1. SOFTWARE

(a)  The Service Provider is the sole and exclusive owner of the Software and Documentation and upon execution of a Sales Order Confirmation by a Client, the Client agrees to be bound by these terms and conditions, the Service Provider’s general Terms of Use available at: https://www.tradewindow.io/legal.html and the Sales Order Confirmation (together the “Agreement”) subject to which the Service Provider, during the Term of the Agreement grants and the Client, hereby accepts a limited, revocable, non-exclusive, worldwide, non-transferable, non-assignable right to use the Software and the Documentation for any lawful purpose, subject to and in accordance with the Terms and Conditions set out in this Agreement.

(b)   The Client and its Permitted Users agrees, warrant and accepts that the right to use the Software is restrictive and Client and Permitted Users must not:

(i)       use the Software and Documentation for any purpose or in any manner other than as set out in his Agreement;

(ii)      use the Software and Documentation in any way that could damage the reputation of the Service Provider, or the goodwill or other rights associated with the Software;

(iii)     upload any Client Data or any content, data, or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable;

(iv)     license, sell, rent, lease, lend, transfer, outsource, sublicense, or otherwise provide access to the Software or Documentation to a third party or utilise the Software or Documentation for the benefit of a third party permit any third party to use the Software;

(v)      reproduce, make error corrections to or otherwise modify, copy or adapt the Software or the Documentation or create any derivative works based upon the Software or the Documentation;

(vi)     de-compile, reproduce, decipher, mirror, disassemble or otherwise reverse engineer the Software or permit any third party to do so; or

(vii)    modify or remove any copyright or proprietary notices on the Software or the Documentation or otherwise attempt to access, imitate, derive or discover the source code thereof or permit any third party to do so.

(c)  The Client must procure each Permitted User’s compliance with clause 1(b) for the Term of the Agreement and any other reasonable condition notified by the Service Provider to the Client. A breach of any term of the Agreement by the Client’s Permitted Users is deemed to be a breach of the Agreement by the Client.

(d)   The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Software and Documentation, including to use, store and input Data into, and process and distribute Data.

(e)   The Client accepts that any breach of Clauses 1 and 2 shall entitle the Service Provider to immediately terminate this Agreement without prejudice to its rights in respect of prior or continuing breaches of the copyright or the misuse of the Confidential Information of the Service Provider and such termination shall not relieve the Client of its obligation to pay the Fees accrued and due for the entire term of the Agreement.

 

2. ACCESS AND RIGHT TO RESTRICT

(a)   Access to the Software and Documentation is subject to the payment of the Fees. The Service Provider may terminate the agreement and de-active access to the Software and Documentation if the Client fails to pay the Fees as set out in clause 6, provided that such termination will not prejudice the Service Provider’s rights in respect of prior or continuing breaches of the copyright or the misuse of confidential information of the Service Provider and such termination shall not relieve the Client of its obligation to pay the Fees accrued and due for the entire term of the Agreement.

(b)   This Access Right entitles the Client to:

(i)       receive a Registration Key which will grant the Client access to the Software together with the necessary Documentation for use by the Client; and

(ii)      use the Software in accordance with the provisions of this Agreement.

(c)   For the purpose of this Agreement, “use” shall mean access to and utilisation of the Software for the processing of instructions or statements contained in such Software.

(d)   Without limiting any other right or remedy available to the Service Provider, the Service Provider may restrict or suspend the Client’s access and/or delete, edit or remove any relevant Data if the Service Provider considers that the Client (including any of the Permitted Users) has:

(i)       undermined, or attempted to undermine, the security or integrity of the Software; or

(ii)      used, or attempted to use, the Service for improper purposes; or in a manner, other than for normal operational purposes or in violation of clause 1; or

(iii)      transmitted, inputted or stored any Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or

(iv)     otherwise materially breached the Agreement and the breach has not been remedied in accordance with clause 12.

(e)  Subscription to Cloud Hosting Services: The Client acknowledges and agrees to subscribe to the cloud hosting services (“Hosting Services“) offered by the Service Provider as an integral component of the Services under this Agreement. The Hosting Services provided by the Service Provider shall be exclusive to the Client under this Agreement, and the Client shall not engage any other third-party cloud hosting services for the Services without the express written consent of the Service Provider. Microsoft Azure (Azure) is the current third-party service provider engaged by the Service Provider for the Hosting Services. The Hosting Services shall be subject to the terms and conditions and service availability set forth in the Service Level Agreement (SLA) as set out in Schedule 1. The Client acknowledges that the SLA defines the quality and availability standards for the Hosting Services and outlines the Client’s sole and exclusive rights and remedies in the event of service level deviations or any action related to the Hosting Service. The Service Provider accepts no further liability whatsoever for any loss, damage, or harm arising from the use of the Hosting Services or any interruptions or errors in the Hosting Services. The Client agrees to abide by any additional terms and conditions imposed by Azure, to the extent applicable.

 

3. INITIAL SET-UP

(a)   Initial Set-Up of the Software on the Initial Set-Up date will proceed only upon receipt of:

(i)       a duly executed Sales Order Confirmation by the Client; and

(ii)      the full payment of the Fees as set out in the Sales Order Confirmation on the Effective Date.

(b)   Initial Set-Up will commence on the agreed Initial Set-Up Date. The Client will have five (5) Business Days from the date of completion of the installation (as notified by the Service Provider) to complete testing and to provide the Service Provider with written notice of any Defect in the Software as identified by the Client (Reportable Errors). The Service Provider will, for no charge to the Client, rectify such Reportable Errors. A failure to report a Reportable Error within the time frame set out in this clause means that the Reportable Error will not be addressed by the Service Provider during the installation period and user acceptance testing of the Software (UAT) will be deemed to have been passed and completed. For the avoidance of doubt, the Service Provider is not under any obligation to rectify any error or defect in the Software which is not a Reportable Error. Nothing in this Agreement prevents the Service provider from rectifying any Reportable Errors later, provided that such rectification should be completed within a reasonable timeframe.

(c)   Following rectification of the Reportable Errors (if any) by the Service Provider, the Service Provider will notify the Client that the Software has been fully set up after which initial training will commence.

 

4. INTELLECTUAL PROPERTY RIGHTS

(a)   The Service Provider retains ownership of the Intellectual Property Rights, and nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.

(b)   The Client acknowledges that the Service Provider owns all Intellectual Property Rights in the Software and Documentation, including all corrections, fixes, enhancements, updates, improvements, inventions, designs and modifications to all such materials and technology (including the data, methodologies and concepts therein) and related materials and all derivatives of the foregoing.

(c)   The Client must not directly or indirectly do anything that would or might invalidate or put in dispute the Service Provider’s title in the Software or any of the Service Provider’s registered or unregistered trademarks (Trademarks).

(d)   The Client must comply with the Service Provider’s reasonable usage guidelines and directions with respect to the Software and the Trademarks as notified to the Client from time to time.

 

5. TERM

(a)   Unless otherwise agreed in the Sales Order Confirmation, the term of this Agreement begins on the Effective Date and will continue for a period of three (3) months (Initial Term) and shall thereafter continue for successive 3-month periods (Renewal Term), unless terminated pursuant to clause 12. The Initial Term and each Renewal Term (if any) constitute the “Term.”  By giving at least (30) days’ notice, the Service Provider may increase the Fees once for each Renewal Term (but not the Initial Term) by:

(i)       the percentage change in the relevant Consumer Price Index in the jurisdiction of the Service Provider, or (if that index ceases to be published) over the 12 months preceding the last quarterly publication of that index issued by the relevant Bureau of Statistics before the date of the notice; or

(ii)      a higher percentage increase at the sole discretion of the Service Provider, provided that if the Client does not accept the higher percentage increase it may provide written notice of non-renewal on no less than ten (10) days’ notice before the commencement of the effective date of the Renewal Term.

 

6. FEES AND PAYMENT

(a)   Fees: The Sales Order Confirmation is only valid for a period of seven (7) Business Days from the Issue Date. Payment of the fees as set out in the Sales Order Confirmation (Fees) must be paid on the Effective Date before the Initial Set-Up will commence. The Client covenants to pay to the Service Provider all the Fees as set out in the Sales Order Confirmation and invoiced to the Client in accordance with the terms set forth in this Section 6.  The Client is not entitled to reduce the amount of Permitted Users for the duration of the Term, however, can add additional Permitted Users provided that the Fees for each additional User have been paid.

(b)   Installation Fee / Initial Set-Up Fee: The Service Provider shall be entitled to a non-refundable Initial Set-Up Fee as set out in the Sales Order Confirmation, which Fee must be paid in full by the Client on the Effective Date before the Initial Set-Up shall commence. The Service Provider shall be entitled to charge a separate, non-refundable fee for online training (Initial Training Fee), which Fee must be paid in full by the Client on the Effective Date before the Initial Set-Up will commence.

(c)   Rental Fee: The Service Provider shall charge a non-refundable Rental Fee for the use of the Software, as set out in the Sales Order Confirmation which Rental Fee is due and payable by the Client quarterly in advance. All Fees and charges are inclusive of all taxes, (including income tax) duties or such other additional sums including, (but not limited to) Customs, Import Duty or Sales Tax, but excluding GST. The Client must pay the Fees electronically in cleared funds without any set-off or deduction.

(d)   Hosting Fee: The Client shall be responsible for the payment of Hosting Fees for the Hosting Services, as detailed in the Sales Order. The Client agrees to remit the Hosting Fees in accordance with the payment terms specified therein.

(e) Related Services Fee: Where the Sales Order Confirmation provides that a Related Service Fee is payable in relation to any specific Service, that Related Service Fee at the rate as specified in the relevant Sales Order Confirmation, is payable within 20 days of the end of the calendar month in which the invoice is provided to the Client by the Service Provider.

(f)   Invoicing and payment: The Service Provider will provide the Client with valid GST tax invoices on the dates set out in the Sales Order Confirmation, or if there are none, quarterly in advance for the Fees due in the following month. All Fees and charges are inclusive of all taxes, (including income tax) duties or such other additional sums including, (but not limited to) Customs, Import Duty or Sales Tax, but excluding GST. The Client must pay the Fees:

(i)       within 7 days from the invoice date; and

(ii)      electronically in cleared funds without any set-off or deduction.

(g)   Overdue amounts: The Service Provider may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the Service Provider’s primary trading bank as at the due date (or, if the Service Provider’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus two percent (2%) per annum.

 

7. SUPPORT AND MAINTENANCE

(a)   Software maintenance support services (Support) are included in the Fees and will be provided by the Service Provider between 08:30 and 17:30 Monday to Friday (excluding public holidays) in the relevant jurisdiction of the principal place of business of the Service Provider. Hosting Services will be subject to the service levels as set out in the Service Level Agreement (SLA) in Schedule 1. The Service Provider will use reasonable commercial efforts to ensure the business-critical services have a 99.8% uptime availability (Service Availability) over the term of the Agreement. The Service Availability measure excludes any pre-agreed maintenance windows and the Client will indemnify the Service Provider against any downtime in the Service Availability which has been caused by or is attributable to, the Client or a third party (acting on behalf of the Client) negligent act or omission or in the event of a force majeure.

(b) Support is limited to:

(i)       reports of errors and fixes; as notified by the Client;

(ii)      updated patches, and minor versions of the Software, as they become available;

(iii)      corrections to any standard program which does not perform, excluding programs modified for the Client by parties other than the Service Provider;

(iv)     a reasonable amount of telephone and email support; and

(v)      installation of any changes to Documents, which will be provided by e-mail, phone, remote access, or on-site visits.

(c)   Support does not include:

(i)       chargeable professional services such as education, any training or re-training, installation or upgrade assistance, systems analysis and programming, unless specified in any covering documentation;

(ii)      any hardware and network support;

(iii)      maintenance required as a result of loss or damage caused directly or indirectly by the Client’s error or omission;

(iv)     travelling time or associated expenses, unless explicitly agreed to in writing between the Parties;

(v)      re-installation of the Software after any malfunction as a result of any action by the Client or any third party acting on behalf of the Client;

(vi)     writing or modifying documents or specialised reports for the Client;

(vii)     writing or modifying specialised SQL queries for the Client;

(viii)    managing a Client’s email server or tracking messages through their email system; or

(ix)    any other maintenance requests not covered under clause 7(a).

(d)   No obligation after-hours support is available, subject to the rates of the Service Provider.

 

8. WARRANTIES

(a)   Each Party warrants that:

(i)       it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting Party;

(ii)      it will comply with all Relevant Law;

(iii)      it will not infringe any person’s rights (including Intellectual Property Rights and Moral Rights); and

(iv)     neither it nor any of its officers, employees, agents, subcontractors or any person acting on its behalf has offered, given or agreed to give any person any inducement or reward (or anything which might be considered an inducement or reward) in connection with the Parties entering into this Agreement.

(b)    the Service Provider warrants that it:

(i)       will use reasonable care and skill in providing the Service; and

(ii)      will use reasonable commercial endeavours in accordance with good industry practice to keep the Software free of viruses and other harmful code;

(iii)      has the full power and right to grant to the Client each of the software licenses outlined in this Agreement

(c)   the Client warrants that it will comply with the restriction of use and warranties as set out in the Agreement.

(d)   Except as specifically provided in this section, and to the maximum extent permitted by Relevant Law, the Service Provider disclaims all warranties, whether express, implied or statutory, including any warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, reliability or security standard or non-infringement or un-interruption. The Service Provider makes no warranty that the Software or any information or Data accessed or stored therein will meet the Client’s requirements or be accurate, complete, error-free, reliable, or available or that the use of the Software will fulfil or meet any statutory role or responsibility of the Client. To the extent that a particular jurisdiction does not allow for the exclusion of a warranty, that warranty will be limited to the minimum period of time required by law starting as of the Effective Date, and the invalidity of the disclaimer will not affect any other disclaimer or limitation contained in this Agreement.

(e)   The Client furthermore agrees that it is relying entirely upon its own judgment in entering into this Agreement and not upon any warranty or other representation either expressed or implied by the Service Provider that the Software is fit for the purpose as required by the Client or for any particular purpose.

(f)   Consumer Guarantees Act:  The Client agrees and represents that it is acquiring the Service, and entering the Agreement, for the purposes of trade. The Parties agree that:

(i)       to the maximum extent permissible by law, the Consumer Guarantees Act 1993, Australian Consumer Law (ACL), and any other applicable consumer protection legislation does not apply to the supply of the Services or the Agreement; and

(ii)      it is fair and reasonable that the Parties are bound by this clause 14(f).

 

9. DATA

(a)   The Client acknowledges that the Service Provider may require access to the Data to exercise its rights and perform its obligations under the Agreement; and to the extent that this is necessary, the Service Provider may authorise a member or members of its personnel to access the Data for this purpose.

(b)   The Client shall arrange all consents and approvals that are necessary for the Service Provider to access the Data as described in clause 9(a).

(c)   The Client acknowledges and agrees that the Service Provider may:

(i)       use Data and information about the Client’s and the Client’s end-users’ use of the Service to generate anonymised and aggregated statistical and analytical data (Analytical Data); and

(ii)      use Analytical Data for the Service Provider’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights.

(d)   The Service Provider’s rights under clause 9(c) above will survive termination or expiry of the Agreement; and title to, and all Intellectual Property Rights in, Analytical Data is and remains the Service Provider’s property.

(e)   If the Client provides the Service Provider with ideas, comments or suggestions relating to the Service or Software (Feedback), all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Service Provider; and the Service Provider may use or disclose the Feedback for any purpose.

 

10. CONFIDENTIALITY

(a)   A Party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.

(b)   A Party may:

(i)    use the Confidential Information of the other Party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and

(ii)   disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.

(c)   Each Party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other Party’s Confidential Information whilst it is in the receiving Party’s possession or control.

(d)   Each Party must return, or at the other Party’s option destroy, all Confidential Information of the disclosing Party in the receiving Party’s possession or control on termination of this Agreement for any reason, provided that the obligations under this clause  do not apply:

(i)       to the extent that (but only for so long as) it is necessary to retain copies for the purpose of providing information to any regulatory authority or legal requirement; or

(ii)      to the extent that the Confidential Information is copied as a result of an automatic system or information technology back-up procedure.

(e)   The Service Provider shall:

(i)       treat all Client data as confidential;

(ii)      implement and maintain technical and organisational measures to protect Client          data from data breaches in accordance with industry best practice;.

(iii)     (inform all its employees, agents, and Third Parties with access to the Client data of the confidential nature of such data and ensure that all such persons or parties have signed an appropriate confidentiality agreement, are otherwise bound to a duty of confidentiality, or are under a statutory obligation of confidentiality;

(iv)     restrict access any Client data to personnel who need to access the data to fulfil the Service Provider’s obligations under this Agreement and in any event not disclose the data other than to the Service Provider’s employees without the Client’s prior written consent;

(v)      if requested by the Client, provide up to date lists of persons to whom the Client’s data has been disclosed;

(vi)     ensure that all Client data is segregated (either virtually or physically) from the Service Provider’s own data or that of the Service Provider’s other customers;

(vii)    ensure that its physical and IT security systems only permit properly authorised personnel to access the Client data;

(viii)    comply with all of the Client’s security and office regulations as far as it relates to the provision of the services as set in this Agreement, including when on the Client Premises, accessing any of the Client’s computer systems or accessing the data.

(xi)     not sell, licence or otherwise deal with or commercially exploit any Client data;

(xii)    not alter the Client data except as required to perform its obligations under this Agreement.”

 

11. LIABILITY

(a)   To the fullest extent permitted by law, the Service Provider shall not be liable for any lost profits, lost savings, loss of reputation, loss of goodwill, loss of Data, interruption of business or for any indirect, incidental, punitive, special or consequential loss or damages whatsoever, under, arising out of or in connection with this Agreement, the Software and Documentation or any services provided by the Service Provider or the use thereof whether or not such damages are based on tort (including negligence), warranty, contract or any other legal theory – even if has been advised, or is aware, of the possibility of such damages. This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction, or modification of any implied warranties, conditions, guarantees, or obligations. If such legislation applies, to the extent possible, the Service Provider limits its liability in respect of any claim to, at the Service Provider’s option, in the case of Services:

(i)       the supply of the Services again; or

(ii)       the payment of the cost of having the services supplied again.

(b)   The Client agrees to defend, indemnify and hold harmless the Service Provider from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, fines, late fees, cancellation fees, and expenses (including attorney’s fees) arising directly or indirectly from:

(i)       the Client’s use of the Software and Documentation (or any part thereof);

(ii)      breach of these Terms by the Client;

(iii)      any damage of any sort, whether direct, indirect, special or consequential, that the Client may cause to any third party which relates to the Client’s use of (or inability to use) of the Software and Documentation;

(iv)     the violation by the Client of any third-party intellectual property rights, privacy rights or other rights through the Client’s use of the Software and Documentation; and

(v)      the Client’s violation of any applicable law or regulation.

 

12. TERMINATION

A Party may terminate this Agreement by written notice to the other if any of the following events has occurred in respect of the other Party:

(a)   a material breach of this Agreement which is not remediable or if capable of remedy, where the other Party fails to remedy within fourteen (14) days of written notice; or

(b)   an Insolvency Event occurs; or

(c)   pursuant to clauses 1(e) 5(ii) and 14(h).

 

13. CONSEQUENCES OF TERMINATION

If this Agreement is terminated or expires for any reason, then, in addition, and without prejudice to any other rights or remedies available:

(a)   the Parties are immediately released from their obligations under the Agreement except for those obligations in clauses 4, 6, 8, 9, 10, 11 and 14 and any other obligations that, by their nature, survive termination;

(b)   each Party retains the claims it has against the other;

(c)   the Client’s right to access and use the Software and the Trademarks immediately ceases, and all rights and licences granted under this Agreement immediately terminates; and

(d)   the Client must immediately pay to the Service Provider all outstanding fees for the Term of the Agreement, charges or any other payments arising in respect of the Software, this Agreement or otherwise, and any costs and expenses including legal and other fees incurred by the Service provider in relation to such arrears as well as any costs or expenses incurred as a result of such termination.

(e)   The Client may, at any time prior to one month after the date of termination or expiry of the Agreement request a copy of any Data stored using the Service, provided that the Client pays the Service Provider the costs of providing that copy. On receipt of that request, the Service Provider must provide a copy of the Data in a common electronic form. The Service Provider does not warrant that the format of the Data will be compatible with any software.

 

14. GENERAL

(a)   The Client must not assign, sublicence or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of the Service Provider (at the Service Provider’s sole discretion).

(b)   Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.

(c)   If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.

(d)   Each Party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.

(e)   This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no Party has relied on any representation made by or on behalf of the other.

(f)    This Agreement may be amended only by a document signed by all Parties.

(g)   A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.

(h)   A Party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the Party keeps the other closely informed in such circumstances and uses reasonable endeavors to rectify the situation. Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a Party’s performance under this Agreement for more than sixty (60) consecutive days, the other Party may immediately terminate this Agreement by written notice.

(i)    This Agreement is governed by the laws of the country of principal place of business of the Service Provider and each Party submits to the jurisdiction of the courts of such

(j)    A notice given by a Party under the Agreement must be delivered to the other Party via email using the email address set out in the Sales Order Confirmation or otherwise notified by the other Party for this purpose.

(k)   The Service Provider is granted a limited right during the term of the Agreement to use, the names, images, logos, trademarks, service marks or any other Intellectual Property of the Client in any advertising, marketing, promotional material, publicity, press release, presentation or proposal; or to express or to imply any endorsement of the Service Provider or its equipment or services by any member of the Client.

 

15. DEFINITIONS AND INTERPRETATIONS

15.1 Definitions

Agreement means the Sales Order Confirmation read together with the Terms and Conditions.

Affiliate with respect to any legally recognisable entity, any other entity Controlling, Controlled by, or under common Control with such entity.  “Control” means direct or indirect (i) ownership of more than fifty percent (50%) of the outstanding shares representing the right to vote for members of the board of directors or other managing officers of such entity, or (ii) for an entity that does not have outstanding shares, more than fifty percent (50%) of the ownership interest representing the right to make decisions for such entity.

An entity will be deemed an Affiliate only so long as Control exists.

Business Day means Monday to Friday and excludes all public or other holidays as recognised in the relevant jurisdiction of the Service Provider. 

Confidential Information means all information provided by one Party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably to be considered confidential based on its content, nature or the manner of its disclosure, but excluding: (a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement; and (b) information developed independently by a Party.

Client means the Client as set out in the Sales Order Confirmation, and includes its affiliates, employees, contractors, agents, and representatives.

Data means (a) all data, content, text, drawings and information and other material, in whatever form that information may exist which: (i) are owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Software, including any Personal Information of the Client as defined in Relevant Law.

Defect means a genuine error, fault or failure within the source code of the Software which prevents the Software from operating as intended and excludes any other defect which may cause the Software to malfunction.

Documentation means any and all proprietary documentation made available to the Client by the Service Provider for use with the Software, including any documentation available online.

Effective Date means the day of acceptance of the Agreement by the Client.

Fees mean all the fees charged by the Service provider and payable by the Client as set out in the Sales Order Confirmation, payable in terms of clause 6.

Force Majeure Event means any event beyond the control of the relevant Party, including, without limitation, any act of God; any action or inaction of any government or competent authority; strike; failure, or malfunction of power; storm; fire; accident; an outbreak of hostilities (in all cases whether war has been declared or not) or an escalation of existing hostilities; act of terrorism; closing of any stock exchange; a general moratorium on banking activities or material disruption in commercial banking; and any material or fundamental changes (or escalation of a material or fundamental change) in national or international, financial, economic or political conditions affecting capital markets or financial markets.

Go-Live Date means the date the Client is able to use the Software to send live transactions.

GST means the relevant tax law in the applicable jurisdiction of the Service Provider, or any other similar tax acts as applicable in other jurisdictions.

Initial Set-Up means the initial installation and configuration of the Software by the Service Provider including the initial online training provided after the installation on the use of the Software as provided by the Service Provider to the Client.

Insolvency Event means: (a) enters into receivership or liquidation; (b) is removed from the relevant companies register or has a liquidator, receiver, administrator or statutory manager appointed; (c) becomes (or is deemed to be) insolvent or is unable to pay its debts when they become due or is presumed under any applicable Relevant Law to be unable to pay its debts; or (d) makes or proposes any assignment to, or enters into any arrangement for the benefit of, all or some of its creditors (other than for the purposes of a solvent restructuring with written notice to the other Party). 

Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application. Intellectual Property has a consistent meaning and includes any enhancement, modification or derivative work of the Intellectual Property.

Moral Rights has the meaning given under the Copyright Act in the country of jurisdiction of the Service Provider and include any similar rights existing in other countries.

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

Permitted Users means those personnel of the Client who are authorised to access and use the Software and Documentation on the Client’s behalf and for which a license for the Software has been reserved as set out in the Sales Order Confirmation for the Term of the Agreement. The Client is not entitled to reduce its Permitted Users for the Term of the Agreement, however, can add additional Permitted Users during the Term subject to the payment of Fees.

Registration Key means the unique number provided by the Service Provider to the Client to access the Software.

Related Service means any related service described in a Sales Order Confirmation any further services that the Service Provider agrees to provide to the Client under the Agreement.

Relevant Law means any statute, ordinance, code or other law including regulations under them and any code of practice, membership rules or standards issued by relevant regulators or industry bodies, whether or not having the force of law, applicable to this Agreement, the Confidential Information and any other obligations performed under these Terms and Conditions.

Service means the provision of the Software at the applicable Fee or any Related Service for which a Related Services Fee is charged by the Service Provider as set out in the Sales Order Confirmation.

Service Provider means the entity as fully set in in the Sales Order Confirmation.

Software means the Software as set out in the Sales Order Confirmation as owned by the Service Provider and delivered to the Client by the Service Provider pursuant to this Agreement.

System means the operating computer system of the Client.

Third Party means, without limitation, any person (juristic or natural), who is not a party to this Agreement. 

Use means the limited right of use of the Software as set out in these Terms and Conditions.

 

15.2    Interpretation

Unless the context requires otherwise:

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

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

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

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

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

(f)   a reference to dollars or $ is the local currency, unless expressly stated otherwise; and

(g)   if there is a conflict between the Sales Order Confirmation and the Terms and Conditions, the Terms and Conditions will prevail unless expressly stated otherwise.

 

SCHEDULE 1 

SERVICE LEVEL AGREEMENT 

 

1. Purpose and scope

1.1            The objective of this Service Level Agreement (SLA) is to define the reference parameters for the provision of Hosting Service as set out in the Terms and Conditions (Agreement) and further defined herein below (Hosting Service) and for monitoring the level of quality provided. The objective of the SLA is also to define the rules of interaction between the Service Provider and the Client.

1.2            This SLA is incorporated into and forms part of the Agreement between the Parties. Any inconsistency between this SLA and the Agreement, as far as it relates to the provision of the Hosting Service, this SLA shall apply.

1.3            The Service Provider shall at all times during the term of this SLA provide the Hosting Service to meet or exceed the Service Availability, as defined herein.

 

2. Validity and duration of the SLA

2.1            Modifications or replacements of the SLA: This SLA shall enter into force for the duration of the Agreement. The Parties may change or replace it by agreement during the term of the Agreement and at any time.

 

3. Services

3.1            Scope of Hosting Service: The management and maintenance governed by this SLA relate to the Hosting Service for which this SLA was entered into for the Service Availability of the TWFreight Software API (as defined in the Sales Order).

3.2            Scope of the SLA: The following components fall outside of the scope of this SLA:

(a)             The Client’s own Infrastructure along with the public portion of the internet outside the control of the Service Provider.

(b)             Functional application management of the Client’s applications.

(c)             Client’s own databases.

(d)             Any links or other interfaces of the Client applications with external environments.

(e)            Upgrades and upgrade policies of non-Service software.

(f)             Problems caused by data integrity problems not resulting from the use of the Service Provider’s software (e.g. initial loading of client data, ‘creative’ use of the product).

3.3            Basic Assumptions and pre-requisites: The following basic assumptions and prerequisites apply to this SLA:

(a)             The Service Provider will ensure reasonable security and protection of the services.

(b)            The Client will be responsible for protecting its own infrastructure from all IT risks, bugs, errors, viruses, and intrusions;

 

4. Infrastructure

Cloud facilities: The Service Provider currently makes use of Microsoft Azure as Third-Party Provider for the Hosting Service. The Hosting Service is hosted out of Sydney, Australia. Nothing herein prevents the Service Provider from changing its hosting provider, provided that the Client will be informed when such change occurs.

 

5. SLA for operational functionality

As per the provisions of the Agreement, the Service Provider will ensure the Hosting Service have an uptime availability of 99.8% (Hosting Service Availability) for the Term of the Agreement, measured monthly, excluding public holidays, weekends, and scheduled maintenance. If the Client requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further any downtime resulting from outages of third party connections or utilities or other reasons beyond the Suppliers’ control will also be excluded from any such calculation. the from the go-live date for the Term of the Agreement with observance of the following operational functionality parameters available at:

https://azure.microsoft.com/en-us/support/legal/sla/

 

6. Service Credits

The Service Provider’s sole and exclusive remedy, and Service Provider’s entire liability, in connection with Service Availability, shall be that for each period of downtime lasting longer than one hour, the Service Provider will credit Client 0.5% of Rental Fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as the Client (with notice to the Service Provider) recognizes that downtime is taking place and continues until the availability of the services is restored.  In order to receive downtime credit, the Client must notify the Service Provider in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit.  Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Rental Fees in any one (1) calendar month in any event.  The Service Provider will only apply a credit to the month in which the incident occurred. The Service Provider’s blocking of data communications or another service in accordance with its policies shall not be deemed to be a failure of the Service Provider to provide adequate service levels under this Agreement. Notwithstanding the above, any amount deducted by mistake will be reimbursable.

 

7. Planned maintenance

7.1.           Time for planned maintenance is not counted in the uptime calculation. Planned maintenance concerns activities carried out by the Service Provider and or its contracted third-party service providers to maintain the functionality of the Hosting Service.

7.2.           The implementation of the maintenance operations will be communicated to the Client by the Service Provider with at least 24 hours’ notice by email sent to the email address indicated in the Agreement and/or published on the website of the Service Provider. The Service Provider is committed to making every reasonable effort to carry out the planned maintenance tasks at times with minimal impact on the Service.

 

8. Detecting failures and/or faults

8.1.           Any failures and/or faults of the Hosting Service shall be reported by contacting the Support Centre at twf_support@tradewindow.io

8.2.           Failures or faults can be reported by the Client to the Service Provider support service 24 hours a day. Any reports received will be promptly forwarded to the technical support strictly respecting the chronological order of receipt and the severity of the fault raised.

 

9. SLA applicability limits

9.1            Listed below are the conditions in the presence of which, despite the occurrence of any malfunction, the Client is not due any compensation provided by the SLA:

(a)           due to a Force Majeure, i.e. events that, objectively, would prevent the Service Provider’s staff from intervening to perform the tasks set out by the Agreement which are the Service Provider’s responsibility (merely by way of example and not exhaustive: strikes and demonstrations which block communication routes; road accidents; wars and acts of terrorism, natural disasters such as flooding, storms, hurricanes, pandemics etc.);

(b)           extraordinary interventions to be carried out urgently at the sole discretion of the Service Provider to avoid hazards to the safety and/or stability and/or confidentiality and/or integrity of the Hosting Service and the data and/or information contained therein. Any execution of these measures will be communicated to the Client via email sent to the email address provided in the Agreement with less than 24 hours’ notice, or at the start of the operations in question or in any case, as soon as possible;

(c)           unavailability or blocks to the Hosting Service to:

(i)            incorrect use, incorrect configuration or shut-down commands, voluntarily or involuntarily performed by the Client;

(ii)           faults and malfunctions of application/management software provided by Third Parties;

(iii)          non-fulfillment or breach of Agreement due to the Client;

(d)          fault or malfunction of the Hosting Service, or their failure or delayed removal or elimination due to non-fulfillment or breach of Agreement by the Client or to an abuse of the Hosting Service by the Client;

(e)          failure by the Client’s network to connect to the Hosting Service; and

(f)           causes that lead to total or partial inaccessibility of the Hosting Service caused by the Client.

 

10. Issue Escalation Process

The Service Provider uses the ITIL standard way of describing an internal Escalation Matrix and Process, linking Support, DevOps, and Operations. Support phone numbers and email addresses are provided. Issues that need to be escalated by external parties will be provided to the Operations manager support number and email.

 

11. Disaster Recovery Planning

11.1          The Service Provider shall develop and maintain a disaster recovery plan during the term of this Agreement, in the event, there is a significant disruption to the Service Provider’s core business (“Force Majeure Event”). The disaster recovery plan shall describe the key recovery steps to be performed by the Service Provider during and after a disruption in services, to enable the Service Provider to return to normal operations as soon as possible.

11.2          Upon the occurrence of a Force Majeure Event, the Service Provider shall promptly notify the Client of the Force Majeure Event, its effect on performance, and how long the Service Provider expects it to last. Thereafter the Service Provider shall update that information as reasonably necessary.

11.3          During a Force Majeure Event, the Service Provider shall use reasonable efforts to limit disruption and to try and resume its performance under this Agreement. Notwithstanding the foregoing, each Party shall have to right to terminate this Agreement in accordance with the provisions of the Master Services Agreement.

11.4          The Service Provider has standard ISO-approved policies in place covering:

(i)             ISP14 Disaster Recovery Procedure;

(ii)             ISP07 Document & Data Control;

(iii)            ISP11 Incident Management Procedure; and

(iv)            POL12 Operating Procedures for IT Management Policy.

These policies shall be made available to the Client upon request.

 

12. Response and Resolution

The Service Provider’s targeted response time in respect of services errors or Hosting Services is provided in the table below during Business Hours (Monday to Friday 06:00 – 18:00) 

Priority Code (ITIL)	Description	Target Response Time	Target Resolution Time
P1	Critical – A complete business down situation. The client is unable to operate.	30 minutes	1 Hour
P2	High – A major component of the client’s ability to operate is affected.	30 Minutes	2 Hours
P3	Medium – The client’s core business is unaffected but the issue is affecting efficient operation by one or more people.	4 hours	8 Hours
P4	Low – The issue is an inconvenience or annoying but there are clear workarounds or alternates.	8 hours	16 Hours
P5	Very low – The issue is a background or planned task and will be addressed when time permits or on the planned date.	1.5 days	32 Hours

 

 

 

Version 1.3. Last updated 15 September 2023