marketing collateral to communicate such relationship.
9.2 Confidentiality. Each party agrees to keep confidential, and not to use or disclose, other than as permitted by these terms, any Confidential Information of the other party provided to or obtained by that party before or after entry into these terms.
9.3 Exclusions. The obligations of confidence in clause 9.2 do not apply to Confidential Information: (a) that is required to be disclosed by applicable law, or under compulsion of law by a court or government agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party: (i) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and (ii) before disclosing any information, gives a reasonable amount of written notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain that Confidential Information in confidence; (b) that is in the public domain except as a result of a breach of these terms or other obligation of confidence; or (c) that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.
9.4 Restriction on disclosure. Each party may use and disclose Confidential Information of the other party only: (a) with the prior written consent of the other party; or (b) to that party’s directors, agents, professional advisors, employees, contractors and permitted sub-contractors solely for the exercise of rights or the performance of obligations under these terms.
9.5 If either party discloses Confidential Information under clause 9.4, that party must ensure that the information is kept confidential by the person to whom it is disclosed and is only used for the purposes of performing the Services under these terms.
9.6 Injunctive relief. Each party acknowledges that: (a) the other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the other party, and that monetary damages would be an insufficient remedy; and (b) in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of clause 9.
9.7 De-identified data. Despite any other clause in these terms, We and our suppliers may use any data which is de-identified, for any purpose.
10.1. You must process, use and disclose all Personal Information: (a) in compliance with Privacy Laws (regardless of whether or not You are otherwise obliged to comply with the Privacy Laws); and (b) only for the purposes of performing its obligations under these terms, in so far as that processing, use or disclosure is connected with this Agreement
10.2. You must obtain any necessary consents from, and make any necessary disclosures to, all relevant individuals for the purpose of disclosing their Personal Information to Us under these terms, and must otherwise comply in all respects with Your obligations under the Privacy Act and, if applicable the GDPR, in respect of any Personal Information collected by You and disclosed to Us. If the GDPR applies to the Personal Information, you confirm that consent has been freely given, is specific to the purpose for which the Personal Information is to be used, is informed and unambiguous.
10.4. You must immediately notify Us if You become aware that a disclosure of Personal Information may be required by law.
10.5. You must notify Us immediately if You becomes aware of any breach of clause 10.
10.6. You acknowledge that You must ensure that Your computer network is secure, and that We are not responsible for the security of the Your Data or Your computer network.
11.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all Services under its terms have expired or have been terminated.
11.2. Term of purchased Services. The term of each Service shall be as specified in the applicable Order Form and is subject to any specified special terms and conditions set out in that Order Form (Service Term). Except as otherwise specified in an Order Form, Services will automatically renew for additional periods equal to the Service Term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Service Term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. If a corresponding Order Form specifies the duration of the period over which Your price point remains active, Pendula will not increase your per-user licence fees transaction package or transaction costs during that duration.
11.3. Termination. If You: (a) breach any of these terms (including, without limitation, by non-payment of licence fees according to section 4.) and do not remedy this breach within 30 days after receiving notice of the breach if the breach is capable of being remedied; (b) breach any of these terms and the breach is not capable of being remedied (which includes (without limitation) any breach of section 5; or (c) You or your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction, Pendula can suspend or terminate this Agreement and Your use of the Services and You will remain liable for any accrued charges and amounts which became due for payment prior to termination, as well as immediately cease to have access to the Services.
11.4. Refund or Payment upon Termination. Pendula will not provide any refund for any remaining Digital Services. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. Your Data Portability and Deletion. Apart from administrative meta-data and Channel transaction data, Pendula does not store your data in its own application data store. All underlying record data remains within the underlying application. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make any of Your Data stored within Pendula, that does not exist within the underlying data storage application, available to You for export or download. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
11.6. Surviving Provisions. Sections 4 (Fees and Payment for Product Licensing & Digital Services), 7 (Indemnification), 8 (Limitation of Liability), 10 (Privacy) and 11 (Term and termination) will survive any termination or expiration of this Agreement.
12.1. Overview. In all cases, Pendula support enquiries will be carried out via email and only elevated to telephone communication when initiated by Pendula customer support team members. For support, you should email Pendula support using the following email address: email@example.com
12.2. Important Exclusions relating to the Zuora platform. You should redirect any Zuora platform specific enquiries to Zuora customer support.
12.3. High-level Elevation and Consulting: In some cases, You will require additional resources and Professional Services. In such cases a consulting or technical services proposal and fee quote will be provided to have a Pendula certified consultant or development team member address issues raised.
12.4. Training & User Development Programs. Pendula offers training programs for Pendula customers at additional cost. These are a valuable opportunity to ensure that users are at their maximum capability to find solutions to issues themselves as well as completely familiarise themselves with the application. If training packages or train the trainer sessions have not been specified in an accompanying license Order Form or Services Agreement – please contact us for pricing of Pendula training programs.
12.5. Exclusion. To the extent permitted by law, we do not accept any liability in connection with the use or content of any Zuora or other third-party products and services. This is a matter for your agreement with the relevant third party.
To find out more information and pricing of such programs please email: firstname.lastname@example.org
13.1. General. You are contracting with: Zipline Cloud Pty Ltd T/A Pendula Solutions with offices at Level 1, 234 Crown Street, Darlinghurst, New South Wales, 2010, Australia.
Notices should be emailed to: email@example.com
Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in New South Wales, Australia. The governing law of this Agreement is that of New South Wales, Australia.
13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing (which includes email) and shall be deemed to have been given upon: the first business day after sending by email. Notices to You shall be addressed to the system administrator designated by You for Your relevant services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
14.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.5. Attorney Fees. You shall pay on demand all of Our reasonable legal fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 4.2 (Invoicing and Payment)
14.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all Services after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.7. Entire Agreement. This document, including all exhibits and addenda to this document and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this document and any exhibit or addendum to this document or any Order Form, the terms of the Order Form will prevail, followed by this Agreement, and then the terms of any exhibit or addendum. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
14.8. Force Majeure. We will not be: (a) in breach of this Agreement as a result of; or (b) liable for, any failure or delay in the performance of Our obligations under these terms to the extent that the failure or delay is wholly or partially caused, directly, or indirectly, by a Force Majeure Event or Your act or omission.
14.9. Subcontracting. We may subcontract the performance of all or any part of Our obligations under these terms.
2. It is important to Pendula that all users of the Services are able to access the Services. Accordingly, Pendula has a Fair Use Policy which applies to:
3. usage of the Services; and
4. any excessive events or data handling generated by You.
5. Pendula reserves the right to vary the terms of the Fair Use Policy from time to time provided any change is not materially detrimental to You.
6. Pendula may rely on the Fair Use Policy where:
7. Your usage of the Services is unreasonable; or
8. Your request of the Services from Pendula is unreasonable,
as described below.
2. Unreasonable use
3. It is an unreasonable use of the Services if Your request of the Services is considered by Pendula (acting reasonably) to be excessive use, or likely to adversely affect the Services or other Pendula customers' use of or access to the Services. Among other things, use which is considered unreasonable includes:
4. using the Services to attempt to circumvent legal restrictions (or the purpose of legal restrictions); or
5. using the Services in a way that an ordinary person would not regard as being used for ordinary business use; or
the specific instances described in Annexes B, C, and D (where applicable).
3. Our rights
4. Where You are in breach of this Fair Use Policy, Pendula may contact You to discuss changing Your usage so that it conforms to this Fair Use Policy.
5. If, after Pendula has contacted you, Your unreasonable use continues, Pendula may, without further notice to You:
6. suspend or limit the Services (or any feature of it) for any period Pendula thinks is reasonably necessary; and/or
7. terminate this Agreement.
“Digital Transaction" means a digital channel communication delivered by Us or one of our Partners, and the following are each individual Digital TransactionsElectronic Mail – a single email message and associated attachments;Short message service – a single maximum 160-character SMS text message; andSocial Post – a single social message and associated attachments.
"Digital Transaction Overage" means the fee that We charge You when a Digital Transaction is sent after the defined sending limit has been reached for a specific Channel, as set out in the relevant Order Form.
"Digital Transaction Subscription" means a subscription package including a specified number of Digital Transactions per Channel per month.
"Transaction Services" means the service of delivering or arranging the delivery of a Digital Transaction by Us or one of our Partners.
The Monthly Individual Fee that applies in relation to an individual that you contact by way of the Digital Contact Services in any given month is determined by the number of Digital Contacts in in relation to that individual in that month. The applicable Monthly Individual Fee brackets are set out in the Order Form. You agree to pay us the corresponding Monthly Individual Fee in respect of each individual to whom you deliver Digital Contacts in a given month.
Monthly Individual Fees will be invoiced by us at the end of the month.
Except in the case of manifest error, We are responsible for determining the identity of an individual (for the purpose of ascertaining whether an additional Monthly Individual Fee is payable).
On Pendula’s request, You must allow Pendula or a third party nominated by Pendula (each an Auditor) to access during business hours Your records and any premises, systems, equipment, personnel and information relating to this Agreement in order to audit Your compliance with this Agreement.
Use which is considered unreasonable (for the purpose of Annex A) includes:
using the Services to generate Digital Transactions at an Average Delivery Rate in any month that exceeds 5, with the Average Delivery Rate being calculated as follows:
Average delivery rate = Number of digital contacts processed in a month / number of contacts
Unless set out below, defined terms in these special terms and conditions have the meanings given in the MSA.
“Contact” means each unique individual that receives or sends a message from or to Us.
“Digital Transaction" means a digital channel communication delivered by Us or one of our Partners, and the following are each individual Digital Transactions:
“Monthly Individual Fee” means the fee set out as such in the Order Form.
For each Digital Transaction Cycle between you and an individual that you contact by way of a Digital Transaction, we will charge you the Digital Transaction Cycle Fee.
Any Digital Transaction Cycle Fee will be invoiced by us at the end of the month. Except in the case of manifest error, We are responsible for determining when a Digital Transaction Cycle has occurred.
Use which is considered unreasonable (for the purpose of Annex A) includes using the Services to generate Digital Transactions at an Average Delivery Rate in any month that exceeds 5, with the Average Delivery Rate being calculated as follows:
Average delivery rate = Number of digital transactions processed in a month / number of digital transaction cycles set out in the order form
Unless set out below, defined terms in these special terms and conditions have the meanings given in the MSA.
“Contact” means each individual that receives or sends a message from or to Us.
“Digital Transaction" means a digital channel communication delivered by Us or one of our Partners, and the following are each individual Digital Transactions:
“Digital Transaction Cycle” means an interaction between You and a Contact that occurs within a 24-hour period (00:00 to 24:00 AEST) that does not have more than 3 outbound Turns or 3 inbound Turns.
“Digital Transaction Cycle Fee” means the fee set out as such in the Order Form.
“Turn” means each individual Digital Transaction.