SOFTWARE SERVICES AND LICENCE AGREEMENT– KINOBI PRO
Mondada Pty Ltd ABN 47 139 833 597(Mondada) provides Services (as defined herein) and licensesthe KinobiPro Software (both as defined herein) subject to the terms and conditions set out in this Software Services and Licence Agreement (Agreement).
The following capitalised terms have the following meanings when used in this Agreement.
- Agreement means this software services and licence agreement.
- Cloud Services means the (i) patch management and (ii) software packaging (including Software) services provided to Customer by Mondada when Customer orders “Cloud” on the Site, as described in the Documentation.
- Confidential Information has the meaning given to it in clause 7.1.
- Customer means the entity contracting for services with Mondada, to use or receive the Subscription Services and the Kinobi Pro Software.
- Customer Data means data in electronic form input or collected through the Services and the Kinobi Pro Software, including by any end users.
- Documentation means the usage guides and policies for the Cloud Services, the Self-Hosted Servicesand the KinobiPro Software, as updated from time to time, accessible via the Site.
- Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world including rights in respect of or in connection with any confidential information, copyright (including future copyright and rights in the nature of or analogous to copyright), Moral Rights, inventions (including patents), know-how, trade secrets, trademarks, service marks, designs and circuit layouts whether or not now existing and whether or not registered or registrable including any right to apply for the registration of such rights and all renewals and extensions.
- KinobiPro Software means Products, Packages, Metapackages, and tools developed by Mondada to extend the functionality of the Installer and assist with creating Disk Images, and:
(a) Package means a software package containing a Product to be installed ona computer or Disk Image using the Installer;
(b) Product means a third party’s software product, product component or product update;
(c) Meta package means a Package containing other Packages;
(d) DiskImage means a single file containing the complete contents and structure representing a data storage medium or device, such as a hard drive; and
(e) Installer means the application included in Apple Inc’s macOS that extracts and installs files out of Packages.
- Kinobi Pro Software Licence means a non-exclusive, non-transferable licence to use, and permit the Users of the KinobiPro Software to use, the Kinobi Pro Software and the applicable Documentation.
- Moral Rights means moral rights within the meaning of Part IX of the Copyright Act 1968 (Cth) and any analogous rights arising under statute that exist, or may come to exist anywhere in the world.
- Services means, as applicable,the Self-Hosted Services or the Cloud Servicesthat are ordered by Customer, and made available by Mondada, as described in the Documentation.
- Self-Hosted Services means the(i) patch management and (ii) software packaging services(including KinobiPro Software) provided to Customerby Mondada when Customer orders “Self-Hosted” on the Site, as described in the Documentation.
- Service Start Date means the date on which the relevant Subscription Service are to be first made available to the Customer as specified in the Invoice.
- Site means the website or any other Mondada website that replaces it.
- Subscription Fees is defined in section 3 of this Agreement.
- Subscription means Customer’s right to use the Kinobi Pro Software toinstallanumberofProducts, and or any Add On Product, uptothemaximumcoveredbythesubscriptionpurchased by Customer.
- Subscription Services means the services described as the “Base Subscription” or “Add On Product” in the Mondada pricing schedule at the start of the relevantTerm.
- Subscription Term is defined in section 11.2 of this Agreement.
- Third Party Services means third party (including Jamf Software, LLC and its affiliates, and Apple Inc.)products, applications, services, software, networks, systems, directories, websites, databases and information which a Service links to, or which Customer may connect to or enable in conjunction with a Service.
- Term is defined in section 11.1of this Agreement.
- User means any individual end user ofthe Services or the Kinobi Pro Software on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
- Year means each twelve (12) month period for the Subscription Term commencing on the Service Start Date and each anniversary of the Service Start Date and the period (if any) starting on the day following expiry of the last such period of twelve (12) months and ending on the Termination Date.
- SERVICES AND LICENCES
- Provision of Subscription Services.Upon Customers’ payment of the Fees for Subscription Services, on the terms and conditions of this Agreement, and for the Subscription Term, Mondada will (a) make the Services available to Customer; (b) provide customer support for the Services as detailed in the applicable Documentation; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which Mondada will use commercially reasonable efforts to notify Customer in advance through the Site); and (ii) where section 12.3 (Force Majeure) applies.
- Services Revisions. Mondada may revise Services features and functions or the Documentation at any time, including without limitation by removing such features and functions or reducing service levels.
- Kinobi Pro Software Licence. By providing the Services to Customer, Mondada grants to Customer, and Customer acceptson the terms and conditions of this Agreement, the Kinobi Pro Software Licence.Customer must pay the Subscription Fees for the Kinobi ProSoftware during the Subscription Term.Grant of theKinobiPro Software Licence by Mondada does not distribute third part software, and does not give Customer any rights in or over any third partyproducts or source code. Customer must have must have purchased sufficient licence rights to use every third party product, and must comply with the terms and conditions applicable to every third party software product. The installer is a Third Party Service. Mondada will use commercially reasonable efforts to maintain the Mondada Software’s compatibility with the Installer.
- KinobiPro Software Licence for Self-Hosted Services. If Customer uses the Self-Hosted Services:(a) Mondadapermits Customer to copy, download, install and use the KinobiPro Software in accordance with this Agreement;(b) any copy of the KinobiPro Software made by Customer must contain the same copyright and other proprietary notices that appear on or in the Kinobi Pro Software; and(c) Mondada reserves the right to delete from Customer’s systems, or otherwise disable, the KinobiPro Software cache if Customer breaches this Agreement.
- Kinobi Pro Software – Third Party Services;sites. KinobiPro Software may rely upon or facilitate access to Third Party Services or to websites maintained by it or its affiliates. Access to and use of Third Party Services or websites is governed by such Third Party Services’ or websites’ terms, conditions, disclaimers and notices. Mondada may at any time, for any reason, modify or discontinue the access to Third Party Service or the availability of any such websites.
- INVOICING, FEES, PAYMENT& TAXES
- Subscriptions. Software, Products and Services are billed on a Yearly basis for a Subscription Term (“Subscriptions”). This means that Customer will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on the Services package Customer selects when purchasing a Subscription Service. The Subscription Services and Subscription Term will automatically renew at the end of each billing cycle unless Customer cancels auto-renewal by contacting Mondada with 30 days notice. Customer may cancel auto-renewal on the Subscription at any time, in which case the Subscription will continue until the end of that billing cycle before terminating.Customer may cancel auto-renewal on the Subscription immediately after the Subscription starts if Customer does not want it to renew.
- Fees. Customer will pay all Fees specified in anInvoice. Unless otherwise stated in these terms or anInvoice, Mondada may (i) invoice all Subscription Fees in advance in full payment for the Yearly Subscription Term;(ii) fees are based on Services and Subscriptions aspurchased as a billing cycle, and not based on their actual usage; (iii) payment obligations are non – cancelable and, subject to clause 3.7 any fees paid are non-refundable during the Subscription Term; and (iv) additional products or services subscribed to during the Subscription Term will have Yearly subscription fees calculated on a pro rata basisand adjusted to met the end date of the Subscription Term; and (v) quantities purchased cannot be decreased during the relevant Subscription Term. All Fees are invoiced and payable in United States Dollars (USD). In accordance with the Mondada payment terms, GST and or additional Tax may apply as set out in clause 3.6.
- Invoicing.All Fees for Mondada Products, Services and Softwarewill be invoiced in full, in advance for the Subscription Term in accordance with clause 3.1 and 3.2, and otherwise in accordance with the relevant invoice (“Invoice”). Unless otherwise stated in the Invoice, fees are due net on the date stated in the Invoice.
- Price Changes. Mondada may change the fees charged to Customer for the Services at any time, provided that, for Products, Software and Services billed on a Subscription basis, the change will be effective only at the end of the then-current billing cycle of the Subscription Term. Mondada will provide Customer with notice of any change in fees.
- Suspension. Fees which remain unpaid at the duedate of the Invoice,they are considered overdue. Failure to pay fees when due may result in the applicable Subscription Service and Kinobi Pro Software being limited, suspended, cancelled or terminated (subject to applicable legal requirements), which may result in a loss of that Service, Product and or Software.
- Taxes. Subscription Services prices listed do not include any taxes, levies, duties or similar governmental assessments of any nature such as value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”) unless otherwise indicated on a Invoice. Customer is responsible for paying Taxes associated with purchases and keeping billing information up to date.
(a) United States Sales Tax. If Mondada have a legal obligation to pay or collect sales tax for which Customer is responsible, Mondada will calculate the sales tax based upon the billing information it have about Customer and charge that amount (which, if billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless Customer provides us with a valid tax exemption certificate acceptable to the appropriate taxing authority.
If Customer provides Mondada with a tax exemption certificate, Customer represents and warrants that it accurately reflects Customers tax status and that Customer will keep such document current and accurate.
If Mondada subsequently determine in our sole discretion that Customers tax exemption document is valid, Mondada will refund the sales tax collected.
(b) Non-United States Sales Tax. If applicable, Mondada will charge Customer applicable VAT, GST or any other sales, consumption or use taxes that arise in connection with Customers purchases of Mondada products unless Customer provides us with a tax identification number that entitles the Customer to an exemption, a valid tax exemption certificate or other documentary proof issued by an appropriate taxing authority that tax should not be charged. If Customer is located in a jurisdiction with multiple sales, consumption or use taxes, Mondada may charge Customer the highest prevailing rate if billing information is incomplete or inaccurate.
If Customer is required by law to withhold any Taxes from payments to Mondada, Customer must provide Mondada with an official tax receipt or other appropriate documentation to support such payments or withholding.
- Refunds. Fees paid by Customer are non-refundable, except as provided in these Terms or when required by law. If Customer terminates or cancels a Subscription Service or Product during a billing cycle or Subscription Term, Customer will not receive a refund, unless terminating these Terms for any of the following reasons: (a) Mondada has materially breached these Terms and failed to cure that breach within 30 days after Customer have so notified Mondada in writing; or (b) a refund is required by law.Mondada will not grant a refund where Customer have used our Software, Products or Services, and/or downloaded our Software, Products or Services unless the termination is due to Mondada’s material, uncured breach or a refund is required by law.
- CUSTOMER DATA & PRIVACY
- Use of Customer Data. Unless it receives Customer’s prior written consent, Mondada: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the Services; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Mondada’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Mondadamay disclose Customer Data as required by applicable law or by proper legal or governmental authority. Mondadashall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
- Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Services, Customer assumes such risks. Mondadaoffers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
- Data Accuracy. Mondada will have no responsibility or liability for the accuracy of data uploaded to the Services by Customer, including without limitation Customer Data and any other data uploaded by Users.
- Data Deletion. Mondada may permanently erase Customer Data if Customer’s account is delinquent,suspended, or terminated for 30 days or more.
- CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS
- Restrictions. Customer shall not:(a) use the Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Services;(b) provide Services passwords or other log-in information to any third party;(c) share Services features or content with any third party;(d) access the Services in orderto build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas,features, functions or graphics of the Services;(e) engage in web scraping or data scraping on or related to the Services, including without limitation collection of information through any software that simulates human activity or any bot or web crawler; (f) copy, adapt, modify, translate, sub-licence or redistribute the KinobiPro Software or circumvent any technology or technological protective measures in the Kinobi Pro Software or otherwise conceal or remove any copyright or other proprietary notice contained in the Kinobi Pro Software; (g) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the KinobiPro Software, except (i) where specified in a Package’s terms (e.g. specific configuration); or (ii) modifications performed in accordance with the usage guidelines contained within in the KinobiPro Software’s Read Me file (e.g. serial number files, file removal lists, user account creation tools); (h) attempt to re-use components of Packages to create new packages; or (i) rent, lease, sub-licence, sell, assign, transfer or otherwise deal with its rights in the KinobiPro Software. If it suspects any breach of the requirements of this section 5.1, including without limitation by Users, Mondadamay suspend Customer’s access to the Services without notice, in addition to such other remedies as Mondadamay have.
- Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting its passwords and other log-in information. Customer shall notify Mondada immediately ofany known or suspected unauthorized use of the Services or breach of its securityand shall use best efforts to stop said breach.
- Compliance with Laws. In respect of any use of the Services,the partiesshallcomply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable that relate to the protection of Customer Data.
- Responsibility for Users. Customer and Customer representatives or end usesis responsible and liable for: (a) Users’ use of the Services andKinobiPro Software including without limitation unauthorized User conduct and any User conduct that would breach the Customer’s obligations under this Agreement; and (b) any use of the Services and KinobiPro Software through Customer’s account, whether authorized or unauthorized.
- INTELLECTUAL PROPERTY & FEEDBACK
- Mondada Intellectual Property Rights. Mondada retains all right, title, and interest in and to the Services and the Kinobi Pro Software, including without limitation all software used to provide the Servicesand the KinobiPro Software and all graphics, user interfaces, logos, and trademarks reproduced through the Services and the KinobiPro Software. This Agreement does not grant Customer any intellectual property license or rights in or to the Services, the KinobiPro Software or any of their respective components. Customer recognizesthat the Servicesand the KinobiPro Software and their respective components are protected by copyright and other laws.
- Feedback. Mondada has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Mondada, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Mondada’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of section7 below, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Mondada’s products or services.)
- No Intellectual Property RightsGranted. Subject to clause 6.1 and 6.2, or as otherwise expressly agreed by the parties from time to time, no party will receive any rights in respect of the Intellectual Property Rights of another Party in any brand, name, logo, documentationor other materials, for the purpose of promoting the other parties brand, marketing, name, association or the use of services or otherwise.
- CONFIDENTIAL INFORMATION
- Confidential Information refers to the following items Mondada discloses to Customer: (a) any document Mondada marks “Confidential”; (b) the Documentation, whether or not marked or designated confidential; and (c) any other nonpublic, sensitive information, including information Mondada discloses orally, that Customer should reasonably consider a trade secret or otherwise confidential; and (d) Customer data. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Mondada’s valuable trade secrets.
- Nondisclosure. Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Mondada of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Mondada prompt notice of any such legal or governmental demand and reasonably cooperate with Mondada in any effort to seek a protective order or otherwise to contest such required disclosure, at Mondada’s expense.
- Termination & Return. With respect to each item of Confidential Information, the obligations of section 7.2 above (Nondisclosure) will terminate(5) five years after the date of disclosure; provided that such obligations related to Confidential Information constituting ofMondada’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Mondadaor certify, in writing, the destruction thereof.
- Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Mondadawill retain all right, title, and interest in and to all Confidential Information.
- REPRESENTATIONS & WARRANTIES
- From Mondada. Mondadarepresents and warrants that it is the owner of the Services and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. In the event of a breach of the warranty in this section 8.1, Mondada, at its own expense, shall promptly take the following actions: (a) secure for Customer the right to continue using the Services; (b) replace or modify the Services to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination.In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Mondada’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this section 8.1and for potential or actual intellectual property infringement by the Services.
- From Customer.Customer represents and warrants that: (a) it has validly entered into this Agreement and has the legal power to do so; (b) it has accurately identified itself andit has not provided any inaccurate information about itself to or through the Services; and (c) it is a corporation or entity authorized to do business pursuanttoapplicablelaw.
- Warranty Disclaimers. Except to the extent set forth in section 8.1 above, CUSTOMER ACCEPTS THE SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) MONDADAHAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (b) MONDADADOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c)MONDADADOES NOT REPRESENT OR WARRANTTHAT THE SERVICESARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
- By Mondada. Mondada will defend Customer (and Customer Affiliates) against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Mondada in writing of, a Claim Against Customer, provided Customer (a) promptly gives Mondada written notice of the Claim Against Customer; (b) gives Mondada sole control of the defense and settlement of the Claim Against Customer (except that Mondada may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Mondada all reasonable assistance, at Mondada’s expense. If Mondada receives information about an infringement or misappropriation claim related to the Services, Mondada may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Mondada’s warranties under “Mondada Warranties” above, (ii) obtain a license for Customer’s continued use of the Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for the Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent that (1) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Mondada, or if the Services or use thereof would not infringe without such combination; or (2) a Claim Against Customer arises from Mondada’s breach of this Agreement or the Documentation.
- By Customer. Customer shall defend, indemnify, and hold harmless Mondada and the MondadaAffiliates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of or related to Customer’s misuse of, or failure to use the Services or Third Party Services. Mondada will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “MondadaAffiliates” are Mondada’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
- LIMITATION OF LIABILITY
- Cap. MONDADA’SCUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.1 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF MONDADAWAS TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. MONDADAHAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES.
- Exclusion of Consequential Damages. IN NO EVENT WILL MONDADAOR ITS AFFILIATES BE LIABLE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION9.1 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF MONDADAIS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 9.1, MONDADA’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. FOR THE AVOIDANCE OF DOUBT, MONDADA’S LIABILITY LIMITS AND OTHER RIGHTS SET FORTH IN THIS SECTION 9.1 APPLY LIKEWISE TO MONDADA’S AFFILIATES, SUPPLIERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AND OTHER REPRESENTATIVES.
- TERM & TERMINATION
- Term of Agreement. This Agreement commences on the dateCustomer first accepts it and continues until the Subscription Term ends(Term).
- Subscription Term. The term of each subscriptionservice and or any additional product shall be as specified in the applicable Invoice. Subscriptions for any Services will automatically be fixed for one (1)Year, and will automatically renew for an additional equal period to the expiring subscription term,(“Subscription Term”), unless Customergives the other written notice of early termination or cancellation (email acceptable) at least 30 days before the end of the relevant Subscription Term.
- Effects of Termination or Expiry.Upon termination of this Agreement, Customer shall cease all use of the Services and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9(Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
- Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
- Notices.Mondadamay send notices pursuantto this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 48hours after they are sent. Customer may send notices pursuant to this Agreement to the contact email shown on the Site, and such notices will be deemed received 48 hours after they are sent.
- Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by internet service provider failure or delay, Third Party Services, acts undertaken by third parties (including denial of service attack), acts of war, terrorism, hurricanes, earthquakes, pandemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
- Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Mondada’sprior written express consent. Mondada may assign any of its rights or transfer or novate any of its obligations hereunder to any third party. Except to the extent forbidden in this section 12.4, this Agreement will be binding upon and inure for the benefit of the parties’ respective successors and assigns.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
- No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
- Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the laws of the State of Victoria, Australia. The parties consent to the exclusive jurisdiction of the courts of the State of Victoria, Australia for the purpose of resolving any dispute relating to this Agreement.
- Conflicts. In the event of any conflict between this Agreement and any Mondadapolicy posted online, the terms of this Agreement will govern.
- Technology Export. Customer shall not: (a) permit any third party to access or use the Services in violation of any U.S. law or regulation; or (b) export any software provided by Mondadaor otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Services in, or export such software to, a country subject to a United States embargo.
- Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
- Amendment.Mondadamay amend this Agreement from time to time by posting an amended version at the Site. Customer’s continued use of the Service following any such an amendment will confirm Customer’s consent thereto.
Version current 09/2020.