Relay Hub - Ondemand Conditions
The following terms and conditions (“Relay Conditions”) apply if the Section relating to the RelayTM Communication Hub OnDemand Services have been selected:
(RH1) Scope. During the Term (as defined below): (b) we will provide the applicable OnDemand services selected under the Relay Hub OnDemand Service Section on the Order Form (“OnDemand 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 OnDemand 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 these Relay Conditions and a SOW, these Relay Conditions will prevail.
(RH2) Grant of Rights. We hereby grant a non-exclusive, non-transferable licence to you to access and use the OnDemand Services during the Term (as defined below), subject to the terms of these Relay Conditions.
(RH3) Client Obligations. You must comply with the following obligations: (a) you will use the OnDemand Services solely for internal business purposes and will not use the OnDemand Services on behalf of, or make the OnDemand Services available to, any third party. (b) You will not use the OnDemand Services to send or store infringing, obscene, threatening or unlawful or tortious material or disrupt other users of the OnDemand 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 OnDemand Services to make unauthorised entry to any other device accessible via the network or OnDemand Services. In addition, with respect to the software contained in the OnDemand 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 OnDemand Services; or (vii) alter, remove or obscure any patent, copyright or trademark notice contained in any of our software or the OnDemand Services. The occurrence of any of the foregoing will be deemed a material breach and we may immediately terminate these Relay Conditions and your access to the OnDemand Services 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 OnDemand 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 OnDemand Services documentation (“Data Files”). Major file layout changes may require an amendment to these Relay Conditions 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 OnDemand Services and Professional Services in a skillful 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 OnDemand Services listed in the Order Form; and (ii) the Professional Services described in the SOW(s). Except as otherwise stated in these Relay Conditions and/or a SOW, we will direct debit your bank account for the quarterly fees for the OnDemand Services quarterly 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 the Order Form 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 OnDemand Services.
(RH8) Confidentiality In providing the OnDemand 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 these Relay Conditions. Confidential information does not include information that: (i) is already public or becomes available to the public through no breach of these Relay Conditions; 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 the SOW(s) and these Relay Conditions.
(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 OnDemand 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 the Order Form, 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 OnDemand Services and/or Professional Services.
(RH10) Our Intellectual Property. The OnDemand 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 OnDemand 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 OnDemand Services, when used in accordance with these Relay Conditions and the SOW(s), infringe or misappropriate any copyright, trademark, trade secret or patent registered or valid within the country the OnDemand 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 OnDemand Services are subject to a claim of infringement or misappropriation, or if we reasonably believes that the OnDemand Services may be subject to such a claim, we reserves the right to: (i) offer non-infringing replacement OnDemand Services, at no cost to you, which replacement will be functionally equivalent to such OnDemand Services; (ii) procure, at no cost to you, the right to continue to use such OnDemand Services; or (iii) direct you to terminate use of such OnDemand Services, at which time we may terminate the SOW relating thereto. If we direct you to terminate use of such OnDemand 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 OnDemand 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 OnDemand 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 OnDemand 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 OnDemand Services in a manner not permitted under these Relay Conditions or the SOW(s); (ii) Your failure to obtain the proper consents from your customers in connection with the use of the Relay Email Delivery Service (to the extent you have selected this pack on the Order Form); (iii) a violation of any law, rule or regulation regarding the protection of personal data or the use or access to the OnDemand Services; or (iv) 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) OnDemand Term and Termination. Access to the OnDemand Service shall commence on the CAD Date (as described in Condition RH7 above) and will continue until the end of the initial term as specified in the Order Form (the “Initial Term”). Upon expiration of the Initial Term, OnDemand Services will automatically renew on a quarter to quarter basis (each a “Quarterly Term”) unless either party gives the other party at least ninety (90) days written notice of non-renewal (the Initial Term and all Quarterly Terms, as applicable, are referred to as the “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 these Relay Conditions 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 these Relay Conditions 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 OnDemand 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 OnDemand 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 OnDemand 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 9am until 5pm (AEDT), excluding public holidays.
(RH19) Scheduled Downtime. The OnDemand 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 OnDemand Services in connection with the Scheduled Downtime or other disruption of the OnDemand Services.