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Last updated on July 23, 2024

Enterprise Service Agreement

ENTERPRISE SERVICE AGREEMENT

This Agreement is made on the date specified in Service Order Form between the parties described in Service Order Form

  1. Definitions and interpretation

    1. Other documents

      1. The Agreement is comprised of the following documents:

        This Enterprise Service Agreement, whether accompanying this document or otherwise available at https://okendo.io/esa;

        The Service Order Form, including any accompanying documents;

        The Okendo Data Processing Addendum, where applicable;

        The Okendo Merchant Privacy Policy, whether accompanying this document, or otherwise available at https://okendo.io/merchant-privacy-policy/

        The Okendo Enterprise Specifications, whether accompanying this document, or otherwise available at https://okendo.io/enterprise-plan-specifications/

        Any other terms expressly incorporated by reference.

    2. Definitions

        1. Start Date means the date specified in the Service Order Form.
        2. Confidential Information means information that is by its nature confidential but does not include:

          information already known to the receiving party at the time of disclosure by the other party; or

          information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement.

        3. Content means a creative expression and includes, without limitation, video, audio, photographs, images, illustrations, animations, logos, tools, written posts, replies, and comments, information, data, text, software, scripts, executable files, graphics, and interactive features, any of which may be generated, provided, or otherwise made accessible on or through the Software.
        4. Commencement Date means the date specified as such in the Service Order Form.
        5. Current Term means, with respect to the Term, the period commencing on the most recent calendar year anniversary of the Start Date, and expiring on the next calendar year anniversary of the Start Date.
        6. Customer Marketing means a marketing or communication request concerning the products, services, or operation of the Merchant.
        7. Merchant means the entity described in Service Order Form.
        8. Merchant Data means data owned or supplied by the Merchant, or which may otherwise be generated, compiled, arranged or developed on the System at the request of the Merchant pursuant to this Agreement.
        9. End User means a third party individual or entity that is the subject of Customer Marketing by Okendo on behalf of the Merchant.
        10. GST means:

          the same as in the GST Law;

          any other goods and services tax, or any tax applying to this agreement in a similar way; and

          any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

        11. GST Law means the same as “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
        12. Initial Period means the initial period specified in the Service Order Form.
        13. Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
        14. Moral Right means:

          a right of attribution of authorship;

          a right not to have authorship falsely attributed; a right of integrity of authorship; or

          a right of a similar nature;

          which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this agreement.

        15. New Release means software which has been provided primarily to implement an extension, alteration, improvement or additional functionality to the Software.
        16. Payment Method means the method for payment of fees as specified in Service Order Form.
        17. Payment Schedule means the timing schedule for the payment of fees as specified in Service Order Form, whereupon such fees are paid in equal instalments, unless specified otherwise in the Service Order Form.

      Personal Information shall have the meaning set forth in the Privacy Act 1988 (Cth).

      1. Privacy Policy means Okendo’s Privacy Policy, if any, and as amended from time to time and available at https://okendo.io.
      2. Purpose means provides ecommerce technology services.
      3. Retail Software System means the Shopify e-commerce platform.
      4. Rollover Period means the rollover period specified in the Order Form or any other extension to the Term mutually agreed in writing between the parties or if no period is specified or agreed, then successive periods equal to the Initial Period.
      5. Service Fee means the amount so specified in Service Order Form.
      6. Service Levels has the meaning given by APPENDIX 1.
      7. Setup Fee means the amount so specified in Service Order Form
      8. Software means the Okendo software products, as specified in Service Order Form, which is to be made available by Okendo to the Merchant pursuant to this agreement.
      9. Special Terms the terms of this Agreement specified in Service Order Form.
      10. Specifications means the Okendo Enterprise Specifications, whether accompanying this document, or otherwise available at https://okendo.io/enterprise-plan-specifications/
      11. Okendo means Okendo Pty Ltd (ACN 165 005 989)
      12. System means the information technology systems of Okendo whichcontain or provide access to the Software.
      13. Term means the term of this Agreement, which will commence on the Start Date for the Initial Term, and continue thereafter for successive periods of equal to the Rollover Period until terminated by either party in accordance with this Agreement.
      14. Terms of Use and Service means the terms of use and service available at http:// okendo.io and as amended from time to time.
      15. Update means software which has been produced primarily to overcome defects in the licensed Software.

    3. Interpretation

      Words importing the singular include the plural and vice versa and words importing one gender shall include all other genders. Headings are for ease of reference only and shall not affect the interpretation of this agreement.

  2. Access

    1. Commencing on the Start Date, Okendo grants to the Merchant the right to access the System for the duration of this Agreement for the Purpose, and on the terms set out in this Agreement.
    2. Okendo will provide the Merchant with access to the Software on a real-time basis. Access will be provided by way of application programming interface and web interface.
    3. Subject to the terms of this Agreement, access to the Software and the System will continue for the Term.

  3. Conditions

    1. Okendo warrants that it has the authority to grant access to the System.
    2. The access granted is non-transferable, world-wide and non-exclusive to the Merchant.

  4. Service Levels

    1. Okendo will guarantee the performance of the Software in accordance with Service Levels, and provide such reasonable support, documentation and/or training to the Merchant to facilitate use of the Software.

  5. Fees

    1. The Merchant must pay the to Okendo the:
      1. the Service Fee;
      2. the Setup Fee; and
      3. any other fee or charge specified in the Service Order Form;
        via the Payment Method in accordance with the Payment Schedule.
    2. The Fees are exclusive of all taxes, duties and surcharges payable in respect of the Software and in respect of this agreement.
    3. If payment is not made within
      1. 7 days of the due date, the functionality of the Software will restricted pending receipt of payment;
      2. 1 calendar months of the due date, access to the Software may be suspended pending receipt of payment;
      3. 3 calendar months of the due date, this will considered a material breach, and the all fees accruing for to Okendo for the full relevant Initial Period or Rollover Period will become immediately due and payable.
    4. If payment is not made within 1 calendar month of the due date, interest will be payable by the Merchant at the rate of 6 per cent per annum on the overdue amount.
    5. Where the Payment Method specifies payment by credit card and/or direct debit, the Merchant authorises Okendo to charge the credit card provided on record for the Fees payable.
    6. If the Merchant disputes the whole or any part of the amount claimed in an invoice submitted by Okendo pursuant to this agreement, the Merchant will pay the undisputed portion on the due date. The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by this agreement. If it is subsequently resolved that a further amount is payable, the Merchant will pay that amount together with interest at the rate of 6 per cent per annum.

  6. Ownership and Intellectual Property Rights

    1. Okendo retains ownership of the Software whether in its original form or as modified by the Merchant during the term of this Agreement.
    2. All Intellectual Property Rights in the Software are retained by Okendo.
    3. Nothing in this agreement affects the ownership of Moral Rights in the Software.
    4. The Merchant agrees to be solely responsible for Content and Personal Information uploaded or submitted to the Software, and the consequences of submitting and publishing its Content and Personal Information on the Software. The Merchant affirms, represents, and warrants that it has the necessary licenses, rights, consents, and permissions to provide Content and Personal Information that it submits.
    5. During the Term, the Merchant grants to Okendo a non-exclusive, transferable, sub-licensable, royalty-free, perpetual worldwide license for the use of any Content and Merchant Data uploaded or submitted to the Software for purpose of providing the Software and related services to Merchant, revocable:
      1. in writing; or
      2. in accordance with the Merchant’s instructions communicated through the Software.
    6. The Merchant warrants that Content it submits to the Software will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless the Merchant is otherwise legally entitled to post the material and to grant to Okendo all of the license rights required under this Agreement.
    7. Okendo retains ownership of the Software during the Term of this agreement.
    8. Okendo will ensure the Merchant Data is identifiable as the property of the Merchant, and will remain free of any lien, charge or other encumbrance of a third party.
    9. Okendo warrants that the Merchant’s use of or access to the Software does not and shall not infringe the intellectual property rights of any third party.

  7. Reverse engineering

    1. Except as otherwise expressly permitted by law, the Merchant must not reverse assemble or reverse compile the Software or any part of the Software.

  8. Data Security

    1. The Merchant will take all reasonable steps to protect the System from unauthorised access, use or damage.
    2. Okendo will take all reasonable steps to protect Merchant Data and Personal Information in its possession against misuse or loss, and will ensure that Merchant Data and Personal Information is managed in accordance with the Privacy Policy, and any Data Processing Addendum agreed between the parties.

  9. System Requirements

    1. The Merchant acknowledges that for operation, the System requires:
      1. that the Merchant has pre-existing digital access to a Retail Software System; and
      2. the Merchant to provide application programming interface access to the Retail Software System to Okendo.

  10. Interactions and Third Party Costs

    1. The Merchant bears all risk of failure of, or issues with services provided by external or third party service providers, and is solely responsible for any and all associated costs and expenses.

  11. Indemnity and liability

    1. Okendo will indemnify, defend and hold harmless the Merchant and its subsidiaries and affiliates and their respective directors, officers, employees and agents (“Merchant Indemnified Parties”) against any claim made against the Merchant Indemnified Parties by a third party alleging that:
      1. the Software infringes the intellectual property of that third party or
      2. Okendo has breached the obligations set forth in any Data Processing Addendum agreed between the parties.
    2. Okendo shall not be liable to the Merchant under clause 11.1 if:
      1. the Merchant does not notify Okendo of a third party claim promptly after becoming aware of the claim;.
      2. Okendo’s ability to defend the claim has been prejudiced by the Merchant’s material breach of its obligations under this agreement;
      3. the Merchant does not give Okendo reasonable assistance in defending the claim;
      4. to the extent that any act or omission of another party, or a breach of the indemnified parties’ obligations under the contract or at law, has caused the relevant loss;
      5. the claim has arisen because of the use of the Software in combination with equipment, materials or computer programs not supplied or approved by Okendo, where but for the combination, no claim would exist; or
      6. the Merchant does not permit Okendo to have control of the defence of the claim and all related settlement negotiations.
    3. The Merchant will indemnify, defend and hold harmless Okendo against any claim made by a third party against Okendo alleging a breach by Merchant of the representation and warranty set forth in clause 6.4. The Merchant shall not be liable to Okendo under this clause 11.3 if:
      1. Okendo does not notify the Merchant of any third party claim promptly after becoming aware of the claim;.
      2. the Merchant’s ability to defend the claim has been prejudiced by Okendo’s material breach of its obligations under this agreement;
      3. Okendo does not give the Merchant reasonable assistance in defending the claim, provided such assistance shall be at Merchant’s expense;
      4. the claim has arisen because of Okendo’s violation of a provision of this agreement; or
      5. the Merchant does not permit Okendo to have control of the defence of the claim and all related settlement negotiations.
    4. Except in relation to:
      1. liability for personal injury (including sickness and death) or property damage;
      2. a breach of the confidentiality obligations set forth herein,
      3. the indemnification obligations set forth herein,
      4. a breach of the Intellectual Property Rights of the other party hereunder,
      5. gross negligence, and
      6. willful misconduct,
      7. the liability of either party to the other party hereunder in damages (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) will not exceed the amount of the sum of any Service Fee paid by Merchant to Okendo for the immediately preceding twelve months (or if the agreement has not been in effect for a twelve (12) month period, then the average monthly amount of fees paid or owing in the period since the commencement of the agreement multiples by twelve (12), even if a party has been advised by the other party as to the possibility of such losses being incurred.

  12. Disclaimers

    1. The Software is intended for and will be made available for information purposes only and should not be relied upon to protect or maintain the safety or health of any individual or property.
    2. Okendo represents and warrants that:
      1. the Software will conform to the Specifications and any publicly available sales materials; and
      2. the Software does not contain any viruses and that Software shall be performed in a manner so as not to result in intentionally introducing a virus or other malware to Merchant’s systems.
    3. Except as otherwise set forth herein, Okendo makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Software or the information, services, or related graphics contained on the Software for any purpose.
    4. Except as otherwise described in this agreement, Okendo does not warrant and will not be liable for the Software becoming temporarily unavailable in the instance of technical issues or any associated problems arising other associated issues beyond its control.

  13. Termination

    1. This Agreement commences on the Commencement Date and continues for the Initial Period and each Rollover Period unless terminated earlier in accordance with this clause.
    2. Each party may terminate this Agreement at the end of the Initial Period or subsequent Rollover Period, by giving at least 30 days notice to the other party prior to the end of the Initial Period or Rollover Period, in which case this Agreement will terminate on expiration of the Initial Period or the then current Rollover Period, as the case may be.
    3. A party may terminate this Agreement immediately on notice to the other party if the other party:
      1. commits a material breach of this Agreement and, in the case of a material breach which can be remedied, fails to remedy that material breach within 30 days of receiving notice requiring it to do so; or
      2. suffers an Insolvency Event.
    4. Okendo may terminate this Agreement immediately on notice to Merchant, if:
      1. the Merchant makes use of the SaaS for any reason other than the Purpose; or
      2. at any time during the term, Okendo believes, acting reasonably, that the Merchant’s use of the SaaS may cause loss or damage to or otherwise unlawfully harm the Merchant, Okendo’s clients, third parties, Okendo, and its related bodies corporate or affiliates and its directors, employees or agents.
    5. On termination or expiry of this Agreement:
      1. the Merchant’s right to use the SaaS ceases and the Merchant must immediately stop using the SaaS;
      2. the Merchant will pay all Fees incurred or payable up to the effective date of the termination or expiry of this Agreement (subject to resolution of a genuine dispute);
      3. except as required by law, each party must, at the direction of the other party, either return or destroy all Confidential Information of the other party in its care, custody or control; and
      4. Okendo will provide reasonable assistance to enable the transfer of data, documentation and records to the Merchant or a third party nominated by the Merchant, at a reasonable market rate.

  14. Implied terms and consumer guarantees

    1. To the extent allowed by law, any condition or warranty which would otherwise be implied in this agreement is hereby excluded.

  15. Confidentiality

    1. A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
    2. A party will not be in breach of subclause (a) in circumstances where it is legally compelled to disclose the other party’s Confidential Information on the condition that the receiving party of the Confidential Information gives the disclosing party of the Confidential Information reasonable notice and the opportunity to seek confidential treatment, a protective order, or similar remedies or relief prior to disclosure, to the extent allowed under applicable law.
    3. Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party’s Confidential Information and comply with the other confidentiality obligations set forth herein.
    4. Notwithstanding any other provision of this clause, a party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
    5. This clause will survive the termination or expiration of this agreement.

  16. Merchant’s general obligations

    1. The Merchant will
      1. only use the System for the Purpose;
      2. not use the System for any activity which is obscene, indecent, offensive or defamatory;
      3. refrain from tampering with, hindering the operation of or making unauthorised modifications to the System;
      4. refrain from introducing any virus to or from the System;
      5. refrain from using any part of the System in contradiction of the CAN- Spam Act
      6. keep all passwords, account names, tokens or log in identifications required to access the System secure and confidential; and
      7. refrain from uploading onto the System any material, or use the System in any way:

        which infringes the Intellectual Property Rights of any person; or

        which is unlawful or violates any law.

    2. The Merchant agrees to comply with all reasonable policies notified in writing by Okendo to the Merchant from time to time.
    3. The Merchant will do all reasonable things to ensure that any and all third parties granted access to the System arising out of this Agreement:
      1. only use the System for the Purpose;
      2. not use the System for any activity which is obscene, indecent, offensive or defamatory;
      3. refrain from tampering with, hindering the operation of or making unauthorised modifications to the System;
      4. refrain from introducing any virus to or from the System;
      5. refrain from changing any administration settings on any part of the System;
      6. refrain from using any part of the System to send commercial electronic messages in contradiction of the CAN-Spam Act;
      7. keep all passwords, account names, tokens or log in identifications required to access the System secure and confidential; and
      8. refrain from uploading onto the System any material, or use the System in any way:

        which infringes the Intellectual Property Rights of any person; or

        which is unlawful or violates any law.

  17. Dispute Resolution

    1. The parties agree that if a dispute arises out of or in connection with this Agreement (“Dispute”), the party raising the Dispute must notify the other party (“Dispute Notice”).
    2. A representative from each party will first meet to try and resolve the Dispute by negotiation within 14 days of receipt of the Dispute Notice.
    3. If the parties do not resolve the Dispute by negotiation within 14 days, then a senior executive of each party will meet and attempt to resolve the Dispute within a further 30 days.
    4. If the Dispute has not been resolved within 60 days of the Dispute Notice, then the parties may agree to refer the Dispute to mediation by an accredited mediator they agree on.
    5. If a Dispute is not resolved under the process in clauses 14.1 to 14.4, the Dispute must be:
      1. submitted to arbitration in accordance with, and subject to, the UNCITRAL Arbitration Rules;
      2. administered by a competent arbitral body agreed between the parties; and
      3. conducted by 1 arbitrator, in the English language in Sydney, Australia.
    6. An award made under this clause is final and binding on the parties and may be entered into by any court of competent jurisdiction.
    7. Nothing in this clause prevents a party from applying to a court of competent jurisdiction for injunctive or other urgent interlocutory relief.

  18. Sales Tax

    1. Definitions

      For the purpose of this clause, the following terms have the meaning provided:

      1. “Taxable Supply” means a supply of goods or services on which a Sales Tax is levied.
      2. “Sales Tax” means any sales tax, value-added tax (VAT), goods and services tax (GST), or any similar tax or duty that applies to the sale of goods or services under applicable laws.
      3. “Tax Invoice” means an invoice in the form required by law relating to the imposition of Sales Tax.
      4. “Tax Authority” means the governmental body responsible for the collection of Sales Tax, such as the Australian Taxation Office or any equivalent body in other jurisdictions.
    2. Exclusions

      Except under this clause, the consideration for a Supply made under or in connection with this Agreement does not include Sales Tax.

    3. Taxable Supply

      If a Supply made under or in connection with this Agreement is a Taxable Supply, then at or before the time the consideration for the Supply is payable:

      1. the Recipient must pay the Supplier an amount equal to the Sales Tax for the Supply (in addition to the consideration otherwise payable under this Agreement for that Supply); and
      2. the Supplier must give the Recipient a Tax Invoice for the Supply.
    4. Warranties

      Where a Tax Invoice is given by the Supplier, the Supplier warrants that the Supply to which the Tax Invoice relates is a Taxable Supply and that it will remit the Sales Tax (as stated on the Tax Invoice) to the relevant Tax Authority.

  19. Enforcement

    1. All use of the System is subject to the Terms of Use and Service, and the Client may not impose any other terms pertaining to their use of the System. In the event of a conflict between this agreement and the Terms of Use and Service, the Terms of Use and Service shall govern.
    2. The Client agrees to immediately notify Okendo of any known or suspected breach of the Terms of Use and Service or other unauthorised use of the System and to assist Okendo in the enforcement of the terms of the Terms of Use and Service.

  20. General

    1. Entire agreement

      This agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Software. No addition to or modification of any provision of this agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.

    2. Notices

      All notices which are required to be given under this agreement must be in writing and must be sent to the address of the recipient set out in the Service Order Form or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or when on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise), when the email enters the recipient’s mail server.

    3. Assignment

      The Merchant may not, whether in whole or part, assign the benefit of this agreement or any rights or obligations hereunder, without the prior written consent of Okendo.

    4. Governing law

      This agreement shall be governed by and construed in accordance with the laws for the time being in force in the New South Wales, Australia.

    5. Waiver

      No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.

    6. Variation

      No variation of this agreement will be effective unless in writing and signed by both parties.

    7. Agency, partnership, independent contractor

      Each Party is an independent contractor of the other Party. This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.

    8. Severability

      Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the agreement.

APPENDIX 1 – SERVICE LEVEL GUARANTEE

  1. Definitions and interpretation

    1. Definitions
      1. Downtime means the Software is unavailable for a customer, exclusive of Permitted Downtime or Third Party Downtime.
      2. Monthly Uptime Percentage means total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.
      3. Permitted Downtime means the Software is unavailable for customer use during a pre-scheduled period which has been announced at least 72 hours in advance. Unless otherwise communicated, scheduled downtime shall not be more than 2 hours per week, for major system configuration changes, upgrades or normal maintenance.
      4. Third Party Downtime means any disruption to services, or any part of the services provided under this agreement arising out of the action or inaction of any third party.
      5. Service Credit means the following:
        Monthly Uptime Percentage Number of days of service made at no charge to Customer
        < 99.9% – >= 99.0% 1
        < 99.0% – >= 95.0% 10
        < 95.0% 30
      6. Service Level Guarantee means this Appendix 1.

  2. Operative Terms

    1. Merchant to Request Service Credit.
      1. In order to receive any of the Service Credits described above, Merchant must notify Okendo within 30 days from the time Merchant becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit the Merchant’s right to receive a Service Credit.
    2. Claims
      1. The Merchant must submit supporting documentation including all information necessary for Okendo to validate the claim, including but not limited to:

        a detailed description of the occurance giving rise to the claim;

        information regarding the time and duration of any downtime;

        and the number and location(s) of affected users (if applicable).

    3. Maximum Service Credit
      1. The aggregate maximum number of Service Credits to be issued by Okendo to Merchant in a single calendar month shall not exceed 90 days at no charge to the Merchant.
    4. Exclusions.
      1. This Service Level Guarantee does not apply to any services that expressly exclude this Service Level Guarantee (as stated in the documentation for such services) or any performance issues that:

        are related to acts of nature, forces or causes beyond our reasonable control, strikes, labor disputes, riots, insurrections, civil disturbances, explosions, acts of god, war, governmental actions, or orders of domestic or foreign courts or tribunals;

        result from availability of third-party APIs or services;

        result from a Merchant’s equipment.