General Terms and Conditions

Unless Flux IT agrees otherwise in writing, the following general terms and conditions govern Customer’s use of the Products and Services

1. DEFINITIONS.

  1. “Affiliate” means a legal entity that is controlled by, controls, or is under common control with Customer. For this purpose, control means more than 50% of the voting power or ownership interests, or the power to elect at least a majority of the directors, of such legal entity.
  2. “Confidential Information” means and includes the terms of this BOA (including all Exhibits and Quotes), the Products and Support Tools and all confidential and proprietary information of Flux IT or Customer, including without limitation all business plans, product plans, financial information, software, designs, and technical, business and financial data of any nature whatsoever (including, without limitation, and marketing, pricing and other information regarding the Products), provided that such information is marked or designated in writing as “confidential,” “proprietary,” or any other similar term or designation. Confidential Information does not include information that is (i) rightfully in the receiving party’s possession without obligation of confidentiality prior to receipt from the disclosing party, (ii) a matter of public knowledge through no fault of the receiving party, (iii) rightfully furnished to the receiving party by a third party without restriction on disclosure or use; or (iv) independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
  3. “Documentation” means the then-current, generally available, written user manuals and online help and guides for any Equipment and/or Software provided by Flux IT.
  4. “Equipment” means the hardware identified on a Quote issued by Flux IT.
  5. “Evaluation Products” means generally available Flux IT hardware and/or software that is provided by Flux IT to Customer for a limited duration for the specific purpose of evaluation prior to licensing or purchase.
  6. “Products” means Equipment and/or Software. Products do not include Evaluation Products.
  7. “Product Notice” means the then-current notice by which Flux IT informs Customer of a Product’s then-current use rights and restrictions, warranty term, warranty upgrade and maintenance terms. Product Notices may be delivered by means of Quotes, written notices, contract riders and/or a posting on the applicable Flux IT website, currently located at http://www.Flux IT.com.au. The terms of all applicable Product Notices shall be deemed incorporated into and made a part of this BOA.
  8. “Quote(s)” means one or more documents issued by Flux IT specifying the Products and/or Service that Customer seeks to obtain from Flux IT, the related pricing and sufficient other information to complete the transaction.
  9. “Service” means all services provided by Flux IT or its designee pursuant to this BOA.
  10. “Software” means (i) Core Software (as defined in the Equipment Exhibit), (ii) Enhanced Feature Software (as defined in the Equipment Exhibit), (iii) Application Software (as defined in the Application Software Exhibit), and (iv) all Flux IT Documentation for any of the foregoing.
  11. “Software Release” means any new version of Software that is made generally available by Flux IT at no separate or additional charge pursuant to (i) the warranty for Core Software and (2) the Support Terms for all Software but does not mean a new Product.
  12. “Support Terms” means Flux IT’s support and maintenance terms as set forth in the Support Exhibit.
  13. “Support Tools” means any hardware, software and other tools and/or utilities used by Flux IT to perform diagnostic or remedial activities in connection with Equipment and/or Software.
  14. “User” means Customer’s agents, employees, consultants or independent contractors authorized by Customer to use the Products on Customer’s behalf.

2. ORDERING, PRICING AND PAYMENT.

  1. Products. A Quote will be deemed accepted by Customer when Customer places an order by: (i) signing the Quote and returning it to Flux IT, (ii) issuing a purchase order for the Products and/or Services on the Quote, or (iii) sending an email or other writing accepting the Quote. A customer order is complete as to Equipment when Equipment is shipped or as to Software when Software is made available to Customer.  Following Flux IT ‘s completion of an order or portion thereof, Flux IT will issue an invoice for the Products with respect to which the order is completed, such invoice to reflect the price for such Products as set forth on the Quote.  Customer shall pay Flux IT the price stated on the invoice and pay or reimburse Flux IT for all related taxes or withholdings, except for those taxes based on Flux IT’s net income.  If Customer is required to withhold taxes, then Customer will forward any withholding receipts to Flux IT at info@flux.ax  All amounts are due in the Australian dollars ($AUD) and in full 30 days after the date of Flux IT’s invoice, with interest accruing thereafter at the lesser of 1.5% per month or the highest lawful rate. Unless otherwise specified, Australian Goods and Services tax (GST) is payable by Customer additional to the price stated.
  2. Evaluation Products. If Customer wishes to obtain any Evaluation Products, then Customer shall make such request to Flux IT. If Flux IT agrees to provide Evaluation Products to Customer, then Flux IT will confirm the duration and other terms applicable to the evaluation in writing referencing this BOA. The terms governing Evaluation Products stated herein shall apply to Customer’s use of Evaluation Products.

3. ORDERS BY AFFILIATES.

An Affiliate may place an order pursuant to a Quote. Customer unconditionally guarantees the performance of all obligations undertaken by its Affiliates.  If any Affiliate does not perform an obligation pursuant to this BOA, Customer shall immediately perform such obligation and Customer agrees that Flux IT may proceed directly against Customer for such non-performance.  Customer’s liability shall not be affected by the insolvency or bankruptcy of any Affiliate.

4. WARRANTY AND DISCLAIMER.

  1. Duration. The warranty term for the Products shall be as set forth in the applicable Product Notice in effect as of the date of the Quote under which Customer ordered each Product. In the event of a conflict between the Product Notice and this BOA, the Product Notice shall control. Evaluation Products contain no warranty and are provided to Customer “AS IS.”
  2. Enhanced Feature Software and Application Software Warranty. Flux IT warrants that, from the date of shipment or the date of electronic availability, as applicable, Enhanced Feature Software and Application Software will substantially conform to the applicable Documentation for such Software. Flux IT does
Warrant that the operation of Enhanced Feature Software and Application Software shall be uninterrupted or error free, or that all defects can be corrected.  Flux IT’s entire liability and Customer’s exclusive remedies under the warranties described in this Section shall be for Flux IT, at its option, to use reasonable efforts to remedy such defects or performance failure or to replace the affected Software. If Flux IT is unable to make the affected Software operate as warranted within a reasonable time, then Flux IT shall refund the amount paid by Customer for the affected Software license upon return of the specific Software to Flux IT.
  1. Warranty Exclusions. Except as expressly stated in the applicable warranty set forth in this BOA and the applicable exhibits, Flux IT (including its suppliers) provides Products “AS IS” and makes no other express or implied warranties, written or oral, and all other warranties are specifically excluded, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and any warranty arising by statute, operation of law, course of dealing or performance, or usage of trade.

5. PRODUCT SUPPORT.

  1. Support and Maintenance. Support and maintenance for Products, as specified in applicable Product Notices, are available under the terms of the applicable Support Terms. If Customer ceases support and later wishes to re-instate support, then re-instatement may be subject to certification at Flux IT’s then-current rates.
  2. Support Tools. Support Tools are owned by or licensed to Flux IT. Customer authorizes Flux IT to store Support Tools and spare parts at the installation site and agrees that such are for use only by Flux IT authorized personnel. Customer shall not make and shall use reasonable care to prohibit its personnel or any third party from making, any copies, use, disclosure or transfer of Support Tools and/or such spare parts. Flux IT is authorized, upon the conclusion of any maintenance or warranty period or at any other time, upon reasonable notice to Customer, to enter the installation site, or to use remote means, to remove and/or disable Support Tools and spare parts and Customer shall reasonably cooperate in this effort.

6. CONFIDENTIALITY.

Each party shall  (i) use Confidential Information of the other party only for the purposes of exercising rights or performing obligations in connection with this BOA, and (ii) use at least reasonable care to protect from disclosure to any third parties any Confidential Information disclosed by the other party for a period from Flux IT’s issuance of the first Quote until three (3) years following the termination date of this BOA, except with respect to the Products, Evaluation Products and Support Tools, which shall remain Confidential Information until one of the exceptions stated in Section 1B applies.  Notwithstanding the foregoing, a receiving party may disclose Confidential Information pursuant to a valid order of a court or authorized government agency provided that the receiving party has given the disclosing party prompt notice so that the disclosing party will have an opportunity to defend, limit or protect against such disclosure.

7. OWNERSHIP AND RESTRICTIONS.

Software provided under any Exhibit and Evaluation Products are licensed only. No title to, or ownership of, the Software or Evaluation Products is transferred to Customer. Customer shall reproduce and include copyright and other proprietary notices on and in any copies, including but not limited to partial, physical or electronic copies, of the Software and Evaluation Products. Neither Customer nor its Users shall modify, enhance, supplement, create derivative works from, reverse assemble, reverse engineer, reverse compile or otherwise reduce to human readable form the Software or Evaluation Products without Flux IT’s prior written consent, nor shall Customer permit any third party to do the same.

8. INDEMNITY.

Flux IT shall (i) defend Customer against any third-party claim that a Product or Service infringes a patent, or a copyright enforceable in a country that is a signatory to the Berne Convention, and (ii) pay the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction or the amounts stated in a written settlement signed by Flux IT. The foregoing obligations are subject to the following: Customer (a) notifies Flux IT promptly in writing of such claim, (b) grants Flux IT sole control over the defence and settlement thereof, (c) reasonably cooperates in response to an Flux IT request for assistance, and (d) is not in material breach of this BOA. Should any such Product or Service become, or in Flux IT’s opinion be likely to become, the subject of such a claim, Flux IT may, at its option and expense, (1) procure for Customer the right to make continued use thereof, (2) replace or modify such so that it becomes non-infringing, (3) request return of the Product and, upon receipt thereof, refund the price paid by Customer, less straight-line depreciation based on a four  year useful life for Equipment and a three year useful life for Software, or (4) discontinue the Service and refund the portion of any pre-paid Service fee that corresponds to the period of Service discontinuation. Flux IT shall have no liability under this Section 8 to the extent that the alleged infringement arises out of or relates to: (A) the use or combination of a Product or Service with third party products or services, (B) use for a purpose or in a manner for which the Product or Service was not designed, (C) any modification made by anyone other than Flux IT or its authorized representatives, (D) any modifications to a Product or Service made by Flux IT pursuant to Customer’s specific instructions, (E) any technology owned or licensed by Customer from third parties, (F) any Evaluation Products, (G) Flux IT Select Products (defined in Section 10 below) or (H) use of any older version of the Software when use of a newer Software Release made available to Customer would have avoided the infringement.  This section states customer’s sole and exclusive remedy and Flux IT’s entire liability for third party infringement claims.

9. LIMITATION OF LIABILITY.

A Limitation on Direct Damages. Except with respect to claims arising under sections 6, or 8 of these general terms and conditions, Flux IT’s and its supplier’s total liability and customer’s sole and exclusive remedy for any claim of any type whatsoever, arising out of product or service provided hereunder, shall be limited to proven direct damages caused by Flux IT’s sole negligence in an amount not to exceed (i) AUD $2,000,000, for damage to real or tangible personal property; and (ii) the price paid by customer to Flux IT for the specific service (calculated on an annual basis, when applicable) or product from which such claim arises, for damage of any type not identified in (i) above or otherwise excluded hereunder.
  1. No Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF Flux IT’S INTELLECTUAL PROPERTY RIGHTS OR CLAIMS ARISING UNDER SECTIONS 6 OR 8 ABOVE, NEITHER CUSTOMER NOR Flux IT (INCLUDING Flux IT’S SUPPLIERS) SHALL (a) HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF; AND (b) BRING ANY CLAIM BASED ON PRODUCT OR SERVICE PROVIDED HEREUNDER MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
C Trade Practices Legislation: Flux IT’s liability under any statutory right or any condition or warranty, including any implied by any State Fair Trading Act or the Trade Practices Act, 1974 (Cth) is, to the maximum extent permitted by law, excluded. To the extent that such liability cannot be excluded, Flux IT’s liability is limited at the option of Flux IT to: (a) in the case of any Equipment or Software, any one or more of the following: (i) the replacement of the Equipment or Software or the supply of equivalent Equipment or Software; (ii) the repair of the Equipment or Software; (iii) the payment of the cost of replacing the Equipment or Software or of acquiring equivalent Equipment or Software; or (iv) the payment of the cost of having the Equipment or Software repaired, and (b) in the case of any services performed by Flux IT under or in connection with this BOA: (i) the supply of those services again; or (ii) the payment of the cost of having those services supplied again.

10. FLUX IT SELECT PRODUCTS.

Any third-party products licensed or sold by Flux IT and identified as “Flux IT Select Products” are subject to the terms of the third-party manufacturer’s agreement provided with the Flux IT Select Products. The Flux IT Select Products are identified at http://www.samn.tech. If no such agreement is provided, the Flux IT Select Products are provided “AS IS.” Flux IT Select Products are not supported by Flux IT and Customer must contact such third party directly for support services. IN NO EVENT SHALL Flux IT BE LIABLE TO CUSTOMER FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE, THAT IN ANY WAY ARISE OUT OF OR RELATE TO ANY Flux IT SELECT PRODUCTS.

11. GOVERNMENT REGULATIONS.

The Products and the technology included therein provided under this BOA are subject to governmental restrictions on exports from the U.S.; restrictions on exports from other countries in which such Products and technology included therein may be produced or located; disclosures of technology to foreign persons; exports from abroad of derivative products thereof; and the importation and/or use of such Products and technology included therein outside of the United States (collectively, “Export Laws”). Diversion contrary to U.S. law is expressly prohibited. Customer shall, at its sole expense, comply with all Export Laws and Flux IT export policies made available to Customer by Flux IT.  Customer represents that it is not a Restricted Person, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; or (2) on any restricted person or entity list maintained by any U.S. governmental agency.  Certain information, products or technology may be subject to the International Traffic in Arms Regulations (“ITAR”).  This information, products or technology shall only be exported, transferred or released to foreign nationals inside or outside the United States in compliance with ITAR.

12. TERMINATION.

Either party may terminate this BOA or any Exhibit incorporated herein upon written notice due to the other party’s material breach of the applicable document; provided that such breach is not cured within thirty (30) days after the provision of written notice to the breaching party specifying the nature of such breach.  Upon termination of the BOA, the following Sections hereof shall survive in accordance with their terms:  1, 2 (only if fees are due and owing at termination), 4C, 5B, 6, 7, 8, 9, 10, 11, 12, 13 and 14.  Upon termination of only one or more Exhibits, the surviving provisions shall be as stated in the applicable Exhibits.  Upon termination of both the BOA and all Exhibits, all sections identified in each document shall survive.

13. NOTICES.

Any notices permitted or required under this BOA shall be in writing and shall be deemed given when delivered (i) in person, (ii) by overnight courier, upon written confirmation of receipt, (iii) by certified or registered mail, with proof of delivery, (iv) by facsimile transmission with confirmation of receipt, or (v) by email, with confirmation of receipt.  Notices shall be sent to the address, facsimile number or email address set forth above, or at such other address, facsimile number or email address as provided to the other party in writing.

14. MISCELLANEOUS.

Flux IT may identify Customer for reference purposes. This BOA (i) is the complete statement of the agreement of the parties with regard to the subject matter hereof; and (ii) may be modified only by a writing signed by both parties.  This BOA shall govern the purchase and/or license, as applicable, of Products by Customer pursuant to Quotes issued by Flux IT.  In case of any conflict between a Quote and this BOA, this BOA shall control.  Except for the payment of fees, neither party shall be liable under this BOA because of a failure or delay in performing its obligations hereunder on account of any force majeure event, such as strikes, riots, insurrection, terrorism, fires, natural disasters, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party. Customer shall not assign this BOA or any right or delegate any performance without Flux IT’s prior written consent, which consent shall not be unreasonably withheld.  Customer shall promptly notify Flux IT, and Flux IT may terminate this BOA on thirty days’ notice, if Customer merges with or is acquired by a third party or otherwise undergoes a change of control event.  This BOA is governed by the laws of the State of New South Wales, excluding its conflict of law rules and excluding the U.N. Convention on Contracts for the International Sale of Goods.  All terms of any purchase order or similar document provided by Customer, including but not limited to any pre-printed terms thereon and any terms that are inconsistent or conflict with this BOA and/or a Quote, shall be null and void and of no legal force or effect. No waiver shall be deemed a waiver of any prior or subsequent default hereunder.