Your Relationship with Art of Logic
1. Introduction
These Commercial Terms of Sale (the “Agreement”), made between you (“you” or “Customer”) and Art of Logic, govern your purchase and use of Products and Services from Art of Logic. “Art of Logic” means Art of Logic Pty Ltd. This Agreement is effective upon the earliest of (i) your issuance of a purchase order to Art of Logic, (ii) your acceptance of these terms, or (iii) your agreement with a reseller that references this Agreement. If you purchased through a reseller or distributor, final prices and sales terms will be between you and the reseller or distributor; however, this Agreement applies to your possession and use of Products and Services. A. Definitions. “Hardware” means computer hardware, related devices and other accessories including all embedded components (excluding Software). “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) form, and “Documentation” means the related media, printed materials, online and electronic documentation, including copies. “Products” means Hardware, Software, or both. “Services” means services and Deliverables provided by Art of Logic. “Deliverables” means the tangible materials, including reports, studies, drawings, software, manuals or written procedures and recommendations that Art of Logic delivers to you under a Statement of Work. “Third-Party Products” means products, software, or services that are not manufactured or performed by Art of Logic. B. Additional Agreements. This Agreement, the Service Agreements and the Software Agreements (each as defined below) form a legally binding contract between you and Art of Logic. In the event of a conflict or ambiguity, the applicable Service Agreement or Software Agreement will take precedence over this Agreement.
2. Term; Auto-Renewal
This Agreement will continue until all Services, Product warranties, or licenses have expired or been terminated. If you purchased directly from Art of Logic, Hardware Service and non-perpetual Software licenses may be renewed if you pay a renewal invoice from Art of Logic or continue to use the Hardware Service or Software past its initial term. If you purchased through a reseller, the payment terms for renewal for the Hardware Service or Software licenses will be as agreed between you and the reseller.
3. Quotes, Ordering, and Payment
Except for subsection B, this Section applies only to direct purchases from Art of Logic.
A. Quotes and Orders. “Order” means your order of Products or Services, either through //www.ArtofLogic.ai or other online process, by submitting a purchase order that references an Art of Logic quote, or by executing an Art of Logic order form. Your Order is subject to acceptance by Art of Logic. Acceptance of one Order is independent from any other Order. Quoted prices are effective until the expiration date of the quote, but may change due to shortages in materials or resources, increase in the cost of manufacturing, or other factors. Orders for Third-Party Products are subject to availability and are cancellable only by Art of Logic. Art of Logic is not responsible for pricing, typographical, or other errors in any offer, and may cancel orders affected by such errors.
B. Changed or Discontinued Products or Services. Art of Logic may revise or discontinue Products and Services at any time, including after Customer places an Order, but prior to Art of Logic’s shipment or implementation of product. As a result, Products and Services Customer receives might differ from those ordered. However, Art of Logic-branded Products will materially meet or exceed all published specifications for the Products. Parts used in repairing or servicing Products may be new, equivalent to-new, or reconditioned.
C. Shipping Charges; Title; Risk of Loss. Shipping and handling charges are not included in Product prices unless expressly indicated at the time of sale. Unless otherwise explicitly stated in the relevant Art of Logic quote, Title to Hardware passes from Art of Logic to Customer upon the later of full payment, or delivery at the ship-to address indicated in the Order. Delivery occurs for Hardware or Software delivered through physical media once it has arrived at the ship-to address indicated in the order. Delivery of Software delivered electronically or through a Transformational License Agreement or similar enterprise license arrangement shall occur once Art of Logic has made it available for download and has notified Customer thereof and/or has sent out activation codes to Customer where required to use the Software. Loss or damage that occurs during shipping (including returns) is the responsibility of the party that selected the carrier. Shipping and delivery dates are estimates only. You must notify Art of Logic within 21 days of your invoice date if you believe any part of your Order is missing, wrong, or damaged. All Products will be deemed to be accepted upon delivery.
D. Payment. Goods required to be manufactured may require a payment of up to 50% of the sale value prior to manufacturing commencing. Where this is enforced within an order it will be documented to the Customer. Invoices are due and payable within the time period stated on your invoice, or if not stated, within 30 days from the invoice date. Payment must be made in the method and currency identified by Art of Logic. Credit approval may be revoked at any time. Art of Logic may invoice parts of an Order separately or together in one invoice. All invoices shall be deemed accurate unless Customer advises Art of Logic in writing of a material error within 10 days following receipt. If Customer advises Art of Logic of a material error, (i) any amounts corrected by Art of Logic in writing shall be paid within 14 days of correction and (ii) all other amounts shall be paid by Customer by the due date. If Customer withholds payment upon an assertion that an invoiced amount is erroneous, and Art of Logic concludes that such amount is accurate, Customer shall pay interest as described below from the due date for such amounts until Art of Logic’s receipt of those amounts. Customer may not offset, defer or deduct any invoiced amounts that Art of Logic determines are not erroneous following the notification process set forth above. Art of Logic may charge a late penalty of 1.5% per month on undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Late penalties will be recalculated every 30 days based on your current outstanding balance. Art of Logic retains title to the Product until full payment is received.
E. Taxes. You are responsible for sales tax and any other taxes or governmental fees associated with your Order. If you qualify for a tax exemption, you must provide Art of Logic with a valid certificate of exemption or other appropriate proof of exemption. The charges stated on each line item of the invoice shall include all duties, levies or any similar charges and exclude sales tax or equivalent GST or use tax. Customer shall also pay all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes). Art of Logic’s invoice shall be in accordance with applicable law. If Customer is required by law to make a withholding or deduction from payment, Customer will make payments to Art of Logic net of the required withholding or deduction. Customer will supply to Art of Logic satisfactory evidence (e.g. official withholding tax receipts) that Customer has accounted to the relevant authority for the sum withheld or deducted.
F. Hardware Returns and Exchanges. You agree to Art of Logic's return policy as stated at www.artofLogic.ai/returns-policy.
4. Services and Software
A. Service Agreements. Art of Logic may provide Services, Service-related Software, or Deliverables to you in accordance with one or more “Service Agreements.” Each Service Agreement will be interpreted separately from any other Service Agreement.
B. Hardware Services.
i. Exclusions. “Hardware Services” are Services necessary to repair a defect in materials or workmanship of Hardware. Hardware Services do not include preventive maintenance or repairs required due to (a) software problems; (b) alteration, adjustment, or repair of the Hardware by anyone other than Art of Logic or Art of Logic’s representatives; (c) accident, misuse, or abuse of the system or component (such as fire, water leakage, use of incorrect line voltages or fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) that have not been caused by Art of Logic; (d) moving of the system from one geographic location or entity to another; or (e) an act of nature.
ii. Customer Authorization for Provision of Services. Some warranties or service contracts for Third-Party Products may become void if Art of Logic provides services for such products. ART OF LOGIC SHALL NOT BE RESPONSIBLE FOR ANY EFFECT THAT THE HARDWARE SERVICES MAY HAVE ON THOSE WARRANTIES OR SERVICE CONTRACTS. You authorize Art of Logic to use or otherwise access any and all Third-Party Products you provide to us as may be necessary to perform the Services or as requested by you, including but not limited to copying, storing, and reinstalling a backup system or data.
5. Proprietary Rights
The Products and Software are protected pursuant to copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All right, title, and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the Software, Products and Deliverables, and the methods by which the Services are performed and the processes that make up the Services, shall belong solely and exclusively to Art of Logic or its suppliers or licensors. Subject to Art of Logic’s receipt of payment in full for the applicable Services, Art of Logic grants you a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely (i) in the country or countries in which you do business; (ii) for your internal use; and (iii) as necessary for you to enjoy the benefit of the Services as stated in the applicable Service Agreements.
6. Limited Warranty
A. To the extent permitted by law, the limited warranties for art of logic-branded or art of logic licensed hardware shall be as stated in the documentation provided with the hardware. If there is no such documentation, then the warranties shall be as stated at artoflogic.ai/warrantyterms (“express warranties”). The limited warranties for software shall be as stated in the applicable software agreement. The services will be provided in a good and workmanlike manner.
B. The above warranties do not cover damage due to external causes, such as accident, abuse, misuse, problems with electrical power, services not performed or authorized by art of logic (including installation or de-installation), usage not in accordance with product instructions, normal wear and tear, or use of parts and components not supplied or intended for use with the products or services. Any warranty for a third-party product is provided by the publisher, provider, or original manufacturer. All third-party products are provided by art of logic “as is.”
C. Except as expressly stated above or in the express warranties, and to the maximum extent permitted by law, art of logic (including art of logic contractors, and agents, and each of their respective employees, directors, and officers), on behalf of itself and its suppliers and licensors makes no express or implied warranty with respect to any of the products or services, including but not limited to any warranty (i) of merchantability, fitness for a particular purpose, performance, suitability, or non-infringement; (ii) for any third-party products; (iii) for the performance of or results to be obtained from any products or services; or (iv) that the products or services will operate or be provided without interruption or error. The art of logic-branded products and services are not fault tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as any application in which the failure of the products or services could lead directly to death, personal injury, or severe physical or property damage (collectively, “high-risk activities”). Art of logic expressly disclaims any express or implied warranty of fitness for high-risk activities.
7. Confidentiality
“Confidential Information” means information that is designated as confidential or should reasonably be understood to be confidential. Confidential Information may only be disclosed to the receiving party’s personnel, professional advisors, agents, and subcontractors (“Representatives”), on a “need-to-know” basis in connection with this Agreement. Representatives shall be bound to treat the Confidential Information under terms at least as restrictive as those herein, and the receiving party shall be liable for unauthorized disclosures by its Representatives. Each party will use at least the same degree of care as it employs with respect to its own Confidential Information, but not less than a commercially reasonable standard of care. The foregoing shall not apply to information that (i) is independently developed without use of the other party’s Confidential Information; (ii) has been obtained from a source which is not under a confidentiality obligation; or (iii) is or becomes publicly available without fault of the receiving party. If receiving party must disclose Confidential Information as required by law, it shall give reasonable prior notice to the disclosing party. These obligations shall continue for 3 years from the initial date of disclosure, except that obligations related to information about a party’s intellectual property shall never expire.
8. Indemnification
A. If you purchased Products or Services directly from Art of Logic, Art of Logic shall defend and indemnify you against any third-party claim that Art of Logic-branded Products or Services (excluding Third-Party Products and open source software) infringe or misappropriate that third party’s Australian patent, copyright, trade secret, or other intellectual property rights (“Claim(s)”). In addition, if Art of Logic receives prompt notice of a Claim that Art of Logic believes is likely to result in an adverse ruling, then Art of Logic shall at its option, (i) obtain a right for you to continue using such Products or Deliverables or for Art of Logic to continue performing the Services; (ii) modify such Products or Services to make them non-infringing; (iii) replace such Products or Services with a non-infringing equivalent; or (iv) if you purchased directly from Art of Logic, refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product or Deliverables. Art of Logic shall have no obligation for any claim arising from (a) modifications of the Products and Services that were not performed by or on behalf of Art of Logic; (b) misuse, or the combination or use with Third-Party Products (the combination of which causes the claimed infringement); or (c) Art of Logic’s compliance with your written specifications, including the incorporation of any software or other materials or processes you provide or request. Art of Logic’s duty to indemnify and defend the Claim is contingent upon: (x) your prompt written notice of the Claim; (y) Art of Logic’s right to solely control the defence and resolution of the Claim; and (z) your cooperation in defending and resolving the Claim. These are your exclusive remedies for any third-party intellectual property claim, and nothing in this Agreement or elsewhere will obligate Art of Logic to provide any greater indemnity.
B. You shall defend and indemnify Art of Logic against any third-party claim resulting or arising from: (i) your failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by you, or associated with software or components requested by you to be used with, or installed or integrated as part of the Products or Services; (ii) your violation of Art of Logic’s intellectual property rights; (iii) any inaccurate representation regarding the existence of an export license or any allegation made against Art of Logic due to your alleged violation of applicable export laws; or (iv) your transferring or providing access to Excluded Data (as defined below) to Art of Logic.
C. Each party shall defend and indemnify the other against any third-party claim for personal bodily injury, including death, where the injury has been exclusively caused by the indemnifying party’s gross negligence or wilful misconduct in connection with this Agreement.
9. Compliance with Laws
A. In performing its obligations under this Agreement, each party agrees to comply with all laws and regulations applicable to such party including the customs and export control laws and regulations of Australia; and any other country in which the Products or Services are delivered or performed.
B. Art of Logic’s privacy policies explain how Art of Logic treats your personal information and protects your privacy and can be found at artofLogic.ai/privacy-policy.
10. Termination or Suspension
A. Suspension or Modification of Services. Art of Logic may suspend, terminate, withdraw, or discontinue all or part of the Services when Art of Logic believes, in its sole judgment, that you are involved in any fraudulent or illegal activities.
B. Termination. Either party may terminate a Service Agreement or Software Agreement if the other party commits a material breach and the breach is not cured within 90 days of receipt of written notice. Termination of any Service Agreement will not terminate other Service Agreements, and termination of all Service Agreements will not terminate this Agreement. Art of Logic may terminate this Agreement and all Service Agreements and Software Agreements immediately, if (i) you fail to make any payment when due; (ii) you declare bankruptcy or are adjudicated bankrupt; (iii) a receiver or trustee is appointed for you or substantially all of your assets; or (iv) you purchased through a reseller and, as applicable, the agreement between you and such reseller expires or is terminated, the agreement between Art of Logic and such reseller expires or is terminated, or your reseller is delinquent on its payment obligations to Art of Logic. Further, Art of Logic may terminate a Service Agreement immediately if you are acquired by or merge with a competitor of Art of Logic. Upon termination of this Agreement, all rights and obligations under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
11. Limitation of Liability
A. Art of logic will not be liable for any incidental, indirect, punitive, special, or consequential damages arising out of or in connection with this agreement or the products or services. Except for your breach of sections 3(d) or 7, or your violation of art of logic’s intellectual property rights, neither party shall have liability for the following: (i) loss of revenue, income, profit, or savings; (ii) lost or corrupted data or software, loss of use of a system or network or the recovery of such; (iii) loss of business opportunity; (iv) business interruption or downtime; (v) the products, deliverables or third party products not being available for use; or (vi) the procurement of substitute products or services.
B. Art of logic’s total liability for any and all claims arising out of or in connection with this agreement (including products and services) in any 12 month period shall not exceed the total amount received by art of logic during the prior 12 months of this agreement for the specific product or service giving rise to such claim(s).
C. These limitations, exclusions, and disclaimers apply to all claims for damages, whether based in contract, warranty, strict liability, negligence, tort, or otherwise. These limitations of liability are agreed allocations of risk constituting in part the consideration for art of logic’s sale of products or services to customer, and will apply to the extent permissible under law, notwithstanding the failure of essential purpose of any limited remedy and even if a party has been advised of the possibility of such liabilities.
12. Additional Terms
A. Independent Subcontractor Relationship; Assignment; Subcontracting. The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation on behalf of the other party except as specified in this Agreement. Neither party’s employees, agents, nor consultants shall be considered under any circumstances to be employees of the other party. Art of Logic has the right to assign, subcontract, or delegate in whole or in part this Agreement, or any of its rights, duties, obligations or liabilities provided that if it subcontracts its duties in providing Services, Art of Logic shall remain responsible for the performance of such Services under this Agreement. You may not assign this Agreement without Art of Logic’s permission.
B. Excused Performance. A party shall not be liable to the other for any delay in performing its obligations if the delay is caused by circumstances beyond its reasonable control, provided that the other party is promptly notified in writing. If the circumstance lasts longer than 30 days, then the other party may terminate, in whole or in part, this Agreement or the affected Service Agreement or Software Agreement by giving written notice to the delayed party. This Section shall not relieve either party of its obligations under this Agreement (including payment), but rather will only excuse a delay in performance.
C. Governing Law. This Agreement and any related Service Agreement(s), and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND ART OF LOGIC, including their affiliates, contractors, and agents, and each of their respective employees, directors, and officers (a “Dispute”) will be governed by the laws of South Australia, Australia.
D. Venue. The parties agree that any Dispute shall be brought exclusively in the state or federal courts located in Adelaide, South Australia, Australia. The parties agree to submit to the personal jurisdiction of such courts.
E. Limitation Period. NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN 2 YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
F. Dispute Resolution. Customer and Art of Logic will attempt to resolve any Dispute through negotiation or by utilizing a mediator agreed to by the parties, rather than through litigation. Negotiations and mediations will be treated as confidential. If the parties are unable to reach a resolution within 30 days of notice of the Dispute to the other party, the parties may pursue all other courses of action available at law or in equity.
G. Notices. Notice to Art of Logic under this Agreement or any related Service Agreement must be in writing and sent by registered or certified mail (postage prepaid mail and return receipt requested) by overnight delivery service or by electronic mail to the address below, and will be effective upon receipt.
Art of Logic Pty Ltd. Company Director
Suite 37 Innovation House, 50 Mawson Lakes Boulevard, Mawson Lakes, SA 5095 Australia
H. Entire Agreement; Severability. This Agreement is the entire agreement with respect to its subject matter and supersedes all prior or contemporaneous communications or agreements that may exist. If you purchased directly from Art of Logic, any preprinted terms on your purchase order shall be of no force or effect. Modifications to this Agreement will be made only through a written amendment signed by both parties. If any provision of this Agreement is found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force. No rights may arise by implication or estoppel other than those expressly granted herein.
(26 September 2022 Edition)
ART OF LOGIC PTY LTD L#_ 308005 E_ enquiries@artoflogictech.com W_ www.artoflogic.ai ABN_12644186372