Customer FIRST Program Terms and Conditions - … · Customer FIRST Program Terms and Conditions 1 Overview ... “System” means the information technology systems, equipment (both

© Schneider Electric (Australia) Pty Limited 2014. All rights reserved V 1.02 Feb 2016

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Customer FIRST Program Terms and Conditions

1 Overview

1.1 The Customer FIRST Program is a software maintenance and support program that requires the payment of an annual fee in accordance with the current Schneider Electric price list. The Customer will subscribe to the Customer FIRST Program and agree to be bound by these terms and conditions upon payment of the Support Fee.

1.2 The Customer FIRST Program is a portfolio of support tiers that is priced based on the value of the Eligible Products’ Software licenses owned (or being purchased) by the Customer at the time the Support Fee is paid and the support tier selected by the Customer.

1.3 All Services are supplied in accordance with the following terms:

(a) The Support Certificate;

(b) These terms and conditions; and

For the purposes of these terms a reference to “Support Agreement” shall mean the above documents in clause 1.3(a) to 1.3(b).

1.4 If there is any conflict or inconsistency between the above documents the documents will rank in order of precedence with the order in which they are listed in clause 1.3 above.

1.5 Additional Services Agreements – From time to time Customer may order additional services from Schneider Electric such as Customer FIRST for Solutions (Additional Services). Such services will be purchased pursuant to agreements which will be read in conjunction with a Support Agreement (Additional Services Agreements), and to the extent of any inconsistency between the terms of the Additional Services Agreement and the terms of a Support Agreement, the terms of the Additional Services Agreement shall prevail.

1.6 In the event the Customer purchases the Services using a Purchase Order which incorporates additional terms and conditions, unless expressly agreed in writing by both parties otherwise, those additional terms and conditions shall be expressly excluded and overwritten by these terms and conditions.

1.7 No amendment or variation of the Agreement is valid or binding on a Party unless made in writing and signed by both Parties.

2 Definitions and Interpretation

2.1 In the Support Agreement, unless the contrary intention appears, capitalised words have the meanings set out in the Enterprise Agreement or below:

“Additional Services” means any services related to the maintenance and support of the

Eligible Product outside of the scope of the Maintenance and Support Services which are

ordered separately under Additional Services Agreements.

“Additional Services Agreement” shall mean agreements as described in clause 1.5.

“Commencement Date” shall mean the date upon which the Services commence.

“Customer” is the customer identified in the Support Certificate.

“Customer Error” means any problem in the operation or performance of the Eligible Product

caused by any of the following:

(a) A non Schneider Electric program or use of the Eligible Product in conjunction

therewith a hardware product;

(b) The Customer’s use of the Eligible Product other than as authorised in the Support

Agreement;

(c) The Customer’s or any of its Named Affiliate’s use of other than currently supported

Releases of the Eligible Product or any corrections provided by Schneider Electric;


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(d) If the Customer or a third party improperly installs or modifies the Eligible Product or

the Eligible Product’s database structure and source files

“Damages” means all liabilities, losses, damages, costs and expenses (including legal costs,

whether incurred by or awarded against a party), whether arising in contract, tort (including

negligence) or otherwise

“Deliverables” means the tangible materials, including reports, studies, drawings,

findings, software, manuals, procedures, and recommendations that Schneider Electric

delivers to Customer.

“Eligible Product” means the products that are supported under the Customer FIRST

Program as defined in Appendix 1 – Eligible Products which are the subject of the Services as

defined in Appendix 2 – Service Offerings & Support Tiers of the Support Agreement.

“Flexible Services Fund” means an optional Service for Customer to embed funds into a

Customer FIRST Support Agreement which can be used for Services during the term of the

Customer FIRST Support Agreement.

“Force Majeure Event” means any of the following causes provided that it is outside the

reasonable control of the affected party and could not have been prevented or avoided by that

party taking all reasonable steps:

(a) Act of God, earthquake, cyclone, flood, landslide, lightning, drought, tsunami, or

meteor;

(b) War (declared or undeclared), invasion, act of a foreign enemy, hostilities between

nations, civil insurrection or militarily usurped power;

(c) Act of public enemy, sabotage, malicious damage, vandalism, terrorism or civil

unrest; or

(d) Confiscation, nationalisation, requisition, expropriation, prohibition, embargo,

restraint or damage to property by or under the order of any government or

government authority.

“Goods” shall mean all products, equipment, materials, spare parts, hardware, supplies, and

accessories supported under the Agreement.

“GST Act” means the Goods and ServicesTax Act for your local jurisdiction.

“Major Release” means an update of the Eligible Product which incorporates major changes

to the Eligible Product and is reflected by a change to the Eligible Product’s name or edition

(i.e. CitectSCADA V7.2 or ClearSCADA 2010 Edition).

“Minor Release” means an update of the Eligible Product which is primarily intended to correct

field issues or to improve performance and is denoted by a change to the Eligible Product’s

name or edition (i.e. CitectSCADA V7.21 or ClearSCADA Rx numeral positioned to the right

of the Eligible Product name).

“New Release” means a new release of the Eligible Product which has been produced

primarily to extend, alter or improve the Eligible Product by providing additional functionality or

performance enhancements while still retaining the original designated purpose of the Eligible

Product.

“Personal Information” means all information about a person that is “personal information”

as defined in the Privacy Act, which is collected and/or handled by any of the parties in

connection with the Support Agreement.

“Personnel” or a “person”, means:

(a) the officers, employees, contractors and agents of that person; and


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(b) the officers, employees, contractors and agents of the contractors and related body

corporates of that person,

but in the case of the Customer, excludes Schneider Electric and each of its

Personnel.

“Privacy Act” means the Privacy Act in force in the local jurisdiction where the Customer is

situated and using the Software as amended from time to time.

“Privacy Principles” means the regulations and requirements of the relevant Privacy Act in

the jurisdiction in which the Software is used.

“Customer FIRST” is the support program provided by Schneider Electric for software

products. There are three Support Tiers* representing standardised service offerings which

consist of, Standard, Premium, and Elite. Further details regarding each Support Tier and the

services which are available may be found in Appendix 2 – Service Offerings & Support Tiers.

“Schneider Electric” means Schneider Electric (Australia) Pty Limited (ACN 004 969 304);

“Services” means the maintenance and support services provided as part of the Customer

FIRST Program as set out in the Support Agreement and any Additional Services.

“Service Pack” means a collection of updates, fixes, patches and enhancements to the

Eligible Product assembled by Schneider Electric and released to all supported licensees of

the Eligible Product from time to time.

“Software” means Schneider Electric computer software programs supported under the

agreement in object code form including firmware and custom software, and instructions

manuals, specifications and related documentation in written or electronic form, but excluding

third party software, their related instructions manuals and documentation, for which Schneider

Electric grants Customer a license and which are supported under the Agreement. The terms

and conditions of the Software license shall be set forth in Schneider Electric end-user license

agreement applicable to the particular software at the time of delivery.

“Specifications” means the Schneider Electric standard specifications applicable to the

Goods and /or Software or the specific requirements agreed upon, in writing, between

Schneider Electric and Customer in relation to the Goods and Software.

“Support Agreement” shall have the same meaning as set out in clause 1.3 of these terms

and conditions.

“Support Certificate” is the document entitled “Support Services Membership Certification”

which is issued by Schneider Electric confirming the Customer’s enrolment in the Customer

FIRST Program and the Term and Support Tier

“Support Fee” shall mean the fees to be paid by Customer to Schneider Electric under the

Agreement for enrolment in the Customer FIRST Program.

“Support Reinstatement Fee” shall mean the fees to be paid by Customer to Schneider

Electric when the Customer purchases a new support enrolment once the previous

support enrolment has lapsed.

“Support Tier” means one of the four tiers described in clause 4.1 and nominated in the

Support Certificate.

“System” means the information technology systems, equipment (both server and client),

hardware, software, network requirements and applications of the Customer.

“Tax” means all taxes, duties (including stamp duty), charges, fees and other imposts of

whatever kind (including any fine or penalty imposed in connection with them) that may be

levied, assessed, charged or collected in connection with the Support Agreement.


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“Term” means unless otherwise agreed in writing the period of 12 months, commencing on

the Membership Start Date and finishing on the Membership Expiry Date identified in the

Support Certificate.

“Third Party Products” means products and software of a third party vendor. If Third Party

Products are supplied by Schneider Electric to Customer, notwithstanding anything to the

contrary, such supply is made on a “pass-through” basis only and is subject to the terms and

conditions of the third party vendor, including but not limited to warranties, licenses,

indemnities, limitation of liability, prices and changes thereto.

“Work Product” means any new or useful art, discovery, improvement, deliverable, process,

invention, modification, enhancement, product, software, whether or not copyrightable or

patentable, inclusive of all related know-how, trade secrets, and any other tangible or intangible

technical material or information.

2.2 In the Support Agreement, unless the contrary intention appears:

(a) The singular includes the plural and vice versa;

(b) Another grammatical form of a defined word or expression has a corresponding

meaning;

(c) A reference to a document or instrument includes the document or instrument as

novated, altered, supplemented or replaced from time to time;

(d) A reference to a person includes a natural person, partnership, body corporate,

association, governmental or local authority or agency or other entity;

(e) A reference to a statute, ordinance, code or other law includes regulations and

other instruments under it and consolidations, amendments, re-enactments or

replacements of any of them;

(f) A rule of construction does not apply to the disadvantage of a party because the

party was responsible for the preparation of the Support Agreement or any part of

it; and

(g) The words “include”, “including”, “for example” or “such as” are not to be

interpreted as words of limitation, and when such words introduce an example,

they do not limit the meaning of the words to which the example relates, or to

examples of a similar kind.

3 Term

3.1 The Term of each Support Agreement will be as set out in the Support Certificate

3.2 If the Customer wishes to renew the Support Services for an additional Term it will pay the

Support Fee and Schneider Electric will issue a new Support Certificate

3.3 If the Customer purchases any new Software or Goods for use with the Eligible Products during

the Term of the Support Agreement, the Customer must add such Goods or Software under

the Support Agreement for the balance of the Term and Schneider Electric will charge a fee

which will be prorated for that period. Alternatively the Customer can elect to extend the Term

of the Support Agreement to be co terminus with the expiry period of support for the New

Products which will be a minimum of 1 year in which case Schneider Electric will charge an

additional Support Fee pro-rated to cover the extended term for the current Eligible Products

so that support of all Eligible Products are set to expire at the same time. All Licenses

registered to a Site must be covered at the same support tier.

.

4 Provision of Services

4.1 Schneider Electric provides three Support Tiers for the Customer FIRST Program:


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(a) Standard;

(b) Premium; and

(c) Elite

Details of the Services provided for each Support Tier are set out in Appendix 2 to this

Agreement:

4.2 Schneider Electric will provide the Services for the Support Tier identified in the Support Certificate in accordance with the terms of the Support Agreement.

4.3 The Customer acknowledges that as a pre-requisite to purchasing the Standard, Premium or Elite levels of software support, they will need to possess (not necessarily be running) the most current version of Schneider Electric Software. If a Customer is running a non-current / non-preferred version of Schneider Electric Software, they must first purchase an upgrade to the current / preferred version. Schneider Electric may provide incentives for Customers to purchase version upgrades.

4.4 The Customer acknowledges that as a pre-requisite to requesting for a Software Version upgrade, they must possess an active Support Agreement at the Standard, Premium or Elite Tier of Support.

4.5 Except as stated in Section 13.2, the Support Fee for the initial term or any renewal or prorated terms is non-refundable.

5 Customer Obligations

5.1 The Customer must:

(a) On request from Schneider Electric, provide Schneider Electric with access to and

use of, all information, Systems and facilities, including the Customer System (at

the Site if required by Schneider Electric) which are necessary for Schneider

Electric to provide the Services, subject to the Customer’s applicable security

requirements;

(b) Provide Schneider Electric with all reasonable assistance required by Schneider

Electric in providing the Services and follow any procedures and recommendations

provided by Schneider Electric in an effort to resolve an issue;

(c) Ensure that its relevant staff understand and follow operating instructions and

procedures as specified in Schneider Electric’s documentation and

correspondence relating to the Eligible Product;

(d) Promptly notify Schneider Electric of any issue according to the reporting

procedure notified by Schneider Electric to the Customer, and to answer any

questions and reasonably assist Schneider Electric in its efforts to replicate any

such issue. However, Schneider Electric is under no obligation to provide the

Services to correct any issues that cannot be reproduced or verified by it within a

reasonable period of time or for issues that are caused by a Customer Error.

(e) Make the Customers System available for Schneider Electric's use after a request

by the Customer for remote access using Schneider Electric Virtual Engineer or a

Virtual Private Network;

(f) Not authorize, cause or permit support, repairs or changes to the Customers

Eligible Products during the Term, except as in accordance with the Licence

Agreement;

(g) Make every effort to comply with sound computer data management principles and

take reasonable steps to protect its own data from system failure, including regular

creation of backup copies of data and creation of processes to ensure continued


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business operation in case of system failure, notifying Schneider Electric promptly

in the event of system errors.

5.2 Where onsite services are provided the Customer will provide Schneider Electric all necessary access to its Site and Systems to provide the onsite services.

5.3 Without limiting clause 5.1(g) of the Support Agreement, ensure that back-ups are made of programs and files and copies of other data that are made available by the Customer to Schneider Electric.

6 Scope of Support

6.1 Under all support tiers in the Customer FIRST Program, Schneider Electric provides Services in accordance with the Customer FIRST Support Lifecycle policy accessible on the SCADA & MES Support Portal at http:/www.citect.schneider-electric.com/about-support/support-lifecycle. Although Schneider Electric may attempt to resolve issues arising in earlier Schneider Electric Software versions, they do not have any obligation to do so under any support tier in the Customer FIRST Program.

6.2 Certain Additional Benefits in the Customer FIRST Program (including seats for Citect / Ampla Training, Block of Technical Support Consulting Services, Complimentary Invitations to Schneider Electric Customer Events, Technical Account Management Team, Annual Lifecycle Assessment and Upgrade Planning Roadmap, Planning and Technical Advisement, Cyber Security Readiness Workshop) are only provided to Customers processing an active Support Agreement at the Premium or Elite Tier of Support and the Customers Support Agreement value meets the required contract spend requirements.

6.3 If the Customer elects for Schneider Electric to provide onsite services the following

conditions apply:

(a) Service or travel in excess of normal workday, and any Service or travel on Saturdays, Sundays or nationally observed holidays shall be invoiced by Schneider Electric as defined by local practice, or by labour law as applicable, or as defined in a written agreement between Schneider Electric and the Customer. The normal work day shall be defined by local practice, or by labour law as applicable, or as defined in a written agreement between Schneider Electric and Customer.

(b) When shift work other than the normal workday is required, a premium rate shall be added for Services during the other shifts and an additional premium shall be added for work in excess of normal workday during these other shifts, in accordance with local practice, or labour law as applicable, or as defined in a written agreement between Schneider Electric and Customer.

(c) Service time committed in advance by Schneider Electric on the basis of pre-specified number of days shall not be deemed to include overtime or shift work. If overtime or shift work is required on such commitments, the pre-specified time so committed in advance shall be appropriately reduced.

(d) Unless the Schneider Electric representative has been released from the job site, or has completed his assignment, the Customer will pay Schneider Electric charges computed as if the Schneider Electric representative was working a normal work week, regardless of whether or not the representative is prevented from working due to delays beyond his control.

(e) Release from the job site shall entitle the representative to return to his point of origin, with travel time and expenses chargeable to Customer.

(f) Standby time is defined as that time during which a Schneider Electric representative is requested to remain in readiness and available for Services commencing at the convenience of the Customer. Such time shall be considered as time worked, whether or not the representative is at the job site, and Customer will be billed accordingly. If standby time is outside normal working hours, overtime rates will be applicable. Standby time will be added to time actually worked for the computation of overtime charges, etc.

http://www.citect.schneider-electric.com/about-support/support-lifecycle



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(g) The Schneider Electric representatives reserve the right to refuse to work under hazardous conditions. All staging and rigging required for access to equipment to be serviced shall be erected by and at the expenses of Customer or third parties and shall comply with reasonable safety requirements. The Schneider Electric representative shall comply with all plant safety regulations given to such representative in writing. However, any protective clothing or equipment, except the standard safety hat, required by Customer regulations shall be provided by the Customer.

(h) Schneider Electric representatives are authorized to act only in a consulting capacity

and are not authorized or licensed to operate equipment. All responsibility for

operating equipment shall rest with Customer or third parties.

7 Support Exclusions

7.1 Schneider Electric is not obliged to provide the Services for any reported incident which arises out of:

(a) Any use of the Eligible Product otherwise than in accordance with the License

Agreement;

(b) An alteration, change or modification to the Customers System or the Eligible

Product that is not performed by Schneider Electric;

(c) Combining or integrating the Eligible Product with any third party software,

otherwise than in accordance with the License Agreement;

(d) Without limiting this clause 7 of the Support Agreement, the Customer failing to

comply with its obligations under clause 5 of the Support Agreement;

(e) The Customer’s negligence, fraudulent use, abuse or misapplication, lack of

training, unreasonable use, excessive use, or use of Eligible Products other than

as specified in Schneider Electric’s documentation or maintenance and support

information provided on Schneider Electric’s website as determined by Schneider

Electric in its sole discretion;

(f) The installation of the Eligible Product on any hardware, operating environment,

operating system or network environment otherwise than in accordance with

Schneider Electric’s recommended specifications;

(g) The Customer’s failure to implement a Service Pack, New Release or an Upgrade.

(h) If a non-authorized Schneider Electric provider provides maintenance or support

services in relation to the Eligible Product.

(i) If it is not commercially practical to provide the Services for an Eligible Product,

due to third party product life cycle changes.

7.2 Unless otherwise agreed in writing by Schneider Electric, Software versions identified as in the Mature phase under the Schneider Electric lifecycle support policy accessible on the SCADA & MES Support Portal at http:/www.citect.schneider-electric.com/about-support/support-lifecycle will be excluded and will NOT be supported.

7.3 Schneider Electric reserves the right to limit the Services to the then current Release and the

two previous Releases. Schneider Electric may require as a condition of the purchase of

Services or renewal of Services that the Customer purchase and install a Release of the

Schneider Electric compliant Software with the foregoing.

7.4 Schneider Electric reserves the right to terminate the Services in respect of an Eligible Product that has not been offered for public sale by Schneider Electric for 24 months or more prior to the date of termination, or for which Schneider Electric has published notice on its website that such Eligible Product will not be supported 24 months or more prior to the date of termination




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7.5 Notwithstanding clauses 7.3 and 7.4 of the Support Agreement, if the Services are terminated by Schneider Electric during the Term for which the Services have been purchased, Schneider Electric will refund the part of the Support Fee paid to Schneider Electric for the Services that is proportionate to the unused period of the Services

7.6 Schneider Electric does not provide support under the Customer FIRST Program for Third Party Products. If Schneider Electric services Third Party Products at Customers written request, Schneider Electric services shall be rendered “AS-IS” and without warranty of any kind and such services shall be for an additional fee at Schneider Electric’s then current service rate. Customer shall indemnify, hold harmless and defend Schneider Electric’ from and against any claims, damages or liabilities asserted by any third party against Schneider Electric as a result of Schneider Electric’ access to Customer’s or Third Party Products including but not limited to claims, damages or liabilities for infringement of any third party’s intellectual property rights.

7.7 Unless specifically purchased as an option under the Agreement, planning, installation, testing, and documentation of expansions, modifications and software upgrades of custom applications or Third Party Programs are NOT covered under the Customer FIRST Program.

7.8 All decisions made by the Customer relating to the implementation of Schneider Electric’s advice and recommendations are the sole responsibility of Customer. To the extent Services are of advisory nature, no specific business result is assured or guaranteed.

7.9 Schneider Electric may vary the Services by providing one (1) months’ notice to the Customer, provided that there will be no significant reduction in the level of Services.

8 Additional Services

8.1 Additional Services (including upgrade and migration planning, Customer FIRST for Solutions, Customer FIRST Cyber Security Maintenance Program, Customer FIRST Cyber Security Assessment, Technical Account Management Team Access, Resident Engineer, Implementation Consultant and Application Clone) may be available for purchase from Schneider Electric depending upon the Support Tier purchased by the Customer and will vary by Customer location. These Additional Services may be purchased as referred to in clause 1.5.

8.2 Flexible Services Fund can be used for:

The following labour-based services associated with Customer FIRST Support Agreement

Onsite Corrective Assistance

Consulting Services provisioned under the Customer FIRST Support Agreement

Schneider Electric service personnel travel hours to/from the Customer site.

Travel and living expenses related to Customer FIRST Support Agreement features

Flexible Services Fund cannot be used for:

Additional Services not provisioned under the Customer FIRST Support Agreement

Labour hours for any activities, products, Software, Programs and Solutions not related to Customer FIRST Support Agreement features

Travel and living expenses not related to Customer FIRST Support Agreement features

8.3 The Flexible Services Fund may be provisioned by the Customer for a value that will accrue during the coverage period of the Support Agreement. Customer can vary allocation to the Flexible Services Fund each year within a multi-year Support Agreement.

8.4 Customer’s contribution to the Flexible Services Fund must be made together with Support Fee payments in accordance with the Support Agreement billing schedule. Customer contribution to the Flexible Service Fund may be increased or decreased at renewal of the Support Agreement. Customer’s contribution to the Flexible Services Fund cannot be cancelled during the annual term or multi-year coverage period.


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8.5 The scope of services usage for Flexible Services Fund can be defined at any time prior to, or during, the Support Agreement coverage period. Delivery of services under Flexible Services Fund must be taken within the coverage period.

8.6 As applicable services are provided, Schneider Electric will deduct the selling price from the Flexible Services Fund. Once the Flexible Services Fund’s value has been fully used, no further services can be applied. If desired, Customer may replenish funding for use during the remainder of the coverage period.

8.7 At Agreement expiration, unused Flexible Services Fund balance

(a) May be rolled forward, establishing a beginning balance in the Flexible Services Fund upon renewal of the Support Agreement for the next coverage period

(b) May be moved to provision another Fund within the Agreement on renewal

(c) Cannot be applied to the Support Agreement itself on renewal.

(d) Will not be refunded to the Customer

8.8 If the Support Agreement is terminated prior to its expiration date, unused Flexible Services Fund balance will not be refunded to the Customer.

8.9 If the Support Agreement is terminated prior to its expiration date, Schneider Electric will issue a lump-sum invoice to the Customer for the Flexible Services Fund usage above the accrued customer contribution.

9 Fees and Expenses

9.1 The Customer must pay to Schneider Electric the Support Fee prior to accessing the Customer FIRST Program or, in respect of any extension of the Term, the anniversary of the Commencement Date.

9.2 When Schneider Electric advises the Customer the Support Fee it will also provide information on all active software licenses for all the Eligible Products purchased by the Customer on which it has based its calculation of the Support Fee. Once the Customer places a Purchase Order, Schneider Electric will not be under any obligation to refund the Support Fee other than set out in clause 13 of this Agreement.

9.3 The Customer must pay to Schneider Electric the Support Reinstatement Fee should a lapse in Support enrolment occur. The amount of Support Reinstatement Fee may increase the longer the enrolment has lapsed.

9.4 Schneider Electric will notify the Customer of any changes to the Support Fee for the renewal period.

9.5 Unless otherwise agreed in writing by Schneider Electric, Schneider Electric reserves the right to increase Support Fee one time per calendar year. Unless otherwise agreed upon in writing, Customer shall reimburse Schneider Electric for expenses incurred by Schneider Electric in order to perform the Services, including but not limited to travel and lodging expenses.

9.6 Where the Customer has contracted support services directly from Schneider Electric, the

Customer must pay to Schneider Electric any fees and expenses invoiced to it by Schneider

Electric within 30 days after the date of Schneider Electric’s invoice.

9.7 If the Customer fails to pay any sum due under the Support Agreement by the due date,

Schneider Electric may, in addition to its other rights under the Support Agreement, suspend

the provision of the Services until all overdue amounts are paid.

9.8 Without prejudice to Schneider Electric’s other rights, if the Customer fails to pay any sum due

under the Support Agreement by the due date, Schneider Electric may charge daily interest at

2% per month on the amount outstanding calculated from the due date of payment to the date

of actual payment.


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10 Taxes

10.1 Unless otherwise stated, all amounts referred to under or in connection with the Agreement

are exclusive of GST, state, federal, local sales tax, excise, value added or other similar taxes.

11 Intellectual Property Rights and Confidentiality

11.1 Any Work Product developed under the Agreement is not to be considered made-for-hire and, at all stages of development, will remain the sole and exclusive property of Schneider Electric. Customer’s further agrees that it will take actions and execute and deliver all documents requested by Schneider Electric in order to evidence Schneider Electric’s rights in and to the Work Product. It is agreed and understood that Schneider Electric is otherwise free to use its general knowledge, skills and experience and any general ideas, concepts or know-how and techniques related to or derived from the performance of Services under the Agreement.

11.2 Each party agrees that all non-public or proprietary information relating to the business,

technology or affairs of the other party provided or disclosed under the Support Agreement or

during the preceding negotiations is confidential.

11.3 Except as required by law, neither party will use or disclose such confidential information to any third party without the prior written consent of the other party.

11.4 Unless required by any legislation, rules of a stock exchange or other government regulation, no public announcement concerning the Support Agreement will be made without the prior consent of both parties.

12 Compliance with Privacy Laws

12.1 Each party agrees to comply with its obligations under the Privacy Act in respect of Personal Information obtained by or disclosed to it pursuant to the Support Agreement.

12.2 Each party must only collect, use and disclose Personal Information for the purpose of fulfilling its obligations under the Support Agreement unless otherwise permitted under the Support Agreement or the local jurisdiction Privacy Principles.

12.3 A party must notify the other party as soon as possible when it becomes aware of:

(a) a complaint alleging an interference with privacy; or

(b) any breach, or possible breach of this clause 11,

in connection any Personal Information collected and/or handled by any of the parties in connection with the Support Agreement.

13 Termination

13.1 Schneider Electric may terminate the Support Agreement and all Services under the Customer FIRST Program with immediate effect by giving notice to the Customer if:

(a) Customer has breached any of its material obligations under any Schneider Electric End User License Agreement and Customer has not cured such breach within seven (7) days of receipt of notice of default by Schneider Electric

(b) The Customer breach any term of the Support Agreement and, if the breach is capable of remedy, fails to remedy it within 7 days after being notified to do so.

(c) Customer fails to pay the Support Fee when due and Customer has not cured such breach within seven (7) days of receipt of a notice of default from Schneider Electric.

(d) Customer does not use the Services for its own internal business purpose or uses the Services to provide similar services related to the Software to any


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third party and Customer has not cured such breach within seven (7) days of receipt of a notice of default from Schneider Electric.

(e) The Customer becomes Insolvent.

13.2 Schneider Electric may at any time, with or without cause, terminate the Support Agreement and all Services, by giving Customer ninety (90) days written notice of such termination. If Schneider Electric elects to terminate under this Section 13.2 prior to the end of the then-current Agreement term, then Customer shall be entitled to a pro-rated refund of Support Fees actually paid by Customer to Schneider Electric.

13.3 The Customer may terminate the Support Agreement without cause upon ninety (90) days prior to the specified termination date. If Customer elects to terminate under this Section 13.3, Customer shall pay Schneider Electric

(a) All fees and expenses (including but not limited to Support Fee) earned or

incurred in connection with the performance of the Services under the

Agreement until the effective date of such termination (“Fees and

Expenses”);

(b) Any and all reasonable costs directly related to Customer’s termination

pursuant to this provision, including costs associated with Personnel

reassignment, travel and other administrative requirements, which

termination costs equal 25% of the remaining balance of the total Agreement

value and

(c) A Termination Fee equal to 2.5 % of the Agreement value.

13.4 Schneider Electric will not be liable to Customer for any claims or damages of any kind arising out of termination of the Support Agreement in accordance with Sections13.1 (“Termination for Cause”) Or 13.2 (“Termination For Convenience”) above.

14 Liability

14.1 To the extent that the provisions of the Australian Consumer Law apply to Goods or Services supplied by Schneider Electric, Schneider Electric's liability for any breach of these provisions is limited to the following at the election of Schneider Electric :

(a) Re-supplying the Goods or Service;

(b) Repairing the Goods; or

(c) Paying the costs of re-supply of the Service or the costs of re-supply or repair of the Goods or Service

14.2 Notwithstanding any other term of the Agreement, Schneider Electric is not liable whether in contract, tort (including negligence) or otherwise for any loss of profit, consequential damage or loss (including, without limitation, loss of revenue, loss of market, data, opportunity or contracts) whether to people or property arising directly or indirectly pursuant to the Support Agreement or the performance of any Services or supplying of Goods under the Support Agreement.

14.3 Notwithstanding any other term of the Support Agreement, Schneider Electric's total liability under the Support Agreement whether in contract, tort (including negligence) or otherwise, is limited to the amount of Support Fees paid to Schneider Electric by the Customer with respect to the Services provided to Customer within the 12 month period prior to the time such liability arose.

15 Miscellaneous

15.1 If Schneider Electric is delayed in providing the Services due to the Customer’s failure to provide information or otherwise comply with its obligations under the Support Agreement:


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(a) The Customer will be liable to Schneider Electric for all costs and expenses incurred by Schneider Electric directly or indirectly as a result of such delay; and

(b) The time for performance of Schneider Electric’s obligations under the Support Agreement will be extended by the period of any such delay.

15.2 A party to the Support Agreement will not be liable in any circumstances whatsoever for its failure to perform an obligation to be performed by that party (other than an obligation to pay money) to the extent that such failure was due to a Force Majeure Event.

15.3 The party affected by a Force Majeure Event must endeavour to:

(a) Comply with its obligations under the Support Agreement despite the

intervention or occurrence of any such event;

(b) Cure such cause; and

(c) Resume compliance with such obligations as soon as the event ceases to affect the performance of the obligations under the Support Agreement

15.4 The parties to the Support Agreement are independent contractors. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party nor its employees has the authority to bind or commit the other party in any way or to incur any obligation on its behalf.

15.5 The Customer must not assign or otherwise deal with the Support Agreement or any rights under the Support Agreement, without the prior written consent of Schneider Electric.

15.6 The Customer irrevocably consent to Schneider Electric novating or assigning any interest in the Support Agreement to any related body corporate (as that term is defined in the Corporations Act 2001) of Schneider Electric or to any successor in title to the Eligible Product.

15.7 Except as expressly stated otherwise in the Support Agreement, a party may conditionally or unconditionally give or withhold any consent or approval to be given under the Support Agreement and is not obliged to give its reasons for doing so.

15.8 If any provision of the Support Agreement is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, such provision will to such extent be deemed null and void, but the Support Agreement will otherwise remain in full force and effect.

15.9 The failure of either party to exercise any right or option granted under the Support Agreement, or to require the performance by the other party hereto of any provision of the Support Agreement, will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of the Support Agreement.

15.10 Except as expressly stated otherwise in the Support Agreement, the rights of a party under the Support Agreement are cumulative and are in addition to any other rights of that party.

15.11 Schneider Electric reserves, in its sole discretion, the right to modify, revise and update the Customer FIRST Program and any Services including any policies and procedures which relate to the Customer FIRST Program.

15.12 U.S. Government Restricted Rights - The software and documentation provided with the Software and Services are "commercial items" as that term is defined at 48 C.F.R. 2.101 (October 1995), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 C.F.R. 12.212 (September 1995), and is provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government end-users acquire the Software and documentation with only those rights set forth herein. Contractor / manufacturer is Schneider Electric (Australia) Pty Limited (ACN 004 969 304), 78 Waterloo Road, Macquarie Park, Sydney, NSW 2113, Australia.

15.13 The Support Agreement is governed by and constructed in accordance with the laws of the State of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts of the State of New South Wales, Australia and the courts of appeal from them. The


Page 13 of 16

governing language for the Support Agreement shall be English, and no concurrent or subsequent translation of the Support Agreement into any language shall modify any term of the Support Agreement and the English language version of the Support Agreement shall control in the event of conflict. No claim may be brought as a class action, combined or consolidated with any other proceeding, nor may any proceeding be pursued in a representative capacity or on behalf of a class. Neither party has the right to act as a class representative or participate as a member of a class of claimants with respect to any claim.

15.14 The Support Agreement:

(a) Constitutes the entire agreement between the parties as to its subject matter;

and

(b) In relation to that subject matter, supersedes any prior understanding or agreement between the parties and any prior condition, warranty, indemnity or representation imposed, given or made by a party.


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Appendix 1

Eligible Products

The Eligible Products are:

1 CitectSCADA / StruxureWare SCADA Expert Vijeo Citect comprising of the following:

1.1 CitectSCADA / SCADA Expert Vijeo Citect – Server Full licenses;

1.2 CitectSCADA / SCADA Expert Vijeo Citect - View Only (Manager) Clients;

1.3 CitectSCADA / SCADA Expert Vijeo Citect - Web View Only (Manager) Clients;

1.4 CitectSCADA / SCADA Expert Vijeo Citect - Control (Display) Clients; and

1.5 CitectSCADA / SCADA Expert Vijeo Citect - Web Control (Display) Clients.

1.6 Specialty Drivers (PSDIRECT, Bailey, SEMAPI, IEC60870-5-104, MOSCAD)

1.7 Options (+ Facilities, +PowerConnect) licenses

2 Citect Historian / StruxureWare Plant Operation Vijeo Historian comprising of the

following:

2.1 Citect Historian / Vijeo Historian Data Transfers licenses

2.2 Citect Historian / Vijeo Historian Client Access (User Device / CPU) licenses

2.3 Citect Historian / Vijeo Historian Connectors (OPC per system / SQL Database per DB)

licenses

3 StruxureWare Plant Operation Ampla comprising of the following:

3.1 Ampla Group A Reporting Points (Downtime, Production, Metrics, Inventory, Energy, Quality,

Planning)

3.2 Ampla Group B Reporting Points (Maintenance, Cost, Knowledge)

3.3 Ampla Client Access Licenses

3.4 Ampla Dashboards (Developer / Designer / Dashboard Server / Dashboard Viewer)


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Appendix 2

Support Services – Service Offerings & Support Tiers

The following chart depicts the core features of the Customer FIRST Program.

1For more information please refer to the Customer FIRST User Guide – http://www.citect.schneider-

electric.com/

Note: The availability of Support Tiers will vary between countries and not all Support Tiers may be

available in your country.

1 NBD = Next Business Day * Note: Services associated with an onsite visit are billable. Customer to pay for engineering services, flight and incidental expenses for all onsite work. ** Customer to pay for their flight to and accommodation to the selected Schneider Electric Training location

http://www.citect.schneider-electric.com/

http://www.citect.schneider-electric.com/


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Appendix 3

Additional Information

Item

Number

Provider Details

1. Schneider

Electric

Schneider Electric (Australia) Pty Limited

ABN 42 004 969 304

2. Address 78 Waterloo Road, Macquarie Park, NSW 2113

3. Initial Term 12 Months

4. Support Tier Standard

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Customer FIRST Program Terms and Conditions - … · Customer FIRST Program Terms and Conditions 1 Overview ... “System” means the information technology systems, equipment (both