Standard Terms and Conditions for SaaS Services
Provision of Services
1.1 Orcoda Limited (Orcoda) must:
(1) provide or support the Installation and Implementation in accordance with the scope set out in the Proposal or any Supplementary Proposal; and
(2) subject to clause 1.3, provide the Services to the Client until the end of the Term following Implementation.
1.2 For equipment procured by other suppliers to deliver the Services, the equipment and any related installations will be governed by those suppliers’ terms and conditions.
1.3 Orcoda grants to the Client a non-exclusive, non-transferable, revocable licence for the Term to use the System solely for the purposes specified in the Proposal and any Supplementary Proposal.
1.4 Orcoda must use reasonable efforts to maintain the System and for that purpose, engage competent and skilled technical personnel; and provide the Client with reasonable training and support.
1.5 If within 30 days after Implementation, the Client has not given a notice to Orcoda specifying errors or omissions in the operation of the System, then Orcoda is deemed to be fulfilling its obligations in accordance with the terms of this Agreement.
- 2. Term and Termination
2.1 This Agreement commences on the Commencement Date and continues until the earlier of: (i) the minimum term set out in the Proposal or Supplementary Proposal, and ii) termination in accordance with this Agreement. For the avoidance of doubt, if no notice of non-renewal has been given by either party to the other at least 30 days prior to the end of minimum term, this Agreement shall continue until termination.
2.2 After the minimum term set out in the Proposal or Supplementary Proposal, Orcoda or the Client may terminate the Services upon 30 days prior notice to the other.
2.3 Notwithstanding clause 2.2, Orcoda may immediately terminate or suspend the Services or suspend the Installation and Implementation if the Client:
(1) commits a remediable breach of this Agreement and fails to remedy that breach within 7 days after service of a notice to do so;
(2) commits a non-remediable and material breach of this Agreement;
(3) commits any act of bankruptcy or insolvency or enters into an arrangement or compromise arrangement with creditors or a receiver or administrator of its assets is appointed; or
(4) fails to pay any of the Fees or Charges by their due date for payment.
2.4 Notwithstanding clause 2.2, the Client can terminate this Agreement if Orcoda:
(1) commits a remediable breach of this Agreement and fails to remedy that breach within a reasonable timeframe after service of a notice to do so;
(2) commits a non-remediable and material breach of this Agreement;
(3) commits any act of bankruptcy or insolvency or enters an arrangement or compromise arrangement with creditors or a receiver or administrator of its assets is appointed.
- 3. Fees and Charges
3.1 The Client must pay any Fees and Charges by their due date for payment.
3.2 Payment terms are set out in the Proposal or Supplementary Proposal and/or invoices as applicable; otherwise generally Fees and Charges are payable within 20 days from the date of the invoice.
3.4 The Client must pay interest at the Interest Rate on any Fees and Charges which remain unpaid after their due date for payment.
3.5 The Client must reimburse Orcoda for the cost of travel, accommodation and reasonable living expenses related to the Installation, Implementation, customisation and operation of the System or Equipment.
3.6 During the Term any applicable Fees and Charges will increase on each anniversary of the Activation Date by the greater of 4% or the CPI during the 12 months ending at the expiration of the quarter year immediately preceding the date of that anniversary.
- 4. Orcoda’s Responsibilities
4.1 Orcoda must:
(1) appoint a project manager to liaise with the Client in respect of the Implementation.
(2) agree with the Client a plan for the Implementation including appropriate timelines;
(3) furnish the Client with particulars of the format in which Transport Data should be loaded into the System;
(4) use reasonable endeavours to maintain the Transport Data free from corruption or tampering; and
(5) use reasonable endeavours to make backup copies of Transport Data held on Orcoda’s server daily and retain such backup copies for one month.
- 5. Client’s Responsibilities
5.1 The Client must:
(1) appoint a project owner to be responsible & accountable for the Implementation;
(2) agree with Orcoda a plan for the Implementation including appropriate timelines;
(3) provide at all times appropriate resources for the Implementation and operation of the System;
(4) keep the user name and password provided by Orcoda secure and confidential and immediately notify Orcoda of any breach of this obligation;
(5) pay any Fees and Charges resulting from the use of the password provided by Orcoda by it or by any person or entity irrespective of whether the Client gave prior consent to that use;
(6) present all Transport Data and all messages to be carried by Orcoda free from corruption, and viruses or other malicious or harmful code, and in a format notified by Orcoda to the Client from time to time;
(7) provide Orcoda with all relevant information concerning the Client and its business to enable Orcoda to provide the Services;
(8) secure all permissions and communications services necessary to enable Orcoda to transmit or receive the contents of any message associated with the Transport Data;
(9) load the Transport Data electronically into the System;
(10) install the Equipment upon delivery in accordance with any user instructions, the Proposal and any Supplementary Proposal; and
(11) accept the Acceptable Use Policy and procure its users to accept the Acceptable Use Policy as applicable.
5.2 The Client must not and must not attempt to modify, alter, copy, reproduce or re-engineer the whole or any part of the System or the Equipment, including but not limited to any software.
5.3 The Client indemnifies and keeps indemnified and holds harmless Orcoda, its servants, agents and contractors from and against any loss, claims or damages that may be made against them or sustained by them as a result of any breach of this Agreement by the Client.
5.4 Any failure by the Client to fulfill its responsibilities does not effect its obligation to pay the Fees and Charges.
- 6. Continuation of Service
6.1 Orcoda must use reasonable endeavours to provide the Services continuously but the Client acknowledges that:
(1) there may be interruptions or errors to the Services caused by a variety of factors such as hardware or software failure or unavailability of communication links because of the failure of an external party to supply goods and services to Orcoda or the Client; and
(2) Subject to clause 9.6, Orcoda is not liable for any loss or damage of any nature arising from any interruption in the supply of the Services and Orcoda’s sole obligation is to reconnect the Services as quickly as practicably possible.
6.2 If Orcoda modifies the System or the Services for any reason:
(1) the Client must provide Orcoda with all reasonable assistance and data as may be necessary to enable Orcoda to continue to provide the Services;
(2) Orcoda must carry out the modification with all reasonable expedition; and
(3) any suspension of the Services during that modification does not constitute a breach of this Agreement.
- 7. Maintenance
7.1 Orcoda must use reasonable endeavours to:
(1) maintain the System to provide the Services;
(2) provide reasonable security and virus protection;
(3) maintain and with regularity, update map data;
(4) implement appropriate software upgrades (excluding new software versions that provide significant new functionality or benefits, in which case such versions may be the subject of a Supplementary Proposal).
7.2 The Client must:
(1) maintain Internet and wireless connectivity & performance suitable for the use of the Services;
(2) maintain an operating environment to support and interface with the Services and the System;
(3) maintain security and a system of authorised use of the System;
(4) advise Orcoda when key staff leave its employ so that access passwords may be changed;
(5) ensure relevant staff have appropriate computer skills to use the Services and the System;
(6) train relevant staff on the proper use and support of the Services and the System; and
(7) maintain proper manuals and documentation for the use of the Services and the System.
7.3 In addition to ongoing maintenance, Orcoda may from time to time call for periods of scheduled downtime required for equipment maintenance, operational maintenance, upgrades and unavoidable outages. Orcoda must use reasonable endeavours to provide prior notice to the Client of the downtime and to minimise the maintenance period. Downtime on the System will normally be scheduled between the hours of 7 pm and 5 am AEST or during weekends, but this may not always be practicable and the Client acknowledges that:
(1) Orcoda, in a situation of emergency, may not have the opportunity to provide prior notice of downtime to the Client; and
(2) Subject to clause 9.6, Orcoda has no liability to the Client arising from any period of downtime.
7.4 If, under the Proposal or a Supplementary Proposal, the software forming part of the System is loaded on to a computer system which is not owned or controlled by Orcoda then:
(1) the Client must maintain sufficient equipment and resources and perform sufficient backups of its data to meet its operational needs in the case of hardware or software malfunction; and
(2) Notwithstanding any other clause of this Agreement, Orcoda has no responsibility for the operation of that computer system, and (without limitation) the relevant obligations of Orcoda under clauses 4.1(4) and (5), 6, 7.1 and 7.3 do not have application.
- 8. Training and Support
8.1 Orcoda must provide:
(1) initial staff training as designated in the Proposal;
(2) additional staff training between the hours of 8 am and 5 pm AEST on Business Days upon request at the consultancy rates specified in the Proposal or a Supplementary Proposal;
(3) on Business Days between the hours of 8 am and 5 pm AEST, reasonable telephone support to assist the Client to use the Services and the System, subject to any conditions specified in the Proposal or a Supplementary Proposal;
(4) On Business Days outside the hours of 8 am and 5 pm AEST or on non-Business Days, additional staff training or support by special arrangement at a fee agreed between the parties at the time; and
(5) user documentation for the System and the Services.
- 9. General Terms
9.1 Proprietary Software and Intellectual Property
(1) Orcoda uses proprietary software and other know-how to provide the Services and the Client acknowledges that all rights in relation to that software and that know-how, any pre-existing intellectual property, and intellectual property that may arise in the course of provision of the Services or customisation of the System, remain with Orcoda or those with whom Orcoda has commercial (including licensing) arrangements. The Client must not make any use of that software or know-how or other intellectual property, other than is necessary for accessing the System and using the Services and in particular is not entitled to copy, reproduce, or modify any such software or other know-how or intellectual property.
(2) Without limiting the operation of clause 9.1(1), the Client must not do or cause to be done anything interfering with the proprietary rights of software or other items of intellectual property and agrees that other than as provided under this Agreement, the Client’s use of the System (including any software) or other items of intellectual property does not create any right, title or interest in that System, software or those items for the Client.
9.2 Confidentiality of Information
(1) Orcoda must use reasonable endeavours to keep confidential the Transport Data and other confidential information in its possession or control and must take reasonable steps to protect it against unauthorised duplication, access or security breaches.
(2) The Client acknowledges that Orcoda does not warrant that any data or information will be protected against unauthorised duplication, access or security breaches.
(3) Orcoda is not liable to the Client for any unauthorised access to the System (including through hacking attack, virus or other malicious or harmful code).
9.3 Personal Information and Privacy
(1) Orcoda and the Client agree to comply with its obligations under the Privacy Act 1988 (Cth) and other legislation affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data to the extent that such legislation applies to that party in connect with performance of this Agreement.
(2) The Client agrees to procure all permissions and make all disclosures necessary to allow Orcoda to obtain, use and disclose the Personal Information (as that term is used in the Privacy Act 1988 (Cth)) that the Client and any users provide in the course of this Agreement, for the purpose of this Agreement.
(3) The Client must give Orcoda all assistance required and comply with all directions given by Orcoda from time to time in relation to Orcoda’s privacy policy, Orcoda’s compliance with the Privacy Laws or any investigation, request or enquiry from the Office of the Australian Information Commissioner or any other regulatory body regarding the information disclosed to Orcoda under this Agreement.
(4) The Client must notify Orcoda immediately if it becomes aware of any breach or likely breach of this clause 9.3.
(5) The Client must ensure that its computer network is secure. Orcoda is not responsible for the security of the Client’s data or its computer network.
9.4 Amendments or Variations
Orcoda has agreements with other parties including suppliers of street, traffic and route information and data, which may be amended from time to time with such amendments impacting on this Agreement. Orcoda may unilaterally vary this Agreement to the extent necessary for it to comply with any variation or amendment to agreements with external parties but other than that, any amendment or modification to this Agreement shall not be effective unless in writing signed by both Parties.
9.5 Chain of Responsibility
(1) Orcoda provides the Services to be used by the Client to improve the Client’s transport, delivery and/or service operations but the Client acknowledges that the manner in which it uses the Services and the operational decisions it makes to operate its transport, delivery and/or service operations is solely decided by itself.
(2) The Client indemnifies and keeps indemnified Orcoda from all liability (whether arising under any statutory or common law cause of action) from any operational decisions or policy decisions that may be made by the Client in the course of its transport, delivery and/or service operations.
9.6 Liability
(1) The only conditions and warranties which are binding on Orcoda in respect of the Installation, the Implementation, the customisation of the System, the consultancy services, the Services, the System supplied by it, its employees, servants or agents to the Client are those set out in this Agreement and those imposed by statute (including the Trade Practices Act 1974) and which cannot be excluded.
(2) To the extent permitted by statute, the liability, if any, of Orcoda arising from any breach of the conditions or warranties referred to in the preceding clause is, at Orcoda’s option, limited to and completely discharged by either:
(a) the supply by Orcoda of equivalent services or system; or
(b) the replacement by Orcoda of any of the components of the System or Equipment supplied or provided to the Client by Orcoda.
(3) Except to the extent provided in clause 9.6(1) and (2), Orcoda has no liability (including liability in negligence) to any person whether under contract, tort, or other common law or statutory cause of action for any loss, damage, cost or expense, whether direct, indirect, consequential or otherwise, suffered or incurred by that person:
(a) in relation to the Installation, the Implementation, the customisation of the System, the consultancy services, the System, the Equipment, or the Services; or
(b) caused by or resulting directly or indirectly from any failure, defect or deficiency of any kind in the Installation, the Implementation, the customisation of the System, the consultancy services, the System, the Equipment or the Services.
(4) Except to the extent provided in clause 9.6(1) and (2), Orcoda is not liable to the Client for any loss or damage suffered or incurred by the Client arising from or in relation to:
(a) any failure by Orcoda to meet any performance specifications or criteria set out in the Proposal or any Supplementary Proposal where such failure arose from circumstances beyond the control of Orcoda; or
(b) any errors, omissions or defects in any materials or services supplied to Orcoda by a third party.
9.7 Force Majeure
(1) If either party is unable, as a result of Force Majeure, to carry out its obligations under this Agreement (other than payment of money), it must give the other party prompt written notice of the occurrence and particulars of the act, event or cause constituting the Force Majeure and, in so far as known, the probable extent to which it will be unable to carry out, or be delayed in carrying out its obligations and thereupon will not be required to carry out those obligations for the period of Force Majeure.
(2) Despite clause 9.7(1), each party must use reasonable endeavours to overcome or remedy the Force Majeure as quickly as possible.
9.8 Dispute Resolution
(1) Each party agrees to use best endeavours to resolve in good faith any dispute concerning this Agreement.
(2) If a dispute arises between the parties that cannot be resolved promptly, either party may notify the other party of a formal dispute. Each party must nominate a senior executive to meet within 7 days of notice (or another agreed period) to try and resolve the dispute.
(3) Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Brisbane, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.
9.9 Notices
All notices required to be given under this Agreement must be in writing and sent by prepaid registered mail and in each case addressed to the party as particularised in this Agreement.
9.10 Proper Law and Jurisdiction
This Agreement is governed by the laws in force in the Australian State of Queensland and the parties submit to the non-exclusive jurisdiction of the Courts of that State and all Courts competent to hear appeals from those Courts.
9.10 GST and Other Taxes
(1) All amounts payable under this Agreement are exclusive of goods and services tax (GST).
(2) If a party making a supply under this Agreement (Supplier):
(a) is liable to pay GST on that supply; and
(b) the fee or charge stated in this Agreement for that supply does not expressly include GST, then the party receiving the supply must pay the Supplier an additional amount equal to the consideration payable for the supply multiplied by the prevailing GST rate.
(3) Orcoda will issue a tax invoice for Fees and Charges to the Client.
(4) The Client must pay all other taxes in respect of this Agreement.
- Entire Agreement
The Proposal, any Supplementary Proposals, this standard terms and conditions and the Acceptable Use Policy constitute the entire agreement between the parties.
- Definitions and Interpretation
11.1 Definitions
(1) Acceptable Use Policy means a separate document stipulating constraints and practices that a user must agree to for access to the System.
(2) Agreement means the Proposal, each Supplementary Proposal and these terms and conditions.
(3) AEST means Australian Eastern Standard Time
(4) Business Day means:
- a day upon which registered banks are open for the transaction of business in Victoria, Australia; and
- a bank holiday in Victoria, Australia which is not a public holiday in Victoria, Australia.
(5) Client means the party to which the Proposal is addressed.
(6) CPI means the Consumer Price Index for Australia (all groups) published by the Commonwealth Statistician.
(7) Commencement Date means the date of execution of this Agreement.
(8) Equipment means equipment to be supplied by Orcoda (for avoidance of doubt, excludes equipment to be supplied by other providers) which is specified in a Proposal and any Supplementary Proposal.
(9) Fees and Charges mean the implementation, training and license fees, the consultancy fee hourly rate and any other fees or charges, as specified in the Proposal or in any Supplementary Proposal.
(10) Force Majeure means any act, event or cause beyond the reasonable control of the party concerned including, but not limited to, Acts of God, perils of the sea, war, sabotage, riot, storm and tempest, earthquake, landslide, explosion, strike and other labour difficulties (whether or not involving employees of the party concerned) or failure of the Internet or world wide web, the GPS system or any telecommunication service.
(11) Implementation means the delivery of the System by Orcoda to the Client to provide the Services.
(12) Installation means the delivery to the Client’s premises of the Equipment with installed software, as specified in the Proposal or in any Supplementary Proposal. For the avoidance of doubt, Installation does not include installation of the Equipment in the Client’s premises or vehicles.
(13) Interest Rate means a rate of interest being the Westpac Reference Lending Rate plus 2%.
(14) Proposal means the proposal / order form signed by Orcoda and the Client setting out particulars of the Installation, Implementation, the Services and the Fees and Charges.
(15) Services means the services specified in the Proposal or in any Supplementary Proposal.
(16) Supplementary Proposal means a supplementary proposal setting out particulars of additional or revised Services and the Fees and Charges for those additional or revised Services.
(17) System means the software, hardware and/or equipment which is owned or controlled by Orcoda and which is used by Orcoda to provide the Services but excludes:
- equipment consisting of hardware or devices designed for mobile or vehicle-mounted operation by the Client or any other hardware, software or equipment installed in the Client’s premises or vehicles; and
- hardware, software or equipment which is not owned or controlled by Orcoda.
(18) Term means the term specified in clause 2.1.
(19) Transport Data means all information concerning the Client necessary to enable provision of the Services.
11.2 Interpretation
(1) Reference to:
- the singular includes the plural and vice versa;
- a party includes that party’s successes and permitted assigns.
(1) “Including” and similar expressions are not words of limitation.
(2) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or that expression have a corresponding meaning.
(3) Headings are for convenience only and do not form part of this Agreement or affect its interpretation.
(4) A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement.
(5) If there is any inconsistency between these terms and conditions, the Proposal or a Supplementary Proposal, and the Acceptable Use Policy, then those documents take precedence in the following order:
(a) the latest Supplementary Proposal;
(b) the Proposal;
(c) these terms and conditions; and
(d) the Acceptable Use Policy.