Platform Terms of Service
Render Networks Pty Ltd
v1.6 effective date March 6, 2019
- AET means Australian Eastern Time.
- Agreement means these Render Networks Terms of Service (Terms) located at https://rendernetworks.com/tos/ and any related Service Order.
- 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.
- Effective Date means the date the Client accepts these Terms by self-registering on the Render Networks platform .
- Fees means the charge(s) payable by the Client to Render Networks pursuant to the Agreement, as specified in the applicable Service Order.
- 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.
- Hosted Platform means the Platform as hosted by Render Networks or for Render Networks by an authorized subcontractor of Render Networks.
- Implementation Fee means the Fee for Implementation Services, if applicable.
- 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, including help and support documentation.
- 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.
- Project means the project(s) that the Client proposed use the Services and 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 Platform.
- 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 Service Order.
- Platform means machine readable code 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 regardless of whether the Platform is hosted by Render Networks, the Client or a third party.
- 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 upon request Render Networks.
- Privacy Legislation means the Australian Privacy Act 1988 (Cth), which regulates the handling of Personal Information.
- 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 Platform including all applications incorporated, such as but not limited to ‘Tickets’, ‘Scale’, ‘Hub’ and any deliverable outputs or configuration data from these. Render Platform is used interchangeably with Platform in these Terms.
- Service Order means the applicable order form for the provision of Services, relating to the provision of goods and services by Render Networks.
- 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 Platform that are provided by Render Networks to its Clients at no additional charge. Upgrades excludes new products that are charged for separately by Render Networks.
- User means any individual person who accesses the Services or the Platform whether as an employee 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 Platform through the Client, uploads, transmits or creates via the Platform.
- User Level means the tier of user category which determines access to certain features and usage capacities. User Level is stated on the Service Order.
- Services and Schedule. In consideration for any applicable Fees, Render Networks will provide the following Services to the Client, pursuant to the terms and conditions of the Agreement.
- Platform License. A non-exclusive, non-transferable, restricted license (a Platform License), for the term specified in this Section 2 (Term of License or Service), to access the Platform and use the functionality available on the Platform.
- Hosting Services. Making the Platform available over the public Internet, including reasonable data transmission (as defined in Section 4 (Acceptable Use of the Services)) by the Client to and from the Platform.
- Restrictions. Unless expressly authorized under the 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 develop the Platform, or facilitate or assist any such activity;
- integrate or link the Platform with other software;
- sell or otherwise earn consideration by providing access to the Platform;
- permit third party access to the Platform.
Client is responsible for compliance with the Agreement by its authorized Users including 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 to the Client from the Effective Date for any period specified in an agreed Service Order. The Agreement will automatically rollover on a monthly basis after the expiration of any term specified in the Service Order unless and until a Party gives 30 days’ notice of termination.
Client and User Responsibilities.
- Compliance by Users. The Client must ensure that each User complies with these Terms and is liable for the actions of each User regardless of whether that User is an employee of the Client.
- Confidentiality of Username and Password. Each User is responsible for the confidentiality of the username and password used by its personnel to access the Platform and must ensure that its username and/or password are not disclosed to any third party.
- No Sharing Of Accounts. Each User account is made available exclusively to the single, named User of that account and may not be shared with any other User or third person.
- Retraction of Data. The Client acknowledges that by transmitting User Data within the Platform, the Client is inviting recipients to rely upon that User Data and that the retraction of such User Data may adversely affect recipients. Render Networks may, as a condition to complying with any Client request to retract or delete User Data from the Platform, require the Client to ensure that recipients will not be adversely affected.
- 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.
- Ownership. Client retains all of its right, title and interest in and to User Data, and ownership of User Data is not transferred to Render Networks under the Agreement.
- Right to Use. Client grants Render Networks a nonexclusive license, for the term of the Agreement, to use User Data to accommodate Client’s authorized use of the Platform and Services. Client further grants Render Networks a nonexclusive, worldwide, perpetual license to use usage data (such as, by way of example and not by way of limitation, any design input data uploaded) in an aggregated form that is not identifiable to any organization in order to compile statistics on Platform use and improve the Platform.
- Retention. The Client may, within three months after the end of the Agreement, (Retention Period), request an archive of the User Data, after which the User Data may be deleted by Render Networks without notice. Render Networks will not be liable for any damages of any kind in connection with a decision not to retain User Data after the Retention Period.
- Warranty regarding User Data and use of the Services. The Client warrants that it has appropriate rights in User Data and that the User Data and the Client’s use of the User Data will not violate any applicable laws, the rights of any third party or the Agreement. Render Networks is not required to review User Data but may do so at its discretion. Render Networks reserves the right to remove without warning any User Data that it considers may breach the Agreement. Render Networks will notify the Client if it removes User Data and will repost or return User Data if, 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, paragraph 3, Render Networks is not liable for any damage or loss caused by Render Networks’ decision to remove User Data. The Client is entirely responsible for the content and delivery of User Data, including without limitation, the accuracy, usefulness, timeliness and completeness of User Data. The Client is responsible for ensuring User Data is correctly addressed and on-time.
- Payment of Fees. Unless otherwise specified in the Agreement, the Client must pay all Fees in advance and by the means specified in the Service Order.
- Default interest. If the Client fails to pay any amount payable by it under the 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 2% above the prevailing base lending rate quoted by Commonwealth Bank of Australia (or, if less, the maximum amount permitted by applicable law) and such interest shall accrue daily, be calculated weekly and be compounded monthly.
- Credit cards. Where a Credit Card is the nominated form of payment, a valid credit card is required for paying accounts. Free accounts are not required to provide a credit card number.
- Payment in advance. The Service is billed in advance on a monthly or annual basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account.
- Upgrades/Downgrades. An upgrade from a free plan or free Users to any paying plan or paying Users will end a free trial. The Client will be billed for the first month or year immediately upon upgrading. For any upgrade or downgrade in User Level, the Client’s payment method that the Client provided will automatically be used to charge the new rate on the Client’s next billing cycle. If the Client downgrades the Service it may cause the loss of features, or capacity of the Client’s account. Render Networks, does not accept any liability for such loss.
- Taxes. All Fees specified hereunder do not include and are net of any GST, foreign or domestic governmental taxes or charges of any kind that may be applicable to the 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 shall be the sole responsibility of the Client.
- Currency. All amounts are quoted and to be paid in USD unless stated otherwise.
4. Acceptable Use Of The Services
- Application. This Section 4 applies to all Users of the Platform who receive Services from Render Networks regardless of whether a User is a Paying Client, a Trial Client or a Project Participant. A User’s failure to comply with Section 4 of these Terms may lead to suspension or termination of the Services at Render’s absolute discretion.
- Obligations. All Users must use the Services in accordance with the Agreement and in accordance with all applicable laws. A User must not attempt to breach or circumvent the Platform security. In addition, a User must not use the Services in any fashion that would, or assist others to:
- mislead or deceive including pretending to be an entity or individual that a User is not;
- post or transmit information that infringes or violates the rights (including Intellectual Property Rights) of a third party, including infringement Privacy Legislation and rights of publicity;
- interfere or disrupt the Services or cause or knowingly facilitate the spread of a virus, worm, Trojan horse, or other harmful object;
- post or transmit unsolicited messages, junk mail, spam or chain letters or material that might be considered offensive;
- use the Platform to stalk, threaten or harass another person or Party;
- upload, download, post, transmit, store or otherwise make available any User 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 Information without permission;
- promote in any way illegal or unwelcome or unsociable activities;
- attempt to breach or circumvent Platform security; or
- undertake promotions or undertake commercial activity not connected with the business purposes the Services are intended to support.
- Responsibility for User Data. A User is solely responsible for any User Data it uploads or communications it uses the Platform for. Render Networks does not control the use of the Services by any User and each User agrees that use of the Services and the Platform is solely at their own risk.
- Monitoring usage. In order to provide the Services effectively and in accordance with applicable law and the Agreement, Render Networks may monitor and record a User’s use of the Services and each User authorizes Render Networks to collect, store and use all such information in line with the Privacy (Section 6) and Confidentiality (Section 5) provisions specified in these Terms.
- Suspension. Render Networks may immediately suspend access to the Services or the Platform at any time without notice if a User’s use exceeds any of the defined attributes of the User Level currently active. Such attributes may include usage levels such as file sizes, file types, numbers of premises uploaded for design, solve time and others. In the case where Render Networks takes such suspension action, Render Networks will endeavour to explain the reasons to the Client as soon as possible and work with the Client to correct the action such that the Platform’s performance is not impacted in an unreasonable way.
- Obligation. The Parties acknowledge that the information obtained by a Party pursuant to the Agreement may constitute valuable trade secrets or Confidential Information of the disclosing Party. Each Party agrees to use Confidential Information solely in accordance with the provisions of the Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party, without the disclosing Party’s prior written consent. Each Party shall use strict measures to protect the secrecy and avoid disclosure or unauthorized use of Confidential Information. Each Party shall exercise the same degree of care to prevent disclosure of 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, a Party will not be in breach of this provision for disclosing Confidential Information in circumstances where:
- the Party is legally compelled to disclose Confidential Information; or
- 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
- the disclosing Party discloses the terms of the Agreement to its professional advisors, financiers, prospective financiers or partners or agents, or, in the case or Render, to any Render Network Affiliates; or
- Render Networks discloses the fact the Client is a client to potential clients; or
- the information was independently developed by or for the receiving Party without any breach of the Agreement.
6. Personal Information And User Data
- 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.
- Sharing of your information on The Platform: In the course of delivering Services under the Agreement, Render Networks may allow messaging and sharing of information in many ways, such as User profiles, organisation and relevant project information and data as enabled from one User to another User. Information and content that is shared or posted may be seen by other Users of the Services. Where settings have been made available, Render Networks will use reasonable endeavors to honor the choices made by Users about who can see content or information (such as connecting with other organisations, access control settings, public vs private project and information).
7. User Communications
8. Intellectual Property Rights
- Platform and Services. The Client acknowledges and agrees that Render Networks and its licensors own all right, title and interest in and to the Services and the Platform, 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. The Agreement does not convey to Client any rights of ownership in or related to the Platform or the Services, or any Intellectual Property Rights therein. Nothing in the Agreement transfers existing IP from either Party to the other including unique, Client specific configuration settings.
- Feedback. Other than as stated in the 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 and Users with respect to the Services and Platform. “Feedback” means commentary/review/feedback obtained by Render Networks in the course of discussions with Users for the purpose of improving the usability and feature set of the software. Confidential Information shall not be considered Feedback.
9. Suspension For Breach
- Without affecting any other rights and obligations in the Agreement or at law or equity (including a right of termination and a right to claim damages), Render Networks may suspend the Platform License and delivery of any or all of the Services if the Client commits a breach of the Agreement and does not remedy that breach within 7 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 Client that Render Networks will use reasonable professional skill and care in providing all Services. Render Networks’ sole liability and Client’s sole remedy for any failure to so perform the Services will be for Render Networks to re-perform such Services.
- Disclaimers. The Client assumes all responsibilities for selection of the Platform to achieve the Client’s intended results, for the use of, and results obtained from, the Platform, 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) below, to the maximum extent permitted by applicable law, Render Networks: (a) disclaims all warranties, whether express, implied, statutory or otherwise; (b) specifically disclaims any implied warranties of merchantability, non-infringement, quality and fitness for a particular purpose; and (c) does not warrant that the Platform will be error-free or that the platform will work without interruptions. The foregoing limitations will apply even if the above remedy provided in Section 10 (Limited Warranty) fails of its essential purpose.
- Legislation. Certain legislation, including the Australian Competition and Consumer Act 2010 (Cth), may imply warranties 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 entitled 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.
11. Limitation Of Liability
- To the maximum extent permitted by law and subject to Section 10 (Legislation), Render Networks will not be liable (including to the Client and or to any User) 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 User Data, or loss of or interruption to the Client’s business, in each case arising out of or in any way connected to the provision of the Platform or 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 subject to Section 10 (Legislation), 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): (a) liability in any month be greater than 100% of the monthly fee specified in the Service Order for a single month.
- The Client and Render Networks agree that the disclaimer, exclusions and limitations (in Section 10 and this Section 11) in the Agreement are fair and reasonable given the amount of Fees paid by the Paying 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 the 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 the Agreement.
- Render Networks Indemnity. Render Networks shall defend or at its option settle any third party claim, action or proceeding brought against the Client alleging that the Platform as delivered to Client and used as authorized in the Agreement, infringes any Intellectual Property Right of a third party (other than a User) 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.
- Client may participate in the defense of a claim asserted hereunder after Render Networks has assumed the defense or settlement, provided that 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 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 Client to admit liability or pay any money without 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 Platform with other software or products not provided by Render Networks, if the infringement would not have occurred if the Platform had not been so combined;
- the modification of the Platform, in whole or in part, by anyone other than Render Networks, if the infringement would not have occurred but for such modification; or
- use by Client of any specified release of the Platform 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 Platform. If any portion of the Platform 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 Platform 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 Platform;
- replace the Platform with non-infringing software; or
- in the event that neither of the foregoing is reasonably practicable, terminate the Agreement and refund a reasonable portion of the Fees paid by Client with respect to the Platform.
- 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 Client, with respect to any actual or alleged infringement of any Intellectual Property Right by the Services or the Platform.
- 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 or Render Networks personnel alleging that:
- the Client has breached any law or regulation in the use of the Platform or the User Data, or
- the Client has misused any User Data or infringed any third party Intellectual Property Rights in the use of the User 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 defence 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.
- To the extent permitted by law, this section 12 (Indemnities) states the entire liability and obligation of Client, and the sole and exclusive remedy of Render Networks under the Agreement, with respect to any third party claim, action or proceeding brought against Render Networks.
- Termination for Breach. Either Party may terminate the Agreement in the event that:
- either Party commits a material breach of the 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 (Suspension for breach) and the Client has not taken the necessary action required 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 the 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 the Agreement for Breach pursuant to this Section 13; or
- the Client indicates it is unwilling or unable to continue to perform its obligations and fails to provide 30 days written notice (each a Termination Event), without prejudice to Render Networks’ rights and remedies hereunder, the Client will be required to pay Render Networks 65% of all Fees un-invoiced as at the date of the Termination Event unless agreed otherwise. 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 Client must cease to use the Platform and the Services upon termination. On termination of the Agreement, the Client and its Users immediately loses all rights to use or possess the Platform and must return any Materials to Render Networks or comply with all directions of Render Networks for the destruction or return of the Materials and, at Render Networks’ request, the Client must procure that an authorized representative of the Client, certifies that the Materials has been returned or destroyed. The Client must pay any and all amounts outstanding promptly following termination.
- Survival. Sections 3, 4, 5, 6, 8, 10, 11, 12, 13, 14, 15 and 16 shall survive termination.
14. Governing Law And Dispute Resolution
- Governing Law and Jurisdiction. The Agreement is governed by the laws of the state of Victoria, Australia and the Client submits to the 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 the 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 – Negotiation) 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 (Dispute Resolution – Escalation).
- Injunctive Relief. Notwithstanding the foregoing, if either Party breaches, or threatens to breach the provisions of the Agreement concerning Confidential Information 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 the 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 documents comprising the Agreement contain the entire agreement between the Parties concerning its subject matter.
- Non-standard documents. If the Client does not complete and submit a Service Order, but instead issues a non-Render Networks purchase order, that purchase order will constitute an offer by the Client to purchase the Services specified in it on these Terms; accordingly, the execution and return of the acknowledgement copy of the purchase order from Render Networks, or Render Networks’ commencement or execution of work pursuant to the purchase order, will establish a contract for the supply and purchase of the Services on these Terms (and exclude all other terms and conditions).
- Amendments by Client. Any amendments to a Service Order or these Terms , or any Client terms and conditions (if any) attached to, enclosed with, or referred to in, any purchase order are expressly excluded from and shall not form part of the Agreement, unless expressly accepted in writing by an authorized Render Networks officer.
- Amendments by Render Networks. Render Networks may modify the Agreement (including these Terms) or any additional terms that apply to the Platform with 30 days’ notice. Such changes will be communicated digitally to Clients and Users. Changes will generally not apply retroactively and will become effective no sooner than 14 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 the Client or User does not agree to the modified terms for a Service, the Client or User should discontinue use of that Service. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict. If the Client or User does not comply with these Terms, and Render Networks do not take action right away, this doesn’t mean that Render Networks are giving up any rights that Render Networks may have (such as taking action in the future). If it turns out that a particular term of these Terms is not enforceable, this will not affect any other terms. If a proposed change is materially prejudicial to the Client’s interests, the Client may terminate the Agreement with 30 days’ notice and no penalties or payment for termination (as described in Section 13 (Payment in the Event of Termination) of the Agreement) will apply.
- 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 the 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 Clients or Users enter into with one another using the Platform. Under these Terms, 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. The Clients agrees 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 Platform.
- Subcontracting. Render Networks may subcontract the delivery of Services under the Agreement; provided that Render Networks shall remain liable to the Client for the provision of such Services.
- Assignment. Neither Party may assign the 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 the Agreement to any Render Networks Affiliate on notice to the Client. However, if the assignee is a direct competitor of the Client and as jointly agreed in writing by the Parties, the Client has rights to terminate the Agreement with 30 days’ notice and no penalties or payment for termination (as described in Section 13 (Payment in the Event of Termination) of the Agreement) will apply.
- 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 the 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 Platform without the prior written 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.
- No Third Party Beneficiaries. No provisions of the 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. Without limiting the generality of the foregoing, Project Participants may not enforce the rights granted to Paying Clients and vice versa under any circumstances.
- Language of Agreement. The Agreement and these Terms has been written in the English language and, in the event of any conflict between the English-language version and any translation of the Agreement (or these Terms), the English-language version will prevail.
- Method of Communication. A notice, consent or other communication under the 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 email@example.com or send notices to Render Networks Pty Ltd, Suite 401/1 Crescent Road, Glen Iris, VIC, 3146, Australia.
Last update: March, 2019
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