Services Terms of Service
Render Networks Pty Ltd
v2.0 effective date July 26, 2019
- AET means Australian Eastern Time.
- Agreement means these Render Networks Terms of Service (Terms) located at https://rendernetworks.com/servicestos, any related WOA.
- Business Day means a day that is not a Saturday, Sunday or holiday observed by Render Networks in Melbourne, Australia or a Render Networks company-wide shutdown as may be advised in advance from time to time.
- Client means a Paying Client organisation, or a Trial Client organisation or a Project Participant organisation depending on the context.
- Confidential Information means any non-public information disclosed by either Party to the other Party in writing which is designated as “confidential” or “proprietary” (or with a similar legend), or that is disclosed orally and confirmed in writing as confidential within a reasonable time. Even if not so marked, the Parties agree that User Data and the terms of the Agreement are Confidential Information.
- End User Terms means any terms and conditions which govern the Users’ use of the Render Platform, as specified by Render from time to time which may be made available on the Render’s website or the Render Platform itself.
- Effective Date means the date the Client accepts these Terms by authorising the WOA.
- Fees means the charge(s) payable by the Client to Render Networks pursuant to the Agreement, as specified in the applicable WOA.
- Final premise count means the total number of households passed in the network rolled out using the Render Platform.
- Force Majeure Event means any forces of nature, disruptions to the public internet infrastructure, public bandwidth shortages, industrial action, acts of terrorism, protests, riots, civil commotion, fire, explosion, flood, epidemics, lock-outs, strikes and action or inaction by a government agency (including any quasi-government agency) which is beyond a Party’s reasonable control and causes a Party to be prevented or delayed in performing its obligations. A Party shall endeavor to give other Parties reasonable notice of any such delay or failure.
- Households Passed means any household that is intended to be serviceable through the network constructed using the Render Platform.
- Initial Term means an initial period specified in an agreed WOA, during which Render will provide the Services, and if no initial period is specified, 30 days.
- Intellectual Property Rights means patents, copyrights, trade secrets, and other proprietary rights recognized in any jurisdiction worldwide, and all applications and registrations therefor.
- Materials means all manuals, data, documents, and information which are prepared, written, made accessible, provided or developed by Render Networks or its licensors in connection with the Services or the Render Platform, including help and support documentation.
- Party means either Render Networks, a User or the Client as the context dictates.
- Parties means Render Networks, the Client and/or each User (as the context requires).
- Paying Client means any User of the Services who has entered into an Agreement to pay Fees for the Services by executing a WOA.
- Personal Information has the meaning given to in Privacy Legislation and includes information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
- Price List means the standard price list for the Services as it may be changed from time to time at Render Networks’ discretion and which is available from Render Networks upon request.
- Privacy Legislation means the Australian Privacy Act 1988 (Cth), which regulates the handling of Personal Information.
- Project means the project(s) that the Client proposes to use the Services and/or the Render Platform in relation to.
- Project Participant means any User of the Services permitted by, and pursuant to, the Agreement, who is granted access to the Render Platform.
- Render Networks or Render means Render Networks Pty Ltd (ABN 97 164 654 193), a company incorporated in Australia, and unless expressly included in the Agreement, excludes any Render Network Affiliates.
- Render Networks Affiliate means a) any entity controlling or controlled by Render Networks; and b) any entity under common control with Render Networks, for so long as such common control continues to exist, where “control” means ownership either directly or indirectly of more than 50% of the voting shares.
- Render Platform means the machine-readable code online platform owned by or licensed to Render Networks, and Upgrades thereto released during the term of the Agreement, and which is accessed and used by the Client and its Users, and regardless of whether it is hosted by Render Networks, the Client or a third party, including all applications incorporated, such as but not limited to ‘Tickets’, ‘Scale’, ‘Hub’ and any deliverable outputs or configuration data from these.
- Services means the services described in Section 2 of these Terms.
- Trial Client means any user of the Services who has entered into an Agreement to trial the Services for a period of time.
- Upgrades means any bug fixes, error corrections, modifications, updates, upgrades and new versions of the Render Platform that are provided by Render Networks to its Clients at no additional charge. Upgrades exclude new products that are charged for separately by Render Networks.
- User means any individual person who accesses the Services or the Render Platform whether as an employee, contractor, subcontractor or agent of a Paying Client, a Trial Client or a Project Participant.
- User Data means data (including Personal Information) which the Client or any User that has been granted access to the Render Platform through the Client, uploads, transmits or creates via the Render Platform.
- User Level means the tier of user category which determines access to certain features and usage capacities. User Level is stated on the WOA.
- Work Order Authority (WOA) means the applicable order form for the provision of Services, relating to the provision of goods and services by Render Networks.
- Services and Schedule. In consideration for any applicable Fees, Render Networks will provide the Services (which may include access to the Render Platform) as defined in the WOA pursuant to the terms and conditions of this Agreement.
- Other services: Render Networks will not be obliged to perform any Services identified by Render Networks as distinctly different from those detailed in a particular WOA. For activities outside of the scope of the WOA (as determined by Render Networks), a new or amended WOA will be drafted and executed in which separate scope, deliverables, Fees, expenses and payment milestones will be agreed.
- Restrictions on use of Materials. Unless expressly authorized under this Agreement or by Render Networks in writing, the Client is not permitted to:
- reverse engineer, adapt, modify, create derivative works of, make additional copies of, separate, or further develop any materials as provided by Render Networks without written confirmation between the parties that these activities can occur;
- use any Materials as provided by Render Networks to compete with Render Networks, assist a competitor of Render Networks or develop competing products or Services. Client is responsible for compliance with this Agreement by its employees, contractors and agents and is liable for all their acts and omissions.
- Term of License or Service. Render Networks will provide each Service from the Effective Date for any period specified in an agreed WOA, unless terminated earlier in accordance with section 13 (Termination) .
- Client and User Responsibilities.
- The Client will grant Render and its subcontractors such access to the premises, equipment and resources (including human resources) of the Client as reasonably requested by Render or its subcontractors for the performance of the Services and Render’s obligations under this agreement;
- The Client must comply with all of its responsibilities as set out or defined in the WOA;
- Other Obligations. The Client understands and acknowledges that Render Networks’ ability to provide the Services is dependent on the Client undertaking any agreed obligations (or such reasonable obligations as may be advised to the Client by Render Networks). The Client acknowledges that failure to perform any such obligations may result in a failure to receive Services, and/or additional costs being payable for the Services.
- ‘In addition, if the Render Platform is provided under the WOA, the Client must:
- provide its own internal facilities (including computers, terminals, software, telecommunications facilities and internet connectivity) necessary for utilising the Render Platform;
- comply with Render’s reasonable directions relating to the use of the Render Platform; and
- maintain the confidentiality of all login credentials allocated to the Client and its Users and not disclose them to any third party.
- Ownership. Client retains all of its right, title and interest in and to Client Data, and ownership of Client Data is not transferred to Render Networks under this Agreement.
- Right to Use. Client grants Render Networks a non-exclusive license, for the term of this Agreement, to use Client Data to accommodate Client’s authorized use of the Services
- Warranty regarding Client Data and Use of the Services. The Client warrants that it has appropriate rights in Client Data and that the Client Data and the Client’s use of the Client Data will not violate applicable laws or this Agreement. Render Networks is not obligated to screen Client Data, although Render Networks reserves the right to screen Client Data and to remove/refuse use of, without warning, Client Data that Render Networks reasonably considers may breach this Agreement. Render Networks will notify the Client if Render Networks removes Client Data and will repost or return Client Data provided that, in Render Networks’ reasonable opinion, doing so would not place Render Networks at risk of loss or damage. To the extent permitted by law and subject to Section 11, Render Networks is not liable for any damage or loss caused by Render Networks’ decision to remove/refusal to use Client Data. The Client is entirely responsible for the content and delivery of Client Data, including without limitation, the accuracy, backup, usefulness, timeliness and completeness of Client Data. Render Networks will not be liable for any loss of service resulting from inaccurate or incomplete Client Data. The Client is responsible for ensuring Client Data is correctly addressed and on-time and does not represent a breach of any obligations to a third party or of law.
- Render Network’s obligations:
- In performing its obligations under the Agreement, Render Networks will:
- provide staff with sufficient skills to deliver the Services as set out in the WOA;
- ensure that the Services are provided:
- properly and carefully;
- in a professional and business-like manner; and
- in accordance with relevant industry standards;
- act ethically and lawfully; and
- when using the Client’s premises or facilities, comply with all reasonable Client procedures and policies in effect relating to occupational health, safety and security, as notified in writing by the Client to Render in advance.
- In performing its obligations under the Agreement, Render Networks will:
- Invoicing. Unless otherwise specified in the WOA, Render Networks will submit invoices monthly in arrears to the Client. Where applicable, Fees will be calculated using the final premise count, less any initial upfront payment. Where applicable, accommodation and travel reimbursements will be included in the monthly invoice.
- Fees. Unless otherwise specified in this Agreement or the duly executed WOA, the Client must pay Fees:
- Within 30 days of invoice date; and
- by the means specified in the WOA.
- If the Client fails to pay any amount payable by it under this Agreement, in addition to any other rights, Render Networks will be entitled to charge the Client interest on the overdue amount, payable by the Client immediately on demand, from the due date up to the date of actual payment at a rate equal to the maximum amount permitted by applicable law of the state in which the associated project exits and, in no case, higher than the maximum amount permitted under federal law, and such interest shall accrue daily, be calculated weekly and be compounded monthly.
- With the exception of any outstanding or overdue Fees, periodic Fees will cease to be payable after the Agreement has expired in accordance with its terms, or this Agreement is terminated whichever is sooner.
- Taxes. All Fees and expenses specified hereunder do not include and are net of any foreign or domestic governmental taxes or charges of any kind that may be applicable to this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services tax, franchise, income, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties, other than taxes which are imposed based on the net income of Render Networks. Any such taxes which are otherwise imposed on payments to Render Networks shall be the sole responsibility of the Client and added to the amounts payable to Render Networks.
- Currency. All amounts are quoted and to be paid in USD unless otherwise specified in the WOA.
- Accommodation & Travel Expenses: Where Render Network employees are required to travel with respect to a WOA, the Client agrees to reimburse Render Networks for all travel related accommodation & transport expenses. Render Networks shall notify the Client prior to any travel where accommodation & travel reimbursements apply. The Client has the right to request substantiation from Render Networks for any reimbursable accommodation or transport expense claim.
4. Acceptable Use Of The Services
- WOA where the Render Platform is included: If the WOA includes provision of the Render Platform to the Client or its Users, the Client acknowledges and accepts that the use of the Render Platform (including by it Users) shall be in accordance with these Terms, any Special Terms set out in the WOA and the End User Terms.
- This Section 4 applies to the Client who receives Services from Render Networks, and its Users. A User’s failure to comply with this Section 4 may lead to suspension or termination of the Services, at Render’s absolute discretion.
- All Users must use the Services in accordance with the Agreement and the End User Terms and in accordance with all applicable laws. The Client is responsible for compliance with the Agreement by its Users and is liable for all their acts and omissions.
- In addition, the Client and Users must not use the Services in any fashion that would, or assist others to:
- (other than its Users) access (directly or indirectly) the Services;
- sub-license, disclose, resell, publish, transmit or otherwise make available to any third party other than its Users any part of Services;
- modify, copy or create derivative works based on the Services or reverse engineer the Services (except to the extent permitted by non-excludable laws);
- upload, download, post, transmit, store or otherwise make available any Data that is unlawful, harassing, threatening, harmful, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful or racially or ethnically offensive;
- collect or store personal data without permission;
- promote in any way illegal or unwelcome or unsociable activities;
- access the Services, or disclose any information about the Services to any country that is subject to United States export control restrictions;
- attempt to gain unauthorised access to, or disrupt, breach or circumvent Render Networks security, integrity or performance of, the Render Platform or any data contained in it;
- use the Services or knowledge of the Services to assist Render Networks’ competitors;
- use the Services for the purpose of creating a competitive product or service or copying its features or user interface;
- use the Services for hire or rental, timesharing, service bureau or in any other way where a third party may derive benefit from the use of the Services; or
- undertake promotions or undertake commercial activity not connected with the business purposes the Services are intended to support.
- Obligation. Both Parties acknowledge that the Confidential Information obtained by either Party pursuant to this Agreement may constitute valuable trade secrets of the disclosing Party. Each Party agrees to use Confidential Information solely in accordance with the provisions of this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party, without the other Party’s prior written consent. Each Party shall use strict measures to protect the secrecy and avoid disclosure or unauthorized use of the other Party’s Confidential Information. Each Party shall exercise the same degree of care to prevent disclosure of the Confidential Information as it takes to preserve and safeguard its own Confidential Information, but in any event, no less than a reasonable degree of care.
- Exceptions. Notwithstanding the foregoing, neither Party will be in breach of this provision in circumstances where the Party is legally compelled to disclose the other Party’s Confidential Information or where the information is already in the public domain through no fault of the receiving Party, or is in the disclosing Party’s possession without a duty of confidentiality at the date of disclosure, or where the disclosing Party discloses the terms of this Agreement to its professional advisors, financiers, prospective financiers or partners or agents, Related Parties on a confidential basis or where Render Networks discloses the fact the Client is a client of Render Networks to potential clients of Render Networks.
6. Personal Information and Client Data
- Use of Personal Information: In the course of receiving the Services under this Agreement, Client may disclose to Render Networks Personal Information in connection with the Client’s employees, directors, officers, customers or suppliers, and/or other users of the Services. Render Networks may also otherwise be provided with access to Personal Information in the course of delivering the Services. Where the Client provides Personal Information to Render Networks, the Client is responsible for confirming that its disclosure and/or provision of Personal Information to Render Networks, and Render Networks’ storage and/or use of such Personal Information in the manner contemplated under this Agreement is permissible under relevant Privacy Legislation. Subject to the previous sentence, Render Networks collects Personal Information directly from the relevant individual(s) and Render Networks is solely responsible for ensuring that all acts (including collection, storage, use and disclosure) are in accordance with its Privacy Statement and otherwise permissible under the relevant Privacy Legislation.
- Protection of Personal Information: Render Networks will use commercially reasonable efforts to protect Personal Information from loss, destruction or unauthorized use or access, utilizing technical, physical and administrative security measures consistent with good industry practice. For the purpose of this Section 6, Personal Information is not data that is in any way created or extracted from Client Data with respect to a Project or Client Data that the Client uploads or transmits (other than Personal Information provided as part of any registration processes or procedures).
7. User Communications
- Render Networks may share Personal Information with third parties to perform business functions and services on its behalf including in connection with the use of the Services (such functions may include hosting servers, providing legal, accounting, marketing, research or other support services); or as required or permitted by law.
- These third parties may be located in various countries across the globe. Where Render Networks does make information or data available to third parties to perform business functions and services on behalf of Render Networks, all such parties will be obligated to maintain the security and confidentiality of the Personal Information and to process the data in accordance with Render Networks’ instructions.
- Render Networks either by itself or through third party service providers, will act only as a data processor and will not re-use or re-disclose Personal Information for unrelated purposes outside the provision of the Services.
- Render Networks will conclude appropriate data protection contracts with all such third parties, to ensure appropriate levels of data protection is accorded to the data at all times.
8. Intellectual Property Rights
- Services. Except for Materials specified under an associated WOA, the Client acknowledges and agrees that Render Networks and its licensors own all right, title and interest in and to the Services, including all Intellectual Property Rights therein and thereto, including any materials or software that may be developed by Render Networks in the performance of the Services. No transfer of any Intellectual Property Rights occurs pursuant to this Agreement. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Material or the Services, or any Intellectual Property Rights therein.
- Feedback. Notwithstanding anything to the contrary in this Agreement, Render Networks has and retains the exclusive right to own, use and disclose, in the course of its business, all feedback provided by Client with respect to the Services and Materials.
9. Suspension For Breach
- Without affecting any other rights and obligations in this Agreement or at law or equity (including a right of termination and a right to claim damages), Render Networks may suspend the delivery of any or all of the Services if the Client commits a breach of this Agreement and does not remedy that breach within seven days (and in the case of a breach of Section 3. Fees, Render Networks may further require all Fees to be payable in advance).
10. Limited Warranty And Disclaimers
- Limited Warranty. Render Networks warrants to the Client that Render Networks will use reasonable professional skill and care in providing all Services. To the maximum extent permitted by law, Render Networks’ sole liability and Client’s sole remedy for any failure to perform the Services will be for Render Networks to re-perform such Services.
- Disclaimers. To the extent permitted by law, Client assumes all responsibilities for selection of the Services to achieve Client’s intended results, for the use of, and results obtained from, the Services, and for taking appropriate measures to prevent loss of data. Except as expressly provided in Section 10 (Limited Warranty) above and subject to the terms of Section 10 (Legislation), to the maximum extent permitted by applicable law, Render Networks:
- (a) disclaims all warranties and consumer guarantees, whether express, implied, statutory or otherwise;
- (b) specifically disclaims any implied or statutory warranties and guarantees of merchantability, non-infringement, quality and fitness for a particular purpose; and
- (c) does not warrant that the materials will be error-free, has no defects, is free from malicious code, that the Services will be undertaken without interruptions or that the Services meet the Client’s requirements or is compatible with all operating systems and browsers. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
- Legislation. Certain legislation, including the Australian Competition and Consumer Act 2010 (Cth), may imply warranties, consumer guarantees or conditions or impose obligations on Render Networks which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. The Agreement must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which Render Networks is lawfully permitted to do so, Render Networks limits it liability in respect of any claim under those provisions to, in the case of services, the supplying of the services again or paying the cost of supplying of the services again.
11. Limitation Of Liability
- To the maximum extent permitted by law Render Networks will not be liable for any special, punitive, exemplary, indirect, consequential loss, or damages, loss of profit, interest, revenue, business, goodwill, savings or anticipated profit or any loss of, or damage to, any Client Data, or loss of or interruption to the client’s business, in each case arising out of or in any way connected to the Services including, without limitation, loss or damage caused by a computer virus or other malware, and in each case regardless of whether Render Networks was advised of the possibility of such damages.
- To the maximum extent permitted by law and regardless of whether a claim arises in contract, tort (including in negligence) or otherwise, under no circumstances will Render Networks’ (including its officers, employees, contractors, affiliates and agents) liability in any month be greater than 100% of the monthly Fee specified in the WOA for that month.
- The Client and Render Networks agree that the disclaimer, exclusions and limitations in this Agreement are fair and reasonable given the amount of Fees paid by the Client and the number of Clients receiving the Services. The Fees charged for the Services are calculated on the basis of the validity of the indemnities, limitations and exclusions in this Agreement. Increased liability on the part of Render Networks would result in higher Fees. The Client acknowledges that the Fees reflect this allocation of risk and that the disclaimer, exclusions and limitations are essential elements of this agreement.
- Render Networks Indemnity.
- Obligation. Render Networks shall defend or at its option settle any third party claim, action or proceeding brought against Client alleging that the Services as delivered to Client and used as authorized in this Agreement, infringes any Intellectual Property Right of a third party and Render Networks shall pay any final judgments awarded or settlements entered into; provided that Client provides Render Networks with:
- prompt written notice of such claim;
- sole control over the defense and settlement of such claim; and
- all necessary information and assistance (at Render Networks’ expense) to defend and/or settle such claim. The Client may participate in the defense of a claim asserted hereunder after Render Networks has assumed the defense or settlement, provided that the Client shall bear any legal fees and expenses or other costs it incurs in so participating. Render Networks shall not be liable for any costs or expenses incurred by the Client by acting without Render Networks’ prior written authorization. Render Networks may not settle or compromise any claim under this Section 12 (Render Networks Indemnity) that requires the Client to admit liability or pay any money without the Client’s prior written consent, which consent shall not be unreasonably withheld or delayed.
- Limit on Indemnity. Notwithstanding the foregoing, but subject always to Section 13 (Termination for Insolvency), Render Networks will have no liability for infringement claims arising from:
- combination of the Materials with other software or products not provided by Render Networks, if the infringement would not have occurred if the Material had not been so combined;
- the modification of the Services or Materials, in whole or in part, by anyone other than Render Networks, if the infringement would not have occurred but for such modification;
- the use of the Services in a way contrary to this Agreement or the intended use of the Services; or
- use by Client of any specified release of the Services or Materials after Render Networks notifies Client that continued use may subject Client to such claim of infringement, provided Render Networks provides Client with a replacement release.
- Replacement Materials . If any portion of the Materials is held, or in Render Networks opinion is likely to be held, to infringe or misappropriate a third party’s Intellectual Property Rights, or use of the Services is otherwise enjoined, then Render Networks may at its sole option and expense, within a commercially reasonable period of time:
- procure for Client the right to continue using the Materials;
- replace the Materials with non-infringing Materials; or
- in the event that neither of the foregoing is reasonably practicable, terminate this Agreement and refund a reasonable portion of the Fees paid by Client with respect to the Materials.
- Entire Liability. To the extent permitted by law, this Section 12 (Indemnities) states the entire liability and obligation of Render Networks, and the sole and exclusive remedy of the Client, with respect to any actual or alleged infringement of any Intellectual Property Right by the Services or the Render Platform, or the Client’s use thereof.
- Client Indemnity. The Client shall defend or, at its option, settle any third party claim, action or proceeding brought against Render Networks, any Render Networks Affiliate or any Render Networks Related Entity alleging that;
- the Client has breached any law or regulation in the use of the Services or the Client Data, or
- the Client has misused any Client Data or infringe any third party Intellectual Property Rights in the use of the Client Data, and Client shall pay any final judgments awarded or settlements entered into; provided that Render Networks provides Client with:
- prompt written notice of such claim;
- sole control over the defense and settlement of such claim; and
- all necessary information and assistance (at Client’s expense) to defend and/or settle such claim. Render Networks may participate in the defense of a claim asserted hereunder after the Client has assumed the defense or settlement, provided that Render Networks shall bear any legal fees and expenses or other costs it incurs in so participating. Client shall not be liable for any costs or expenses incurred by Render Networks by acting without Client’s prior written authorization. Client may not settle or compromise any claim under this Section 12 (Client Indemnity) that requires Render Networks to admit liability or pay any money without Render Networks’ prior written consent, which consent shall not be unreasonably withheld or delayed.
- Termination after expiry of Initial Term. Following the expiry of the Initial Term, either party may terminate this Agreement for convenience by providing the minimum notice of termination as specified by the WOA, and if no notice is specified in the WOA, 30 days. ..
- Termination for Breach. Either Party may terminate this Agreement in the event that
- either Party commits a material breach of this Agreement and where such breach is capable of remedy, fails to remedy the breach within 30 days of receiving written notice from the other Party; or
- the Client’s access has been suspended under Section 9 and has not taken the necessary action to restore access within a further 23 days. A failure to make payment by the due date of an amount greater than 10% of Fees (whether singly or in aggregate) constitutes a material breach.
- Termination for Insolvency. Render Networks may terminate this Agreement immediately by notice in writing if:
- the Client is unable to pay its debts as and when they become due or becomes, threatens or resolves to become or is in jeopardy of becoming insolvent or subject to an order, proceedings or resolution for liquidation or dissolution (unless for the purposes of amalgamation or reconstruction,) or entering into a compromise or arrangement with, or assignment for the benefit of any of its members or creditors, or an administrator is appointed to the Client, a resolution that an administrator be appointed to it is passed or proposed, or any other steps are taken to appoint an administrator to the Client or the Client is wound up or liquidated, voluntarily or otherwise other than for the purpose of amalgamation or reconstruction whilst solvent or any event occurs having a substantially similar effect to any of the preceding events;
- the Client, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
- the Client, being a natural person, dies; or
- there is a change of control of Client.
- Payment in the Event of Termination. In the event that:
- Render Networks terminates this Agreement pursuant to this Section 13; or
- the Client indicates it is unwilling or unable to continue to perform its obligations, (each a “Termination Event”), without prejudice to Render Networks’ rights and remedies hereunder, the Client will be required to pay Render Networks all outstanding Fees un-invoiced as at the date of the Termination Event, unless otherwise agreed in writing. The parties agree that this payment is a genuine pre-estimate of Render Networks’ loss and damage arising as a consequence of the Termination Event.
- Effect of Termination: The termination of this Agreement does not affect the continuation of any previously executed WOA, unless that WOA is also terminated or the terms of that WOA specify otherwise.
- On termination of this Agreement the Client must:
- immediately cease all use of and return to Render any property or documents which Render owns or in which Render has an interest (except to the extent that their continued use is required for any existing WOA);
- immediately pay Render any outstanding Fees due to Render (but Render is under no obligation to refund to the Client any portion or percentage of the Fees which might be unused at the date of termination); and
- promptly return any Confidential Information of Render in its possession, custody or control to Render.
- On termination of this Agreement Render will promptly return any Confidential Information of the Client in its possession, custody or control to the Client.
- Termination of this agreement does not:
- prejudice any right of action or remedy of either party which accrued prior to termination; or
- affect any WOA executed by a Client during the Term unless otherwise agreed by the parties in writing.
- Survival. Sections 3, 4, 6, 8, 10, 11, 12, 14, 15 and 16 shall survive termination.
14. Governing Law and Dispute Resolution
- Governing Law and Jurisdiction. Unless otherwise agreed in a WOA, this Agreement is governed by the laws of the state of Delaware, USA and the Client submits to the non-exclusive jurisdiction of that state and waives any right it might have to claim that those courts are an inconvenient forum.
- Dispute Resolution.
- Negotiation. If any dispute arises between the Parties in respect of this Agreement, or any related document, a Party must: (a) issue a written notice to the other Party notifying them of the existence of a dispute; and (b) use good faith efforts to resolve the dispute through negotiation.
- Escalation. In the event that negotiations pursuant to Section 14 (Dispute Resolution) do not resolve the dispute within 15 Business Days (or such longer period as may be agreed between the Parties), the dispute will be referred to the respective chief executive officers (or their nominees – external counsel excluded) of each Party for good faith negotiations.
- Filing of Actions. Neither Party may file an action to resolve a dispute prior to 20 Business Days (or such other period as may be agreed between the Parties) after an escalation pursuant to Section 14.2.2
- Injunctive Relief. Notwithstanding the foregoing, if either Party breaches, or threatens to breach the provisions of this Agreement concerning confidentiality or Intellectual Property Rights, each Party agrees that the non-breaching Party will have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages, in any court having jurisdiction.
- Force Majeure. With the exception of any payment obligations, neither Party will be liable for any delay or failure to perform its obligations pursuant to this Agreement to the extent such delay is due to a Force Majeure Event. With the exception of payment obligations, to the extent a delay or failure of a Party to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of that Party’s obligations will be suspended and neither Party will be liable to the other Party for a failure to perform its obligations as a result of a Force Majeure Event. If a delay or failure by a Party to perform its obligations due to a Force Majeure Event exceeds 3 calendar months, either Party may immediately terminate the Agreement without cause on providing notice in writing to the other Party.
- Entire Agreement. The following documents will comprise the entire agreement between the parties concerning its subject matter:
(1) a duly executed WOA;
(2) these Terms; and
(3) any amendments or supplementation to the foregoing made in accordance with these Terms.
- In the event of any inconsistency between the terms of the foregoing, the documents will be construed in the order of priority in which they are referred to above, but subject to any amendments or supplements referred to in paragraph (3).
- The Client must execute a WOA in order for the Services to be undertaken. No other document will constitute an agreement between the parties.
- Entire Agreement. The following documents will comprise the entire agreement between the parties concerning its subject matter:
- Unauthorized Amendments to WOA and Client’s Standard Terms and Conditions Have No Effect. Any amendments to a WOA must be expressly accepted in writing by an authorized Render Networks officer. The Client’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, any correspondence between the parties are expressly excluded from and shall not form part of the Agreement.
- Amendments to these Terms. Render Networks may modify these Terms or any special terms that apply to the WOA with 14 days notice. Such changes will be communicated digitally to Clients. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, in certain circumstances, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, Client shall inform Render Networks, immediately by notice their intentions on pursuing the Services. If Client does not comply with these terms, and action is not taken immediately, Render Networks reserves the rights that are applicable, such as, but not limited to, taking action in the future. If a term is not enforceable, this will not affect any other terms.
- No Reliance on Representations. The Client warrants that it has not relied on any representation, undertaking, statement or understanding which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by Render Networks.
- Independent Contractor. Render Networks is not a party to any transactions that Clients enter into with one another using the Services. Under this Agreement, Render Networks and its personnel will never be the employee, agent or partner of a Client, and is not engaged in a joint venture with a Client. Clients agree to waive to the maximum extent possible any and all rights they may have against Render Networks arising out of any transaction or dealings they conduct with another Client or third party through the Services.
- Subcontracting And Assignment.
- Subcontracting. Render Networks may sub-contract the delivery of Services under this Agreement; provided that Render Networks shall remain liable to the Client for the provision of such Services.
- Assignment. Neither Party may assign this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; except that Render Networks may assign all or part of this Agreement to an Render Networks Affiliate on notice to the Client. Any attempted assignment in violation of this provision will be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns
- Waiver. A right may only be waived in writing, signed by the Party giving the waiver, and: no other conduct of a Party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right; a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and the exercise of a right does not prevent any further exercise of that right or of any other right.
- Severability. If any provision or part-provision of this Agreement is held invalid, unenforceable or illegal by any court or tribunal for any reason, the Agreement will remain otherwise in full force apart from such provisions or part provisions which will be deemed deleted or modified to the minimum extent necessary to remove the invalidity, unenforceability or illegality.
- Client Reference. Render Networks may not issue any press release regarding the Client’s use of the Services without the prior consent of the Client (not to be unreasonably withheld, delayed or conditioned). However, Render Networks may use the Client’s name and logo and refer to the fact that the Client is a client of Render Networks in its annual report, list of references or presentations to actual or potential clients without the Client’s consent.
- United States Export Controls. The Services uses software and technology that may be subject to United States export controls. The Client agrees that Client will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Services or any technical information about the Services to any country for which such export or re-export is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the government entity that has jurisdiction over such export or re-export. Render Networks and its licensors make no representation that the Services are appropriate or available for use in other locations. If Client uses the Services from outside of the U.S., Client is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. A failure to comply with this Section will be regarded as a material breach incapable of remedy.
- No Third Party Beneficiaries. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity any rights, remedies or other benefits as a third party beneficiary.
- Language Of Agreement. This Agreement has been written in the English language and, in the event of any conflict between the English-language version and any translation of this Agreement, the English-language version will prevail.
- Method of Communication. A notice, consent or other communication under this Agreement is only effective if it is: (a) in writing, sent by or on behalf of and at the express instruction of the person giving it; (b) addressed in accordance with Section 16 (Addresses) to the person to whom it is to be given; and (c) sent via email.
- Addresses. The Client’s representative and email address will be as specified at registration or otherwise in writing to Render Networks. Render Networks’ representative for notice will be “Render Networks Legal Team” and the email address is firstname.lastname@example.org.
Last update: July, 2019
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