E-Commerce Product Terms

E-COMMERCE PRODUCT TERMS

E-Commerce solutions is provided by Vaxtra’s group members with headquarters as Vaxtra Pty Ltd ACN 154 337 970, pursuant to the General Terms and the Product Terms set out below. We may revise these terms and conditions at any time by updating this posting. You should check this Website from time to time to review the then current terms and conditions, because they are binding on you.

1 DEFINITIONS

In addition to the definitions set out in clause 1 of the General Terms, the following definitions also apply to these Product Terms:

Acceptance means acceptance of the Deliverables by the Client; Acceptance Testing means testing the Deliverables for Defects;

Change Request means a request by either party to modify the Specifications, the Services or the Deliverables in accordance with clause 14 of the General Terms;

Defect/s means a defect or error in a Deliverable that substantially prevents the Deliverable and/or the Solution from operating or functioning according to the Specifications;

Deliverable/s means any Documentation and other items, materials, and works (including software developments and enhancements or modifications to applications) developed or produced by Vaxtra solely for the Client pursuant to a SOW;

Development Services means the services described in clause3.1;
Documentation means any document which Vaxtra must prepare or provide to the Client under a SOW (including documentation for use of the Software);

End User Licence Agreement (“EULA”) means the terms and conditions governing the use of the Software specified in a SOW or if none are specified, the EULA available at www.vaxtra.com;

Milestone means the various phases of development as specified in the SOW;

New Release means software which provides an extension, alteration, improvement or additional function to the Software;

Vaxtra IP means any Intellectual Property in the Vaxtra Software and any Intellectual Property in the Deliverables (including any ideas, modules, components, designs, utilities, interfaces, templates, subroutines, concepts, analysis, methods, techniques, algorithms, formulas, technical information, know-how and specifications), except Intellectual Property which has been developed solely for the Client;

Vaxtra Software means the proprietary software owned by or licensed to Vaxtra and related documentation;

Services means the Development Services and any other services stipulated in a SOW; Software means any Vaxtra Software and Third Party Software specified in a SOW;

Solution means any or any combination of the Software and the Deliverables, to be provided by or on behalf of Vaxtra pursuant to a SOW;

Specifications means the functional and performance requirements or specifications relating to the Solution (including Software specifications as set out in the SOW);

Third Party Software means the website platform software and any other software and related documentation, which is owned by, or proprietary to, in whole or in part, any person or entity other than Vaxtra and which the Client has licensed from the Third Party Software provider;

Timetable means the dates specified in the SOW for achieving the Milestones;

Update means a software patch which has been produced primarily to overcome defects in the Software;

Use means to load, copy, store, transmit or run;

Use Rights means to the extent specified in a SOW, the quantity and type of licences granted to the Client under the Agreement;

Warranty Period means the period of 30 days following Acceptance.

2 APPOINTMENT

Vaxtra will provide the Services and the Deliverables in accordance with the Agreement.

3 DEVELOPMENT SERVICES

3.1 Development Services may include:

(a) the design of the Specifications;

(b) integrating with and making the Deliverables operational on the Client systems or within the Client environment;

(d) the completion of all adjustments, configuration or modifications to ensure that the Deliverables operate in accordance with the Specifications;

(e) the testing and commissioning of the Solution;

(f) the design, development and installation of modifications pursuant to a Change Request;

(g) the rectification of any Defect/s; and

(h) any further services particularised in the SOW or mutually agreed upon by the parties in writing from time to time.

3.2 The Client acknowledges that:

(a) the Solution is supplied subject to certain assumptions and dependencies, including Client obligations, assumptions and dependencies set out in the SOW; and

(b) any change in the assumptions or dependencies may have an effect on pricing or Vaxtra’s ability to meet its obligations under this Agreement.

4 ACCEPTANCE

4.1 Except as provided in a SOW, the Client will be responsible for Acceptance Testing and Vaxtra will be entitled to observe and participate in any Acceptance Testing at its discretion.

4.2 The Client must not unreasonably withhold Acceptance and will notify Vaxtra in writing of its rejection of a Deliverable as soon as possible but in any event within fourteen (14) days of the date of delivery. Vaxtra will make all reasonable efforts to rectify any Defect as soon as reasonably practicable from the notice date.

4.3 Any minor defect or deficiency in a Deliverable which does not prevent the Client from using the Solution as reasonably intended (non-material defects) will not prevent or delay Acceptance. However, Acceptance does not affect Vaxtra’s obligation to meet the Specifications and Vaxtra will rectify any such non-material defects as reasonably required by the Client during the Warranty Period.

4.4 Acceptance of the Solution will be deemed to have occurred upon the earlier of:

(a) payment of the Fees associated with the Solution by the Client;

(b) use of a Deliverable commercially by the Client; or

(c) fourteen (14) days after delivery unless the Client has notified Vaxtra of its refusal to accept the Solution owing to a Defect.

5 SUPPORT AND HOSTING SERVICES

5.1 In the absence of a formal retainer and service level agreement, Vaxtra is not obliged to support the Software, whether by providing advice, training, error-correction, Updates, New Releases or otherwise.

5.2 This Agreement does not cover any hosting services. Hosting services may be procured by Vaxtra on behalf of the Client upon request and are provided subject to such further terms and conditions stipulated in the relevant SOW.

5.3 Any services requests by the Client that are outside the scope of this Agreement may be performed by Vaxtra in its absolute discretion pursuant to a Change Request. Fees quoted pursuant to a Change Requests will be based on Vaxtra’s then prevailing rates for time and materials.

6 WARRANTIES

6.1 Vaxtra warrants that:

(a) the Services will be performed with professional care and skill;

(b) the Deliverables will be free from Defects;

(d) the Documentation will contain sufficient instruction and detail to enable the Client to make full and proper use of the Solution.

6.2 Subject to clause 6.3, Vaxtra will, at its own expense and as its sole obligation and the Client’s exclusive remedy for any breach of the warranty under clause 6.1, either promptly repair or replace the non- conforming Deliverable or resupply the non-conforming Services, at its option. Vaxtra’s obligations under this clause shall not apply to the extent that the breach of warranty is a result of:

(a) a modification made to the Solution or any Deliverable by or on behalf of the Client without the written consent of Vaxtra;

(b) improper use of the Solution or any Deliverable, including failure to comply with any specifications or operating instructions set out in the Documentation;

(c) maintenance or repair work is carried out on the Solution by persons other than Vaxtra or Vaxtra authorised personnel; or

(d) any breach of this Agreement or negligent act or omission of the Client.

6.3 The Client acknowledges and agrees that:

(a) as a condition precedent to any warranty claim under clause 6.2

(i) it must give Vaxtra notice in writing, including particulars of the claimed breach, during the Warranty Period;

(ii) it must assist Vaxtra as reasonably required, including providing Vaxtra with access to its equipment, systems and personnel as required to confirm and remedy any breach;

(b) a service request by the Client for Vaxtra to remedy a Solution failure or malfunction caused by any of the matters specified in clause 6.2 (a)-(d) or which is made outside the Warranty Period, shall be paid for by the Client at Vaxtra’s then prevailing rates for time and materials.

7 INTELLECTUAL PROPERTY RIGHTS

7.1 Subject to clause 7.2 and clause 7.3, title in a Deliverable will vest in the Client upon payment of the Fees in full.

7.2 Where title vests in the Client pursuant to clause 7.1, the Client will not obtain title to any Vaxtra IP or Third Party Software included in a Deliverable. Vaxtra grants to the Client a licence to Use the Vaxtra IP and Third Party Software but only to the extent necessary to fully enjoy the benefit of the Solution as contemplated by the Agreement and subject to any Use Rights and the restrictions set out in clause 7.3.

7.3 Any source code provided as part of a software component of a Deliverable may only be used by the Client for the purpose of modifying a Deliverable and must not be used for any other purpose or exploited commercially except as expressly provided in a SOW. Where Third Party Software is a component of a Deliverable, such Third Party Software will be separately licensed on the terms and conditions set out in the applicable EULA. The EULA terms and conditions are incorporated herein by reference and Client Use of the Software will constitute acceptance of the EULA.

7.4 Rights to use any Intellectual Property Rights in Third Party Software following termination or expiry of a SOW must be separately negotiated between the Third Party Software provider and the Client.

7.5 In the event that the Client makes suggestions to Vaxtra regarding new features, functionality or performance that Vaxtra adopts in connection with the Solution, such new features, functionality or performance shall be deemed to be automatically assigned under this Agreement to, and shall become part of the Vaxtra IP.

8 MILESTONES

8.1 Vaxtra will use commercially reasonable endeavours to achieve the Milestones in accordance with the Timetable.

8.2 The Timetable will be extended if:

(a) there is any variation in the Specifications or the Deliverables requested or agreed by the Client; or

(b) any delay or stoppage is caused by any act or omission by the Client, its, agents or contractors (other than Vaxtra) or any Force Majeure.

8.3 Client acknowledges that any change to the Timetable will necessitate a further amendment of the Timetable in respect of subsequent Milestones and Vaxtra reserves the right to adjust the Fees where a delay is caused by the Client, its agents or contractors (other than Vaxtra).

9 DELAYS

9.1 Client will be liable to Vaxtra for all direct and indirect costs reasonably incurred by Vaxtra by reason of any delay, or, variation of work (unless otherwise addressed under a Change Request)

arising from any act or omission by the Client, its employees, agents or contractors (other than Vaxtra). These costs include, but are not limited to:

(a) any cancellation charges payable to our subcontractors;

(b) costs associated with standing down or standing up resources; and

(c) the costs of materials and goods ordered to provide the Services for which Vaxtra has paid or is legally bound to pay.

10 CONSEQUENCES OF TERMINATION

Except as expressly provided, upon the expiry or earlier termination of a SOW all Software licences and Use Rights granted by Vaxtra to the Client shall terminate immediately and the Client will comply with any and all reasonable instructions of Vaxtra in relation to the termination of licences applicable to Software.

11 NON-SOLICITATION

Except with Vaxtra’s prior written consent, Client must not, during the Term and for a period of twelve (12) months after the expiration of the Term, solicit, interfere with or endeavour to entice away any personnel of Vaxtra or any Vaxtra Affiliate, or counsel, procure or assist any person to do those things. Consent may be granted by Vaxtra in its absolute discretion and may be subject to a finder’s fee as specified in an SOW or otherwise agreed in writing by the parties.