Terms & Conditions of Use
These Terms and Conditions govern the commercial arrangement for the rental or purchase of equipment and associated maintenance services and professional services from Pitney Bowes as detailed in each Order Form.
(1) We, and similar expressions, refer to Pitney Bowes New Zealand Ltd NZBN 9429037769659. You, and similar expressions, refer to you, our customer or proposed customer shown on the Order Form. The details specified on the Order Form apply. You declare that you are not a trustee, unless this document specifically says otherwise and provides full details of your trust position. Order Form means the Order Form that contains the commercial details that refer to these Terms and Conditions. Agreement means the Order Form, together with these Terms and Conditions.
(2) Our conditions overrule any other form. These conditions prevail even if they are inconsistent with anything in any earlier or later order form or similar document.
(3) Time for payment. Payments for purchased Consumable Supplies are due within thirty (30) days upon invoice. Each payment of rent and maintenance plan fees are payable on terms set out in the applicable invoice to which the fees relate.
(4) Withdrawal of future credit. If in a particular case we give you credit we may still decline to give you further credit at any time. If we do decline to give you further credit then that decision does not affect the credit terms which apply to any amounts you then owe to us.
(5) Defaults. If any amount you owe to us regarding a Rental or Purchase Agreement or Maintenance Plan is not paid within 7 days of the due date then all of the monies that you owe us on any account become immediately due and payable. In that case, and also if at any time you default under any other agreement that either of us has with you, without limiting our other rights we may suspend the supply of maintenance, Postage-by-Phone or any other service and defer or cancel any outstanding orders. Also, you must pay us interest on such overdue amounts, calculated on daily balances commencing from the due date for payment, at the rate of two per cent (2%) per month. You must also pay, or reimburse us for, any bank or similar fees that result from dishonour or re-presentation of, or delay in, any payment by you. If you are in default of this Agreement, then in addition to the debt you will reimburse us for all reasonable legal fees, court fees and/or debt collection agency fees incurred by us in recovering the amounts due under this Agreement.
(6) Prices and price variations. We may increase any agreed price or fee after we accept an order, to cover the full amount of any increases in GST or other taxes and duties such as sales taxes, consumption taxes and stamp duty which we incur in connection with a transaction after the date of your proposal.
(7) Taxes including GST. You must pay or reimburse us for all duties, taxes and charges, including GST, in connection with any agreement resulting from us accepting your proposal (apart from any tax calculated on our net income). Prices and fees shown on the Order Form are normally stated inclusive of GST. For any taxable supply under or in connection with a particular transaction for which a price or fee has not been shown, then in addition to the amount payable in accordance with these conditions you must also pay us an allowance in respect of GST as reasonably calculated by us. We will issue a tax invoice or tax invoices as required.
(8) Delivery. Except as stated otherwise prices include our standard packaging and delivery to you at your designated premises. We are entitled to invoice you for alternative packaging or delivery arrangements. If we agree to arrange delivery elsewhere we will deliver at your cost. We will pass on charges incurred or charge you at our ruling rates from time to time, as applicable in the circumstances, including any additional charge for urgent or other special delivery requests. We may dispatch an order in one or more instalments. In that case you must pay separately for each instalment and each instalment becomes a separate contract. Non-delivery of one instalment does not affect the contracts for the other instalments that are delivered or are to be delivered. If part of an order of any goods is not collected or accepted by you for any reason we may place the goods in storage, including at or on our premises. You must pay us for all expenses and charges at our ruling rates incurred in relation to storing any goods not collected or accepted and in any case not less than the commercial value of the storage space occupied by the goods. You take all of the risk associated with the goods in all respects from the time of delivery or, if we store goods that are ready for delivery then from the time that we notify you that the goods are held in storage.
(9) Estimated delivery times. Delivery times are estimates only and we are not liable for minor delays in delivery.
(10) Unexpected delay. This condition applies if something happens which is beyond our reasonable control which makes it impossible, more difficult or more expensive for us to perform our obligations in our usual way. In those cases we may wait until it is again possible for us to perform our obligations in our usual way without additional difficulty or expense and we are not liable for any delay which results. Without limiting those general words, that applies where we have problems due to accidents, strikes, transport difficulties or stock shortages.
(11) Our warranty. We must repair or, at our option, make a replacement available to you for any new equipment supplied by us if there is any manufacturing defect in material or workmanship within 12 months of delivery. We must repair or at our option, make a replacement available to you for any secondhand or demonstration or refurbished Pitney Bowes branded goods supplied by us if there is any manufacturing defect in material or workmanship within 3 months of delivery. We choose whether to repair or replace, and that is the limit of our liability under this warranty. This warranty does not cover any damage caused by the use of other than genuine Pitney Bowes parts or Consumable Supplies (as defined in Condition (21) below).Maintenance plan cover is also available – please ask. We will only recognise a claim under this warranty if you give due notice to us in writing within 12 months after delivery by us of new equipment, or within 3 month of delivery of secondhand or demonstration or refurbished Pitney Bowes branded goods. The notice must state the warranty under which you are claiming and what has happened that triggers the warranty. You must bear the costs of making the claim. Your rights under this warranty are in addition to all your other rights and remedies under law. Any costs incurred by you in substituting the defective product (including investigation and location of the defective product and costs of any kind incurred in carrying out the substitution), are to be borne by you. Also our obligations are subject to our other conditions including Conditions (12) – (16).
(12) Exclusion of implied conditions. All conditions, terms and warranties that are or might otherwise be implied by law, practice, trade usage, or international convention, are excluded to the fullest extent permitted by law. You acknowledge that any goods and services are supplied to you for a business purpose and you agree that the Consumer Guarantees Act 1993 does not apply.
(13) Sale by specification. We offer our products by specification. You decide what purpose to use them for or to re-supply them for and you alone are responsible for determining your technical requirements. Also you alone are responsible for determining whether any product we supply is fit and suitable for your purpose although this does not limit any applicable consumer guarantee (if any, subject to these conditions). Any performance figures we provide are approximations and only for general guidance: a particular performance figure, even after allowing an approximation tolerance, may not be obtainable continuously or in all circumstances. Dimensions and specifications are all subject to tolerances and may be a little more or less and are also subject to minor variations between similar items. We are not supplying any service or advice of any nature. The provisions of this Condition (13) apply despite any comment or representation made or implied by us. We intend that you do not rely on any advice from or representation by us unless made in writing and signed by one of our directors. In relation to any order you may not rely on any prior agreement, representation or negotiation by us, any of our agents or any third party unless made in writing and signed by one of our directors.
(14) No other representations. We rely on the following warranties from you as essential conditions. You do not rely on any representation made or implied by us or arising out of or implied by our conduct, nor upon any description, illustration or specification contained in any document produced by us, including any catalogue or publicity material. To the extent that we have made or implied, or by conduct given rise to or implied, any representation that is not expressly stated in these conditions, you are not proceeding in reliance on the representation because you have had and taken the opportunity to independently check and form your own view about the significance, and the accuracy or otherwise, of the representation. Without limitation, you acknowledge that you are not relying on being able to make any claim against us, for any representation made or conduct occurring before, under or in connection with any proposal or resulting agreement, beyond the claims that can be made, and the limits applying, as provided in these conditions.
(15) Consumer Guarantees Act 1993. Provisions of the Consumer Guarantees Act 1993, and other statutes, in some cases either cannot be excluded, restricted or modified; or can only be restricted or modified to a limited extent. If any provisions of those types do apply, then to the extent permitted by law our liability under those provisions is limited as follows. Our liability in relation to goods is limited at our option to replacement of the goods or the supply of equivalent goods; or repair of the goods; or payment of the cost of replacing the goods or of acquiring equivalent goods; or payment of the cost of having the goods repaired. Our liability in relation to services is limited at our option to the supplying of the services again; or the payment of the cost of having the services supplied again.
(16) Limitation of Liability. (a) NEITHER PARTY (NOR OUR AFFILIATES OR VENDORS) WILL BE LIABLE, REGARDLESS OF THE CAUSE (AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE), FOR ANY: (I) LOSS OR DAMAGE TO PROFITS, SALES, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS; OR (II) PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, MULTIPLE OR INDIRECT DAMAGES; EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. (b) IN ANY EVENT, OUR TOTAL AGGREGATE LIABILITY (INCLUDING ANY LIABILITY OF OUR AFFILIATES OR VENDORS) FOR ANY AND ALL CLAIMS ARISING IN RELATION TO THIS AGREEMENT AND/OR A SOW AND/OR THE SUBSCRIPTION SERVICES AND/OR PROFESSIONAL SERVICES THAT RELATE TO THIS AGREEMENT (AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE) WILL NOT EXCEED THE FEES (EXCLUDING POSTAGE OR MATERIALS COSTS) PAID BY YOU TO US IN THE TWELVE (12) MONTHS BEFORE THE EVENT THAT GIVES RISE TO THE CLAIM. (c) Nothing in this Agreement shall exclude or restrict either party’s liability for: (i) death or personal injury resulting from the negligence of a party or its employees acting in the course of their employment; (ii) fraud; or (iii) any other cause of action which cannot be limited or excluded under applicable law.
(17) Software licences. We supply any firmware or software which comes with goods, and any additional software specified on the Order Form, under licence only. That licence is non-exclusive but perpetual and only allows use of the particular firmware and software with the goods with which it is supplied. You must not modify, reverse engineer, decompile, disassemble, create derivate works based on, sublicense, transfer or distribute the software or accompanying documentation. Other licence restrictions may apply in relation to the software or firmware and we will provide the applicable end user licence agreement as may be applicable for the respective software or firmware where appropriate.
(18) Variations in specifications. We reserve the right to vary the specifications or performance criteria of any product from time to time and to obtain products from different sources, at our absolute discretion. We may do that without telling you provided we have reasonable grounds for believing that the alternative product offered is substantially similar to that previously offered or represents an improvement. We also reserve the right to substitute other comparable or improved products at any time in our discretion but we must have reasonable grounds for believing that the substitute is substantially similar to the original or represents an improvement. In the case of Equipment under rental, the substitute need not be new but must be in as new condition.
(19) Availability of spare parts. We make reasonable efforts to ensure the availability of spare parts for any particular product type for at least 5 years from the first time it is or was supplied to a customer when it was new. We also make reasonable efforts to ensure the availability of replacement chips or electronic upgrades, for postal rate changes, for at least 5 years from the first time a postage meter or Intellilink Control Center is or was supplied to a customer when it was new. In either case, we are not liable if, having used reasonable efforts, we are unable to do so for a temporary or permanent period. We may not be able to arrange for the availability of spare parts or postage rate variations after the end of that 5 year period. Where spare parts or postal rate variations are available, our ruling rates at the time will apply.
(20) Shortages and pre-delivery damage. We will not recognise any claim for a shortage in a delivery or for any item being delivered in a damaged state if the claim is not made within 7 days of delivery. When you sign any delivery or consignment note or similar document on receipt of a delivery, that is conclusive evidence that you received the delivery without any shortage or damage that would have been visible on taking delivery without unpacking the goods. You carry all risk of goods in transit where you arrange for carriage.
(21) Limits on cancellation. You do not have the automatic right to cancel an order or to return any goods for credit. This provision does not limit our warranty or the provisions of Condition (12). However, for purchases of Consumable Supplies, we may at our discretion agree to you cancelling an order or returning the supplies. In that case you must pay a cancellation / re-stocking fee of 20% of the amount invoiced or that would be invoiced. We will only give you credit for goods that are returned in original condition, packaging and configuration. Consumable Supplies means the range of items that we so designate from time to time, including without limitation paper, envelopes, labels, ink and toner. We will not agree to any request to cancel an order for equipment or software. If you wrongly cancel or purport to cancel an order then the damages that you have to pay to us may equal the full amount of the agreed purchase price, plus an additional cancellation/ re-stocking fee of 25% of the price in the case of Consumable Supplies. You acknowledge that fee is a genuine and reasonable pre-estimate of our damages due to cancellation, re-stocking and re-sale, as a minimum in addition to any loss of value of the items concerned.
(22) Postal Security Device (PSD). PSD refers to the postage evidencing technology (software and hardware) included in current-generation Pitney Bowes mailing equipment. You must not tamper with the PSD. We are entitled at all reasonable times to have access to the PSD for the purposes of verifying compliance with these provisions and with the requirements of postal authorities and relevant legislation.
(23) Direct debits. Any enquiries regarding a direct debit request should be to us, rather than to your financial institution, and should be made at least seven (7) working days prior to the next draw, We abide by our direct debit policy. A copy of that policy (including other customer information in relation to direct debit requests) is available at www.pitneybowes.com/nz or, if you require, please ask for a copy.
(24) Trusts. This Condition (24) applies if you enter into this Agreement as trustee of any trust. You warrants that you: (a) have entered into this Agreement in its capacity as trustee of the trust and for the benefit of the beneficiaries of the trust; (b) have power under the trust deed to enter into and observe its obligations under this Agreement; (c) is the only trustee of the trust and there has been no proposal or decision to appoint an additional trustee to the trust; (d) has not been removed from, ceased to act, or resigned from the office of trustee of the trust and there has been no proposal or decision to remove it as trustee of the trust; (e) is not in default under the trust deed; and (f) has the right, and will at all times have the right, to be fully indemnified out of the assets of the trust in respect of its obligations under this Agreement and the assets of the trust are sufficient to satisfy that right of indemnity. You must not permit any of the following events to occur without the our prior written consent: (g) any resettlement, appointment, or distribution of any of the assets of the trust; (h) any retirement or replacement of trustee or any appointment of a new trustee of the trust; (i) any amendment to the trust deed establishing the trust; or (j) any breach of the provisions of the trust deed.
(25) Trade markings and IP Rights. You may refer to goods supplied by us by their associated names, including associated trade marks and logos, only if such reference is not misleading nor prejudicial in any way to us or our intellectual property rights. You may not remove or alter any serial numbers, trade marks or other markings or get-up, nor may you co-brand or co-logo any goods provided by us. You do not acquire any right to any of our intellectual property. You must not incorporate any of our trade marks into your trade marks, company names, internet addresses, domain names, or any other designations.
(26) Publicity/Marketing. We may use your name in promotional materials, including press releases, presentations and customer references regarding the sale of any goods. You give us that permission free of charge for worldwide use in any medium. However, we will obtain your prior approval for publicity that contains quotes or endorsements attributed to you. We may send you emails and marketing materials from time-to-time unless you advise us in writing that you do not wish to receive any such emails and/or marketing materials.
(27) IP Infringement. If there is any allegation or apprehension that any goods we have supplied to you infringe the rights of others you must tell us and give us the opportunity to modify, alter or substitute the alleged infringing item or items. This provision is in addition to our other rights.
(28) Assignment and Subcontractors. We may, and you must not, assign any part of the whole of any right or benefit of any contract we have with you. We may choose to use one or more subcontractors to fulfil our obligations under any contract we have with you.
(29) Variation. These conditions can only be varied by one of our authorised officers signing a document which states the variation, and the transaction to which the variation applies.
(30) Blanks. We may complete any blanks or correct any errors relating to the Customer Details section on the Order Form, on your behalf.
(31) Personal information and data privacy. We may collect personal information about you, and in particular the person signing this Agreement, in connection with our dealings with you. We will at all times abide by the Privacy Act 1993 in handling personal information about you, your business or your directors. We may transfer personal information to other companies within the Pitney Bowes group, to credit rating agencies, subcontractors, and other third parties engaged by us to carry out services on our behalf, or otherwise in accordance with our legitimate business needs. We may obtain personal credit reports about you for the purpose of assessing your credit application, and we may exchange your personal information with other credit agencies in case of default by you. We may also give your personal information to any of our related or associated companies and any of us may use your personal information to send details of other products and services which may be of interest to you, including by email.
(32) Application of receipts. We may apply any payment we receive from you or on your behalf, to and between any debt you owe to us or any account you have with us.
(33) Notices. All notices we give each other must be in writing and signed. A notice from us may be signed by any of our managers, directors or solicitors. Notices must either be delivered by hand or sent by prepaid post. Notices must be given at the address shown on the Order Form or a changed address of which due notice has been given. Notices are deemed given on the day of delivery if delivered between 9am and 5pm on a day in which banks are open in Sydney that is not a Saturday, Sunday or public holiday, or on the next such day following delivery if delivered at some other time, or two days after posting if given by prepaid post. Notices must not be given by facsimile.
(34) Entire agreement. You acknowledge that you do not rely on any other or prior document, discussions or representations, not noted in these conditions or the Order Form.
(35) Governing Law. This Agreement and each order Form is governed by and is to be interpreted according to the laws in force in New Zealand and you submit to the non-exclusive jurisdiction of the Courts operating in New Zealand.
(36) PPSA and security interests. Personal Property Security and security interests. In any case (whether the Order Form covers a purchase or a rental) where we have a security interest, the following provisions apply. You agree that we may apply any payment from you or on your behalf, as we choose in our own interest. That applies irrespective of whether you, or the person making the payment, directs how the payment is to be applied. Without limiting those general words, we may apply a particular payment to or towards a payment or obligation that you owe to us that is not secured by any security interest or to or towards payment for a particular item or particular items rather than to another item or other items. We may do anything we choose to perfect any of our security interests. You must act immediately when requested by us to do such acts and provide such information as we reasonably consider necessary or desirable to enable us to perfect any security interest created or provided by these provisions in the Goods, the Licence or any proceeds, with first priority. You must not do anything that makes any of the Goods a fixture to any land. We may choose between our various rights and powers, including for enforcement of any security interest, as we see fit and without limiting our other rights and powers.
(R1) Owner. We remain the owner of the Equipment at all times.
(R2) Equipment. Equipment means the equipment specified on the Order Form and all accessories which are or become attached, and includes any replacement parts and anything you obtain as a substitute.
(R3) Rental agreement. We agree to rent the Equipment to you, and you agree to rent the Equipment from us, on these conditions. You acknowledge we have not led you to expect that you will be able to purchase the Equipment (or similar goods) at the end of the rental period or at any other time.
(R4) Rent. You must pay us rent according to the Order Form for the entire fixed period specified in the Order Form. All rent payments must be paid with the frequency specified in the Order Form, in advance on or before the due dates (based on the commencement date of the rental period). Payments must be made in full without any deduction to our NSW Head Office. If you pay by credit card, we may charge a processing fee of 2% of the transaction amount (including GST) which will appear on your next invoice. A payment by cheque does not count until we receive payment on the cheque.
(R5) Commencement. The rental period commences on the date that we first deliver the Equipment to you. If there are multiple items of equipment delivered on different days, then in the case of any uncertainty the rental period is regarded as having commenced on the day on which we delivered the first of those items. Your obligations to make payments are absolute and unconditional. Without limiting those general words, that means you must still continue to make payments even if the Equipment has been lost or stolen or there are problems with the Equipment.
(R6) Costs and expenses. You must pay us, on demand, our costs of making good your defaults or doing something you should have done (and we have the right to do those things at any time); and our costs of enforcing or protecting our rights relating to the Equipment; and our costs of any steps taken to register our interest in the Equipment or to obtain a release of the Equipment from someone else who claims some right to the Equipment (provided we act genuinely it does not matter whether that other person has a valid claim). Costs include any expenses that we incur including the full amount paid or payable by us for legal work or advice or both.
(R7) Interest and reimbursements. General Condition 7 applies. Also, we make some presumptions about our right to claim depreciation for income tax purposes, our right to claim GST input tax credits and the like. You must fully compensate us for any loss of depreciation or input tax credit or any other loss or additional cost, if any such presumption is wrong, whether or not that is because of something you have done or led us to believe.
(R8) Use, maintenance and protection. You must look after the Equipment delivered to you and keep it in good repair and proper working condition. You must keep the Equipment in your personal possession and control, at the location specified in the Order Form. You must prominently and permanently display signage on the Equipment which is in the form that we reasonably require and attached as we reasonably require, to publicise our rights to the Equipment and you must not alter any identifying names or marks. You must ensure that all spare parts used in connection with the Equipment are either manufactured by the original manufacturer or to the specifications of the original manufacturer and that regular preventative maintenance inspections and work are carried out in accordance with the manufacturer’s recommendations. You must have the Equipment serviced regularly and do everything else which a prudent owner would do to protect and maintain the value of the Equipment. You must not mortgage or create any security interest in or over the Equipment because the Equipment belongs to us. You must pay for any legally mandatory alterations or modifications of the Equipment. You must accept and also insure against all risk of loss of or damage to the Equipment including loss due to confiscation and you must indemnify us if the Equipment is confiscated, lost or damaged. However, this provision does not limit obligations we may have under statutory warranties and conditions as specified in the General Conditions. You must immediately tell us in writing of any loss, theft or damage of or to the Equipment. We are not obliged to upgrade or amend the Equipment at any time or to change its functionality or specifications or any other aspect of its current intended mode of operation.
(R9) Indemnities. You must indemnify us and keep us indemnified against any loss, damage, expense or injury arising directly or indirectly out of the use of the Equipment except for loss or damage to the extent either caused by us intentionally or caused or contributed to by breach, gross negligence, or illegal or unlawful conduct, by us.
(R10) Insurance. You must keep the Equipment insured for its full insurable value on a replacement or reinstatement basis against loss or damage caused by all risks which would be covered by a prudent owner. The insurance must be with an Australian licensed insurer, note our interests as owner, operate as if there is a separate policy covering each of you and us, and still protect us even if you fail to make proper disclosure or to meet your obligations. You irrevocably authorise and direct the insurers to pay any proceeds of a claim on that insurance to us. You must give us the insurance policy and provide a certificate of currency.
(R11) Annual Barcode Software Licence Fees. If the Order Form shows that the Equipment includes barcode software as a separate item then this condition and General Condition 20 “Software Licences” both apply. Barcode software licence fees for the first year only of the rental period, have been allowed for in the setting of the rental payments. In addition to the rental payments, for the second and each subsequent year of the rental period (calculated from the commencement of the rental period), you must pay an annual barcode software licence fee in advance at our then ruling rates.
(R12) Return of Equipment. You must return the Equipment to us at the Pitney Bowes branch nearest to the location at which you have been required to keep the Equipment, in the condition in which you have been required to maintain it, with all documentation which we reasonably require, immediately on termination of this rental agreement.
(R13) Right of entry, repossession. Upon written notice to you, we have the right to enter premises during normal business hours to serve notices or to test or inspect the Equipment or to exercise our right to repossess. We have your authority to use your name and in your name to exercise any rights or take any legal steps we consider desirable to protect our rights to the Equipment. You must not do anything to make the Equipment a fixture to any land or building, unless we give our written consent. Before consenting we may ask for documents from your landlord and others, or require you to enter into an additional security document, all at your cost and to preserve our rights.
(R14) Extension of period. The fixed rental period is extended by three months, and continues to be further extended by further periods of three months, unless and until you or we give the other at least 30 days’ prior written notice of termination that takes effect either at the end of the initial period or at the end of a three month extension, as the case requires. Where there is such an extension, your obligations under this agreement (including but not limited to the obligation to pay rent), continue for and during the extended period. This clause does not limit our rights if you default.
(R15) Early termination. Repudiation means actions by you or circumstances brought about by you that indicate that you no longer intend to honour your obligations under this rental agreement. Each of the following conditions is an essential and fundamental condition and it will be repudiation if you are in breach of any of them. (a) You must make each payment no later than the due date. (b) We may give you a default notice, pointing out any other obligation you have not met. You must meet that obligation within 7 days of the notice and will be in breach of this condition if you delay, even if you are only slightly late. (c) You must not default under any other agreement that we or Pitney Bowes Australia Pty Ltd has with you, such as to give us or Pitney Bowes Australia Pty Ltd the right to terminate that other agreement. It is also a breach of an essential and fundamental condition, amounting to repudiation, if we genuinely believe that there has been a material adverse change in circumstances affecting your liquidity or profitability. We may terminate this rental agreement early by giving you notice or repossessing the Equipment, if there is repudiation.
(R16) Amounts payable on early termination. If you attempt to bring about early termination of this Agreement, or if we terminate this Agreement because of repudiation by you, then we are entitled to claim compensation from you for losing the benefit of this Agreement for the rest of the fixed rental period. You must pay us in accordance with Condition (R17) but our rights to payments under that provision do not limit our rights to damages at general law. You must also immediately return the Equipment as required by Condition (R12).
(R17) Payments on early termination. If there is early termination you must pay us each of the following amounts: (i) Rent arrears; (ii) future rent amounts, each discounted to present value (see Condition (R19)); (iii) costs or charges due up to the date of termination under Condition (R6); (iv) interest under Condition (R7) on all amounts due to us, until we actually receive payment of or full satisfaction of each such amount; (v) other amounts specified in Condition (R7); and (vi) a maintenance agreement cancellation fee – as specified in Condition (M27) (we receive that on behalf of Pitney Bowes Australia Pty Limited) and you must also promptly return to us the Equipment in good and operational condition.
(R18) Non-Return of Equipment. If you do not return the Equipment on termination – the value of the Equipment as at the termination date OR if you return the Equipment in a damaged condition – an amount equal to our reasonable calculation of the reduction in value. If we do recover the Equipment, we must give you a credit for any accelerated value of the Equipment, in accordance with Condition (R19) (only as a credit, not a payment).
(R19) Present values and discount rate. To calculate payments due on early termination we use the present value of each amount that would have been payable in the future, discounted to net present value as at the effective date of termination using the discount rate. Calculations are based on the net payments that would have been required. The discount rate is 5% per annum. For a particular future rent payment the discount is calculated from the date when the payment would have ordinarily fallen due back to the effective date of early termination. Amounts that would have fallen due for maintenance plan fees for future periods are ignored for future rent calculations. The credit to you for any accelerated value of the Equipment is calculated by comparing our genuine estimate of the wholesale value of the Equipment on return to the discounted final book value. The discounted final book value is calculated from the end of the fixed rental term back to the effective date of early termination. Final book value means the amount which we used in our internal calculations, and entered into our books, as a genuine estimate of the likely value of the Equipment at the end of the rental period. If there has been a change in the rate of GST then we are entitled to recalculate that amount to apply the new rate of GST before making relevant calculations.
(R20) Decommissioning. Upon the expiration of the Rental Term or any holding over period or early termination of this Rental Agreement, we may charge you and you must pay us a decommissioning fee at the then current price to decommission the Equipment. We will invoice you for such decommissioning fee upon such expiration or early termination occurring.
(R21) Maintenance. If you have selected a maintenance plan in the Order Form, then you have a maintenance plan for the Equipment on the relevant maintenance plan conditions set out below, with us for the full rental period. That does not relieve you of your other obligations in relation to the Equipment. Where you have selected a maintenance plan, the specified rental payment amount includes maintenance plan fees at current rates. The rate of maintenance plan fees will increase annually from each anniversary of the commencement date to our then-ruling rates and you must pay the correspondingly increased rental payment amount from that time, which we will notify to you.
(R22) Damages. Our various legal rights to terminate, repossess, and recover damages from you, if you do not meet your obligations, are not limited by the various specific rights stated above. Without limiting those general words, our rights are not limited to early termination payments under the provisions above.
(R23) PPSA and security Interests. From the commencement of the PPSA, the following further provisions apply, including in connection with any transaction that occurred prior to that time, to the extent if any that our interests are regulated security interests or this rental agreement is a PPS Lease. By taking delivery of the specific Equipment, you acknowledge and agree that this Rental Agreement covers the Equipment as collateral. You must not grant or allow anyone else to register any security interest in the Equipment. You also acknowledge and agree that even if separately described, calculated or specified, any amount (each, a secured money component), due to us in connection with the equipment is part of the value to acquire the rights under the Rental Agreement to use the Equipment. That includes but is not limited to amounts that may be otherwise described, calculated or specified including but not limited to packaging or delivery charges and costs associated with delivery or installation charges and maintenance plan fees to which you have committed. You acknowledge that any secured money component is only separately described, calculated or specified as a convenient way of determining the full value given by you. You warrant to us as an essential condition that you are not acquiring the Equipment (nor will you use the Equipment), predominantly for any personal, domestic or household purpose. The provisions of Condition (36) Security Interests, apply.
(R24) Non-return of the Equipment. You do not have any right to retain the Equipment at the end of the Rental Agreement. If you do not return the Equipment to us then as required, you are liable to us for our full loss which at a minimum will include the full final book value of the Equipment (see condition (R19)).
(R25) Amounts owing. You are bound by any certificate signed by any of our directors or solicitors that shows any amount or calculation relevant to what you owe. The only exception is where you prove the certificate is wrong.
(R26) Calculation of days. Where something is to be done on a particular day, that must be interpreted as a reference to our next normal working day on or after that day, although every day counts for calculating interest.
(R27) Non-Assignment / No Sub-letting. You must not assign or sub-let this rental agreement, or grant or create any security interest in relation to the Equipment or this rental agreement, or grant or create any right in any third party, in relation to the Equipment.
The following additional conditions apply to a purchase under an Order Form.
(P1) Trade-ins. If we agree to purchase any item from you as a trade-in then you promise that we will become the absolute owner at the time the item is delivered to us and that you will properly maintain and service the item up to the time of delivery and the item remains at your risk until you deliver it to us.
(P2) Finance company arrangements (if any). If you wish to lease or to finance the purchase of goods from us through a financier then our conditions still apply (with only the minimum changes necessary) between you and us. Our conditions still regulate our rights, obligations and liabilities both to you and to the financier and you must indemnify (protect) us against any claim in connection with this order or those goods by the financier.
The following additional conditions apply to an equipment maintenance plan.
(M2) Selection of Plan. A Maintenance Plan applies only where that is indicated on the Order Form.
(M3) Plan types. The type of plan is as indicated in the Order Form – P = Platinum, G = Gold; S = Silver; and BtB = Back to Base.
(M4) Platinum Plan. For equipment covered under a Platinum Plan, we will provide remedial maintenance during the normal maintenance hours stated in Condition (M7), starting on-site within four (4) hours of your call. To avoid doubt, the Platinum Plan can apply to postage meters (with rates and Resets (as defined in condition PP3 below) coverage), and may apply to certain other devices (see Sales documentation for availability).
(M5) Gold Plan. For equipment covered under a Gold Plan, we will provide remedial maintenance during the normal maintenance hours stated in Condition (M7), starting on-site within eight (8) hours of your call. A G1 Gold Plan for a postage meter or Intellilink Control Center also includes postage rate upgrades at no extra charge during the plan period. A G2 Gold Plan includes postage rate upgrades and Resets (as defined in condition (PP3) below) at no extra charge during the plan period.
(M6) Silver Plan. For equipment covered under a Silver Plan, we will provide remedial maintenance during the normal maintenance hours stated in Condition (M7), starting on-site within two (2) working days of your call. An S1 Silver Plan for a postage meter or Intellilink Control Center also includes postage rate upgrades at no extra charge during the plan period. An S2 Silver Plan includes postage rate upgrades and Resets (as defined in condition (PP3) below) at no extra charge during the plan period.
(M7) Back to Base Plan. For equipment covered under a Back to Base Plan, we will provide remedial maintenance during normal maintenance hours stated in Condition (M7), within five (5) working days of receipt of the equipment. You must arrange for delivery of the equipment at your cost to our nearest repair centre and for collection of the equipment after repair. We may ship the repaired equipment back to you in which case you must pay us for the return delivery costs.
(M8) Normal maintenance hours. Normal maintenance hours are from 8am to 5pm Monday to Friday excluding local public holidays.
(M9) Special Plan. If we separately agree any other or special maintenance plan conditions with you in writing then those separate conditions also apply. To the extent of any inconsistency, any such special or other conditions prevail.
(M10) Response times. Response times are targets and averages only, measured by time within our normal business hours. We use our best endeavours to achieve the target response times but occasional unexpected delays may be experienced.
(M11) Remedial maintenance. Remedial maintenance is maintenance that is required because (and only to the extent that) the equipment is not performing to the standards normal for such equipment due to a fault in the equipment not caused by anything external to the equipment.
(M12) Preventative maintenance. You must let us carry out preventative maintenance if we wish to do so, at all reasonable times. Preventative Maintenance is only available on selected products.
(M13) Parts and labour. Maintenance plan fees include all parts and labour required for remedial or preventative maintenance we provide.
(M14) Consumable supplies not included. Consumable Supplies (as defined in Condition (21)) are not included in a Maintenance Plan: you must pay for them separately.
(M15) Replacement parts. We become the owner of parts that we replace. Replacement parts may not be exactly the same as the originals. We may use reconditioned parts rather than new parts, as replacements.
(M16) Parts and labour outside the maintenance plan. We may charge at our ruling rates for any maintenance or parts provided for equipment if you have not followed the manufacturer's recommendations for use, such as recommended maximum numbers of cycles per month. We are also entitled to make our usual charges if we are called out for a problem not requiring remedial maintenance or which is due to abuse, misuse, negligence or misoperation or due to accidental damage or if the equipment has been repaired, interfered with or moved by someone other than us, or due to the use of other than genuine Pitney Bowes (or approved) parts or Consumable Supplies (as defined in Condition (21) above).
(M17) Maintenance for accessories. We are not obliged to provide maintenance in connection with any accessory item, unless it is listed on the Order Form as being covered for maintenance.
(M18) No tampering. You must not tamper with any copy count or meter, or any other sealed part of the equipment.
(M19) Payment of our fees. Maintenance fees are payable in advance with the specified frequency, calculated from the commencement date. The initial plan period is as shown in the Order Form. The plan automatically renews for a fresh period of equivalent length, on payment of renewal fees at our then ruling rates, prior to the start of the next period.
(M20) Annual increases. We have the right to increase our ruling maintenance fees for the plan, annually on and from the anniversary of the commencement of this plan, to our then ruling rates. From each anniversary you must pay maintenance plan fees at the applicable increased rate.
(M21) Sales etc. taxes. You must pay or reimburse us for any extra or new sales taxes, duties or similar charges, which become payable in connection with the maintenance plan.
(M22) Commencement and Termination. The maintenance plan commences on the date that we first deliver the equipment to you or, if some later date is specified, then it commences on that later date. If there are multiple items of equipment which are delivered on different days, then in the case of any uncertainty the maintenance plan is regarded as having commenced on the day on which we delivered the first of those items. Either of us may give a notice to the other which terminates the maintenance plan and takes effect at the end of the current maintenance plan period. But the notice must be given at least twenty (28) days before the end of that period.
(M23) Assignment. You may not assign the benefit of the maintenance plan. We may assign our interest in, or our rights under, the maintenance plan.
(M24) Location. We are only obliged to provide maintenance under this plan at the location which is specified. However, we must approve any request from you to change the specified location if the new location is within our same or a similar maintenance area and you follow all manufacturer's guidelines, and also good practice, when the equipment is moved.
(M25) Workshop repairs. You must allow us to take the equipment away to our workshop, if that is reasonably required so we can carry out any maintenance under the maintenance plan.
(M26) Loan machine during workshop repairs. We may, at our sole discretion, provide you with equipment of similar functionality to the equipment being repaired on loan whilst your equipment is being repaired at our workshop. We will at all times remain the owner of such loan equipment. You must keep the loan equipment safe and secure in accordance with the applicable terms and conditions that apply to your equipment. You will be responsible for all loss or damage to the loan equipment during such loan period regardless whether arising from misuse, wilful and/or deliberate damage or otherwise. Upon the return of your repaired equipment, you must make the loan equipment available for us to collect. All fees payable by you under the applicable Order Form will continue to be payable on the same terms and conditions, including but not limited to rent under the Order Form.
(M27) Overhauls. In some cases with older equipment, we may decline automatic renewal of a maintenance plan unless you first allow us to give the equipment a workshop overhaul at your cost.
(M28) No guarantee of uninterrupted operation. No maintenance plan can guarantee uninterrupted operation of the equipment.
(M29) Cancellation Fees. If you cancel a Maintenance Plan before the end of a fixed term, then to compensate us for the loss of the plan for the remainder of the term you must still pay us all arrears of maintenance plan fees up to the date of termination, plus an amount equal to 25% of the unpaid annual renewal fees for each future year (if any) of the unexpired term calculated using our ruling rates at the time of cancellation OR in the case of a Maintenance Plan associated with a Rental or Purchase Agreement, plus an amount equal to 25% of the unpaid annual renewal fees for each future year to the end of the fixed rental period and based on our ruling rates at the effective date of early termination. You acknowledge that the cancellation payment represents a fair and reasonable estimate of an appropriate amount to compensate us for the loss of the Maintenance Plan for the unexpired term AND in the case of a Maintenance Plan associated with a Rental Agreement, you acknowledge that by using the ruling rates at the effective date of early termination, no further discount is necessary to arrive at a reasonable calculation of the immediate present value of our estimated loss.
(M30) End of life. From time to time we issue guidelines regarding the removal of older equipment from our product maintenance catalogue. We reserve the right to discontinue maintenance of any equipment and/or software in accordance with those guidelines, or as a result of spare parts becoming permanently unavailable, after giving you three (3) months’ prior notice in writing.
(M31) Excessive wear and tear. We reserve the right to monitor the usage of equipment based on the cycle count recorded on the equipment at intervals decided by us in our sole discretion. If we determine that the cycle count on the equipment exceeds the recommended cycle count as specified in the Product Maintenance Manual for that item, we reserve the right to discontinue maintenance of any equipment and/or software after giving you 3 months’ prior notice in writing.
POSTAGE BY PHONE CONDITIONS
The following additional conditions apply to a Postage by Phone plan.
(PP1) Licence with NZ Post. You will not be able to use your postage metre unless you have first signed up to become a New Zealand Post customer and New Zealand Post has issued a license to use the postage meter and issue the postage meter a unique licence number (“Virtual Die Number”)
(PP2) Procedures. Our standard administrative procedures which apply from time to time for the functioning of the Postage by Phone system, and any requirements of New Zealand Post, must be followed including completion of any forms for a New Zealand Post postage account and Virtual Die Number including the completion of the AR3N form.
(PP3) Virtual Die Number. You must upload the Virtual Die Number onto you postage meter in order to operate the machine. The Virtual Die Number shall remain the property of New Zealand Post at all times.
(PP4) Virtual Resets. Under the plan you have the potential to set and reset ‘virtual’ postage franking credits (Virtual Resets) on the postage meter or Intellilink Control Center in accordance with the Postage by Phone system up to your available limit. Virtual Resets are not transferable and any unused Virtue Resets shall be forfeited. You will be required to download up to the available limit of your Tier 3 defined Virtual Credit limit.
(PP5) Payments to New Zealand Post. You are solely responsible for payments of any postage in accordance with your agreement with New Zealand Post and you hold us harmless in such respect and indemnify us for any loss or damage we incur as a result of any breach by you of your agreement with New Zealand Post.
(PP6) Period. This plan remains in force for the period stated in the Order Form. However, we are entitled to immediately terminate this plan if you are in default.
(PP7) Operating requirements. You must observe any reasonable request from us in relation to the security, operation and maintenance of the postage meter or Intellilink Control Center(s).
(PP8) Indemnity. You agree to indemnify (protect) us from and against all claims and liabilities which we may face as a consequence of any breach of any term or condition of these conditions by you.
(PP9) Collection of data. You consent to us collecting information on a monthly basis regarding your use of your postage meter, including (amongst other things) the number of items franked, the postage value of those items and the franking date for each item and are required to connect your meter on the 12th of each month in order to provide this data. Upon collection of such information, you must reset the machine so that information for the following month can be obtained. Breach of this condition may result in disabling of your postage meter and deactivation of the Virtual Die Number.
(PP10) Disabling of postage meter. We may disable you postage meter and deactivate the Virtual Die Number if requested to do so by New Zealand Post and you release us from all liability in respect thereof
RELAYTM HUB SUBSCRIPTION CONDITIONS
The following terms and conditions apply if the Section relating to the RelayTM Communication Hub Subscription Services have been selected on the Order Form:
(RH1) Scope. During the Term (as defined below): (a) we will provide the applicable subscription services selected under the Relay Hub Subscription Details Section on the Order Form (“Subscription Services”); and (b) we may enter into one or more Statements of Work (“SOW”) with you under which we (or one of our affiliates or vendors) will provide certain professional services in relation to one or more of the Subscription Services, and in relation to the implementation services referenced in the Order Form (“Professional Services”). Each SOW will become effective when signed by both parties. In the event of a conflict between this Agreement and a SOW, this Agreement will prevail.
(RH2) Grant of Rights. We hereby grant a non-exclusive, non-transferable licence to you to access and use the Subscription Services during the Term (as defined below), subject to the terms of this Agreement.
(RH3) Client Obligations. You must comply with the following obligations: (a) you will use the Subscription Services solely for internal business purposes and will not use the Subscription Services on behalf of, or make the Subscription Services available to, any third party. (b) You will not use the Subscription Services to send or store infringing, obscene, threatening or unlawful or tortuous material or disrupt other users of the Subscription Services, network services or network equipment. “Disruptions” include, but are not limited to, denial of service attempts, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, or use of the Subscription Services to make unauthorised entry to any other device accessible via the network or Subscription Services. In addition, with respect to the software contained in the Subscription Services, you will not: (i) reverse engineer, decompile or disassemble any of our software; (ii) make derivative works or copies of any of our software; (iii) sublicense, rent, lease, lend or host any of our software to or for other parties; (iv) separate the components of any of our software, or install and use such components separately and independently of the software they comprise; (v) use any of our software to modify or reproduce a third party’s materials unless you have the legal right to do so; (vi) attempt to unlock or bypass any initialisation system, encryption methods or copy protection device incorporated into any of our software or the Subscription Services; or (vii) alter, remove or obscure any patent, copyright or trademark notice contained in any of our software or the Subscription Services. The occurrence of any of the foregoing will be deemed a material breach and we may immediately terminate this Agreement upon notice to you. (c) You agree to provide sufficient data and information to be incorporated into the documents that will be produced using the Subscription Services, including the names and addresses of the intended recipients of such documents, in an agreed upon format as set forth in the SOW or any Subscription Services documentation (“Data Files”). Major file layout changes may require an amendment to this Agreement or the related SOW. We reserve the right to bill you at our then prevailing rate for any modifications to the original data file layout or other account maintenance performed by us after we receive your first live file data transmission. We will provide a written quotation for any such modification fees. (d) You are responsible for compliance with all applicable postal regulations. You represent and warrant that you are in compliance with the foregoing obligations. In the event that you fail to comply with such obligations, including but not limited to failure to use an appropriate compliant method to verify addresses, and such failure results in fines, penalties, additional payments, or increased postage rates (i.e., loss of pre-sort mail discounts) to us or our vendor, those amounts will be charged to you.
(RH5) Performance Standards Warranty. (a) Subject to this Condition (RH6) below, we will perform the Subscription Services and Professional Services in a skilful and workmanlike manner in accordance with the specifications set forth in the SOW. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, WE (ON OUR BEHALF, OUR AFFILIATES AND OUR VENDORS) MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COURSE OF PERFORMANCE OR USAGE IN TRADE.
(RH6) Prices, Direct Debit, Payment Terms. You agree to pay the fees for: (i) the Subscription Services listed in the Order Form; and (ii) the Professional Services described in the SOW(s). Except as otherwise stated in this Agreement and/or a SOW, we will direct debit your bank account for the monthly fees for the Subscription Services monthly in advance throughout the Term. All Professional Services will be invoiced upon completion of the Professional Services. You will pay all our invoices within thirty (30) days of the date of the invoice. You shall pay GST on all fees due under this Agreement and the SOW(s), in the amount and manner prescribed by applicable law.
(RH7) Acceptance. We will provide you with an initial client acceptance document (“CAD”) for your review and acceptance. You will have no more than fifteen (15) business days to either sign and return the CAD to us, or reject it in writing. Upon the earlier of: (i) the return of the CAD signed by you; or (ii) the end of the fifteen (15) business day period during which time you have not notified us in writing of your rejection of the CAD; (the “CAD Date”), we may immediately commence billing / direct debiting (as applicable) you for the Subscription Services.
(RH8) Confidentiality In providing the Subscription Services and/or Professional Services, each party may have access to the other party’s confidential information, including your customers’ information. Each party agrees to hold this information in confidence and only use it in connection with the exercise of its rights and the performance of its obligations under this Agreement. Confidential information does not include information that: (i) is already public or becomes available to the public through no breach of this Agreement; or (ii) was in the receiving party’s possession before receipt from the disclosing party; or (iii) is lawfully received independently from a third party who is not bound by a confidentiality obligation; or (iv) is independently developed by or on behalf of the receiving party without use of any of the disclosing party’s confidential information. Each party will also keep confidential the terms and conditions of this Agreement and the SOW(s).
(RH9) Your Intellectual Property. You grant to us (and our affiliates and vendors, if applicable) the right to use the data you provide to us as necessary to provide the Subscription Services and/or Professional Services. All rights in and to any intellectual property used or disclosed by us (or our affiliates or vendors, as applicable) to you, whether developed prior to, during or after the date of this Agreement, are and will remain the sole and exclusive property of us, our affiliates or vendors and our and their licensors, as applicable. You agree to maintain the confidentiality of this information and not use this information for any purpose not directly related to the provision of the Subscription Services and/or Professional Services.
(RH10) Our Intellectual Property. The Subscription Services contains our proprietary and copyrighted property and/or our third party suppliers, who reserve all rights not expressly granted to you herein. You hereby assign to us all right, title, and interest (including all rights in copyright and resulting patents) in any data, feedback, suggestions, and written materials provided to us related to your use of the Subscription Services. At our request, you will sign any documentation necessary to further effect our rights hereto.
(RH11) Indemnification. we will indemnify, defend and hold you, your officers, directors and employees harmless from and against all losses, damages, and reasonable costs and expenses to the extent they arise out of a claim by a third party that the Subscription Services, when used in accordance with the terms of this Agreement and the SOW(s), infringe or misappropriate any copyright, trademark, trade secret or patent registered or valid within the country the Subscription Services are authorised to be accessed. We will have control of the defence and will defend, at our own expense, any claim or litigation to which this indemnity relates, including the right to settle any such claim. You must notify us promptly of any such claim and will provide reasonable cooperation to us, upon our request and at our cost, to defend such claim. We will not agree to any settlement which requires acknowledgment of fault or an incurred liability on the part of an indemnified party not otherwise covered by this indemnification or which would otherwise damage or bring disrepute to the indemnified party or you without, in any such case, your prior written consent and of the indemnified party. You may elect to participate in the defence of any claim with counsel of its choosing at your own expense.
(RH12) Rights on Infringement. If the Subscription Services are subject to a claim of infringement or misappropriation, or if we reasonably believes that the Subscription Services may be subject to such a claim, we reserves the right to: (i) offer non-infringing replacement Subscription Services, at no cost to you, which replacement will be functionally equivalent to such Subscription Services; (ii) procure, at no cost to you, the right to continue to use such Subscription Services; or (iii) direct you to terminate use of such Subscription Services, at which time we may terminate the SOW relating thereto. If we direct you to terminate use of such Subscription Services, Your remedies, in addition to the indemnification set out herein, will be limited to a refund of any prepaid but unused fees for the Subscription Services.
(RH13) Your Indemnification. You are responsible for ensuring that you have the appropriate rights to (including the right to provide to us) all data, files, materials or other information that you provide to us in connection with our provision of the Subscription Services, and you agree to indemnify, defend and hold us, our officers, directors and employees harmless from and against all claims, costs, expenses, losses and liabilities resulting from a violation of the foregoing, including a third party claim that data, files, materials or other information provided by you to us infringe or misappropriate any copyright, trademark, trade secret or patent registered or valid within the country the Subscription Services are authorised to be accessed. You will also indemnify, defend and hold us, our officers, directors and employees harmless from and against all losses, damages and reasonable costs and expenses to the extent they arise out of a claim by a third party resulting from: (i) Your use of the Subscription Services in a manner not permitted under this Agreement or the SOW(s); (ii) a violation of any law, rule or regulation regarding the protection of personal data or the use or access to the Subscription Services; or (iii) acts of gross negligence or wilful misconduct by you or any of your officers, directors or employees. You will have control of the defence and will defend at its own expense, any claim or litigation to which this indemnity relates including the right to settle any such claim. We must notify you promptly of any such claim and will provide reasonable cooperation to you, upon your request and at your cost, to defend such claim. You will not agree to any settlement which requires acknowledgment of fault or an incurred liability on the part of an indemnified party not otherwise covered by this indemnification or which would otherwise damage or bring disrepute to the indemnified party or us without, in any such case, our prior written consent and of the indemnified party. We may elect to participate in the defence of any claim with counsel of its choosing at our own expense.
(RH14) Subscription Term and Termination. This Agreement will become effective as of the Start Date set out on the Order Form and will continue until the end of the ‘subscription term’ stated on the Subscription Services section on the Order Form. (“Term”). If the CAD has not been completed and signed by you within one hundred and twenty (120) days of the Effective Date, we may also terminate this Agreement effective immediately.
(RH15) SOW Term and Termination. Each SOW will be effective on the effective date set forth in the SOW and will remain in effect for the Term. Either party may terminate a SOW: (i) if the other party breaches any material provision of this Agreement or the applicable SOW(s), and, in either case, does not cure such breach within thirty (30) days after written notice thereof; (ii) during any one-year renewal period with or without cause upon forty-five (45) days’ advance written notice to the other party. We may also terminate a SOW under Condition (RH12). Termination of one SOW will not affect any other SOW.
(RH16) Effect of expiration or termination. Upon expiration or earlier termination of the Term, you will immediately cease use of the Subscription Services, and each party will promptly return or destroy all confidential information of the other party.
(RH17) Service Availability. We will use our reasonable commercial efforts to make the Subscription Services available during the Available Hours of Operation (as defined below) in accordance with the Service Availability Statement located at http://www.pitneybowes.com/us/license-terms-of-use/service-availability-statement/relay.html.
(RH18) Technical Support. Support for the Subscription Services will be available during the Available Hours of Support (as defined below). Support will consist of online technical assistance and telephone assistance. “Available Hours of Operation” means twenty-four (24) hours per day, seven (7) days per week exclusive of Scheduled Downtime, described in Condition (RH20), and downtime arising from causes beyond our reasonable direct control, such as the interruption or failure of telecommunications or digital transmission links, hostile network attacks or a force majeure event. “Available Hours of Support” means Monday through Friday from 8:30am until 5:00pm (AEST), excluding public holidays.
(RH19) Scheduled Downtime. The Subscription Services may be inaccessible or inoperable during certain periods to permit us to perform maintenance support services (“Scheduled Downtime”). We will use reasonable commercial efforts to minimise any disruption, inaccessibility or inoperability of the Subscription Services in connection with the Scheduled Downtime or other disruption of the Subscription Services.
SENDSUITE® TRACKING ONLINE SUBSCRIPTION CONDITIONS
The following terms and conditions apply if the Section relating to the SendSuite® Tracking Online (“SSTO”) Subscription Service has been selected:
(SS1) Definitions. For the purposes of these SSTO Conditions, the following terms will have the corresponding definitions: “Available Hours of Operation” will be twenty-four (24) hours per day, seven (7) days per week, except for Scheduled Downtime as defined in Condition (SS13), below; “Client Data” means any data, such as contact lists (including personally identifiable data such as phone numbers, email addresses, physical addresses, etc.), package tracking data and reports, or other material submitted by you to the Service or provided by you to us for the performance of the Service; “Documentation” means the current technical and user documentation for the Service provided via the “Help” file within the Service; “Recipient” means an employee or contractor of yours; “Service” means the particular SSTO subscription service that is selected in each Order Form, as offered by us as a hosted on-demand application; and “Term” means the term of the Service, as set out in Condition (SS3) below.
(SS2) Grant of Rights. We hereby grant you a non-exclusive and non-transferable licence to access and use the Service during the Term for your internal business purposes in accordance with the terms of these SSTO Conditions. We reserves all rights to the Service not expressly granted by these SSTO Conditions.
(SS3) Term; Termination. (a) Access Service shall commence on the Start Date (set forth in the Order Form) and will remain in effect for an initial term as specified in the Order Form (the “Initial Term”). (b) The Order Form will be effective on the Start Date set out therein and will remain in effect during the Initial Term identified in the Order Form. Upon expiration of the Initial Term, the Services will automatically renew on a month to month basis (the “Monthly Term”) unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of the current Monthly Term (the Initial Term and Monthly Term, as applicable, referred to as the “Term”). (c) Either party may terminate the Service by written notice if the other party commits a material breach of this Agreement or the applicable Order and fails to cure such breach within fifteen (15) days after receipt of such notice, or an additional period of time as agreed to by the parties. (d) Upon termination of the Service for any reason, you will immediately cease use of the Service and we and you will promptly return all Confidential Information of the other party. Termination of the Service does not affect your obligation to pay any amounts due to us. (e) Conditions (SS4) (Fees, Payment Terms), (SS7) (Confidentiality), (SS8) (Proprietary Rights; Suggestions), (SS9) (Non-infringement; Indemnification), (SS16) (Warranties) (SS17) Disclaimers), will survive termination of the Services indefinitely or to the extent set out therein.
(SS4) Fees; Payment Terms. (a) You agree to pay the fees for the Services as set out in the Order Form. Except as otherwise stated in this Agreement, We will direct debit your bank account for the monthly fees for the Services monthly in advance throughout the Term. You shall pay GST on all fees due under this Agreement in the amount and manner prescribed by applicable law. (b) In addition to the terms of Condition (5), if you fail to pay any fees by the due date, we may suspend performance of the Services upon five (5) days written notice to you.
(SS5) Client Responsibilities. You comply with the following obligations: (a) Except as otherwise provided in the Order Form, you will use the Service solely for your internal business purposes and will not use the Service on behalf of or make the Service available to any third party. All Client Data submitted to the Service must be submitted in our submission format in accordance with the Documentation or any other format agreed to by the parties. You are required to set-up and configure the Service prior to your use. (b) You will comply with all applicable laws governing use of the Services, including, without limitation, any data protection or privacy laws or laws applicable to shipping packages or import/export requirements. You will be solely responsible for the content of all Client Data submitted to the Service and will comply with all laws, rules and regulations relating to the use, disclosure and transmission of such Client Data. (c) Restrictions. You are not permitted to use the Service: (i) in the promotion or commitment of any illegal activities: (ii) to send or store infringing, obscene, threatening or unlawful or tortuous material, or (iii) to disrupt other users of the Service, network services or network equipment. Disruptions include, but are not limited to, denial of service attempts, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, or use of the Service to make unauthorised entry to any other device accessible via the network or Service. In addition, you will not reverse engineer, decompile or disassemble the Service. The occurrence of any of the foregoing will be deemed a material breach and we may immediately terminate this Agreement upon written notice to you.
(SS7) Confidentiality. (a) “Confidential Information” means all confidential and proprietary information of either party (“Disclosing Party”), including but not limited to, each party’s and its affiliates: (i) customer and prospect lists, names or addresses, existing agreements with Disclosing Party and business partners; (ii) pricing proposals, financial and other business information, data processes and plans; (iii) research and development information, analytical methods and procedures, hardware design, technology (including the Service), financial information, personnel data, Client Data; (iv) information concerning the customers and potential customers of either party; (v) business practices, know-how, marketing or business plans; (vi) this Agreement, Orders, Documentation, and training materials; and (vii) any other information identified in writing as confidential or information that the receiving party knew or reasonably should have known was confidential, in each case that is disclosed to the other party (“Receiving Party”) or to which the Receiving Party gains access in connection with this Agreement. (b) The Receiving Party agrees: (i) to hold the Disclosing Party’s Confidential Information in strict confidence, and apply at least the standard of care used by the Receiving Party in protecting its own Confidential Information, but not less than a reasonable standard of care, and not to disclose such Confidential Information to any third party; and (ii) without the written permission of the Disclosing Party, not to use any Confidential Information of the Disclosing Party except as reasonably required to exercise its rights or perform its obligations under this Agreement. Each party agrees to cause its employees, subcontractors, agents and affiliates who require access to such information to abide by such obligations. (c) The foregoing obligations do not apply to information that: (i) is already public or becomes available to the public through no breach of this Agreement; or (ii) was in Receiving Party’s lawful possession before receipt from the Disclosing Party; or (iii) is lawfully received independently from a third party who is not bound by a confidentiality obligation; or (iv) is independently developed by or on behalf of Receiving Party without use of any Confidential information. In addition, we may use aggregated shipping transaction information for system analysis and research, customer segmentation and/or improvement or development in the manner or method in which we conduct business with its customers. (d) If Receiving Party is compelled to disclose the Confidential Information by a governmental agency or a court of law having proper jurisdiction, Receiving Party will give Disclosing Party reasonable notice to enable such party to try to protect the confidentiality of the Confidential Information. Upon written request of Disclosing Party, Receiving Party agrees to promptly return or destroy all Confidential Information in its possession, and, certify its destruction in writing, provided, however, that Receiving Party may retain one (1) copy of the returned or destroyed items for archival purposes in accordance with its records retention policies and subject to this Condition (SS7). (e) Disclosing Party may be irreparably damaged if the obligations under this Section (SS7) are not enforced and as such may not have an adequate remedy in the event of a breach by Receiving Party of its obligations hereunder. The parties agree, therefore, that Disclosing Party is entitled to seek, in addition to other available remedies, an injunction restraining any actual, threatened or further breaches of Receiving Party's obligations under this Section 6 or any other appropriate equitable order or decree.
(SS8) Proprietary Rights; Suggestions. You will retain all right, title and interest in and to all Client Data. You grant us a royalty-free, worldwide, irrevocable and perpetual licence to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the operation of the Service, and any anonymised or aggregated data that does not identify you relating to use of the Service.
(SS9) Non-infringement; Indemnification. Subject to Condition (SS10): (a) We will indemnify, defend and hold you harmless from any claim by a third party that the Service provided by us hereunder, when used in accordance with this Agreement and the Documentation, infringes or misappropriates any copyright, patent, trademark or trade secret of such third party. We will have control of the defence and will defend, at its own expense, any claim or litigation to which this indemnity relates, including the right to settle any such claim. Client must notify us promptly of any such claim and will provide reasonable cooperation to us, upon our request and at our cost, to defend such claim. We will not agree to any settlement which requires acknowledgment of fault or an incurred liability on the part of an indemnified party not otherwise covered by this indemnification without indemnified party’s prior consent. Client may elect to participate in the defence of any claim with counsel of its choosing at its own expense.
(SS10) Rights on Infringement. If the Service is subject to a claim of infringement or misappropriation, or if we reasonably believes that the Service may be subject to such a claim, We reserves the right to: (i) offer a non-infringing replacement Service, at no additional cost to you, which replacement will be functionally equivalent to the Service; (ii) procure, at no additional cost to you, the right to continue to use the Service; or (iii) direct you to terminate use of the Service. If we direct you to terminate use of the Service, your remedies, in addition to the indemnification set out herein, will be limited to a refund of any prepaid but unused fees for the Service.
(SS11) Right not to indemnify. We will not indemnify you or be liable for claims arising from the use of the Service with data, hardware or software not provided by us or your use of the Service other than as permitted in this Agreement and the Documentation.
(SS12) Your Indemnity. You will indemnify, defend and hold us harmless against any claim arising from: (i) your use of the Service in a manner not permitted under this Agreement; (ii) a claim that the Client Data or any other data, files or other materials provided by you to us infringes any patent, copyright, trademark or other intellectual property right or misappropriates any trade secret; (iii) a violation of any law, rule or regulation regarding the protection of personal data or the use or access to the Service; or (iv) acts of gross negligence or wilful misconduct. You will have control of the defence and will defend at its own expense, any claim or litigation to which this indemnity relates. We will notify you promptly of any such claim and will reasonably cooperate with you, upon your request and at your cost, to defend such claim. We may participate in the defence and settlement of the claim at its own expense with counsel of its choosing. You will not agree to any settlement absent our prior written consent.
(SS13) Our Responsibilities; Support. (a) We will use our reasonable commercial efforts to make the Services available during the Available Hours of Operation in accordance with this Condition (SS13). Support for the Service will be available in accordance with the Support Terms located at http://www.pitneybowes.com/us/license-terms-of-use/shipping-and-mailing-maintenance-services-terms.html. (b) The Service may be inaccessible or inoperable during certain periods to permit us (and/or our third party suppliers) to perform routine maintenance support services (“Scheduled Downtime”). Scheduled Downtime will be scheduled outside normal business hours, such as nights and weekends. We will use reasonable commercial efforts to minimise any disruption, inaccessibility and/or inoperability of the Services in connection with Scheduled Downtime or other disruption of Service.
(SS14) Services. Consulting and other professional services such as integration, customised training, etc. will be performed by us under the terms of a separate services agreement agreed to by the parties.
(SS15) Warranties. (a) We represent and warrants to you that the Service will materially conform to the Documentation. (b) We do not warrant that: (i) the operability or accuracy of any Client Data processed by us; (ii) THE SERVICE WILL OPERATE ERROR FREE OR THAT WE WILL CORRECT ALL ERRORS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, AND SUBJECT TO CONDITION (15), THE SERVICE IS PROVIDED “AS IS” AND US AND OUR THIRD PARTY SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
(SS16) Disclaimers. THE SERVICE MAY CONTAIN A DISABLING DEVICE OR DEVICE REQUIRING ENABLEMENT: (i) TO COMPLY WITH REQUIREMENTS OF REGULATORY AUTHORITIES; (ii) TO PREVENT USE OF THE SERVICE BEYOND THE TERM OF AN ORDER; AND/OR (iii) TO PREVENT USE OF THE SERVICE IN EXCESS OF THE SERVICE LIMITATIONS SET OUT IN THE ORDER FORM.