OrgPlus Enterprise License, Support and Services Agreement

Navigo agrees to provide the Software and Services specified on an 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”) toagree with such terms. These terms along with the Order constitute the agreement between Customer and Navigo.

1. Definitions.

“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.

“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 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.

License Rights.

2.1. Software and License.

Subject to the terms and conditions set forth in this Agreement, Navigo grants to Customer a non-exclusive, non-transferable license to (i) install and use the Software solely for use by or for the applicable number of Users or other items licensed pursuant to the Order(s), as set forth in the relevant end user Documentation and as permitted hereunder, and (ii) make a reasonable number of copies of the Software and Documentation as set forth in Section 2.2 below. 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.

 

2.2.Copies.

Except as stated in any User Restrictions, Customer may reproduce the Software and Documentation as reasonably necessary, provided that (i) such reproduction is made solely in connection with Customer’s permitted use of the Software or Documentation as described in this Agreement, (ii) all such reproductions include all copyright or similar proprietary notices contained in the items being reproduced and (iii) all copies remain under the control of Customer.

2.3. 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.

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.

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 fourteen (14) 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.

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. Ownership.

5.1 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.

6. 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.

 

7. 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 exclusiveremedy under the foregoing warranty, use all commercially reasonable efforts to correct such Program Errors. 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.

8. Indemnity.

8.1. 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.

8.2 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.

9. Limitation of Liability.

EXCEPT FOR ANY BREACH OF SECTION 6 (“CONFIDENTIALITY”) AND ANY INDEMNITY OBLIGATIONS ARISING UNDER SECTION 8 (“INDEMNITY”), IN NO EVENT SHALLNavigo 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.

10. Term and Termination.

10.1. 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 10.

 

10.2. 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.

10.3. 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.

10.4 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.

 

11. 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 for download in our Support Desk. Following such notification by Navigo, Customer may request Navigo to apply the upgrade on their behalf on a time and materials basis.

 

Response Times

Problem Classification	Initial Problem Acknowledgement/Receipt	Initial Action Plan/ Status Update	Permanent Fix/ Work Around
Critical	2 hours	24 hours	20 days
Serious	4 hours	3 days	45 days
Medium	8 hours	5 days	110 days
Low	8 hours	10 days	Next release

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