MacromatiX: Terms and Conditions of Service

These terms and conditions govern the relationship between You, as a customer, and MacromatiX to allow you, subject to these terms and conditions, remote access to the Application hosted on its servers and to provide You with the Services. By using the Application You agree to be bound by these terms and conditions including without limitation, the Payment Terms and disclaimers specified herein.
You understand and agree that You are solely responsible for periodically reviewing these Terms and Conditions of Service.

Grant of Rights

Subject to payment of all applicable Fees, MacromatiX hereby grants You a personal, non-exclusive, non-transferable right to use the Application, for the specific amount of POS as agreed between You and MacromatiX in writing, solely for Your purposes and not for further re-selling or distribution, all according to the these terms and conditions.

Term

Subject to the termination terms specified hereunder, this these terms and conditions shall apply as of the Commencement Date and will remain in full force and effect for the duration of the Initial Term as agreed between MacromatiX and You.

The Initial Terms shall be automatically extended for the Additional Period unless You indicated to MacromatiX in writing not less than thirty (30) days prior to the date of expiration that You do not wish to continue using the Application.

Your Responsibilities

You agree to comply, at all times, with Your obligations and responsibilities as described herein and must comply with MacromatiX policies, guidelines or instructions as provided from time to time in connection with the Services. In particular, You must:

(a) Provide MacromatiX with the Dependencies as agreed between You and MacromatiX;
(b) Acquire and the right to use and third party software and pay any applicable third party licence fees;
(c) Ensure that the hardware used to access the Application will comply with the specifications provided by MacromatiX and has constant connection to the Internet; and
(d) Any other responsibility agreed in writing between You and MacromatiX.

Furthermore, You must take your own precautions to ensure that the process which You employ for accessing the Application does not expose you to risk of viruses or other form of interference which may damage your own computer system. For the removal of doubt, MacromatiX does not accept responsibility for any interference or damage to your own computer system which arises in connection with your accessing of the Application or any linked systems.

Dependencies

You understand and acknowledge that the Application and the provision of the Service is dependent upon certain Dependencies as agreed between You and MacromatiX including, without limitation, certain software licenses, hardware components and internet connection. You acknowledge that the cost, maintenance and responsibility for such Dependencies rests solely with You and under no circumstances MacromatiX will be liable for the operation and availability of such Dependencies.

Permitted Users

You will identify the amount of POS to access the Application including their locations. These will be used and operated by Your employees who will be assigned unique user ID’s and passwords to access and use the Application only for the purposes permitted by these terms and conditions. You will provide to MacromatiX a list of authorised POS and Permitted Users and shall also provide periodic updates as necessary.

You will take such actions as are necessary to maintain the confidentiality of, and prevent the unauthorised use of, each password and user ID, including entering into appropriate agreements with Your contractors and employees. You will immediately notify MacromatiX in writing if You determine, or has reason to believe, that an unauthorised party has gained access to a user ID or password. You authorise MacromatiX to rely upon any information and/or instructions set forth in any email or other data transmission using the assigned user ID or password, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with the operation of the Application. Use of the assigned user ID or password, whether or not authorised by You, shall be solely at Your risk and responsibility. You shall indemnify, defend, and hold MacromatiX harmless from any claim, proceeding, loss or damages based upon any use, misuse, or unauthorised use of Your user ID’s and/or passwords.

You are solely responsible for the content of Your transmissions through the Application. MacromatiX reserve the right to take any action with respect to the Service as MacromatiX’s sole discretion in the event that Your use or the nature of your transmissions when using the Service may create liability for MacromatiX. The use of and access to the Application is subject to all applicable state, national and international laws and regulations.

Availability

MacromatiX shall use all commercially reasonable efforts to make the Service available twenty-four (24) hours per day, seven (7) days a week, excluding:

(a) Scheduled Downtime for systems maintenance, including without limitation diagnostics, upgrades, and operations reconfiguration. MacromatiX shall endeavour to inform You in advance prior to any scheduled Downtime.

(b) Unscheduled Downtime caused by other forces beyond the immediate control of MacromatiX, including software defects, hardware failures, or downtime caused by Your network, the Internet or Your Internet service provider.

Rights and Ownership

MacromatiX grants You only the right to use the Application and the Service subject to these terms and conditions. You agrees that you neither own nor hereby acquire any claim or right of ownership to the Application or to any related patents, copyrights, trademarks or other intellectual property. You agree not to resell the use of the Application and/or the Service, any downloadable plug-in or other materials or any information obtained by You without the express written consent of MacromatiX. All rights to the Application and the Service lie solely with MacromatiX.

Furthermore, MacromatiX, The Franchise Suite, their logos and other names, logos, icons and marks identifying MacromatiX products and services are trademarks of MacromatiX and may not be used without prior written consent. All other product names mentioned are used for identification purposes only and may be trademarks of their respective holders.

MacromatiX welcomes suggestions and requests for enhancements and/or additional functionality for the Application or the Service (“Enhancements”) and will apply commercially reasonable endeavors to provide such Enhancements on an ongoing basis, at MacromatiX sole discretion. In the event that MacromatiX will choose to implement Your suggestion or request for any Enhancement, all right in such Enhancement shall remain solely with MacromatiX. To clarify, all functions and features (including Enhancements) are and will be available to all customers of MacromatiX and no Enhancement is capable of being implemented on exclusive basis.

Training and Support

Subject to payment of all applicable fees, MacromatiX will provide You with telephone and e-mail support services during normal business hours (Monday to Friday, 8:30AM to 5:30PM excluding National Holidays) to assist You with the smooth and continuous integration of the Application into the operation of Your business. Any additional support services that may require on-site visit by MacromatiX representative will incur additional costs at MacromatiX then applicable rates.

MacromatiX shall hold at least one training session for Your staff as outlined below. All training shall be held at schedules and locations to be solely determined by MacromatiX. MacromatiX will notify You of available schedules and locations in advance. No course fees (not including any travel or other related expenses will shall be charged from You for the first initial training.

You shall nominate an agreed amount of members of Your staff who will be trained in the use and operation of the Application at the highest administration level and as system administrators (“Administrators”). The Administrators will be primarily responsible for (a) ongoing support for the remaining members of Your staff who are authorised to use the Application and the Service; and (b) the maintenance of the data stored within the Application.

In the event that a problem (operational, technical or other) is not capable of being resolved by the Administrators, such problem shall be escalated to MacromatiX by an Administrator for resolution. MacromatiX shall make all commercially reasonable efforts to resolve such problem as soon as possible. Upon receiving a fault report and/or request for assistance, MacromatiX may, in its discretion, attempt to deal with the issue remotely.

To clarify, support services to Your staff members shall be provided by the trained Administrators only and not by MacromatiX. MacromatiX will not provide direct support to the members of your staff using the Application and the Service, but will assist the Administrators in providing such support if and when required.

Disaster Recovery

MacromatiX will make commercially reasonable efforts to create and protect back-up copies of Your data stored on MacromatiX servers. Notwithstanding, MacromatiX shall have no liability or duty of indemnification related to lost or corrupt data. This limitation of liability eliminates any duty or liability on the part of MacromatiX related to lost or corrupt data resulting in part or in whole from third-party software or networking goods or services or from actions or events outside of MacromatiX’s control.

Fees and Payment Terms

You shall pay MacromatiX the licence fees for the Service on per POS basis as agreed between You and MacromatiX in writing. All fees shall be due and payable within fourteen (14) days of the date of invoice unless otherwise agreed between you and MacromatiX. You are responsible for all taxes concerning the Application, and/or the Services, without deduction (including in respect of any taxes, duties, levies, charges, withholdings or otherwise), counter-claim or set-off. Any amount not paid on the due date for payment will carry interest from that date until payment is made in full at the rate of 2% per annum above the overdraft rate charged on overdraft accounts over $100,000 by the Commonwealth Bank of Australia from time to time. MacromatiX shall have no continuing obligation to deliver Service on credit.

Confidential Information

Under no circumstances may either party disclose any pricing or business terms related specifically to these terms and conditions, or any negotiations thereof, to any third party (including, but not limited to, competitors, industry analysts, press or media).

Neither party will use any Confidential Information of the disclosing party except as expressly permitted by these terms and conditions or as expressly authorised in writing by the disclosing party. Each party shall use the same degree of care to protect the disclosing party's Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither party is allowed to disclose the other party's Confidential Information to any person or entity other than the receiving party's officers, employees, consultants and legal advisors who need access to such Confidential Information to effect the intent of these terms and conditions. Each individual or entity receiving Confidential Information pursuant to this clause must have entered into a written confidentiality agreement designed to further the intent of these confidentiality provisions. Each party agrees to notify the other of any unauthorised use or disclosure of Confidential Information and to provide reasonable assistance to such other party, and its licensors, in the investigation and prosecution of such unauthorised use or disclosure.

The Application shall be deemed the Confidential Information of MacromatiX, and the Your data stored on MacromatiX servers shall be deemed to be Your Confidential Information.

Rights, Ownership and Protection

MacromatiX (or its third party providers) retains title to all portions of the Application, the Services including any related documentation and business rules. The rights granted herein are limited to accessing and using the Application only and are not intended to confer any additional interest, title or right of ownership.

You agree not to resell the use of the Application and/or the Service, or any other information obtained by You through the use of the Application without the express written consent of MacromatiX. All rights to the Application and the Service rest solely with MacromatiX.

Furthermore, MacromatiX™, The Franchise Suite™, their logos and other names, logos, icons and marks identifying MacromatiX products and services are trademarks of MacromatiX and may not be used without prior written consent. All other product names mentioned are used for identification purposes only and may be trademarks of their respective holders.

MacromatiX welcomes suggestions and requests for enhancements and/or additional functionality for the Application or the Service (“Enhancements”) and will apply commercially reasonable endeavours to provide such Enhancements on an ongoing basis, at MacromatiX sole discretion. In the event that MacromatiX will choose to implement Your suggestion or request for any Enhancement, all rights in such Enhancement shall remain solely with MacromatiX. To clarify, all functions and features (including Enhancements) are and will be available to all MacromatiX customers and no Enhancement is capable of being implemented on exclusive basis.

Indemnity

MacromatiX shall indemnify and defend You against any claims that Your use of the Application infringes any registered patent or copyright; provided that (a) Your use of the Application was in accordance with MacromatiX’s instructions; and (b) MacromatiX is given prompt notice of such claim and is given information, reasonable assistance and sole authority to defend or settle the claim. In the defence or settlement of the claim, MacromatiX may obtain for You the right to continue using the Application, replace or modify the Application so that it becomes non-infringing while giving equivalent performance or, if such remedies are not reasonably available, remove the infringing portion of the Application, and if Your use of the Application is terminated prior to any pre-paid period, provide You with a pro-rata refund of the fees paid for Application access based on such period. MacromatiX shall have no liability if the alleged infringement is based on a modification of the Application by anyone other than MacromatiX; is based on use of the Application with equipment or Hardware not approved by MacromatiX; or is based on the use of the Application other than in accordance with the Documentation. This Clause states MacromatiX's entire and sole liability and Your exclusive remedy for infringement.

You shall indemnify and defend MacromatiX against any claims that (a) Your use of the Application not in accordance with MacromatiX’s instructions; or (b) MacromatiX’s use of third party software provided by You is in violation of any laws, rules, or regulations or third party rights.

Default and Termination

You may immediately terminate the Term at any time by giving notice in writing if the Services or the Application are unavailable (i.e. Downtime) and remains unavailable for a consecutive period exceeding 20 business days. This clause is Your only right of termination during the Initial Term and You will be entitled to terminate the Services for convenience by providing MacromatiX with thirty (30) days prior written notice of termination only upon the expiration of the Initial Term. The right of termination described in this paragraph is Your sole and exclusive remedy related to Downtime.

MacromatiX may immediately terminate or suspend the Services at any time by giving You notice in writing if You fail to make any payment when due and which remains unpaid for thirty (30) days after notice. MacromatiX may also terminate the Services for convenience by providing you with thirty (30) days prior written notice of termination.

All Services terminate upon the termination or expiration of any applicable Term.

Warranty

MacromatiX warrants for the Initial Term and any Renewal Period as agreed between MacromatiX and You, the Application (excluding any hardware and third party software) will substantially comply with its published specifications. MacromatiX does not warrant that the Application will meet Your requirements, that the Application will operate in the combinations which You may select for use, that the operation of the Application will be uninterrupted or error-free, or that all error conditions will be corrected. MacromatiX’s obligations under these terms and conditions shall be limited solely to MacromatiX making, at its cost and expense, such repairs and modifications to the Service as are necessary to restore the Service to good working order and to confirm the Application to MacromatiX’s published specifications. You expressly agree that the use of the Application is at your sole risk. The Service is provided “AS IS” and MacromatiX expressly disclaims all warranty of any kind, whether expressed or implied, including without limitation, the implied warranties of merchantability, fitness for a particular purpose and non-infringement.

Limitation of Liability

NEITHER MACROMATIX, ITS THIRD PARTY LICENSORS NOR YOU WILL BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE liability OF MACROMATIX AND ITS THIRD PARTY LICENSORS for damages under THESE TERMS AND CONDITIONS shall in no event exceed the amounts paid by YOU to MACROMATIX for the SERVICES WITHIN A 12 MONTH PERIOD. the parties agree to the allocation OF LIABILITY RISK, WHICH is set forth in HEREIN.

Modifications to the Terms and Conditions

MacromatiX may amend these terms and conditions at any time by (a) posting a revised version of these terms and conditions on its website and/or (b) sending you information regarding the change to these terms and conditions to the address provided in writing to MacromatiX.

You are responsible for reviewing MacromatiX’s web site regularly to ensure You are familiar with the most recent version of these terms and conditions. You will express Your intent to accept and agree to the amended terms and conditions if You will continue to use the Service after such amended terms have been posted or information regarding such amendment has been sent to You. Otherwise, these terms and conditions may only be amended in writing signed by both parties.

MacromatiX reserves the right to modify or discontinue the Service with or without notice to You. MacromatiX shall not be liable to You or any third party should MacromatiX exercise its right to modify or discontinue the Service.

General

All notices shall be in writing and sent by first class mail or overnight mail (or courier) to the addresses indicated on the Product Specifications, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party. Notices to MacromatiX shall be sent to the address specified above. MacromatiX shall be entitled to publicise or advertise these terms and conditions as well as the relationship between the parties, upon notice to, but without the prior written approval of You for each such time of advertising or publicity. You may not assign the rights granted herein (by operation of law or otherwise) without the prior written consent of MacromatiX; provided, that such consent shall not be required for assignment to a purchaser of all or substantially all of the assets or equity securities of You. Any prohibited assignment or sublicense shall be null and void. You will be responsible for obtaining any required regulatory approvals for using the Services in Your territory. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, and any court that may hear appeals from any of those courts, for any proceedings in connection with this document, and waives any right it might have to claim that those courts are an inconvenient forum. Any provision within these terms and conditions that is held to be unenforceable in any jurisdiction shall be ineffective only as to that jurisdiction, and only to the extent of the unenforceability of such provision without invalidating the remaining provisions hereof.

Rules of Interpretation and Definitions

Application shall mean The Franchise Suite™ software application developed and owned by MacromatiX and hosted on MacromatiX’s servers.

Confidential Information shall mean any and all information disclosed by either party to the other that is marked "confidential" or "proprietary," including orally conveyed information designated confidential at the time of disclosure provided that it is reduced to a written summary marked "confidential" that is supplied to the other party within 30 days of the oral disclosure, pricing, terms, attachments, exhibits and all information related to the Application associated with these terms and conditions. Confidential Information shall be deemed to include the Application, and the related documentation. "Confidential Information" does not include any information that the receiving party can demonstrate is: (a) rightfully known prior to disclosure; (b) rightfully obtained from a third party authorised to make such a disclosure, without breach of these terms and conditions; (c) independently developed by the receiving party as demonstrated by contemporaneous documents; (d) available to the public without restrictions; (e) approved for disclosure with the prior written approval of the disclosing party; or (f) disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.

Downtime shall mean any period of time where the Service or access to the Application is unavailable or non-operational due to scheduled maintenance or unexpected service disruptions that are not related to a fault with Your infrastructure, software, equipment or related services (e.g. Internet or network connection).

Dependencies shall have the meaning ascribed to it in the Clause titled “Dependencies” above.

Permitted Users shall mean individuals employed or retained by You who have been authorised to use the Application and given a user ID and password to access the Application pursuant to these terms and conditions.

POS shall mean point(s) of sale as input devices provided by a third party vendor designed to be used with the Application controlled by You as part of Your business and authorised to use the Application operated by individuals employed or retained by You.

Service shall mean the service of accessing the Application remotely a timesharing basis.