The CSA is a framework agreement under which Agilyx resells any of its channel partner cloud services on a recurring/subscription basis. The CSA provides modules for each of our channel partner products that incorporate terms which apply to that product, while the terms below apply to all channel partner cloud services sales and help us provide a uniform experience for whatever product mix you may purchase from us.
See the modulesCapitalised words and phrases in this Agreement have their meaning from the Dictionary unless the contrary intention appears.
In this Agreement, unless it is provided otherwise, the Rules of Interpretation apply.
This Agreement incorporates the Agilyx General Terms of Business, they apply as though set out in full here.
This Agreement provides the terms under which the Customer is granted access to one or more subscription software services (each a Subscription Service) provided by (or procured for the Customer by) Agilyx.
The Order Form will state which ‘Product Modules’ are incorporated into this Agreement. Any number of the following Product Modules may apply, depending on what is purchased using the Order Form:
Agilyx will grant access to each Subscription Service subject at all times to the Customer’s strict compliance with the applicable Product Modules and the terms of this Agreement.
This Agreement commences on the date the Order Form is executed (or the date provided as the ‘Commencement Date’ on the Order Form) and shall continue for the initial term specified on the Order Form (Initial Term).
Subject to the below rights of termination, at the end of the Initial Term, this Agreement will automatically renew for a further one (1) year term (each a Renewal Term). At the end of each Renewal Term, the Agreement will also automatically renew for a further Renewal Term, unless:
either party provides the other party with written notice of termination at least sixty (60) days prior to the expiration of the Initial Term (or if applicable, the Renewal Term), in which case the Agreement will terminate upon expiry of either the Initial Term (or the Renewal Term, as applicable); or
the Customer is in breach of any of its payment obligations under this Agreement, in which case Agilyx may terminate the Agreement effective at the expiry of the Initial Term (or the Renewal Term, as applicable).
This Agreement may be immediately terminated by Agilyx if the Customer materially breaches any term of this Agreement and such a breach is either:
irremediable; or
not remedied within 30 days of receiving notice from Agilyx specifying the breach.
Upon termination or expiry of this Agreement for any reason, the Customer must cease use of the Subscription Service.
The rights of termination in this clause are granted without limiting any other rights or remedies a party may have against the other party arising out of or in connection with this Agreement.
The Customer agrees to pay Agilyx annual subscription payments in advance for each year in the Initial Term and any Renewal Term(s) (each an Annual Subscription Payment). The amount to be paid is set out in the Order Form, and updated or changed according to this Agreement.
Agilyx will issue an invoice for the first Annual Subscription Payment of the Initial Term on or around the Commencement Date and then for each Annual Subscription Payment thirty (30) days before each subsequent anniversary of the Commencement Date.
Agilyx will notify the Customer ninety (90) days prior to a Renewal Term if:
the terms of this Agreement have been updated (Updated Terms), in which case Agilyx will provide access to a copy of the Updated Terms along with the notice; and/or
the annual subscription price for the upcoming Renewal Term is changing (other than through Indexation) (Updated Pricing).
By continuing to use the Subscription Service into the Renewal Term the Customer agrees to renew the annual subscription governed by any Updated Terms and at the Updated Pricing.
If Agilyx does not provide notice of Updated Terms or Updated Pricing, Agilyx will issue an invoice for the Renewal Term at the same price as the previous year’s subscription (subject to Indexation) and the Renewal Term will be governed by the existing terms in force at that time (whether original or using a previous set of Updated Terms).
After the first Annual Subscription Payment, Agilyx may increase any subsequent Annual Subscription Payment where there is an increase in relevant CPI Metric according to the table below and in any event at least 2% to account for the effect of inflation (Indexation). The increase will be calculated as at the date of Agilyx’s invoice for the next Annual Subscription Payment.
| Jurisdiction | CPI Metric |
|---|---|
| Australia | The percentage change in the Australian Consumer Price Index (weighted average eight capital cities, all groups index), as published by the Australian Bureau of Statistics for the preceding year, plus 2% |
| England and Wales | The percentage change over 12 months in the Consumer Prices Index including owner occupiers’ housing costs (CPIH) for all items as published by the Office of National Statistics, plus 2% |
| South Africa | The percentage change year on year in the Consumer Price Index as published by the Department of Statistics South Africa, plus 2% |
| New Zealand | The percentage annual change in the New Zealand Consumers Price Index, as published by Stats NZ, plus 2% |
| Ireland | The annual percentage change in the Consumer Price Index, as published by the Central Statistics Office, plus 2% |
| Canada | The 12-month percentage change in the Consumer Price Index, as published by Statistics Canada, plus 2% |
| United States of America | The 12-month percentage change in the Consumer Price Index, All Items, as published by the US Bureau of Labor Statistics, plus 2% |
| Malaysia | The percentage change in the Consumer Price Index Malaysia, as published by the Australian Bureau of Statistics Department of Statistics Malaysia for the preceding year, plus 2% |
| Singapore | The year-on-year percentage change in the Singapore Consumer Price Index (All Items), as published by Statistics Singapore for the same period in the previous year, as at the date of the increase, plus 2% |
The Customer agrees to pay the invoice within 30 days of its date of issue. Payment of the invoice must be made by one of the methods prescribed on the invoice. To the extent permitted by law, all payments made under this Agreement are final and non-refundable.
The invoice will be issued to the Customer’s Accounts Payable department/contact as identified or advised by the Customer from time to time. The Customer must ensure that Agilyx has the appropriate information required to provide the Customer with an invoice to the correct individual/department/system within its organisation.
In making a payment, the Customer must adopt best practice anti-fraud measures, for instance, by telephoning Agilyx to confirm the bank details for transfer prior to sending funds electronically.
If the Customer is an existing customer of Agilyx and is receiving invoices for another product or service provided by Agilyx, then Agilyx may issue an invoice for an extended Annual Subscription Payment which is pro-rated to cover part of the next annual subscription period. This may be done by Agilyx to align the payment of the Annual Subscription Payment with the payment date(s) of any other products or services Agilyx provides to the Customer.
If payment of an invoice is late, Agilyx may charge the Customer interest and recovery costs for the overdue period. The rate of interest is provided in the table below and varies by jurisdiction, subject always to applicable law.
| Jurisdiction | Applicable Interest Rate (% per annum) |
|---|---|
| New South Wales, Australia | Commonwealth Bank of Australia’s Corporate Overdraft Reference Rate (CORR) for a Business Overdraft plus 5% |
| England and Wales | HSBC’s Representative EAR (Effective Annual Rate) for a Business Overdraft |
| Republic of South Africa | First National Bank’s Prime Lending Rate plus 5% |
| New Zealand | ASB’s Corporate Indicator Rate plus 5% |
| Ireland | Allied Irish Bank’s Business Overdraft AA Rate plus 5% |
| British Columbia, Canada | Royal Bank of Canada (RBC) Royal Bank Prime rate plus 5% |
| United States of America (all states) | JPMorgan Chase & Co’s most recent Historical Prime Rate plus 5% |
| Malaysia | The Malaysian Banking Berhad (Maybank2u) Base Lending/Base Financing Rate plus 5% |
| Republic of Singapore | United Overseas Bank Group (UOB) Prime Lending Rate plus 5% |
Without limiting Agilyx’s other rights or remedies at law or under this Agreement, Agilyx may suspend in whole or in part the Subscription Service if the Customer is in breach of any of its payment obligations under this Agreement.
Other than the warranties expressly given in this Agreement (including under any Product Modules), and to the extent permitted by law, each party excludes all implied terms and warranties whether statutory or otherwise, relating to the subject matter of this Agreement including any warranties of merchantability or fitness for any purpose.
The total aggregate liability of Agilyx (whether under statute, in contract or in tort, including for negligence, or otherwise) under or in connection with this Agreement is limited to the amount of the latest Annual Subscription Payment.
To the extent permitted by law, under no circumstances whether in tort, contract, or otherwise, shall either party be liable to the other (whether such losses or damage were foreseeable, known or otherwise) for any indirect, special, incidental, or consequential damages of any character, or any claims, losses or damages (whether actual or anticipated) for loss of goodwill, revenue, profit, contracts, opportunity, anticipated savings, loss or corruption of data or equipment, work stoppage, computer failure or malfunction.
This clause shall survive termination or expiry of the Agreement.
Agilyx or its nominee has the right to periodically audit the Customer to ensure that it is not using the Subscription Service in violation of this Agreement.
During the Customer’s ordinary business hours and upon prior written notice, Agilyx or its nominee may inspect, and the Customer will make available to inspect, the software in use under the Subscription Service or any relevant records pertaining to its use. Any discrepancies or non-compliances discovered by the audit will be promptly rectified (including reimbursement of any amounts owning to Agilyx).
The cost of any requested audit will be solely borne by Agilyx, unless such audit discloses an underpayment or amount due to Agilyx in excess of five percent (5%) of the Annual Subscription Payment or that the Customer is using the Subscription Service in an unauthorised manner, in which case the Customer must pay the cost of the audit.
