General Terms and Conditions

1.0 Definitions

In these general terms and conditions, unless the context otherwise requires:

Acceptance means the Customer’s acceptance of a Proposal relating to (i) an offer from RobobAI to provide Service(s) and/or (ii) any change to a Proposal previously accepted by the Customer.

Note: For clarity a Proposal, once accepted by the Customer, results in a binding contract between the Customer and RobobAI relating to the subject matter of the Proposal.

Affiliate means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.

Note: "Control" for the purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity, provided that any such Affiliate will be deemed an Affiliate only for so long as such control lasts.

Authorised User means a person authorised by the Customer to use the Platform and to whom have been issued unique user identifications and passwords.

Note: The number of Authorised Users affects the cost of the Services provided and such number will be as agreed from time to time.

Claim means any claim (including any demand, action, cause of action, proceeding, suit, litigation, arbitration, judgment, verdict) regardless of how or when it arises, whether based in contract, tort or under statute, whether at law or in equity, and regardless of jurisdiction.

Commencement Date means the date on which a Subscription Service commence.

Note: The Customer may have Subscription Services that start at different times (as, for example, where there is a change to an existing Subscription Service or further Modules are added). Where there are Subscription Services that have a different Commencement Date, this will be established by reference to the applicable Proposal.

Confidential Information (of a person) means any information: 

     a. regarding the business or affairs of that person or its Affiliates;

     b. regarding the commercial arrangements between the RobobAI and the Customer; and

     c. which the recipient knows, or ought to know, is confidential.

Consulting Fee means the fee payable by the Customer to RobobAI from time to time for provision of Consulting Services.

Consulting Services means professional consulting services, managed services and other ancillary services that RobobAI provides to the Customer in addition to or as part of the Subscription Services.

Customer means the organisation (including those authorised by it to access and use the Customer’s Platform account) to which RobobAI provides one or more Services, as identified in the applicable Proposal.

Customer Data means the data sets or other information provided by (or on behalf of) the Customer to RobobAI (including data sets and information that the Customer has sourced from third parties).

Note: RobobAI will not, unless otherwise agreed in the Project Plan, verify, modify, enhance, reconcile or translate any Customer Data.

Default Interest means the sum of the Reserve Bank of Australia Cash Rate Target plus 5%.

Note: The Reserve Bank of Australia Cash Rate is published here.

Deliverable means any Material or other work product, other than the Platform and/or any Extractor, that RobobAI agrees to supply to the Customer pursuant to a Proposal.

Dependency means the provision, as specified in the applicable Proposal, of any:

     a. information, data and/or other like inputs; and/or

     b. goods and/or services, on which the provision of Services to the Customer is dependent.

Development Fee means the fee payable by the Customer to RobobAI from time to time for provision of Development Services.

Development Services means the provision of software development services to a Customer.

Documentation means all written or other visual documents relating to the operation and use of the Platform, as made available from time to time by RobobAI, comprising:

Extractor means software functionality designed to facilitate the extraction of data from ERP and like platforms and the Ingestion of that data into the Platform.

Evaluation Period means a period not exceeding 30 days from the Commencement Date during which a customer may evaluate the features of and its use of the Platform.

Fee means any one or more of the Subscription Fee, the Development Fee, the Services Fee and any other fee payable by the Customer to RobobAI as specified in the applicable Proposal.

General Terms means these general terms and conditions as amended by any express variation agreed in writing by RobobAI and the Customer.

Government Agency means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.

Indirect Loss means Losses which do not arise naturally (that is, according to the usual course of things) from the relevant breach of these General Terms including loss of profits or revenue, loss of goodwill or reputation, loss of anticipated benefits or savings, loss of any prospect or business opportunity, loss of production or other business interruption loss.

Ingestion means the loading to the Platform of Customer Data.

Intellectual Property Rights means all current and future intellectual property rights including copyright, trademarks, designs, patents, including any application or right to apply for registration of any such rights whether created before or after the date of the agreement, and whether registered or unregistered, existing in Australia or otherwise.

Law means any:

     a. Commonwealth, State, Territory or local government legislation in force in Australia or any law of a foreign jurisdiction applicable to the Platform, including regulations, by-laws, declarations, ministerial directions and other subordinate legislation; and

     b. common law; and Government Agency requirement or authorisation (including conditions in respect of any authorisation).

 

Limitation Amount means, in relation to a Customer Claim made in respect of a Service provided by RobobAI, the sum of the Fees paid to RobobAI by the Customer for that Service in the 12 months prior to the date on which the cause of action giving rise to the Customer Claim first arose.

Loss includes any liability, damage or costs.

Material means written or other human readable or machine-readable expressions of information, designs, models, software (including source and object code), data and know how.

Module means an individual module, containing dashboards, dashlet and insights through which Customer Data is presented and made available on the Platform.

Moral Rights means the right of integrity of authorship, the right of attribution of authorship and the right not to have authorship falsely attributed as conferred by the Copyright Act 1968 (Cth).

Pass-Through Terms means the terms and conditions under which Third Party Data and other services are supplied to RobobAI for it to include within the Services RobobAI provides.

Personal Information means information about an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, by reference to an identifier or one or more factors specific to the identity of that natural person.

Platform means the RobobAI supply chain intelligence software-as-a-service platform as described in the applicable Proposal.

Platform Outputs means from time to time the output of the Platform (including data presented on the Platform) that is accessible by the Customer and Authorised Users.

Privacy Legislation means:

     a. the Privacy Act 1988(Cth); and

     b. any other similar legislation anywhere in the world - to the extent that such legislation applies to the collection, storage and use of Personal Information by the Customer or RobobAI (such as General Data Protection Regulation EU and California Consumer Privacy Act) from time to time.

Project Plan means the written plan agreed between RobobAI and the Customer relating to the Initial Ingestion of Customer Data and the Customer’s onboarding to the Platform (including Customer Dependencies).

Proposal means any written proposal provided by RobobAI to the Customer containing details of Service(s) to be provided by RobobAI.

Note: Each Proposal includes all materials available through any hyperlinks in the Proposal.

Purpose means the purpose of RobobAI providing the Services (or any one or more or part of them) and ensuring the functioning of the Platform.

Rate Card is the document published by RobobAI from time to time that which sets out the Fees payable for the Services provided under these General Terms.

Note: The minimum blended daily Fee (i) for Consulting Services provided by RobobAI’s offshore personnel is AUD750 per person per day; and (ii) for Consulting Services provided by RobobAI’s Australian personnel is AUD2,000 per person per day.

Refresh means an Ingestion of Customer Data that:

     a. occurs after the first Ingestion; and

     b. is an incremental Ingestion of additions and changes to the Customer Data that was the subject of the first Ingestion.

RobobAI means RobobAI Pty Ltd (Australian Business Number: 16 621 681 776).

RobobAI Background Materials means all Materials which are:

     a. owned by RobobAI, or licensed to RobobAI; and

     b. developed or acquired by RobobAI.

RobobAI Provider means an entity which provides content, products, data or services to RobobAI to assist or enhance Platform functionality.

Services means any one or more of the Consulting Services, the Development Services and the Subscription Services and includes any agreed change to such services agreed.

Note: Consulting Services and/or Development Services may be provided by RobobAI even if it is not providing Subscription Services to the Customer.

Subscription Fee means the recurring amount payable by the Customer for Subscription Services.

Subscription Renewal Date means each anniversary of the Commencement Date or such other renewal date that is specified in the applicable Proposal.

Subscription Services means the provision of the Platform by RobobAI for use by the Customer (including Modules made available on the Platform) and as specified in the applicable the applicable Proposal.

Note: In addition to the Platform, Subscription Services will include Ingestion and Refreshes (of Customer Data) as specified and may include (i) use of Extractor(s) and (ii) provision of Consulting Services.

Support means the technical support provided by RobobAI as described in the Documentation.

Term means the period of time, during which Subscription Services, Consulting Services and/or Development Services (as the case may require) are provided by RobobAI to the Customer.

Note: This period of time is as specified in the Proposal relating to the applicable Service and the Evaluation Period is part of the first year of the Term.

Third Party Data means data that is not provided by the Customer but is sourced by RobobAI from:

     a. RobobAI Providers; and/or

     b. other persons who subscribe to the Platform.

Transaction Volumes applicable to a Customer will be specified in the applicable Proposal by reference to the Customer’s Spend Value in billions of the applicable currency and the number of Transaction Lines.

Note: Maximum transaction volumes implied by the Spend Value will be:

     a. AUD 1 Billion – Maximum Transaction lines 250,000;

     b. USD 1 Billion – Maximum Transaction lines 350,000;

     c. EUR 1 Billion – Maximum Transaction lines 350,000;

     d. GBP 1 Billion – Maximum Transaction lines 450,000; or

as otherwise agreed in the Proposal.

UNSPSC means the United Nations Standard Products and Services Code - a multi-sector standard for efficient, accurate classification of products and services.

Updates means RobobAI’s updates of the Platform for repairs, enhancements or new features, including updates to the Documentation as a result of such updates.

 

2.0 Interpretation

2.1 In these General Terms, unless the context otherwise requires,

     a. words denoting any gender include all genders;

     b. headings are for convenience only and do not affect interpretation;

     c. the singular includes the plural and vice versa;

     d. any schedule attached to these General Terms forms part of it;

     e. a reference to a party includes its successors and permitted assigns;

     f. a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it  comprises a separate legal entity; and

     g. a reference to a statute or other Law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them.

2.2 Provision of the Services includes the reproduction, use, processing, visualisation, transfer and storage of Customer Data.

2.3 The Documentation is incorporated and forms part of these General Terms.

2.4 The Services will be provided in the English language except where Spend Data is in a language other than English. In this case Spend Data will be neither translated nor classified unless translation is otherwise expressly specified in the applicable Proposal. In this case, translation of the Spend Data will be limited to use of an online tool to effect the translation from the original language to English and back to the original language after classification has occurred (unless the classified Spend Data is to remain in the English language).

2.5 Each Authorised User who signs an acceptance of the General Terms when logging in to the Platform is deemed to be authorised to sign the acceptance on behalf of, and bind, the Customer.

2.6 To the extent that any clause in these General Terms is inconsistent with any written agreement between and signed by RobobAI and the Customer, the provisions of that written agreement will prevail to the extent of the inconsistency.

 

3. Services

Proposals

3.1 The commercial details of any Services provided by RobobAI to the Customer (including any change to such Services) will be the subject of one or more Proposals.

3.2 The commercial details recorded in a Proposal:

     a. will include details of any Dependencies (for which RobobAI is not responsible).

     b. will include the process which the Customer and RobobAI will follow if the Customer is entitled to approve a Deliverable.

     c. will include details of the specifications of any Deliverable to be supplied to the Customer by RobobAI.

     d. will identify any Third Party Data that will be provided by RobobAI.

Subscription Services

3.3 The ability of the Customer to access insights and make use of the Platform features subscribed to is dependent on both the Ingestion of Customer Data into the Platform and the quality of the Customer Data ingested.

3.4 Provision of Subscription Services, the subject of an applicable Proposal, commences on the Commencement Date and continue until the Subscription Renewal Date.

3.5 On each Subscription Renewal Date, the Subscription Services will automatically renew for a further Term (as specified in the applicable Proposal) - unless the Customer gives written notice to RobobAI no less than 30 days prior to the applicable Subscription Renewal Date.

3.6 Each Proposal relating Subscription Services will specify the limit of Transaction Volumes applicable to the Customer.

Consulting Services

3.7 Provision of Consulting Services, the subject of an applicable Proposal, commences on the date specified in that Proposal and continue until the Consulting Services have been completed or in accordance with clause 14.

3.8 The scope of the Consulting Services, the Consulting Fees payable in respect of those Consulting Services and any other terms relating to those Consulting Services will be as specified in the Proposal relating to those Services.

Development Services

3.9 Provision by RobobAI of Development Services, the subject of an applicable Proposal, commences on the date specified in that Proposal and continue until the Development Services have been completed or in accordance with clause 14.

3.10 The scope of the Development Services, the Development Fees payable in respect of those Development Services and any other terms relating to those Development Services will be as specified in the applicable Proposal relating to those Services.

Classification Services

3.11 Customer Data will be classified by RobobAI, after its Ingestion, in accordance with the UNSPSC.

3.12 Classification will be carried out on the basis of PO Description; Invoice Description; Material Groups; GL Accounts or Vendor Names, as specified in the applicable Proposal.

Third Party Data

3.13 The following provisions apply to Third Party Data provided to the Customer through the Platform:

       a. Third Party Data is licensed to RobobAI for inclusion in the Platform and the owners of the Third Party Data do not relinquish their ownership of intellectual  property rights (including copyright) subsisting in the Third Party Data they supply.
       
       b. The Customer must not infringe the intellectual property rights (including copyright) which subsist in the Third Party Data.
 
       c. The Customer acknowledges and agrees that Robobai is entitled to comply with its obligations under its agreement with the Third Party Data       
           supplier, to report on the existence of the Customer’s Subscription.

       d. the Customer must:
 
           i. only use the Third Party Data in conjunction with its use of the Platform;
 
           ii. not sell, transfer, disclose or otherwise make available the Third Party Data to any other person; and
 
           iii. not use the Third Party Data for any permissible purpose under any applicable state or national fair credit reporting Laws, including the Fair Credit Reporting Act, 15 U.S.C. §1681, et seq.
 
       e. the Customer acknowledges that, unless otherwise expressly stated:
 
           iv. no provider of Third Party Data is a “consumer reporting agency”; and
 
           v. the Third Party Data does not constitute a “consumer report” or “investigative consumer report” as such terms are defined in any applicable state or national fair credit reporting Laws, including the Fair Credit Reporting Act, 15 U.S.C. §1681, et seq (FCRA), and agrees not use the Third Party Data for any permissible purpose under any applicable state or national fair credit reporting Laws, including the FCRA.
 
       f. the Customer agrees to indemnify each supplier of Third Party Data in respect of any loss or damage suffered arising out of any breach by it of clause
          3.13(e).
 
 

4. Fees

4.1 The Customer agrees to pay all Fees as specified in each applicable Proposal but, if not so specified, then:

      a. Fees for Consulting and Development Services are invoiced in advance and are payable within 14 days of invoice; and

      b. Fees for Subscription Services are invoiced annually in advance and, subject to clause 3.7, are payable within 14 days of invoice.

4.2 If a Customer fails to make payment of Fees under clause 4.1 when due, without limiting RobobAI’s other rights and remedies:

       a. RobobAI may charge Default Interest on unpaid amounts;

       b. the Customer must reimburse RobobAI for reasonable costs incurred in enforcing this clause, including legal fees; and

       c. RobobAI may suspend the provisions of any or all Services to the Customer (including the Customer’s access to the Platform) until all payments in                  arrears have been made and Fees will continue to fall due for payment during the period of any suspension.

4.3 Fees for the Services are as published by RobobAI on the Rate Card as published by RobobAI from time to time or as specified in the applicable Proposal.

 4.4 Fees may be specified in a Proposal as an estimate (based on stated assumptions and/or anticipated volume of Customer Data to be processed and transformed by RobobAI). In this case, RobobAI will invoice the Customer for any additional Fees that become due and payable as a result of and to the extent of any variance in the stated assumptions and/or anticipated volume.

4.5 Unless expressly agreed in the applicable Proposal, Fees are based on:

       a. the provision of Customer Data to RobobAI:

           i. in a single file (in a format approved by RobobAI)
 
           ii. in respect of an agreed entity; and
 

           iii. from an agreed source

       b. the Customer Data classification format requested by the Customer and the other aspects of the Customer’s onboarding process recorded in the Customer’s Project Plan.

4.6 Unless agreed in the applicable Proposal or Project Plan, RobobAI may charge additional Fees to the Customer in the event that:

       a. additional Ingestions or Refreshes (of Customer Data):
 
           i. are requested by the Customer relation to additional entities, sources of Customer Data or otherwise;
 
           ii. are required as a result of the quality and/or content of the initial file of Customer Data not being in the required format or other being satisfactory
               for processing by RobobAI; or
 
           iii. are required because of an agreed change to the Customer’s Project Plan.
 
       b. a bespoke classification (not in accordance with the UNSPSC) of Customer Data is required by the Customer.

 

 
4.7 Periodical Refreshes, as specified in the applicable Proposal, are provided on a ‘use it or lose’ basis and:
 
       a. must be used within the Subscription period in which RobobAI agrees to provide them; and
 
       b. cannot be carried forward to subsequent Subscription periods.
 
4.8 Fees prepaid by the Customer for a Refresh are not refundable.
 

4.9 Fees, that are specified in the Rate Card or are recurring, will be increased by RobobAI (but not more than once in in each 12-month period). Any such increase will be by not more than the greater of (i) the proportionate increase in the Consumer Price Index (All Groups) Sydney over the preceding 12-month period and (ii) 3%.

4.10 Fees do not include sales tax, consumption tax or other taxes (including GST) or withholding tax as may be required by RobobAI to collect, unless otherwise specified.

4.11 To the extent that payments to be made by the Customer are subject to a sales tax, consumption tax or a withholding tax (including GST) the amount of such tax will be shown as a separate item on the relevant invoice and will be added to the Fee. 

4.12 If an applicable Proposal includes an Evaluation Period the Customer may cancel the Subscription in writing at any time during the Evaluation Period. If not cancelled, the Customer will be invoiced at the end of the Evaluation Period for the full Subscription Fee as set out above.

 

5.0 RobobAI Responsibilities

5.1 RobobAI will, in the performance of any Services:

      a. comply with Laws applying to the provision of the Services, including the Privacy Legislation;

      b. act in a diligent and professional manner;

      c. obtain and maintain any applicable licences and permits required for the provision of the Services;

      d. comply with such of the Customer policies and procedures (including those relating to security, workplace health and safety and privacy) as notified             to the RobobAI in writing;

      e. perform the Services with due care and skill, in a proper and professional manner consistent with customary industry practices; and

      f. not infringe the intellectual property rights or moral rights of any third party.

5.2 Any Deliverable supplied by RobobAI:

      a. will materially conform with the specifications therefor as recorded in the applicable Proposal;

      b. will be provided to the Customer free from any charges, security interests or other encumbrances;

      c. will not infringe the rights of any third party; and

      d. will not knowingly contain any viruses, worms, trojans or disabling code.

5.3 RobobAI may enhance and/or alter the features of the Platform from time to time in its absolute discretion provided that in doing so there is no material adverse change to the functionality of the Platform.

 

6. Customer Responsibilities

6.1 The Customer must transfer its Customer Data, that is to be loaded to the Platform, to the SFTP location and in accordance with the timing and form notified to the Customer in writing by RobobAI.

6.2 The Customer, in respect of the Services provided to it (including use of Third Party Data), must:

      a. comply with applicable Laws;

      b. in respect of any Third-Party Data made available to it, comply with the Pass-Through Terms of that third party – as notified to the Customer;

      c. not infringe the Intellectual Property Rights of RobobAI or any RobobAI Provider;

      d. not share its login credentials for the Platform with any person, other than its Authorised Users;

      e. promptly notify RobobAI in writing if the Customer becomes aware of any unauthorised access to or use of the Platform or any Extractor by any person;

      f. not (and must ensure that Authorised Users do not) violate any export embargo, prohibition, restriction or other similar Law in connection with these General Terms;

      g. adhere to usage policies published by RobobAI and any instructions given to the Customer in the Documentation;

      h. not transfer, resell, reframe, distribute or on-sell the Platform, any Extractor or the Documentation;

      i. not include the Platform or any Extractor in any service bureau or outsourcing or managed service offering;

      j. not modify or translate or adapt or create copies or derivative works of the Platform or any Extractor;

      k. not reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Platform or any Extractor; 

      l. not tamper with or hinder the operation of the Platform;

      m. not perform any unauthorised penetration testing on the Platform or perform any testing of the Platform to determine and/or assess its capacity;                 and

      n. not use the Platform to access services other than the Modules the Customer is authorised to use.

6.3 The Customer is responsible for:

      a. giving to RobobAI such information, facilities and services (whether provided by the Customer or another third-party supplier engaged by the  Customer) as RobobAI reasonably requires and in a timely manner for it to provide the Services to the Customer;

      b. checking and verifying the accuracy and completeness of any Customer Data loaded onto and presented on the Platform that has been Ingested or  Refreshed (and warrants to RobobAI that it will do so); and

 

      c. the fulfillment of any Dependency for which the Customer is nominated as being responsible in the applicable Proposal.

 

6.4 The Customer must notify RobobAI in writing if any claim is made against the Customer in relation to its use of the Platform.

6.5 The Customer grants to RobobAI a royalty free, non-exclusive, perpetual, world-wide licence to use any improvements proposed, or other suggestions made, by the Customer in respect of the Platform.

6.6 The Customer acknowledges that use of the Platform may be monitored by RobobAI.

 

7. Data Governance

7.1 The Customer:

     a. has sole responsibility for:
  

          i. the accuracy, quality, integrity, legality, reliability and appropriateness of Customer Data provided to RobobAI; and

          ii. the right for it and RobobAI to use the Customer Data, provided by it or on its behalf to RobobAI; and

     b. represents that it has and will continue to have all rights and consents necessary to allow RobobAI to use all such Customer Data as contemplated by these General Terms.

7.2 The Customer:

      a. subject to the formatting requirements specified in clause 4.5(a)(i), has sole control over the selection of the content and extent of the Customer  Data that is provided to RobobAI for loading onto the Platform;

      b. grants to RobobAI a perpetual royalty-free, non-exclusive, transferable worldwide licence to reproduce, use, process, transfer and store such  Customer Data for the Purpose; and

      c. warrants to RobobAI that such Customer Data does not and will not contain Personal Information.

7.3 RobobAI may share Customer Data with a RobobAI Provider for the Purpose.

7.4 RobobAI may collect, use and disclose qualitative and quantitative data derived from the use and operation of the Platform for the purpose of undertaking and publishing industry analysis, benchmarking, analytics and other business purposes.

7.5 Unless notification is restricted by Law, RobobAI will give written notice to the Customer of any unauthorised acquisition, access, use, disclosure or destruction of Customer Data (Breach) promptly after RobobAI determines that a Breach has occurred.

7.6 Unless prohibited by Law, RobobAI will share information about the nature of the Breach that is reasonably requested by the Customer to enable the Customer to notify affected persons and Government Agencies. The Customer is responsible for determining whether to notify impacted individuals and the applicable Government Agencies and for providing such notice.

7.7 RobobAI must:

      a. comply with all applicable Privacy Legislation (and such other data protection laws and codes of conduct) as may be in force from time to time which regulate the collection, storage, use and disclosure of Customer Data;

      b. not cause the Customer to be in breach of applicable Privacy Legislation (and such other data protection laws and codes of conduct);

      c. not collect or use any Customer Data other than for the purpose of performing activities contemplated under these General Terms and

      d. restrict access to any Data to such of its personnel who need to access the Data to fulfil RobobAI’s obligations to the Customer.

7.8 RobobAI may disable features of the Platform in response to a request from the Customer or in response to a threat (anticipated or actual) of a Breach.

7.9 If the Customer believes that Customer Data may include Personal Information and wishes to enter into a Data Processing Addendum with RobobAI to satisfy legal requirements of the UK and EU General Data Protection Regulations, relating to the onward transfer of Personal Information outside the UK and EU, the Customer may do so by accepting RobobAI’s Standing Offer to enter into a Data Processing Addendum.

 

8. Representations

 

8.1 Each party represents to the other party that each of the following statements is true and accurate at the date of the applicable Proposal:

     a. it is validly existing under the laws of its place of incorporation or registration;

     b. it has the power to enter into and perform its obligations under these General Terms;

     c. it has taken all necessary action to authorise its entry into and performance of these General Terms; and

     d. the performance by it of its obligations under these General Terms will not result in:

         i. a breach of, or constitute a default under, any agreement, arrangement, constitutional document or encumbrance to which it is party
            or by which it is bound; or 

         ii. a breach of any Law or order, judgment or decree of any court, Government Agency or regulatory body.

     e. Each party represents that it is not named on any government list of persons or entities prohibited from receiving exports. Further, RobobAI reserves the right to limit access to the Platform if a Customer is found to be in breach of any international trade restrictions.      

     f. The Customer represents that it is acquiring the right to use the Platform for business purposes and in its dealings with RobobAI is not a consumer.

 

9. Intellectual Property

 

9.1 Unless otherwise expressly agreed in the applicable Proposal, RobobAI retains, and the Customer acquires no, title, copyright or other proprietary or intellectual property rights subsisting in any Materials developed as a result of the provision by RobobAI to the Customer of the Services (including Ingestion).

9.2 As between RobobAI and the Customer, RobobAI retains, and the Customer acquires no, title, copyright or other proprietary or intellectual property rights in or to the Platform or any improvements to the Platform as a result of the provision of the Subscription Services.

9.3 RobobAI grants to the Customer a perpetual, royalty-free, non-exclusive, transferable and worldwide licence to:

      a. reproduce, use, process, transfer and store data, derived from its use of the Platform, solely for the purposes of enabling the Customer to enjoy the                 benefit of the Subscription Services during the period the Subscription Services are provided to the Customer; and

      b. use and enjoy the benefit of any Materials developed as a result of the provision by RobobAI of Consulting Services and or Development Services to the Customer.

 

10. Confidentiality

 

10.1 This clause 10 supersedes the provisions of any existing agreement between the Customer and RobobAI relating to the disclosure and use of confidential information.

10.2 In this clause, Customer Confidential Information:

        a. means information which, any time before or after the date of an applicable Proposal, is provided by or on behalf of the
            Customer to RobobAI in writing and that is identified as being confidential; but
       
        b. does not include information so disclosed that:
           
            i. is or becomes lawfully available to the public; or
 
            ii. was known to RobobAI prior to the date of it being provided to it by the Customer;
     
            iii. is disclosed to RobobAI by a third party having the right to make such disclosure.
 
        c. RobobAI undertakes, in relation to Customer Confidential Information (i) to keep it confidential, (ii) not to disclose it to third
            parties without the Customer’s written consent and (iii) to use it for the Purpose and in accordance with these General Terms.
 
        d. RobobAI may disclose Customer Confidential Information to its officers, employees and contractors who have a specific need to
            know the Customer Confidential Information and who are obliged to keep it confidential. RobobAI is liable to the Customer for
            any unauthorised disclosure of the Customer Confidential Information by its officers, employees and contractors.
                                                                                     
        e. RobobAI may disclose Customer Confidential Information to the extent required by Law, any applicable accounting standards,
            the rules of any stock exchange or order by any court provided the receiving party (where practicable):
 
            i. notifies the disclosing party as soon as possible after it becomes aware that it may be required to disclose Confidential Information;
 
            ii. consults with the disclosing party with a view to agreeing the form, content, timing and manner of disclosure, including taking into account any actual basis that the disclosing party may have to prevent or restrict disclosure; and
 
            iii. gives all reasonable assistance and co-operation the disclosing party considers necessary to ensure that as far as possible the extent of disclosure of the Confidential Information is strictly limited to that required.
 
 

11. Insurance

 

11.1 RobobAI will maintain during the Term:

     a. Professional Indemnity Insurance – providing cover for the financial consequences of neglect, error or omission on the part of RobobAI;
 
     b. Cyber-liability Insurance – providing cover for financial losses arising from the loss, destruction or corruption of Customer Data (including but not limited to privacy and data security breaches); and
 
     c. Workers Compensation Insurance – providing cover in respect of RobobAI’s employees pursuant to applicable Laws, and at the minimum limits statutorily required.


11.2 Upon request, RobobAI will promptly provide to the Customer a certificate evidencing the coverages described in clause 11.1.

 

12. Excusable Events

 

12.1 RobobAI will not be liable or responsible to the Customer and will not thereby be in breach of these General Terms, as a result of any failure or delay on RobobAI’s part in fulfilling or performing any term of these General Terms when and to the extent such failure or delay is caused by or results from acts beyond the RobobAI’s reasonable control (each an Excusable Event).

12.2 An Excusable Event includes without limitation: strikes, lock-outs or other industrial disputes (whether involving the workforce of RobobAI or a third party), trespassing, sabotage, theft or other criminal acts, cyber-attacks, failure of energy sources or transport network, acts of God, export bans, sanctions and other government actions, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics, pandemics or similar events, natural disasters or extreme adverse weather conditions

12.3 If an Excusable Event occurs, RobobAI will use reasonable efforts to mitigate against the effects of such Excusable Event on the Customer.

 

13. Liability

 

13.1 Terms, conditions, warranties and guarantees implied by Law, which cannot be excluded, restricted or modified, apply to these General Terms to the extent required by that Law.

13.2 RobobAI excludes, to the extent permitted by Law, all other terms, conditions, warranties and guarantees which might be implied into these General Terms.

13.3 RobobAI bears no responsibility and is not liable to the Customer, or any Authorised User accessing the Platform, for:

        a. any errors or omissions which occur in the Ingestion (of Customer Data);

        b. the extent and/or quality and/or content of Customer Data provided to RobobAI for Ingestion to the Platform; and/or

        c. the use of or reliance on any Platform Outputs by the Customer or Authorised Users.

13.4 RobobAI bears no responsibility and is not liable to the Customer as a result of the Customer authorising directly or through RobobAI (i) its officers, employees or contractors or (ii) any other third parties to access/use the Platform.

13.5 The total and aggregate liability of RobobAI and RobobAI Providers for loss suffered or sustained by the Customer in connection with the provision of the Services under these General Terms (i) whether arising as a result of breach of contract, in tort (including negligence) or under statute and (ii) whether or not arising pursuant to an indemnity in these General Terms, is limited:

        a. in those cases where the Law (including the Australian Consumer Law) restricts RobobAI’s ability to limit its liability, to:

            i. supplying its services again; or

            ii. the payment of the cost of having those services supplied again; and

        b. in all other cases, to the Limitation Amount.

13.6 The Customer does not rely on any representation, warranty or other provision made by RobobAI or on its behalf which is not expressly stated in these terms.

13.7 Data, analysis and other information provided by RobobAI to the Customer in providing any Services (including Platform Outputs):

       a. may be subject to change by RobobAI or RobobAI Providers from time to time;

       b. is provided “as is” and to the extent permitted by Law, is provided without warranty of any kind, expressed or implied, including (but not limited to) any implied warranties of merchantability, fitness for any particular purpose, or non-infringement;

       c. may include errors or inaccuracies; and

       d. is not to be interpreted as implying any negative inferences, about entities or subjects of Customer Data referred to within the Platform, merely due to their inclusion of a function of the Platform.

13.8 RobobAI and RobobAI Providers do not and will not accept any responsibility for any Loss that is or may be incurred as a result of:

       a. any error, misrepresentation and or omission that is, was, or may be contained Customer Data provided to RobobAI by the Customer;

       b. the failure of any Dependency to be supplied or completed by a required date or at all; and/or

       c. the Customer’s failure to transfer its Customer Data to the nominated SFTP location and/or in the specified format in a timely manner or at all.

13.9 Neither party is liable to the other for any loss suffered by the other party that is an Indirect Loss.

13.10 Any claim (howsoever arising) whether for breach of contract, in tort (including negligence) or under statute made by the Customer under these General Terms against RobobAI (i) must be notified in writing to RobobAI no later than the first anniversary of the date on which the event (or the first in a series of events) giving rise to the cause of action occurred and (ii) if notice is so given, proceedings must be commended within 180 days of notice being given.

 

14. Indemnities

 

14.1 The Customer indemnifies and holds harmless RobobAI, RobobAI Providers, their respective Affiliates and their respective officers, directors, employees, representatives, agents, successors and assigns from and against any and all Loss arising from any:

       a. investigation by any Government Agency;

       b. internal investigation; and/or

       c. civil, legislative, administrative, regulatory or criminal proceeding(s),
commenced or asserted against RobobAI arising from, related to or in connection with any act or omission by the Customer or anyone acting on the Customer’s behalf that violates any applicable Law.

14.2 RobobAI will indemnify and defend the Customer, its respective officers, directors, employees, representatives, agents, successors and assigns against any Claim that alleges the Platform infringes the Intellectual Property Rights of any third party.

14.3 If RobobAI reasonably believes that the Customer’s use of the Platform is likely to be prevented or it is prevented by any Claim of infringement then RobobAI may, at its expense and in its sole discretion:

       a. procure for the Customer the right to continue using the Platform;

       b. replace the Platform with another Platform having substantially equivalent functions that are not subject to any Claims of infringement; or
 
       c. modify the Platform so that there is no longer any infringement, provided that such modification does not materially and adversely affect the functional capabilities of the Platform.
 
If (a), (b) and (c) above are not available on commercially reasonable terms in RobobAI’s judgment, RobobAI may terminate the Subscription and refund to the Customer the fees paid by the Customer covering the remaining portion of the applicable Term after the date of termination.


14.4 The obligations of RobobAI under this clause do not apply:

        a. to the extent the Claim arises in connection with any unauthorised use of the Platform, or use that is not in compliance with any applicable Laws  and/or Documentation; or
 
        b. any Claims arising as a result of the content of Customer Data.


14.5 Subject to clause 14.4, the Customer will:

        a. indemnify defend RobobAI, its officers, directors, and employees against any Claim that arises from Customer Data or that relates to a dispute between the Customer and its suppliers; and

        b. pay any court-ordered award of damages or settlement amount which may include any expense, liability, loss, damage, costs, or reasonable attorneys' fees, each to the extent payable to a third party, to the extent arising from such Claims.

14.6 Each party's indemnity obligations under this clause are subject to the following:

        a. the indemnified party must promptly notify the indemnifier in writing of any Claims;

        b. the indemnifier will have sole control of the defence and all related settlement negotiations with respect to any Claims (provided that the indemnifier may not settle any Claims that require the indemnified party to admit any liability or incur any financial obligation without the indemnified party’s consent, which consent shall not be unreasonably withheld, delayed or conditioned); and

        c. the indemnified party must co-operate fully to the extent necessary at the indemnifier’s cost in such defence and settlement.

 

15. Termination

 

15.1 RobobAI may terminate the provision of Services, by written notice to the Customer (such notice to take effect immediately) if one or more of the following events occur:

       a. Fee(s) that have become payable are not paid in accordance when due and remain unpaid for a period of more than 14 days;
 
       b. the Customer is in breach of any of its obligations under these General Terms; or
 
       c. the Customer become, or threatens to become, insolvent.
 

15.2 The Customer may terminate the provision of Services, by written notice to RobobAI (such notice to take effect immediately) if one or more of the following events occur:

       a. RobobAI commits a material breach of these General Terms that is capable of remedy, and fails to remedy that breach within 28 days from the date the Customer notified RobobAI of the breach; or

       b. RobobAI becomes, or threatens to become, insolvent.

15.3 To the extent that termination relates to Consulting Services and/or Development Services are being provided to the Customer, RobobAI is entitled to: (i) the Fee(s) due and payable to it for such Services in respect of the period up to the termination date in accordance with the applicable Proposal; and (ii) any fees required to recover any and all reasonable costs relating to such Services that have been incurred by it prior to the date of termination that would have been, but for the termination, recovered over the term of the applicable Proposal.

 

16. After Termination

 

16.1 Notwithstanding the termination of a Subscription the rights and obligations within clauses 1 (Definitions), 2 (Interpretation), 7 (Data Governance), 9 (Intellectual Property), 10 (Confidentiality), 13 (Liability),14 (Indemnities), 16 (After Termination) and 17 (General) will continue and remain enforceable in accordance with their terms.

16.2 RobobAI will, at the Customer’s express request, either:

        a. within 60 days after the date of termination of a Subscription at the Customer’s cost, provide to the Customer a copy of any Customer Data held by RobobAI; or

        b. delete any Customer Data held by RobobAI.

16.3 RobobAI may, at its discretion, continue to provide the Customer with access to the Platform after the date of termination of Subscription Services to enable the Customer to continue to have access only to historical Platform Outputs and on the basis that no further Ingestions or Refreshes will occur without a new Proposal being agreed.

17. General

17.1 During the provision of Services by RobobAI and for a period of 12 months thereafter, neither party for its benefit or the benefit of another shall directly or indirectly solicit or retain the services of the personnel of the other party involved in the provision of the Services.

17.2 Any notice given by a party under these General Terms must be in writing and delivered or sent by email to the recipient at

       a. in the case where RobobAI is the recipient, at: legal@robobai.com; and
 
       b. in the case where the Customer is the recipient, the address appearing in RobobAI’s account information relating to the Customer.
 

17.3 A notice is taken to be duly given and received:

       a. if delivered – on the date of delivery; or

       b. if delivered by email – on the Business Day after it is despatched provided that the sender does not receive a message to the effect that the sender is ‘out of office’ or that delivery has failed.

17.4 Neither party may assign any of its rights or obligations hereunder, whether by operation of Law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, delayed or conditioned).

17.5 Each party must (at its own expense) do all things as any other party asks as may be reasonably required or necessary to give the other party the full benefit of any obligations owed to the other party as expressed in these General Terms.

17.6 The Customer agrees that RobobAI may use its name and logo for promotion and marketing purposes.

17.7 These General Terms constitute the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings, and negotiations on that subject matter.

17.8 These General Terms can only be amended by a further written document signed by the Customer and RobobAI.

17.9 These General Terms are governed by and are to be construed in accordance with the laws applicable in New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia.

 

GTC v05 19.02.2024