This agreement between the ‘Customer’ and Reliance Communication will govern the supply of hardware, software, and/ or installation services (‘Products’ and ‘Services’) from Reliance Communication, as described in any Attachment(s) to, or any statement of working referencing this Agreement.
Orders are subject to acceptance by Reliance Communication. Reliance Communication may accept an order by shipping Products or commencing to perform Services. Accepted orders will be deemed to incorporate and be subject to this Agreement. All other terms and conditions contained in any Customer purchase order or other document not expressly referenced in this Agreement will have no effect.
2. DELIVERY AND INSTALLATION
2.1 Delivery and In-Service Dates. The ‘Delivery Date’ means the date on which Reliance Communication delivers
(i) Reliance Communication-installed Products to Customer’s premises; or
(ii) other Products to a carrier for shipment.
The ‘In-Service Date’ means the date on which Reliance Communication notifies Customer that the Reliance Communication-installed Products are installed in good working order in accordance with applicable documentation.
2.2 Provision of Installation Services. Installation Services specified in an accepted order will be provided in accordance with Reliance Communication’s then current Services offer description or a mutually agreed upon statement of work.
3. RISK OF LOSS/TITLE
Risk of loss will pass to Customer on the Delivery Date. Title to Reliance Communication-installed hardware will pass to Customer on the In-Service Date. Title to all other hardware will pass to Customer upon full payment. Title to software provided under this Agreement will remain solely with Reliance Communication and its licensors.
4. INVOICING AND PAYMENT
4.1 Invoicing. Reliance Communication will invoice Customer for Products and Services as follows:
(i) For Purchase Orders relating to Products and Services less than $50,000 (excluding GST) in total value, payment for Products is 100% on the Delivery Date of Products to the Customer’s site, and payment for Services is 100% on completion of work
(ii) For Purchase Orders relating to Products and Services over $50,000 (excluding GST) in total value, payments are agreed as follows unless otherwise stipulated in a payment milestone schedule in an applicable statement of work:
a. 30% on signing of a schedule and receipt of an order; and
b. 70% upon delivery of Products to Reliance Communication’s pre-staging facility.
a. 30% on signing of a schedule and receipt of an order;
b. 60% upon commissioning into a production environment or completion of work, whichever comes first; and
c. 10% upon final Customer acceptance.
4.2 Payment. Payment on invoices is due within thirty (30) days from the date of the invoice. If Customer disputes an invoice, it must provide the notice of dispute within 14 days of the invoice date and pay the undisputed portion. For any disputed portion the parties must in good faith attempt resolution before the due date (30 days) failing which the dispute resolution provisions of this agreement will apply in respect to the unpaid portion.
Any overdue payments will be subject to a late payment charge of two percent (2%) per month or the maximum rate allowed by applicable law, whichever is less.
If Reliance Communication reasonably incurs additional expenses or disbursements necessary to carry out its obligations under this Agreement, it may pass through those expenses or disbursements to Customer.
4.3 Taxes. Unless Customer provides Reliance Communication with a tax exemption certificate, Customer is solely responsible for paying all legally required taxes, including without limitation any sales, excise or other taxes and fees which may be levied upon the sale, transfer of ownership, license, installation or use of the Products, except for any income tax assessed upon Reliance Communication. Customer will pay all shipping, handling, rigging and other destination charges relating to the shipment and delivery of the Products to the location specified on the applicable order.
5. CUSTOMER RESPONSIBILITIES
Customer will cooperate with Reliance Communication as reasonably necessary for Reliance Communication’s performance of its obligations under an order, including doing such things as:
(i) Ensuring it has the authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly executed and is a legal, valid and binding Agreement;
(ii) providing Reliance Communication with full, free and safe access to its premises and facilities reasonably necessary for the installation and servicing of the Products;
(iii) ensuring that prior to the Delivery Date the premises are ready for installation, including, without limitation, installation of necessary power and climate control facilities and meet any other requirements described in the specifications and statement of work;
(iv) ensuring prior to the Delivery Date it has obtained all necessary permissions or consents relating to the installation and connection of the Products to any public or private telecommunications network;
(v) providing Reliance Communication with designated points of contact to allow Reliance Communication to effectively implement the Services required un the agreement;
(vi) it will give full and punctual performance of its obligations under this Agreement including providing any reasonable information and assistance requested by Reliance Communication including conducting site surveys where relevant;
(vii) it will act in good faith towards Reliance Communication and provide such assistance and co‐operation as is practicable on request by Reliance Communication for the delivery of the Services;
(viii) in relation to Customer Data the following shall apply:
a. Reliance Communications acknowledges that Customer Data is Confidential Information and is the sole and exclusive property of Customer and Reliance Communications or its suppliers do not have any interest in any Customer Data. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and Intellectual Property Rights ownership or right to use all Customer Data, and Reliance Communications will not be responsible or liable for the deletion, correction, destruction, damages, loss or failure to store any Customer Data.
b. Customer warrants that no third party Intellectual Property Rights are or will be infringed by Customer’s use of the Product in association with the Customer Data, including any such third party Intellectual Property Rights in any Customer Data.
c. Customer acknowledges that it is solely responsible for the accuracy and appropriateness of any Customer Data.
d. Customer indemnifies Reliance Communications, and will keep Reliance Communications indemnified from and against any and all liabilities, losses, claims, damages, demands, expenses or costs (including without limitation all consequential or special losses, loss of profit, loss of reputation and all interest, penalties and legal or other professional advisors’ fees) resulting from or in connection with Customer Data, except and to the extent arising from any negligent act or omission of Reliance Communications.
(ix) Providing necessary telephone numbers and passwords to enable remote access to the Products; and
(x) providing Reliance Communication with interface and other information regarding access to third party products in Customer’s network and necessary third party consents and licenses to enable Reliance Communication’s performance hereunder.
All items to be provided by Customer are at Customer’s expense. Customer is responsible for ensuring that its networks and systems are adequately secured against unauthorized intrusion or attack and regularly backing up its data and files in accordance with good computing practices.
6. INTELLECTUAL PROPERTY
Customer acknowledges that:
(i) Reliance Communications and is Suppliers owns or has the right to use all Intellectual Property Rights in the Product and Services provided under this agreement, and that this Agreement does not transfer ownership of any Intellectual Property Rights to Customer.
(ii) Any Intellectual Property Rights in improvements, amendments or adaptations to the Product or Documentation whether made by Reliance Communications, the Customer or anyone else is the property of Reliance Communications. Customer agrees to do all things reasonably required to give effect to this clause.
(iii) Customer must notify Reliance Communications immediately if it becomes aware of any:
a. unauthorized access to or use of the Equipment or Documentation or services; or
b. Other breach of any Intellectual Property Rights of Reliance Communications.
(iv) Reliance Communications indemnifies Customer against any liability (including liability for reasonable legal costs) under an injunction or final judgement against Customer, based on a claim that use of any Product, by Customer in accordance with this Agreement is an infringement of the Intellectual Property Rights of any third person (“Claim”), except to the extent any such infringement is caused by an act or omission of Customer but only if:
a. Customer notifies Reliance Communications immediately after it becomes aware of the Claim;
b. Reliance Communications has sole control over defence of the Claim (even in Customer’s name) and any negotiations to settle the Claim;
c. Customer allows its name to be used in any proceedings arising out of the Claim; and
d. Customer provides to Reliance Communications all other assistance reasonably requested (and paid for) by Reliance Communications to defend or settle the Claim.
(v) If a Claim is made, Reliance Communications may:
a. Procure for Customer the right to continue using the Product, free of the Claim; or
b. Replace or modify the Product, so that they are no longer infringing.
c. Nothing in this Agreement assigns to Reliance Communications ownership of any Intellectual Property Rights in any materials provided to Reliance Communications by Customer or Customer Data.
7. SOFTWARE LICENSE TERMS AND RESTRICTIONS
7.1 Grant of Licence. By accepting the terms and conditions of this Agreement, Customer is granted a non-exclusive, non-transferable, non-assignable, perpetual (subject to the termination rights herein) licence to use the Product pursuant to the terms of this Agreement and to the extent as described in any order documents related to this Agreement. Customer may only use the Software in object code form solely for internal, in-house use. Upon Reliance Communication accepting an order from Customer, Customer is entitled to install and use the Software to the extent and in the manner specified on such order. Except to the extent by law the following rights cannot be restricted, Customer may not
(i) make any copies of the Product or its contents other than additional copies of the Product solely for back-up or archival purposes,
(ii) sub-licence, reproduce, distribute, market, sell, transfer, or disclose the Product to any other party,
(iii) translate, modify, disassemble, or reverse engineer the Product,
(iv) create derivative works based on any portion of the Product,
(v) obtain possession of any source code or other technical material relating to the Software,
(vi) use the Software in a production environment for the operation of a service bureau or otherwise directly or indirectly commercially exploit the Software, or
(vii) remove, alter, or obscure any copyright notice(s) or proprietary legend(s) contained on the media or included in the Product.
The Customer’s right to use the Product is subject to Customer’s fulfillment of all payment obligations for the Product, and the Customer’s continued compliance with the terms and conditions of this Agreement.
7.2 License Restrictions. To the extent permissible under applicable law, Customer agrees not to:
(i) decompile, disassemble, or reverse engineer the software;
(ii) alter, modify or create any derivative works based on the software or documentation;
(iii) merge the software with any other software other than as expressly set forth in the documentation;
(iv) use, copy, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the software or documentation except as expressly authorized by this Agreement;
(v) distribute, disclose or allow use of the software or documentation, in any format, through any timesharing service, service bureau, network or by any other means; or
(vi) permit or encourage any third party to do any of the foregoing.
7.3 Backup Copies. Customer may create a reasonable number of archival and backup copies of the software and documentation, provided all proprietary rights notices, names and logos are duplicated on such copies.
7.4 Termination of License. Reliance Communication may, with immediate effect, terminate the software licenses granted herein and exercise all available rights and remedies if, within ten (10) business days of Customer’s receipt of a reasonably detailed written notice, Customer has not cured all breaches of license limitations or restrictions.
8. WARRANTIES AND LIMITATIONS
8.1 Products. Reliance Communication warrants to Customer that during the applicable warranty period, the Product will conform to and operate in accordance with the applicable instructions and specifications made available with the Products (‘Documentation’) in all material respects. If the Product is not in conformance with the warranty above, Reliance Communication at its option will:
(i) repair or replace the Product to achieve conformance; or
(ii) refund to Customer the applicable fees upon return of the non-conforming Product.
Replacement hardware may be new, factory reconditioned, refurbished, re-manufactured or functionally equivalent and will be furnished only on an exchange basis. Replacement Products are warranted as above for the remainder of the original applicable Product warranty period. Unless a different period is specified in the order, the warranty periods for Products are as follows:
(i) for hardware: twelve (12) months, beginning on the In Service Date for Reliance Communication-installed hardware and on the Delivery Date for all other hardware;
(ii) software and software media: ninety (90) days, beginning on the In Service Date for Reliance Communication-installed software and on the Delivery Date for all other software.
8.2 Services. Reliance Communication warrants to Customer that Services will be carried out in a professional and workmanlike manner by qualified personnel. If the Services have not been so performed and Customer notifies Reliance Communication in writing in reasonable detail within thirty (30) days after the performance of the Service, then Reliance Communication will, at its option, re-perform the Services, correct the deficiencies or render a prorated refund based on the original charge for the deficient Services.
8.3 Exclusions and Disclaimers. The warranties do not extend to any damages, malfunctions, or non-conformities caused by:
(i) Customer’s use of Products in violation of the license granted under this Agreement or in a manner inconsistent with the operating Documentation;
(ii) use of non-Reliance Communication furnished equipment, software, or facilities with Products (except to the extent provided in the Documentation);
(iii) Customer’s failure to follow Reliance Communication’s installation, operation or maintenance instructions;
(iv) Customer’s failure to permit Reliance Communication timely access, remote or otherwise, to Products;
(v) Failure to implement all new updates to software provided under this Agreement;
(vi) Products that have had their original manufacturer’s serial numbers altered, defaced or deleted;
(vii) Products that have been serviced or modified by a party other than Reliance Communication.
Except as referenced and limited in this section, neither Reliance Communication nor its licensors or suppliers makes any express representations or warranties with regard to any products or services or otherwise related to this agreement. Reliance Communication does not warrant uninterrupted or error free operation of products or that the products and services will prevent toll fraud. To the maximum extent permitted by applicable law, Reliance Communication disclaims all implied or statutory warranties, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, and non-infringement. The warranty remedies expressly provided in this Agreement will be customer’s sole and exclusive remedies.
9. LIMITATION OF LIABILITY
As far as the law permits, and unless otherwise specified in this Agreement, Reliance Communications will not be liable to the Customer in tort (including negligence), contract, statute or otherwise for any direct or indirect loss or damage (including loss of business revenue, loss of profits or anticipated savings, failure to realise expected profits or savings, economic loss, loss or corruption of data, or any consequential damage) incurred by the Customer or a third party in connection with any act or omission by Reliance Communication under or in relation to this Agreement.
For any liability which cannot lawfully be excluded, but can be limited, Reliance Communication’s liability is limited to its choice of re-supplying or paying the cost of re-supplying services and repairing, replacing or paying the cost of repairing or replacing goods.
Notwithstanding anything else in this clause, ‘Reliance Communication’s liability will be reduced to the extent the loss or damage is caused by the Customer or its Personnel.
10. GOVERNING LAW AND DISPUTE RESOLUTION
10.1 Governing Law. This Agreement and any disputes arising out of or relating to this Agreement (‘Disputes’) will be governed by the laws of New South Wales, excluding both the conflict of law principles and the United Nations Convention on Contracts for the International Sale of Goods.
10.2 Disputes. If a dispute arises out of or in relation to this Agreement the parties agree
(i) either party may notify the other in writing in which case the nominated representative of each affected party must promptly attempt in good faith to resolve the dispute. In the event that the parties are unable to resolve the dispute within seven (7) days of the written notification referred to in this clause, each party must promptly refer the dispute for resolution to a senior corporate executive of that party.
(ii) If the parties are unable to resolve the dispute within fourteen (14) days following referral to the senior corporate executives of the relevant parties, the parties must agree in good faith to attempt to resolve the dispute by attending a mediation conducted in accordance with the rules of the Australian Commercial Disputes Centre (ACDC). If the parties cannot agree on the appointment of a mediator, the mediator will be appointed by the president for the time being of the Law Society of New South Wales.
(iii) The costs of the mediator will be shared equally between the parties.
(iv) If a dispute remains unresolved after mediation has been conducted in good faith then either party may use such lawful dispute resolution procedures or seek such legal and equitable remedies as it considers necessary or appropriate in its sole discretion. The parties agree that any breach or threatened breach of this Agreement will cause the other party to suffer damages for which monetary damages alone would not be an adequate remedy.
(v) Nothing in this clause shall prevent a party from seeking urgent injunctive relief before an appropriate court.
11. TERMINATION AND CANCELLATION
11.1 Term and Termination. This Agreement will be effective from the date of Reliance Communication’s acceptance unless terminated earlier in accordance with this Section.
Either party may terminate this Agreement:
(i) by written notice to the other party effective immediately upon receipt, if the other party fails to cure any material breach of the Agreement within a thirty (30) day period after having received a written notice from the non-breaching party detailing the breach and requesting the breach be cured; and
(ii) at any time for convenience upon ninety (90) days’ written notice.
11.2 Cancellation of Orders. Customer may change or cancel the order for Products prior to the installation start date for Reliance Communication-installed non-configured Products and prior to the Delivery Date for all other Products subject to payment of Reliance Communication’s then-current cancellation charges. In the event of a permitted cancellation, Customer must return promptly to Reliance Communication all preliminary or advance Products that have been delivered to Customer in the original, unopened packaging and in the same condition as delivered.
12. CONFIDENTIAL INFORMATION
The term ‘Confidential Information’ means either party’s business and/or technical information, any pricing and discounts and any other information or data, regardless of whether in tangible, electronic or other form if it is marked or otherwise expressly identified as confidential in writing. Information communicated verbally will qualify as Confidential Information if designated as confidential or proprietary at the time of disclosure and summarised in writing within thirty (30) days after verbal disclosure. Confidential Information does not include materials or information that:
(i) is generally known by third parties as a result of no act or omission of the receiving party;
(ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information and without restriction on disclosure;
(iii) was already known by the receiving party prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality;
(iv) was independently developed by the receiving party without use of Confidential Information of the disclosing party; or
(v) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, and provided that the receiving party promptly notifies the disclosing party of the pending disclosure in writing so that the disclosing party may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection above, the receiving party will provide reasonable assistance to the disclosing party where the disclosing party attempts to obtain a protective order.
Each party will protect the secrecy of all Confidential Information received from the other party with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than a reasonable degree of care. Neither party will use or disclose the other party’s Confidential Information except as permitted in this Section or for the purpose of performing obligations under this Agreement. The confidentiality obligations of each party will survive expiration or termination of this Agreement. Upon termination of the Agreement, each party will cease all use of the other party’s Confidential Information and will promptly return, or at the other party’s request destroy, all Confidential Information in tangible form and all copies of Confidential Information in that party’s possession or under its control, and will destroy all copies of Confidential Information on its computers, disks and other digital storage devices. Upon request, a party will certify in writing its compliance with this Section.
(i) Reliance Communication may assign this Agreement and any order hereunder to any of its affiliated entities or to any entity to which Reliance Communication may sell, transfer, convey, assign or lease all or substantially all of the assets or properties used in connection with the performance hereunder.
(ii) Reliance Communication may subcontract any or all of the obligations to be performed by it hereunder, but will retain responsibility for the work.
(iii) Neither party will be liable for any delay or failure in performance to the extent such delay or failure is caused by events beyond the party’s reasonable control, such as fire, flood, Act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, and inability to secure materials or transportation facilities.
(iv) The failure of either party to assert any of its rights under this Agreement will not be deemed to constitute a waiver by that party of its right thereafter to enforce each and every provision of this Agreement in accordance with its terms.
(v) This Agreement constitutes the entire understanding of the parties with respect to the subject matter thereof and will supersede all previous and contemporaneous communications, representations or understandings, either oral or written, between the parties relating to that subject matter and will not be contradicted or supplemented by any prior course of dealing between the parties.
(vi) All notices under this Agreement and any modifications or amendments to this Agreement must be in writing.