Terms and Conditions
1.The Services shall be provided by Motile to the Customer from the Commencement Date for the Term, and thereafter on a month-by-month basis until terminated with at least thirty clear days notice by either party.
2.Motile shall not be responsible for any degradation of performance or delay or deficiency in the Services caused by factors beyond its reasonable control.
3.The Customer shall ensure that the configuration of the computer systems that are the subject of the Services shall at all times be kept and maintained in working order and that they not be altered without prior notice to Motile. Motile shall not be responsible for any degradation of performance, delay or deficiency in the Services that occurs where an alteration has been made without Motile’s consent, which shall not be unreasonably withheld.
4.The Customer shall to the fullest extent permitted by law indemnify Motile against all losses, costs and liability incurred by Motile in the course of providing the Services herein or in execution or pursuit of its duties, obligations, rights and privileges under this Agreement.
5.The Customer shall indemnify and hold harmless Motile, its officers, employees, contractors, suppliers and agents from and against any loss including reasonable legal costs or liability incurred or suffered by those indemnified where such loss or liability was caused by a breach by the Customer of its obligations under this Agreement or any wilful, unlawful or negligent act or omission of the Customer its agents contractors or employees.
6.The Customer shall pay the Charges at the rate and in the manner specified on the face hereof. The Customer shall pay interest on amounts due and not paid within the terms prescribed. The Charges unless otherwise specified on the face hereof are exclusive of GST and any other taxes, duties or charges imposed or levied in Australia or overseas in connection with the provision of the Services.
7.Motile shall not without the prior written consent of the Customer disclose any of the Customer’s confidential information unless legally compelled to do so. Motile shall take every reasonable step to ensure that its officers, employees, contractors, suppliers and agents do likewise. This clause shall survive the termination of this Agreement.
8.The Customer shall be responsible for obtaining all necessary authorisation and consents from third party licensors to the extent necessary to provide the Services, which consent and authority shall be produced upon request to Motile.
9.To the maximum extent permitted by law, any conditions or warranties that would otherwise be implied in this Agreement are hereby excluded. At Motile’s option, Motile’s liability for breach of warranty shall be limited where relating to goods to the replacement of the goods or relating to services to the resupply of the services.
10.Motile shall not be liable for any consequential loss or damage suffered or incurred directly or indirectly in respect of goods or services supplied pursuant to this Agreement or through any failure or omission on the part of Motile to comply with its obligations under this Agreement.
11.The Customer warrants that it has not relied on any representations made by Motile that are not stated expressly in this Agreement.
12.Motile may terminate this Agreement immediately by notice in writing if the Customer is in breach of any of the terms of this Agreement and such breach is not remedied within ten working days of notification. Motile may terminate this Agreement immediately by notice in writing if the Customer becomes threatens or resolves to become insolvent or to be placed under administration, the Customer being a natural person dies or the Customer ceases or threatens to cease the conduct of its business.
13.Upon notice by Motile under Clause 12, Motile may repossess any of its property and be regarded as discharged from further obligation to provide goods or services under this Agreement.
14.Motile may subcontract the performance of any part or the whole of this Agreement and may assign its interest in this Agreement to a third party.
15.Any dispute arising in connection with this Agreement which cannot be settled by negotiation shall be submitted to arbitration in accordance with the rules of the Commercial Arbitration Act 1984 as amended provided that each party may be legally represented.
16.This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations, agreements and statements and can only be varied if reduced in writing and signed by both parties.
17.The law of the State of Victoria shall govern this Agreement and the parties hereto consent to submit themselves to the jurisdiction of the Courts of that State.
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