pieLINK Purchase Agreement and License Agreement









Date ____________

I/WE:



("THE PURCHASER") herebyoffers to purchase the pieLINK from pieNETWORKS at the price and other terms set out in the Terms of Purchase and subject to the Conditions of Purchase.


Terms of Purchase



The Purchaser by signing this Contract acknowledges that they have read and accepted all of the terms and conditions of the Contract.


This becomes a legally binding contract upon Acceptance by pieNETWORKS.





 

Signed by Purchaser (or authorised representative) Print Name

Date / /





 

Accepted by pieNETWORKS Print Name

Date / /

CONDITIONS OF PURCHASE


These Conditions of Purchase form part of the Contract. Please read these carefully before signing the Contract.


Unless the context otherwise requires words importing the singular shall refer to and include the plural and visa versa and words importing persons shall refer to and include partnerships, companies, corporations and public bodies and visa versa and words importing the masculine gender shall refer to and include the feminine and neuter genders and visa versa.


1 Definitions


"Acceptance" means acceptance by pieNETWORKS of the Purchaser's offer to purchase the pieLINK(s);


“Advertising” means any graphic, video or audio material projected on the pieLINK screen through electronic means;


“Connect ThroughAdvertising” means any graphic, video or audio material projected on the pieLINK screen through electronic means which permits free connection through to the internet;


“Customer Service Centre” means the telephone assistance staffed by pieNETWORKS or its agents;


“Contract” means this purchase and licence agreement including the Terms of Purchase, Conditions of Purchase and Licence Agreement;


“Database” means the web enabled database providing information and usage statistics for the pieLINK.


"Designated Use" means:

  1. loading the Software into RAM, as well as installation on a hard disk or other storage device;

  2. future upgrades and maintenance of the Software;

  3. the Purchaser or end user calling the Customer Service Centre; and

  4. use of the Database;


“DOA” means Dead on Arrival as outlined in clause 15 of the Contract.


"Documentation" means operating manuals and other printed materials including pieLINK manuals, flow charts, drawings and software listings which are designed to assist or supplement the understanding or application of the Software;


"Intellectual Property Rights" means all intellectual and industrial property or rights (including, without limitation, applications for the grant of or registration of such property or rights) whether granted or subsisting by statute, or arising at common law or in equity, including without limitation:

(a) all copyrights, Trade Marks, design, patents, trade secrets or other proprietary rights, whether registered or unregistered or rights to or in any inventions, innovations, registered design or rights to or in registrable designs;

  1. all Technology, Documentation, Know-How and rights in relation to circuit layouts;

  2. all goodwill and reputation; and

  3. all and any other rights or benefits whatsoever;

whether existing or arising in Australia or any other part of the world and whether created and in existence before or after the date of execution of this Agreement which are in or are in any way related to or connected with the pieLINK Technology and/or the pieLINK and its management systems and any other associated operational information in relation to the pieLINK and the network created by the distribution of pieLINKs anywhere in the world;


"ISP" means Internet Service Provider;


"Know-How" means the body of scientific and technical knowledge experience and skills and all information, ideas, concepts and manufacturing instructions, in whatever form, relating to or for use in connection with the pieLINK Technology and/or the pieLINK and the use and exploitation of pieLINK Technology and/or the pieLINK and includes both the whole body of such knowledge experience skills and information and also any one or more parts of the same;


“Licence Agreement” means the agreement contemplated in clause 2.2 of this Contract the terms and conditions of which are set out in Annexure A to this Contract;


“Licence Fee” means the fee payable in accordance with clause 7 of the Licence Agreement;


“pieLINK” means the pieLINK interactive kiosk containing and including the cabinet, computer equipment, Software, coin acceptor, keyboard, modem, coinbox, user manual and power board;


"pieLINK Technology" means the application of Technology as evidenced in the pieLINK and includes all ancillary Intellectual Property Rights, both present and as may be developed from time to time in the future;


“pieLINK Web Site” means the web site which the pieLINK automatically defaults to when used, currently the principal URL for the pieLINK website is www.pielink.com;


"pieNETWORKS" means pieNETWORKS Limited ACN 078 661 444, ABN 27 078 661 444 its successors and/or assigns;


"Purchase Price" means the total purchase price described in the Contract;


"Purchaser" means the Purchaser described as such in this Contract and includes his successors and or permitted assigns. If there is more than one Purchaser, each Purchaser shall be deemed to have entered into the covenants, conditions and terms of this Contract both jointly and severally;


"Software" means the software (in both object code and source code) and includes all deliverables and components of the Software as at the date of this Contract, consisting of:

(a) computer programs (in both object code and source code);

  1. inventions, designs, techniques, ideas, processes, other discoveries and works (including literary and artistic and other copyright works); and

  2. modifications and improvements to such inventions, designs, techniques, ideas, processes, other discoveries and works made, created, discovered, written or conceived by pieNETWORKS (whether solely or jointly) in relation to the Software,

and includes specifications for all changes, supplements, enhancements, revisions, updates, future developments in and improvements to the Software;


“Scrolling Screens” means the screens displaying images on the pieLINK when not in use;


"Technology" means the pieLINK Technology and/or the pieLINK and all scientific and technical discoveries and inventions arising from the pieLINK Technology and/or the pieLINK and all technology, information, research and development processes, empirical and testing data (and all improvements to such material) Know-How, trade secrets, data and all improvements thereto whether written or oral including all Documentation, relating in any manner whatsoever to the pieLINK Technology and/or the pieLINK; and


“Warranty” in respect to the pieLINK has that meaning as outlined in clause 14 of the Contract.


2 Software


    1. All Intellectual Property Rights in and to the Software remain with pieNETWORKS.


    1. All rights in the pieLINK Web Site and scrolling screens remain with pieNETWORKS.


    1. The Purchaser agrees that by executing this Contract, the Purchaser is deemed to have executed the Licence Agreement and agrees to observe and at all times comply with the terms and conditions of the Licence Agreement including, but not limited to, the obligation to pay the Licence Fee.

  1. Advertising


    1. pieNETWORKS can display any non-Connect Through advertising images on the scrolling screens it chooses in its complete and unfettered discretion. No revenue derived from non-Connect Through advertising images received by pieNETWORKS shall be payable to the Purchaser.


    1. At pieNETWORKS complete and unfettered discretion, and subject to confirmation that a permanent ISP connection approved by pieNETWORKS is in use by the Purchaser, pieNETWORKS may offer to the Purchaser the option of running Connect Through Advertising on the pieLINK.

    2. In the event pieNETWORKS does offer the Purchaser Connect Through Advertising on the pieLINK, the net funds received by pieNETWORKS derived from such advertising run on the Purchaser’s pieLINK will be divided between pieNETWORKS and the Purchaser on the basis of 60% to pieNETWORKS and 40% to the Purchaser.

    3. For the avoidance of doubt, pieNETWORKS is under no obligation to offer the Purchaser Connect Through Advertising on any pieLINK.


4 Entire Agreement


4.1 This Contract constitutes the entire contract between pieNETWORKS and the Purchaser with regard to the matters dealt with in this Contract and no representations, terms, conditions or warranties not contained in this Contract shall be binding on pieNETWORKS or the Purchaser.

5 Severability


5.1 If any provisions of this Contract are at any time invalid, illegal or unenforceable in any respect, the invalidity, illegality or unenforceability will not affect the operation, construction or interpretation of any other provision of this Contract, to the intent that the invalid, illegal or unenforceable provision(s) will be treated as severed from this Contract.


6 Binding Contract


6.1 This Contract shall bind and benefit each of the parties to this Contract and their respective personal representatives, successors in business and permitted assigns. This Contract shall be deemed to have been accepted by pieNETWORKS on the signing of the Contract by pieNETWORKS or its duly authorised manager and shall thereupon be binding on the parties.


7 Variation


    1. No modification, variation, waiver or amendment of this Contract will be effective unless such modification, variation, waiver or amendment is in writing and has been signed by each of pieNETWORKS and the Purchaser.


8 Risk


8.1 Upon delivery of the pieLINK to the Purchaser, whether such delivery takes place at pieNETWORKS' premises or such other location specified by the Purchaser, the Purchaser will assume all risk of physical loss or damage to the pieLINK.

9 Property


9.1 Property in the pieLINK (excluding the Software) shall not pass from pieNETWORKS to the Purchaser (notwithstanding that risk may have passed to the Purchaser in accordance with clause 8 of this Contract) until payment of the Purchase Price has been received by pieNETWORKS in full.


10 Termination


    1. If pieNETWORKS is unable to deliver the pieLINK within 30 days of the date of Acceptance, pieNETWORKS may terminate this Contract at any time after the expiration of the 30 days by notice in writing to the Purchaser.

    2. In the event that this Contract is terminated pursuant to clause 10.1 of this Contract, pieNETWORKS must immediately return to the Purchaser all deposit monies (if any) paid by the Purchaser under this Contract. Interest will not be payable in respect of any monies refunded pursuant to this clause.

    3. pieNETWORKS shall not be liable to the Purchaser for any loss, damage, claims, demands, costs, charges or expenses whatsoever in respect to pieNETWORKS’ inability to deliver the pieLINK.


11 Delivery


    1. The Purchaser must take delivery of the pieLINK and pay to pieNETWORKS all monies due and payable pursuant to this Contract within seven (7) days of being notified by pieNETWORKS that the pieLINK is available for delivery.

    2. Failure by the Purchaser to take delivery of the pieLINK and pay to pieNETWORKS all monies due and payable in accordance with clause 11.1 of this Contract shall constitute a repudiation of this Contract and pieNETWORKS may elect to terminate this Contract by notice in writing to the Purchaser.

    3. If the Contract is terminated pursuant to clause 11.2, any deposit paid by the Purchaser to pieNETWORKS shall be forfeited to pieNETWORKS.


12 Notices


12.1 Any notice, demand, consent or other Documentation to be made or given under this Contract shall be in writing signed by the party giving it or that party's solicitors or duly appointed agent and may be served on the other party either by delivery, facsimile transmission, or by pre-paid post to the address of the party on which it is to be served, and shall be deemed to be received on the date of delivery or at the time of posting (as the case may be). Facsimile transmissions shall be deemed to have been to be delivered on the date of the transmission.




13 On site diagnosis and repair


    1. On site diagnosis and repair (if possible) will be offered to the Purchaser if the location of the pieLINK as advised by the Purchaser falls within the service area of, and is approved by pieNETWORKS support agents (Getronics or any other support agent pieNETWORKS may use from time to time). If the pieLINK location is subsequently changed pieNETWORKS reserves the right to cancel the on site diagnosis and repair term and will refund the relevant portion of the on site charge to the Purchaser.


    1. Where repair of the pieLINK is not possible and replacement of a component is required:


  1. where the relevant component is the keyboard or coin acceptor and the Warranty period defined in clause 14.1 has not expired, that component will be replaced at no additional cost;


  1. where the relevant component is not the keyboard or coin acceptor or the Warranty period defined in clause 14.1 has expired, the cost of that component shall be borne by the Purchaser. While Getronics may make stock available to the Purchaser on site, the cost of that stock is in no way covered by the on-site charge. Furthermore installation of the stock in the pieLINK shall constitute acceptance by the Purchaser that they will pay to pieNETWORKS the charge for that stock.


    1. The on site charge is payable by the Purchaser to pieNETWORKS quarterly in advance.


    1. Subject to Getronics (or any other support agent pieNETWORKS may use from time to time) increasing their pricing structure for pieNETWORKS, pieNETWORKS reserves the right to increase its on site charge to the Purchaser. The Purchaser retains the right to cancel its on site support at the end of each quarter.


14 Warranty


14.1 Warranty means subject to clause 13.2, pieNETWORKS warrants to the Purchaser that only,

  1. the central processing unit (“CPU”);

  2. the kiosk cabinet; and

  3. the monitor;

(with all other components of the pieLINK specifically excluded) supplied by pieNETWORKS, to be free from defect in material and workmanship under normal use and service and of merchantable quality and fit for the purpose for which they are ordinarily used for a period of:

    1. 3 months where a 1st generation (ATX) kiosk is purchased;

    2. 12 months where a 2nd generation (NLX) kiosk is purchased; and

    3. 24 months where a 3rd generation (TFT) kiosk is purchased.

pieNETWORKS obligation to rectify defects extends only to the relevant equipment parts and does not extend to labour which shall be charged at the rate of $88/hour including GST. A claim under Warranty shall only be made after the Purchaser at their cost, has returned the CPU, kiosk cabinet or monitor as required to pieNETWORKS at 75 Collingwood Street Osborne Park Western Australia. Defects of unserviceability caused by misuse, vandalism or by any other cause other than normal use shall not be covered by warranty.

    1. The Purchaser must notify pieNETWORKS of any defect within fourteen (14) days of the defect coming to the attention of the purchaser. The Warranty does not require pieNETWORKS to rectify any defect in respect to the Software.


  1. DOA Warranty


    1. pieLINK components covered by DOA Warranty are the:

  1. central processing unit;

  2. monitor;

  3. coin acceptor

  4. modem; and

  5. all cables.




    1. A pieLINK component is DOA if:


  1. the relevant component is not operational when it is received by the Purchaser except in the instance where the component has been damaged during transit; or


  1. the relevant component is operational when it is received by the Purchaser and ceases to be operational within a period of 14 days from receipt, except in the instance where the component has become inoperable due to actions of the Purchaser or by actions that could have reasonably been prevented by the Purchaser.


    1. Determination of when a component is DOA is at pieNETWORKS complete and unfettered discretion.


    1. Where a component is determined by pieNETWORKS to be DOA:


  1. The Purchaser shall package the component for transit and advise the Customer Service Centre when ready for collection;


  1. The Customer Service Centre will arrange for transit of the DOA component and a replacement component to be delivered to the premises where the pieLINK is located at pieNETWORKS expense.


ANNEXURE A


LICENCE AGREEMENT


This Licence legally binds the Purchaser, the user, and pieNETWORKS. By loading or running the Software, or by allowing the placing or copying the Software onto your pieLINK hard drive, you are agreeing to be bound by the terms of this Licence Agreement. If you do not agree to the terms of this Licence Agreement notify pieNETWORKS and the Software will be removed from the pieLINK.


1 Grant of Licence


1.1 Subject to the terms and conditions of this Contract and in consideration of the Purchase Price and the Licence Fee, pieNETWORKS hereby agrees to grants to the Purchaser a licence to use the Software for the Designated Use.


2 Licence Conditions


    1. The Purchaser may only use the Software for the Designated Use.


    1. The Software may only be used by the Purchaser pursuant to this Contract.


    1. The Purchaser acknowledges that there is no transfer of title or ownership to the Purchaser of the Software or any modifications, updates or new releases of this Software.


    1. The Purchaser must not modify, translate, disassemble, decompile, reverse engineer, create derivative works based upon the Software or alter the Software or merge all or any part of the Software with any other software.


    1. The Purchaser must not rent, lease, sell, distribute, promote or otherwise commercialise the Software.


    1. The Purchaser must not download the Software.


    1. The Purchaser must not copy or reproduce in any form the Software.


3 Intellectual Property Rights


3.1 The Software is owned by pieNETWORKS and is protected by international intellectual property laws and international treaty provisions. The Licence Agreement confers no title or ownership in the Software and is not a transfer of any rights, including Intellectual Property Rights, in the Software.


4 No Warranty


    1. The Software is provided to the Purchaser on "as is" basis. pieNETWORKS hereby disclaims all warranties, either expressed or implied, including but not limited to, implied warranties of merchantability or fitness for a particular purpose with respect to the Software and the Documentation (if any). pieNETWORKS does not warrant that the operation of the Software will be uninterrupted, error-free or meet any specific requirements.


    1. The agents, employees and/or distributors of pieNETWORKS are not authorised to give any warranty on behalf of pieNETWORKS. Additional statements or representations, whether oral or written, do not constitute warranties by pieNETWORKS and should not be relied upon. In no circumstances shall pieNETWORKS or its agents, employees and/or distributors be liable for direct, indirect, special, incidental or consequential damages (including without limitation lost profit, lost data, or downtime costs), or other damages, whether based in contract, tort or otherwise even if pieNETWORKS or its agent has been advised of the possibility of such damages, or for any claim by any other party.


5 Liability


    1. Subject to clause 5.2, the Purchaser accepts sole responsibility for all consequences arising from the Purchaser's use of the Software and hereby confirms that no claim whatsoever will be made against pieNETWORKS or its distributors, agents or associates in respect to any consequence arising from the Purchaser's use of the Software.


    1. The Purchaser agrees to indemnify pieNETWORKS against any action arising from the use of the pieLINK or from the negligence or neglect of the Purchaser.


5.2 Clause 5.1 shall not apply in the case of intentional acts or omissions committed by pieNETWORKS or in cases where pieNETWORKS liability can not be excluded by law.


6 Termination


    1. If you fail to comply with any terms of this Licence Agreement, YOUR LICENCE AGREEMENT MAY BE TERMINATED BY pieNETWORKS WITHOUT NOTICE AT ITS ABSOLUTE DISCRETION. Failure to comply shall include but is not limited to the non-payment of the Licence Fee by the Purchaser to pieNETWORKS.


7 Licence Fee


    1. In consideration of pieNetworks granting the Licence to the Purchaser, the Purchaser agrees to pay the Licence Fee.


    1. The Licence Fee as specified in the Terms of Purchase is payable by the Purchaser for the duration of the Licence Agreement (regardless of the actual use of the Software or possession of the pieLINK by the Purchaser).


    1. If the Purchaser fails to pay the Licence Fee when due, pieNETWORKS may disable the Software from the pieLINK. A fee of $500 is payable by the Purchaser to pieNetworks to reactivate the disabled Software, and in addition, for the benefit of any Software upgrade introduced after deactivation of the Software the Purchaser shall pay to pieNETWORKS the Licence Fees that would have been payable had the Software not been disabled.


    1. The Licence Fee will increase at a rate of 5% per annum beginning 12 months from the date of Purchase and be charged to the Purchaser accordingly.


    1. The following Licence Fee payment options are available to the Purchaser:


    1. Quarterly instalments payable in advance;

    2. Annual instalments payable in advance which will attract a discount of 1 months Licence Fees;

    3. Up front payment for two years Licence Agreement Fee which will attract a discount of 2 months Licence Fees and will not be subject to the 5% per annum increase in accordance with clause 7.4; or

    4. Up front payment for three years Licence Agreement Fee which will attract a discount of 3 months Licence Fees and will not be subject to the 5% per annum increase in accordance with clause 7.4.


8 General Provisions


    1. In the event of any breach of this Licence Agreement the Software is subject to removal from the pieLINK without notice.


    1. Should any provision of this Licence Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions shall not be affected thereby. If any provision is determined to be unenforceable, the Purchaser hereby agrees to a modification of such provision to provide for enforcement of the provision's intent, to the extent permitted by applicable law.


    1. Failure of a party to enforce any provision of this Licence Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.


8.4 This Licence Agreement is governed by and construed in accordance with the laws in force in Western Australia. The parties submit to the non-exclusive jurisdiction of the Courts of Western Australia and any Courts that may hear appeals from those Courts in respect of any proceedings in connection with this Licence Agreement.


9 pieLINK Resale


    1. This Licence Agreement is NOT TRANSFERRABLE. In the event of change of ownership of the pieLINK the Purchaser must notify pieNETWORKS of its intentions to sell the pieLINK and the identity of the new owner.


    1. Prior to the new owner operating the pieLINK he must deliver the pieLINK CPU to pieNETWORKS for reconfiguring with the new owner’s details. A fee of $250 is payable.


    1. Until the new owner has entered a License Agreement satisfactory to pieNETWORKS in its absolute discretion, pieNETWORKS shall be entitled to disable and or remove the Software from the pieLINK. In the event pieNETWORKS disables or removes the Software the new owner shall be liable to pay pieNETWORKS the fee as described in 7.3 to reactivate the Software.






The Purchaser acknowledges that they have read and understood these terms and conditions of this Contract (pages 1 through 9) and agrees to be bound by and observe them.










 

Signed by Purchaser (or authorised representative) Print Name

Date / /