1.
Who we are and how to contact us
1.1
Pendula is a platform (Pendula Platform) operated by Zipline Cloud Pty Ltd ABN 61 613 136 824 trading as Pendula Solutions (we, us and our).
1.2
To contact us, please click here and get in touch.
2.
These Terms, Orders and the Contract
2.1
These terms and conditions (Terms) apply to:
- your access to the Pendula Platform; and
- our supply of any other services to you;
(together, the Pendula Services). If you do not agree to these Terms, you cannot access the Pendula Platform or receive any other Pendula Services.
2.2
We use bold text in these Terms to identify where a word has been given a specific meaning. For example, you and your refer to the party that is identified as our customer in an Order.
2.3
Unless otherwise agreed, please follow the onscreen prompts to place an order using the Pendula Platform (Order). We may require you to use our offline order form to place an Order (in which case, that offline form is an Order). Our acceptance of your Order takes place when we confirm that we have accepted your Order either by email or another written confirmation (such as an online message), at which point and on which date (Commencement Date) the Contract between you and us will come into existence.
2.4
The Contract between you and us consists of the following parts and to the extent of any inconsistency, each part will prevail in the following order (with the first-named item prevailing to the greatest extent):
- the Order;
- any Additional Terms (in accordance with clause 15); then
- these Terms.
2.5
If we agree to provide you with professional services (such as implementation services), the scope and deliverables in connection with those Pendula Services may be set out in a Statement of Work prepared by us. Any Statement of Work is deemed to be an Order under these Terms.
2.6
If applicable, your Order will identify is the Pendula Services are provided on a Trial, Non-Charge Period or Discount Period basis, in which case the applicable Special Terms at the end of this document will apply and will prevail to the extent of any inconsistency with the rest of this document.
3.
Pendula Plans
3.1
Unless otherwise agreed, access to the Pendula Platform is by way of a Pendula Plan.
3.2
Your Pendula Plan commences on the Pendula Plan Start Date set out in the Order and continues for:
- the Initial Plan Period set out in the Order; and
- any Renewal Plan Periods (which has the meaning given in clause 3.3 or 3.4, as applicable),
(together, the Plan Period).
3.3
If your Pendula Plan has an Initial Plan Period less than 1 year:
- unless either party gives notice before 11:59pm (in Sydney, Australia) on the last day of the Initial Plan Period, the Pendula Plan will renew for a period equal to the Initial Plan Period (Renewal Plan Period); and
- unless either party gives notice before 11:59pm (in Sydney, Australia) on the last day of a Renewal Plan Period, the Pendula Plan will renew for a further Renewal Plan Period (and will continue to do so).
3.4
If your Pendula Plan has an Initial Plan Period of 1 year or more:
- unless either party gives 90 days’ notice before the expiry of the Initial Plan Period, the Pendula Plan will renew for a period equal to the Initial Plan Period (Renewal Plan Period); and
- unless either party gives 90 days’ notice before the expiry of a Renewal Plan Period, the Pendula Plan will renew for a further Renewal Plan Period (and will continue to do so).
3.5
You can ask us in writing to give you notice prior to the date on which you become committed to renew the Pendula Plan for a Renewal Plan Period (as described in clause 3.3 or 3.4, as applicable).
4.
Inclusions
4.1
Your Order will set out the various inclusions for your Pendula Plan (Inclusions).
4.2
Inclusions apply over a specific period set out in your Order (e.g. monthly/quarterly/annually) and this period is called the Inclusions Period.
4.3
Inclusions are typically an allowance of Experiences for an Inclusions Period. An Experience is a single path of a recipient (e.g. someone who you contact using the Pendula Platform) moving through a Pendula workflow. This could include inbound and/or outbound messages and other workflow interactions on that path.
4.4
Certain aspects of an Experience may be subject to a Ceiling. Each time the Ceiling for an Experience is exceeded, you will be treated as having used an additional Experience in the relevant period.
- For example:
Your Order sets out that your Pendula Plan has Inclusions of 500 Experiences per month.
Your Order also states there is a five outbound SMS Ceiling in relation to each Experience. Therefore, if you send 14 outbound SMS messages in a single Experience, that will count as 3 Experiences.
4.5
Your Inclusions might also refer to a monthly or annual number of Contacts. A Contact is a unique individual that you can communicate with using the Pendula Platform. You can provide a number of different communication methods in relation to a single Contact (e.g. email and phone number). However, if you provide more than one of the same communication method for a single individual (e.g. two email addresses), each duplicated communication method will count as a separate Contact. Except in the case of manifest error, we are responsible for determining the number of Contacts used in each month.
4.6
If you exceed the included Inclusions in an Inclusions Period, we will charge you for Overage Blocks of additional Inclusions until you have sufficient Inclusions for your use of the Pendula Platform in that period or, if stated in your Order, you will move to the next pricing tier for the relevant Inclusions. Unless otherwise stated in an Order, there is no pro-rata treatment of the Charges for an Overage Block if an Overage Block is added part way through an Inclusions Period. If our Charges for Overage Blocks are not set out in the Order, they will be set out on the pricing section of our website (please note that Overage Blocks for Inclusions relating to overseas use may be higher than those related to domestic use).
4.7
For the avoidance of doubt, any unused Inclusions expire at each Inclusions Period (including where purchased as an Overage Block).
4.8
We usually invoice you for Overage Blocks on or about the time when you start using that Overage Block. However, sometimes we will charge you later for your use of Overage Blocks. We endeavour to invoice you for Overage Blocks no later than 12 months from when you start using that Overage Block.
4.9
You may request that we reduce your Pendula Plan with effect from the start of the next Renewal Plan Period. You can increase your Pendula Plan at any time.
4.10
Longer SMS messages can count as more than one SMS message on the Pendula Platform. Each 160-character segment of an SMS message is a Segment. Each time an SMS message exceeds 1 Segment, it counts as an additional SMS message. For example, an 800-character SMS message contains 5 Segments and therefore counts as 5 SMS messages. Multi-segment messages can count as having additional character as can certain symbols, punctuation and other items. It is your responsibility to understand the number of Segments in a message. If you require more information in relation to this, please contact us. In your dealings with Pendula, and unless otherwise agreed in writing, references to SMS allowances and similar, are references to allowances of SMS Segments and may be subject to geographic limitations.
5.
Charges and payment
5.1
Except for as provided in our Special Terms (if applicable) or as otherwise agreed, in consideration of us providing the Pendula Services, you must pay our charges (Charges) in accordance with this clause 5. Unless otherwise agreed, we will take your first payment upon acceptance of your Order.
5.2
Our Charges are exclusive of goods and services tax (GST). Where GST is payable in respect of some or all of the Pendula Services, you must pay us such additional amounts in respect of GST, at the applicable rate, at the same time as you pay the Charges.
5.3
Unless otherwise agreed, payment for the Pendula Services is in advance. To the extent permitted by law, all Charges are non-refundable and Orders are non-cancellable other than if you validly terminate this Contract because of our breach.
5.4
You can pay for the Pendula Services using a debit card or credit card. If you provide credit card information to us, you authorise us to charge that credit card for all Charges (including any Overage Blocks) and a reasonable amount to cover any fees we incur in connection with charging that credit card. We will send you an electronic invoice following payment.
5.5
If you fail to make a payment under the Contract by the due date, then, without limiting our remedies under clause 13, you will have to pay monthly interest on the amount unpaid at the most recent daily 11.00 am cash rate quoted on Reuters page RBA30 plus 2%. Interest accrues on a daily basis from the due date up to and including the date of actual payment.
5.6
Unless otherwise stated in the Order, the Charges are payable in Australian Dollars.
5.7
You acknowledge and agree that we can pursue payment collection through formal debt collection third parties if:
- any amount owing by you under this Contract is 30 or more days overdue; or
- you have made no effort to resolve a payment dispute.
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.
5.8
Unless we agree otherwise, if you increase your Pendula Plan during an Inclusion Period, you will be charged for the difference between the two subscriptions, and obtain the balance of any additional Inclusions, for the remainder of the current Inclusions Period. The increased Pendula Plan Inclusions and Charges will then apply in full for any subsequent Inclusions Period for the rest of the Plan Period (unless you change your plan again in accordance with this Contract).
- For example:
You have the following Pendula Plan:- an Inclusions Period of 1 month;
- Inclusions of 2,500 Experiences in each Inclusions Period; and
- a Plan Charge of $455 per month for the Inclusions Period.
Halfway through an Inclusions Period, you increase your Pendula Plan to:- Inclusions of 5,000 Experiences in each Inclusions Period; and
- a Plan Charge of $824 per month for the Inclusions Period.
You would pay $369 to increase your Inclusions by 2,500 Experiences for the remainder of that Inclusions Period. Thereafter, you would pay $824 for Inclusions of 5,000 Experiences.
5.9
At least 120 days prior to the start of that Plan Renewal Period, we may submit revised Plan pricing that will apply during that Renewal Plan Period.
6.
Your obligations and responsibilities
6.1
It is your responsibility to ensure that:
- you obtain and maintain all necessary licences, permissions and consents which may be required for your use of any Pendula Services before the date on which the Pendula Services are to start; and
- you comply with all applicable laws applicable to your receipt and use of the Pendula Services.
6.2
If our ability to provide the Pendula Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 6.1 (Your Default):
- we will be entitled to suspend the Pendula Services until you remedy Your Default, and to rely on Your Default to relieve us from the obligation to provide the Pendula Services, in each case to the extent Your Default prevents or delays the performance of the Pendula Services (as applicable). In certain circumstances Your Default may entitle us to terminate the Contract under clause 13;
- subject to clause 10.4, we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to provide the Pendula Services; and
- it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
6.3
You are responsible for all use of your access to the Pendula Services, and must ensure that no person uses the Pendula Services:
- in breach of an Additional Agreement;
- for any purpose other than your internal business purposes;
- in a manner that breaks any law or infringes any person’s rights;
- in any way that damages, interferes with or interrupts the supply of the Pendula Services;
- to transmit, publish, communicate, view or create any material that is or may be pornographic, defamatory, offensive, menacing, unwanted, obscene, illegal or unlawful;
- in a way that infringes any third party’s intellectual property rights;
- in a way that disrupts, misuses or excessively uses our (or any of our third party service provider’s) hardware, bandwidth access, storage space or our (or any of our third party service provider’s) other resources; or
- in a way that exposes our security processes or degrades our security rankings.
6.4
Additionally, you must not:
- permit any third party to access the Pendula Services except as permitted in this Contract;
- create derivate works based on the Pendula Services;
- copy, frame or mirror any part or content of the Pendula Services;
- reverse engineer the Pendula Services; or
- access the Pendula Services in order to:
- build a competitive product or service, or
- copy any features, functions or graphics of the Pendula Services,
and must ensure that no person does any of the acts described in clause 6.4(a) to 6.4(e).
6.5
You must comply will all laws applicable to your receipt and use of the Pendula Services.
6.6
You are responsible for the acts and omissions of any user of your access to the Pendula Services as if they were your own acts or omissions.
6.7
You warrant that you are not subject to UK, EU or US trade sanction or economic restriction, or other trade sanctions or economic restrictions.
6.8
You must be a registered business to use the Pendula Services.
6.9
Subject to clause 10.4, you acknowledge and agree that we are not responsible for your use of the Pendula Services, or any actions you take or conclusions you reach based on your use of the Pendula Services.
7.
Intellectual property rights
7.1
All intellectual property rights in or arising out of or in connection with the Pendula Services (other than intellectual property rights in any materials provided by you), including any improvements and modifications to the Pendula Services, will be owned by us.
7.2
All intellectual property rights in any materials developed or created by us or on our behalf for you as part of the Pendula Services vest in us immediately from creation.
7.3
We agree to grant you a fully paid-up, worldwide, non-exclusive, non-sublicensable, non-transferable, royalty-free licence during the Plan Period to:
- access the Pendula Platform as specified in your Order; and
- use our intellectual property rights that we make available to you for the purpose of receiving and using the Pendula Services,
for use in your business in accordance with this Contract. You may not sub-license, assign or otherwise transfer the rights granted in this clause 7.3.
7.4
You acknowledge that we can leverage API services from third-parties to enable facilities like short message services. We are not obliged to allow you to connect and use your own gateway privately with your own supplier of those facilities. Any integration must be validated and handled through a professional services engagement with us and additional Charges may apply. Subject to clause 10.4, we are not liable for the integrity, accuracy, timeliness and security for any of the services provided by third-party API and Relevant Suppliers which are used in providing the Pendula Services. On request, we can provide you with a list of these third parties and the role they play in connection with the Pendula Services.
7.5
You grant us a fully paid-up, non-exclusive, royalty-free, worldwide, transferable, sub-licensable, licence to use, copy, modify or incorporate all data, information, communications sent and received, and other materials that we access as a result of your use of the Pendula Services (Your Data) for the term of this Contract, for the purpose of providing and improving the Pendula Services and/or running analytics in connection with use of the Pendula Services.
7.6
You grant us a fully paid-up, non-exclusive, royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual licence to use, copy, modify or incorporate Your Data in a de-identified and aggregated format, and any suggestions, enhancement requests, recommendations or other feedback provided by you (including users) relating to the operation of the Pendula Services, for the purpose of providing and improving the Pendula Services and/or running analytics in connection with use of the Pendula Services.
8.
Personal Information/Data
8.1
Each party agrees to comply with its obligations under the Privacy Act 1988 (Cth) and, to the extent the UK GDPR (has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018) applies, the law of the UK or of a part of the UK which relates to the protection of personal data and, to the extent the EU GDPR (the General Data Protection Regulation ((EU) 2016/679) applies, the law of the European Union or any member state of the European Union to which either party is subject, which relates to the protection of Personal Data (Data Protection Legislation) and any other legislation affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of such data to the extent that such legislation applies to that party in connection with performance of this Contract (Privacy Laws).
8.2
These Terms also incorporate our Privacy Policy and (if applicable) Data Processing Addendum.
8.3
In addition to your agreement to the application of our Privacy Policy and (if applicable) Data Processing Addendum, you agree to procure all permissions and make all disclosures necessary to allow us and each Relevant Supplier to obtain, use and disclose the Personal Information (as that term is used in the Privacy Act 1988 (Cth) or Personal Data (as the term is used in Data Protection Legislation that you and any user provide in the course of this Contract and any Additional Agreement, for the purpose of this Contract and any Additional Agreement (and any other purpose set out in this Contract and/or any Additional Agreement). If UK GDPR, Data Protection Act 2018 and/or EU GDPR) applies to information, you confirm that consent has been freely given, is specific to the purpose for which the information is to be used, is informed and unambiguous.
8.4
You must give us all assistance required and comply with all directions given by us from time to time in relation to our Privacy Policy and (if applicable) Data Processing Addendum, our compliance with the Privacy Laws and, if applicable, UK/EU GDPR, or any investigation, request or enquiry (formal or otherwise) from the Office of the Australian Information Commissioner or the UK Information Commissioner or any other regulatory body regarding the information disclosed to us under this Contract.
8.5
You must notify us immediately if you become aware of any breach or likely breach of this clause 8.
8.6
You must ensure that your computer network is secure. To the extent permitted by law, we are not responsible for the security of the Your Data or your computer network.
8.7
You acknowledge that certain components of the Pendula Services are provided by third parties. We recommend that you review those third parties’ privacy policies before using the Pendula Services. Please see, https://www.pendula.com/subprocessors for a list of Pendula's third party subprocessors. Please note that other third third party subprocessors may be listed in your solution documentation.
8.8
Upon request by you made within 30 days after the effective date of termination or expiration of this Contract, we will make any of Your Data stored within our systems, 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 may thereafter delete or destroy all copies of Your Data in our systems or otherwise in our possession or control, unless legally prohibited.
8.9
You acknowledge and agree that, among other legislative requirements, the Spam Act 2003 (Cth) (Spam Act) may apply to your use of the Pendula Platform. If the Spam Act applies, you acknowledge and agree that you are responsible for ensuring that the requirements of the Spam Act are satisfied. By way of example only, you must ensure that you have the necessary permissions from anyone to whom you want to send an electronic marketing message and must comply with all unsubscribe requests.
8.10
Further details of how we will process personal information/data are set out in our Privacy Policy and (if applicable) Data Processing Addendum.
9.
Restrictions, obligations and disclaimers
9.1
You represent and warrant to us that:
- all information given to us in relation to this Contract is correct, complete and not misleading; and
- any material that you supply and that is used by us will not and does not infringe or breach any third party rights or terms and conditions.
9.2
Subject to clause 10.4, and to the extent permitted by law:
- we do not guarantee that the Pendula Services, or any services provided in connection to the Pendula Services, will always be available, uninterrupted or be error-free; and
- the Pendula Services are provided on an "as is" and "as available" basis, and (except as set out in these Terms) we make no representations or warranties, express or implied, regarding the operation or availability of the Pendula Services;
- without limiting the generality of clauses 9.2(a) and 9.2(b), we do not warrant that the Pendula Services will meet your requirements, will operate in any combination that may be selected for use by you or in combination with other software;
- we may change, suspend, withdraw or restrict the availability of all or any part of Pendula Services for business and operational reasons and, unless otherwise agreed, will replace it with comparable or improved overall functionality, and we will try to give you reasonable notice of any such suspension, withdrawal or restriction;
- 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; and
- we make no warranty, and you assume the entire risk, as to the capabilities, suitability, use or performance of any Pendula Services under this Contract.
9.3
The operation and availability of the systems used in connection with the Pendula Services, including public telephone services, mobile telecommunications networks, printing services, SMS providers, social media providers, computer networks and Internet, can be unpredictable and may from time to time interfere with or prevent access to the Pendula Services. Likewise, the various platform services that support the delivery of the Pendula Services including but not limited to Salesforce.com platform, Amazon Web Services, third-party gateway services may be unavailable from time to time or execute service delivery in a manner or timeframe that is not immediate. Subject to clause 10.4 and to the extent permitted by applicable law, we are not responsible or liable for any failure to provide the Pendula Services as a result of these systems or platform services.
9.4
Subject to clause 10.4 and to the extent permitted by applicable law, we exclude all express, statutory and implied conditions, guarantees and warranties in relation to any Pendula Services other than those expressly set out in this Contract.
9.5
If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party. We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Terms. If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us.
9.6
You are also responsible for ensuring that all persons who access the Pendula Platform through your Pendula Plan are aware of these Terms and other applicable terms and conditions, and that they comply with them.
9.7
The Pendula Platform is directed to users who are at least 18 years old and are residing in and using Pendula Platform within Australia, the UK and any other country we may agree to in writing. We do not represent that the Pendula Platform is appropriate for use or available in other locations. If you access the Pendula Platform from outside Australia, you do so at your risk and, pursuant to clause 6.1(b), you are responsible for compliance with laws applicable to you accessing Pendula Platform from your location.
9.8
Any descriptions or illustrations on our site are published for the sole purpose of giving an approximate idea of the services described in them.
9.9
We will use all reasonable endeavours to meet any performance dates specified in the Order or Statement of Work, but any such dates are estimates only and failure to perform the Pendula Services by such dates will not give you the right to terminate the Contract.
9.10
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.
9.11
Introductory, trial or promotional access to the Pendula Platform may be subject to additional terms. Those terms will be set out in your Order and will prevail over these Terms to the extent of any inconsistency.
9.12
Any telephone number provided by the Pendula Platform is, as between you and us, owned by us and cannot be transferred to you in any circumstance.
10.
Limitation of liability
10.1
Nothing in this Contract limits or excludes a party’s liability:
- for death or personal injury caused by that party its employees, as applicable;
- for fraud or fraudulent misrepresentation by that party or its employees, as applicable; or
- where liability cannot be limited or excluded by applicable law.
10.2
Subject to clauses 10.1, 10.4 and 10.7, a party will not be liable to the other, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Contract, including any:
- loss of profits;
- loss of sales or business;
- loss of production;
- loss of use or loss arising from loss of use;
- loss of agreements or contracts;
- loss of business opportunity;
- loss of anticipated savings;
- loss of or damage to goodwill;
- loss of reputation; or
- loss of use or corruption of software, data or information.
10.3
Subject to clause 10.1, 10.2, 10.4 and 10.7, a party’s maximum aggregate liability to the other for any loss or damage or injury arising out of or in connection with this Contract, including any breach of this Contract however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis:
- in any 12-month period is limited to the actual Charges paid by you under this Contract in the 12-month period preceding the matter or event giving rise to the claim; and
- in total is limited to the actual Charges paid by you under this Contract except where application of this clause 10.3(b) would result in a lesser limitation of liability for Pendula than that set out in clause 10.3(a) (i.e. this this clause 10.3(b) does not apply if it would result in greater liability for Pendula than if clause 10.3(a) applied).
10.4
Except as set out in clause 10.5, nothing in this Contract is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods and/or services or for customers domiciled in the UK the Consumer Rights Act 215 and Consumer Contracts (information, Cancellation and Additional Charges) Regulations 2013 (UK Consumer Law).
10.5
If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL or where applicable, the aforementioned UK Consumer Law that cannot be excluded, our total liability to you for that failure is limited to, at our option, in the case of a supply of goods, us replacing the goods or paying the cost of having the goods repaired or replaced or supplying equivalent goods or repairing the goods, or in the case of a supply of services, us supplying the services again or paying the cost of having the services supplied again.
10.6
Subject to clause 10.4 and to the extent permitted by law, any claim by you against us for loss, damage or injury however caused (including by the negligence of us), suffered by you in connection with this Contract must be made within 12 months of you becoming entitled to make the claim and any claim not made within 12 months is absolutely barred.
10.7
No exclusion or limitation of liability applies to any liability you have in connection with:
- any breach of clauses 6, 8 or 9.1(b) by you, your users of the Pendula Service or your personnel;
- your obligation to pay the Charges.
11.
Indemnities
11.1
You indemnify and hold us and our personnel harmless in respect of any loss or damage suffered by us or our personnel in connection with any claim against us or our personnel by a third party (including a regulator) arising out of or in connection with any breach of clause 6, 8 or 9.1(b) by you, your users of the Pendula Service or your personnel.
12.
Confidentiality
12.1
A party undertakes that it will not at any time disclose to any person any confidential information concerning the other’s business, affairs, customers, clients or suppliers, except as permitted by clause 12.2.
12.2
A party may disclose the other's confidential information:
- where the information is in the public domain as at the date of this Contract (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on that party);
- if that party is required to disclose the information by applicable law or the rules of any recognised stock exchange or other document with statutory content requirements, provided that such party has to the extent practicable having regard to those obligations and the required timing of the disclosure consulted with the other party as to the form and content of the disclosure;
- where the disclosure is expressly permitted under this Contract;
- if disclosure is made to that party’s respective officers, employees and professional advisers to the extent necessary to enable it to properly perform our obligations under this Contract or to conduct its business generally, in which case that party must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;
- where the disclosure is required for use in legal proceedings regarding this Contract; or
- if the party to whom the information relates has consented in writing before the disclosure.
12.3
Each of us may only use the other's confidential information for the purpose of fulfilling our respective obligations under the Contract.
12.4
You acknowledge and agree that we are unable to guarantee the confidentiality of the contents of communications sent and received using the Pendula Platform once they leave our internal network. Accordingly, the contents of communications sent and received using the Pendula Platform are, for the purpose of this Contract, not your confidential information.
12.5
You permit us to allow any Relevant Supplier to access your data in connection with your use of the Pendula Services. The treatment of information that you provide to a Relevant Supplier may be governed by the applicable Additional Terms or Additional Agreement.
12.6
You agree to allow us to reference you as a customer using our technology on our website and in print copy or marketing material. On request, you will provide us with an approved company logo that we may publish on our website and/or marketing material to communicate such relationship.
13.
Term and termination
13.1
This Contract commences on the Commencement Date and continues until the earlier of:
- the expiry or completion of all Pendula Services described in the Order; and
- termination in accordance with this Contract.
13.2
Without affecting any of our other rights, we may suspend the performance of the Pendula Services, or terminate this Contract with immediate effect by giving written notice to you if:
- you fail to pay any undisputed amount due under this Contract on the due date for payment and you remain in default not less than 30 days after being notified in writing to make such payment;
- you commit a material breach of any other term of this Contract and that breach is irremediable or (if that breach is remediable) you fail to remedy that breach within a period of 14 days after being notified in writing by us to do so;
- we are of the reasonable opinion that the provision of the Pendula Services to you, or the use of the Pendula Services by you, breaches a law, or industry code, whether mandatory or otherwise, or is likely to result in us breaching a law or industry code, whether mandatory or otherwise;
- you breach an Additional Agreement;
- a Relevant Supplier terminates its agreement with us;
- we are directed to do so by a regulatory body or similar;
- an insolvency event occurs in relation to you; or
- if you are a Company, you undergo a change of control.
13.3
Furthermore, we may (but are not required to), notify you and suspend the performance of the Pendula Services with immediate effect if we suspect that your use is unintentionally incurring uncharacteristically high overage charges. If we suspend the Pendula Services, messages will not be sent and may not be able to be retrieved.
13.4
You may terminate this Contract with immediate effect by giving written notice to us if:
- we commit a material breach of any term of this Contract and that breach is irremediable or (if that breach is remediable) we fail to remedy that breach within a period of 14 days after being notified in writing by you to do so;
- we modify the Pendula Services and that modification causes a material detrimental impact to you and we have been unable to resolve that material detrimental impact within a period of 30 days after being notified by you of that material detrimental impact; or
- we have relied on an Event Outside Our Control (pursuant to clause 16) to relieve us of liability for failure to provide the entire Pendula Services for a continuous period of 30 days.
13.5
Upon termination of this Contract, you must immediately:
- cease using the Pendula Services;
- return to us any of our confidential Information and intellectual property rights in your possession or control; and
- subject to clause 13.6, pay us the Charges for all Pendula Services.
13.6
In the event of your termination pursuant to clause 13.4, we will refund to you the portion of any prepaid Charges that relate to the period after termination.
13.7
Termination of this Contract does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of the Contract that existed at or before the date of termination.
13.8
The provisions of clauses 7.5, 8, 9, 10, 11, 12, 13, 15, 17, 18 and 29 and any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry will have full force and effect after termination or expiry of this Contract.
14.
Support
14.1
Support enquiries are handled our online portal and only escalated to telephone communication when initiated by our customer support team members. For support, use www.pendula.com/support. You can purchase enhanced support on terms to be agreed.
14.2
Unless we agree otherwise, we have no obligation to provide any services or products to you in relation to the Pendula Services, other than the support set out in clause 14.1.
15.
Additional Terms and Additional Agreements
15.1
Depending on the products and services that we agree to supply to you in an Order, you may be required to accept additional terms with us (Additional Terms). Any Additional Terms that you are required to accept will be indicated in your Order or this clause 15 and only apply to the corresponding product or service.
15.2
Depending on the products and services we agree to supply to you in the Order, you may be required to enter into an Additional Agreement with a third-party supplier (Relevant Supplier). Any Additional Agreement that you are required to enter into will be indicated in your Order, this clause 15 or applicable Additional Terms. Any Additional Agreement entered into with a Relevant Supplier is between you and the Relevant Supplier, and not us. Subject to clause 10.4, we have no liability under any Additional Agreement.
15.3
If we supply Pendula for Salesforce, the Additional Terms here apply and if we agree to provide you with data storage, that data storage is subject to the limitations set out here.
15.4
If we supply Pendula for Zuora, the Additional Terms here apply.
15.5
If we supply WhatsApp functionality, the Additional Terms and Additional Agreement here apply.
15.6
If we supply Gen-AI functionality, the Additional Terms and Additional Agreement here apply.
16.
Force majeure
16.1
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
16.2
If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
- we will contact you as soon as reasonably possible to notify you; and
- our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Pendula Services with you after the Event Outside Our Control is over.
17.
Dispute resolution
17.1
The parties agree to use best endeavours to resolve in good faith any dispute concerning this Contract.
17.2
If a dispute arises between the parties that cannot be resolved promptly, either party may notify the other party of a formal dispute. Each party must nominate a senior executive to meet within 7 days of the notice (or another agreed period) to try and resolve the dispute.
17.3
Except for UK domiciled consumers, any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.
18.
Non-solicitation
During the Term of this Contract and for a period of 6 months following the termination or expiration of this Contract, neither party will make any solicitation to employ the other party's personnel without the other party’s prior written consent. For the purposes of this clause 18, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, will not be construed as a solicitation or inducement, and the hiring of any such employees or independent contractor who freely responds thereto will not be a breach of this clause.
19.
Notices
19.1
When we refer to "in writing" in these Terms, this includes email.
19.2
Any notice or other communication given by one of us to the other under or regarding the Contract must be in writing and be delivered personally, sent by pre-paid post or email.
19.3
A notice or other communication is deemed to have been received:
- if delivered by hand to the nominated address, when delivered to the nominated address;
- if sent by pre-paid post, at 9.00 am (addressee's time) on the second Business Day after the date of posting; or
- if sent by email, at the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.
19.4
In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
19.5
The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
20.
No waiver
20.1
Neither of us may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Contract unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
20.2
Words or conduct referred to in clause 20.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
21.
Assignment and novation
21.1
We may assign or transfer our rights and obligations under the Contract to another entity. If this requires a novation, we will give you 15 days’ written notice of that novation, following which you must execute such documents as are reasonably necessary to give effect to that novation unless, acting reasonably, you can show that the proposed novation is materially prejudicial to you.
21.2
You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing (acting reasonably).
21.3
A breach of clause 21.2 by you entitles us to terminate this Contract.
22.
Severability
22.1
If the whole or any part of a provision of this Contract is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
22.2
Clause 22.1 does not apply if the severance of a provision of this Contract in accordance with that clause would materially affect or alter the nature or effect of a party’s obligations under this Contract.
23.
Entire agreement
Unless we have separately entered into a written contract with you that expressly replaces or modifies these Terms, the Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
24.
Subcontractors
We may engage subcontractors to provide any part of the Pendula Services.
25.
Relationship of the parties
25.1
This Contract is not intended to create a relationship between the parties of partnership, joint venture, agency or employer-employee. Each party has no authority to create, assume or otherwise enter into any agreement that imposes rights or obligations on the part of the other party.
25.2
The Contract is between you and us. No other person has any rights to enforce any of its terms.
26.
Variation
26.1
We amend these terms from time to time, subject to the rest of this clause 26.
26.2
We will give you written notice of any proposed change to these Terms, and:
- if the change is material and is not detrimental to you, or the change is not material, that change will have effect from the latest of:
- the date identified in the written notice; and
- 30 days from the date of the written notice; and
- if the change is material and is detrimental to you, we will contact you to discuss amending these Terms.
27.
Announcements
Subject to clause 12.6, no party will make, or permit any person to:
- make any public announcement statement, press release or other publicity or marketing materials concerning the existence, subject matter or terms of this Contract, the wider transactions contemplated by it, or the relationship between the parties; or
- use the other party's trade marks, service marks, trade names, logos, symbols or brand names, in each case;
without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed) except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
28.
Acknowledgement
You acknowledge that prior to the execution of an Order Form, you have had the opportunity to vary these Terms using Special Conditions in the Order Form. Please let us know if you would like us to consider any Special Conditions prior to execution of an Order Form.
29.
Governing law and jurisdiction
Except for customers domiciled in the UK these terms and conditions, their subject matter and their formation, are governed by New South Wales law. You and we both agree that the courts in New South Wales will have nonexclusive jurisdiction. The terms of any Additional Terms and Additional Agreements may be subject to separate governing laws and jurisdictions.
For customers domiciled in the UK these terms and conditions, their subject matter and their formation, are governed by laws of England and Wales. You and we both agree that the courts of England will have exclusive jurisdiction. The terms of any Additional Terms and Additional Agreements may be subject to separate governing laws and jurisdictions.
If any court having competent jurisdiction holds any provision of these terms and conditions invalid or unenforceable in any respect, such provision shall be enforced to the maximum extent permitted by law, and the remaining provisions of these terms and conditions shall continue in full force and effect.
References to statutes or statutory instruments or any law are to be construed as references to any consolidation, modification, extension, amendment, replacement or re-enactment of them from time to time and any subordinate legislation under it.
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