Standard terms and conditions for software support and maintenance
As offered by Monika Pty Ltd trading as Monika (“Monika”) to its customers (each a “customer”)
(1) Monika has developed and owns certain computer software applications which it has licensed to the Customer under its Standard Terms and Conditions of a Software Licence (‘the Licence’).
(2) The terms and conditions set out in this document are the standard terms and conditions upon which Monika agrees to provide certain services in respect of the support and maintenance to its computer software applications and its operational performance on the Customer’s computer hardware equipment upon which such applications are installed.
In these Conditions:
“the Agreement” means the agreement between Monika and the Customer in which these Conditions are incorporated;
“Basic Enhancements” changes or additions to the Licensed Programs, including any Error Corrections, which are logical improvements to the Licensed Programs. Basic Enhancements include only those improvements that are generally made available at no additional cost to Monika’s customers that purchase annual Maintenance;
“Commencement Date” means the commencement date of the Agreement which is the date the first payment of the Support Fee is made by the Customer to Monika;
“these Conditions” means the standard terms and conditions set out in this document and (unless the context otherwise requires) as well as any special terms and conditions set out in writing in the Agreement;
“Documentation” the operating manuals, user instructions, technical literature and all other related materials supplied to the Customer by Monika for aiding the use and application of the Supported Software;
“Equipment” such computer equipment on which the Supported Software is installed and in operational use;
“Error” any failure of the Licensed Programs to substantially conform to the specifications included in the Documentation;
“Error Correction” a software modification or addition that, when made or added to the Licensed Programs, establishes material conformity to the specifications in the Documentation;
“Initial Period” the initial period for which maintenance and support is provided under the Agreement starting from the Commencement Date
“Licensed Program Materials” the Licensed Programs, the Documentation, and the Media;
“Licensed Programs” the systems, applications and computer programs of Monika and all releases and versions thereof that provide facilities to enable the secure distribution of data and information arising in relation to Monika’s temperature monitoring systems as used by the Customer;
“Maintenance Services” the maintenance services to be provided by Monika including analysis, coding, testing, and release of corrections to software faults. Maintenance shall be within reasonable limits, as determined by Monika, and does not include requests for basic product training or technical consulting;
“Major Enhancements” changes or additions to the Licensed Programs, other than an Error Correction or Basic Enhancement, that
1. contain significant new features;
2. may be priced and offered separately as optional additions to the Licensed Programs; and
3. are not made available to customers that purchase annual Maintenance Services from Monika without separate charge;
“the Media” the media on which the Licensed Programs and the Documentation are recorded or printed, as provided to the Customer by Monika;
“the Site” each site at which the Customer utilises the Licensed Programs and from which a request for Support may be received;
“Specification” the specification of the Licensed Programs describing the facilities and functions thereof, together with any releases or enhancements of software that have been made generally available to the Customer during the preceding 2 years;
“Support Fee” the annual support fee payable to Monika by the Customer under the Agreement;
“Support” support services to be provided by Monika in respect of the Licensed Programs;
“Training” any programme of training of the Customer’s employees the scope and extent of which is set out in the Agreement;
“Use the Licensed Program Materials” to Use the Licensed Programs, to read and possess the Documentation in conjunction with the use of the Licensed Programs and to possess the Media;
“Use the Licensed Programs” to read all or any part of the Licensed Programs from magnetic or other storage media and to load the Licensed Programs on the Equipment for the storage and running of the Licensed Programs.
2. Services to be provided
Monika agrees to:
2.1 provide the Support to the Customer;
2.2 provide the Maintenance Services for the Customer;
2.3 provide operating manuals to the Customer, if appropriate;
2.4 provide the other services described upon the terms and conditions contained in these Conditions.
The Support and the Maintenance Services shall run for the Initial Period and shall remain in force from year to year thereafter, unless and until terminated in accordance with any of the provisions of clause 15 or any other clause of these Conditions.
4.1 The Support Fee is to be adjusted annually in accordance with changes to Australian Consumer Price Index (CPI) published by the Australian Bureau of Statistics (ABS) and in accordance with any change in the total number of Sites and shall be payable by the Customer in one payment per annum in advance.
4.2 Any charges payable by the Customer under the Agreement in addition to the Support Fee shall be paid within 30 days after the receipt by the Customer of Monika’s invoice.
4.3 The Support Fee and other charges payable under the Agreement are exclusive of GST, which shall be payable by the Customer at the rate and in the same manner for the time being prescribed by law against submission of a valid tax invoice.
4.4 Monika shall have the right to charge interest on overdue invoices at the rate of 4% per year above the base rate of the Reserve Bank of Australia, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment, whether before or after judgment.
Risk in the Media shall pass to the Customer on delivery. If any part of the Media shall thereafter be lost, destroyed or damaged Monika shall promptly replace the same (embodying the relevant part of the Licensed Programs or Documentation) at no cost. Monika shall not make any further or additional charge for such replacement.
6.1 If all efforts by the Customer have been unsuccessful in resolving a fault to the Licensed Programs the matter will be passed to Monika for resolution under the provisions of this clause
6.2 The Customer will nominate Authorised Persons in writing to Monika to communicate with Monika’s support engineers in respect of the Support request who will have email access to Monika’s technical support mailbox firstname.lastname@example.org. An Authorised Person will email details of the Support request to Monika including a description of the reported fault and narrative of actions already taken.
6.3 Monika will acknowledge the Customer’s email dependent on the day of the week and time of day that the email is received:-
6.3.1 For emails received prior to 12 noon Monika will acknowledge prior to 17.15 the same working day;
6.3.2 For email received after 12 noon, Monika will acknowledge prior to 12 noon the following working day
6.4 After acknowledging the email within the allocated response time and gathering additional information if requested, Monika will develop and communicate a plan for addressing the support request which may involve the providing of a fix, developing a workaround, or providing an alternative solution.
6.5 The Customer will provide reasonable assistance to Monika in verifying, replicating and/or correcting product problems which may include providing Monika with remote and/or physical access to the Customer’s computer system. Remote access will include, but not be limited to, modem access or access via internet connection or VPN. Monika will determine if and when on-site support is necessary.
6.6 The Customer shall supply in writing to Monika a detailed description of any fault requiring Support in clause 6.1 and the circumstances in which it arose, and shall submit sufficient material and information to enable Monika’s support staff to duplicate the problem.
During the continuance of the Agreement Monika shall provide the Customer with the following maintenance services:
7.1 Error Correction
7.1.1 If the Customer shall discover that a current release fails to perform in accordance with the Documentation, then the Customer shall, within 14 days after such discovery, notify Monika in writing of the defect or error in question and provide Monika (so far as the Customer is able) with a documented example of such defect or error.
7.1.2 Monika shall thereupon use its reasonable endeavours to correct promptly such defect or error by:
220.127.116.11 in the case of a defect or error which prevents the Licensed Programs from performing their fundamental function, as soon as is practical, Monika shall deliver to the Customer the corrected version of the object code of the current release in machine readable form, together with the appropriate amendments (if any) to the Documentation, specifying the nature of the correction and providing instructions for the proper use of the corrected version of the current release. Monika shall provide the Customer with all assistance reasonably required by the Customer to enable the Customer to implement the use of the corrected version of the current release.
18.104.22.168 in the case of a defect or error which after action under clause 6 causes only inconvenience to the Customer in using the Licensed Programs, incorporating a correction in the next scheduled release.
7.1.3 The foregoing error correction service shall not include service in respect of:
22.214.171.124 defects or errors resulting from any modifications of the current release made by any person other than Monika;
126.96.36.199 any version of the Licensed Programs other than the current release or the immediate current release;
188.8.131.52 incorrect use of the current release or operator error;
184.108.40.206 any fault in the Equipment or in any programs used in conjunction with the current release;
220.127.116.11 defects or errors caused by the use of the current release on or with equipment (other than the Equipment) or programs not supplied by or approved in writing by Monika, provided that for this purpose any programs designated for use with the current release in the Specification shall be deemed to have the written approval of Monika.
7.1.4 Monika shall make an additional charge in accordance with its standard scale of charges for the time being in force for any services provided by Monika:
18.104.22.168 at the request of the Customer, but which do not qualify under the aforesaid error correction service by virtue of any of the exclusions referred to in clause 7.1.3 above; or
22.214.171.124 at the request of the Customer but which Monika finds are not necessary.
For the avoidance of doubt nothing in this clause shall impose any obligation on Monika to provide services in respect of any of the exclusions referred to in clause 7.1.3.
7.2.1 Monika shall promptly notify the Customer of any improved version of the Licensed Programs that Monika shall from time to time make.
7.2.2 Upon receipt of such notification, Monika shall deliver to the Customer as soon as reasonably practicable (having regard to the number of other users requiring the new release) the object code of the new release in machine-readable form together with the Documentation.
7.2.3 If required by the Customer, Monika shall provide training for the Customer’s staff in the use of the new release at Monika’s standard scale of charges for the time being in force as soon as reasonably practicable after the delivery of any new release.
7.2.4 The new release shall thereby become the current release and the provisions of the Agreement shall apply accordingly.
Monika will provide the Customer with such technical advice by telephone, facsimile transmission or mail (including electronic mail), as shall be necessary to resolve the Customer’s difficulties and queries in using the current release.
7.4 Changes in Law
Monika will from time to time make such modifications to the current release as shall ensure that the current release conforms to any change of legislation or new legal requirements which affect the application of any function or facility described in the Documentation. Monika shall promptly notify the Customer in writing of all such changes and new requirements and shall implement the modifications to the current release (and all consequential amendments to the Documentation which may be necessary to enable proper use of such modifications) as soon as reasonably practicable thereafter.
8. Excluded Support and Maintenance
8.1 Monika shall be under no obligation to provide Support and Maintenance in respect of:
8.1.1 problems resulting from any modifications or customisation of the Licensed Program Materials or the Equipment not authorised in writing by Monika. For the avoidance of doubt, modifications to the Licensed Program Materials shall include but not be limited to changes to the logical or physical database schema for the Licensed Program Materials, changes to the disk layout and configuration, and hand-modified changes to the data within the database;
8.1.2 any software other than the Licensed Program Materials;
8.1.3 incorrect or unauthorised use of the Licensed Program Materials or operator error where these are defined as use or operation not in accordance with the Documentation;
8.1.4 any fault in the Equipment;
8.1.5 any programs used in conjunction with the Licensed Program Materials;
8.1.6 use of the elements of the Licensed Program Materials in any combination other than those specified in the Documentation;
8.1.7 use of the Licensed Program Materials with computer hardware, operating systems or other supporting software other than those specified in the Documentation; and
8.1.8 the Customer’s failure to install and use upon the Equipment in substitution for the previous release and new release of the Licensed Programs within 7 days of its receipt.
8.2 Monika shall upon request by the Customer provide Support and Maintenance notwithstanding that the fault results from any of the circumstances described in clause 8.1 above. Any time spent by Monika investigating such faults will be chargeable at Monika’s then current rates. Monika shall invoice such charges at its discretion and such shall be paid within 30 days of the date of said invoice.
8.3 Monika reserves the right to discontinue the Support and the Maintenance for any prior version of the Supported Software if a superseding version has been available to the Customer.
8.4 Monika shall not be obliged to make modifications or provide support in relation to the Customer’s computer hardware, operating system software, or third party application software or any data feeds or external data.
9.1 Monika warrants to the Customer that all services supplied under the Agreement will be carried out with reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.
9.2 The Customer acknowledges that it is the responsibility of the Customer to ensure that the facilities and functions described in the Specification meet its requirements.
9.3 Except as expressly provided in the Agreement, no warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the satisfactory quality, fitness for purpose, or ability to achieve a particular result, of the Licensed Program Materials is given or assumed by Monika, and all such warranties, conditions, undertakings and terms are excluded.
9.4 The Customer agrees that its sole remedy in respect of any non-conformance with any warranty in the Agreement is that Monika will remedy such non-conformance (either by itself or through a third party) and if, in Monika’s reasonable opinion, it is unable to remedy such non-conformance, Monika will refund the Support Fee for the year in which the services, the subject of such claim, were supplied, if paid, whereupon the Agreement shall immediately terminate.
9.5 Monika does not warrant that all Errors can and will be corrected. Monika shall use its reasonable endeavours to correct Errors so long as the Errors are replicable by Monika, or to provide a software patch; or to bypass around such Error.
9.6 The Customer must promptly notify Monika of any non-conformance to the above warranties in order to benefit from the remedy stated above, and in any event within 3 months.
10.1 Monika shall during the term of the Agreement, maintain employer’s liability, third party liability, product liability insurance cover in respect of its liabilities arising out of or connected with the Agreement, such cover to be to a minimum value of $1,000,000 and with an insurance company of repute. Monika shall on request supply copies of the relevant certificates of insurance to the Customer as evidence that such policies remain in force. Monika undertakes to use reasonable commercial efforts to pursue claims under such insurance policies.
10.2 Monika shall indemnify the Customer for personal injury or death caused by the negligence of its employees in connection with the performance of their duties under the Agreement or by defects in any product supplied pursuant to the Agreement.
10.3 Monika will indemnify the Customer for direct damage to tangible property caused by the negligence of its employees in connection with the performance of their duties under the Agreement or by defects in any product supplied pursuant to the Agreement. Monika’s total liability under this clause shall be limited to $500,000 for any one event or series of connected events.
10.4 Save in respect of claims for death or personal injury arising from Monika’s negligence, in no event will Monika be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of Monika, whether such damages were reasonably foreseeable or actually foreseen.
10.5 Except as provided above in the case of personal injury, death and damage to tangible property, Monika’s maximum liability to the Customer under the Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to the greater of:
10.5.1 the sum for which Monika carries comprehensive insurance cover pursuant to clause 10.1 above; or
10.5.2 a sum equivalent to the support fee paid to Monika for the services that are the subject of the Customer’s claim, plus damages limited to 25% of the same amount for any additional costs directly, reasonably and necessarily incurred by the Customer in obtaining alternative products and/or services.
10.6 The parties acknowledge and agree that the limitations contained in this clause 10 are reasonable in the light of all the circumstances.
10.7 The Customer’s statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in the Agreement is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort, including negligence, or any other form of action. For the purposes of this clause, ‘Monika’ includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above. Nothing in the Agreement shall exclude or limit liability for fraudulent misrepresentation.
11. Customer’s Warranty
11.1 The Customer warrants that it has not relied on any oral representation made by Monika or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by Monika which are only intended to convey a general idea of the products and services mentioned. The Customer has however relied upon the descriptions, illustrations, functions, specifications contained in the Documentation
11.2 The Customer warrants that it shall comply in all material respects with all applicable laws, regulations and codes of conduct (whether statutory or otherwise) of Australia, and that all licences, permissions and consents required for carrying on its business have been obtained and are in full force and effect.
12. Customer’s Obligations
12.1 The Customer shall:
12.1.1 operate the software, maintain data and the database in accordance with the user manual and operator manual;
12.1.2 by arrangement, grant access to premises and/or systems at all times for support and maintenance;
12.1.3 make hardware accessible to Monika’s support staff, and when required enable logons or passwords required for such support staff (who will have their own logons);
12.1.4 permit Monika to install the current version of software from time to time when upgrades or fixes occur, to provide a reasonable level of assistance in implementation and testing;
12.1.5 provide notice of intention to change hardware or operating system or data-feeds.
12.2 The Customer shall provide Monika with reasonable direct and remote access to the Customer’s equipment and the Software, and shall provide such reasonable assistance as Monika may request, including, but not limited to, providing sample output and other diagnostic information.
13. Confidential Information
13.1 The Customer undertakes to treat as confidential and keep secret the payment terms of the Agreement and all information contained or embodied in the Licensed Program Materials and the Specification and all documentation and/ or information conveyed to the Customer in respect of the software (collectively referred to as ‘the Information’)
13.2 The Customer shall not, without the prior written consent of Monika divulge, any part of the Information to any person except:
13.2.1 the Customer’s own employees and then only to those employees who need to know the same;
13.2.2 the Customer’s auditors, an officer of the Australian Taxation Office, an officer of the Australian Customs Service and any other persons or bodies having a right, duty or obligation to know the business of the Customer, and then only in pursuance of such right, duty or obligation;
13.2.3 any person who is for the time being appointed by the Customer to maintain any equipment on which the Licensed Programs are for the time being used (in accordance with the terms of the Licence) and then only to the extent necessary to enable such person to properly maintain such equipment.
13.3 The Customer undertakes to ensure that persons and bodies mentioned in clause 13.2 are made aware, before the disclosure of any part of the Information, that the same is confidential, and that they owe a duty of confidence to Monika. The Customer shall indemnify Monika against any loss or damage which Monika may sustain or incur as a result of the Customer failing to comply with such undertaking.
13.4 The Customer shall promptly notify Monika if it becomes aware of any breach of confidence by any person to whom the Customer divulges all or any part of the Information and shall give Monika all reasonable assistance in connection with any proceedings which Monika may institute against such person for breach of confidence.
13.5 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Licence or the Agreement.
14. Security and Control
The Customer shall during the continuance of the Licence:
14.1 effect and maintain adequate security measures to safeguard the Licensed Program Materials from access or use by any unauthorised person;
14.2 retain the Licensed Program Materials and all copies thereof under the Customer’s effective control;
14.3 maintain a full and accurate record of the Customer’s copying and disclosure of the Licensed Program Materials and shall produce such record to Monika on request from time to time;
14.4 comply with all reasonable instructions of Monika with regard to the use of the Licensed Program Materials, including, without limitation, the implementation of upgrades to the Licensed Programs, third party software, specified operating system and computer hardware which Monika may provide from time to time.
15.1 Upon termination of the Agreement for any reason prior to the end of the Initial Period, there shall become due and the Customer shall immediately pay to the Company such sum as shall equate to the total Support Fees (including GST) for the Initial Period less any Support Fees actually paid.
15.2 Where the Agreement continues to the end of the Initial Period it shall automatically be renewed for successive one year periods subject to Monika’s then current prices, terms and conditions until terminated by either party with three months prior written notice of termination expiring at the end of the initial period or at the end of any subsequent consecutive period of one year.
15.3 Monika may terminate the Agreement forthwith on giving notice in writing to the Customer if:
15.3.1 the Customer commits any serious breach of any term of the Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from Monika so to do, to remedy the breach (such request to contain a warning of Monika’s intention to terminate); or
15.3.2 the Customer permanently discontinues the use of the Licensed Program Materials.
15.4 Forthwith upon the termination of the Agreement, any licence made between Monika and the Customer, and relating to any software or other materials subject to the Support and the Maintenance supplied under the Agreement, shall terminate in the manner provided in any such licence agreement.
15.5 Any termination of the Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come onto or continue in force on or after such termination.
15.6 If Monika terminates the Agreement pursuant to clause 15.2, then the Customer shall not be entitled to any refund of the Support Fee or any part thereof that has been paid.
The Customer undertakes not to alter or modify the whole or any part of the Licensed Program Materials in any way whatsoever, nor to permit the whole or any part of the Licensed Programs to be combined with, or become incorporated in, any other programs.
Monika shall provide the Customer with two copies of a set of the Documentation containing sufficient information to enable proper use of all the facilities and functions set out in the Specification. If the Customer requires further copies of the Documentation, then these may be obtained under licence from Monika in accordance with its standard scale of charges from time to time in force.
18. Customer’s Confidential Information
18.2 Monika shall be entitled to identify the Customer as a Customer of the Program Materials in Monika’s publicity materials, subject to the Customer’s prior written approval on each publicity document.
18.2 Subject to clause 19.1 above, Monika shall treat as confidential all information supplied by the Customer under the Agreement which is designated as confidential by the Customer, or which is by its nature clearly confidential, provided that this clause shall not extend to any information which was rightfully in the possession of Monika prior to the commencement of the negotiations leading to the Agreement, or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause). Monika shall not divulge any confidential information to any person except to its own employees, and then only to those employees who need to know the same. Monika shall ensure that its employees are aware of and comply with the provisions of this clause. The foregoing obligations shall survive any termination of the Licence or the Agreement.
19. Data Protection
The parties undertake to comply with the provisions of the Data Protection Act and any related legislation in so far as the same relates to the provisions and obligations of the Agreement.
20. Remote Access
If Monika has remote dial-up or modem access to any part of the Customer’s Equipment in the course of performing its obligations under this Licence the following provisions of this clause 21 shall apply additionally. Monika:
(a) only use a remote access method approved by the Customer (such approval not to be unreasonably withheld or delayed);
(b) provide the Customer with the name of each individual who will have remote access to the Customer’s Equipment and the phone number at which the individual may be reached during dial-in;
(c) ensure that any computer used by its personnel to remotely access the Customer’s Equipment will not simultaneously access the Internet or any other third party network while logged on to the Customer’s Equipment;
20.2 further warrants and agrees that its personnel will not remotely access the Customer’s Equipment from a networked computer unless the network is protected from all third party networks by a firewall that is maintained by a 7×24 administrative staff. This firewall must be certified by the International Computer Security Association (ICSA) (or an equivalent certification as determined by the Customer) if the connection to the Customer’s network is an ongoing connection such as frame relay or T1 line;
20.3 will restrict remote access by Monika to only the Customer’s test and/or training systems and nothing in this clause shall entitle Monika to have access to the Customer’s live production copy of the Licensed Programs unless the parties have expressly agreed in writing that such access is to take place and the Customer has given written confirmation of the date on which such access was implemented. Monika shall report in writing when such access takes place detailing all activities and actions taken during such access.
21.1 In these Conditions unless the context otherwise requires:
21.1.1 words importing any gender include every gender;
21.1.2 words importing the singular number include the plural number and vice versa;
21.1.3 words importing persons include firms, companies and corporations and vice versa;
21.1.4 references to numbered clauses and schedules are references to the relevant clause in or schedule to these Conditions;
21.1.5 reference in any schedule to these Conditions to numbered paragraphs relate to the numbered paragraphs of that schedule;
21.1.6 the headings to the clauses, schedules and paragraphs of these Conditions will not affect the interpretation;
21.1.7 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
21.1.8 any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done respectively;
21.1.9 any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.
21.2 In the case of conflict or ambiguity between any provision contained in the body of these Conditions and any provision contained in any Schedule, the provision in the body of these Conditions shall take precedence.
22. Agency, Partnership
The Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in the Agreement.
The Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties to the Agreement.
No party shall issue or make any public announcement or disclose any information regarding the Agreement, unless prior written consent has been obtained from the other party.
25.1 The Agreement is personal to the parties and, subject to clause 26.2 below, neither the Agreement nor any rights, licences or obligations under it, may be assigned by either party without the prior written approval of the other party.
25.2 Notwithstanding the foregoing, either party may assign the Agreement to any acquirer of all, or of substantially all, of such party’s equity securities, assets or business relating to the subject matter of the Agreement, or to any entity controlled by, that controls, or is under common control with, a party to the Agreement. Any attempted assignment in violation of this clause will be void and without effect.
26. Entire Agreement
The Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of the Agreement. However, the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into the Agreement on the basis of any representation that is not expressly incorporated into the Agreement.
27. Force Majeure
Neither party shall have any liability under or be deemed to be in breach of the Agreement for any delays or failures in performance of the Agreement which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than 6 months, either party may terminate the Agreement by written notice to the other party.
28.1 All notices under the Agreement shall be in writing.
28.2 Notices shall be deemed to have been duly given:
28.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
28.2.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
28.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
28.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
If any provision of the Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from the Agreement and rendered ineffective as far as possible without modifying the remaining provisions of the Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of the Agreement.
30. Successors and Assignees
30.1 The Agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assignees, and references to a party in the Agreement shall include its successors and permitted assignees.
30.2 In these Conditions references to a party include references to a person:
30.2.1 who for the time being is entitled (by assignment, novation or otherwise) to that party’s rights under these Conditions (or any interest in those rights); or
30.2.2 who, as administrator, liquidator or otherwise, is entitled to exercise those rights;
and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that party. For this purpose, references to a party’s rights under these Conditions include any similar rights to which another person becomes entitled as a result of a novation of the Agreement.
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of the Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under the Agreement. No right, power or remedy in the Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
32. Time of the Essence
Time shall be of the essence in the Agreement as regards any time, date or period mentioned in the Agreement or subsequently substituted as a time, date or period by agreement in writing between the parties.
With the prior written consent of the Customer (such consent not to be unreasonably withheld or delayed) Monika may perform any or all of its obligations under the Agreement through agents or sub-contractors, provided that Monika shall remain liable for such performance and shall indemnify the Customer against any loss or damage suffered by the Customer arising from any act or omission of such agents or sub-contractors.
The Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of the Agreement and any version or translation of it in any other language, the English language version shall prevail.
35. Costs and Expenses
Each party shall bear its own legal costs and other costs and expenses arising in connection with the drafting, negotiation, execution and registration (if applicable) of the Agreement.
Where either party has incurred any liability to the other party, whether under the Agreement or otherwise, and whether such liability is liquidated or unliquidated, each party may set off the amount of such liability against any sum that would otherwise be due to the other party under the Agreement.
37. Third Parties
The parties confirm their intent (except as provided in clause 10.7) not to confer any rights on any third parties by virtue of the Agreement.
38. Proper Law and Jurisdiction
38.1 The Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with the laws of Australia notwithstanding the conflict of law provisions and other mandatory legal provisions save that:
38.1.1 Monika shall have the right to sue to recover its fees in any jurisdiction in which the Customer is operating or has assets; and
38.1.2 Monika shall have the right to sue for breach of its intellectual property rights and other proprietary information and trade secrets (‘IPR’) (whether in connection with the Agreement or otherwise) in any country where it believes that infringement or a breach of the Agreement relating to its IPR might be taking place. For the avoidance of doubt, the place of performance of the Agreement is agreed by the parties to be Australia.
38.2 Each party recognises that the other party’s business relies upon the protection of its IPR and that in the event of a breach or threatened breach of IPR, the other party will be caused irreparable damage and such other party may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its IPR.
38.3 With respect to all other disputes which are not IPR related pursuant to clauses 41.1 and 41.2 above and its special rules, the following procedures in clauses 41.3 to 41.5 shall apply. Where there is a dispute, the aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other party. A representative from senior management of each of the parties (‘representatives’) shall meet in person or communicate by telephone within 5 business days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties. The representatives shall produce a report about the nature of the dispute in detail to their respective boards and if no agreement is reached on corrective action, then the chief executives of each party shall meet in person or communicate by telephone, to facilitate an agreement within 5 business days of a written notice by one to the other. If the dispute cannot be resolved at board level within a further 5 business days, or if the agreed upon completion dates in any written plan of corrective action are exceeded, either party may seek its legal remedies as provided below.
38.4 The parties irrevocably submit to the exclusive jurisdiction of the courts of Australia for the purposes of hearing and determining any dispute arising out of the Agreement.