Wiise Warehouse OnTime Terms & Conditions

1. Introduction

1.1 This Agreement applies to the Services and Support Services provided by Wiise Software Pty Ltd (ABN 84 169 685 509) (we, us and our).

1.2 By applying to use our Services, or using or receiving our Services or Support Services, you agree to be bound by this Agreement which sets out the terms and conditions that govern the provision of the Services and Support Services by us and the use of the Services by you. The definitions in Schedule 1 apply to this Agreement.

1.3 We may change the terms of this Agreement (including any related policies, rules and guidelines as described in clause 9.1) by notifying you accordingly with a notice period of at least 30 days, or such shorter period as we may reasonably require in circumstances outside of our reasonable control (for example, in order to comply with a change in law ) or in order to address a security issue or vulnerability in the Services. If:

i. you do not agree to comply with such changes, then, unless those changes are required by law or to comply with applicable professional and ethical standards or codes, you may terminate this Agreement by notifying us accordingly in writing during that notice period; or

ii. those changes are required by law or to comply with applicable professional and ethical standards or codes and you can demonstrate that they will have a material impact on your ability to receive or use the Services, you may terminate this Agreement by notifying us accordingly in writing during that notice period.

1.4 Where you terminate this Agreement under clause 1.3, clause 16.1ii will apply, and you must not access or use the Services after the notice period. If you do not notify us of your intent to terminate as described above and you continue to access or use the Services after the end of that notice period, you will be taken to have accepted such changes.

1.5 We may upgrade, maintain, or otherwise vary the Services and Support Services from time to time. If we are aware that a variation to the Services will cause you to lose any of Your Content or will materially reduce the functionality of the Services, we will notify you accordingly with a notice period of at least 30 days or such shorter period as we may reasonably require in circumstances outside of our reasonable control (for example, in order to comply with a change in law), or in order to address a security issue or vulnerability in the Services. If you do not agree to a variation that will cause you to lose any of Your Content or materially reduce the functionality of the Services, you may terminate this Agreement by notifying us accordingly in writing during that notice period, in which case clause 16.1ii will apply and you must not access or use the Services after the notice period. If you do not notify us of your intent to terminate as described above and you continue to access or use the Services after the end of that notice period, you will be taken to have accepted such changes.

2. Microsoft

2.1 You acknowledge and agree that you are solely responsible for obtaining and maintain the appropriate Microsoft Dynamics 365 Business Central licences required for use of the Services.

2.2 You will ensure that all users accessing the Services are appropriately licensed under Microsoft’s licensing terms and conditions. You must acquire sufficient licenses to cover all users, whether direct or indirect, in accordance with Microsoft’s licensing policies.

2.3 You agree that the use of the Services in conjunction with Microsoft Dynamics 365 Business Central does not circumvent or reduce the number of licences required under Microsoft’s licensing framework. Any attempt to use the Services to enable multiple users to access Microsoft Dynamics 365 Business Central through a single licence, commonly known as “multiplexing,” is strictly prohibited.

3. Eligibility Requirements

3.1 By signing this Agreement, you warrant and agree that you:

i. have a current licence to Microsoft Dynamics 365 Business Central product and comply with the Microsoft Terms;

ii. have received a valid invitation from us to purchase the Services and Support Services (if any);

iii. are a corporation duly incorporated and validly existing under the Australian laws of its jurisdiction of incorporation; and

iv. have full power, legal right and authority to enter into this agreement, and to do all acts and things and execute and deliver all other documents as are required to be done, observed or performed by it in accordance with the terms of this Agreement.

4. Term of Agreement

4.1 This Agreement commences on the Contract Start Date and, subject to clause 15, continues for the Services Period.

4.2 Subject to clause 4.3, unless you notify us at least 30 days prior to expiry of the Minimum Term or the then-current Renewal Period (as applicable), the Agreement will automatically renew as follows:

i. where your Fees are payable monthly in advance, on a monthly basis; or

ii. where your Fees are payable at least annually in advance, on an annual basis,
(each defined as “Renewal Period”).

4.3 Where the Minimum Term or then-current Renewal Period is for a 12-month period or longer, we will provide you with notice of the upcoming renewal described in clause 4.2 at least 60 days prior to the end of the Minimum Term or the then-current Renewal Period.

4.4 We will notify you at least 60 days prior to expiry of the Minimum Term or the then current Renewal Period of any changes to the Agreement that will apply if the Agreement renews.

4.5 We may, at our discretion, offer you a Trial for a period specified by us (“Trial Period”). Trials will not automatically convert into ongoing paid subscription at the end of the Trial Period, and you will need notify us if you would like to apply for a full subscription to the Services.

4.6 Following the end of the Services Period, you will no longer have the right to use or access the Services.

5. Rights Granted

5.1 Subject to your compliance with this Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable, revocable, limited right for your Authorised Users to access, and use the Services ordered by you for the Services Period to manage your business, but not that of an independent third party.

5.2 You and your Authorised Users do not acquire any other right or interest of any kind in or to the Services. The Services are the property of us or our licensors. You agree and accept that the Services are managed and supported exclusively by us or on our behalf from our servers or those of an Assisting Party and that no back-end access to the Services is available to you.

5.3 You must ensure that the number of Authorised Users that you authorise to use the Services (regardless of whether they are actively using the Services at any particular time) does not exceed the respective purchased quantities. An Authorised User will be counted for such purposes until you have permanently removed their authorisation to use the Services (whether because they leave your employment or otherwise). You must promptly report to us if you suspect that you have exceeded the number of permitted Authorised Users.

5.4 You may increase the number of Authorised Users by written notice to us and that increase will take effect upon our confirmation to you. If you are on a monthly contract, you may decrease the number of Authorised Users by written notice to us at least 30 days before the start of the month in which you require the decrease in users to begin. Failure to provide such notice will result in the number of Authorised Users not being revised.

5.5 To enable us to provide you and the Authorised Users with the Services, you grant us the right to use, process and transmit Your Content as contemplated under this Agreement and to allow the Services to use the processor, bandwidth, and storage hardware on your Devices to facilitate the operation of the Services. We may sublicense such rights to any Assisting Party.

6. Mobile Application Third Party Platform Operators

6.1 The Services will be made available to you through our WoT App via third-party platform operators, Apple Inc. ("Apple") App Store, Google LLC (“Google”) Play Store and Microsoft Apps Store. When you download the WoT App on your Device, you may be required to enter a separate agreement with the respective third-party platform operator who provides your app store, whose terms may apply.

6.2 Apple Terms: If you are using the WoT App on an iOS Device or have downloaded the WoT App from the Apple App Store, you acknowledge and agree to the following notice from Apple:

i. this Agreement is between you and Wiise only, and not with Apple. Apple is not responsible and has no obligation whatsoever in relation to the Services, its content and any maintenance and Support Services for the Services;

ii. to the maximum extent permitted by applicable law, Apple has no warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession or use of the Services, including:

a. product liability claims;

b. any claim that the Services fail to conform to any applicable legal or regulatory requirement;

c. claims arising under consumer protection or similar legislation; and

d. claims with respect to intellectual property infringement; and

iii. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Services, including your possession and use of the WoT App, infringe that third party's intellectual property rights. You agree to comply with any applicable third-party terms, when using the Services.

7. Third Party Services

7.1 The Services may interoperate, or otherwise interact, with programs, applications, websites, services or Devices independently provided by third parties (“Third Party Services”). This may because you have specifically requested, and we have agreed, to facilitate such interoperability; or we otherwise offer to provide such interoperability to you; or you have chosen to use or link a Third Party Service to the Services.

7.2 You are not required to use any Third Party Services in order to use the Services, and you are responsible for assessing whether any Third Party Services meet your needs – we do not endorse nor provide any assurances in relation to Third Party Services. If the manner in which you procure or receive the Third Party Services allows for it and where practicable, we will inform you or your Authorised Users, whether through on-screen prompts or otherwise, before you start using any Third Party Services.

7.3 Third Party Services are provided by the relevant third-party provider, and not us. Your use of any Third Party Services will be subject to the terms and conditions (including the payment of any fees) set by that third party provider. Depending on their functionality, Third Party Services may import, export or modify Your Content. Third Party Services do not form part of the Services, and to the maximum extent permitted by law we have no liability in connection with the provision of (or failure to provide) Third Party Services, including in relation to their features, functionality, the manner in which they interact with, or their compatibility with, the Services or Your Content, or any defects that may exist in relation to them.

8. Use of the Services

8.1 You agree not to use, and must ensure your Authorised Users do not use, the Services for any purpose that may:

i. menace or harass any person or cause damage or injury to any person or property;

ii. involve the publication of any material that:

iii. is misleading, deceptive, fraudulent, false, illegal, defamatory, inflammatory or libelous;

iv. contains viruses, bots, worms, scripting exploits or other similar materials;

v. you do not have the right to submit; or

vi. encourages illegal or tortious conduct or that is otherwise inappropriate;

vii. breach privacy rights;

viii. constitute unsolicited bulk e-mail, junk mail, spam or chain letters;

ix. constitute an infringement of our or anyone else’s rights, including Intellectual Property Rights, privacy rights or other proprietary rights; or

x. otherwise breach applicable laws, ordinances, or regulations, or give rise to any civil or criminal liability for you, us, or any Assisting Party.

8.2 You also agree not to:

i. modify, adapt, customise or make a derivative work based on, the Services;

ii. create unauthorised links to the Services or frame or mirror the Services;

iii. reverse engineer, decompile or disassemble the Services, except to the extent expressly permitted by applicable law despite this limitation;

iv. distribute, sublicense, rent, lease or lend any materials provided as part of the Services to any third party without our prior written consent. For clarity, this does not prevent you from granting access to the Services or the output of the Services to your Authorised Users;

v. attempt to access areas of the Services or our or a third party’s networks on which the Services are hosted to which you have not been given access;

vi. modify, disable, or compromise the integrity or performance of the Services, or related systems, networks or data, including but not limited to probing, scanning or testing the vulnerability of any system or network that hosts the Services;

vii. overwhelm or attempt to overwhelm the infrastructure over which the Services are provided;

viii. take any action that is likely to adversely affect the use or functionality of the Services; or

ix. access the Services by any means other than through the supported interfaces.

8.3 You will not provide access to the Services to any person other than your Authorised Users.

8.4 You agree to take appropriate steps to secure your systems and your Login Credentials to prevent unauthorised users from gaining access to the Services, including through, or using those Login Credentials, and you agree that:

i. we will treat anyone who uses your Login Credentials as you and you must ensure that all such persons (including your Authorised Users) comply with this Agreement; and

ii. we will not be responsible for you sharing, or any other misuse of, Login Credentials and we will hold you responsible for the activities of a person using your Login Credentials (whether or not authorised by you), including any loss, damage or claim caused by their conduct, except where this is due to our fault or that of an Assisting Party.

8.5 You will notify us immediately if you suspect that someone is using your Login Credentials in an inappropriate manner.

8.6 You must defend, indemnify, and hold us harmless from any claim from a third party arising due to:

i. any customisations made by you to the Services in breach of clause 8.2, or other use by you infringing any proprietary right, including an Intellectual Property Right, of a third party if such claim would have been avoided by the use of the Services in accordance with this Agreement;

ii. subject to clause 14.4, Your Content (including any claim that Your Content infringes anyone else’s rights, including Intellectual Property Rights, privacy rights or other proprietary rights); or

iii. Your breach of a warranty in clause 10.3.

To the maximum extent permitted by law, this clause 8.6 sets out your sole and exclusive obligations, and our sole and exclusive remedy, in relation to any such third party claim.

9. Compliance

9.1 You will comply, and ensure that your Authorised Users comply, with all of our security, technology and risk management policies, rules and guidelines relating to the use of the Services which we provide to you in writing from time to time, including any end user terms and conditions provided in connection with the use of the Services. You further agree to immediately notify us if you become aware of any event or action which might reasonably impair the Services’ security, such as improper access to the password of an Authorised User or a potential or actual breach of clause 8.4 by you.

9.2 You are responsible for:

i. the management, conduct and operation of your business, interests and affairs;

ii. compliance with your legal and regulatory obligations, including relating to your use of the Services;

iii. deciding how you use the Services and the outcomes of the Services; and

iv. the delivery, achievement or realisation of any benefits directly or indirectly related to the Services.

9.3 We shall rely on the truth, accuracy and completeness of any information provided or made available to us by you or on your behalf (including by Authorised Users) in connection with the Services and Support Services without independently verifying it. You must notify us in writing of any changes to any such information that may affect our Services and Support Services.

9.4 Any advice, recommendation, information, or deliverable provided by us to you is for your sole internal use and benefit. Unless required by law to do so, you shall not provide it or make it available to any third party, other than your Authorised Users.

9.5 You are not permitted to use our names, logos, or trademarks in any marketing, promotional material, or other publication without our prior written consent. You will not register, apply for, or take any other action to acquire any right, title, or interest with respect to any proprietary right, including any of our Intellectual Property Rights, or that of any of our Member Firms or other Assisting Parties in any jurisdiction, whether or not we or any of our Member Firms or other Assisting Parties have taken any action to effect, perfect, register or enforce such rights in such jurisdictions.

9.6 You are required to keep records (including proof of purchase) relating to the Services and Support Services under this Agreement. On at least 14 days’ written notice, during normal business hours and in a manner that does not interfere unreasonably with your operations, we may audit or verify your use of the Services to assess whether your use is in accordance with this Agreement including, for example, whether all users of the Services are Full Authorised Users or Limited Authorised Users. Upon request, you will provide reasonable co-operation and promptly give us such access and information that we reasonably request to assist us to make this assessment.

10. Content

10.1 As between us and you, you accept sole responsibility for:

i. all of Your Content uploaded onto the Services by you or on your behalf (including by Authorised Users and Third Party Services), including the accuracy of Your Content; and

ii. the results obtained from the processing of Your Content by the Services, where the results depend upon the accuracy of Your Content.

10.2 You consent to the use and sharing (including across national borders) of Your Content for any legitimate purpose relating to our delivery of the Services and Support Services to you, and interoperability with Third Party Services you have chosen to use. Where Your Content contains any Personal Information, we will only use and share Your Content as described in our Privacy Policy. We may disclose Your Content on the Services to the extent required to do so by applicable laws, legal process, professional standards, and obligations, regulatory authority, or disciplinary body.

10.3 You warrant that our or any Assisting Party’s use of any of Your Content while delivering the Services and Support Services will not infringe the rights, including Intellectual Property Rights, privacy rights or any other proprietary rights of any third party.

11. Fees

11.1 Where you purchase the Services and any Support Services from us:

i. we will charge you for the Services and any Support Services in accordance with the Sales Order and you agree to pay the Fees for the Services and receipt of any Support Services as set out in the relevant Sales Order, including from any Start Date specified in the Sales Order and in accordance with the payment terms set out therein;

ii. you may be required to supply payment information to us (or an authorised billing representative of us). This payment information may include credit card or debit card details (“Payment Details”). Any Payment Details supplied to us will be retained and used by us in accordance with this Agreement and our Privacy Policy. You must ensure that the Payment Details you supply are correct and complete.

iii. any underpayment of the Fees, whether revealed by an audit or verification process, any self-reporting by you, or otherwise, must be paid by you within 30 days of receipt of an invoice from us in relation to that underpayment;

iv. the Subscription Fees will be charged by us on a per user basis and will be increased for any additional Authorised Users;

v. you agree to pay any additional Fees that may become payable by you for you to access or use new features and functionality that we may make available (“Functionality Fees”). These Functionality Fees are not included in the standard Subscription Fees. Any such Functionality Fees that may become payable will be notified to you in advance, and if the new features and functionality is accepted by you, the Functionality Fees will be charged to you as an additional Functionality Fee in accordance with the notified payment terms for the relevant feature or functionality;

vi. following expiry of the Minimum Term, the Fees are subject to change. Unless otherwise set out in the Sales Order, we will provide 60 days’ notice prior to any Fee change;

vii. where you do not agree to those changes, you may terminate this Agreement in accordance with clause 15.4; and

viii. except in cases of termination (in which case clause 16.1 applies), where Fees are calculated by reference to a period of time (e.g. a month), and the relevant Services or Support Services are not supplied for the full period of time, the relevant Fees will be prorated to reflect the period for which the Services or Support Services have been supplied.

12. Handling Information

12.1 You agree that we may collect, hold, use and disclose your Confidential Information and Personal Information as set out in our Privacy Policy and in accordance with this Agreement.

12.2 You warrant that you have provided all necessary notifications for, and obtained all necessary consents to, the transfer, access, disclosure, deletion, updating and use of any Personal Information or Confidential Information forming part of Your Content by us as contemplated by this Agreement and our Privacy Policy or as directed from time-to-time. This includes but is not limited to the linking of the Services or Support Services with your Microsoft 365 Business Central product account or service and any Third Party Service you have chosen to use, and extends to all necessary notifications or consents for all Authorised Users.

12.3 Each party must comply with applicable Privacy Laws in respect of Personal Information and, unless already provided for in this Agreement, our Privacy Policy or permitted by law, keep confidential, and refrain from disclosing the Confidential Information and Personal Information of the other party. Each party will take reasonable security measures to protect such information from unauthorised use, access, disclosure, alteration, or destruction. Such measures will include access controls, encryption and any other means that are required to comply with applicable law.

12.4 The Services may include the property of Licensors. Licensors retain all right, title and interest, including all Intellectual Property Rights, in and to their respective property included in the Services. Licensors’ property included in the Services, their underlying technology, architecture, and source code, and performance information relating to the Services, are Confidential Information of Licensors notwithstanding the absence of any marking or further designation. You must handle the Confidential Information of Licensors in accordance with clause 12.3.
12.5 We may:

i. extract and compile statistical and other commercial information from Your Content, as well as from data related to the performance, operation and use of the Services or Use data from the Services (this includes only aggregated and de-identified information using information and materials used or developed in the performance of the Services) for security and operations management, to support data driven functionality, to create statistical analyses, for research and development purposes, benchmarking and for internal or external quality assurance, business development, service and product improvement. For the purposes of this paragraph, “aggregated and de-identified” means that your identity, or information relating specifically to you, cannot reasonably be ascertained or re-identified;

ii. refer to, use and disclose knowledge, experience and skills of general application gained through the provision of the Services and Support Services;

iii. use, and disclose to Microsoft any technical information that we derive from providing the Services and Support Services related to our technology for problem resolution, troubleshooting, functionality enhancements and fixes, or for our knowledge base;

iv. with your consent, refer to and use your name, contact details, logo and a description of the Services and Support Services for marketing purposes; and

v. agree with you other uses of your Personal Information and Confidential Information from time to time.

12.6 Unless already provided for in this Agreement (including clauses 5.5, 7, 10.2 and

12.5), our Privacy Policy or permitted by law, we will obtain your consent before providing your Personal Information or Confidential Information to a third party in a form that is not aggregated nor de-identified.

12.7 Any breach of this clause 12 by either party will be deemed a material breach of this Agreement that cannot be remedied.

12.8 Some features in the Services may enable the collection of data from Authorised Users that access or use the Services. If you use these features, you must comply with applicable law, including getting any required consents, and maintaining a prominent privacy policy that accurately informs users about how you use, collect, and share that data.

12.9 Subject to the provisions of this clause 12.9, we agree to defend, indemnify you and hold you harmless against all losses, damages, costs (including reasonable legal costs) demands and liabilities arising out of any claim by a third party that your use of the Services infringes the Intellectual Property Rights of any third party, except to the extent that:

i. your use of the Services is not in accordance with this Agreement;

ii. the use of any of Your Content has caused or contributed to the relevant claim;

iii. you have modified or altered the Services in any way;

iv. use of the Services in combination with other software, hardware or materials not provided by us has caused or contributed to the relevant claim; or

v. the relevant claim arises from or is in connection with your use of Microsoft’s Dynamics 365 Business Central product.

12.10 If any claim described in clause 12.9 is brought against you, and we are unable to:

i. modify or replace the alleged infringing Services to make them non-infringing; or

ii. obtain for you the right to continue using the Services,

iii. on terms that we reasonably believe to be commercially reasonable, we may terminate this Agreement with immediate effect by giving you 30 days written notice of such termination.

12.11 To the maximum extent permitted by law, clause 12.9 sets out our sole and exclusive obligations, and your sole and exclusive remedy, in relation to any third party claim of infringement of Intellectual Property Rights as described in that clause.

13. Data and Document Retention

You acknowledge that there are inherent risks associated with internet-based information transmission and online service delivery which are outside our reasonable control. For example, the Services may be affected by cyber-attacks or by third parties who provide or maintain aspects of the Services. If this occurs, we will make commercially reasonable efforts to make the Services available to you. However, we cannot guarantee that your access to the Services or Your Content will always be secure, uninterrupted or error free. To the maximum extent permitted by law, we will not be liable for any loss (including loss of any of Your Content) which is outside our reasonable control.

14. Liability

14.1 Nothing in this Agreement shall operate so as to exclude or limit liability for:

i. death or personal injury arising out of negligence;

ii. fraud or fraudulent misrepresentation by a party or its employees;

iii. a breach by you of clause 8.1 or 9.1;

iv. your indemnity in clause 8.6;

v. our indemnity in clause 12.9; or

vi. your obligation to pay the Fees; and

vii. any other liability that cannot be excluded or limited by law.

14.2 Subject to clauses 14.1 and 14.3; to the maximum extent permitted by law, the maximum aggregate liability of either party (and in our case, any Assisting Party) in connection with this Agreement, whether in contract or tort (including without limitation, negligence), in equity, under statute or on any other basis, for all claims arising in a Liability Period shall be limited to 100% of the total Fees actually paid by you to us in the relevant Liability Period. Where a cause of action arises in a Liability Period and continues across subsequent Liability Periods and/or continues after the termination of this Agreement, then the cause of action shall be deemed to have arisen only in the Liability Period in which such cause of action first arose.

14.3 Subject to clause 14.1, to the maximum extent permitted by law, whatever the legal basis for the claim, neither party (and in our case, nor any Assisting Party) will be liable for any indirect, consequential, special or incidental damages, or damages for lost profits, revenue, business interruption or loss of data arising in connection with this Agreement, whether in contract or tort (including without limitation, negligence), in equity, under statute or on any other basis, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable.

14.4 Notwithstanding anything stated in this Agreement, the liability of a party (and, in our case, any Assisting Party) for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that the other party caused or contributed to that loss or damage.

14.5 Nothing in this Agreement excludes, restricts, or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.

14.6 If a Non-Excludable Provision applies and we are able to limit your remedy for a breach of that Non-Excludable Provision, then our liability for breach of that Non-Excludable Provision is limited to one or more of the following at our option:

i. in the case of goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or acquiring equivalent goods; or the payment of the cost of having the goods repaired; and

ii. in the case of services: the supply of the services again; or the payment of the cost of having services supplied again.

14.7 Any potential claim (including in negligence) must be brought against us rather than against any Member Firms or any of our Personnel in connection with the Services or Support Services. You agree that each Member Firm and each of our Personnel may rely on this clause 14.7 as if they were a party to this Agreement, and we enter into this Agreement on their behalf so that they may do so. You acknowledge that damages are unlikely to be an adequate remedy for your breach of this clause 13.7, and we may enforce this clause 14.7 on behalf of other Member Firms and our Personnel.

14.8 If we engage a Member Firm as an Assisting Party, where any scheme approved under professional standards legislation applies to the Services or Support Services performed by that Member Firm, the Member Firm’s liability in relation to the Services or Support Services to which the scheme applies is limited in accordance with the scheme.

14.9 Each Assisting Party is intended to have the benefit of this clause 14 as if they were a party to this Agreement, and we enter into this Agreement on their behalf so that they may do so.

14.10 To the maximum extent permitted by law, you acknowledge that:

i. we are providing you with access to and use of the Services on an “as is” basis and all express or implied representations, guarantees, warranties or other terms and conditions of any kind relating to this Agreement not expressly stated in this Agreement are excluded from this Agreement;

ii. the Services are neither fault tolerant nor free from errors, conflicts, bugs or interruptions; and

iii. where you engage a third party to perform other services for you in relation to the Services, we do not accept any liability or responsibility in relation to the services they provide.

15. Termination and Suspension

15.1 Either party may terminate this Agreement immediately in whole or in part by written notice to the other:

i. if the other party is in material breach of this Agreement and the breach is either not capable of remedy or has not been remedied within 14 days after receipt of notice requiring remedy;

ii. if the other party is subject to an Insolvency Event; or

iii. if the Services or Support Services are suspended for more than 21 days pursuant to clause 15.3, and we have notified you accordingly with a notice period of at least 30 days (or such shorter period as we may reasonably require in circumstances outside of our reasonable control or in order to address a security issue or vulnerability in the Services).

15.2 We may terminate this Agreement in whole or in part:

i. for convenience upon at least six months prior written notice; or

ii. by giving you written notice if, in our reasonable opinion, the provision of any Services or Support Services by us:

a. does or would breach or is inconsistent with any applicable law, rule, regulation or professional or ethical standards or codes or internal directions or policies (including any requirements relating to independence);

b. has the potential to bring our reputation into disrepute; or

c. may expose individuals providing the Services or Support Services to unreasonable physical or personal risk,
by notifying you accordingly with a notice period of at least 30 days, or such shorter period as we may reasonably require.

15.3 Notwithstanding our rights to terminate this agreement in clauses 15.1 and 15.2, we may suspend the provision of the Services or Support Services immediately in whole or in part by written notice to you:

i. where any Fees are not paid to us or by the due date, and you fail to pay such amounts within 7 days after we or that reseller notifies you of such failure, until such Fees are paid;

ii. where, at least 14 days following our reasonable request, you do not provide or make available to us information or personnel to the extent that such information or personnel is reasonably necessary for us to perform the Services or Support Services, until the information is provided or the personnel are made available;

iii. if you commit a material breach of this Agreement that is capable of being remedied, and you fail to remedy such breach within 7 days of the date on which you receive written notice identifying the breach and requesting that it be remedied, until such time as that breach is remedied;

15.4 You may terminate this Agreement by written notice to us at least 30 days before the start of a month, in which case this Agreement will terminate immediately before the start of that month.

15.5 Subject to clause 15.1, this Agreement will terminate automatically if your agreement with Microsoft to use Microsoft Dynamics 365 Business Central terminates for any reason.

15.6 You acknowledge and agree that we may notify our partners of any non-payment by you of the Fees or of the termination of this Agreement for any reason.

16. End of Services

16.1 Following termination of this Agreement:

i. you must pay within 30 days of such termination:

a. except for any amounts to which paragraph iv applies, all amounts that have accrued prior to such termination and remain unpaid;

b. in respect of a termination by us in accordance with clause 15.1i or 15.1iii, or by you under clause 15.4, an amount equal to the Fees that would have been payable for the balance of any Minimum Term, unless the payment of such amount is waived in whole or in part by Wiise in its sole discretion; and

ii. where we terminate under clause 15.2 or 12.10, or you terminate under clause 1.3ii, or 1.5, we will provide you with a pro-rata refund of any Fees that have been paid in advance for Services which have not been delivered as at the effective date of termination.

17. Notices

17.1 All notices, consents, approvals, demands, and other instruments required or permitted to be served under this Agreement must, unless otherwise expressly provided in this Agreement, be in writing, signed by or on behalf of the party serving the same or by that party’s solicitor and may be served upon the party at the postal or email address provided for that party in this Agreement.

17.2 Any notice or communication will be deemed to be received when the email is sent, provided that:

i. the sender can demonstrate that the email was sent to the correct email address of the recipient; and

ii. no error message was received by the sender to indicate that the email did not reach its intended destination,

iii. however, if the notice or communication is delivered after 5.00pm or on a non-Business Day at the place of receipt, then it will be deemed not to be received until 9:00am on the next Business Day at the place of receipt.

18. Goods and Services Tax

18.1 GST means goods and services tax under A New Tax System (Goods and Services Tax) Act 1999 (Cth).

18.2 Unless otherwise stated, all fees and charges are exclusive of GST. In addition to the amount payable, you must pay us any GST applicable to any Taxable Supplies we make, and we will provide you with tax invoices for those supplies.

19. General

19.1 Entire Agreement

i. Nothing in this Agreement limits any liability that you or we may have in connection with any representations or other communications (either oral or written) made prior to or during the term of this Agreement, where such liability cannot be lawfully excluded.

ii. Subject to paragraph i, this Agreement constitutes the sole and entire agreement between the parties and will supersede all previous communications (either oral or written) between the parties with respect to the subject matter of this Agreement. Except as otherwise expressly stated in this Agreement, including in clause 1.3, no agreement or understanding varying or extending this Agreement will be binding on either party unless agreed by the parties in writing.

19.2 Governing law and jurisdiction
This Agreement is governed by, and is to be construed in accordance with, the laws of New South Wales and the parties submit to the non- exclusive jurisdiction of the courts of New South Wales and any court hearing appeals from those courts.

19.3 Dispute Resolution

i. Subject to clause 19.3iv, if a Dispute arises:

a. the party raising the Dispute must provide a Dispute Notice to the other party; and

b. the parties must engage in confidential senior level negotiations with a view to resolving the Dispute.

ii. If a Dispute has not been resolved within 14 days after the Dispute Notice is given, the parties agree to refer the Dispute to mediation in accordance with the Resolution Institute Mediation Rules.

iii. If a Dispute has not been resolved within 28 days after the Dispute Notice is given, the Dispute must be referred to arbitration conducted in English, with the seat of arbitration to be Sydney, Australia and in accordance with the ACICA Arbitration Rules. The number of arbitrators will be one if the amount in Dispute is under $10 million or three if the amount in Dispute is $10 million or more.

iv. No court proceedings may be commenced in relation to a Dispute other than in accordance with section 34A of the Commercial Arbitration Act 2010 (NSW) or to seek Urgent Relief.

19.4 Relationship of the parties

Nothing in this Agreement will constitute or be construed to constitute a party as the partner, agent, employee, or representative of any other party or to create any trust relationship between them.

19.5 Force Majeure Event

Neither party (the “Excused Party”) will be liable for any failure to perform its obligations (other than an obligation to pay) under this Agreement to the extent that performance is delayed, prevented, restricted, or interfered with for any reason beyond the reasonable control of that party, including where we are the Excused Party your failure to comply with your obligations under this Agreement.

19.6 Severance

If any part of this Agreement is, or becomes, unenforceable, illegal, or invalid for any reason, the relevant part is to be deemed to be modified to the extent necessary to remedy such unenforceability, illegality or invalidity or if this is not possible then such part must be severed from this Agreement, without affecting the enforceability, legality or validity of any other provision of this Agreement.

19.7 Waiver

A power, remedy or right arising from any provision of this Agreement can only be waived, qualified, restricted, modified or amended specifically in writing by the party with that power, remedy or right.

19.8 Survival

Any clauses which are intended or capable of having effect after the expiration or termination of this Agreement are continuing obligations and those clauses survive this Agreement’s rescission, termination, completion, or expiry.

19.9 Modern Slavery

As an Associated Entity of KPMG:

i. we will perform the Services in accordance with KPMG’s Human Rights Policy, available at www.kpmg.com.au;

ii. KPMG is undertaking an ongoing process to identify Modern Slavery risks in KPMG’s operations and supply chain; and

iii. we may assist KPMG to report on the Modern Slavery risks in KPMG’s operations and supply chain in KPMG’s annual modern slavery statement, in accordance with KPMG’s obligations under the Modern Slavery Act.

19.10 Referral Fees

The supply of the Services may involve us paying or receiving a percentage-based referral fee or value-added commission.

19.11 Feedback

If you or your Authorised Users provide us Feedback, such Feedback will not be considered confidential. You agree such Feedback may be used by us without any restriction and without payment to you.

19.12 Assignment

i. Subject to paragraph ii, you may novate, assign, transfer or otherwise dispose of all or any of your rights and obligations under this Agreement without Wiise’s prior written consent, except where the proposed novatee, transferee or assignee (as the case may be) is a Restricted Assignee.

ii. You may not novate, assign, transfer or otherwise dispose of all or any of your rights and obligations under this Agreement to a Restricted Assignee without the prior written consent of Wiise.

iii. For the purposes of paragraphs i. and ii., ‘Restricted Assignee’ means a proposed novatee, transferee or assignee (as the case may be):

a. whose financial standing is not better than nor equivalent to yours;

b. who Wiise reasonably believes may damage or impair Wiise’s reputation if Wiise enters an arrangement with such novatee, transferee or assignee;

c. who would prejudice Wiise’s, or any member of the Wiise Group’s, ability to comply with any applicable independence requirement (as set out in the Wiise Group’s internal policies);

d. who may reasonably be determined to be a competitor of Wiise; or

e. with whom Wiise is in a dispute for which proceedings have been issued in any court.

iv. Wiise may at any time by notice to you assign, novate or transfer all or any of its rights and obligations under this Agreement without your consent. You must enter into any document reasonably requested by Wiise to formalise the assignment, novation or transfer.

20. Glossary

"Agreement” means these terms and conditions, including any schedules.

“Associated Entity” has the meaning given to it in section 50AAA of the Corporations Act 2001 (Cth).

“Assisting Party” means any party that is in any way involved in or associated with the provision of the Services, including a Member Firm, other than the parties to this Agreement.

“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

“Authorised Users” means your employees, contractors or officers that require use of the Services, as well as any of your external advisors that require access to the Services solely for the purposes of them advising you.

“Business Day” means a day on which banks are open for business excluding Saturdays, Sundays, bank holidays or public holidays in Sydney.

“Confidential Information” means (whether or not in material form and whether or not disclosed before or after the date this Agreement commences) any information of whatever kind disclosed or revealed by a party to the other party under or in relation to this Agreement that:

i. is by its nature confidential;
ii. is designated by the disclosing party as confidential; or
iii. the receiving party knows or reasonably ought to know is confidential,
but does not include information that:
iv. is, or becomes, publicly available without a breach of this Agreement;
v. was lawfully known to the receiving party without an obligation to keep it confidential;
vi. is received from another source who can disclose it lawfully and without an obligation to keep it confidential; or
vii. is independently developed by the receiving party.

“Contract Start Date” means the date is specified in the Sales Order.

“Dispute” means a dispute in connection with this Agreement or the Services or Support Services.

“Dispute Notice” means a notice of a Dispute that contains sufficient detail to enable the Dispute to be considered.

“Devices” means mobile handsets, personal computers, tablets, wearable devices, and other devices.

“Feedback” means any ideas, suggestions, or other feedback in connection with your use of the Services.

“Fees” means the Subscription Fees, any Functionality Fees and Support Fees.

“Functionality Fees” has the meaning used in clause 11.1v of this Agreement.

“Insolvency Event” means, in relation to a party, where that party:

i. ceases or threatens to cease to carry on business;
ii. is unable to pay its debts as they fall due;
iii. resolves to go into liquidation or otherwise dissolves itself;
iv. has a receiver, receiver and officer manager, trustee, statutory manager, administrator or similar officer appointed in respect of that party; or
v. enters into, or resolves to enter into, an arrangement or composition with creditors or makes an unauthorised assignment for the benefit of creditors

“Intellectual Property Rights” means all intellectual property or other proprietary rights throughout the world, whether under statute or common law or equity, now or hereafter in force or recognised, including but not limited to: (i) copyrights, trade secrets, know-how, trade marks, patents, inventions, designs, logos and trade dress, moral rights, mask works, publicity rights and any other intellectual property or proprietary rights (whether registered or unregistered); and (ii) any application or right to apply for any of the rights referred to in paragraph (i), and any and all renewals, extensions and restorations of these.

“KPMG” means the Member Firm that is the Australian Partnership of KPMG (ABN 51 194 660 183).

“Liability Period” means each successive 12 month period, with the first of such periods commencing on the Contract Start Date, and each subsequent period commencing on the anniversary of the Contract Start Date.

“Licensor” means third party licensors.

“Login Credentials” means your or your Authorised Users’ usernames and passwords or other credentials needed in order to access the Services.

“Member Firm” means an entity (whether or not incorporated) which is a member or an affiliate of a member of the KPMG-branded network of independent member firms, but excluding us.

“Microsoft” means Microsoft Corporation and/or any of its affiliates.

“Microsoft Terms” means the terms of agreement between you and Microsoft granting you rights to Microsoft’s Dynamics 365 Business Central product, and the associated licence terms that govern your use of the Microsoft product, as determined by Microsoft, and as Microsoft may decide to modify from time to time.

“Minimum Term” means any minimum term for the Services and/or Support Services specified in the Sales Order.

“Modern Slavery” means conduct defined as “modern slavery” in the Modern Slavery Act.

“Modern Slavery Act” means the Modern Slavery Act 2018 (Cth).

“Non-Excludable Provision” means any guarantee, warranty, term, or condition that is implied or imposed in relation to this Agreement under the Australian Consumer Law or any other applicable legislation that cannot be excluded.

“Personal Information” has the meaning given to that term in the Privacy Act 1988 (Cth).

“Personnel” means the partners, officers, employees, contractors, secondees and agents of us and our Assisting Parties.

“Privacy Laws” means the Privacy Act 1988 (Cth) and any other Australian law or binding industry code relating to the handling of Personal Information.

“Privacy Policy” means the privacy policy available at https://www.wiise.com/privacy-policy.

“Renewal Period” has the meaning given in clause 4.2.

“Sales Order” means the order document signed by us and you for the Services and any Support Services.

“Services” means Wiise Warehouse OnTime service, a mobile device-based service which supports warehousing and operational tasks and which (for clarification, and as stated in clause 6.3) does not include any Third Party Services.

“Services Period” means the period commencing from the Contract Start Date and ending on the expiry of the Minimum Term or any Renewal Period or Trial Period (if applicable), unless terminated earlier in accordance with this Agreement.

“Subscription Fee” means those subscription fees payable for the Services in accordance with this Agreement, including all relevant licence fees set out in the Sales Order.

“Support Fee” means those fees payable for the Support Services in accordance with this Agreement.

“Support Services” means those support services provided under this Agreement, including under clause 1.1, but does not include any support services provided by us under an agreement that is distinct and separate to this Agreement.

“Taxable Supplies” has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

“Third Party Services” has the meaning given in clause 7.1.

“Trial” means a trial of the Services without payment.

“Trial Period” has the meaning given in clause 4.5.

“Urgent Relief” means urgent injunctive, interlocutory, or declaratory relief in respect of a Dispute or the enforcement of a payment due under this Agreement.

“Use” means collect, use, access, modify, transfer, and only in an aggregated and de-identified form, sublicence and disclose.
“We, us (or derivatives)” has the meaning given to that term in clause 1.1, except in clause 12.5, the last sentence of clause 13 and clauses 14.2, 14.3, 14.6 and 15.2ii where it also includes Member Firms.

“WoT App” means the Wiise ‘Warehouse OnTime’ mobile software application.

“you” means the relevant legal entity or person that uses the Services, as identified in the online application form completed by that entity or person (and “your” shall be construed accordingly).

“Your Content” means your text, files, software, images, graphics, illustrations, information, data, audio, video, photographs and all data, documents, materials, or other information provided to us or entered into the Services by you, or on your behalf, or at your request, or by your Authorised Users.

Wiise Warehouse OnTimeTerms & Conditions: Australia & New Zealand