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This Master Services Agreement (the "Agreement") is between Down Under On
Line Pty Ltd, a Queensland proprietary limited company,
doing business as DUO WEB HOSTING (“DUO”), and the person
(individual or legal person, hereinafter referred to as
“Customer”) whose name appears on the signature line of the
Agreement or on any document that incorporates the Agreement
by reference or who otherwise accepts these terms in
connection with obtaining Services from DUO (“Acceptance”)
and is effective on the Effective Date.
1. Defined Terms.
Capitalized terms shall have the following meanings or the
meanings assigned to them in the other Sections of the
Agreement:
“Agreement” shall mean the Service Order Form(s),
this Master Services Agreement, the Service Level Agreement,
any DUO Addendum to this Master Services Agreement, and the
AUP, collectively. Any conflict among these documents shall
be resolved by reading the documents in the foregoing order
of precedence.“Annual Term” shall mean the Initial
Term of this Agreement and each succeeding twelve month
period.
“AUP” shall mean DUO’s Acceptable Use Policy, posted
on the Effective Date at www.downunderonline.net as it may
be amended from time to time in accordance with this Master
Services Agreement.
“Business Day” shall mean Monday through Friday, 8:00
a.m. to 5:00 p.m., eastern standard time, excluding any day
that banks in Australia are required or permitted to be
closed.
“Effective Date” shall mean the day that Customer
accepts the Agreement, either by signing DUO’s Service Order
Form or a copy of this Master Services Agreement, or by
using the Service, or through other means of signifying
Acceptance.
“Hosting Service Level Agreement” shall mean the
Hosting Service Level Agreement incorporated by reference in
the Service Order Form, as it may be amended from time to
time by written agreement of the parties.
“Managed Hosting Service” shall mean hosting and
operating Customer’s web site on DUO’s security and
environmentally controlled computer servers and providing
Customer and Customer’s clients with on-line, real time
access and use of the web-site via the internet on a
continuous, 24 hour per day x 7 days per week x 365 days per
year basis, except for the service interruptions described
below.
“Service” or “Services” shall mean the Managed
Hosting Service and any Supplemental Service(s) (as defined
in Section 3) provided by DUO to Customer pursuant to the
Agreement.
“Service Commencement Date” shall mean the date DUO
generates an e-mail message to Customer that provides access
codes and passwords for use in connection with the Managed
Hosting Service.
2. Term. The initial
term of this Agreement shall begin on the Service
Commencement Date and continue for a period of one year (the
“Initial Term”). This Agreement shall automatically be
extended for an additional one year term upon the
anniversary date of the Initial Term or any extension
thereof, and PROVIDED THAT CUSTOMER IS THEN CURRENT ON
ITS ACCOUNT WITH DUO INCLUDING THE ANNUAL FEE, unless
either party terminates the Agreement, for any reason, upon
30 days written notice to the other party.
3. Services. Contingent
upon the Customer’s satisfaction of DUO’s credit approval
requirements and on DUO’s verification of the information
provided by Customer for the purpose of establishing the
Service, DUO agrees to provide the Managed Hosting Service
in accordance with the terms of the Agreement. In addition,
DUO may from time to time perform certain additional
services on an hourly fee basis (the “Supplemental
Services”), including customization of the Managed Hosting
Service at the Customer’s request, services described in the
AUP, and other professional technical services. Supplemental
Services will be performed only on Customer’s advance
approval and will be invoiced at DUO’s then-published rates
or other rates approved in advance in writing by Customer.
However DUO may perform Supplemental Services for the fees
stated in the AUP as necessary to remedy problems caused by
AUP violations without obtaining advance Customer consent.
4. Server Capacity and
Availability. DUO shall maintain sufficient
server capacity to allow for reasonable access to Customer’s
website consistent with anticipated and historic access
volume. DUO shall provide continues access to Customer’s
website, except for:
(i) scheduled downtime not to exceed four (4) hours per
calendar month and at such time which, in the sole opinion
of DUO, is the most convenient to all of DUO’s customers,
for the purpose of maintenance or replacement of software or
hardware;
(ii) any outages caused by the co-location facility housing
the servers from where the Customer’s website is hosted;
(iii) any outages caused by any person or event beyond the
control of DUO.
5. Payments.
(a) Fees. The Customer agrees to pay the annual
(Annual Fee) and set up fees stated in the DUO Hosting
Invoice and DUO’s standard fees for Supplemental Services,
if any, as described in Section 3 (Services) above. The
Annual Fee is non-refundable.
Fees payable to DUO are payable on receipt of DUO’s invoice.
After the Service Commencement Date, the Annual Fee shall be
invoiced in advance on or around 30 days before expiration
of the current term. Invoices for Supplemental Services,
excess data transfer, reinstatement of service, switching
and upgrade fees and other non-recurring amounts will be
invoiced as they are incurred by the Customer. The Customer
acknowledges that it is responsible for excess data transfer
fees that may result from a denial of service or other
attack on DUO's servers. Payments must be made in Australian
dollars. DUO may charge interest on amounts that remain
outstanding at the expiry of ten (10) days or more, at the
lesser of 1.5% per month or the maximum non-usurious rate
under applicable law. DUO may suspend any or all Services if
payment for any Service is overdue. The Customer agrees to
pay DUO’s current reinstatement fee at the time of
reinstatement of service following a suspension of service
for non-payment or an AUP violation investigation.
(b) Early Termination. The Customer acknowledges that
the Annual Fee is payable in advance and is non-refundable.
In the event DUO terminates the Agreement for the Customer’s
breach of the Agreement in accordance with Section 14
(Termination), or the Customer terminates the Managed
Hosting Service no fees due under the Agreement will be
refunded or prorated to date of termination.
(c) Termination Notices. DUO shall provide notice to
the Customer of the expiry of the Annual Term 45 days or
more prior to expiry of the Annual Term and shall further
provide a 30 day invoice for payment of the Annual Fee. The
Customer acknowledges that notice must be given to DUO 30
days prior to the expiry of the Annual Term, or the Customer
is financially liable for full payment of the Invoice that
was issued for the next hosting term.
(d) Default Accounts. Unpaid invoices for any fees or
services payable to DUO under the Agreement will be
considered in default if not paid within 30 days of receipt.
If the Customer in default maintains any information or
files on its web space, DUO may, at its discretion, remove
all such material from its Web space. Removal of such
material does not relieve the Customer of its obligation to
pay any outstanding charges owing by the Customer.
Customers with accounts in default agree to indemnify DUO
for DUO’s reasonable expenses, including but not limited to
debt collection fees, legal fees on a party-party basis, and
court costs, incurred in enforcing payment of fees under the
Agreement.
(e) Taxes. Customer shall remit to DUO all GST
imposed on the provision of the Services , regardless of
whether DUO fails to collect the tax at the time the related
Services are provided.
6. Customer Obligations.
The Customer agrees to do all of the following at the
Customer’s expense:
(a) Security Precautions. Use reasonable security
precautions in connection with its use of the Services ;
(b) Data Back Up. Notwithstanding any agreement by
DUO to provide data storage or back up services, create and
maintain a current copy of all customer's content stored on
DUO servers or otherwise provided to DUO, and store the copy
in a reasonably secure location other than a DUO server or
location;
(c) Compliance with Laws and AUP. Comply with laws
applicable to Customer’s use of the Services and with DUO’s
AUP and
(d) Investigation of AUP. Cooperate with DUO’s investigation of any suspected violation of the AUP.
7. AUP. The Customer agrees that DUO may, in its
reasonable commercial judgment consistent with industry
standards, amend any part of the Agreement from time to time
to further detail or describe reasonable restrictions and
conditions on Customer’s use of the Hosting Services or
DUO’s commercial trading terms. Amendments to the Agreement
are effective on the earlier of DUO’s publication on the DUO
website that an amendment has been made, or the beginning of
any Renewal Term or Extended Term.
However, if:
(i) the amendment would materially and adversely affect the
Customer, and
(ii) the Customer provides DUO with a written notice
describing its objection to the amendment in reasonable
detail within five (5) Business Days of the effective date
of the amendment, and
(iii) DUO does not agree to waive the amendment as to the
Customer within five (5) Business Days of the Customer’s
notice, then the Customer may terminate the Agreement
without liability as provided in Section 13 (a)(iv)
(Termination)
8. Suspension of Service.
The Customer agrees that DUO may suspend Services to the
Customer without notice and without liability if:
(i) DUO reasonably believes that the Services are being used
in violation of the AUP or
(ii) the Customer fails to cooperate with any DUO
investigation of any suspected violation of the AUP or
(iii) there is a denial of service attack on the Customer’s
content or other event for which DUO reasonably believes
that the suspension of Services is necessary to protect its
network or its other customers; or
(iv) as requested by a law enforcement or government agency.
Information on DUO’s servers will be unavailable during any
suspension of Services.
9. Warranties.
(a) Reciprocal. DUO represents and warrants to the
Customer, and if the Customer is not an individual, the
Customer represents and warrants to DUO, that:
(i) it has the power and authority and the legal right to
enter into the Agreement and to perform its obligations
under the Agreement;
(ii) it has taken all necessary action on its part to
authorize the execution and delivery of the Agreement; and,
(iii) the execution and delivery of the Agreement and the
performance of its obligations hereunder do not conflict
with or violate applicable laws or regulations, and do not
conflict with or constitute a default under its charter
documents.
If the Customer is an individual, the Customer represents
and warrants to DUO that he or she is at least 18 years of
age.
(b) Customer. The Customer represents and warrants to
DUO that:
(i) the information the Customer has provided and will
provide to DUO for the purposes of establishing and
maintaining the Service is accurate;
(ii) Customer will not use the Services for the development,
design, manufacture, production, stockpiling, or use of
nuclear, chemical or biological weapons, weapons of mass
destruction, or missiles, and
(iii) Customer shall not provide access to the Service to
any person (including any natural person or government or
private entity) that is located in or is a national of any
embargoed or highly restricted country under Australia
Export Regulations.
10. Unauthorized Use of Service.
The Customer shall be responsible for any unauthorized use
of the Services by any person, and shall pay all fees
incurred for its account by any person using the Services,
unless such unauthorized use results from DUO’s failure to
perform its obligations under the Agreement.
11. Indemnification. The
parties agree that the indemnification obligations defined
in this Section where possible shall be in lieu of and supersede any
indemnification obligations that may otherwise exist by law.
(a) Customer. The Customer agrees to indemnify and
hold harmless DUO, DUO’s affiliates, and each of their
respective officers, directors, attorneys, agents, and
employees from and against any and all claims, demands,
liabilities, obligations, losses, damages, penalties, fines,
punitive damages, amounts in interest, expenses and
disbursements of any kind and nature whatsoever (including
reasonable attorneys’ fees) brought by a third party under
any theory of legal liability arising out of or related to:
(i) the actual or alleged use of the Services in violation
of: (A) the Agreement or (B) applicable law, by any person
regardless of whether such person has been authorized to use
the Services by the Customer, except for unauthorized use
that results from DUO’s failure to perform its obligations
under the Agreement, or
(ii) any dispute regarding the control of Customer’s account
with DUO.
Without limiting any of the above, the Customer shall pay
DUO $250.00AUD per hour for time reasonably spent by DUO
personnel to respond to third party complaints regarding
Customer’s use or alleged use of the Services in violation
of the AUP.
(b) Reciprocal. Each party agrees to indemnify and
hold harmless the other party, the other party’s affiliates,
and each of their respective officers, directors, attorneys,
agents, and employees from and against any and all claims,
demands, liabilities, obligations, losses, damages,
penalties, fines, punitive damages, amounts in interest,
expenses and disbursements of any kind and nature whatsoever
(including reasonable attorneys’ fees) brought by a third
party arising out of or related to the indemnifying party’s
actual or alleged infringement or misappropriation of a
third party’s copyright, trade secret, patent, trademark, or
other proprietary right.
(c) Procedures. A party seeking indemnification under
this Section shall provide prompt notice of its claim for
indemnification to the indemnifying party. However, failure
to give prompt notice shall not affect the indemnifying
party’s obligations under this Section unless and to the
extent that the failure materially prejudices the defense of
the matter. The indemnified party will have the right to
select their legal representatives to defend it in respect
of any indemnified matter under this Section; provided,
however, that the legal representatives selected must be
reasonably satisfactory to the indemnifying party. The
indemnified party will keep the indemnifying party informed
of the status of any litigation or dispute resolution
procedure, will give reasonable consideration to the
suggestions and requests of the indemnifying party with
respect to the conduct of the litigation or dispute
resolution procedure, and will not settle any matter covered
by this Section without the prior consent of the
indemnifying party, which shall not be unreasonably
withheld. Notwithstanding anything in this Section to the
contrary, if the indemnifying party is indemnifying multiple
persons related to the subject matter of the
indemnification, the indemnifying party shall have the right
to seek consolidation of all such actions and to select
counsel to defend the actions. Amounts due under this
Section shall be paid as incurred and may be offset against
other amounts due under the Agreement
12. Disclaimer of Warranties.
DUO DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. THE
CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN
INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF
CUSTOMER’S PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, DUO DISCLAIMS ANY
AND ALL WARRANTIES NOT EXPRESSLY STATED IN THE AGREEMENT
INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PURPOSE, AND NONINFRINGEMENT. THE CUSTOMER IS SOLELY
RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN. ALL
GOODS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, EXCEPT
AS EXPRESSLY STATED IN THE SERVICE LEVEL AGREEMENT OR OTHER
PORTION OF THE AGREEMENT.
13. Limitation of Damages. BY LAW, THE CREDITS DESCRIBED IN
THE AGREEMENT ARE THE CUSTOMER’S SOLE REMEDIES FOR DUO’S
FAILURE TO MEET A GUARANTEE AND/OR WARRANTY, HOWEVER, THIS
PROVISION DOES NOT LIMIT THE CUSTOMER’S
The parties agree that the allocations of risk made in this
Section are reasonable and that they would not enter into
the Agreement without these
limitations on liability.
TO THE EXTENT PERMISSIBLERIGHT TO TERMINATE
THIS AGREEMENT AS PROVIDED IN SECTION 13 (TERMINATION) IF
SUCH FAILURE(S) CONSTITUTE A MATERIAL BREACH OF THIS
AGREEMENT.
EXCEPT AS DESCRIBED IN THE AGREEMENT, DUO SHALL NOT BE
LIABLE TO THE CUSTOMER FOR HARM CAUSED BY OR RELATED TO
CUSTOMER’S USE OF THE SERVICES OR INABILITY TO USE THE
SERVICES UNLESS THE HARM WAS CAUSED BY DUO’S NEGLIGENCE OR
MISCONDUCT.
EXCEPT IN CASES OF INTENTIONAL TORTS DUO AND THE CUSTOMER SHALL
NOT BE LIABLE TO EACH OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF
ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF
REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE
AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE
AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE
CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF DUO AND ANY OF
ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW
(INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND
INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE
AMOUNT PAID BY CUSTOMER FOR THE MANAGED HOSTING SERVICE FOR
THE THREE MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S)
GIVING RISE TO THE CLAIM.
14. Liquidated
Damages. In the event Customer causes or is responsible for the
infringement or unauthorized use of DUO’s software or other
DUO intellectual property, the Customer shall immediately
cease and desist from further infringement or unauthorized
use of DUO’s intellectual property, upon receipt of notice
from DUO, and respond to DUO within two (2) days, in
writing, stating the specific steps taken to cure the
violation of DUO’s intellectual property rights.
If applicable, the Customer shall similarly cause any third
parties to whom Customer has allowed access to DUO’s
intellectual property, to likewise cease and desist from the
unauthorized use of DUO’s intellectual property.
The parties agree an amount equal to DUO’s original
invoice to Customer for the creation and development of
Customer’s website, shall apply for each violation of DUO’s
intellectual property rights and Customer shall pay DUO such
liquidated damages within five (5) days of being found in
breach of this contract or otherwise held to be responsible
for the infringement or unauthorized use of DUO’s
intellectual property by a court of competent jurisdiction.
15. Termination.
(a) Customer. The Agreement may be terminated by the
Customer 30 days prior to the expiration of the Initial
Term, any Renewal Term, or Extended Term without liability
(except for amounts due for Services through the effective
date of termination) as follows:
(i) DUO fails in a material way to provide the Managed
Hosting Service in accordance with the terms of the
Agreement and does not cure the failure within ten (10) days
of Customer’s written notice describing the failure in
reasonable detail,
(ii) DUO materially violates any other provision of the
Agreement and fails to cure the violation within thirty (30)
days of Customer’s written notice describing the violation
in reasonable detail, or
(iii) as provided in Section 6 (AUP) upon thirty (30) days
advance written notice. , in which case there is no refund
prorated or otherwise of the Annual Renewal Fee already
remitted.
(iV) This Agreement will be automatically renewed at the end
of the initial term for the same term specified by you
unless you provide thirty (30) days written notice to DUO
Hosting of termination of this Agreement.
(b) DUO. The Agreement may be terminated by DUO prior
to the expiration of the Initial Term, any Renewal Term, or
Extended Term, without liability as follows: (i) if Customer is overdue on the
payment of any amount due under the Hosting Agreement; (ii) Customer
materially violates any other provision of the Agreement,
including the AUP, and fails to cure the violation within
thirty (30) days of a written notice from DUO describing the
violation in reasonable detail; (iii) upon one (1) Business
Days notice if Customer’s Service is used in violation of a
material term of the AUP more than once; or (iv) upon
reasonable notice if DUO is threatened with a legal claim
for copyright or patent infringement related to the
provision of the Service and is
unable to modify the Service in a way that avoids an ongoing
risk of liability.
(c) Website Ownership at Termination.
DUO hereby agrees to assign the Copyright to any website it
has created and developed for Customer to the Customer under
the terms of a separate Assignment of Copyright and
Agreement, sometimes referred to as a “Waiver”, which may be
executed at any time during or after the term of this
Agreement. Customer specifically understands and
acknowledges that without such assignment, the Copyright Act
1968 will otherwise bestow ownership of Copyright to DUO.
16. Confidentiality.
(a) Confidential Information. Confidential
Information is: (i) with respect to DUO, DUO’s unpublished
prices for services, audit and security reports, server
configuration designs and other proprietary technology, (ii)
with respect to Customer, content transmitted to or from, or
stored by Customer on, DUO’s servers, and (iii) with respect
to both parties, other information that is conspicuously
marked as “confidential” or if disclosed in non-tangible
form, is verbally designated as “confidential” at the time
of disclosure and confirmed as confidential in a written
notice given within one (1) day of disclosure; but excluding
any information which is independently developed by a
non-disclosing party as shown by such party’s written
business records, is or becomes generally available to the
non-disclosing party or the public other than through
violation of the Agreement, or is required to be disclosed
by law or regulation. Each party agrees not to disclose the
other’s confidential information to any third party except
to its service providers, agents and representatives who
need to know the information to represent or advise it
with respect to the subject matter of the Agreement; and
provided that such service providers, agents and
representatives are bound by confidentiality restrictions at
least as stringent as those stated in the Agreement.
(b) DUO’s Use of Customer’s Name. The Customer agrees
that DUO may publicly disclose that DUO is providing
services to the Customer and may include the Customer’s name
in promotional materials, including press releases and on
DUO’s Web site. Neither party may publicly use the other
party’s logo or other trade or service mark without that
party’s permission.
(c) Requests for Customer Information.
Notwithstanding anything to the contrary above, the Customer
agrees that DUO may, without notice to the Customer,
(i) report to the appropriate authorities any conduct by
Customer or any of Customer’s customers or end users that
DUO believes violates applicable law, and
(ii) provide any information, including Confidential
Information, it has about Customer or any of its customers
or end users in response to a formal or informal request
from a law enforcement or government agency. DUO may provide
any information, including Confidential Information, it has
about Customer or its customers or end users in response to
a formal request in a civil action that on its face meets
the requirements for such a request
17. Software. The
Customer agrees not to remove, modify or obscure any
copyright, trademark or other proprietary rights notices
that appears on any software provided by DUO. Customer may
not reverse engineer, decompile, or disassemble any DUO
provided software, except and only to the extent that such
activity is expressly permitted by applicable law
notwithstanding this limitation, or is permitted by the
terms of any “open source” license that governs the use of
the software.
18. Third Party Products.
As a convenience to the Customer, DUO may from time to time
arrange for the Customer’s purchase or license of third
party software, services, and other products not included as
part of the Service, and/or may provide support to Customer
in relation to those products. DUO MAKES NO REPRESENTATIONS
OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS
AND RELATED SUPPORT SERVICES AND THEY ARE PROVIDED “AS IS.”
Customer’s use of third party software, services, and other
products is governed by the terms of any license or other
agreement between the Customer and the third party.
19. Notices. Notices to
DUO under the Agreement shall be given in writing via email:
hosting@downunderonline.net.au.
Notices to the Customer shall be given via electronic mail to
the individual designated as the Contact on the Service
Order Form or by means reasonable under the circumstances,
including an e-mail to a known contact. Notices are deemed
received on the day delivered, or if that day is not a
Business Day, on the first Business Day following the day
delivered.
20. Miscellaneous.
(a) Solicitation of DUO Employees. The Customer
agrees that it shall not solicit any DUO employee with whom
the Customer has had direct contact in connection with this
Agreement for employment with the Customer or any other
person during the term of this Agreement and for twelve (12)
months following termination of this Agreement.
Notwithstanding the foregoing, Customer shall not be
precluded from (i) hiring an employee of DUO who
independently approaches the Customer, or (ii) conducting
general recruiting activities, such as participation in job
fairs or publishing advertisements in publications or on Web
sites for general circulation.
DUO and the Customer acknowledge that this restriction on
the Customer’s ability to solicit staff is reasonable in the
circumstances in order to protect the viability of DUO’s
business.
In the event of a violation of this provision, in addition
to any other right DUO may have at law or in equity, the
Customer shall make a one-time payment to DUO in the amount
of fifty percent (50%) of the employee’s base salary for one
year.
(b) Ownership. Each party acknowledges and agrees
that the other party retains exclusive ownership and rights
in its trade secrets, inventions, copyrights, and other
intellectual property. DUO shall own any
intellectual property that it may develop in the course of
performing the Services. Such ownership includes the
copyright interest in the design, template, layout,
composition, presentation, and appearance of any website
created and developed for Customer which are DUO’s original
works (“Copyright”). The Customer does not acquire any
ownership interest or rights to possess DUO’s server(s) or
other hardware, and has no right of physical access to the
hardware. Upon termination of the Agreement, the Customer
agrees to promptly release any Internet protocol numbers,
addresses or address blocks assigned to the Customer in
connection with the Service (but not any URL or top level
domain or domain name) and agrees that DUO may take steps to
change or remove any such IP addresses.
(c) Governing Law, Jurisdiction, Venue. The Agreement
shall be governed by the laws of the State of Queensland,
and the laws of Australia, as applicable, exclusive of its
choice of law principles. The Agreement shall not be
governed by the United Nations Convention on the
International Sale of Goods. The parties agree that any
litigation arising out of the Agreement should be commenced
in courts situated in the Cairns District. In lieu of
submitting any claims arising out of this Agreement to a
court of law, the parties may agree to submit such claims to
a mutually acceptable arbitrator for binding arbitration
from which only the enforcement of the arbitrator's decision
may be submitted to a court of law.
(d) Non-Waiver. The Agreement shall be governed by
the laws of the State of Queensland, and the laws of
Australia, as applicable, exclusive of its choice of law
principles. The Agreement shall not be governed by the
United Nations Convention on the International Sale of
Goods. The parties agree that any litigation arising out of
the Agreement should be commenced in courts situated in the
Cairns District. In lieu of submitting any claims arising
out of this Agreement to a court of law, the parties may
agree to submit such claims to a mutually acceptable
arbitrator for binding arbitration from which only the
enforcement of the arbitrator's decision may be submitted to
a court of law.
(e) Validity. If any provision of this Agreement
shall be deemed invalid or unenforceable by a court of
competent jurisdiction, such invalidity or unenforceability
shall not invalidate or render unenforceable the remaining
provisions of this Agreement.
(f) Privacy and Copyright Acts. The Parties shall
abide by the Privacy Act of 1968 and the Copyright Act of
1968.
(g) Headings and Captions. The headings and captions
in the Agreement are not part of the Agreement, but are for
the convenience of the parties.
(h) Counterparts. Any documents signed in connection
with the Agreement may be signed in multiple counterparts,
which taken together will constitute one original.
(i) Survival. The following provisions will survive
expiration or termination of the Agreement: fees, indemnity
obligations, confidentiality obligations, provisions
limiting liability and disclaiming warranties, provisions
regarding ownership of intellectual property, these
miscellaneous provisions, and other provisions that by their
nature are
intended to survive termination of the Agreement.
(j) Force Majeure. Neither party shall be in default
of any obligation under the Agreement if the failure to
perform the obligation is due to any event beyond that
party’s control, including, without limitation, significant
failure of a portion of the power grid, significant failure
of the Internet, natural disaster, war, riot, insurrection,
epidemic, strikes or other organized labor action, terrorist
activity, or other events of a magnitude or type for which
precautions are not generally taken in the industry.
(k) No Third Party Beneficiaries. There are no third
party beneficiaries to the Agreement. Neither insurers nor
the customers of resellers are third party beneficiaries to
the Agreement.
(l) Severability. In the event any term of this
Agreement is held unenforceable by a court having
jurisdiction, the remaining portion of the Agreement will
remain in full force and effect, provided that the Agreement
without the unenforceable provision(s) is consistent with
the material economic incentives of the parties leading to
the Agreement.
(m) Relationship Between the Parties. The parties are
independent contractors and not partners or a joint venture.
Neither party is the agent of the other and neither party
may represent to any person that it has the power to bind
the other on any agreement. The Agreement is non-exclusive.
DUO may provide service to any person, including a
competitor of the Customer.
(n) Assignment. The Customer may not transfer the
Agreement without DUO’s prior written consent. DUO’s
approval for assignment is contingent on the assignee
meeting DUO’s credit approval criteria. DUO may assign the
Agreement in whole or in part.
(o) Agreement. The Service Level Agreement, the AUP,
and any DUO Addendum to this Master Services Agreement
accepted by Customer are hereby incorporated in this Master
Services Agreement by reference and together collectively
constitute the Agreement. The Agreement is the complete and
exclusive agreement between the parties regarding its
subject matter.
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