Legacy Master Subscription Agreement – Pendula for Salesforce

Basic Terms

• You may not access the services if You are Our direct competitor (as determined by Us, acting reasonably), except with Our prior written consent. In addition, You may not access the services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
• Pendula reserves the right to vary and update these terms from time to time during the period of your contract without Your prior written consent.
• In all agreements, Order Forms and official documentation, the use of the product name “Pendula” refers to the company Zipline Cloud Pty Ltd T/A Pendula Solutions.
• You accept that features, functions, units of measurement and terminology may differ between countries and features designed for one geographical territory or country may not suit or be available to other countries.
• This Agreement is effective between You and Us as of the date of You accepting this Agreement.

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1. Definitions

“Channel” means communication infrastructure including but not limited to electronic mail, short message service and social post.

“Confidential Information” of a party means any information: (a) relating to the business and affairs of that party; (b) relating to the customers, clients, employees, sub-contractors or other persons doing business with that party; (c) which is by its nature confidential; (d) which is designated as confidential by that party; or (e) which the other party knows or ought to know, is confidential, and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party, and in Our case, includes the Services and these terms.

"Digital Services” means the digital services that we agree to provide in an agreed Order Form other than User Subscriptions.

“Fair Use Policy” means the Fair Use Policy set out in Annex B (which we may amend from time to time provided any change is not materially detrimental to You).

“Force Majeure” means any occurrence or omission outside a party’s reasonable control, as a direct or indirect result of which the party relying on the event is prevented from or delayed in performing its obligations under these terms (other than a payment obligation), and includes (a) law taking effect after the date of these terms; (b) disruption or unavailability of the internet; and (c) failure of a third party service provider to Us to provide services, including hosting services.

“GDPR” means the European Union General Data Protection Regulation.

“Intellectual Property Rights” means all industrial and intellectual property rights throughout the world, whether registered, unregistered or unregistrable, including all business names, copyright, patents, trademarks, service marks, trade names, designs, confidential information, trade secrets, know how, database rights, circuit layout rights, systems and domain names.

"Licensed Product" means the licensed product that You license by way of a User Subscription (unless otherwise agreed in an Order Form) and does not include those provided pursuant to a free trial.

“Material” means software, firmware, tools, documentation, reports, data, diagrams, procedures, plans and other materials.

"Order Form" means the document for placing orders that has been agreed and entered into between You and Us. Order Forms are incorporated into this Agreement by reference.

“Partner” means an entity or individual that we use to deliver all or part of an order under this Agreement on our behalf.

“Personal Information” has the meaning given to that term by the Privacy Act and, if the GDPR applies to that information, the meaning given to “personal data” in the GDPR.

“Platform” means the Salesforce.com, Force.com, APEX, VisualForce, Lightning, Database.com, Heroku, Amazon Web Services and/or Channel infrastructure upon which the Our product is built.

“Privacy Act” means the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time.

“Privacy Laws” means: (a) the Privacy Act; (b) the Australian Privacy Principles (or APPs) contained in schedule 1 Privacy Act; (c) where applicable the GDPR; and (d) all other applicable laws, regulations, registered privacy codes, privacy policies and contractual terms in respect of the processing of Personal Information.

"Professional Services" means the professional services delivered by Us or one of our Partners distinguished by a Professional Services Order Form, statement of work or scoping document.

“Services” means Licensed Product, User Subscriptions, the Digital Services, Professional Services and any other the services we might provide to You (and, for the avoidance of doubt, does not include any service provided by Salesforce.com directly to You).

“SFDC” has the meaning given in the SFDC Agreement.

“SFDC Agreement” means the agreement between You and SFDC, the terms of which are set out in Annex A.

“Subscription Term” has the meaning given in clause 11.2.

“User Subscription” means a subscription for a Pendula Communicator Licence or a Pendula Operator Licence as more fully described in clause 2.2.

"We," "Us" or "Our" means the Pendula company Zipline Cloud Pty Ltd T/A Pendula Solutions.

"You" or "Your" means the company or other legal entity for which you are accepting this Agreement.

"Your Data" means all electronic data or information submitted by You using the Service or to Us or interpreted by the various products comprising the Service from your underlying data store.

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2. Product Licensing

2.1. Provision of Licensed Product. We shall make the Licensed Product available to You pursuant to this Agreement by way of User Subscriptions. You agree that there is no commitment to the delivery of any future functionality or features in relation to Licensed Product.

2.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Licensed Product is licensed as User Subscriptions and may be accessed by no more than the specified number of users, (ii) additional User Subscriptions may be added during the applicable Subscription Term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the Subscription Term in effect at the time the additional User Subscriptions are added, and (iii) the added User Subscriptions shall terminate on the same date as the pre-existing subscriptions. User Subscriptions are for designated users only and cannot be shared or used by more than one user but may be reassigned to new users replacing former users who no longer require ongoing use of the Licensed Product. The number of User Subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. There are two User Subscription categories:

1. Pendula Communicator Licence: Core user features (subject to change): Pendula Salesforce App, create mass communications, create one-off communications, manage schedules, Pendula Console, manage events, manage channels, define workflow, create templates, define redirections, review communications, reporting and dashboards.
2. Pendula Operator Licence:Core user features (subject to change): Pendula Salesforce App, Pendula Console, create one-off communications, review communications, reporting and dashboards.

Each User Subscription includes an embedded Force.com licence from SFDC, the licence terms of which are set out in the SFDC Service Agreement. By agreeing to the terms of this Agreement, you also agree with us to comply with the terms of the SFDC Services Agreement between SFDC and Yourself.

2.3. Platform Limitations Services may be subject to other limitations, such as limits on data storage space or on the number of calls You are permitted to make against Our application programming interface. Any limitations are specified in the salesforce.com documentation. The Services provide real-time information to enable You to monitor Your compliance with these limitations.

2.4. Third-Party API and functionality licensing. By entering into this Agreement You are acknowledging that Pendula can leverage API services from third-parties to enable facilities like short message service etc. If you wish to connect and use your own gateway privately with your own supplier you may – but integration must be validated and handled through a separate Professional Services agreement. Pendula is not liable for the integrity, accuracy, timeliness and security for any of the services provided by third-party API and functionality vendors which are used in providing our services.

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3. Digital Services

3.1 Digital Services. Details of the Digital Services that we provide will be set out in an agreed Order Form. Use of the Digital Services is subject to our Fair Use Policy.

3.2 Access and inspection. On Our request, You must allow Us or a third party nominated by Us to access during business hours Your records and any premises, systems, equipment, personnel and information relating to this Agreement in order to audit Your compliance with this Agreement

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4. Fees and Payment for User Subscriptions & Digital Services

4.1. Fees. You shall pay all fees specified in all Order Forms. Except as otherwise specified in this Agreement or in an Order Form, fees are based on User Subscriptions and Digital Services purchased. Subject to clause 8.3, payment obligations are non-cancellable and fees paid are non-refundable unless We commit a material breach of this Agreement. User Subscriptions are based on monthly periods that begin on the subscription start date and each monthly anniversary of that date. Fees for User Subscriptions and Digital Services (both billed on an annual basis in advance) added in the middle of a monthly period will be charged for that full monthly period and, in the case of User Subscriptions, the monthly periods remaining in the subscription term. The Contract Start Date stated on your Order Form is the start of the annual billing period except as otherwise specified herein or in an Order Form. Billing will be initiated from the beginning of your start date for all User Subscriptions and Digital Services. User Subscription billing will not be subject to the completion of any accompanying Professional Services project or customisation/implementation of the Licensed Product or Service unless a billing/user ramp schedule is agreed in the Order Form.

4.2. Invoicing and Payment. If You provide credit card information to Us, You authorise Us to charge such credit card for all User Subscriptions for the initial subscription term and for all Digital Services. Subscription Term length will be stipulated on the Order Form along with billing periods. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 14 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

4.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, we can charge interest on the unpaid balance at 2% per annum above the then-current overnight bank bill swap rate published by the Reserve Bank of Australia, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).

4.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorised Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend Services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue before triggering this acceleration and suspending Services to You.

4.5. Payment Disputes. We shall not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

4.6. Formal Collection of Payment. You hereby acknowledge that We hold the right to pursue payment collection through formal debt collection third parties if any amount owing by You under this or any other agreement for Services is 30 or more days overdue or if no effort to resolve a payment dispute has been made. All fees and costs incurred in securing these payments will be added to the total payable amount at the time of collection including Third-party collection fees and interest charges identified in 4.3 (Overdue Charges).

4.7. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder in addition to the fees for our Services. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorised by the appropriate taxing authority.

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5. Proprietary Rights, Licences and Restrictions

5.1. Reservation of Rights. Subject to the limited rights expressly granted in this Agreement, We reserve all rights, title and interest in and to the Services, including all related Intellectual Property Rights. No rights are granted to You hereunder other than as expressly set out in this Agreement. In addition:

1. if Materials are created by or on behalf of You in the course of receiving or using the Services (Developed Materials), We will own, and You assign to us, all Intellectual Property Rights in and to the Developed Materials (Developed IP) immediately from creation;
2. we grant You a non-exclusive, non-transferable, royalty free, personal licence during the term of this Agreement to use the Developed IP solely to the extent directly necessary for the purpose of performing Our obligations under this Agreement;
3. you must obtain consent from all personnel involved in the creation of the Developed Material for Us, and Our assigns and sub-licensees and their respective successors to:
   1. reproduce, publish, adapt and communicate the Developed Material to the public without attributing authorship; and
   2. alter the Developed Material or do anything else to the Developed Material, including adapting, reproducing, publishing, communicating to the public, adding, deleting, editing or modifying the text, format or structure of the Developed Material,
4. if the Developed Material includes any software, You must deliver to Us both the object code and source code for that software on request by Us; and
5. the indemnity in section 7.2 will include any claim, demand, suit or proceeding made or brought against Us by a third party alleging that the provision of the Developed IP or its enjoyment or use in accordance with this Agreement infringes the Intellectual Property Rights of a third party.

5.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted in this Agreement or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or Service, or (b) copy any features, functions or graphics of the Services. You must comply will all laws in relation to your receipt of the Services.

5.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.

5.4. Licence to Your Data and Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services Your Data and any suggestions, enhancement requests, recommendations or other feedback provided by You, including users, relating to the operation of the Services.

5.5. Licences. Except to the extent set out elsewhere in this Agreement (including any Order Form and the SFDC Agreement), where Services are licensed to You, You are granted revocable, non-exclusive, non-transferable, non-sublicensable licence to use the Service for its intended purpose during the Subscription Term.

5.6 Prohibited conduct. You must not use the Service to: (a) to engage in unlawful or fraudulent behaviour; (b) to defame or harass any third party; (c) to gain unauthorised access to or interfere with any third party’s online resources or systems including by any form of hacking or other malicious interference; (d) to circumvent any security measures; (e) to distribute, view or create any material that: (i) is or may be pornographic, defamatory, offensive, obscene, illegal or unlawful; (ii) infringes any third party’s Intellectual Property Rights; or (iii) in anyway breaches any Privacy Laws; (f) to distribute unsolicited emails to third parties including bulk unsolicited emails; (g) to distribute a higher volume of outgoing messages than is acceptable to Us; (h) in a way that infringes any third party’s Intellectual Property Rights; (i) in a way that disrupts, misuses or excessively uses Our hardware, bandwidth access, storage space or Our other resources; (j) use automated data gathering, extraction or publication tools; (k) through act or omission, mislead or deceive others; (l) in any way that breaches any Privacy Laws; or (m) in any other manner that is unacceptable to Us (acting reasonably).

5.7 Suspension. Without limiting any other remedy We may have under these terms or at law, We may suspend Your access to the Services at any time if: (a) We suspect that You have done or may do any of the things described in Sections 5.2 or 5.6 or in breach of Section 5.5; (b) a third party alleges that You have done or threatened to do any of the things described in Sections 5.2 or 5.6 or in breach of Section 5.5; or (c) We receive a request or notice from a third party (including any regulatory body) requiring Us to cease providing the Services to You or remove any content You makes available through the Services.

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6. Representations, Warranties, Exclusive Remedies and Disclaimers

6.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

6.2. Subject to Section 8.3 and to the extent permitted by law, and other than the express warranties in this clause 6, all other warranties, guarantees and conditions, express or implied, statutory or otherwise, are excluded. The Services (including any content, software, functionality and operational platform or hosting services) are provided “as is”. Without limiting the generality of the previous sentence, We do not warrant that the Services will meet Your requirements, will operate in any combination that may be selected for use by You or in combination with other software, or will operate uninterrupted or error free. Furthermore, We do not warrant that all software errors, defects or inefficiencies will be corrected and we do not assume any liability for failure to correct any such errors, defect or inefficiency. We make no warranty, and You assume the entire risk, as to the capabilities, suitability, use or performance of any deliverables under this Agreement.

6.3. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Likewise, the various platform services that support the delivery of Services including but not limited to Salesforce.com platform, Amazon Web Services, third-party Channel gateway services may be unavailable from time to time or execute service delivery in a manner or timeframe that is not immediate. We are not responsible or liable for any of these failures.

6.4. Limited warranty. We warrant that:

1. We will perform the Professional Services under this Agreement in a skilful, competent, and workmanlike manner; and
2. any deliverables delivered to You shall perform substantially in conformity with the specification contained in the statement of work.

The warranties contained in this Section 6.4 are effective for a period of sixty (60) calendar days from the date of delivery of the relevant Professional Service or deliverable. In the event for a breach of the warranty contained in Section 6.4(a) or 6.4(b), You must notify Us in writing within fifteen (15) calendar days of discovering the breach using the contact details in Section 13. Upon receipt of such notice, We will use reasonable endeavours to correct the deficiency without charge and in a timely manner. We will pay any reasonable expenses associated with the warranty claim. If, after a period of (30) calendar days following receipt by Us of the notice, We are unable to remedy the deficiency, We will refund that portion of the fee attributed to the deficient Professional Service or deliverable that is the subject of the breach. The warranties contained in this Section 6.4 do not apply if the Professional Service or deliverables fails to perform as a result of modification, accident, neglect or misuse, user error, or electrical power damage. Subject to Sections 6.5 and 8.3, You acknowledge that this paragraph sets out Our sole obligation and liability and Your sole and exclusive remedy for a breach of the express warranties contained in this Section 6.4.

6.5. Guarantees. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

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7. Indemnification

7.1 Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of any Service as permitted under this Agreement infringes or misappropriates the Intellectual Property Rights of a third party (a "Claim Against You"), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defence and settlement of the Claim Against You (provided that We may not settle any Claim Against You without Your consent unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties, (ii) obtain a licence for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User Subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User Subscriptions after the effective date of termination.

7.2 Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us. We will (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defence and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us without Our consent unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.

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8. Limitation of Liability

8.1 Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU UNDER THIS AGREEMENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 7 (FEES AND PAYMENT FOR PURCHASED SERVICES) OR TO YOUR INDEMNIFICATION OBLIGATIONS UNDER 7.2.

8.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST OPPORTUNITIES, INCLUDING OPPORTUNITIES TO ENTER INTO ARRANGEMENTS WITH THIRD PARTIES, LOSS OF DATA, LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

8.3 Australian consumer law. Nothing in these terms is intended to limit any of Your rights under the Competition and Consumer Act 2010 (Cth). If the Competition and Consumer Act 2010 (Cth) or any other legislation states that there is a guarantee in relation to any goods or services supplied by Us in connection with these terms and Our liability for failing to comply with that guarantee cannot be excluded but may be limited, then Sections 8.1 and 8.2 do not apply to that liability. Instead Our liability for that failure is limited to (at Our election): (a) in the case of a supply of goods, Our replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or (b) in the case of a supply of services, Our supplying the services again or paying the cost of having the services supplied again.

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9. Disclosure and Confidentiality

9.1 Market Disclosure. When You become a customer, You agree to allow Us to reference You as a customer using Our technology on Our website and in print copy or marketing collateral. You will provide Us with an approved company logo that We may publish on Our website and/or marketing collateral to communicate such relationship.

9.2 Confidentiality. Each party agrees to keep confidential, and not to use or disclose, other than as permitted by these terms, any Confidential Information of the other party provided to or obtained by that party before or after entry into these terms.

9.3 Exclusions. The obligations of confidence in clause 9.2 do not apply to Confidential Information: (a) that is required to be disclosed by applicable law, or under compulsion of law by a court or government agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party: (i) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and (ii) before disclosing any information, gives a reasonable amount of written notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain that Confidential Information in confidence; (b) that is in the public domain except as a result of a breach of these terms or other obligation of confidence; or (c) that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.

9.4 Restriction on disclosure. Each party may use and disclose Confidential Information of the other party only: (a) with the prior written consent of the other party; or (b) to that party’s directors, agents, professional advisors, employees, contractors and permitted sub-contractors solely for the exercise of rights or the performance of obligations under these terms.

9.5 If either party discloses Confidential Information under clause 9.4, that party must ensure that the information is kept confidential by the person to whom it is disclosed and is only used for the purposes of performing the Services under these terms.

9.6 Injunctive relief. Each party acknowledges that: (a) the other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the other party, and that monetary damages would be an insufficient remedy; and (b) in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of clause 9.

9.7 De-identified data. Despite any other clause in these terms, We and our suppliers may use any data which is de-identified, for any purpose.

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10. Privacy and Security

10.1. You must process, use and disclose all Personal Information: (a) in compliance with Privacy Laws (regardless of whether or not You are otherwise obliged to comply with the Privacy Laws); and (b) only for the purposes of performing its obligations under these terms, in so far as that processing, use or disclosure is connected with this Agreement

10.2. You must obtain any necessary consents from, and make any necessary disclosures to, all relevant individuals for the purpose of disclosing their Personal Information to Us under these terms, and must otherwise comply in all respects with Your obligations under the Privacy Act and, if applicable the GDPR, in respect of any Personal Information collected by You and disclosed to Us. If the GDPR applies to the Personal Information, you confirm that consent has been freely given, is specific to the purpose for which the Personal Information is to be used, is informed and unambiguous.

10.3. You must give all assistance required and comply with all directions given by Us from time to time in relation to Our privacy policy, Our compliance with the Privacy Act and, if applicable the GDPR, or any investigation, request or enquiry (formal or otherwise) from the Privacy Commissioner or any other regulatory body regarding the Personal Information disclosed to Us under these terms.

10.4. You must immediately notify Us if You become aware that a disclosure of Personal Information may be required by law.

10.5. You must notify Us immediately if You becomes aware of any breach of clause 10.

10.6. You acknowledge that You must ensure that Your computer network is secure, and that We are not responsible for the security of the Your Data or Your computer network.

10.7 You acknowledge that you have in place a privacy policy in compliance with relevant Privacy Laws and have in place procedures to deal with any suspected Personal Information breach.

10.8 We confirm that We will only use Personal Information as set out in our privacy policy.

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11. Term and Termination

11.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions under its terms have expired or have been terminated.

11.2. Term of purchased subscriptions. The term of each User Subscription shall be as specified in the applicable Order Form and is subject to any specified special terms and conditions set out in that Order Form (Subscription Term). Except as otherwise specified in an Order Form, User Subscriptions will automatically renew for additional periods equal to the Subscription Term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. If a corresponding Order Form specifies the duration of the period over which Your price point remains active, Pendula will not increase your per-user licence fees subscription transaction package or transaction costs during that duration.

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11.3. Termination.

If You:

4. breach any of these terms (including, without limitation, by non-payment of licence fees according to section 4.) and do not remedy this breach within 30 days after receiving notice of the breach if the breach is capable of being remedied;
5. breach any of these terms and the breach is not capable of being remedied (which includes (without limitation) any breach of section 5; or
6. You or your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction, Pendula can suspend or terminate this Agreement and Your use of the Services and You will remain liable for any accrued charges and amounts which became due for payment prior to termination, as well as immediately cease to have access to the Services.

11.4. Refund or Payment upon Termination. Pendula will not provide any refund for any remaining User Subscriptions or Digital Services. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

11.5. Your Data Portability and Deletion. Apart from administrative meta-data and Channel transaction data, Pendula does not store your data in its own application data store. All underlying record data remains within the underlying application (such as Salesforce.com). Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make any of Your Data stored within Pendula, that does not exist within the underlying data storage application, available to You for export or download. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.

11.6. Surviving Provisions. Sections 4 (Fees and Payment for Product Licensing & Digital Services), 7 (Indemnification), 8 (Limitation of Liability), 10 (Privacy) and 11 (Term and termination) will survive any termination or expiration of this Agreement.

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12. Product Support

12.1. Overview. In all cases, Pendula support enquiries will be carried out via email and only elevated to telephone communication when initiated by Pendula customer support team members. For support, you should email Pendula support using the following email address: help@pendula.com

12.2. Important Exclusions relating to the Salesforce.com Platform. You should redirect any Salesforce platform specific enquiries to Salesforce customer support.

12.3. High-level Elevation and Consulting: In some cases, You will require additional resources and Professional Services. In such cases a consulting or technical services proposal and fee quote will be provided to have a Pendula certified consultant or development team member address issues raised. Alternatively, you can get in contact with your Salesforce.com services provider for a fee quote for consulting, governance or Salesforce.com implementation support.

12.4. Training & User Development Programs. Pendula offers training programs for Pendula customers at additional cost. These are a valuable opportunity to ensure that users are at their maximum capability to find solutions to issues themselves as well as completely familiarise themselves with the application. If training packages or train the trainer sessions have not been specified in an accompanying license Order Form or Services Agreement – please contact us for pricing of Pendula training programs.

12.5. Exclusion. To the extent permitted by law, we do not accept any liability in connection with the use or content of any Salesforce or other third-party products and services. This is a matter for your agreement with the relevant third party.

To find out more information and pricing of such programs please email:help@pendula.com

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13. Who You Are Contracting With, Notices & Governing Law & Jurisdiction

13.1. General. You are contracting with: Zipline Cloud Pty Ltd T/A Pendula Solutions with offices at Level 1, 234 Crown Street, Darlinghurst, New South Wales, 2010, Australia.

Notices should be emailed to: legal@pendula.com

Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in New South Wales, Australia. The governing law of this Agreement is that of New South Wales, Australia.

13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing (which includes email) and shall be deemed to have been given upon: the first business day after sending by email. Notices to You shall be addressed to the system administrator designated by You for Your relevant services account, and in the case of billing-related notices, to the relevant billing contact designated by You.

13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

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14. General Provisions

14.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

14.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

14.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

14.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

14.5. Attorney Fees. You shall pay on demand all of Our reasonable legal fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 4.2 (Invoicing and Payment)

14.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

14.7. Entire Agreement. This document, including all exhibits and addenda to this document and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this document and any exhibit or addendum to this document or any Order Form, the terms of the Order Form will prevail, followed by this Agreement, and then the terms of any exhibit or addendum. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

14.8. Force Majeure. We will not be: (a) in breach of this Agreement as a result of; or (b) liable for, any failure or delay in the performance of Our obligations under these terms to the extent that the failure or delay is wholly or partially caused, directly, or indirectly, by a Force Majeure Event or Your act or omission.

14.9. Subcontracting. We may subcontract the performance of all or any part of Our obligations under these terms.

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Annex A - SFDC Service Agreement

“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.

“Customer Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.

“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.

“Reseller” means Zipline Cloud Pty Ltd T/A Pendula Solutions.

“Reseller Application” means Pendula (Formerly known as Zipline).

“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.

“SFDC” means, collectively, salesforce.com, Inc. and its affiliates.

“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.

“Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).

“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.

1. Use of Platform
2. Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
3. If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.
4. Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
5. You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Customer Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.
6. You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
7. You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
8. Additional Terms. The terms in this clause 2 apply in relation to your use of the corresponding product.

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Pendula Force.com Embedded Plus Apps Admin User Subscription (Pendula Communicator Licence)

1. An Admin User subscription is required per Org and should be included in all initial Service Orders. 1 Admin User subscription should be ordered for every 50 User subscriptions. If more than one (1) Admin User subscription is required, additional Admin User subscriptions are available for purchase.
2. Users of this subscription may install and use up to five (5) additional applications, permitted they are related to and/or within the following AppExchange categories: Document Generation and SMS/Collaboration tools industry.
3. Admin User subscriptions may be used by the applicable User only to configure and administer the OEM Services in support of your use of the Combined Solution. An Admin User subscription may not be used to access, distribute, or use any CRM functionality. CRM functionality is defined as access to CRM standard objects through standard tabs, related lists in custom tabs, through the SFDC web services API or through reports and dashboards. CRM standard objects include campaigns, leads, opportunities, cases, solutions and forecasts.
4. SFDC may audit use of this subscription through the SFDC Service and/or the OEM Services and provide the results of such audit to Reseller.
5. Should any audit reveal any unauthorised use of this subscription, Reseller agrees to pay to Reseller, within thirty (30) days of Reseller’s notice of the audit results the difference between the price charged by Reseller to you for the applicable subscription and Reseller’s then-current list price for the full-use version of the subscription for all of the subscriptions in the same Org showing unauthorised use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (the “Prohibited Use Penalty”). Upon payment of the Prohibited Use Penalty, all subscriptions showing unauthorized use will be converted into full-use subscriptions at Reseller’s then current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the term of the Agreement.

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Pendula Force.com Embedded User Subscription (Pendula Operator Licence)

1. Embedded Edition cannot be provisioned without at least one Embedded Admin User subscription purchased from Reseller per Org.
2. Users of this subscription are contractually restricted to (i) Users who are categorised as/or related to an "Operator" role and (ii) have read-only access to the application with the exception of full access for up to three (3) custom objects only.
3. SFDC may audit use of this subscription through the SFDC Service and/or the OEM Services and provide the results of such audit to Reseller.
4. Should any audit reveal any unauthorised use of this subscription, Reseller agrees to pay to Reseller, within thirty (30) days of Reseller’s notice of the audit results the difference between the price charged by Reseller to you for the applicable subscription and Reseller’s then-current list price for the full-use version of the subscription for all of the subscriptions in the same Org showing unauthorised use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (the “Prohibited Use Penalty”). Upon payment of the Prohibited Use Penalty, all subscriptions showing unauthorized use will be converted into full-use subscriptions at Reseller’s then current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the term of the Agreement.
5. Reseller and other third-party providers, some of which may be listed on pages within SFDC’s website and including providers of Third-Party Applications, offer products and services related to the Platform, the SFDC Service, and/or the Reseller Application, including implementation, customization and other consulting services related to customers’ use of the Platform and/or the SFDC Service, and applications (both offline and online) that interoperate with the Platform and/or the SFDC Service such as by exchanging data with the Platform and/or the SFDC Service or by offering additional functionality within the user interface of the Platform and/or the SFDC Service through use of the Platform and/or SFDC Service's application programming interface. SFDC does not warrant any such third-party providers or any of their products or services, including but not limited to the Reseller Application or any other product or service of Reseller, whether or not such products or services are designated by SFDC as “certified,” “validated” or otherwise. Any exchange of data or other interaction between You and a third-party provider, including but not limited to the Reseller Application, and any purchase by You of any product or service offered by such third-party provider, including but not limited to the Reseller Application, is solely between You and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Platform or SFDC Service) may be offered by SFDC or Reseller to You, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the licensor and agreed to by You in connection with a separate purchase by You of such additional functionality. Your use of any such additional functionality shall be governed by such terms, which shall prevail in the event of any inconsistency with the terms of this SFDC Service Agreement.
6. Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third- Party Applications to access Customer Data as required for the interoperation of such Third-Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.
7. Access by ResellerTo the extent Reseller serves as the administrator of the Reseller Application for You, You acknowledge that your use of the Reseller Application may be monitored by Reseller and Reseller may access Customer Data submitted to the SFDC Service or Reseller Application. By agreeing to this SFDC Service Agreement, you are consenting to such monitoring and access by Reseller.
8. Return of Customer Data.You have thirty (30) days from the date of termination your Reseller Application subscription term in which to request a copy of Customer Data, which will be made available to You in a .csv format. Any modifications to such Customer Data made by the Reseller Application outside of the Platform (if any) will not be captured in Customer Data as returned and the return of any such modified data shall be the responsibility of Reseller.
9. Proprietary Rights.Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
10. Compelled Disclosure.If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
11. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
12. Suspension and Termination.Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non- payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.
13. Subscriptions Non-Cancellable.Subscriptions for the Platform are non-cancellable during a subscription term, unless otherwise specified in Your agreement with Reseller.
14. No Warranty.SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
15. No Liability.IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Further Contact.SFDC may contact You regarding new Platform and SFDC Service features and offerings.
17. Third Party Beneficiary.SFDC shall be a third-party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
18. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC.

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Annex B – Fair Use Policy

1. Summary

It is important to Pendula that all users of the Services are able to access the Services. Accordingly, Pendula has a Fair Use Policy which applies to:

(a) usage of the Services; and

(b) any excessive events or data handling generated by You.

Pendula reserves the right to vary the terms of the Fair Use Policy from time to time provided any change is not materially detrimental to You.

Pendula may rely on the Fair Use Policy where:

(a) Your usage of the Services is unreasonable; or

(b) our request of the Services from Pendula is unreasonable, as described below.

2. Unreasonable use

It is an unreasonable use of the Services if Your request of the Services is considered by Pendula (acting reasonably) to be excessive use, or likely to adversely affect the Services or other Pendula customers' use of or access to the Services. Among other things, use which is considered unreasonable includes:

(a) using the Services to attempt to circumvent legal restrictions (or the purpose of legal restrictions); or

(b) using the Services in a way that an ordinary person would not regard as being used for ordinary business use; or

(c) the specific instances described in Annexes B, C, and D (where applicable).

3. Our rights

Where You are in breach of this Fair Use Policy, Pendula may contact You to discuss changing Your usage so that it conforms to this Fair Use Policy.

If, after Pendula has contacted you, Your unreasonable use continues, Pendula may, without further notice to You:

(a) suspend or limit the Services (or any feature of it) for any period Pendula thinks is reasonably necessary; and/or

(b) terminate this Agreement.

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Annex C – Digital Subscriptions Special Terms and Conditions

Digital Services: Digital Transaction Services

1. Digital Transactions are billed by subscription and are subject to sending limits for a defined month. If you go over your sending limit in any channel you will be charged a Digital Transaction Overage fee for the Channel that has breached the specified sending limit. The sending limits are valid for a month and expire at the conclusion of each monthly anniversary. You can move onto a larger Digital Transaction Subscription to increase sending limits at the beginning of any month by providing prior written notice to Us by email or post. We will invoice You for any difference in cost associated with an upgrade.
2. For any usage of Digital Transactions Subscriptions beyond the Digital Transaction Subscriptions included sending limits in this Order Form We will invoice You at the end of the month, the Digital Transaction Overage.
3. Except as otherwise specified in the MSA or in an Order Form, fees are based on User Subscriptions and Digital Transaction Subscriptions purchased and actual usage resulting in Digital Transaction Overage.
4. Overage will be charged in arrears on a monthly basis.
5. Unless set out below, defined terms in these special terms and conditions have the meanings given in the MSA.

“Digital Transaction" means a digital channel communication delivered by Us or one of our Partners, and the following are each individual Digital Transactions

1. Electronic Mail – a single email message and associated attachments;
2. Short message service – a single maximum 160-character SMS text message; and
3. Social Post – a single social message and associated attachments.

"Digital Transaction Overage" means the fee that We charge You when a Digital Transaction is sent after the defined sending limit has been reached for a specific Channel, as set out in the relevant Order Form.

"Digital Transaction Subscription" means a subscription package including a specified number of Digital Transactions per Channel per month.

"Transaction Services" means the service of delivering or arranging the delivery of a Digital Transaction by Us or one of our Partners.

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Annex D – Contacts Special Terms and Conditions

Digital Services: Digital Contact Services

1. The Monthly Individual Fee that applies in relation to an individual that you contact by way of the Digital Contact Services in any given month is determined by the number of Digital Contacts in in relation to that individual in that month. The applicable Monthly Individual Fee brackets are set out in the Order Form. You agree to pay us the corresponding Monthly Individual Fee in respect of each individual to whom you deliver Digital Contacts in a given month.
2. Monthly Individual Fees will be invoiced by us at the end of the month.
3. Unless otherwise agreed, the Monthly Individual Fee for Digital Contact Services includes the corresponding User Subscriptions required for you to enjoy the Digital Services in accordance with this Agreement.
4. Except in the case of manifest error, We are responsible for determining the identity of an individual (for the purpose of ascertaining whether an additional Monthly Individual Fee is payable).
5. On Pendula’s request, You must allow Pendula or a third party nominated by Pendula (each an Auditor) to access during business hours Your records and any premises, systems, equipment, personnel and information relating to this Agreement in order to audit Your compliance with this Agreement.
6. Use which is considered unreasonable (for the purpose of Annex B) includes:
7. using the Services to generate Digital Transactions at an Average Delivery Rate in any month that exceeds 5, with the Average Delivery Rate being calculated as follows:
8. Average delivery rate = Number of digital contacts processed in a month / number of contacts
9. Unless set out below, defined terms in these special terms and conditions have the meanings given in the MSA.

“Contact” means each unique individual that receives or sends a message from or to Us.

“Digital Transaction" means a digital channel communication delivered by Us or one of our Partners, and the following are each individual Digital Transactions:

1. Electronic Mail – a single email message and associated attachments;
2. Short message service – a single maximum 160-character SMS text message; and
3. Social Post – a single social message and associated attachments.

“Monthly Individual Fee” means the fee set out as such in the Order Form.

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Annex E – Cycles Special Terms and Conditions

Digital Services: Digital Cycles Services

For each Digital Transaction Cycle between you and an individual that you contact by way of a Digital Transaction, we will charge you the Digital Transaction Cycle Fee.

Any Digital Transaction Cycle Fee will be invoiced by us at the end of the month. Except in the case of manifest error, We are responsible for determining when a Digital Transaction Cycle has occurred.

Use which is considered unreasonable (for the purpose of Annex B) includes using the Services to generate Digital Transactions at an Average Delivery Rate in any month that exceeds 5, with the Average Delivery Rate being calculated as follows:

Average delivery rate = Number of digital transactions processed in a month / number of digital transaction cycles set out in the order form

Unless set out below, defined terms in these special terms and conditions have the meanings given in the MSA.

“Contact” means each individual that receives or sends a message from or to Us.

“Digital Transaction" means a digital channel communication delivered by Us or one of our Partners, and the following are each individual Digital Transactions:

1. Electronic Mail – a single email message and associated attachments;
2. Short message service – a single maximum 160-character SMS text message; and
3. Social Post – a single social message and associated attachments.

“Digital Transaction Cycle” means an interaction between You and a Contact that occurs within a 24-hour period (00:00 to 24:00 AEST) that does not have more than 3 outbound Turns or 3 inbound Turns.

“Digital Transaction Cycle Fee” means the fee set out as such in the Order Form.

“Turn” means each individual Digital Transaction.