PC as a Service Subscription Bundle Agreement – Terms and Conditions

1. This PCaaS Agreement (including the Electronic PCaaS Quote provided by Silicon), this “Agreement” refers throughout to the Customer as “you” or “your” and to Silicon Systems Limited as “we”, “us” or “our”. In consideration of your purchase of the PCaaS Subscription Bundle described in your Quote (the “Subscription Bundle”), you hereby subscribe for the use of the Subscription Bundle from us for your business purposes only, subject to all terms of this Agreement. You agree that this Agreement is a net transaction so you will pay by Subscription Payment increase or upon our demand, all costs connected with this Agreement and the Subscription Bundle, such as all taxes (e.g. GST and stamp duty) regardless of whether the tax is imposed on us or you, insurance, repairs, maintenance, shipping, filing fees, collection costs, and reasonable legal fees. Subscription Payment details are specified in your Quote.
    
2. At the expiry of the Initial Term or any renewal term you may elect by giving us 90 days prior written notice either to (a) Return the   Subscription Bundle to us or; (b) Extend the term of this Agreement. Your election will apply to all and no less than all of the Subscription Bundle. If you do not provide timely notice   to us in accordance with the preceding sentence or (after provision of such notice) we and you are unable to agree the details of any extension within 60 days of the expiration of the then applicable term or you fail to return any of the Subscription Bundle by the end of the Initial Term or any renewal term in accordance with this Agreement, the term of this Agreement will be automatically extended (on the same terms including amount of Subscription Payments) until you provide us with 90 days notice of your intention to terminate this Agreement and return the Subscription Bundle. You will continue to pay Subscription Payments for any full or partial month/quarter (as applicable) that this Agreement is extended in this manner. When you return The Subscription Bundle under this Agreement you must do so at your expense, to a location designated by us on or before the last day of the applicable term. Upon return, all data must have been permanently deleted from the Subscription Bundle, the Subscription Bundle must be authentic manufacturer equipment, configured only in compliance with that manufacturer’s specifications and recommendations, the Subscription Bundle must be in the same condition as when you first received it (excepting only reasonable wear and tear) and not be counterfeit, stolen, fraudulent or otherwise unlawful, and include all original parts, attachments and accessories. You must also return to us all copies of any operating system software (including collateral documentation and media) you received with the Subscription Bundle.

    

3. EXCEPT AS TO QUIET ENJOYMENT AND TO THE EXTENT PERMITTED BY LAW, WE MAKE ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR  PURPOSE. You can only make any claim relating to the  Subscription Bundle against the manufacturer, and  you waive any such claim against us. We hereby assign (to the extent that we are able) any Subscription Bundle warranties during the term of this Agreement for your exercise at your expense. TO THE EXTENT PERMITTED BY LAW, WE WILLNOT BE LIABLE FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES. YOU AGREE THIS AGREEMENT IS NON-CANCELLABLE AND TO MAKE PAYMENTS TO US WHEN DUE, UNCONDITIONALLY, WITHOUT ABATEMENT OR OFFSET FOR ANY CAUSE, WITHOUT DEDUCTION OR WITHHOLDING AND REGARDLESS OF ANY PROBLEMS WITH THE SUBSCRIPTION BUNDLE, VENDOR, OR US AND YOU WAIVE ANY COUNTER CLAIM OR DEFENSE TO ANY SUBSCRIPTION PAYMENT.

    

4. To the extent permitted by law you agree to indemnify us against third party claims or other loss or damages, including legal fees, arising directly or indirectly in respect of this Agreement or the Subscription Bundle whether arising out of breach of contract, tort, or strict or product liability or otherwise. You agree not to move the Subscription Bundle from the Subscription Bundle Location or to transfer, sell, sublease, or encumber either the Subscription Bundle or any rights under this Agreement without our prior written consent. We may freely assign our rights and interests under this Agreement without notice to you or your consent. You agree that our assignee will have the same rights and remedies as we do and that our assignee’s rights will not be subject to any claims you may have against us.

    

5. We own the Subscription Bundle and we retain all benefits of ownership and you agree not to take any position inconsistent with our ownership. We may inspect the Subscription Bundle and attach ownership labels. You are solely responsible for the installation, operation, and maintenance of the Subscription Bundle, will keep it in good condition (fair wear and tear excepted), will use it in compliance with applicable law, and will not attach it to building fixtures. You bear all risk of loss or damage to or from the Subscription Bundle arising prior to its return to us and will have it duly insured against all risk of loss and damage up to the greater of its replacement value or the Stipulated Loss Value (as defined below) and against public liability for bodily injury or damage to property arising in connection with the Subscription Bundle. You will provide to certificate if required showing that you have such insurance coverage, naming us as loss payee. Upon the occurrence of any loss or irreparable damage to the Subscription Bundle (“Casualty Loss”), you agree to immediately (a) replace the affected Subscription Bundle with a Subscription Bundle of equivalent or better value and supplied by a manufacturer acceptable to us or (b) pay us an amount (“Stipulated Loss Value”) which is the sum of (i) all arrears in Subscription Payments as of the date of payment of the Stipulated Loss Value, if any (ii) all Subscription Payments payable from the date of payment of the Stipulated Loss Value up until expiry of the term (discounted at a rate equal to the 2 year New Zealand dollar swap rate (quarterly) quoted by Bloomberg L.P. as of the date on which we purchase the Subscription Bundle (the “Discount Rate”), compounded monthly) and (iii) an amount calculated by multiplying the sum of all Subscription Payments payable during the Initial Term by the applicable percentage specified in the next sentence. The applicable percentage will be 50% for a Subscription Bundle having an Initial Term of less than 24 months; 40% for a Subscription Bundle having an Initial Term of 24 months or greater, but less than 36 months; and 30% for a Subscription Bundle having an Initial Term of 36 months or greater, but less than 48 months; and 25% for Equipment having an Initial Term of 48 months or greater.

    

6. If you do not pay or perform any obligation under this Agreement within 10 days of when such payment or performance is due, or you or any guarantor die, become insolvent or unable to pay debts when due; stop doing business as a going concern; merge, consolidate, transfer all or substantially all of your assets; make an assignment for the benefit of creditors, enter into liquidation proceedings, appoint a trustee, administrator or receiver or undergo a substantial deterioration of financial health, we can do any or all of the following: (a) terminate this Agreement and any other agreement between us and you (b) accelerate without notice all payments due or to be due under this Agreement and any other agreement between us and you to be immediately due and payable as liquidated damages for loss of bargain and not as a penalty (all future payments to be discounted at the Discount Rate, compounded monthly), (c) immediately repossess or require you to return the Subscription Bundle or (if repossession or return is not possible) claim a further amount equal to paragraph (iii) of the definition of Stipulated Loss Value from you, (d) collect all costs of collection, including reasonable legal fees, (e) collect lost tax benefits and all unpaid amounts due under this Agreement, (f) sell or relet any Subscription Bundle returned to us, and (g) exercise all other remedies available at law or equity. Our remedies are cumulative and in addition to every other right, remedy or power provided by law. If we do not receive any payment when due, you will pay a charge of 1.5% (or such lesser rate as is the maximum permitted by law) of the overdue amount for every month (or part month) during which the payment is late. Such charge will be capitalized monthly (if permitted by law). Our action or failure to act on any one remedy will not constitute an election of such as our sole remedy or a waiver of any other remedy. Any provision of this Agreement is severable if unenforceable.
    
7. You agree to sign such other documents and take such other actions as we may require to accomplish the intent and purpose of this Agreement. This Agreement constitutes the entire agreement between us and you relating to the Subscription Bundle superseding all prior agreements and may only be amended in writing signed by you and us. All of your representations, warranties, indemnities and unperformed obligations will survive the termination of this Agreement. All notices, demands and other communications required to be given under this Agreement will be in writing and will be deemed to have been given if delivered personally or mailed via certified mail or a nationally recognized overnight courier service. TIME IS OF THE ESSENCE. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW ZEALAND AND SUBJECT TO THE JURISDICTION OF THE COURTS OF NEW ZEALAND. YOU WAIVE ANY STATUTORY PROVISIONS WHICH CONFLICT WITH THE TERMS OF THIS AGREEMENT, TO THE EXTENT PERMITTED BY LAW. You acknowledge that neither any Vendor nor any Subscription Bundle salesperson is an agent of ours nor are they authorized to waive or alter the terms of this Agreement. Their representations in no way affect any of our rights or your obligations under this Agreement.
    
8. This Agreement will be binding on you when you sign it. We will have no obligation to purchase the Subscription Bundle until we have (a) received the accepted quote and subsequent automated Sales Order, (b) completed all of our usual pre-settlement checks (including, without limitation, ensuring that the Agreement is correctly priced, documentation is correctly prepared and applicable anti-money laundering procedures and United States restricted party lists searches are completed), and (c) received the Advance Subscription Payment (if applicable).
    
9. Without limitation, if GST (or any like or similar tax) is payable as a consequence of any supply made or deemed to be made or other matter or thing done under or in connection with this Agreement, you must pay to us an additional amount calculated by multiplying the amount of the consideration provided in this Agreement by the applicable rate of GST and if GST is not calculated by reference to the amount of consideration specified in this Agreement, an amount that is sufficient to ensure that the economic benefit to us of this Agreement remains the same whether GST applies or not.
     
10. The Subscription Bundle the subject of this Agreement may be subject to New Zealand, United States and other government’s export control laws and regulations. You (including any guarantor, if applicable) undertake to comply with all such laws and regulations. You (including any guarantor, if applicable) will not export, re-export, or transfer any Subscription Bundle to a prohibited destination or to nationals of proscribed countries without prior authorization from the US and New Zealand governments. You (including any guarantor, if applicable) will not use any Subscription Bundle in the design, development, or production of nuclear, missile, chemical, or biological weapons. You represent that neither you nor any guarantor are an entity designated by the US or New Zealand governments with which transacting business without their prior consent is prohibited. You acknowledge that (a) any broker, agent, dealer or any other person who introduces you to us may receive remuneration for providing such introduction and/or (b) we may receive remuneration from the Vendor or other third party in relation to this agreement.

     

     

11. You warrant that you are familiar with the provisions of the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and other analogous anti-corruption legislation in other jurisdictions in which you conduct your business or which otherwise apply to you; (collectively, and with related regulations, the “Anti- Corruption Laws”) and that you shall not in connection with this Agreement: (I) make any improper payment or transfer anything of value, offer, promise or give a financial or other advantage or request to, or agree to receive or accept a financial or other advantage from, either directly or indirectly, any government official or government employee (including employees of a government corporation or public international organization) or to any political party or candidate for public office or to any other person or entity with an intent to obtain or retain business or otherwise gain an improper business advantage; or (II) take any action which would cause us to be in violation of any Anti-Corruption Laws. You will promptly notify us if you become aware of any such violation.

     

12. You authorize us to share information related to this Lease with any related company (as that term is defined in the Companies Act 1993) for any reason and any third party as necessary to fulfill our obligations under this Agreement.

     

13. Personal Property Securities Act 2009 (Cth) (“PPSA”)

    (a) You will not change your name without first notifying us in writing of the proposed name change and the new name at least 7 days before the change takes effect.
    (b) You agree that if at any time we believe the Subscription Bundle is “at risk” (as construed in accordance with section 109(2) of the PPS) you will be deemed to be in default and we may take any or all of the actions permitted under clause 6 of this Agreement.
     (c) You acknowledge that the Subscription Bundle is not “consumer goods” for the purposes of the Credit (Repossession) Act 1997(“CRA”) or any act that repeals or replaces the CRA including but not limited to the Contracts and Consumer Finance Act 2003.
    (d)Without limiting your obligations under this Agreement, you agree to do such acts and provide such information as we (in our absolute discretion) determine may be necessary or desirable to enable us to perfect under the PPSA this Agreement as a first priority security interest and to maintain such priority including registering a financing statement against you on the Personal Property Securities Register, and any steps required to maintain that financing statement.
    (d) You waive any right to receive a copy of a verification statement under section 148 of the PPSA and (where Part 9 of the PPSA applies to this Agreement) you agree, to the extent permitted by law, that:

    (i) where we have rights in addition to, or existing separately from those in Part 9 of the PPSA, those rights will continue to apply;
    (ii) sections 114(1)(a), 133 and 134 of the PPSA will not apply; and 
    (iii) you will have none of the rights referred to in sections 116, 120(2), 125, 129 and 131 of the PPSA and you waive your rights under section 121;
    (iv) You acknowledge that any person accepting this Quote is a person acting on your behalf for the purposes of the PPSA and your address specified in this Agreement is their address for the purposes of the PPSA.
     

14. If the Subscription Bundle includes software and the relevant licensor has authorized us to make the software available for your use under this lease, you assign to us all of your right, title and interest in the relevant software license agreement (the “License”). Such assignment is an assignment of rights only and you will remain subject to all obligations and liabilities under the License except for the obligation to pay for the License after your execution and delivery of all documentation necessary to establish your acceptance of the software. At the end of the term of this lease and provided you are not in default we will assign all rights, title and interest in the License back to you. 

15. If you transmit a manually signed copy of this Agreement or any associated Acceptance Certificate to us by facsimile or as an electronically scanned document (the “Scanned Agreement”), you acknowledge that (a) the Scanned Agreement will be binding on you and (b) when printed, signed by us and, will constitute an original document and, where applicable, chattel paper. 

16. You acknowledge that certain personal information may be communicated to us in the course of the performance of the Agreement and will be used by us to administer this Agreement and any other agreement entered into between you and us. You confirm that you have obtained any requisite consent to the disclosure and processing of such information by us for that purpose. All such personal data will be processed in accordance with the Silicon Systems privacy policy in force from time to time. 

17. In addition to this agreement, our standard Terms and Conditions also apply where applicable to this sale and specifically all payment obligations outlined, apply to this agreement. 

By accepting the provided electronic quote you will be deemed to have irrevocably accepted the Subscription Bundle unless we receive your written rejection within 3 business days.