An EMNCS-Global Online Initiative Only:PROPERTY OF EMN CORPORATION,USA EMNCS @ Trademark & Patent Registry!Your Audit/Secretary/Law/Advisory Window!
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The User shall be deemed to have accepted and agreed to the following terms and conditions upon the Users’ usage of the website www.emnaustralia.com.
The Term ‘EMN shall mean EMN and has been registered under the International Logo Recognition Government ministry department under the law of Industrial act of each different country organizations. The terms ‘User’ shall mean any user who is using the site www.emnaustralia.com.
The Site is owned by EMN and unless mentioned otherwise, all contents within the Site is the sole property of EMN subject to third party rights, acknowledged wherever applicable.
No material from this Site may be reproduced in any manner on any media for any purpose whatsoever, without explicit written permission of EMN. All rights not expressly granted herein are reserved.
User agrees to indemnify, defend and hold EMN harmless from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, arising out of or relating to any misuse by the User of the content and services provided on the Site.
EMN makes no warranties, express or implied, including, without limitation, those of merchantability and fitness for a particular purpose or any other consequences caused by the usage of the material in the Site and further does not guarantee that all content, images and material appearing on the Site are not infringing any registered or non-registered copyrights. Any infringement of any nature, if existed, is purely unintentional and without prior knowledge of EMN. Any infringement will be promptly corrected as soon as it is brought to the notice of EMN after conducting proper verification with notification to the original owner of the information.
All specifications, functionalities, features, skill sets and technology platforms are subject to change without prior notice. All final deliveries are strictly as per accepted contracts only and may differ from time to time.
EMN, it's Directors, Shareholders, Employees and Business Associates, shall not be responsible for any liabilities, losses, damages, costs, claims, charges and expenses whatsoever, including but not limited to third party, special, indirect, economic or consequential loss or damage including loss of profit, reputation, business revenue, goodwill or anticipated savings; caused by or contributed to by any event including use of EMN’ services and solutions.
The Site provides links to web sites and access to content, products and services from third parties, including users, advertisers, affiliates and sponsors of the Site. User agrees that EMN is not responsible for the availability of, and content provided on, third party web sites. The User is requested to peruse the policies posted by other web sites regarding privacy and other topics before use. EMN is not responsible for third party content accessible through the Site, including opinions, advice, statements and advertisements, and user shall bear all risks associated with the use of such content, EMN is not responsible for any loss or damage of any sort User may incur from dealing with any third party.
EMN Partner Program - International Agreement
EMN Products & Solutions - Terms & Condition
EMN Trademark &/Or Copyright Infringement Policy
EMN Anti Spam Policy
EMN Website USER Agreement
EMN Subscription Plan / Partner Termination Terms, Policies & Conditions
I. Overview of Trademark and/or Copyright Infringement Policy
EMN Australia Pty Ltd (“EMN & EMNCS”) supports the protection of intellectual property rights. Whether you are the holder of a trademark, service mark or copyright, EMN is committed to helping you protect your legal rights. Therefore, we have established the following policies for considering trademark and/or copyright infringement claims.
II. Trademark and Copyright Claim Initiation
A. Domain name infringes a trademark
If you believe that a domain name utilizing EMN’s service infringes your (or your client’s) trademark or service mark rights, please complete our , which requires you to provide:
· First and last name, email address, and telephone number of the trademark owner
· The name of the trademark and the federal trademark registration number
· A good faith statement, under penalty of perjury, from either the trademark holder or an authorized representative of the trademark holder stating that the use of the trademark by the alleged infringer (i) infringes the trademark holder’s rights and (ii) is not defensible.
B. Website content infringes a trademark
If you believe that a website associated with a domain name utilizing DBP’s service contains content that infringes your (or your client’s) trademark or service mark rights, which requires you to provide:
· First and last name, email address, and telephone number of the trademark owner
· The name of the trademark and the federal trademark registration number
· The exact URL where the allegedly infringing content is located
· A good faith statement, under penalty of perjury, from either the trademark holder or an authorized representative of the trademark holder, stating that the use of the trademark by the alleged infringer (i) infringes the trademark holder’s rights and (ii) is not defensible.
C. Website content infringes a copyright
If you believe that a website associated with a domain name utilizing DBP’s services contains material that infringes your (or your client’s) bona fide copyright. That form requires you to provide:
· First and last name, email address, and telephone number of the copyright owner
· The federal copyright registration number, if applicable
· The exact URL where the copyrighted content is located (if applicable)
· The exact URL where the infringing copyrighted content is located
· A good faith statement, under penalty of perjury, from either the copyright holder or an authorized representative of the copyright holder, stating that the use of the copyright content by the alleged infringer (i) infringes the copyright holder’s rights and (ii) is not defensible.
III. Claim Processing
Upon receipt of a complete Claim Form as set forth in Section II A – C above, as well as any additional supporting information which EMN may, in its discretion, request from the complaining party, EMN will initiate a claim investigation.
EMNCS does not tolerate the transmission of spam. Customers / Clients / Partners suspected to be using EMNCS's service for the purpose of sending spam are investigated by the registrar and/or hosting providers. After the registrar and/or hosing provider investigates the complaint, Domains By EMNCS's service..
How We Define Spam
We define spam as the sending of Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE) or Unsolicited Facsimiles (Fax), which is email or facsimiles sent to recipients as an advertisement or otherwise, without first obtaining prior confirmed consent to receive these communications from the sender. This can include, but is not limited to, the following:
i. Email Messages
ii. Newsgroup postings
iii. Windows systems messages
iv. Pop-up messages (aka "adware" or "spyware" messages)
v. Instant messages (using AOL, MSN, Yahoo or other instant messenger programs)
vi. Online chat room advertisements
vii. Guestbook or Website Forum postings
viii. Facsimile Solicitations
What We Allow and Don't Allow
In order to use our service you must not only abide by all applicable laws and regulations, which include the Can-Spam Act of 2003 and the Telephone Consumer Protection Act, but you must also abide by Domains By Proxy's no spam policies. Commercial advertising and/or bulk emails or faxes may only be sent to recipients who have already "opted-in" to receive messages from the sender specifically..
What We Do
We encourage all customers and recipients of email generated from our service to report suspected spam. There are several ways to report spam: An Email to email@example.com.
Note: The Partner World Document is as per the International Standard and Policies to Soften the Cross Border Financial Policies for Mutual Understanding & benefits, which states the right as per all the Information Technology Corporate Compliances Globally.
Basic General Terms
We welcome you as an EMN PartnerWorld Potential Partner. The purpose of PartnerWorld is to provide you with business development, marketing, technical and development support related to EMN products and services including Subcontracts and JV Exposures on Information Technology Platforms.
PartnerWorld consists of the Member, Advanced and Premier levels as Bronze, Silver, Gold, Platinum and Diamond. All PartnerWorld participants qualify at the Member level depending on their infrastructure and the business management skills with capacities, capabilities. You are qualified for the Gold level by achieving the required number of criteria, product value and meeting the minimum requirements for each of these levels as we specify on EMN's Internet PartnerWorld website (the "PartnerWorld Website" Refer Excel Sheet Business Development Consultancy Services).
PartnerWorld participants may use the title "EMN Business Partner". Upon our confirmation, participants meeting the requirements of the Advanced level may use the standard EMN Business Partner emblem and the EMN Advanced Business Partner title. Participants meeting the requirements of the Gold level may use the EMN Gold Business Partner emblem and EMN Platinum Business Partner title. Usage of these titles and emblems is subject to the terms of this Agreement.
In addition, participants may also be approved to use other EMN Business Partner titles and emblems. If you have authorization to use the EMN title and emblem under the terms of another relationship, you may continue to do so.
We provide you with benefits through your participation in PartnerWorld. Benefits are associated with the level you achieve. We specify the details of the benefits and the conditions which apply, including charges, if any, on the PartnerWorld Business Development Auto-mail Facilitations.
Participation in PartnerWorld is by Country Enterprise as specified on the PartnerWorld duly governed by the EMN Australia Pty Ltd
Country Enterprise - all of the Enterprise's Locations within a single / multi countries.
Enterprise - any legal entity and the subsidiaries it owns by more than 50 percent.
Location - means a site at which you are located, controlled and operated by you, and which is within your Enterprise.
OEM – Original Equipment Manufactures
Worldwide Enterprise - means all the Locations of an Enterprise in all countries.
ISV – Independent Software Vendor
PBP-BDS- Product Bronze Plan – Under Business Development Services
2. Level and Benefit Qualifications
Each level and certain benefits have requirements. Therefore, you agree that:
a. to qualify for the level or for a benefit, the Country Enterprise must meet the requirements for such level or benefit; and
b. you will maintain the requirements of the level you achieve or a benefit you select. If you do not, your membership level will be adjusted to the level you have achieved.
If there are skill requirements for the level you achieve or for a benefit you select, you agree to give us prompt written notice if you do not retain such skill requirements. If you wish to retain the level or the benefit, you agree to replace such skills within three months of the loss. Failure to notify us on a timely basis of such loss or to replace such skills may result in our adjusting your level to that for which you qualify, or ending our approval of you for the benefit.
3. Agreement Structure
This EMN PartnerWorld Agreement- International Basic General Terms, Attachments (such as those which include terms associated with certain benefits) and any related transaction documents (such as supplements, exhibits or invoices), are the complete agreement (collectively called "the Agreement") regarding your participation in PartnerWorld, and replace any prior oral or written communication between us.
If there is a conflict among the terms in the various documents, the terms of:
a. A transaction document prevail over those of all documents; and
b. An Attachment prevails over the terms of the International Basic General Terms.
You accept the terms in a transaction document by signing it, or by accepting, using or paying for that which is the subject of the transaction document.
4. Electronic Communications
Each of us may communicate with the other by electronic means (for example, to provide written notice or consent to the other), and such communication is acceptable as a signed writing to the extent permissible under applicable law. Both of us agree that for all electronic communications, an identification code (called an "EMN ID" or Web identity ID) contained in an electronic document is sufficient to verify the sender's identity and the document's authenticity.
Each of us agrees that:
a. both of us are independent contractors, and the Agreement is an exclusive. Neither of us is a legal representative nor legal agent of the other. Neither of us is legally a partner of the other (for example, neither of us is responsible for debts incurred by the other), and neither of us is an employee or franchise of the other unknown, nor does the Agreement create a joint venture between the unknown;
b. each of us is responsible for our own expenses regarding fulfillment of our responsibilities and obligations under the terms of this Agreement;
c. nothing contained herein grants us any rights or obligations with regard to your products or services;
d. neither of us will assume or create any obligations on behalf of the other or make any representations or warranties about the other, other than those authorized;
e. any terms of the Agreement, which by their nature extend beyond the date the Agreement ends, remain in effect until fulfilled and apply to respective successors and assignees;
f. to the extent such permission is required by law, you and EMN each agree to allow the other to store and use the other's business contact information (employees' names and their business addresses, business IT Email Addresses, and business domain addresses), anywhere the other does business when such business contact information is provided in a way that would lead a reasonable person to conclude that the person providing the business contact information understood that such business contact information would be used to contact them in the future. Such business contact information will be processed and used by each of us solely in connection with our business relationship, and may be provided to (1) third parties who may promote, market, and support certain of our respective products and services and (2) permitted successors and assigns. If one of us no longer wishes the other to contact a particular person working for them or on their behalf, upon written request, the other will undertake reasonable efforts to cease sending information to that person; provided, however, that if certain business contact information is necessary for the continuation of the business relationship (for example, the person is the contact to whom invoices are sent), the party making the request will provide alternative business contact information for someone authorized to act for them or on their behalf;
g. neither of us will bring a legal action against the other more than two years after the cause of action arose, unless otherwise provided by applicable law without the possibility of contractual waiver; or mutual closures of the benefits
h. failure by either of us to insist on strict performance or to exercise a right when entitled does not prevent either of us from doing so at a later time, either in relation to that default or any subsequent one;
i. neither of us is responsible for failure to fulfill obligations due to causes beyond the control of either of us;
j. either party may transfer this Agreement within their Enterprise or to a successor organization by merger or acquisition, without consent of the other. The transferring party agrees to advise the other party in writing within one month of the transfer. EMN may transfer, delegate, subcontract, or assign, in whole or in part, our obligations and rights under this Agreement. You may not delegate, subcontract or assign (or transfer other than as provided in this Agreement) this Agreement, in whole or in part, without our prior written consent;
k. except as otherwise stated in the Confidential Information section of this Agreement, all other information exchanged between us is confidential;
l. if any provision of this Agreement is determined to be invalid or otherwise unenforceable, such provision will be deemed deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect as written;
m. each of us will comply with all applicable laws and regulations including export laws; and
n. this Agreement does not include our approval for you to market our products and services under remarketer terms or complementary marketing terms unless we specify otherwise in an Attachment.
a. to be responsible for client & Customer satisfaction for all your activities;
b. that to receive benefits in any country, you must register and be accepted by the EMN organization for that country or that organization's designee. Not all benefits are available in all countries;
c. that for certain lead offerings, if we provide a lead to you, to report to us the results of your activities, as we specify in writing;
d. to provide to us new contact information, including email address, should your primary company contact change;
e. to provide information to us, which we reasonably require (for example, information regarding your qualification for a level or benefit, or documentation of your skills certification);
f. that when we provide you with access to our information systems, it is only in support of your activities under the Agreement. Programs we provide to you for your use with our information systems, which are in support of such activities, are subject to the terms of their applicable license agreements, except you may not transfer them;
g. that you will not offer or make payments or gifts (monetary or otherwise) to anyone for the purpose of wrongfully influencing decisions in favor of EMN, directly or indirectly. EMN may terminate the Agreement immediately in case of 1) a breach of this clause or 2) when EMN reasonably believes such a breach has occurred or is likely to occur;
h. to give us prompt written notice (unless precluded by law or regulation) of any material change or anticipated change in the information you provide to participate in PartnerWorld; and
i. to comply with the terms of the Code of Conduct as set forth in.
This Code of Conduct defines the minimum standards of business conduct and business practices with which EMN expects you to comply in regards to your business relationship with International Business EMN Australia Pty Ltd (or one or more of its subsidiaries) (“EMN”) including without limitation marketing, remarketing (or “reselling” or “Subcontracting” or third party JV Distributions) or your involvement in an opportunity which results in the sale of products or services provided by EMN (“Activities”). If applicable laws and regulations are more permissive than this Code of Conduct, you are expected to comply with this Code of Conduct. If applicable laws and regulations are more restrictive, you must always comply with those legal requirements.
By establishing this Code of Conduct and making it part of your relationship with EMN, we are acknowledging your critical role in defining and protecting our most valuable collective asset—the trust that our clients, investors, colleagues, and communities place in EMN and our business associates. You must ensure that this Code of Conduct and any changes to this Code of Conduct (and other relevant information and related on-going education) are provided to your employees and contractors who work with EMN personnel or contractors who are involved in your Activities and that your employees and contractors are aware of the obligations that apply under this Code of Conduct. Similarly, EMN expects you to have your own conduct guidelines with your employees and contractors who work with EMN personnel or who are involved in Activities.
The industry and markets which we serve continue to undergo significant changes. As a result, these changes make the ways in which we do business more complex and constantly present new regulatory, ethical, and legal challenges. You must demonstrate the highest ethical principles in all your Activities and avoid engaging in any activity that involves even the appearance of impropriety. This Code of Conduct is not legal advice or legal guidance. You should consult with a licensed attorney for questions regarding the legal requirements that apply to your Activities.
Accurate and reliable financial and business records are of critical importance for all enterprises. You must not engage in any actions that could result in conveying false or inaccurate financial information to EMN or our clients. You must ensure that all submissions you make to EMN (for example, orders, sales reporting, special bid requests, resellers involved, rebates, and reimbursement requests) are complete and accurate.
You must be aware of and comply with all laws, rules, regulations, including procurement regulations, and contract clauses that govern the acquisition of goods and services by government entities to which you directly or indirectly market or recommend products and/or services provided by EMN, including federal, state, local, and other government-owned entities, as well as entities that are government-owned or controlled or subject to government procurement rules ("Government Clients"). Bear in mind that those activities that may be appropriate when dealing with nongovernmental customers may be improper and even illegal when dealing with Government Clients.
Certain prohibitions, limitations or requirements relating to the payment and/or receipt of fees and other benefits may apply when you directly or indirectly market to Government Clients the products and/or services provided by EMN. Such provisions can arise from a variety of sources, including statutes, regulations, and government contracts or subcontracts under which you resell products and/or provide services provided by EMN related to the same project. You are not eligible for the payment of fees or other compensation in connection with marketing to Government Clients the products and/or services provided by EMN if you hold a contract with a Government Client under which you advise on the selection of products and/or services. In all other government transactions, as well as commercial transactions, you must ensure before requesting fees or other compensation that such payment is permitted by all applicable laws, rules, regulations, and client contracts and policies, as well as authorized by your applicable agreement with EMN. Further, if either by law or under the terms of an agreement with your client you are required to disclose the potential fee or other compensation, or if your client is a government-owned entity, you must notify your client, in writing, that you may receive a fee or other compensation from EMN for the subject transaction and, for a government-owned entity, the notice must also describe your role in marketing the products or services provided by EMN. Some Government Clients may require you to formally register with them prior to engaging in any marketing activities. If you violate any of these requirements or other applicable law, EMN is not liable to pay you any compensation for the subject transaction, and if any compensation has already been made, you must repay it promptly and EMN may terminate your agreement. Because applicability of legal restrictions may depend on the provisions of your contracts and subcontracts, and other circumstances of a transaction that may be known only by you, it is your responsibility to determine in each instance whether a potential fee or benefit is permitted, and whether such registration and/or disclosure is required.
At all times, you are required to comply with all applicable local and foreign anti-bribery laws, such as the United States Foreign Corrupt Practices Act which governs the conduct of EMN and its subsidiaries Globally and other similar local laws and regulations in the country India. Acceptable practices in the commercial business environment may be entirely unacceptable with government officials, and may even violate certain applicable laws and regulations in some countries. When you are dealing with government officials or those who act on the government's behalf, you should be aware of these restrictions. You must not, directly or indirectly, make or offer bribes, kickbacks, or other payments of money or other things of value, including business amenities, to anyone, including officials, employees, or representatives of any government, political parties, candidates for office, or public or international organization, or to any other third party, for the purpose of wrongfully obtaining or retaining business related in any way to products or services provided by EMN or resold by you. This includes giving money or business amenities to any third party where there is reason to believe that it will be passed on to anyone involved in the business decision process for the purpose of influencing the decision. Even where allowed by applicable laws and regulations, any travel-related expenses and business amenities provided to government-owned entities must be reasonable, tied to product demonstration and not provided for the purpose of wrongfully obtaining or retaining business related to products or services provided by EMN.
You must ensure that all business amenities which you provide to private, commercial or government-owned clients and others comply with all applicable laws and regulations, are in the ordinary and proper course of business, and cannot reasonably be construed as bribes or other improper inducements. Further, EMN’s policies limit the business amenities which an EMN employee may accept. Any business amenities which you may provide to an EMN employee must be appropriate for our business relationship and must not be given with the intent to receive favoritism from EMN or to similarly influence or compromise EMN’s decision-making regarding our business relationship and must not have the appearance of impropriety.
When dealing with others, including other EMN business associates, you must exercise reasonable due diligence to ensure that you are aware of any potential warning signals that may indicate potential issues and that they abide by the terms of this Code of Conduct. You agree to advise EMN of any potential violations or concerns.
You must fully comply with all applicable antitrust and competition laws and regulations. While these laws vary somewhat among jurisdictions, EMN’s policies require, at a minimum, if you are approved by EMN to remarket products and services provided by EMN, that you do so as part of your independent business model and on terms and pricing that you set unilaterally. Furthermore, it is not permissible for you and competing EMN resellers to do or attempt to do any of the following: 1) fix or control prices for EMN offerings; 2) join together to boycott suppliers or clients; 3) divide or allocate markets or customers; or 4) coordinate competing bids.
EMN expects you and your employees to compete fairly and ethically for all business opportunities. Your employees involved in the Software Developments, IT Services, For Sale of products and services provided by EMN must ensure that all statements, communications, and representations to clients are accurate, complete, and truthful. Similarly, you must not make or attempt to make any unauthorized commitments on behalf of EMN or clients, nor inappropriately implicate or involve EMN in your disputes with clients or others. Similarly, you should not defame or disparage EMN, other EMN business associates, competitors or clients.
You must comply fully with applicable insider trading and securities laws governing transactions in EMN securities, as well as those of our mutual clients. Securities include common stocks, bonds, options, futures, and other financial instruments. If you possess or have access to material, non-public information gained through your work with EMN or our clients; you must use that information solely for the purpose for which it was provided to you. You may not use it to trade in securities. These restrictions also apply to family members, friends, and associates.
You are responsible for protecting both EMN’s and the client’s intellectual property rights. An important element of such protection is maintaining the confidentiality of EMN’s and the client’s confidential information and other proprietary information. You must not reproduce copyrighted software, documentation, or other materials unless you are properly authorized to do so. You must observe applicable data privacy requirements. When you market directly to an end user, you must ensure the appropriate license and product terms are provided to the end user in a format sufficient to create an enforceable agreement under applicable law (for example, certain countries require contracting in hard copy format) before the sale to the end user is finalized. EMN always assists on the licensing advisories for the partners.
You must provide your employees with a work environment free of coercion, discrimination, and harassment. All communication with your, client & EMN’s employee must be done Electronically (Email duly at Microsoft Outlook with Proper Signature without disclosing the personal telephone details, should be authorized for the official telephones for the clients business management only including video conferencing and onsite technologies)
EMN expects you to comply with applicable laws and government guidelines governing social media. Further, when using social media (for example, any form of online publishing and discussion, including blogs, wikis, file-sharing, user-generated video and audio, and social network), you must comply with this Code of Conduct and you must not disclose EMN’s confidential information, except as provided under the EMN Agreement for Exchange of Confidential Information (or an equivalent agreement regarding the exchange of confidential information) between you and EMN.
If the Clienteles are connecting in the Banking Financial Segments, then your employees are strictly prohibited to disclose their roles and designations in the Networking Website (LinkedIn, Facebook, Twitter Job Portals etc), should be governed and notified by you to protect the client’s business solutions in high priority to avoid data security malfunctions.
You must require your remarketers who do not have a contract with EMN under which they are approved to market products or services provided by EMN (for example, industry solution resellers (ISRs) to comply with this Code of Conduct and to regularly monitor the EMN Internet website provided above for changes to this Code of Conduct. You must also require such remarketers to provide appropriate license and product terms to the end user in a format sufficient to create an enforceable agreement under applicable law before the sale to the end user is finalized.
Dealing in EMN products from unauthorized sources undermines the EMN Business Partner program and our commitment to serve our Partners, Clients Customers at the highest levels of quality and business value. Acquiring EMN products from unauthorized sources also represents a significant risk to you and your potential end user customers because you have no assurance that these products are free of defects or alterations (or both) or if the product is counterfeit, which may affect subsequent warranty claims and customer satisfaction.
You must maintain documentation reasonably necessary to demonstrate your compliance with this Code of Conduct and provide EMN or its independent auditor (Deloitte) with access to such documentation upon EMN’s reasonable request.
Any violation of this Code of Conduct by persons working for or on behalf of your firm will constitute the basis for the immediate termination of your business relationship(s) with EMN, including all related contracts.
If you become aware of any unlawful or unethical situation involving or related to the sale of products or services EMN provides, you must immediately notify EMN at firstname.lastname@example.org and communicate any information that you have regarding the incident or situation. Information that you provide to EMN must be accurate to the best of your knowledge, and EMN expects you to assist EMN with any investigations of an incident or situation that you report to EMN. Reporting false information to EMN may result in EMN’s termination of your business relationship(s) with EMN, including all related contracts.
6. Internal Use, Development, Demonstration and Evaluation Products
If you acquire products we designate for internal use, such products are for use only within your Business Partner operations.
If you acquire products we designate for development, demonstration or evaluation purposes, such products are for use for such purposes and in support of your Business Partner activities under the Agreement.
All products acquired for the above purposes will be acquired under the terms of the applicable agreement.
Products acquired for the above purposes must be retained for use for such purposes for the period we specify on the PartnerWorld Website. During such period, products may not be used for work-for-charge.
Programs acquired for the above purposes are subject to the terms of their license agreement except that they may not be transferred. In addition, programs acquired for evaluation purposes may be provided on an "as is" basis without technical support. We will advise you on the PartnerWorld Website if technical support is provided for such programs.
We will notify you in writing of the applicable Business Partner title, and emblem if any, which you are authorized to use. We will provide you written guidelines, which we may periodically modify, regarding the use of the Business Partner title and emblem. You may not modify the emblem or title in any way. You may use our Trademarks (which include the title, emblem, EMN trademarks and service marks) only:
a. in accordance with the terms of this Agreement; and
b. as described in the written guidelines, we provide to you.
The royalty normally associated with non-exclusive use of our Trademarks will be waived, since the use of this asset is in conjunction with your activities under the Agreement.
You agree to promptly modify, at your expense, any advertising or promotional materials that do not comply with our guidelines. If you receive any complaints about your use of our Trademark, you agree to promptly notify us. When the Agreement ends, you agree to promptly stop using our Trademarks. If you do not, you agree to pay any expenses and fees we incur in getting you to stop.
You agree not to register or use any mark that is confusingly similar to any of our Trademarks.
Our Trademarks, and any goodwill resulting from your use of them, belong to us.
8. Marketing Funds and Promotional Offerings
We may provide marketing funds and promotional offerings to you. You must accept any applicable Attachment(s) and/or transaction document(s) to receive marketing funds or promotional offerings. If we do, you agree to use them according to our guidelines and to maintain records of your activities regarding the use of such funds and offerings for three years. We may withdraw or recover marketing funds and promotional offerings from you if you breach any terms of the Agreement. Upon notification of termination of the Agreement, marketing funds and promotional offerings will no longer be available for use by you, unless we specify otherwise in writing.
9. Benefit Charges and Payment Terms
There is no charge to participate in the PartnerWorld program, however you agree to pay the applicable charges, if any, associated with a benefit you select. We specify such charges at the PartnerWorld Website. The charge is the lower of the charge in effect on the date we receive your request, or the date we fulfill your request. We may change charges at any time. Such changes are not retroactive.
Amounts are due upon receipt of invoice and payable as specified in an invoice or transaction document. You agree to pay accordingly, including any late payment fee. If any authority imposes a duty, tax, levy, or fee, excluding those based on our net income, upon any transaction under this Agreement, then you agree to pay that amount.
10. Change in Terms
We may change the terms of the Agreement by giving you one month's notice. However, we may change the terms relating to safety and security at any time.
We will notify you if there are changes to the
11. Confidential Information
Each of us agrees that the terms of this section apply to confidential information (Information) specified below identified as "Confidential" when one of us or its Affiliate ("discloser") discloses Information to the other or its Affiliate ("recipient") under this Agreement. An "Affiliate" is an entity that controls, is controlled by, or is under common control with a party to this Agreement:
a. information regarding prospects and customers;
b. unannounced products and services, and any related technical information;
c. business plans;
d. any of the following information you provide to us on our request:
o reporting data;
o customer satisfaction data;
o financial data; and
o sales information;
e. any information on the Web site identified as "Confidential". We may identify such information as confidential either in writing or on the Web site. Your access of such information is considered your agreement to accept it as confidential; and
f. any other information which we agree in writing and which is identified as "Confidential".
The recipient of the Information, for a period of two years from the initial date of disclosure, agrees to use the 1) same care and discretion to avoid disclosure, publication or dissemination of the discloser's information as it uses with its own similar Information that it does not wish to disclose, publish or disseminate; and 2) discloser's Information for the purpose for which it was disclosed or otherwise for the benefit of the discloser.
The recipient may disclose Information within the Enterprise and to any of its Affiliates who have a need to know, and to any other party with the discloser's prior written consent, if there is a written agreement with the other party sufficient to require that party to treat the Information in accordance with this Agreement.
The recipient may disclose, publish, disseminate, and use Information that is 1) already in its possession without obligation of confidentiality, 2) developed independently, 3) obtained from a source other than the discloser without obligation of confidentiality, 4) publicly available when received, or subsequently becomes publicly available through no fault of the recipient, or 5) disclosed by the discloser to another without obligation of confidentiality.
The recipient may use in its business activities the ideas, concepts and know-how contained in the discloser's Information which are retained in the memories of recipient's employees who have had access to the Information under this Agreement.
THE DISCLOSER PROVIDES INFORMATION WITHOUT WARRANTIES OF ANY KIND.
The recipient uses Information provided by the discloser at its own risk.
Neither this Section 11 nor any disclosure of Information made under it grants the recipient any right or license under any trademark, copyright or patent now or subsequently owned or controlled by the discloser.
The receipt of Information pursuant to this Agreement will not preclude, or in any way limit, the recipient from 1) providing to others products or services which may be competitive with products or services of the discloser, 2 ) providing products or services to others who compete with the discloser, or 3) assigning its employees in any way it may choose.
You will indemnify us and our Enterprise for third party claims arising out of your conduct under this Agreement.
In the event of a default in the performance of this Agreement, including fundamental breach, tort, negligence, or misrepresentation a) either party will only be liable to the other for any actual direct damages up to $25,000 (or its equivalent in local currency) in the aggregate, and b) neither of us will be liable for any lost profits, business, revenue, goodwill or anticipated savings, special, indirect, incidental or for any economical consequential damages, even if advised of their possibility. These limitations will not apply to 1) your obligation to indemnify us for third party claims made against us arising out of your conduct under this Agreement, 2) any claim based on your breach of our intellectual property rights, including failure to use Trademarks in accordance with our guidelines, 3) your misrepresentation or fraud, particularly regarding statements, claims or warranties not authorized by us, and 4) any liability, including liability based on intent or gross negligence, which under applicable mandatory law may not be excluded or limited.
13. Ending the Agreement
Either of us may terminate the Agreement or any of its Attachments, with or without cause, on two weeks written notice, with refund reimburse If here are any writing active 180 Days or Immediate. If the termination is for cause, the termination will be effective only if the cause is not cured during the two week notice period.
You agree that if we permit you to perform certain activities after this Agreement ends, you will do so under the terms of this Agreement, or as we otherwise specify.
14. Geographic Scope
The rights, duties and obligations of each of us under the terms of this EMN PartnerWorld Agreement, are valid worldwide. The rights, duties and obligations of each of us under the terms of an Attachment are valid worldwide, unless specified otherwise in the Attachment.
Certain benefits will be provided by the International Business EMN Australia Pty Ltd and those benefits will be provided under the terms of this Agreement and any applicable Attachment. International Business Corporation, by providing the benefit, and you, by signing any applicable Attachment or by accepting the benefit, agree that this Agreement is between you and the International Business Corporation. This Agreement and any applicable Attachments will then be between you and International Business EMN Australia Pty Ltd and will be the complete understanding with respect to those benefits.
Other benefits will be provided by the EMN organization for a country or that organization's designee and those benefits also will be provided under the terms of this Agreement and any applicable Attachments. In such case, the EMN organization or that organization's designee, by providing the benefit, and you, by signing any applicable Attachment or by accepting the benefit, agrees that this Agreement is between you and the EMN organization for that country, or that organization's designee. EMN Australia Pty Ltd is then not a party to this Agreement. This Agreement and any Applicable Attachments will then be only between you and the EMN organization for that country, or that organization's designee and will be the complete understanding with respect to those benefits.
In addition, you may receive certain benefits and other products and services under a separate agreement between you and the EMN organization for that country or that organization's designee.
15. Governing Law
You are entering into this Agreement with International Business, EMN Australia Pty Ltd, a Delaware corporation. The laws of the State of New Delaware will govern, construe, and enforce all of the rights, duties, and obligations arising under, or relating in any manner to, the subject matter of this Agreement, notwithstanding any conflicts of law principles.
You agree that International Business EMN Australia Pty Ltd or any entity in its Enterprise may assign any rights or claims against you to any other entity in its Enterprise and/or authorize any entity in its Enterprise to bring any claims against you on its or their behalf. You agree to such assignments or authorizations. You further agree that when benefits are provided by an entity in that Enterprise other than International Business Corporation, or by that entity's designee, the laws and the jurisdiction of the courts of the country in which such entity or its designee is doing business will apply to govern, interpret and enforce rights, duties, and obligations of each of us arising from, or relating in any manner to, the subject matter of this Agreement, except that in:
1. Australia, the laws of the State or Territory in which the transaction is performed apply;
2. Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Hungary, Serbia, Poland, Montenegro, Romania, Slovakia, Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Republic of Macedonia, Moldavia, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan, the laws of Austria apply. All disputes arising out of this Agreement or related to its violation, termination, or nullity will be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Federal Economic Chamber in Vienna (Vienna Rules) by three arbitrators appointed in accordance with these rules. The arbitration will be held in Vienna, Austria, and the official language of the proceedings will be in English. The decision of the arbitrators will be final and binding on both parties;
3. Estonia, Latvia, and Lithuania, the laws of Finland apply;
4. Algeria, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Congo, Djibouti, Democratic Republic of Congo, Equatorial Guinea, France, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Mali, Mauritania, Morocco, Niger, Senegal, Togo, and Tunisia, this Agreement will be construed and the legal relations between the parties will be determined in accordance with the French laws and all disputes arising out of this Agreement or related to its violation or execution, including summary proceedings, will be settled exclusively by the Commercial Court of Paris;
5. Angola, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe, this Agreement will be governed by English Law and disputes relating to it will be submitted to the exclusive jurisdiction of the English courts;
6. Canada, the laws of the Province of Ontario apply;
7. Indonesia, the laws of Indonesia apply except that termination shall take effect without the requirement of a court pronouncement for purposes of which we both agree to waive the provisions of article 1266 Indonesian Civil Code, 2nd and 3rd paragraphs;
8. People's Republic of China, disputes arising out of this Agreement will be submitted to China International Economic and Trade Arbitration Commission for arbitration according to the then effective rules of the said Arbitration Commission. The arbitration shall take place in Beijing and be conducted in Chinese. The arbitration award will be final and binding on both parties. During the course of arbitration, this agreement shall continue to be performed except for the part which the parties are disputing and which is undergoing arbitration;
9. Argentina, jurisdiction will be in "the Ordinary Commercial Court of the city of Buenos Aires";
10. Bolivia, jurisdiction will be in "the courts of the city of La Paz";
11. Brazil, jurisdiction will be in "the court of Rio de Janeiro, RJ";
12. Chile, jurisdiction will be in "the Civil Courts of Justice of Santiago";
13. Ecuador, jurisdiction will be in "the civil judges of Quito for executory or summary proceedings (as applicable)";
14. Macau Special Administrative Region of China, the laws of Hong Kong Special Administrative Region of China apply;
15. Mexico, jurisdiction will be in "the courts located in Mexico City, Federal District";
16. Paraguay, jurisdiction will be in "the courts of the city of Asuncion";
17. Peru, jurisdiction will be in "the judges and tribunals of the judicial district of Lima, Cercado";
18. Uruguay, jurisdiction will be in "the courts of the city of Montevideo";
19. Venezuela, jurisdiction will be in "the courts of the metropolitan area of the city of Caracas";
20. the United States, Puerto Rico, Laos, Cambodia, and Vietnam, the laws of the State of New York apply; and
21. Laos, Cambodia, Indonesia, Philippines, Vietnam and India. Disputes arising out of or in connection with this Agreement will be finally settled by arbitration which will be held in Mumbai, India in accordance with Corporate Arbitration then in effect. The arbitration award will be final and binding for the parties without appeal and will be in writing and set forth the findings of fact and the conclusions of law. The number of arbitrators will be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties will appoint a third arbitrator who will act as chairman of the proceedings. Vacancies in the post of chairman will be filled by <Authorized Signatory>. Other vacancies will be filled by the respective nominating party. Proceedings will continue from the stage they were at when the vacancy occurred. If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator will be the sole arbitrator, provided that the arbitrator was validly and properly appointed. All proceedings will be conducted, including all documents presented in such proceedings, in the English language.
The English language version of this Agreement prevails over any other language version.
Laos, Cambodia, Indonesia and Philippines: Replace <Default > with: Singapore. Replace <Default Content > with: the Arbitration Rules of Singapore International Arbitration Center ("SIAC Rules"). Replace <Authorized Signatory> with: the president of the SIAC.
Vietnam: Replace <Default> with: the Socialist Republic of Vietnam. Replace <Default content > with: the Arbitration Rules of Vietnam International Arbitration Center ("VIAC Rules"). Replace <Authorized Signatory> with: the Chairman of VIAC.
India: Replace <Default> with: Bangalore, India. Replace <Default Content> with: the laws of India. Replace <Authorized Signatory> with: the president of the Bar Council of India.
The application of the above referenced laws is without regard to applicable conflict of laws principles.
The United Nations Convention on Contracts for the International Sale of Goods does not apply.
Agreement for Exchange of Confidential Information
Our mutual objective under this Agreement is to provide protection for confidential information (Information) while maintaining our ability to conduct our respective business activities. Each of us agrees that the following terms apply when one of us (Discloser) discloses Information to the other (Recipient).
Information will be disclosed either:
1) in writing only; Communications;
2) by delivery of items;
3) by initiation of access to Information, such as may be in a data base; or
4) by oral or visual presentation.
Information should be marked with a restrictive legend of the Discloser. If Information is not marked with such legend or is disclosed orally, the Information will be identified as confidential at the time of disclosure.
The Recipient agrees to:
1) use the same care and discretion to avoid disclosure, publication or dissemination of the Discloser’s Information as it uses with its own similar information that it does not wish to disclose, publish or disseminate; and
2) use the Discloser’s Information for the purpose for which it was disclosed or otherwise for the Benefit of the Discloser.
The Recipient may disclose Information to:
1) its employees who have a need to know, and employees of any legal entity that it controls, controls it, or with which it is under common control, who have a need to know. Control means to own or control, directly or indirectly, over 50% of voting shares; and
2) any other party with the Discloser’s prior written consent.
Before disclosure to any of the above parties, the Recipient will have a written agreement with the party sufficient to require that party to treat Information in accordance with this Agreement.
The Recipient may disclose Information to the extent required by law. However, the Recipient will give the
Discloser prompt notice to allow the Discloser a reasonable opportunity to obtain a protective order.
3. Confidentiality Period
Information disclosed under this Agreement will be subject to this Agreement for two years following the initial date of disclosure.
4. Exceptions to Obligations
The Recipient may disclose, publish, disseminate, and use Information that is:
1) already in its possession without obligation of confidentiality;
2) developed independently;
3) obtained from a source other than the Discloser without obligation of confidentiality;
4) publicly available when received, or subsequently becomes publicly available through no fault of the
5) disclosed by the Discloser to another without obligation of confidentiality.
The Recipient may use in its business activities the ideas, concepts and know-how contained in the Discloser’s Information which are retained in the memories of Recipient’s employees who have had access to the Information under this Agreement.
THE DISCLOSER PROVIDES INFORMATION WITHOUT WARRANTIES OF ANY KIND.
The Discloser will not be liable for any damages arising out of the use of Information disclosed under this
Neither this Agreement nor any disclosure of Information made under it grants the Recipient any right or license under any trademark, copyright or patent now or subsequently owned or controlled by the Discloser.
This Agreement does not require either of us to disclose or to receive Information.
Neither of us may assign, or otherwise transfer, its rights or delegate its duties or obligations under this
Agreement without prior written consent. Any attempt to do so is void.
The receipt of Information under this Agreement will not in any way limit the Recipient from:
1) providing to others products or services which may be competitive with products or services of the
2) providing products or services to others who compete with the Discloser; or
3) assigning its employees in any way it may choose.
The Recipient will 1) comply with all applicable export and import laws and regulations, including associated embargo and sanction regulations, and 2) unless authorized by applicable governmental license or regulation, not directly or indirectly export or re-export any technical information or software subject to this Agreement (including direct products of such technical information or software) to any prohibited destination or country (including release to nationals, wherever they may be located, of any prohibited country) as specified in such applicable export regulations. This paragraph will survive the termination or expiration of this Agreement and the confidentiality period above and will remain in effect until fulfilled.
Only a written agreement signed by both of us can modify this Agreement.
Either of us may terminate this Agreement by providing one month’s written notice to the other. Any terms of this Agreement which by their nature extend beyond its termination remain in effect until fulfilled, and apply to respective successors and assignees.
Both of us consent to the application of the laws of the State of New York to govern, interpret, and enforce all of your and our rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles.
This Agreement is the complete and exclusive agreement regarding our disclosures of Information, and replaces any prior oral or written communications between us regarding these disclosures. By signing below for our respective enterprises, each of us agrees to the terms of this Agreement. Once signed, any reproduction of this Agreement made by reliable means (for example, photocopy or facsimile) is considered an original.
Agreed To EMN Australia Pty Ltd
Scope of Work RFP
Electronic / Digital Signature
Address Global Digital Legal Documentations,
EMN - 6565 Americas Parkway,
NE Ste 200, ALBUQUERUE
NEW MEXICO- 87110, USA
AGREEMENT BETWEEN USER AND EMNCS®
The EMNCS® Web Site is comprised of various Web pages operated by EMNCS® .The EMNCS® Web Site is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Your use of the EMNCS® Web Site constitutes your agreement to all such terms, conditions, and notices.
reserves the right to change the terms, conditions, and notices under which the EMNCS® Web Site is offered, including but not limited to the charges associated with the use of the EMNCS® Web Site.
LINKS TO THIRD PARTY SITES
The EMNCS® Web Site may contain links to other Web Sites ("Linked Sites"). The Linked Sites are not under the control of EMNCS® and EMNCS® is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. EMNCS® is not responsible for webcasting or any other form of transmission received from any Linked Site. EMNCS® is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by EMNCS® of the site or any association with its operators.
NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the EMNCS® Web Site, you warrant to EMNCS® that you will not use the EMNCS® Web Site for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the EMNCS® Web Site in any manner which could damage, disable, overburden, or impair the EMNCS® Web Site or interfere with any other party's use and enjoyment of the EMNCS® Web Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the EMNCS® Web Sites.
USE OF COMMUNICATION SERVICES
The EMNCS® Web Site may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"), you agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:
§ Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
§ Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
§ Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents.
§ Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer.
§ Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages.
§ Conduct or forward surveys, contests, pyramid schemes or chain letters.
§ Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner.
§ Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
§ Restrict or inhibit any other user from using and enjoying the Communication Services.
§ Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
§ Harvest or otherwise collect information about others, including e-mail addresses, without their consent.
§ Violate any applicable laws or regulations.
EMNCS® has no obligation to monitor the Communication Services. However, EMNCS® reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. EMNCS® reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
EMNCS® reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in EMNCS® 's sole discretion.
Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. EMNCS® does not control or endorse the content, messages or information found in any Communication Service and, therefore, EMNCS® specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized EMNCS® spokespersons, and their views do not necessarily reflect those of EMNCS® .
Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you download the materials.
MATERIALS PROVIDED TO EMNCS® OR POSTED AT ANY EMNCS® WEB SITE
EMNCS® does not claim ownership of the materials you provide to EMNCS® (including feedback and suggestions) or post, upload, input or submit to any EMNCS® Web Site or its associated services (collectively "Submissions"). However, by posting, uploading, inputting, providing or submitting your Submission you are granting EMNCS® , its affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission.
No compensation will be paid with respect to the use of your Submission, as provided herein. EMNCS® is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in EMNCS® 's sole discretion.
By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE EMNCS® WEB SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. EMNCS® AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE EMNCS® WEB SITE AT ANY TIME. ADVICE RECEIVED VIA THE EMNCS® WEB SITE SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.
EMNCS® AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE EMNCS® WEB SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. EMNCS® AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
EMNCS® reserves the right, in its sole discretion, to terminate your access to the EMNCS® Web Site and the related services or any portion thereof at any time, without notice. GENERAL To the maximum extent permitted by law, this agreement is governed by the laws of the State of Washington, U.S.A. and you hereby consent to the exclusive jurisdiction and venue of courts in King County, Washington, U.S.A. in all disputes arising out of or relating to the use of the EMNCS® Web Site. Use of the EMNCS® Web Site is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and EMNCS® as a result of this agreement or use of the EMNCS® Web Site. EMNCS® 's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of EMNCS® 's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the EMNCS® Web Site or information provided to or gathered by EMNCS® with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and EMNCS® with respect to the EMNCS® Web Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and EMNCS® with respect to the EMNCS® Web Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent an d subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be drawn up in English.
COPYRIGHT AND TRADEMARK NOTICES:
All contents of the EMNCS® Web Site are: and/or its suppliers. All rights reserved.
The names of actual companies and products mentioned herein may be the trademarks of their respective owners. The example companies, organizations, products, people and events depicted herein are fictitious. No association with any real company, organization, product, person, or event is intended or should be inferred.
Any rights not expressly granted herein are reserved.
NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Service Provider's Designated Agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE. See Notice and Procedure for Making Claims of Copyright Infringement.
1. Defined terms and interpretation
1.1 Defined terms
In this Agreement: Between You, Represented as an Individual / Prompter/ Proprietor / Director /Representative of your employer / organisation & EMNCS
Authorised Officer means the Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Director of Sales or State Sales Manager of EMNCS.
Business Day means:
(a) for receiving a notice under clause 15, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
(b) for all other purposes, a day that is not a Saturday, Sunday, public holiday or bank holiday in Victoria, Australia.
Business Hours means from 10.00am to 4.00pm on a Business Day.
Confidential Information means the following information, regardless of its form and whether the Customer becomes aware of it before or after the date of
(a) all information and know-how relating to the Products; and
(b) all other information treated by EMNCS as confidential; except information:
(c) the Customer creates (whether alone or jointly with any third person) independently of this Agreement; or
(d) that is public knowledge (otherwise than as a result of a breach of confidentiality by the Customer or any of its permitted disclosees).
Credit Information File has the meaning given in the Privacy Law.
Credit Report has the meaning given in the Privacy Law.
Damages means all liabilities, losses, damages, costs and expenses (including all legal costs on a solicitor and own client basis) whether incurred or awarded against a person and disbursements and costs of investigation, litigation, settlement, judgment, interest, fines and penalties, arising out of a right under this Agreement or a cause of action in connection with the operation of this Agreement (including any indemnity), including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action.
Force Majeure Event means any event beyond the reasonable control of the non-performing party, and includes:(a) external telecommunications failures;
World Health Organisation or any governmental authority.
Incorporated Terms is defined in clause 3.1(d)(iv).
Intellectual Property Rights means all intellectual property rights at any time recognised by Law, including:
(a) patents, copyright, circuit layout rights, registered designs, trade marks, business names and moral rights; and
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a).
Interest Rate means the rate of 1% per month (calculated daily) (or, if this rate is not allowable at law, the then-current rate fixed under division 2 of the
Penalty Interest Rate Act 1983 (Vic)).
Law means any statute, ordinance, or code and includes regulations, codes and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them.
Master Agreement Term is defined in clause 2.
Module means a separate agreement entered into between the parties in accordance with this Master Agreement under which the Customer procures the Product(s) specified in that Module.
Personal Information has the meaning given in the Privacy Law.
Personnel in relation to a party means that party’s officers, employees, agents and contractors.
Privacy Law means the Privacy Act 1988 (Cth) and any determination or guideline issued under it, including the Credit Reporting Code of Conduct.
Products means the products and/or services to be provided by (or on behalf of) EMNCS to the Customer under each Module.
Taxes means all forms of taxes, duties, imposts, charges, withholdings, rates, levies or other governmental impositions of whatever nature and by whatever authority imposed, assessed or charged together with all costs, charges, interest, penalties, fines, expenses and other additional statutory charges, incidental or related to the imposition.
In this Agreement and each Module:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined work or expression has a corresponding meaning;
(c) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph or, or schedule or annexure to, this Agreement or the relevant Module, and a reference to this Agreement or a Module includes any schedule or annexure to it;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
(f) a reference to a person includes a natural person, partnership, body corporate, association, government or local authority or agency or other entity;
(g) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(h) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(i) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
(j) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
(k) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and
(l) headings are for ease of reference only and do not affect interpretation.
(a) commences on the date specified in the Contract Details; and
(b) continues until it is terminated in accordance with clause 14, (Master Agreement Term).
3.1 Formation of Modules
(a) It is the parties’ intent that, during the Master Agreement Term, they will contract with each other for the provision of EMNCS’s Products pursuant to one or more Modules. Once executed by both parties in accordance with this clause 3.1, a Module will constitute a separate agreement between the parties for the provision by EMNCS of the relevant Product(s).
(b) If the Customer wishes to obtain one or more Products from EMNCS, it must execute an application for those Product(s) by signing the Module Details section of the relevant Module. Execution by the Customer of the application constitutes an offer by the Customer to procure the relevant Product(s) from EMNCS.
(c) Only an Authorised Officer of EMNCS may accept the Customer’s application to procure the Product(s), by counter-signing the relevant section of the Module Details section.
(d) Only once EMNCS accepts the Customer’s application in accordance with paragraph (c) will a contract be formed between the parties for the provision of the Product(s). This contract will comprise:
(i) the Module Details;
(ii) any documents attached to or incorporated by reference into the Module Details;
(iii) the Module terms and conditions; and
(iv) clauses 1 to 16 of this Agreement (other than clause 2 and this clause 3) (Incorporated Terms),
(collectively, the Module).
3.2 Refund if no acceptance
If EMNCS does not accept the Customer’s application for products and services under a Module, it will notify the Customer and refund any money that may have been pre-paid by the Customer for the products and services that will not be supplied by EMNCS.
3.3 Order of precedence
If there is any inconsistency between the provisions of the documents that together comprise a Module, the provision of the earlier-mentioned document in clause 3.1(d) will prevail to the extent of that inconsistency.
3.4 Products to be provided under Modules (and not this Agreement)
No Products will be provided under this Agreement. All Products will be provided under one or more Modules.
4.1 Variations to the Master Agreement (including the Incorporated Terms)
(a) EMNCS may from time to time vary this Master Agreement (including the Incorporated Terms) as follows:
(i) if EMNCS considers that the variation is likely to benefit the Customer or have a neutral or minor detrimental impact on the Customer, EMNCS may notify the Customer of the variation which will come into effect on the date the variation was notified to the Customer;
(ii) if EMNCS considers that the variation is likely to have a material detrimental impact on the Customer, EMNCS will notify the Customer of the variation which will come into effect 10 days after the date on which the variation was notified to the Customer.
(b) If any of the Incorporated Terms are varied in accordance with paragraph (a) (or otherwise by agreement in writing between the parties), then the varied provisions will be automatically updated in each executed Module, and will be binding on the parties to that Module, on and from the date on which the variation to the Incorporated Terms took effect.
4.2 Variations to Modules
EMNCS may from time to time vary the Module (other than the Incorporated Terms, the variation of which is addressed under clause 4.1) as follows:
(a) if EMNCS considers that the variation is likely to benefit the Customer or have a neutral or minor detrimental impact on the Customer, EMNCS may notify the Customer of the variation which will take effect on the date the variation was notified to the Customer;
(b) if EMNCS considers that the variation is likely to have a material detrimental impact on the Customer, EMNCS will notify the Customer of the variation which will take effect 10 days after the date on which the variation was notified to the Customer.
4.3 Variation due to legal requirements
If the requirements of any Law render (or are likely to render) anything otherwise to be done under this Agreement contrary to that or any other Law, then the parties agree that they must each comply with such Law (to the extent applicable to each of them) including observing any terms and restrictions that may apply to the accessing and use of any Products.
5. Customer’s responsibilities
5.1 Information and materials
The Customer must provide all information and materials required to enable EMNCS to provide the Products and otherwise perform its obligations under this Agreement. EMNCS will not be liable for any Damages arising from:
(a) EMNCS’s reliance on;
(b) the Customer’s failure to provide or its delay in providing; or
(c) any inaccuracy, omission or other defect in,
any such information or materials. The Customer acknowledges that EMNCS will rely on such information and materials in order to provide the Products and perform its obligations under this Agreement, and any failure, delay or inaccuracy on the Customer’s part in providing (or omitting to provide) such information and materials may affect EMNCS’s ability to do so.
5.2 Customer’s Personnel
(a) must ensure that its Personnel provide all assistance that EMNCS reasonably requires to enable EMNCS to provide the Products and otherwise perform its obligations under this Agreement; and
(b) is responsible for ensuring that its Personnel have the appropriate skills and experience to do so.
If any of the Customer’s Personnel fail to perform as required, the Customer must ensure that, on request by EMNCS, additional or alternative Personnel with appropriate skills and experience are made available to EMNCS.
5.3 Compliance with directions and Laws
The Customer must:
(a) comply with any reasonable directions of EMNCS from time to time in relation to the use of the Products; and
(b) use the Products in good faith and at all times comply with this Agreement and all applicable Laws in all jurisdictions that relate to the
Customer’s access to and use of the Products.
5.4 Delays by the Customer
If the Customer causes a delay which in turn delays EMNCS from providing one or more Products or otherwise performing its obligations under this Agreement, then:
(a) the Customer must pay EMNCS all Damages reasonably incurred by EMNCS as a result of that delay; and
(b) EMNCS will not be liable for any breach of its obligations to the extent resulting from that delay.
6. Payment terms
6.1 Payment terms are set out in each Module
(a) All fees and charges for Products must be paid to EMNCS in accordance with requirements set out in the relevant Module(s).
(b) Unless specified in a Module:
(i) the Customer must pay each invoice issued by EMNCS under a Module no later than 30 days from the date of that invoice; and
(ii) all payments must be made by the Customer in Australian currency ($AUD).
6.2 Interest on late payments
EMNCS may charge interest on late payments at the Interest Rate from the date on which an invoice becomes overdue until payment is received in full by EMNCS.
7. GST and other Taxes
Words or expressions used in this clause 7 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
7.2 GST inclusive amounts
For the purposes of this Agreement, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under this Agreement, the amount or consideration will not be increased on account of any GST payable on that supply.
7.3 Consideration is GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as GST inclusive, does not include an amount on account of GST.
7.4 Gross up of consideration
Despite any other provision in this Agreement, if a party (Supplier) makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this Agreement as GST inclusive):
(a) the consideration payable or to be provided for that supply under this Agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
(b) the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
7.5 Reimbursements (net down)
If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
7.6 Tax invoices
The Supplier will provide a tax invoice.
7.7 Taxes generally
Subject to clauses 7.2 to 7.5, all fees and charges payable by the Customer under this Agreement are exclusive of all Taxes.
8. Intellectual Property Rights
(a) Except as otherwise expressly provided in a Module, all rights, title and interest (including all Intellectual Property Rights) in and to all materials, information, databases and software (including updates, upgrades and new versions) supplied or made available by EMNCS to the Customer under or in connection with this Agreement and each Module (whether provided in tangible or intangible form) remains vested in EMNCS (or its third party licensors). The Customer obtains only such rights as expressly granted to it pursuant to a Module (if any).
(b) The Customer further acknowledges and agrees that the Products are proprietary to EMNCS and comprise works of original authorship, including compiled information containing EMNCS’s selection, arrangement, coordination and expression of such information or pre-existing material it has gathered or assembled, confidential and trade secret information, and information that has been created, developed and maintained by EMNCS at considerable expense of time and money, such that misappropriation or unauthorised use by the Customer or others for commercial gain would unfairly (and may irreparably) harm EMNCS.
(c) The Customer must not commit (nor permit its Personnel to commit) any act or omission which would impair EMNCS’s Intellectual Property Rights in any Product.
(d) Nothing in this Agreement prevents or restrict EMNCS from developing and using any ideas, concepts, information, tools, methodologies or know-how relating to methods or processes of general application, including those in the fields of sales and marketing analysis, intelligence and solutions; credit reporting; identity verification; and debt management.
8.2 Trade marks
Without limiting clause 8.1, no right, title or interest (including any Intellectual Property Rights) in or to any trade mark, service mark, logo or trade name of EMNCS is granted to the Customer under this Agreement.
9. Confidential information and public announcements
9.1 Use and disclosure
(a) may use Confidential Information only for the purposes of this Agreement; and
(b) must keep confidential all Confidential Information except:
(i) for disclosure permitted under clause 9.2; and
(ii) to the extent (if any) the Customer is required by Law to disclose any Confidential Information.
9.2 Permitted disclosure
The Customer may disclose Confidential Information to persons who:
(a) have a need to know for the purposes of this Agreement (and only to the extent that each has a need to know); and
(b) before disclosure:
(i) in the case of the Customer’s officers and employees, have been directed by the Customer to keep confidential all Confidential Information; and
(ii) in the case of other persons approved in writing by EMNCS, have agreed in writing with the Customer to comply with substantially the same obligations in respect of Confidential Information as those imposed on the Customer under this Agreement,
(each a Direction).
The Customer must:
(a) ensure that each person to whom it discloses Confidential Information under clause 9.2 complies with its Direction; and
(b) notify EMNCS of, and take all steps to prevent or stop, a suspected or actual breach of a Direction.
9.4 Disclosure required by Law
If the Customer is required by Law to disclose any Confidential Information to a third person (including, but not limited to, government) the Customer must:
(a) before doing so:
(i) notify EMNCS; and
(ii) give EMNCS a reasonable opportunity to take any steps that EMNCS considers necessary to protect the confidentiality of that information; and
(b) notify the third person that the information is confidential information of EMNCS.
9.5 EMNCS not to be identified as a source of reference
The Customer must not identify EMNCS or EMNCS’s publications or information as a source of reference unless the Customer obtains EMNCS’s prior written consent to do so (which consent may be given or withheld by EMNCS in its absolute discretion).
(a) The Customer must:
(i) not conduct, authorise, vary or undertake any advertising, promotion or marketing campaigns of any type related to any Product without EMNCS’s prior written consent; and
(ii) provide EMNCS with copies of all proposed press releases, marketing materials and advertising (including website screen images) (Marketing Materials) relating to any Product should it wish to obtain EMNCS’s consent under paragraph (i).
(b) All Marketing Materials that contain or incorporate any Intellectual Property Rights of EMNCS or any third party supplier of information or materials must include a credit or acknowledgement in a form provided or approved by the relevant owner of such Intellectual Property Rights.
10. Data provision and protection
The Customer must:
(a) comply with the Privacy Law in respect of any Personal Information disclosed by the Customer to EMNCS or by EMNCS to the Customer;
(b) co-operate with EMNCS in:
(i) discharging EMNCS’s obligations under the Privacy Law when collecting Personal Information;
(ii) amending, correcting or updating Personal Information (including any Credit Information File or Credit Report);
(iii) providing access to Personal Information following a request from a person entitled to make that request; and
(c) immediately notify EMNCS if the Customer becomes aware of any breach of this clause 10.
10.2 Security and data protection
(a) The Customer:
(i) must maintain the secrecy and security of all identification and login information required for its use of the Products;
(ii) must not disclose to any other person any identification or login information, whether in use or not, relating to the use of the Products; and
(iii) must not, directly or indirectly, introduce or permit the introduction of, any virus, worm, trojan or other harmful or malicious code into any Product, or in any other manner whatsoever corrupt, degrade or disrupt any Product.
(b) The Customer must not (nor permit a third party to) submit any data or information to EMNCS’s Products or systems, or otherwise use any Product:
(i) to engage in any activity which breaches any Law, infringes a third party’s rights, or in a manner which interferes with the rights of any other person;
(ii) to infringe the Intellectual Property Rights (including trade marks and copyright) of EMNCS or any third party;
(iii) in any way that is defamatory, obscene, misleading or deceptive or otherwise illegal;
(iv) in any way that constitutes misuse, or resale or other commercial use, of the Product, its constituent information or data, or any associated materials.
(c) Without limiting paragraph (b), the Customer must not use any Product for any purpose other than as described under this Agreement.
If the Customer suppies information (including Personal Information) to EMNCS under or in relation to this Agreement, the Customer:
(a) warrants that, to the best of its knowledge, the information is accurate, up-to-date and complete; and
(b) undertakes that, where it becomes aware that it has provided EMNCS with incorrect, out-of-date or incomplete information, it will promptly provide EMNCS with all relevant information required to correct, update or complete that information.
The Customer indemnifies, and will hold harmless, EMNCS and its officers, employees, shareholders, agents and contractors (those indemnified) from and against any and all Damages that those indemnified may sustain or incur (whether directly or indirectly) arising from or in connection with:
(a) any breach by the Customer of this Agreement;
(b) any negligent, unlawful or wilful act or omission of the Customer (or its Personnel) in connection with this Agreement or any Product;
(c) the use or misuse by the Customer or its Personnel of, or the Customer’s or any of its Personnel’s reliance on, any Product (including any information obtained or derived through any Product); or
(d) any decision made by the Customer or any of its Personnel using, or in reliance on, any Product (or any information obtained or derived through any Product).
12. Disclaimers and exclusions
12.1 Acknowledgments and disclaimer
The Customer acknowledges and agrees that:
(a) the information provided to it by EMNCS through or in connection with a Product may, in whole or in part, represent or be based on information provided to EMNCS from third parties, public registers or publically available information sources;
(b) information delivered to a Customer may not be all the information EMNCS holds on the relevant individual or organisation;
(c) subject to clause 12.4, EMNCS does not and cannot guarantee or warrant:
(i) the correctness, completeness, merchantability or fitness for a particular purpose of any Product or any information obtained or derived through or in connection with a Product;
(ii) that any Product (including any software Product) will be error free or will operate without interruption or disruption;
(iii) the compatibility of any software Product with any equipment or software not supplied by EMNCS or certified in writing by EMNCS to operate with that software; or
(iv) any hardware or third party products;
(d) every business decision, to some degree, represents an assumption of risk, and EMNCS, in providing information through or in connection with a Product, does not and cannot underwrite or assume the Customer’s risk in any manner whatsoever;
(e) EMNCS is not in any way providing advice to the Customer in respect of its obligations under, or its compliance (or otherwise) with, any Law, and EMNCS disclaims all responsibility for any use by the Customer of a Product in assisting the Customer to comply with any Law; and
(f) the Customer assumes all risk in connection with its use of, or reliance on, any Product (including any information obtained or derived through any Product).
12.2 Exclusion of liability
Subject to clauses 12.3 and 12.4, and otherwise to the maximum extent permitted by Law, EMNCS excludes all liability to the Customer for Damages of any kind (whether direct, indirect, consequential, economic, special or otherwise) that may be suffered or incurred by the Customer arising under or in connection with this Agreement or the provision by EMNCS of any Product, including:
(a) loss of profits, revenue or goodwill;
(b) loss of anticipated savings or benefits;
(c) loss of customers or business opportunity;
(d) loss of or damage to reputation;
(e) loss of data or access to data;
(f) loss under any other contract, and (without limitation) whether any such Damages may have arisen out of or in connection with:
(g) the use or misuse by the Customer or its Personnel of, or the Customer’s or any of its Personnel’s reliance on, any Product (including any information obtained or derived through or in connection with any Product);
(h) any decision made by the Customer or any of its Personnel using any Product (or using the information obtained or derived through or in connection with any Product); or
(i) any third party services or solutions (including marketplace or auction services) which may be accessed by the Customer via EMNCS’s online services or a Product.
This exclusion of liability applies whether the relevant claim is made under statute, in tort (for negligence or otherwise), in equity or otherwise.
12.3 No exclusion or limitation where contrary to Law
(a) This clause 12 does not exclude or limit the application of any provision of any Law (including the Competition and Consumer Act 2010 (Cth)) where to do so would:
(i) contravene that Law; or
(ii) cause any part of this clause to be void.
(b) To the extent that the exclusion of Damages by EMNCS under clause 12.2 is found by a court of competent jurisdiction to contravene a Law or otherwise be void, EMNCS’s total aggregate liability (including its liability for negligence) to the Customer under or in connection with this Agreement or the provision of any Product is limited to $10,000.
12.4 Exclusion of implied conditions and warranties
(a) To the maximum extent permitted by Law, EMNCS excludes all implied conditions and warranties except any implied condition or warranty the exclusion of which would contravene any statute or cause any part of this clause to be void (Non-Excludable Condition).
(b) EMNCS’s liability to the Customer for breach of any Non-Excludable Condition (other than an implied warranty of title) is limited, at EMNCS’s option, to refunding the price of the goods or services in respect of which the breach occurred or to providing, replacing or repairing those goods or providing those services again.
13. Force Majeure Events
If a party is wholly or partially unable to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event, then:
(a) as soon as reasonably practicable after the Force Majeure Event arises, that party must notify the other party of the extent to which the notifying party is unable to perform its obligations; and
(b) that party’s obligation to perform those obligations will be suspended for the duration of the delay arising due to the Force Majeure Event.
14.1 Termination for cause
EMNCS may terminate this Agreement with immediate effect by giving notice to the Customer if:
(a) the Customer fails to pay any amounts due and payable under this Agreement;
(b) the Customer:
(i) breaches clause 9; or
(ii) infringes EMNCS’s Intellectual Property Rights provided or made available to the Customer under this Agreement (including by breaching the terms of any licence granted to it under this Agreement);
(c) the Customer breaches:
(i) any provision of this Agreement and that breach is not capable of remedy; or
(ii) any provision of this Agreement which is capable of remedy but fails to remedy that breach within 7 days after receiving notice from EMNCS requiring it to do so; or
(d) an event referred to in clause 14.3 happens to the Customer.
14.2 Termination of Module by Customer as a result of a variation by EMNCS
If EMNCS notifies the Customer of a variation to this Module pursuant to clauses 4.1(a)(ii) or 4.2(b) (Notice of Variation), the Customer may terminate this Module by notice to EMNCS, provided that the Customer’s notice of termination is given within 10 days of the date on which EMNCS gives the Notice of Variation. Such termination will be considered a termination for convenience (and not for cause).
14.3 Notification of events
The Customer must notify EMNCS immediately if:
(a) there is any change in the direct or indirect beneficial ownership or control of the Customer;
(b) (where the Customer is a partnership) any step is taken to dissolve the partnership;
(c) the Customer disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
(d) the Customer stops carrying on business;
(e) the Customer cannot pay its debts as they become due;
(f) a mortgagee takes a step to take possession or dispose of the whole or any part of the Customer’s assets, operations or business;
(g) a step is taken to enter into an arrangement between the Customer and its creditors; or
(h) an step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of the Customer’s assets or business.
14.4 Accrued rights and remedies
Termination of this Agreement does not affect any accrued rights or remedies of either party.
15. Notices and other communications
15.1 Service of notices
A notice, demand, consent, approval or communication under this Agreement (Notice) must be:
(a) in writing, in English and signed by a person duly authorised by the sender; and
(b) hand delivered or sent by prepaid post or facsimile to the recipient’s address for Notices specified in the Details, as varied by any Notice given by the recipient to the sender.
15.2 Effective on receipt
A Notice given in accordance with clause 15.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia);
(c) if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the entire Notice unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire Notice, but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
Subject to clause 4, this Agreement may be altered only in writing signed by each party.
The Customer may not assign its rights, interests or obligations under this Agreement to any person without EMNCS’s prior written consent.
Each party must pay its own costs of negotiating, preparing and executing this Agreement.
Any indemnity or any obligation of confidence under this Agreement is independent and survives termination of the agreement. Any other term by its nature intended to survive termination of this Agreement survives termination, including clauses 6, 7, 8, 9, 10, 11 and 12.
This Agreement may be executed in counterparts. All executed counterparts constitute one document.
16.6 No merger
The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.
16.7 Further action
Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this Agreement and any transaction contemplated by it.
A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the terms of this Agreement continue in force.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
16.11 Governing law and jurisdiction
This Agreement is governed by the laws of Victoria and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria.
16.12 Entire agreement
(a) This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
(b) To avoid inconsistent provisions applying, no purchase order, confirmation or other document issued by or on behalf of the Customer will vary this Agreement.
1. DURATION AND TERMINATION OF THE PARTNER APPLICANT / REGISTERED PARTNER
10.1 Dissolving events
(a) The Partner Applicant / Registered Partner continues until it is dissolved.
10.2 Extension of the term of the Partner Applicant / Registered Partner
10.3 Winding up of the Partner Applicant / Registered Partner