MiOK TERMS AND CONDITIONS
The Supplier grants to the Customer a limited, non-exclusive, non-transferable licence to access and use MiOK during the term set out in the Order Form for the internal business purposes of the Customer, including to allow the Customer’s personnel to access MiOK.
The Customer must ensure that users are bound by terms and conditions of use of MiOK equivalent to these terms and conditions and that no access is provided to any person who is not the Customer’s personnel.
The Customer must not and must not allow any user or third party to (a) translate, disassemble, reverse engineer, decompile or otherwise attempt to reconstruct or discover any source code or underlying ideas or algorithms of or embodied in MiOK or copy, design or build any product based on any part of it; (b) remove or modify any copyright, trade mark or proprietary notice; (c) resell, rent, lease, license, sublicense, distribute, market, commercialise or otherwise transfer rights or usage of MiOK; (d) attempt to gain unauthorised access to MiOK or install or use it in a manner that circumvents or interferes with the technological measure which controls access; or (e) use MiOK in any way contrary to these terms and conditions or for any unlawful purpose.
The Supplier is the owner or licensee of all intellectual property rights in MiOK. The Customer will not acquire any proprietary right, title or interest in or to any intellectual property rights in MiOK.
4. MAINTENANCE AND SUPPORT
During the Term and at no additional charge the Supplier will provide technical support to the Customer in accordance with its then current support policy.
5. CUSTOMER OBLIGATIONS
The Customer represents and warrants that any Customer data, logos, trade marks or other material provided by the Customer to the Supplier or made available using MiOK will not (a) infringe the Intellectual Property Rights of any third party; (b) violate any applicable law, rule or regulation; or (c) contain any virus or harmful component.
The Customer (a) will be responsible for users’ compliance with the terms and conditions of this Agreement; (b) must use MiOK only in accordance with the documentation and applicable laws, rules and regulations (including those relating to export, data protection and privacy) (c) must use commercially reasonable efforts to prevent unauthorised access to or use of MiOK; and (d) must notify the Supplier of any unauthorised access to or use of MiOK or any user’s account or password.
6. CHARGES, INVOICING AND PAYMENT
The Charges, if any, for the Customer’s use of MiOK are as set out in the Order Form. If applicable, the Customer must pay the Charges within 14 days of the date of the Supplier’s invoice.
7. WARRANTIES AND DISCLAIMERS
The Supplier represents and warrants to the Customer that MiOK will operate substantially in accordance with its published specifications. This representation and warranty is made solely to the Customer and not to users or other third parties. The Customer’s sole and exclusive remedy and the Supplier’s entire liability for breach of warranty will be for the Supplier, at its option, to either use commercially reasonably efforts to correct errors in MiOK or to terminate this Agreement and refund the pro rata unused portion of the Charges paid for MiOK.
THE SUPPLIER DOES NOT WARRANT THAT MiOK WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR BE COMPLETELY SECURE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS LIMITED WARRANTIES SET OUT IN THIS CLAUSE ARE THE SOLE AND EXCLUSIVE WARRANTIES APPLYING TO MiOK AND THE SUPPLIER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED SERVICE, INTEROPERABILITY OR NON-INFRINGEMENT. MiOK IS PROVIDED STRICTLY ON AN “AS IS” BASIS
Subject to this clause, the Supplier will defend and hold the Customer harmless from any claim, demand, suit or proceeding made against the Customer by any third party claiming that MiOK infringes the third party’s Intellectual Property Rights and indemnify the Customer from any damages, liabilities, costs and expenses awarded by a court or agreed in settlement of the claim. This indemnity will not apply to any claim based on (a) use of MiOK otherwise than in accordance with this Agreement or in combination with any third party software, hardware, network or system; (b) modification of MiOK by the Customer or a third party or the Supplier’s compliance with the Customer’s instructions, designs, information or specifications; or (c) use of a superseded version of MiOK where the infringement claim could have been avoided by using a current version.
A party seeking to rely on an indemnity under this clause (the “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) in writing of any claim; (b) give the Indemnifying Party sole control of the defence and settlement of the claim; and (c) provide the Indemnifying Party with all cooperation, information and assistance reasonably requested by the Indemnifying Party, at the Indemnifying Party’s expense.
If MiOK becomes or, in the Supplier’s opinion, is likely to become the subject of an infringement claim, then the Supplier may, at its option and expense either procure the right for the Customer to continue using MiOK or replace or modify it so that it becomes non-infringing.
This clause sets out the parties’ exclusive remedies for any infringement claims or damages.
9. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES SUFFERED OR INCURRED ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS OR GOODWILL, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO THE VALUE OF THE CHARGES PAID BY THE CUSTOMER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR EVENTS GIVING RISE TO THE LIABILITY.
10. SECURITY AND DATA PROTECTION
The Customer grants to the Supplier a non-exclusive licence to use, access, process, copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer data to the extent reasonably necessary for the performance of the Supplier’s obligations and exercise of its rights under this Agreement, together with the right to sub-license these rights to its providers of hosting, connectivity and telecommunications services.
The recipient of confidential information must (a) keep the Confidential Information strictly confidential; (b) not disclose the confidential information to any person (other than the party’s employees, contractors, officers, professional advisers, financiers, insurers, auditors or accountants who have a need to know for the purposes of this Agreement and who are under obligations of confidentiality) without the disclosing party’s prior written consent; (c) only use the confidential information for the purposes for which it was disclosed under this Agreement; and (d) use the same degree of care to protect the confidentiality of the confidential information as the recipient uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care.
The obligations of confidentiality do not apply to information that (a) is already known to the recipient before disclosure and is not subject to any other obligation of confidentiality; (b) is or becomes publicly available through no act or omission of the recipient; (c) is lawfully disclosed to the recipient by a third party in circumstances where the recipient has no reason to believe that there has been a breach of an obligation of confidentiality; or (d) is independently developed by the recipient without use of the confidential information.
Without limiting the confidentiality provisions of this Agreement, the parties agree that each may reasonably publicise the non-confidential subject matter of this Agreement for ordinary marketing purposes and that each party may use the trade marks, service marks, logo and trade names of the other party for that purpose in accordance with the other party’s standard trade mark guidelines and policy.
The Supplier may, after notifying the Customer, use the Customer as a reference and refer to any project or work performed for the Customer in published case studies or other marketing material.
Following a request by the disclosing party, the recipient must promptly return or destroy (and certify the destruction of) the disclosing party’s confidential information, except that the recipient will be entitled to retain archival copies of the confidential information for legal, regulatory or compliance purposes.
12. TERM AND TERMINATION
This Agreement will commence on the commencement date shown in the order form and will continue for the initial term, unless extended or terminated in accordance with this clause.
Subject to this clause, at the expiry of the initial term and each subsequent further term, if any, this Agreement will automatically extend for a further term of 12 months on the same terms and conditions. If a party does not wish this Agreement to continue for a further term, it must give the other party notice at least 90 days before expiry of the initial term or the then current further term, as applicable.
Either party may terminate this Agreement by notice if (a) the other party commits a material breach of this Agreement and that party does not, within 30 days of written notice, remedy the breach; or (b) an insolvency event applies to the other party.
Upon termination, the Customer and its users’ rights to access and use MiOK will cease. Any outstanding charges are immediately due and payable. The Customer acknowledges that any pre-paid charges are non-refundable. Termination will not affect accrued rights of either party.
The provisions of this Agreement which are capable of having effect after termination or expiry will survive any termination or expiry.
13. FORCE MAJEURE
A party is not liable for any delay or failure to perform an obligation under this Agreement, other than a payment obligation, if the party is unable to perform that obligation due to the occurrence of an event beyond its reasonable control and which that party would not, by the exercise of all due diligence, have been able to avoid or overcome, including, without limitation, strikes, lock-outs, acts of God, war, riot, terrorism, civil commotion, sabotage, malicious acts of damage, fire, embargo or failure of the public electricity supply, water or other utility shortage (“Force Majeure Event”). Such relief from liability only applies during the period that the party is prevented by the Force Majeure Event from performing its obligations and could not have overcome the effects of the Force Majeure Event by the exercise of all due diligence.
The failure of either party to insist upon a strict performance of any term of this Agreement will not be deemed a waiver of any subsequent breach or default of the terms of this Agreement.
This Agreement may only be varied, supplemented, replaced or amended by agreement in writing executed by duly authorised officers of both parties.
Nothing in this Agreement may be construed as creating a relationship of partnership, joint venture, employee, servant, agency or a relationship of trustee and beneficiary between the parties by reason of this Agreement.
Neither party has the authority to bind the other party or make commitments of any kind on their behalf except where authorised in writing to do so by a duly authorised representative of the other party.
This Agreement embodies the entire understanding and agreement between the parties as to the subject matter of this Agreement.
All previous negotiations, understandings, representations, warranties, memoranda or commitments in relation to, or in any way affecting, the subject matter of this Agreement are merged in and superseded by this document and will be of no force or effect whatever and neither party will be liable to the other party in respect of those matters.
This Agreement is governed by and will be construed in accordance with the laws of Victoria, Australia.
The parties irrevocably and unconditionally agree to submit to the exclusive jurisdiction of the courts of Victoria in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.