org.manager License, Support and Services Agreement

Navigo agrees to provide the Software and Services specified on the Order pursuant to the following terms. By using any Software, Support and/or Services, you represent and warrant that (i) you have read these terms, and agree to be bound by such terms and (ii) you are authorised on behalf of yourself and the entity that you represent (collectively, “Customer”) to agree with such terms. These terms along with the Order constitute the agreement between Customer and Navigo.

 

1. Definitions

“Authorised User” means any person authorised or permitted by you to use the Service (provided that such use is not prohibited under these Terms of Service);

“Customer Data” means any data, information or other material supplied or made available by you for the purposes of your use of the Service;

“Confidential Information” means any information that a party treats as confidential, that is disclosed by such party to the other party in the course of performing the duties and obligations of this Agreement, whether such information is in oral, written, graphic or electronic form; provided that if such information (i) is in tangible form, such information is clearly marked as “proprietary” or “confidential” when disclosed to the receiving party; or (ii) is not in tangible form, such information is identified as “proprietary” or “confidential” when disclosed.Confidential Information also includes, without limitation, any information in any form that, due to its nature or the circumstances of its disclosure, a reasonable person would understand to be the confidential information of the disclosing party, whether or not such information is marked or identified as proprietary or confidential. All Products delivered to Customer hereunder will be treated as the Confidential Information of Navigo.

“Documentation” means the electronic form of the standard end user documentation for the Software.

“Effective Date” means the Order Date of the Initial Order.

“Initial Order” means the first Order placed by Customer pursuant to the terms of this Agreement.

“Order” means (i) Navigo’s then – current applicable order form made pursuant to this Agreement for any Products, Support or Services once signed by Customer and Navigo and/or, (ii) a Support Renewal Invoice issued by Navigo for any annual Support renewal period.

“Order Date” means the order date set forth on an Order as it relates to the items purchased or licensed pursuant to such Order.

“Products” mean the Software and the related Documentation.

“Program Error” means a reproducible defect or combination of defects in the Software that results in a failure of the Software, when used in accordance with its Documentation, to function substantially in accordance with the technical specifications set forth in such Documentation. A reproducible defect means a defect that Navigo can reproduce using that version of the Software as delivered by Navigo to Customer hereunder. Program Errors exclude those errors caused by the negligence of Customer, operator error, use on any system other than the operating system specified in the applicable Documentation, accident, misuse, any modification or alteration of the Software, data which does not conform to Navigo’s specified data format, or any other cause that is not inherent in the Software.

“Scheduled Maintenance” means maintenance that has been scheduled by or on behalf of Navigo in respect of the Software or Service, such as upgrades or repairs to the Software, Service or Navigo’s systems (including any relevant data network) used to provide the Service, and as a result of which all or part of the Service is not or may not be available to you;

“Unscheduled Maintenance” means unscheduled emergency maintenance, upgrades or repairs to the Software, Service or Navigo’s systems and all or part of the relevant Software or Service are not available to you as a result;

“Services” means any Navigo services other than Support that may be ordered subject to the terms of this Agreement.

“Software” means the object code version of the software as specified in an Order (Ingentis org.manager [web] for SF) and delivered by Navigo pursuant to this Agreement. Software also includes any Upgrades thereto that are delivered by Navigo to Customer in the provision of Support to the Customer.

“Support” means the support services provided by Navigo pursuant to the terms set forth on Exhibit A (Support Services Terms and Conditions).

“Support Renewal Invoice” means Navigo’s invoice that will be sent to the Customer for any annual support renewal periods, reflecting the annual support fees due in the subsequent annual support renewal period.

“Upgrade” means any subsequent maintenance release, service pack or major release for the Software, as designated by Navigo, that Navigo has generally released to its other customers purchasing support at a similar level.

“User” means, except as otherwise defined in the applicable Order, a named (by password or other user identification) individual that is permitted to use the Software or for whom a profile or other record is created, processed and/or maintained using the Software, during each successive twelve (12) month period commencing on the Order Date. The maximum number of Users for each Product is as set forth in the applicable Order. Users may only be Customer’s employee and independent contractors, provided that in all cases, Users may only use the Software in connection with Customer’s products or services.

“User Restrictions” means all restrictions set forth on the applicable Order and Exhibit B. “Warranty Period” means the ninety (90) day period commencing on the Effective Date.

 

2. License Rights

2.1. Software and License

Subject to the terms and conditions set forth in this Agreement, Navigo grants to the Customer a non-exclusive, limited time on each rental period, transferable only with prior written consent of Navigo’s right to use the Licensed Product and any enhancements including documentation. The Customer will receive the right to use the according Ingentis org.manager Professional or Enterprise on premise version (depending on the ordered version of the Licensed Product), for the period of the lease. The term of the license for Products will be as set forth in the applicable Order and the license granted above is further subject to any User Restrictions as applicable to specific Products.

2.1.1 Customer may use the Licensed Product to manage and/or produce charts on data elements, up to the number of objects licensed. If the number of org unit or position objects should exceed the number of employees, the number of org unit or position objects is taken into account.

2.2. Supply/installation

The Licensed Product is provided on a SAP Cloud Services Platform.

2.3. Copies

Except as stated in any User Restrictions, Customer may make one copy of the Licensed Product for archival purposes, or copy the Licensed Product onto the hard disk of a computer and retain the original for archival purposes; run additional server installations on non-productive backup or test systems.

 

2.4. Restrictions

Customer will not (i) except as otherwise expressly set forth in this Agreement, use or copy the Products, (ii) create derivative works based on, modify, or translate the Products, (iii) sell, assign, distribute, lease, market, rent, sublicense, transfer, or otherwise grant rights to the Products in whole or in part to any third party, (iv) obfuscate, remove or alter any of the internet links or copyright or other proprietary legends that are in the Products or that are displayed on pages served by the Software or (v) except to the extent expressly permitted by applicable law, reverse engineer, decompile or disassemble the Software or any part thereof or otherwise obtain or attempt to obtain the source code for the Software.

Customer may not use the Products in connection with the operation of a service bureau, application service provider or other operation in which Customer processes information for the benefit of a third party or operates or hosts a private branded or other site for the benefit of a third party. Customer must purchase and maintain a valid license for any person that has access to or uses any portion of a Product.

 

2.5. Registration and access

You are solely responsible for any activity occurring on your account. You must maintain the security of your account details including passwords. If you suspect unauthorised use of your account or that your password is no longer secure, you must notify us immediately.

 

2.6. Privacy

2.6.1 Your privacy is very important to us. Navigo is committed to protecting your privacy and that of individuals whose personal information you provide to us. We are subject to and comply with the Applicable Privacy Law. Our Privacy Policy explains how we manage and protect the privacy of personal information.

2.6.2 Personal Information collected by Navigo is transferred to our servers as a function of transmission across the Internet.

2.6.3 Your Personal Information is stored on our servers, primarily Microsoft Azure, in Australia. Your Personal Information will be routed through, and stored on, those servers as part of the Service.

2.6.4 By providing your Personal Information to Navigo, you consent to Navigo storing your Personal Information on servers hosted in Australia. While your Personal Information will be stored on servers located in Australia, it will remain within Navigo’s effective control at all times. The server host’s role is limited to providing a hosting and storage service to Navigo. Navigo ensures that our server hosts do not have access to, and use the necessary level of protection for, your Personal Information.

 

3. Support and Services

Navigo will provide Support pursuant to the terms set forth on Exhibit A.

Except as otherwise set forth in the applicable Order, the initial period of Support will be for twelve (12) months, beginning on the Effective Date.

Support will automatically renew on payment of the appropriate fees as specified in the Order for successive annual support periods at the same support level, unless Customer provides Navigo with a written notice of non-renewal at least thirty (30) days prior to the beginning date of the next annual support period.

Navigo may provide related Services (including consulting and training Services) under the terms of this Agreement, as agreed to in writing by the parties and specified on one or more separately executed Orders made subject to this Agreement.

Any deliverables provided by Navigo in connection with such Services shall only be used in connection with Customer’s authorised use of the Products. Unless otherwise expressly agreed in writing by the parties, such Services shall be provided on a time and materials basis at the daily rates specified in the Order.

If development of the Software to client specifications are required or are requested by The Customer as an additional service, their content is determined by and subject to a separate contract. Such development services are charged on a time and material basis according to the hourly rates listed in the separate contract.

 

4. Fees, Payment, and Delivery

 

4.1. Fees

Customer agrees to pay to Navigo the non- refundable license, Support and/or Service fees for the Products, Support and/or Services set forth on any Order made pursuant to this Agreement. Except as otherwise expressly agreed on an Order, Customer agrees to pay all fees and charges within thirty (30) days of receipt of Navigo’s invoice. Late payments will bear interest at the lesser of (i) the rate of one and one-half percent (1.5%) per month or (ii) at the maximum rate permitted by law. Unless otherwise indicated on an Order, all fees are in Australian Dollars. In the event that Customer requests Navigo to provide Services that require Navigo to travel to Customer-designated sites, Customer agrees to reimburse Navigo for its actual, reasonable travel and other out-of-pocket expenses incurred in connection therewith.

The monthly subscription fee and the subscription period depend on the services and performance requested by Navigo (deployment on customer’s own SAP Cloud Platform / deployment including SAP Cloud Platform). The Customer confirms these details in the corresponding order form via signature. The order is a binding part of the Agreement.

In case of deployment of the Software on the SAP Cloud Platform, complementary terms and conditions of SAP SE are applied. The Customer can review such terms and conditions on the following websites: https://www.sap.com/about/trust-center/agreements.html#cloud-services-agreements

The Customer confirms the notice and Agreements for this via signature. This applies also to all further and future added and changed terms and conditions by SAP SE in connection with the use of SAP Cloud Platform.

 

4.2. Taxes

Customer will reimburse Navigo and hold Navigo harmless for all sales, use, excise, property, or other taxes, levies, value-added tax (VAT), goods and services tax (GST), duties, withholdings or other amounts that Navigo is required to collect or remit to applicable tax authorities (except for any taxes based on Navigo’s net income). If Customer is required by any applicable law to deduct or withhold amounts otherwise payable to Navigo hereunder, Customer will pay the required amount to the relevant governmental authority, provide Navigo with an official receipt or certified copy or other documentation acceptable to Navigo evidencing the payment, and pay to Navigo, in addition to the payment to which Navigo is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by Navigo free and clear of all taxes equals the full amount Navigo would have received had no such deduction or withholding been required.

4.3. Delivery

Navigo will notify Customer via electronic mail that the Products are available for downloading by Customer via electronic means within five (5) business days of the Order Date. Customer will download the Products from the address indicated on the Order and notify Navigo via electronic mail from Customer’s authorized representative that the Products have been received.

 

5. Use Limitations

5.1 You agree:
(a) to provide Navigo with all information that Navigo reasonably requires for the purpose of providing any Services to you;

(b) that you will be responsible for providing your own facilities (including hardware, software and systems) necessary for accessing the Service.

(c) that Navigo accepts no responsibility for any deficiency in your access facilities.

5.2 You agree that the Service may only be use on a computer or other device that meets the compatibility requirements notified by Navigo from time to time. You agree that it shall be your responsibility to ensure that your computer(s) and other applicable devices meet such requirements and are maintained in good order.

5.3 You must supervise and control the use of the Service in accordance with the terms and conditions of these Terms of Service and must ensure that your employees, sub-contractors and other agents who have authorised access to the Service are made aware of the terms and conditions of these Terms of Service. You agree that Navigo is authorised to act on all instructions received when the password of an Administrator is used in conjunction with the user ID of the Administrator. You agree to use reasonable endeavours to ensure that Authorised Users do not give or make available their password or User ID to any other person without your approval.

5.4 You may not give details of or allow any third party to use any passwords, account numbers or other access or security-related codes provided to you by Navigo in connection with the use of the Service.

5.5 You may not re-sell, rent, sub-license or lease your licence to the Service or the Software.

5.6 You undertake to:
(a) not copy, reproduce, translate, adapt, vary or modify the Software (or any related documentation provided by Navigo, whether online or otherwise associated with the Service) without the express consent of Navigo, except as expressly authorised by these Terms of Service or Pt III Div 4A of the Copyright Act 1968 (Cth);

(b) not provide or otherwise make available the Service or Software in any form, except as expressly contemplated under these Terms of Service, to any person without the written consent of Navigo;

(c) not reverse engineer or decompile any part of the Software;

(d) not combine or incorporate the Software or any part in any other program or system, other than through the API and Connectors as provided hereunder;

(e) not use the Service or Software in breach of any applicable law;

(f) use, and to ensure that all Authorised Users use the Service only in accordance with these Terms of Service and any reasonable instructions or directions given or provided by Navigo in respect of the Services from time to time;

(g) not allow Authorised Users to abuse the Service and not use or allow Authorised Users to use the Service in any way that may adversely affect the reputation or goodwill of Navigo; and

(h) disallow any person who is not an Authorised User from using the Service.

 

6. Ownership

 

6.1. Reservations of Rights

Navigo and its suppliers retain all right, title and interest in and to the Software, Documentation and any other deliverable made to Customer hereunder. If Customer is an agency or instrumentality of the United States Government, the Software and Documentation are “commercial computer software” and “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Software and Documentation are governed by the terms of this Agreement. All rights not expressly granted herein are reserved to Navigo, and accordingly Navigo does not assign any ownership interest to any Customer under this Agreement or any Order.

 

7. Confidentiality

A party receiving any Confidential Information (“Recipient”) from the other (“Discloser”) will use the same care to prevent disclosure and unauthorized use of such information as such party uses with respect to its own confidential and proprietary information of like importance under similar circumstances, which will not be less than reasonable care. Recipient will not disclose Confidential Information to any third parties, provided that Recipient may disclose the Confidential Information to its employees and contractors who need to know such information and who are bound in writing by restrictions regarding disclosure and use of such Confidential Information comparable to those set forth herein. Recipient will not use any Confidential Information for any purpose other than to exercise its rights and perform its obligations under this Agreement. The foregoing restrictions on disclosure and use will not apply with respect to any Confidential Information to the extent such Confidential Information: (i) was or becomes publicly known through no wrongful act or omission of Recipient; (ii) was rightfully known by Recipient before receipt from Discloser; (iii) is independently developed by Recipient (i.e., without the use of the Confidential Information of the Discloser); or (iv) becomes rightfully known to Recipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to Discloser with respect to such Confidential Information. Recipient may disclose Confidential Information to the extent Recipient is legally compelled to disclose such Confidential Information, provided, however, that prior to any such compelled disclosure, Recipient will give Discloser reasonable advance notice of any such disclosure and will cooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.

8. Customer Data

8.1 Navigo acknowledges that any of your Customer Data which is stored by the Service remains your property and that you own all Intellectual Property Rights therein.

8.2 You acknowledge and agree that:
(a) Customer Data will be stored on servers operated by Navigo’s third party service providers;
(b) you delete any Customer Data from any system at its own risk;
(c) at any time after the expiration or termination of the agreement, you may request in writing that all Customer Data is deleted. Navigo agrees to execute this request within 14 days of a request being made.

8.3 Nothing in this clause 8 is intended to limit any right you have under the Applicable Privacy Law.

9. Security

9.1 Navigo will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Navigo personnel except:
(a) to provide the Services and prevent or address service or technical problems,
(b) as compelled by law, or
(c) as you expressly permit in writing.

9.2 You agree to comply with any directions relating to the security of the Service which are given by Navigo from time to time.

9.3 You acknowledge that:
(a) the Internet is an inherently insecure medium and that no data transmission over the Internet can be guaranteed as totally secure; and
(b) any Customer Data is transmitted to Navigo over the Internet at your own risk.

10. Suspension

10.1 Without limiting any other right or remedy Navigo may have, Navigo may suspend your access to and use of the Service immediately by written notice to you if:
(a) You fail to make any payment when due, or any payment is dishonoured or subject to chargeback;
(b) Navigo has reason to suspect illegal or unethical activity in relation to your data or usage of the Software or Service; or
(c) you fail to remedy any breach of these Terms of Service despite receiving 14 days written notice of its default.

11. Warranties for Program Errors and Viruses

During the Warranty Period, Navigo warrants that the Software, as delivered by Navigo and if properly installed in accordance with the Documentation, will be free of Program Errors. With respect to Program Errors reported by Customer to Navigo during the Warranty Period, Navigo will, as Navigo’s sole and exclusive obligation and Customer’s sole and exclusive remedy under the foregoing warranty, use all commercially reasonable efforts to correct such Program Errors. Any impairment of the software which is due to hardware, environmental conditions, operating error etc. is not deemed to be a fault. In the case of faults, Navigo shall be entitled at first to remedy the fault, either by eliminating the error, by supplying a program that does not contain the fault or by advising how the effects of the fault can be avoided. The Customer must accept a similar program which is equivalent to the new or previous version of the program and which does not contain the fault, if that is reasonable and appropriate for Licensee. The Customer will support the Licensor’s efforts analysing and eliminating faults by describing and defining arising problems concretely, by comprehensively informing Navigo and by allowing the necessary time and opportunity that is needed to eliminate the faults. Navigo may, at its discretion, eliminate the faults on-site or from its business premises. Navigo may provide services remotely. The Customer is obliged to grant Navigo such limited access to its computer system as is reasonably necessary to eliminate any such faults, subject to Navigo giving reasonable prior notice.

Navigo further warrants that it will use commercially reasonable means to detect and prevent all computer viruses or other malicious computer code designed to erase or damage the Products or other software or data (collectively, “Viruses”) in the Products. With respect to any material breach of the warranty set forth in the preceding sentence, Navigo will, as Navigo’s sole and exclusive obligation and Customer’s sole and exclusive remedy, use all commercially reasonable efforts to eliminate any Viruses. All Services will be provided in a professional and workmanlike manner. The express warranties of Navigo stated in this section are in lieu of all other warranties or conditions by Navigo or its suppliers, express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party rights. Customer expressly agrees that Navigo is not responsible for any representations, warranties, promises, services, software, hardware or other deliverables made by or provided by any third party.

 

12. Indemnity

12.1. Indemnity

Subject to the terms of this Agreement, Navigo will indemnify, defend and hold harmless Customer from and against any claim or action against Customer to the extent such claim or action is based on an allegation that the Software infringes a copyright, trademark or patent or misappropriates a trade secret of a third party, and Navigo will pay those damages and costs finally awarded against Customer in such claim or action which are specifically attributable to such allegation; provided, that Customer notifies Navigo promptly in writing of such claim or action, Customer gives Navigo sole control of the defense thereof (and any negotiations for settlement or compromise thereof), and Customer reasonably cooperates in the defense thereof at Navigo’s expense. If the Software or any component thereof becomes, or in Navigo’s opinion is likely to become, the subject of such an allegation of infringement or misappropriation, then Customer will permit Navigo, at its option and expense, either to (i) procure the right to continue using that component of the Software, (ii) replace or modify that component of the Software so that it becomes non-infringing and does not include any misappropriated trade secrets, or (iii) terminate the license to such component of the Software alleged to be infringing or misappropriating and give Customer a refund of the license fees received by Navigo therefor, less depreciation for use, damage and obsolescence thereof (such depreciation to be calculated as an equal amount per year over the life of that component of the Software, which is agreed for purposes of this clause to be three (3) years from the Effective Date). Customer will not incur any costs or expenses for the account of Navigo pursuant to this Section without Navigo’s express prior written consent. THE FOREGOING STATES THE ENTIRE LIABILITY OF NAVIGO AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS AND ACTIONS.

 

12.2. Exceptions

Navigo will not be liable under Section 8.1 or otherwise for any claim or action alleging infringement or misappropriation based upon (i) any use of the Software in a manner other than as specified by Navigo; (ii) any use of the Software in combination with other products, equipment, devices, software, systems or data not supplied by Navigo to the extent such claim is directed against such combination; or (iii) any alteration, modification or customization of the Software by any person other than Navigo.

 

13. Limitation of Liability

EXCEPT FOR ANY BREACH OF SECTION 6 (“CONFIDENTIALITY”) AND ANY INDEMNITY OBLIGATIONS ARISING UNDER SECTION 12 (“INDEMNITY”), IN NO EVENT SHALL NAVIGO OR ANY OF ITS SUPPLIERS BE LIABLE, WHETHER ARISING UNDER ANY THEORY OF LIABILITY INCLUDING CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (i) FOR ANY TYPE OF SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) FOR ANY DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE GREATER OF US$50,000 OR THE LICENSE FEES ACTUALLY RECEIVED BY NAVIGO HEREUNDER.

13.1 In the case of loss of data due to a fault in the domain of the software, Navigo’s liability for damages resulting therefrom is limited to the amount of restoration expenses that would have been incurred if the Licensee had back up copies. The Licensee is obligated to make data back ups on a daily basis.

13.2 Navigo is not liable for damages caused by SAP SE or the use of the respective third-party cloud services.

 

14. Term and Termination

 

14.1. Term

This Agreement will commence on the Effective Date and remain in full force and effect until the earlier of (i) expiration of the all the licenses to the Products hereunder or (ii) termination pursuant to this Section 14.

14.2. Termination for Breach

Either party may terminate this Agreement (including all perpetual and term licenses granted pursuant to all Orders) (or a specific Order) if the other party materially breaches this Agreement (or such Order) and does not cure such breach within thirty (30) days following its receipt of written notice of such breach from the non-breaching party.

 

14.3. Effect of Termination

If this Agreement is terminated, both parties will return the Confidential Information of the other (including any copies thereof) and Customer will immediately discontinue use of all Software and destroy or return to Navigo all copies of the Software and Documentation; and in either case Customer will erase from all computer, electronic or other storage devices or otherwise destroy all images and copies of the Software and Documentation and all portions thereof.

 

14.4. Survival

The obligations of the parties under this Agreement, which by their nature would continue beyond termination, cancellation, or expiration of this Agreement, shall survive termination, cancellation, or expiration of this Agreement.

15. Miscellaneous

Governing Law. This Agreement will be governed by and construed according to the laws of the State of Victoria, Australia and the Parties submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia. To the extent not expressly prohibited by any applicable law, the United Nations Convention on Contracts for the International Sale of Goods and all international and domestic legislative or other implementations of such Convention will not apply to this Agreement.

Severability Waiver. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

Publicity Promptly after the Effective Date, the parties will cooperate reasonably to issue a mutually acceptable press release announcing Customer’s selection of Navigo. Following go-live of the Products ordered hereunder, Customer agrees that Navigo may use Customer’s name in Navigo’s customer lists, and, at Navigo’s request (i) Customer agrees to be available as a customer reference for reference calls or onsite visits, and/or to present at Navigo public events, as approved by mutual agreement of the parties; and (ii) the parties will cooperate reasonably to prepare a mutually acceptable and approved “Success Story/Case Study” about Customer’s use of Navigo’s products and services, which may be used and made publicly available by Navigo for marketing purposes.

Assignment Neither party may assign this Agreement either in whole or in part without the prior written consent of the other party, except that either party may assign this Agreement to a successor as the result of an acquisition, merger or other such change of control either in whole or in part of a party’s business. Navigo may also delegate the performance of certain Services to third parties, provided Navigo controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

Notices Any notice hereunder will be in writing and delivered in person or by courier, sent by confirmed facsimile (fax), or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed as set forth on the Order or to such other address as given in accordance with this Section. If notice is given in person, by courier or by fax, it will be effective upon receipt; and if notice is given by mail, it will be effective five (5) business days after deposit in the mail. Any notice to Navigo shall be copied at the same time in writing to: Navigo (Attn: Legal Department), PO Box 4235 Ringwood, VIC, 3134, email: info@navigo.com.au

Remedies All rights and remedies hereunder are cumulative, may be exercised singularly or concurrently and will not be deemed exclusive except as expressly provided herein. If any legal action is brought to enforce any obligations hereunder, the prevailing party will be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.

Force Majeure Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control.

Usage Navigo may, from time to time and at its own expense, review Customer’s usage of the Produce to determine Customer’s compliance with the terms of each Order. Navigo will promptly notify Customer if Customer’s usage of the Product exceeds Customer’s user entitlements. Customer agrees to pay for any additional subscriptions required for Customer’s actual usage.

Entire Agreement This Agreement, including any Order and all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Customer acknowledges that any Orders made hereunder are not reliant, or contingent upon, the delivery, or promise of delivery, of any future functionality, features, products or services. The terms set forth in this Agreement and any Order will control in the event that there are any different or additional terms set forth on any purchase order or other form that Customer submits. This Agreement may not be modified or amended except in writing signed by a duly authorised representative of each party.

Exhibit A

Support Services Terms and Conditions

Access to Support; Reporting of Program Errors

Customer may report all Program Errors via the Navigo Support Desk system, email or telephone, at the support numbers and addresses set forth on the Navigo Web Site, and include sufficient information to enable Navigo to reproduce and verify such Program Error.

 

Resolution of Program Errors

Navigo will acknowledge each Program Error via email (through our Support Desk system) or telephone to Customer and will use commercially reasonable efforts consistent with the severity of the Program Error to reproduce and verify all Program Errors and to remedy each Program Error that Navigo has been able to verify.

Such remedies may include the providing by Navigo to Customer of instructions for Customer to cure the Program Error or possible work around options. Support does not cover any customisations or changes in code made pursuant to a Services engagement or by any third party.

 

Support Coverage

Any Support provided by Navigo will be made only to the most recent generally available release of the Software, provided, however, that for twelve (12) months after the introduction of a new generally available release, Navigo will support the most-recent, previously-released version of the Software. The Support provided hereunder will apply at all times only to a single platform version of the Software, as delivered hereunder to Customer by Navigo. Navigo will make Support available to Customer for the duration of time that Navigo makes support generally commercially available to its other customers. If Navigo provides any services under this Exhibit A in connection with any problem that is not a Program Error, such services will be on a time and material basis at Navigo’s then-standard charges for such services, provided that Navigo gives notice to Customer that such service is not covered by Customer’s Support.

 

Updates to Product

Navigo will notify Customer when an update has been released. Updates will be made available at no additional charge. Following such notification by Navigo, Customer may request Navigo to apply the upgrade on their behalf. Navigo may at its discretion update the Software and Service to incorporate new features, functionality and/or bug fixes, and you acknowledge that such updates may vary the user experience.

 

16. Service Levels

16.1 In the event that in any calendar month during the Term you experience less than 99% availability of the Service (other than for any Scheduled Maintenance in accordance with clause 16.5) you may request a refund or a credit of Subscription Fees paid in advance from Navigo (“Service Credit”). If requested, the amount of the Service Credit shall be calculated by multiplying your pro-rated monthly Subscription Fees for the calendar month in which the Service Credit was incurred, by the percentage shown in the table below that corresponds to the actual Availability of said Services during that month.

16.2 Clause 16.1 applies only to your production environment of the Service, and not to any non-production environment.

16.3 You must request a Service Credit to be entitled to it. If you believe you are eligible for a Service Credit for any given calendar month you must notify Navigo in writing within 5 Business Days from the end of such month in order to receive a Service Credit.

16.4 Your aggregate Service Credits (and any other remedy in respect of downtime, to the extent permissible at law) in any single calendar month of the Term are capped at and may not exceed your Subscription Fees for the calendar month in which the Service Credit(s) were incurred.

16.5 Navigo Scheduled Maintenance occurs fortnightly on Sunday for two hours where all or part of any Service will not be available to you.

16.6 Navigo will use best endeavours to provide you with at least one (1) Business Day’s notice of any Unscheduled Maintenance where all or part of any Services will not be available to you along with an estimate for the duration of the Unscheduled Maintenance.

16.7 Despite any other provision of this Agreement, Navigo will not be responsible for any failure of the Service to function as intended by Navigo if such failure is caused by telecommunications failure or fault, defective equipment utilised by you or your incorrect operation of your own access facilities.

Response Times

NOTE: Hours indicated are Business Hours, 9 am – 5.30 pm AEST Monday – Friday excluding Public Holidays.