Master Software Services Agreement

COREIoT has developed and is the proprietor of the Software.

COREIoT has agreed to provide the Customer with a non-exclusive right to use the Software for any relevant Proposal Term and to provide the Services in relation to the Software.

The Parties agree that the rights and obligations of the Parties, in relation to the provision of the Software and the Services, are set out in the Software Services Documents.

Definitions

In this Agreement the following definitions apply:

Adjustment Note

has the meaning given in the GST Act and includes any document or records treated by the Commissioner of Taxation as an adjustment note.

Agreement

means the master software services agreement contained in this document.

Annual Fees

means the annual fees for the Software and the Services, in relation to a Proposal, specified in Schedule 3.

Business Day

means a day other than a Saturday, Sunday or a public holiday in Western Australia.

Claim

includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, immediate, future or contingent, whether ascertained or unascertained as to quantum, whether based in contract, tort or statute and whether involving a third party or a Party to this Agreement or a Software Services Document.

Confidential Information

means all information disclosed by a Party to the other Party both prior to and after the date of this Agreement, whether orally or in writing, which is confidential by its nature, designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. Confidential Information does not include information that is public knowledge, or becomes public knowledge or was known to one Party prior to the disclosure by the other Party, or is received from a third party not under an obligation of confidence or was independently developed by the Party receiving the Confidential Information.

Confidential Information of COREIoT includes:

Cyber Incident

has the meaning given to that term in clause 11.1.1.

Delay

has the meaning given to that term in clause 10.1.

Dispute Notice

has the meaning given to that term in clause 16.1.

End User Licence Agreement

means COREIoT’s end user licence agreement provided to the Customer from time to time.

Fees

mean the fees specified in a Proposal for the Software and the Services and any fees described in Schedule 1, Schedule 2 and Schedule 3 of this Agreement.

Force Majeure Event

means any fire, flood, earthquake, elements of nature or acts of God, strikes, acts of war, terrorism, riots, civil disorders and labour disputes or other industrial disturbances or government embargoes and systemic electrical, telecommunications or other utility failures which prevent access to the Software or the Services or any other omission or circumstance beyond the reasonable control of a Party.

Goods

means any goods provided by COREIoT to the Customer in relation to the Software and Services in accordance with clause 4 of this Agreement.

GST

has the same meaning as in the GST Act and includes any replacement or subsequent similar tax.

GST Act

means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Immediately Available Funds

means cash, bank cheque or telegraphic or other electronic means of transfer of cleared funds into a bank account

Integration Services

means the integration services described in Tables A and B of Schedule 2.

Intellectual Property

means any copyright and analogous rights, trade marks, service marks, designs, inventions (including patents), trade, business or company names, trade secrets, know-how, Confidential Information or other proprietary information, and similar industrial, commercial and intellectual property rights whether or not registered or registrable.

Intellectual Property Rights

means all intellectual property rights of whatever nature throughout the world, whether created before or after the date of this Agreement, in respect of or in connection with any Intellectual Property (including any right to apply for or renew any registration of such rights) and, without limitation, any right arising from or capable of arising from any legislation both within and outside the Commonwealth of Australia.

Law

includes any requirement of any statute, regulation, proclamation, ordinance or by-law, present or future and whether State, Federal, local or otherwise.

Other Incident

has the meaning given to that term in clause 11.1.2.

Out of Scope Request

has the meaning given to that term in clause 2.9.1.

Out of Scope Services

means each of the out of scope services identified in Schedule 1.

Party

means a Party to this Agreement and its successors, trustees and permitted assigns.

Personal Property Securities Register

means the personal property securities register established under the PPSA.

PPS Security Interest

has the meaning given to that term in clause 8.1.

PPSA

means the Personal Property Securities Act 2009 (Cth).

Proposal

means a written document provided to the Customer by COREIoT which may be in the form of a written scope, statement of work, quotation or an estimate, which incorporates the Terms and Conditions.

Proposal Commencement Date

means the date specified in the relevant Proposal, or as otherwise agreed between the Parties in writing.

Proposal Term

means the term specified in the relevant Proposal (unless otherwise terminated earlier in accordance with the relevant Terms and Conditions), or as otherwise agreed between the Parties in writing.

Service Levels

means the levels of Services described in columns 1, 2 and 3 of the table in Schedule 4.

Services

means the services described in a Proposal and any Support Services, Integration Services and Out of Scope Services (with respect to the latter, which COREIoT has agreed to provide in accordance with clause 2.9).

Services Centre Times

means from 8:00am to 5:00pm (AWST) on Business Days, or as otherwise agreed in writing between the Parties.

Software

means the software (including all code, API, UI, and in any form whether, physical or electronic) developed by COREIoT, the specifications of which are more particularly described in each Proposal.

Software Services Documents

means this Agreement, any End User Licence Agreement, any Proposal and the relevant Terms and Conditions.

Supply

has the same meaning as in the GST Act.

Support Services

means the support services described in Tables C and D of Schedule 2.

Tax Invoice

has the meaning given in the GST Act and includes any document or record treated by the Commissioner of Taxation as a tax invoice.

Taxable Supply

has the same meaning as in the GST Act.

Term

has the meaning given to that term in clause 5.1.

Terms and Conditions

means the terms and conditions incorporated within a Proposal.

Station

A station is a tablet or computer device that allows operator to perform the tasks or supervisors to manage the shop floor.

Work Centre

A work centre is per machine/robot/cobot/workbench where Scheduling is being performed. Work Centre belongs a single site and department. Multiple operators can access a single work centre. Licence is calculated based on number of work centres.

Shift

Shift is deemed as operating hours in 4, 6, 8 or 12 hours increment. License is calculated based on number of shifts.

Location

Location is deemed a single facility at one physical address. License is calculated based on number of locations with multiple addresses.

Interpretation

In this Agreement, unless the context otherwise requires:

Supply of Software and Services for the Term

COREIoT shall provide to the Customer:

in respect of a Proposal, for the duration of the relevant Proposal Term in accordance with the terms of the Software Services Documents.

The Parties acknowledge and agree that the terms of a Proposal and the relevant Terms and Conditions are binding on the Parties.

Operation of the Software Services Documents

This Agreement operates concurrently with any:

Unless stated otherwise, any inconsistency between Software Services Documents will be resolved in the following order of paramountcy:

Support Services and Integration Services

The relevant Fees and scope of Services to be provided in respect of Support Services and Integration Services is described in Schedule 2.

Any Support Services and Integration Services required by the Customer, which exceeds the number of hours available in the Customer’s service package, will be provided by COREIoT at the rates described in Table B and Table D of Schedule 2.

The scope and Fees described in Schedule 2 prevail over any inconsistency with any End User Licence Agreement, a Proposal and the relevant Terms and Conditions.

Out of Scope Services

The Parties acknowledge and agree that each of the Out of Scope Services identified in Schedule 1 are excluded from the Services to be provided under the Software Services Documents, unless the Parties agree in writing that the relevant Out of Scope Services will be provided by COREIoT to the Customer in accordance with clause 2.9.

If the Customer requires COREIoT to provide any of the Out of Scope Services:

Clauses 2.8, 2.9 and the Out of Scope Services identified in Schedule 1 prevail over any inconsistency with any End User Licence Agreement, Proposal and the relevant Terms and Conditions.

Ownership

Nothing in any Software Services Documents shall be construed to transfer to the Customer any Intellectual Property Rights of COREIoT. At all times, COREIoT remains the owner of all Intellectual Property Rights in the Software (including all customisations, modifications and upgrades of the Software) any related software documentation, COREIoT brands, products, training materials and marketing materials and any improvements to COREIoT’s existing tools and methodologies that may be created, written or otherwise brought into existence by or on behalf COREIoT in the course of performing its obligations under the Software Services Documents.

For the avoidance of doubt, the Customer acknowledges and agrees that COREIoT remains the sole owner of the Intellectual Property Rights in relation to, or arising from, the Services or providing the Services (including but not limited to any future services, integration of the Software and any custom development performed by COREIoT on the Software in respect of any alternation or modification for the Customer).

Service Levels

COREIoT must provide the Services in accordance with the Service Levels and endeavour to meet or exceed the support service levels described in Schedule 4.

If requested by the Customer in writing, COREIoT may prepare a software support service level report for the Customer on a chargeable basis at COREIoT’s ‘Standard Hourly Rates’ (as that term is defined in the relevant Terms and Conditions).

Changes to Service Levels

Service Levels can only be added, varied or removed by mutual agreement between the Parties in writing.

Goods generally

COREIoT may sell Goods in relation to the Software and Services to the Customer from time to time in accordance with the relevant Proposal or as agreed between the Parties in writing.

COREIoT must provide all documentation associated with the Goods to the Customer (except as otherwise agreed between the Parties).

The Customer must pay COREIoT for the Goods within 30 days of the date of the tax invoice issued by COREIoT to the Customer.

If any payment for Goods owing to COREIoT is not made within 30 days of the due date, COREIoT may, on written notice, suspend Services or its remaining obligations to the Customer under any Software Services Document until payment is made.

If any payment for Goods owing to COREIoT is not made within 45 days of the due date, COREIoT may, on written notice, suspend the Customer’s access to the Software and Services and remove the Customer’s ability to access the Software and Services.

The Customer irrevocably waives all of its rights to make a Claim against COREIoT in relation to COREIoT’s actions taken in accordance with clauses 4.4 and 4.5.

Title and risk in the Goods will pass to the Customer on the earlier of delivery or payment in full for the Goods.

The Customer acknowledges and agrees that COREIoT does not provide any warranty in respect of any Goods provided under any Software Services Document and that any Claims made by the Customer in respect of any Goods must be made by the Customer directly against the manufacturer of the Goods (and not COREIoT).

The Customer irrevocably waives all of its rights to make a Claim against COREIoT in relation to any Goods and acknowledges that COREIoT is not liable to the Customer for any defects or other issues in respect of any Goods provided to, or otherwise made available to, the Customer under any Software Services Document.

Term

This Agreement will continue from the date on which the last Party executes this Agreement until the date on which this Agreement is terminated under clause 15 (Term).

Proposal Term

For the avoidance of doubt, the Parties acknowledge and agree that a Proposal and its relevant Terms and Conditions continue to legally bind the Parties after termination of this Agreement, unless that Proposal is expressly terminated in accordance with its relevant Terms and Conditions.

Mutual Warranties

For the duration of the Term and any Proposal Term, each Party warrants to the other that:

The Customer must notify COREIoT within One (1) Business Day if the Customer breaches, or considers that it is likely to breach, a warranty under clause 6.1.

Payment of Fees

The Customer must pay to COREIoT the Fees for the Software and the Services in accordance with the Software Services Documents.

Unless otherwise agreed by COREIoT, the Customer must pay all Fees to COREIoT in Australian dollars and Immediately Available Funds.

Unless otherwise agreed between the Parties in writing, the Customer must pay all amounts due under any Software Services Document in full without any abatement, deduction, set-off or withholding.

The Customer must pay COREIoT the Fees within 30 days of the date of the tax invoice issued by COREIoT to the Customer.

Interest shall be payable by the Customer on all amounts overdue to COREIoT at the rate of 12% per annum accruing, calculated from the due date for payment of the outstanding amount until the date of payment by the Customer.

Any payment made by the Customer will be applied first against any interest that has accrued.

Fees are exclusive of all taxes including without limitation any GST, and the Customer must pay, and keep COREIoT indemnified against any taxes only which are legally due and payable by the Customer in respect of the Fees but excluding income taxes.

If any payment owing to COREIoT is not made within 30 days of the due date, COREIoT may, on written notice, suspend further Services and / or its remaining obligations to the Customer under any Software Services Document until payment is made.

If any payment owing to COREIoT is not made within 45 days of the due date, COREIoT may, on written notice, suspend the Customer’s access to the Software and Services and remove the Customer’s ability to access the Software and Services.

The Customer irrevocably waives all of its rights to make a Claim against COREIoT in relation to COREIoT’s actions taken in accordance with clauses 7.8 and 7.9.

Fee increases

After each anniversary of a Proposal Commencement Date, COREIoT may increase its Fees under the relevant Proposal to reflect any reasonable increase (including any increase in the national CPI +2%, and any increase in third party interchange and/or processing fees, over the immediately preceding 12 months).

COREIoT must notify the Customer in writing, at least 15 Business Days before any Fee increase under clause 7.11 takes effect.

Annual Fees

The Parties acknowledge and agree that the Annual Fees described in any Proposal are further detailed in Schedule 3 of this Agreement.

The scope and Fees described in Schedule 3 prevail over any inconsistency with any End User Licence Agreement, a Proposal and the relevant Terms and Conditions.

Annual fees include a 10% discount. If the Customer would like to pay monthly the monthly payments fees will be calculated as (Annual +10%) / 12.

Security Interests

The Customer acknowledges that a “security interest” (as defined in the PPSA) may arise under the transactions contemplated under any Software Services Document (PPS Security Interest).

The Customer acknowledges and agrees that if a PPS Security Interest arises under a Software Services Document, COREIoT may register on its interest in such PPS Security Interest as a secured party, on the Personal Property Securities Register.

The Customer must do anything that COREIoT reasonably requires for the purposes of:

To the extent permitted by the PPSA, COREIoT need not give any notice under the PPSA (including a notice of a verification statement) and the Customer waives its right to receive such notices, unless the notice is required by the PPSA and cannot be excluded.

The Customer will not create or purport to create any security interest in its interest in any Software Services Document, the Software or the Services, nor any property (including Intellectual Property owned by COREIoT), nor register, or permit to be registered, a financing statement or a financing change statement in relation to the same in favour of a third party, without COREIoT’s prior written consent.

Unless otherwise agreed in writing, and to the extent permitted by the PPSA, COREIoT and the Customer agree not to disclose information of the kind referred to in section 275(1) of the PPSA to an interested person, or any other person or entity instructed by an interested person. The Customer waives any right it may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.

COREIoT insurance requirements

COREIoT must, at its own cost, maintain the following insurance policies, where COREIoT is noted as the insured:

Customer insurance requirements

The Customer must, at its own cost, maintain the following insurance policies, where the Customer is noted as the insured:

Delays under Proposal timeline

COREIoT must notify the Customer as soon as practicable after becoming aware of anything that is likely to or will result in a material delay in the provision of the Services (Delay), specifying:

COREIoT must:

If COREIoT considers that the Delay will or may result in a failure by COREIoT to perform one or more of its obligations under any Software Services Document by the due date, then:

Incidents

If COREIoT becomes aware of any actual or suspected:

COREIoT must:

COREIoT shall not be liable for any failure or delay in the performance of its obligations under any Software Services Document to the extent such failure or delay is caused wholly or predominantly by a Cyber Incident or Other Incident, provided that:

The Customer is responsible for ensuring they have correct cyber protection systems (software and hardware systems) and processes in place to prevent cyber incidents through their IT infrastructure and networks.

Recovery of GST

All amounts referred to in this Agreement are exclusive of GST unless otherwise specified.

If GST is or will be imposed on a Supply made by a Party under or in connection with this document (including costs required to be reimbursed or indemnified under this document), the supplier may, to the extent that the consideration otherwise provided for that Supply under this document is not stated to already include an amount in respect of GST on the Supply:

Invoices required

The recovery of any amount in respect of GST by the supplier under this document on a Supply is subject to the issuing of the relevant Tax Invoice or Adjustment Note to the recipient. Subject to any other provision of this document, the recipient of a Supply must pay any amount in respect of GST within 7 days of the issuing of the relevant Tax Invoice or Adjustment Note to the recipient.

Reimbursements

Despite clause 12.1, if a Party is entitled under this document to be reimbursed or indemnified by the other Party for a cost or expense incurred in connection with this document, the reimbursement or indemnity payment must not include any GST component of the cost or expense for which an input tax credit may be claimed by the Party entitled to be reimbursed or indemnified.

Value of Taxable Supplies

Where the consideration for a Taxable Supply under this document is not, or is not expressed, as an amount of money, the Party making the Supply will provide the recipient with a Tax Invoice for that Supply based on the GST inclusive market value of the consideration as determined in good faith by the Party making the Supply.

If a Party disputes the GST inclusive market value of the Supply determined by the Party making the Supply under clause 12.5, the disputing Party may refer the matter for determination by an expert.

Invoice

Without affecting the obligations of the Parties under this document, this document is not a document notifying an obligation to make payment and is not an invoice under the GST Act.

Confidential Information

No Party may release:

without the prior written consent of the other Party.

This clause does not apply to:

Form and delivery

A notice, consent, information or request that must or may be given or made to a Party under this Agreement is only given or made if it is:

or at such other address or email (as the case may be) that has been specified in clause 14.2 of this Agreement, or notified by that Party to the other Party in writing, from time to time.

Particulars for delivery of notices

The particulars for delivery of notices to the Parties are initially those contained on page 1 of this Agreement.

Each Party may change its particulars for delivery of notices by notice to each other Party.

Execution of emails

If notice is given by email, the sending Party must ensure that it is either signed by means of an electronically produced signature of a person authorised by that Party to send the email or states that it is being sent by a person authorised to send the email on behalf of that person.

Receipt and effect

A notice, consent, information or request is to be treated as given or made at the following time if it is:

If:

after the normal business hours of the Party to whom it is delivered or sent, it is to be treated as having been given or made at 9.00am the next Business Day.

Termination by either Party

Without limiting the generality of any other provisions in this Agreement, either Party may terminate this Agreement immediately by notice in writing if:

If notice is given to the Customer pursuant to Clause 15.1, then COREIoT may, in addition to terminating this Agreement:

Effect of termination

Termination of this Agreement will not affect any other rights the Parties have against one another at Law or in equity.

On termination of this Agreement:

Survival of termination

If this Agreement is terminated under this clause 15, except for clauses 2.11, 2.12, 4.8, 4.9, 7.13, 7.14, 9, 13, 14, 15 and 18, the terms and conditions of this Agreement will be void and of no effect.

If this Agreement is terminated under this clause 15 and any Proposals continue to exist and have not been terminated in accordance with the relevant Terms and Conditions, except for clauses 2.2, 2.8, 2.9, 2.10, 2.11, 2.12, 3, 4.8, 4.9, 5.2, 6, 7, 8, 9, 10 ,11, 13, 14, 15 and 18, the terms and conditions of this Agreement will be void and of no effect.

Clauses 2.2, 2.8, 2.9, 2.10, 3, 5.2, 6, 7 (other than 7.13 and 7.14), 8, 10 and 11 will be void and of no effect when the last remaining Proposal is terminated in accordance with the relevant Terms and Conditions.

Termination of a Proposal

The Parties acknowledge that the termination of this Agreement, does not in itself terminate any Proposal. A Party may only terminate a Proposal in accordance with the relevant Terms and Conditions of that Proposal.

Effect of termination of a Proposal

Subject to clause 15.9, within 60 days after the effective date of termination or expiration of a Proposal, COREIoT will automatically delete or destroy any Customer data it has in its systems or otherwise in its possession or control and provide written confirmation of compliance with this clause to the Customer.

Subject to clauses 15.10 and 15.11, within [30] days after the effective date of termination or expiration of a Proposal, the Customer may request that COREIoT maintain all or some or its Customer data and provide the data to the Customer in a reasonably accessible form within 30 days of the Customer’s request.

Any request under clause 15.9 will be charged by COREIoT to the Customer at the ‘Standard Hourly Rates’ (as that term is/was defined in the relevant Terms and Conditions) plus the cost of materials.

COREIoT is not obliged to comply with a Customer’s request under clause 15.9 until all moneys owed by the Customer to COREIoT under any Software Services Document has been paid in full.

Clauses 15.8 to 15.11 prevail over any inconsistency with any End User Licence Agreement, a Proposal and the relevant Terms and Conditions.

Termination by the Customer

If the Customer terminates a Proposal without cause in accordance with the relevant Terms and Conditions (e.g. on 90 days written notice), the Customer must pay to COREIoT, immediately, the balance of any Annual Fees not yet paid for:

and a further 15% of the amount payable by the Customer in accordance with clauses 15.13.1 or 15.13.2 for administration fees.

Dispute resolution process

A Party claiming that a dispute has arisen under this Agreement must give a written notice to the other Party, setting out the nature of the dispute (Dispute Notice).

In the event that a Dispute Notice is issued by one Party to the other Party:

If the Parties are unable to resolve the dispute under this clause 16.2 within (20) Business Days, then they may have recourse to litigation or other dispute resolution process.

If a dispute arises under this Agreement, except where urgent interlocutory or other equitable relief (including specific performance) is sought, the Parties must use their reasonable endeavours to settle the dispute under this clause 16.

Force Majeure

A Party will not be liable for any delay or failure to perform its obligations under this any Software Services Document if such a failure or delay is due to a Force Majeure Event.

On the occurrence of a Force Majeure Event, the non-performing Party must:

Trustee

If a Party acts as trustee of a trust, that Party enters into this document in its own right and as trustee for the trust.

Variation

This document, including the schedules, can only be varied by the Parties in writing, signed by all of the Parties.

Waiver

The fact that a Party fails to do, or delays in doing, something that Party is entitled to do under this document does not amount to a waiver of that Party’s right to do it.

A waiver by a Party is only effective if it is in writing.

A written waiver by a Party is:

Entire agreement

This Agreement contains everything that the Parties have agreed on in relation to the matters it deals with. No Party can rely on an earlier document, or anything said or done by another Party (or a director, officer, agent or employee of that Party), before this document was executed.

Severability

If:

Further cooperation

Each Party must do anything (including executing a document) another Party reasonably requires in writing to give full effect to this document.

Relationship of the Parties

This Agreement does not create a partnership, agency, fiduciary or any other relationship, except the relationship of contracting parties, between the Parties.

No Party is liable for an act or omission of another party, except to the extent set out in this Agreement.

No merger

The provisions of this document do not merge with any action performed or document executed by any Party for the performance of this document.

Assignment

Except as expressly permitted by this document, a Party must not assign any of its rights and obligations under this document without the prior written consent of the other Parties. That consent may be given or withheld at a Party’s absolute discretion.

Third party rights

A person who is not a Party to this document does not have any rights under or in connection with it.

Exclusion of contrary legislation

To the full extent permitted by Law, any legislation that adversely affects a right, remedy or obligation of a Party, under or relating to this document is excluded.

Costs

Except as otherwise agreed by the Parties in writing, each Party must pay its own costs in relation to preparing, negotiating and executing this document and any document related to this document.

Execution of separate documents

This document is properly executed if each Party executes this document or an identical document. In the former case, this document takes effect when the last Party executes this document. In the latter case, this document takes effect when the last of the identical documents is executed.

Evidence of execution of this document by a Party may be shown email or a PDF copy of this document.

Governing Law and jurisdiction

This document is governed by the Law of the State of Western Australia. The Parties submit to the non-exclusive jurisdiction of its courts. The Parties will not object to the exercise of jurisdiction by those courts on any basis.

The Schedules form part of this Agreement and are provided to the Customer during the pricing and proposal process.