LICENCE AGREEMENT

PARTIES

Pointpal Holdings Pty Ltd, trading as PiCoLabs ABN 56 153 371 076 of Level 3, 201 Kent Street, Sydney, NSW, Australia (PiCo)

AND (Subscriber)

BACKGROUND

A. The Subscriber is the operator or authorised agent of Retail Outlets.

B. PiCo offers the Services which, amongst other things:

a. intercepts and logs barcode scans to a retail Point-of-Sale (P.O.S) terminal; sends this data to a network based server to be stored forwarded and processed; and

b. allows Subscribers to centrally control pricing and promotions, tailor discounts and promotions to individual members and enable data capture and export.

C. The Subscriber wishes to acquire the Services for the Retail Outlets, and PiCo is willing to provide the Services for the Retail Outlets, on the terms of this agreement.

OPERATIVE PROVISIONS

  • 1. Term

    1.1. This agreement commences on the Subscription Date and remains in force, unless terminated earlier or extended in accordance with its terms.
  • 2. The Services

    2.1. PiCo will provide the Services to the Subscriber during the Term on the terms set out in this agreement.

    2.2. PiCo must supply the Services in accordance with:
    • 2.2.1. all applicable laws and regulations;
    • 2.2.2. any of the Subscriber’s policies and procedures as notified to the Supplier in writing from time to time; and
    • 2.2.3. any reasonable directions in relation to the Services given by the Subscriber from time to time.

    2.3. PiCo may, on reasonable notice to the Subscriber, change or modify the Services at any time.

    2.4. PiCo may provide new major functionality or features for the Services which the Subscriber may use at its discretion. The Subscriber acknowledges that PiCo may charge for any new major functionality or features which the Subscriber chooses to use.
  • 3. Hardware

    3.1. The parties agree that the provisions set out in Schedule 2 will apply to the Hardware.

    3.2. Subject to Schedule 2, PiCo may supply and install the Hardware in the Retail Outlets.

    3.3. The Subscriber must provide, or arrange for the provision of, such access to the Retail Outlets as PiCo may require for the purposes of PiCo installing and maintaining the Equipment.

    3.4. Risk in the Hardware passes to the Subscriber on installation of the Hardware in the Retail Outlet.
  • 4. Subscriber’s Responsibilities

    4.1. The Subscriber acknowledges and agrees that:
    • 4.1.1. It is solely responsible, at its cost, for providing all equipment (other than the Hardware), facilities and connectivity, including web browser, and internet access or telecommunications services, necessary to use and access the Services (Subscriber Systems);
    • 4.1.2. It must ensure that the Subscriber Systems comply with all minimum specifications notified to the Subscriber by PiCo from time to time;
    • 4.1.3. PiCo’s ability to provide the Services will be dependent on the Subscriber complying with its obligations to ensure that the Subscriber Systems are compatible with, and remain compatible with, the Services; and
    • 4.1.4. It is responsible for any person accessing or using the Services through the access provided to the Subscriber.
  • 5. Performance of the Services

    5.1. PiCo must provide the Services:
    • 5.1.1. with due skill and care; and
    • 5.1.2. using appropriately skilled and qualified personnel.

    5.2. Subject to clause 5.3, PiCo must use reasonable commercial efforts to provide the Support. 

    5.3. PiCo will not provide Support for any Hardware over 3 years old.
  • 6. Data

    6.1. PiCo will collect and electronically store Transaction Data that is transmitted by Retail Outlets in accordance with this agreement.

    6.2. The Subscriber may from time to time supply to PiCo a host file containing Scan Data for the sole purpose of allowing PiCo to:
    • 6.2.1. verify the accuracy of any Transaction Data; and
    • 6.2.2. make improvements to the manner in which Transaction Data is collected and stored and the Services provided by PiCo under this agreement.

    6.3. PiCo acknowledges and agrees that the Subscriber is the agent or owner of the Scan Data and the Transaction Data.

    6.4. The Subscriber grants to PiCo the right to use the Scan Data and Transaction Data for the purpose of PiCo providing the Services.

    6.5.  The Subscriber acknowledge that it is responsible for:
    • 6.5.1. the content of any Scan Data and Transaction Data supplied by it, a Retail Outlet or a Subscriber; and
    • 6.5.2. ensuring that PiCo is lawfully able to deal with the Scan Data and Transaction Data as contemplated by this agreement.

    6.6. PiCo may remove any of the Scan Data and Transaction Data if PiCo reasonably considers that it breaches any law or third party rights or otherwise does not comply with the terms of this agreement.

    6.7.  Subject to clauses 6.8 and 6.9, PiCo must not, without the Subscriber’s prior consent:
    • 6.7.1. use any Scan Data or Transaction Data for any purpose other than providing the Services; or
    • 6.7.2. disclose, sell, assign, license or otherwise dispose of Scan Data or Transaction Data to any third party.

    6.8. PiCo may disclose Scan Data and Transaction Data to external service providers (for example, database administrators), which may be based outside Australia or New Zealand, on a confidential basis and provided such service providers are limited in their use of the Scan Data or Transaction Data to the purpose of PiCo providing and supporting the Services and other services relevant to this agreement.

    6.9. The Subscriber acknowledges and agrees that de-personalised aggregated data collected from the Services may be disclosed, used and retained by PiCo for its business purposes.
  • 7. Fees

    7.1. The Subscriber must pay PiCo the Fees detailed in the Tax Invoice for Quickstart Package. 

    7.2.Payment of these Fees constitutes a binding agreement between the parties under the terms contained herein.

    7.3. PiCo will invoice the Subscriber for the Fees in accordance with the Tax Invoice for Quickstart Package issued for the Quickstart package, and the Subscriber must pay each such invoice within 30 days of the date of the invoice. 

    7.4. PiCo may increase the Fees on 30 June each year by issuing 1 month’s notice.

    7.5. The Fees will increase on 30 June each year in line with any increase in the All Groups CPI (or any replacement index).

    7.6. Amounts payable under or in connection with this agreement have been calculated without regard to GST. Accordingly:
    • 7.6.1. if the whole or any part of any such amount is the consideration for a taxable supply for which the payee is liable to GST, the payer must pay to the payee an additional amount equal to the first mentioned amount multiplied by the rate of GST;
    • 7.6.2. any reference to a cost or expense in this agreement excludes any amount inrespect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party can claim an input tax credit; and
    • 7.6.3. the payee will provide to the payer a tax invoice at the time of payment.

    7.7. Terms used in clause 7.6 have the meanings given to them in A New Tax System (Goods and Services Tax) Act 1999 (Cth)

    7.8. The Subscriber must pay PiCo interest at the Rate on each amount outstanding under this agreement.
  • 8. Confidential Information, Security and Privacy

    8.1.  Each party must during and after the Term of this agreement:
    • 8.1.1. keep the Confidential Information of the other party confidential;
    • 8.1.2. take all such reasonable precautions as may be necessary to maintain the confidentiality of the Confidential Information of the other party;
    • 8.1.3. only disclose the Confidential Information to those of its personnel, agents and sub-contractors who need to know for the purposes of this agreement:
    • 8.1.4. not otherwise disclose the Confidential Information without the prior written consent of the other party; and
    • 8.1.5. use the Confidential Information of the other party only as contemplated by this agreement.

    8.2. A party’s obligations under this clause 8 do not apply to any Confidential Information which:
    • 8.2.1. the party can show was in its possession at the time of disclosure to it and was not acquired in breach of an obligation of confidence or under an obligation of confidence;
    • 8.2.2. is in the public domain other than as a result of a breach of this agreement;
    • 8.2.3. is acquired from a third party, provided that it was not acquired by the third party unlawfully or in breach of an obligation of confidence; or
    • 8.2.4. is required by law to be disclosed.

    8.3. Each party must, immediately on demand from the other party and at the end of this agreement:
    • 8.3.1. deliver to the other party all Confidential Information of the other party which is capable of being transferred by delivery; and
    • 8.3.2. permanently delete all Confidential Information of the other party in electronic form stored on any computer or similar facility under the control of the party.

    8.4. PiCo will use commercially reasonable security measures consistent with industry standards (such as password and firewall protection and encryption of data in transit) in providing the Services.

    8.5. Both parties must comply with the Australian Privacy Act 1988 (Cth) in performing their obligations under this agreement.
  • 9. PiCo warranties

    9.1. PiCo warrants that:
    • 9.1.1. it has the right to enter into this agreement and perform the Services;
    • 9.1.2. it will comply with all laws in providing the Services and it holds all licences, permits, consents and authorisations required under any law in relation to the provision of the Services;
    • 9.1.3. the Services will be performed with due care and skill in a proper, workmanlike and professional manner; and
    • 9.1.4. the Hardware and any other goods, equipment or materials provided by it will be of acceptable quality and fit for purpose.

  • 10. Intellectual Property Rights

    10.1. The Subscriber acknowledges that:
    • 10.1.1. the Intellectual Property Rights in the Services and any related material (including all copies, modifications and derivative works) are owned or licensed by PiCo; and
    • 10.1.2. this agreement does not assign any Intellectual Property Rights in the Services to the Subscriber.

    10.2. Subject to clause 10.3, PiCo will:
    • 10.2.1. defend the Subscriber (at PiCo’s expense) against all claims made against the Subscriber by any third party alleging that the Subscriber’s use of the Services in accordance with the terms of this agreement, infringes the Intellectual Property Rights of that third party (Third Party Claim); and
    • 10.2.2. pay the costs and damages awarded based on any Third Party Claim or the amount of any settlement PiCo enters into regarding that Third Party Claim.

    10.3. PiCo’s obligations under clause 10.2 are subject to:
    • 10.3.1. the Subscriber promptly notifying PiCo of that Third Party Claim (and in any event no later than 7 days after receiving the Third Party Claim);
    • 10.3.2. PiCo being given sole control of the defence and settlement of the Third Party Claim; and
    • 10.3.3. the Subscriber providing all reasonably requested assistance for defence of the Third Party Claim.

    10.4.  If a Third Party Claim is made or, in PiCo’s reasonable opinion, is likely to be made, PiCo may, at its expense:
    • 10.4.1. procure for the Subscriber the right to continue using the Services under the terms of the agreement; or
    • 10.4.2. replace or modify the Services to be non-infringing without material decrease in functionality.

    10.5. If PiCo notifies the Subscriber that the options described in clause 10.4 are not reasonably available, either PiCo or the Subscriber may, by notice to the other, terminate this agreement, and PiCo will refund to the Subscriber any fees paid in advance by the Subscriber.

    10.6. Clauses 10.2 to 10.5 set out PiCo’s sole liability and the Subscriber’s sole and exclusive remedies for any Third Party Claims.
  • 11. Exclusions and Limitations of Liability

    11.1. All terms, warranties and representations not expressly stated in this agreement, are excluded from this agreement to the extent permitted by law.

    11.2. Nothing in this agreement excludes, restricts or modifies any condition, warranty, right or remedy implied or imposed by any statute or regulation which cannot lawfully be excluded, restricted or modified (Non-Excludable Provision).

    11.3. Subject to clause 11.2, and to the extent that PiCo is able to limit its liability for breach of a Non-Excludable Provision, PiCo’s liability is limited, at its option, to:
    • 11.3.1. in the case of goods, replacing or repairing the goods or supplying equivalent goods, or paying for the cost of replacing or repairing the goods or of acquiring equivalent goods; and
    • 11.3.2. in the case of services, resupplying the services, or paying the cost of resupplying the services.

    11.4. PiCo’s maximum total aggregate liability for all loss, damage, cost or expense arising under or in relation to this agreement, whether in contract, tort (including negligence), equity, under statute, under an indemnity or on any other basis is limited to the Fees received by it under this agreement in the 12 month period preceding the event giving rise to the liability. 

    11.5. PiCo is not liable for any:
    • 11.5.1. lost profits, lost revenue, loss of opportunity, loss of management time or failure to realise anticipated savings, loss of or damage to reputation or goodwill; or
    • 11.5.2. special, indirect, incidental or consequential damages, losses, costs, or expenses.

    11.6. PiCo’s liability to the Subscriber under or in relation to this agreement is reduced to the extent that the Subscriber’s acts or omissions, or those of a third party, contributed to or caused the liability.
  • 12. Termination

    12.1. Either party may terminate this agreement by notice to the other party if the other party commits a material breach of a term of this agreement and the breach has not been remedied within 30 days after receiving notice of the breach.

    12.2. Notwithstanding clause 12.1, either party may terminate this agreement immediately by notice to the other party if the other party:
    • 12.2.1. becomes, threatens or resolves to become or are in jeopardy of becoming subject to any form of insolvency administration;
    • 12.2.2. ceases or threatens to cease conducting business in the normal manner except through amalgamation or merger; or
    • 12.2.3. enters into or proposes to enter into a scheme, composition or arrangement with any of its creditors.

    12.3.  On termination or expiry of this agreement, PiCo will immediately stop providing the Services and will delete or destroy the Scan Data.

    12.4. The Subscriber must give notice to PiCo no later than 7 days after termination or expiry that the Subscriber wishes to export and retrieve Transaction Data. PiCo will co-operate with the Subscriber’s vendors to export and retrieve the Transaction Data subject to the Subscriber paying PiCo’s fees which will be calculated on a time and materials basis
  • 13. Force Majeure

    13.1. A party will not be liable to the other if performance of its obligations (other than an obligation to pay money) to the other party is delayed, impeded or prevented by Force Majeure.

    13.2. If delay in the performance of this agreement due to Force Majeure continues for more than one month, either party may terminate this agreement by notice to the other party.
  • 14. Dispute Resolution

    14.1. A party must not commence court proceedings (except proceedings seeking urgent interlocutory relief) unless it has complied with this clause 14.

    14.2. A party claiming that a dispute, difference or question arising out of this agreement or any Statement of Work (Dispute) has arisen must notify the other party giving details of the Dispute (Dispute Notice).

    14.3. Within 7 days (or any longer period agreed between the parties) after a Dispute Notice is given, a representative nominated by each party must in good faith attempt to resolve the Dispute through negotiation.

    14.4. If the representatives referred to in clause 14.3 cannot resolve the Dispute within 14 days after the Dispute Notice is given (or such other period agreed by the parties), the representatives must immediately refer the Dispute to the Chief Executive Officers of each party or their nominated representatives.

    14.5. If the Dispute is not resolved within 1 month of submission of the Dispute to the Chief Executive Officers of the parties (or such other period agreed by the parties), clause 14.6 will apply.

    14.6. Disputes must be submitted to conciliation in accordance with, and subject to, Resolution Institute Conciliation Rules. Unless the parties can agree a conciliator, either party may request a nomination from the Chair of Resolution Institute.

    14.7. A party may not commence proceedings in respect of the Dispute unless the Dispute is not settled by conciliation within 1 month of submission to conciliation, or such other period agreed by the parties.

    14.8. The parties must continue to perform their respective obligations under this agreement pending the resolution of any Dispute.

    14.9. Each party must bear its own costs of complying with this clause 14. The parties must equally pay the costs of any conciliator under this clause.
  • 15. Notices

    15.1. Any notice or communication, including any consent or approval, given to a party under this agreement must be in writing and delivered or posted to a party’s address as provided to PiCo for invoicing or such other address as notified by that party to the other party;

    15.2. Subject to clause 15.1, any notice or communication is to be treated as given:
    • 15.2.1. if it is delivered, when it is left at the relevant address;
    • 15.2.2. if it is sent by post, two (or, in the case of a notice or communication posted to another country, nine) business days after it is posted; or
    • 15.2.3. if it is sent by email, where the sender receives either a computer generated receipt of notification of the delivery, or a personal email acknowledging receipt from the addressee of the email.

    15.3. If any notice or communication is given on a day that is not a business day or after 5.00 pm on a business day in the place of the party to whom it is sent, it is to be treated as having been given at the beginning of the next business day.
  • 16. General

    16.1. The parties must comply with any special conditions set out in the Tax Invoice for Quickstart Package.

    16.2. Nothing in this agreement creates an agency, partnership, joint venture or employment relationship between the parties.

    16.3. Neither party may assign its rights under this agreement without the prior written consent of the other party.

    16.4. PiCo may appoint sub-contractors to assist it in carrying out its obligations under this agreement.

    16.5. This agreement constitutes the entire agreement of the parties and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties.

    16.6. The parties will promptly do and perform all acts and things and execute all documents as may from time to time be required, and at all times will act in good faith, for the purposes of or to give effect to this agreement.

    16.7. If any part of this agreement is void or unenforceable that part will be severable from and will not affect the enforceability of the remaining provisions.

    16.8. No variation of this agreement will be of any force or effect unless it is in writing and signed by the parties to this agreement.

    16.9. The waiver by either party of a breach of any provision of this agreement by the other must not operate or be construed as a waiver of any subsequent breach by the other.

    16.10.  This agreement is governed by the laws of the Australian State of NSW. The parties submit to the non-exclusive jurisdiction of its courts. The parties will not object to the exercise of jurisdiction by those courts on any basis.
  • 17. Definitions and Interpretations

    17.1. In this agreement, the following definitions apply:
    All Groups CPI has the meaning given to that term by the Australian Bureau of Statistics.

    Commencement Date means the date set out in the Tax Invoice for Quickstart Package.

    Confidential Information of a party means any information (whether or not in material form and whether or not disclosed before or after the date of this agreement) of whatever kind which:
    (a) is by its nature confidential; or
    (b) is designated by a party as confidential; or
    (c) the receiving party knows or reasonably ought to know is confidential.

    Force Majeure means any act or event beyond the control of a party, whether foreseen or not, which delays, interrupts or prevents such party from performing its obligations under this agreement.

    Hardware means the hardware described in Schedule 2.

    Initial Term means the term specified in the Tax Invoice for Quickstart Package.

    Rate means the interest rate for business overdrafts of $100,000 or more charged by the Australia and New Zealand Banking Group Limited ABN 11 005 357 522 plus 2% calculated on daily rests from the due date to the date of payment.

    Resolution Institute means [Resolution Institute ACN 008 651 232] or its replacement body.

    Retail Outlets means the retail outlets specified Error! Reference source not found.

    Scan Data means:
    (a) the price file of the product UPC’s; and
    (b) relevant data extracted from the data that is collected directly by the Subscriber from the Retail Outlets in connection with the sale of goods to Subscribers during the ordinary course of the Subscriber’s business and includes any representation of information about product sales, descriptions of products, retail prices, inventory, information about Subscribers, numbers of Subscribers passing through the checkouts at the premises, suppliers, employees or trading hours.

    Services means the services described in Schedule 1.

    Term means the Initial Term and any extension under clause Error! Reference source not found.

    Transaction Data means the data about individual transactions that is generated by the use of the Hardware by Retail Outlets and which is collected by PiCo in accordance with the terms of this agreement and such other data as the parties may agree from time to time.

    17.2. In the interpretation of this agreement, unless the context otherwise requires:
    • 17.2.1. a reference in this agreement to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision;
    • 17.2.2. a reference in this agreement to any agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time;
    • 17.2.3. an expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency;
    • 17.2.4. where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning;
    • 17.2.5. a word which denotes the singular also denotes the plural, a word which denotes the plural also denotes the singular; and
    • 17.2.6. a reference to the word 'include' or 'including' is to be construed without limitation.

  • Schedule 1- Services

    The Services to be provided by PiCo are:

    1.  PiCoHub
    The Hardware (incorporating PiCo’s proprietary software) connects the Subscriber’s P.O.S system to the cloud.

    The Hardware intercepts and logs barcode scans to the Subscriber’s P.O.S system, sends this data to a network based server.

    2. PiCoCloud
    Is a web-based interface that enables access control of the PiCoHub and displays Sales data collected from the Subscribers P.O.S in real-time.

    Centrally manages personalised pricing and offers on the P.O.S in real time. Provides connection via API to the Subscribers own data storage platform.

    3. Hosting Services:
    PiCo will provide secure hosting via either Amazon Web Services (AWS) or the Microsoft Azure (Azure) cloud for the Transaction Data and grant secure access to the Subscriber’s nominated users.

    4. Support Services:
    For Hardware:

    PiCo will repair or replace any item of Hardware that is defective.

    PiCo will not provide support in relation to any item of Hardware where the defect has been caused by:
    • 1. Installation, commissioning, repair, modifications, alterations, attachments or movement to or of the Hardware, performed by someone other than PiCo or one of its contractors, or otherwise without the prior written consent of PiCo;
    • 2. Abuse, misuse or abnormal use, accident, negligent acts, power failures or surges, force majeure events including fire, flood, storm, water damage or any other natural disaster, any other force majeure event, accidental breakage, actions of third parties, and any other events or accidents outside PiCo’s control and/or not arising under normal operating conditions;
    • 3. Cosmetic defects;
    • 4. Any improper attachment, installation or application of the Hardware;
    • 5. Removal and reinstallation at a location other than the original installation location, without the prior written consent of PiCo; or
    • 6. Ignoring safety warnings and instructions contained in any documents relevant to the Hardware.

    For Services:

    Support hours are 8:00 a.m. – 6:00 p.m. Sydney time.

    All issues must be logged via PiCo’s support portal

    PiCo must be able to reproduce errors in order to resolve them. Subscriber and/or Retail Outlets must cooperate and work closely with PiCo to reproduce errors, including conducting diagnostic or troubleshooting activities as reasonably requested and appropriate. Also, Retail Outlets may be asked to provide remote access to their PiCo account and/or desktop system for troubleshooting purposes.

    Support does not include:
    • 7. Assistance with password resets. Users should click the “Forgot your password?” link on the login page or contact their system administrator.
    • 8. Assistance with usernames.  Users should contact their system administrator.
    • 9. Assistance with lockouts due to incorrect login attempts. Users should contact their system administrator to unlock the account, or wait for the lockout period to expire.
    • 10. Assistance in developing User-specific customizations.
    • 11. Assistance with non-PiCo products, services or technologies, including implementation, administration or use of third-party enabling technologies such as databases, computer networks or communications systems.
    • 12. Assistance with installation or configuration of hardware, including computers, hard drives, networks or printers.

    5. (Optional) Implementation Services:
    Installing and testing the Hardware in each Retail Outlet in accordance with the Rollout Schedule agreed by the parties.

    Assumptions

    Implementation will take place during working hours on business days.

    If connecting via Cellular, 3G/4G coverage is available at each Retail Outlet.

    If connecting via WiFi, Network SSID and password available at each Retail Outlet.

    Staff of the Retail Outlet will be available to provide access to the site.

  • Schedule 2- Hardware

    1. For each operating cash register in-store (P.O.S), each Retail Outlet will receive:
    • (a) 1 x PiCoHub Modem;
    • (b) 1 x 2D handheld barcode scanner;
    • (c) 1 x Micro-USB power pack and in-country adapter;
    • (d) 1 x 2 m USB-b to USB-a cable or 1 x 2 m rs-232 to rs-232 cable;
    • (e) 1 x Setup guide
    • (f) 1 x Troubleshooting guide;
    • (g) 1 x set of Control Codes.
    • (Hardware).

    2. The Subscriber must pay PiCo for the Hardware for each POS at the Hardware Purchase Price in the Tax Invoice for Quickstart Package
    • (a) The Subscriber must pay PiCo for the Hardware Purchase Price prior to shipping.
    • (b) On payment of the Hardware Purchase Price:
    • (i) title in the Hardware will pass to the Subscriber; and
    • (ii) PiCo will comply with its obligations under clause 3.2.

    3. If PiCo replaces any item of Hardware as part of providing the Support, title in the replacement item passes to the Retail Outlet, and title in the replaced item passes to PiCo.