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SOFTWARE AS A SERVICE AGREEMENT

AGREED TERMS

THIS AGREEMENT is made on the date noted in the Schedule

BETWEEN the Service Provider described in the Schedule

AND the Client described in the Schedule

BACKGROUND

  1. The Service Provider is a provider of student management system services.
  2. The Client wishes to engage the Service Provider to provide the Services.
  3. The Service Provider is willing to provide the Services to the Client on the terms and conditions of this Agreement.
  4. The parties enter into this Agreement to record the terms of their agreement with one another with respect to the provision of the Services.

(1) DEFINITIONS

In this Agreement, the following definitions apply:

"Additional Services" has the meaning as defined in the "Services" clause of this Agreement.

"Agreement" means this agreement.

"Agreement Date" means the date of this Agreement, as marked at the start of this Agreement.

"ACL" means the Australian Consumer Law which is contained in the Competition and Consumer Act 2010 (Commonwealth).

"Application" means the "RTOApply" web-based student management system, more particularly described at www.rtoapply.com.au

"Business Day" means a day which is not a Saturday, Sunday, public holiday, or bank holiday in Launceston in Tasmania.

"Commencement Date" means the commencement date specified in the Schedule.

"CPI" means Consumer Price Index All Groups for Hobart.

"Derivative Applications" means Applications that are an adaptation of the Application, that reproduce the whole or a substantial part of the Application.

"Fees" means money payable by the Client to the Service Provider in return for the provision of the Services, and includes:

  1. the Onboarding Fee;
  2. the Monthly Fee; and
  3. Other Fees,

and depending on the context, may include any one or more of those fees.

"Goods and Services Tax" means Goods and Services Tax imposed on a supply of goods or services in Australia, pursuant to the GST Law.

"GST" means Goods and Services Tax.

"GST Law" means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth).

"Initial Services" has the meaning as defined in the "Services" clause of this Agreement.

"Intellectual Property Rights" means, in relation to the Application, or any part, summary or derivation of the Application, all present and all future right title and interest in or to any confidential information, logos, brand names, business names, trade names, domain names, registered trademarks, unregistered trademarks, registered designs, unregistered designs, copyrights, patents, service marks, business know-how, inventions, computer programs, business systems or other related information.

"Client" means the party described in the Schedule.

"Moral Rights" means the same as in the Copyright Act 1968 (Commonwealth).

"Monthly Fee" means the fee charged monthly for services provided, as noted in the Schedule.

"Onboarding Fee" means the onboarding fee noted in the Schedule.

"Other Fees" means fees for additional and miscellaneous services, as noted in the Schedule.

"Page" means application pages within a Client’s application form as part of the Client’s utilisation of the Application.

"Party" means either the Service Provider or the Client.

"Parties" means the Service Provider and the Client collectively.

"Related companies" means a "related body corporate" within the meaning of section 50 of the Corporations Act 2001.

"Schedule" means the schedule to this Agreement.

"Service Provider" means the party described in the Schedule.

"Services" includes:

  1. the provision of access to the Application, and all servicing and maintenance of the Application;
  2. the Support Services;
  3. the Additional Services,

or a combination of any of the above;

"Student" means person booking, applying and/or enrolling or otherwise undertaking training courses offered by the Client

"Term" has the meaning as defined in the "Term" clause of this Agreement.

(2) INTERPRETATION

In this Agreement, unless the context otherwise requires, the following rules of interpretation shall apply:

(a) Words referring to one gender include every other gender.

(b) Words referring to a singular number include the plural, and words referring to a plural include the singular.

(c) If a word or phrase is defined in this Agreement then any grammatical variations of that word or phrase have a corresponding meaning.

(d) In the event that something must be done under this Agreement on or before a particular date, if that date falls on a day which is not a Business Day, then that thing must be done on or before the preceding Business Day.

(e) Headings and titles are included in this Agreement for convenience only and shall not affect the interpretation of this Agreement.

(f) Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to this Agreement and the events contemplated by it.

(g) A reference to legislation or any part or provision of that legislation includes any subordinate legislation, any amended legislation, and any substituted legislation issued under that legislation.

(h) A reference to an agreement or document is a reference to that agreement or document as amended, replaced, supplemented or novated from time to time.

(i) A reference to a Party also includes that Party's successors, assigns, legal personal representatives and/or any person that is substituted by way of novation.

PART 1 - AGREEMENT TO PROVIDE SERVICES

(3) OWNERSHIP AND USE OF APPLICATION

(a) The Service Provider owns the intellectual property rights in the Application.

(b) In accordance with this Agreement, the Service Provider agrees to permit the Client to use the Application.

(c) For the avoidance of doubt, nothing in this Agreement grants the Client any beneficial interest in, or title to, the Application, and the Service Provider retains all right, title, interest in the Application.

(4) COMMENCEMENT

The Service Provider agrees to provide the Services to the Client commencing on the Commencement Date.

(5) ONBOARDING FEE

In consideration for the Service Provider agreeing to provide the Services, the Client must pay to the Service Provider the Onboarding Fee in accordance with the Schedule.

(6) SERVICE PROVIDER TO PROVIDE ACCESS TO THE APPLICATION

The Service Provider will provide access to the Application to the Client in the following manner:

  1. The Service Provider will install and configure the Application into a Microsoft Azure account.
  2. For the Term of this Agreement, the Application will be hosted in this Microsoft Azure account.

The Client must provide the Service Provider with access to the Microsoft Azure account throughout the currency of this Agreement.

(7) MODIFICATIONS

(a) Unless the prior written approval of the Service Provider is given, the Client must not modify or change the Application in any manner.

(b) In the event that the Client requires the Application to be modified or changed in some manner, the Client must request any such modifications from the Service Provider. The Service Provider (either directly or through the use of agents, employees, contractors or other representatives of the Service Provider) is the only party permitted to modify or change the Application in any way.

(c) In no circumstances is the Client permitted to use a party other than the Service Provider (or an agent, employee, contractor or other representative of the Service Provider) permitted to modify or change the Application, without the prior written permission of the Service Provider.

(8) REVOCATION OF ACCESS TO APPLICATION

(a) In the event that this Agreement is terminated in one of the ways described under the "Termination" clause of this Agreement, then the Service Provider may revoke access to the Application immediately.

(b) If this Agreement is not terminated in one of the ways described under the "Termination" clause of this Agreement, then the Service Provider may revoke access to the Application.

PART 2 – ONGOING SERVICES

(9) SERVICES

  1. In consideration for the Client paying the Onboarding Fee, and subject to the provisions of this Agreement, the Service Provider hereby agrees to provide the Client with such reasonable ongoing support as it may require in relation to the Application, during Tasmanian office hours, including:

    1. phone or email technical assistance; and
    2. software updates (when available)

    ("Support Services").

  2. In the event the Client requires customised modifications to the Application or otherwise desires the Service Provider undertake alterations to the Application ("Additional Services"), then the Service Provider will consider such request but is under no obligation to undertake such modifications or alterations. If the Service Provider agrees to undertake such modifications, then the price for same is to be agreed upon by both Parties and development of that customised Application is not included in the Onboarding Fee.

  3. The Services may also include any other tasks which the Parties may agree on from time to time.

(10) SERVICE FEES

  1. In consideration for the Service Provider’s agreement to provide the Support Services, the Client shall pay to the Service Provider the Monthly Fees. Except as otherwise noted in the Schedule, the Monthly Fee will be calculated by reference to the number of Pages completed by Students or by the Client during a particular calendar month, and for the purpose of this clause a Page will be taken as being "completed" if:

    1. in the case of a Student, when they have filled in all the required fields on the page and the page has passed validation and the data has been saved; and
    2. in the case of the Client, when a user has visited a review page that has been filled in, has passed validation, and had its data saved,

    provided that a Page will only regarded as having been completed if the particular Student’s enrolment has been processed by the Client.

  2. In consideration for the Service Provider providing Additional Services, as set out in clause 9 of this Agreement, the Client shall pay to the Service Provider such amount, by the date, and in the manner agreed between the Parties.

(11) ONGOING SUPPORT SERVICES

  1. The Service Provider shall provide online support, telephone support for the ongoing administration and maintenance of the Application.

  2. The Service Provider agrees to respond within 1 Business Day by telephone or email during business hours to critical technical issues, where critical is defined as:

    1. Total loss of service
    2. Complete inability of customers or staff to access content or administrative tools

  3. The Service Provider agrees to respond within 1 Business Day by telephone or email during business hours to major technical issues where major is defined as

    1. Degradation of service
    2. Inability of more than one (but not all) customers or staff to access content or administrative tools

  4. The Service Provider agrees to respond within 2 Business Days by telephone or email during business hours to minor technical issues where minor is defined as an issue that is not critical or major.

(12) LOCATION AND TIMING OF SERVICES

The Services may be performed at such locations and times as agreed between the Parties.

(13) PERFORMANCE OF SERVICES

The Services may be performed by the Service Provider personally, or by any employees, agents or subcontractors as chosen by the Service Provider in the Service Provider's sole discretion.

(14) CLIENT OBLIGATIONS REGARDING SERVICES

The Client:

  1. Must, at the Client’s own cost, take all reasonable steps to cooperate in good faith with the Service Provider during the period while the Service Provider is providing the Services to the Client, including by providing to the Service Provider any information or documentation that the Service Provider reasonably requires in order to provide the Services, and making available to the Service Provider any facilities, resources or personnel that the Service Provider reasonably requires in order to provide the Services.

  2. Must ensure that the Client‘s employees, agents and other contractors take all reasonable steps to cooperate in good faith with the Service Provider during the period while the Service Provider is providing the Services to the Client, including by making available any information, documentation, facilities, resources or personnel as reasonably required by the Service Provider, in accordance with this clause.

  3. Will, in the event that the Client does not provide the information, documentation, facilities, resources or personnel or does not take any other steps to cooperate with the Service Provider as the Service Provider reasonably requires, within the time period that the Service Provider reasonably requires, be liable for any additional costs and expenses which are reasonably incurred by the Service Provider.

PART 3 – GENERAL PROVISIONS

(15) OTHER FEES

  1. Separate from and in addition to the Onboarding Fee and the Monthly Fee, the Service Provider reserves the right to charge the Client the Other Fees.

(16) INVOICING

  1. The Service Provider will provide the Client with invoices for the Fees within 14 days of them becoming payable.

  2. The Service Provider is entitled (but not obliged) to invoice the Client monthly for any Services provided to the Client pursuant to this Agreement.

  3. The Client must pay any valid tax invoice from the Service Provider in full within 14 days of receiving the said invoice.

(17) LATE PAYMENT OF INVOICE

  1. If the Client does not make payment by the due date for payment as specified in any invoice issued by the Service Provider, the Service Provider may charge interest on any amounts outstanding, at the rate of 10% per annum, accruing daily.

  2. If the Client does not make payment by the due date for payment as specified in the Invoice, the Service Provider may refrain from providing any further Services, or access to the Application for the Client or any other services to the Client (even if that Application or those services are dealt with under a separate service agreement) until the Invoice has been paid in full.

  3. If the Client does not make payment by the due date for payment as specified in the Invoice, the Service Provider may require the Client to pay in advance for any future Services or any part of the Services which have not been performed.

  4. If the Client does not make payment by the due date for payment as specified in the Invoice, then the Service Provider may at the Service Provider’s discretion, revoke access to the Application until the invoice has been paid in full.

(18) ADJUSTMENT OF FEES

  1. The Service Provider may adjust the Fees in accordance with CPI from time to time, by notifying the Client in writing. The Service Provider agrees not to adjust the Fees more than once in any single annual period.

  2. Upon the Service Provider notifying the Client in writing that any Fee has been adjusted, then the Client must pay that adjusted Fee effective as of that date.

(19) TERM

The term of this Agreement ("the Term") will commence on the Commencement Date and will continue until terminated in accordance with the Termination clause of this Agreement.

(20) GOODS AND SERVICES TAX

The Parties acknowledge that any payments under this Agreement, including the Royalty, the Initial Service Fee and the Ongoing Service Fee are inclusive of any Goods and Services Tax ("GST"), if applicable.

(21) CURRENCY

Unless otherwise specifically provided, all monetary amounts contained in this Agreement are in Australian Dollars (AUD).

(22) CONFIDENTIALITY

  1. Each Party hereby acknowledges and agrees that during the Term of this Agreement, they may have access to information that is confidential and/or commercially valuable to the other Party ("Confidential Information"), which may include but is not limited to:

    1. information of whatever nature relating to the business activities, practices and finances of the other Party;

    2. personal information of students of the Client;

    3. any code, or any other evaluation material, design Application, technologies, technological ideas or strategies, strategic plans and ideas, marketing strategies, innovations, creative plans, concepts and any other plans or ideas developed by the Service Provider or on its behalf, or used by the Service Provider, whether relating specifically to the Service Provider's business or otherwise;

    4. any information derived from any other information which falls within this definition of Confidential Information; and

    5. any copy of any Confidential Information.

    but does not include information which:

    1. was known or in the possession of the Party receiving the information before it was provided to that Party, provided that it was known or in the possession of the receiving Party through legal means, and not as a result of any breach of this Agreement or any other agreement or obligation relating to confidentiality (whether or not the receiving Party was a party to such other agreement or obligation);

    2. is, or becomes, publicly available, through no fault of the receiving Party;

    3. is provided to the receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;

    4. is provided to the receiving Party by the other Party and is marked "Non Confidential"; or

    5. is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the other Party is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.

  2. If there is any doubt as to whether any particular information constitutes Confidential Information, the receiving Party should presume it is Confidential Information, until they obtain explicit confirmation from the other Party that it is not Confidential Information.

  3. The Parties shall keep the Confidential Information confidential and secret.

  4. The Parties shall only use the Confidential Information in accordance with the use of the Application.

  5. The Parties will hold the Confidential Information in confidence and will not disclose the Confidential Information to any person or entity without the prior written consent of the other Party.

  6. The Parties will not copy or modify any Confidential Information without the prior written consent of the other Party.

  7. Each Party shall promptly advise the other Party if they become aware of any possible unauthorised disclosure or use of the Confidential Information.

  8. Each Party shall not disclose any Confidential Information to any employees of that Party, except those employees who are required to have the Confidential Information in order to perform their job duties in connection with the limited purposes of this Agreement. Each permitted employee to whom Confidential Information is disclosed shall sign a non-disclosure agreement substantially the same as this Agreement at the request of the other Party.

  9. This clause will survive Termination, expiration or Completion of this Agreement.

(23) INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS

In the event the Service Provider becomes aware of any infringement or any threatened infringement of any Intellectual Property Rights in relation to the Application, or of any common law 'passing off' in relation to any Intellectual Property Rights, then:

  1. The Service Provider must immediately notify the other Party of such infringement or 'passing off' (together hereinafter "Infringement").

  2. The Parties must each take all reasonably necessary steps, including executing all necessary documents, and must cooperate in good faith, in order to protect and enforce the Service Provider’s Intellectual Property Rights in relation to the Application.

(24) NATURE OF RELATIONSHIP

  1. Nothing in this Agreement constitutes an employment relationship between the Client and the Service Provider or between the Client and the Service Provider's workers (such as the employees, agents or subcontractors of the Service Provider). No relationship of employer and employee is created by this Agreement.

  2. Nothing in this Agreement creates a partnership, joint venture, fiduciary relationship, agency or other relationship between the Client and the Service Provider except for the contractual relationship which is provided in this Agreement.

  3. The Parties hereby acknowledge and confirm that it is the express intention of all Parties that the Service Provider is acting in relation to the Client as a Service Provider and as a contractor and not as an employee, partner, joint venture partner, agent or otherwise.

(25) SERVICE PROVIDER OWNERSHIP OF DERIVATIVE APPLICATIONS

In the event that the Client creates Derivative Applications, then as of the date of the creation of such Derivative Applications, the title and ownership of any Derivative Applications will be assigned to the Service Provider by the Client, such that the Service Provider retains title and ownership of both the Applications and any Derivative Applications.

(26) SERVICE PROVIDER WARRANTIES

  1. The Service Provider hereby provides the following warranties (hereinafter the "Service Provider's Warranties"):

    1. That the Service Provider has the full legal authority and capacity to enter this Agreement.

    2. That the Service Provider owns the intellectual property rights in the Application which the Service Provider is providing to the Client under this Agreement.

    3. That the Service Provider has the full legal authority to provide the Application to the Client.

    4. That there are no restrictions, legal or otherwise, which prevent the Service Provider from entering this Agreement.

    5. The Service Provider represents and warrants that the Application and the Services and use of the Application and Services as contemplated by this Agreement, do not infringe the intellectual property rights of any third party.

    6. The Service Provider represents and warrants that the Application:

      1. will perform in accordance with its specifications;

      2. is fit for purpose;

      3. is free from defects and errors; and

      4. does not contain any virus.

    7. The Service Provider represents and warrants that:

      1. it has the required level of skill, knowledge and experience to provide the Services;

      2. will provide all Services with due care, skill and attention; and

      3. provide the Services within the required service levels.

    8. That there are no legal claims, existing or threatened, and no other circumstances or liabilities which may negatively affect or impair the Client's ability to use the Application in accordance with this Agreement.

  2. This clause will survive Termination, expiration or Completion of this Agreement.

(27) CLIENT WARRANTIES

  1. The Client hereby provides the following warranties (hereinafter the "Client's Warranties"):

    1. That the Client has the full legal authority and capacity to enter this Agreement.

    2. That the Client will only use the Application in accordance with the terms of this Agreement.

    3. That the Client will not, whether directly, or by using an agent, employee, contractor or other representative, modify the Application in any way, except by hiring the Service Provider under the terms of this Agreement, to provide any such modifications, or except with the Service Provider’s prior written consent.

  2. This clause will survive Termination, expiration or Completion of this Agreement.

(28) CLIENT INDEMNITY

  1. The Client hereby indemnifies, keeps indemnified, and holds harmless the Service Provider against direct damages the Service Provider may incur in relation to the unauthorised use of the Application

  2. This clause will survive Termination, expiration or Completion of this Agreement.

(29) SERVICE PROVIDER INDEMNITY

  1. The Service Provider hereby indemnifies, keeps indemnified, and holds harmless the Client against direct damages the Client may incur in relation to a breach of this agreement

  2. This clause will survive Termination, expiration or Completion of this Agreement.

(30) LIMITATION OF LIABILITY

  1. The Client may have certain rights under the ACL, or under other similar or related consumer protection laws.

  2. The ACL (or any other similar or related consumer protection laws) may give the Client certain rights, warranties, guarantees and remedies regarding the provision of goods or services by the Service Provider, which cannot be excluded, modified or restricted by the Service Provider ("Statutory Rights").

  3. The Service Provider’s liability to the Client is governed solely by the ACL (and any other similar or related consumer protection laws) and by this Agreement.

  4. To the maximum extent permitted by law, the Service Provider excludes all conditions and warranties implied by custom, law or statute, except for the Client’s Statutory Rights, and the Service Provider expressly disclaims all warranties of any kind including but not limited to implied warranties that the Application and any Services are fit for a particular purpose (except for any warranties set out in this Agreement).

  5. The Client hereby agrees that the Service Provider is not liable for any direct, indirect, consequential or incidental loss or damage which may result from the Client’s use of the Application. For the sake of clarity, in no event will the Service Provider be liable for any consequential, indirect, incidental or special damages of any kind including any damages for loss of revenue, profits, interruption of business, or loss of data, even if the possibility of such loss was made known to the Service Provider.

  6. Notwithstanding any contrary provision of this Agreement or elsewhere, and to the maximum extent permitted by law, the cumulative liability of the Service Provider to the Client in connection with this Agreement, including any liability for negligence, for breach of this Agreement or under any law or indemnity, will be limited to the amount paid by the Client under this Agreement.

  7. When the Client’s Statutory Rights apply, to the maximum extent possible, the Service Provider’s liability in respect of any claim is limited to, at the Service Provider’s option:

    1. in the case of goods:

      1. a replacement of the goods; or

      2. the supply of equivalent goods; or

      3. a repair of the goods; or

      4. the payment of the cost of replacing the goods; or

      5. the payment of the cost of acquiring equivalent goods or of having the goods supplied again; or

      6. the payment of the cost of having the goods repaired; and

    2. in the case of services:

      1. the supply of the services again; or

      2. the payment of the cost of having the services supplied again

      3. The Provider's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.

  8. This clause will survive the termination or expiration of this Agreement.

(31) TRANSFER OF RIGHTS

  1. This Agreement shall be binding on any successors of the Parties.

  2. The Service Provider may, at any time, transfer or assign its rights pursuant to this Agreement.

  3. The Client is not permitted to transfer, assign, lease, or otherwise dispose (partially, temporarily or permanently) of its interest in this Agreement without the prior written permission of the Service Provider, which permission may be withheld absolutely.

  4. This clause will survive Termination of this Agreement.

(32) TERMINATION

  1. This Agreement may be terminated by the Service Provider if:

    1. The Client fails to pay any amounts payable pursuant to this Agreement when due under the terms of this Agreement.

    2. The Client is declared bankrupt, enters into administration or enters into liquidation.

    3. The Client is in breach of this Agreement and fails to rectify the said breach within 30 days after receiving notice from the Service Provider of the said breach.

  2. This Agreement may be terminated by the Client if:

    1. The Service Provider is declared bankrupt, enters into administration or enters into liquidation.

    2. The Service Provider is in breach of this Agreement and fails to rectify the said breach within 30 days after receiving notice from the Client of the said breach.

    3. The Client gives the Service Provider not less than 30 days written notice of termination.

  3. Immediately upon the termination of this Agreement (however occurring):

    1. Any and all rights in the Application will revert to the Service Provider.

    2. Any and all payments which have previously been paid by the Client remain the Service Provider's property and the Client has no right to make any claim in relation to them.

    3. Any and all obligations in respect of payments for Fees which are accrued but unpaid as at the date of termination must be paid in full to the Service Provider by the Client.

    4. The Client must, upon demand by the Service Provider, provide to the Service Provider any and all documents, data, code or other materials in the Client's possession which relate to the Application.

    5. The Client must, upon demand by the Service Provider, take any reasonable steps as requested by the Service Provider to protect the Service Provider's right, title and interest in the Application.

    6. Each Party will promptly return to the other Party respectively any property, documentation, records or confidential information which is the property of the other Party.

(33) NOTICES

  1. Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the relevant Party if delivered to that Party’s postal address or email address as noted in the Schedule.

  2. Either Party ("the Nominating Party") may nominate another address ("the New Address") by notifying the other Party in writing of the New Address. Any notice demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Address, be deemed validly given if delivered to the Nominating Party at the New Address.

  3. Notices can be sent by electronic mail to a specified email address by the Service Provider and Client and the notice is deemed to have been duly given when the sender has not received a non-delivered reply. If such notice is given on a Saturday or Sunday or public holiday, the notice is deemed to have been given the next Business Day.

(34) WRITTEN COMMUNICATION

In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:

  1. such notice is properly given if given to the other Party:

    1. by email to an email address that the other Party has nominated, acknowledged or used in connection with this Agreement.

    2. by post to a postal address the other party has nominated, acknowledged or used in connection with this Agreement.

  2. such notice is taken to be received:

    1. if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.

    2. if sent by prepaid post within Australia, five (5) days after the date of posting.

    3. if sent by prepaid post to or from an address outside Australia, twenty one (21) days after the date of posting.

(35) MISCELLANEOUS

  1. GOVERNING LAW: This Agreement shall be governed in all respects by the laws of Tasmania and any applicable federal law. Both Parties consent to jurisdiction under the state and federal courts within Tasmania.

  2. AMENDMENTS: No amendment to or modification of this Agreement, and no additional obligation or obligations in relation to this Agreement or the subject matter of this Agreement, will bind any Party unless evidenced in writing and signed by both Parties.

  3. SURVIVAL OF OBLIGATIONS: Notwithstanding any other provisions of this Agreement, at the Termination, expiration or Completion of this Agreement, any provisions of this Agreement which would by their nature be expected to survive Termination, expiration or Completion shall remain in full force and effect, including but not limited to any provisions which are explicitly stated to survive Termination, expiration or Completion.

  4. NO WAIVER: None of the powers or rights created under the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. A power or right under the terms of this Agreement may only be waived in writing, signed by the Party that is waiving the said power or right. No waiver of any power or right under a term of this Agreement shall constitute a waiver of any other power or right or of the same power or right on a future date. Failure of either Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term.

  5. SEVERABILITY: If any provision or term of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Agreement.

  6. ENTIRE AGREEMENT: The Parties agree that in relation to the subject matter of this Agreement, this Agreement represents the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral. The Parties confirm that no warranties, representations, conditions or collateral agreements affect this Agreement or the subject matter of this Agreement except as expressly provided in this Agreement. The Parties each respectively agree that in entering into this Agreement, they did not do so in reliance on any representations, warranties or other provisions except for those which are expressly provided in this Agreement.

  7. COUNTERPARTS: This Agreement may be executed in counterparts, all of which shall constitute a single agreement. If the dates set forth at the end of this document are different, this Agreement is to be considered effective as of the date that both Parties have signed the agreement, which may be the later date.

  8. FORCE MAJEURE/EXCUSE: Neither Party is liable to the other for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances. Service Provider is not liable for any delivery delay or non-performance caused by labor or transportation disputes or shortage, material delays, or delays or non-performance caused by any of Service Provider’s suppliers. If Service Provider is unable to perform for any reason within 30 (thirty) days after the expected date of delivery, Service Provider may terminate this Agreement in full and provide a complete and total refund to Client of any fees paid.

  9. FURTHER ACTS: Each Party must, and must ensure that its directors, employees, officers, agents, representatives and contractors do all things and sign, execute and deliver all documents, agreements and instruments as reasonably required in order to give effect to this Agreement and to the rights and obligations of the Parties created under this Agreement.