TERMS AND CONDITIONS OF AGREEMENT
The terms and conditions in this agreement below bind the legal entity referenced in the accompanying formal quote document (“you”) and Prescience Technology Pty Ltd (“Prescience Technology” in this document or “Partner” in the Transactional Oracle Master Agreement) from the time you submit a signed copy of the quote to Prescience Technology, or formally accept it via email. Your payment obligations (as set out below under the heading “Payment obligations”) are conditional on Oracle accepting Prescience Technology’s request for Oracle to enter into agreement with you on the terms of the applicable Oracle Agreement(s) for the programs and technical support services set out in this Order Form (“Oracle’s Acceptance of the Order”) during the period of this agreement.
Prescience Technology is an authorised reseller of Oracle programs and technical support services.
Prescience Technology will use its best efforts to organise the acquisition of the license for the programs and technical support services set out in this Order Form, by you from Oracle Corporation Australia Pty Limited (“Oracle”), by you entering into an agreement with Oracle on:
- the terms of the Transactional Oracle Master Agreement (“TOMA”), if you have signed an TOMA and attached it to this Order Form or accepted the TOMA online;
- the terms of an existing agreement between you and Oracle, if you have attached a copy of that agreement to this Order Form;
- the terms of a click wrap license you agreed to at Oracle’s online web portal (as confirmed by the issue of Oracle’s agreement identification number); or
- if the programs are subject to a shrink wrap license, the terms of the shrink wrap license that accompanies the program; and
- where this Order Form includes Oracle’s first year technical support services, the terms of Oracle’s technical support policies.
(Each item in (1) and (2) is an “Oracle Agreement”).
Prescience Technology does not supply any Oracle programs or technical support services to you under this Order Form or otherwise, and any agreement for the supply of the Oracle programs and technical support services is solely between you and Oracle. You indemnify Prescience Technology in respect of any loss, damage or expense that arises out of or in connection with your relationship with Oracle and/or the supply or use of Oracle programs and/or technical support services.
You must send Prescience Technology a copy of any applicable Oracle Agreement made under (A)(i) or (ii) above, or the Oracle agreement number if the applicable Oracle Agreement is made under (A)(iii) above with, or immediately following, this signed Order Form.
Prior to Prescience Technology seeking Oracle’s Acceptance of the Order the provisions under this heading apply:
- You must pay the fees and applicable taxes set out in the attached quote immediately upon receipt of a correctly rendered invoice from Prescience Technology. Full payment is required before Prescience will seek Oracle’s Acceptance of the Order. This payment obligation is irrevocable and non-cancellable. All fees and applicable taxes must be paid without set off or deduction; and
- You must pay a late charge for any failure to make any payment to Prescience Technology by the date required under this agreement, calculated daily using a rate that is 4% over the Reserve Bank of Australia’s Cash Rate, from the date that the payment first becomes overdue, to the date that the payment is received by Prescience Technology both dates inclusive.
If you fail to pay the fees to Prescience Technology by the due date your license and/or technical support services may be cancelled.
Once Prescience Technology has received a signed copy of the attached Quote from you, or email approval to proceed, and the Payment Obligations have been met, Prescience Technology will seek Oracle’s Acceptance of the Order. If Oracle notifies Prescience Technology that it has given Oracle’s Acceptance of the Order, Prescience Technology will promptly send a copy of the relevant Oracle Customer Service Identifier (CSI) to you, confirming that Oracle has given Oracle’s Acceptance of the Order. Prescience Technology may terminate this agreement at any time if Oracle does not give Oracle’s Acceptance of the Order.
You may terminate this agreement for convenience (in which case you will not have any obligation to pay for the Oracle programs and technical support services on the Order Form) by giving Prescience Technology written notice provided that:
- Oracle has not provided Prescience Technology with Oracle’s Acceptance of the Order; and
- Your written notice of termination is not given within 10 business days of the date when Prescience Technology received a copy of your signed Order Form.
Prescience Technology must place an order with Oracle within 7 days of receiving a signed Quote from the Customer.
Prescience Technology will use its best efforts to organise your acquisition of the license for the programs and technical support services set out in this Order Form from Oracle Corporation Australia Pty Limited (“Oracle”) by you entering into applicable Oracle Agreement(s).
Where you have an obligation to make payment of the fees set out in the attached quote to Prescience Technology, then following receipt of the fees from you, Prescience Technology will pay the amounts due for the Oracle programs and technical services to Oracle or the authorised master distributor (as applicable), in accordance with its obligations under Prescience Technology’s relevant distribution agreement.
In this agreement “Confidential Information” means all non-trivial information concerning, or held by, a party’s business, including information marked as confidential, that the discloser treats as confidential or which the recipient knows or ought to know is confidential, but does not include information that:
- is in the public domain (other than as a result of unauthorised disclosure);
- the recipient already possesses at the time of disclosure (unless the information was received through unauthorised disclosure or is subject to prior confidentiality obligations); or
- is independently developed or acquired by the recipient (except through unauthorised disclosure).
Each party agrees that it will not permit the use of the other party’s Confidential Information by, nor disclose the other party’s Confidential Information to, any third person, other than:
- Prescience Technology may disclose your Confidential Information to its Related Bodies Corporate, and any suppliers, contractors and employees of Prescience Technology or its Related Bodies Corporate;
- Prescience Technology may disclose your Confidential Information (including the details on the Order Form) to Oracle (or any authorised master Oracle distributor) to facilitate the organisation of the supply of the Oracle programs and services to you;
- either party may disclose the other party’s Confidential Information to their professional advisers,
unless such use or disclosure is specifically authorised in writing by the other party or in any legal proceeding arising from or in connection with this agreement or disclosing the confidential information to a federal or state governmental entity as required by law. Each party must only use the other party’s Confidential Information for the purpose of performing the obligations under this agreement, or if the recipient is a professional adviser, the professional adviser may use the Confidential Information for purposes connected with advising on or reporting on this agreement.
Each party must use any Personal Information (as defined by the Privacy Act 1998 (Cth)) of which it becomes aware in connection with this agreement in accordance with the law. You warrant that you have obtained each of your employees’ and contractors’ informed consent for Prescience Technology, its Related Bodies Corporate, and their respective contractors or suppliers to use, store, manipulate or otherwise deal with those individuals’ Personal Information for any purpose connected with this agreement, and that such usage may include transferring the data overseas to any of Prescience Technology’s or its contractors’ or suppliers’ Related Bodies Corporate, or their respective contractors, for any use, storage, manipulation or dealing for any purpose connected with this agreement.
Prescience Technology is not permitted to make any, and makes no, representation or warranty in connection with Oracle, the programs, the future availability of programs or the technical support services on this Order Form or otherwise. You acknowledge and agree that no such representation or warranty has been given to you, and that in entering into this agreement, and any Oracle Agreement, you have not relied on any representation or warranty that is not set out on this Order Form or the applicable Oracle Agreement(s). Except for any non-excludable warranties that are implied by law, the only warranties in respect of the Oracle programs or technical support services are those provided by Oracle under the relevant Oracle Agreement.
To the extent permitted by law, Prescience Technology is not liable to you in contract, tort, breach of statutory duty or otherwise, in respect of any loss, damage or expense arising out of or in connection with this agreement, the Oracle programs and/or technical support services or the relationship between the parties, for an amount that exceeds $5,000.
Prescience Technology is not liable for any indirect or consequential loss, nor for any loss or profits or revenue.
Each party is an independent contractor. Prescience Technology is not an agent of you or of Oracle.
This agreement is subject to the substantive and procedural laws of Queensland and the parties submit to the exclusive jurisdiction of, and venue in, the courts in Brisbane in any dispute that arises in connection with this agreement or the relationship between the parties.