Australia Terms and Conditions
Last Revised: 10 September, 2021
These Australia Terms and Conditions (“Australia Terms”) supplement and form a part of the Automation Anywhere, Inc. (“AAI”) On-premise License Agreement (“OLA”), available at https://www.automationanywhere.com/legal/on-premise-license-agreement, and shall apply to Customers or Affiliates located in Australia. Words capitalized but not defined in these Australia Terms shall have the meanings ascribed to them in the OLA, and any referenced section or article numbers shall refer to the sections and articles of the OLA, except as noted.
For Customers or Affiliates located in Australia, the following provisions apply and prevail to the extent of any inconsistency over the remaining Sections of the OLA:
Notwithstanding Section 5.1, AAI may only increase its fees for Software upon giving at least sixty (60) days written notice to the Customer, and any such change shall not affect the Customer's then-current fees until the end of the subscription term then in effect at the time such notice period ends.
Fees and Payment. Section 5.3 is amended by deleting "1.5%" and replacing it with "1%", and deleting "attorney's fees" and replacing it with "legal fees".
Goods and Services Tax (GST).
In this Section 1.3 of these Australia Terms: (a) terms or expressions which have a defined meaning in the Australian A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST Act”) have the same meaning as in the GST Act; and (b) any reference to a party includes the representative member of a GST group of which that party is a member.
Consideration excludes GST.
Unless otherwise expressly stated, all consideration to be paid or provided under this OLA is expressed exclusive of GST.
Payment of GST.
(a) If GST is payable on any supply made under the OLA, the recipient must pay to the supplier an additional amount (“GST Amount”) equal to the GST payable on that supply at the same time as the consideration for the supply is to be paid or provided. (b) Section 1.3.3(a) above does not apply to the extent that: (i) the consideration for the supply is stated to include GST; or (ii) GST on the supply is reverse charged and payable by the recipient.
The recipient need not pay the GST Amount until it has received a tax invoice or adjustment note, as the case may be.
If an adjustment event arises in relation to a supply made under this OLA, the GST Amount must be adjusted to reflect that adjustment event. A corresponding payment must be made by the supplier to the recipient or by the recipient to the supplier, as the case may be.
Calculation of amounts
If the OLA requires an amount to be calculated by reference to another amount (“Reference Amount”) that will be: (a) received for a taxable supply; or (b) paid for a creditable acquisition, then the Reference Amount must be reduced so as to exclude any part of the Reference Amount paid or received on account of GST, as the case may be.
Reimbursement and indemnity payments.
If the OLA requires a party to reimburse or indemnify another party for a cost or expense, the amount of the cost or expense must be reduced by an amount equal to any input tax credit to which the party being reimbursed or indemnified is entitled for that cost or expense.
Limited Warranty and Australian Consumer Law.
Section 7.3 of the OLA is deleted in its entirety and replaced with the following:
7.3 CUSTOMER MAY HAVE RIGHTS BY LAW THAT ARISE UNDER THIS OLA AND THIS OLA IS SUBJECT TO THOSE RIGHTS. THE BENEFITS GIVEN BY THE EXPRESS WARRANTIES MADE BY AAI HEREIN ARE IN ADDITION TO OTHER RIGHTS AND REMEDIES OF CUSTOMER UNDER A LAW IN RELATION TO THE GOODS OR SERVICES TO WHICH THE WARRANTY RELATES. SUBJECT TO THE FOREGOING RIGHTS, INCLUDING ANY RIGHTS CONFERRED ON A PARTY BY THE AUSTRALIAN CONSUMER LAW, BEING SCHEDULE 2 OF THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH) (“AUSTRALIAN CONSUMER LAW” or “ACL”) AND SUBJECT TO SECTIONS 10.4, 10.5 AND 10.6 OF THIS OLA, OTHER THAN THE EXPRESS WARRANTIES MADE BY AAI HEREIN THE PARTIES ACKNOWLEDGE THAT THE SCOPE OF THE SOFTWARE AND PROFESSIONAL SERVICES PROVIDED TO CUSTOMER PURSUANT TO AND FOR THE PURPOSES OF THIS OLA IS AS SET OUT IN THIS OLA, THE APPLICABLE ORDER FORM AND DOCUMENTATION. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO ANY RIGHTS CONFERRED BY THE AUSTRALIAN CONSUMER LAW AND SECTIONS 10.4, 10.5 AND 10.6 OF THIS OLA, AAI DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS. NO AAI AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. TO THE EXTENT THE LAWS OF CUSTOMER’S JURISDICTION DO NOT PERMIT SUCH DISCLAIMER WITH RESPECT TO THE SERVICES AS PURCHASED HEREUNDER (INCLUDING AS SPECIFIED IN SECTIONS 10.4, 10.5 AND 10.6 OF THIS OLA), AAI PROVIDES ONLY THE MINIMUM LAWFUL WARRANTY BEYOND THAT WARRANTY EXPRESSLY MADE ABOVE AND DISCLAIMS ALL WARRANTIES TO THE EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES ARE NOT DESIGNED OR INTENDED FOR USE WITH, AND SHOULD NOT BE USED IN CONNECTION WITH, HAZARDOUS APPLICATIONS, SUCH AS OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT, WEAPONS, AIRCRAFT NAVIGATION OR COMMUNICATION, AND/OR PROCESS CONTROL THAT COULD RESULT IN DEATH, INJURY OR ENVIRONMENTAL IMPACT. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMERS IN THIS SECTION ARE A MATERIAL PART OF THIS OLA, AND AAI WOULD NOT HAVE ENTERED INTO THIS OLA BUT FOR SUCH DISCLAIMERS.
Support for Direct Purchase Licensed Software
Notwithstanding Section 8.1 of the OLA, AAI may amend or update the features of its support for licensed Software (including any changes to its support policy) from time to time during the subscription term. If a change to the relevant support or support policy has a material adverse effect on Customer's use of the Software, Customer may terminate the subscription for such Software upon giving written notice to AAI no later than 30 (thirty) days following the change to the support or support policy, in which case AAI will refund a pro rata portion of any prepaid fees for such affected portion of the Software equal to the period of time from the date of termination to the end of the then-current subscription term.
Limitation of Liability.
Sections 10.1 and 10.2 of the OLA are deleted in their entirety and replaced with the following:
10.1 Limitation of Liability.
SUBJECT TO SECTIONS 10.4, 10.5 AND 10.6 BELOW, TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT WITH RESPECT TO (A) AAI’S INFRINGEMENT INDEMNIFICATION OBLIGATIONS IN SECTION 6, (B) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 4 (EXCLUDING BREACHES RELATED TO CUSTOMER’S PERSONAL DATA, WHICH ARE ADDRESSED IN SECTION 10.1.2), (C) EITHER PARTY’S WILLFUL MISCONDUCT AND/OR FRAUD, (D) EITHER PARTY’S LIABILITY FOR DEATH, PERSONAL INJURY, OR TANGIBLE PERSONAL PROPERTY DAMAGE, (E) EITHER PARTY’S UNAUTHORIZED USE, DISTRIBUTION, OR DISCLOSURE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, OR (F) CUSTOMER’S PAYMENT OBLIGATIONS:
10.1.1 IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS OLA, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER UNDER THIS OLA AND/OR UNDER THE PURCHASE AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. FOR FREE TRIALS, NEITHER PARTY’S AGGREGATE LIABILITY SHALL EXCEED ONE HUNDRED DOLLARS ($100.00).
10.1.2 NOTWITHSTANDING SECTION 10.1.1 ABOVE, AAI’S AGGREGATE LIABILITY FOR (A) A BREACH OF THIS OLA RESULTING IN A SUCCESSFUL SECURITY INCIDENT (AS DEFINED IN SECTION 11.8), OR (B) A BREACH OF AAI’S CONFIDENTIALITY OBLIGATIONS UNDER THIS OLA (AS IT RELATES TO CUSTOMER’S PERSONAL DATA ONLY), SHALL NOT EXCEED TWO TIMES (2X) THE FEES PAID BY CUSTOMER UNDER THIS OLA AND/OR THE PURCHASE AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
10.2 Exclusion of Damages.
SUBJECT TO SECTIONS 10.4, 10.5 AND 10.6 BELOW, AND EXCEPT WITH RESPECT TO: (A) AMOUNTS TO BE PAID BY AAI PURSUANT TO A COURT AWARD OR SETTLEMENT UNDER AAI’S INFRINGEMENT INDEMNIFICATION OBLIGATIONS; (B) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 4; (C) EITHER PARTY’S WILLFUL MISCONDUCT AND/OR FRAUD, OR (D) EITHER PARTY’S VIOLATION OF, OR UNAUTHORIZED USE, DISTRIBUTION, OR DISCLOSURE OF, THE OTHER PARTY’S INTELLECTUAL PROPERTY, NEITHER PARTY SHALL BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ANY COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE OR SERVICES OR LOSS OF USE, DATA, BUSINESS, OR PROFITS OR ANTICIPATED PROFITS, ECONOMIC LOSS, OR LOSS OR DAMAGE RESULTING FROM WASTED MANAGEMENT TIME, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING WHETHER THE LIABILITY ARISES IN OR UNDER CONTRACT (INCLUDING LIABILITY UNDER ANY INDEMNITY), STATUTE, TORT (INCLUDING NEGLIGENCE), EQUITY OR OTHERWISE AT LAW) OR WHETHER THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
Non-excludable Rights Implied by Statute.
A new Section 10.4 is inserted into the OLA as follows:
10.4 Non-excludable Rights Implied by Statute.
NOTHING IN THIS OLA EXCLUDES, RESTRICTS OR MODIFIES ANY CONSUMER GUARANTEE, RIGHT OR REMEDY CONFERRED ON A PARTY BY THE AUSTRALIAN CONSUMER LAW OR ANY OTHER APPLICABLE LAW THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT.
Liability for Breach of Non-excludable Rights.
A new Section 10.5 is inserted into the OLA as follows:
10.5 Liability for Breach of Non-excludable Rights.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE LIABILITY OF AAI FOR A BREACH OF A NON-EXCLUDABLE GUARANTEE REFERRED TO IN SECTION 10.4 IS LIMITED, AT AAI'S OPTION, TO: (A) IN THE CASE OF GOODS, ANY ONE OR MORE OF THE FOLLOWING: (I) THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; (II) THE REPAIR OF THE GOODS; (III) THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR (IV) THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; OR (B) IN THE CASE OF SERVICES: (I) THE SUPPLYING OF THE SERVICES AGAIN; OR (II) THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
Remedies under the Australian Consumer Law.
A new Section 10.6 is inserted into the OLA as follows:
10.6 Remedies under the Australian Consumer Law.
Where the Australian Consumer Law applies to the Software or professional services under this OLA:
AAI’s Software and professional services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Software or professional services, Customer is entitled:
- to cancel its Software or professional services contract with AAI; and
- to a refund for the unused portion, or to compensation for its reduced value.
Customer is also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or the services does not amount to a major failure, Customer is entitled to have the failure rectified in a reasonable time. If this is not done Customer is entitled to a refund for the goods or services and to cancel the contract for the goods or services and obtain a refund of any unused portion. Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or services.
Section 15.1 of the OLA is deleted in its entirety and replaced with the following:
15.1 Governing Law.
This OLA is governed by and must be construed in accordance with the laws in force in Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this OLA, its performance or subject matter. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this OLA.