Newcastle Weighing Services PTY Limited - Terms & Conditions of Trade

QA Reference: PL16

These NWS terms and conditions of trade (“Agreement”) is entered into as of the Effective Date by and between “NWS” and “Client” (each is a “Party”, together they are the “Parties”) for the delivery of Weighing Solutions to the Client.

1. DEFINITIONS

“Application” means the computer application developed through the use of the Software or any third-party Software tools integrated and managed by the Software.

“Confidential Information" refers to non-public information that either Party may obtain from the other or have access to by virtue of this Agreement, including, but not limited to, each Party’s data and each Party’s proprietary Software and computer operations, all code, inventions, algorithms, business concepts, workflow, marketing, financial, business and technical information, the terms and pricing under this Agreement, authentication credentials associated with the use of the Software and the Implementation services, Personal Data and all information either clearly identified as confidential or that is of a nature that a reasonable person would understand to be confidential.

“Client Service Charter” means the Client Service Charter detailing maintenance and support services service level commitment and platform uptimes provided to the Client provided in Schedule B

“Committed Service Level” are part of the support services and has the meaning set out in clause 2.2 and Schedule B.

“Content” means software (including machine images), applications, online services, features, technology, data, text, audio, video, images or other content.

“Client” means the Party executing this Agreement as Client.

“Deliverables” means all design, engineering, calibration, product, documentation other materials and deliverables (whether in documentary, electronic or other form) produced or to be produced by, or on behalf of, NWS for the Client as part of the Implementation services pursuant the execution of an Order.

“Effective Date” means the date on which NWS and Client have signed the Order (or the date of the last signature by any Party).

“Fees” means the amount to be paid for product, Subscription and/or the Implementation services as detailed in the applicable Order.

“Implementation services” means the design, drawing, engineering, supply, installation, calibration, advices, development, implementation or customisation provided by NWS to the Client on a time and materials or fixed price basis as detailed and as specified on the applicable Order. Implementation services do not include the provision of the Support and Updates services included in a Subscription or licence.

“Intellectual Property” means any patents, patent rights, design rights, copyrights, database rights, trade secrets, know-how, trademarks, trade names, service marks and other intellectual property embodied therein and all applications and rights to apply for registration or protection rights pertaining thereto, in existence at the date hereof or created in the future. Rights regarding Intellectual Property shall be referred to as “Intellectual Property Rights”.

“New Application Release” means a major application release whose primary purpose is to add new functionality or to enhance the performance of the Software, which is identified by an increment in the first number before the dot separator of the Software version. Notwithstanding the foregoing, a New Application release will not include new software or modules (whether or not branded as NWS software) that NWS may market and price separately.

“NWS” means Newcastle Weighing Services Pty Limited ACN 001 344 430 and its successors and assigns and includes NUWEIGH Australia.

"Order" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between Client and NWS from time to time. Orders are in accordance with Schedule A or any other stand-alone order which is subject to these NWS terms and conditions unless otherwise specified and agreed in the order or Statement of Works.

“Personal Data” has the meaning as described in the applicable data protection laws and shall include, without limitation, any data or information (regardless of the medium in which it is contained and whether alone or in combination) that relates to an identified or identifiable natural person.

“Product” means any scales and weighing equipment hardware and related products supplied by NWS under this agreement. 

“Software” means the NWS software, including its updates, upgrades, platform as a service, documentation. 

“Subscription” means the joint provision of Software licenses, application hosting (where applicable), Maintenance and Support and Updates services as detailed in the applicable Order. 

“Subscription Term” refers to the period of time for which Client has acquired the Subscription from NWS, as defined in the applicable Order.

“Support and Updates” means any Software support and updates services provided by NWS. 

“Weighing Solutions” means Products, Deliverables, implementation Services, Software and/or Subscriptions services provided by NWS under these terms and conditions of trade Agreement. 

2. PRODUCT AND SUBSCRIPTION

2.1 Product. Pursuant to an Order from the Client NWS will supply Products, Deliverables and as required Implementation Services as part of the delivery of Weighing Solutions to the Client. During the Term of the agreement the Client may order further Product subject to these Terms. 

2.2 Subscription. Pursuant to the execution of an Order, NWS will provide the Subscription to Client. Client may order multiple Subscriptions by executing additional Orders. NWS will supply the Service to a standard which meets or exceeds the Committed Service Level. Some items as listed in Schedule B are excluded items

2.3 Subscription Term. Subscription ordered by Client commence on the start date defined in the applicable Order and shall continue in effect for the Subscription Term specified therein. Except as otherwise specified in the applicable Order, all Subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term unless either Party gives the other notice of non-renewal at least 30 (thirty) days before the end of the relevant Subscription Term.

2.4 Upgrades. If a New Application Release is released during Subscription Term, and Client has paid the fees, the New Application Release will be made available by NWS to the Client.

3. LICENSE AND USE

3.1 License. Subject to the terms of this Agreement and the limitations set forth in the applicable Order during the Subscription Term, NWS hereby grants Client a limited, non-exclusive, non-transferable license, without rights to sublicense, to use the Software during the Subscription Term, exclusively for (i) internal business purposes and (ii)  If Client has ordered a copy of the Software for download and installation on-premises as part of a Subscription, NWS also grants Client (iii) the right to install the Software in its own servers, during the Subscription Term, and (iv) the right to make one (1) copy of the Software solely for back-up purposes. NWS further grants Client the right to make copies of the documentation solely for Client’s internal business purposes. NWS retains all rights not expressly granted to Client in this Agreement. 

The use of the Subscription or Software must be in accordance with the NWS End User Licence Agreement (EULA) 

3.2 Usage Limits. The Software licensed under a Subscription is subject to usage limits, including the quantities specified in the respective Order under schedule A.

3.3 Restrictions of Use. Unless otherwise authorised under this Agreement, Client may not (and will not allow any third party to): (i) sell, rent, lease, license, sublicense, distribute, pledge, assign or otherwise transfer in whole or in part the Software or the Implementation services or any interest in them to another party; (ii) provide, disclose, divulge or make available to, or permit use of the Subscription in whole or in part by any third party without NWS’s prior written consent; (iii) sell, rent, lease, license, sublicense, offer as a paid or free subscription, distribute, pledge, assign or otherwise transfer in whole or in part the Applications built with the Software, when such Applications will be used by a single third party; (iv) install or use the Software in a manner that circumvents or interferes with the operation of the technological measure that controls the access to the Software (v) modify, translate, adapt or create derivative works based on the Software; (vi) export or re-export the Software or any derivative work thereof; (vii) remove or modify any Software markings or any notice of NWS’ proprietary rights; (viii) use the Software to develop, test, host, or run and operate applications on behalf of third-parties to this Agreement, without NWS’s prior written consent; (ix) use the Software to provide third party training; (x)  use the Software in any way that is contrary to the terms and conditions of this Agreement; or (xi) use the Application and Software for any unlawful purposes. Except to the extent expressly permitted by this Agreement or applicable law, and to the extent that NWS is not permitted by that applicable law to exclude or limit the following rights, Client may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part. the use of the Application or Software by any party is bound by the terms of the NWS End User Licence Agreement (EULA)

3.4 Use in conjunction with Client Equipment. NWS take no responsibility for the condition of any existing machinery, plant or equipment which may be used in conjunction with the Product, Implementation services, Application or Software provided by NWS and any effect that such machinery, plant or equipment may have on the Product, Application or Software provided by NWS. 

3.5 Instrument certification. All NWS scales delivered or serviced are not suitable for Legal Trade Use unless they are accompanied with Form 6 “Certificate of Verification Form” and the scale or weighing equipment bears a verification Legal Mark and Seal on the instrument. 

NWS take no responsibility or liability for any loss sustained by the Client if the scale is used without the Form 6 “Certificate of Verification Form” and a Legal Mark and Seal. 

If the Client have requested scales to be calibrated NWS will issue a calibration report on completion of the service. NWS does not guarantee the accuracy of any scales outside the tested weight range specified on the calibration report which accompanies the scales or otherwise issued to the Client.

3.6 Client’s Content and Applications. As necessary for NWS (i) to provide Client with the Support and Updates; and (ii) to operate, manage and improve the Subscription or Software, Client hereby grants to NWS the right and a license to host, copy, transmit and display Client’s Content and Applications in accordance with this Agreement and limited to such purposes only.

3.7 Data Storage. NWS will not store backups of data of Any Client for any period longer than 12 weeks. At the end of an agreement NWS can facilitate the handover of any client data held on a fee for service basis.   

4. DELIVERY AND IMPLIMENTATION SERVICES

Upon request and execution of an Order, NWS shall provide Delivery and/or Implementation services to Client as follows: 

4.1 Expenses. In addition to any and all fees in the applicable Order, Client will reimburse NWS for all reasonable costs and expenses related to the provision of the Delivery and/or Implementation services, including travel, lodging and per diem fees (“Expenses”) incurred by NWS in connection with the Delivery and/or performance of the Implementation services. Expenses shall be invoiced by NWS as stated in the Order and paid by Client in accordance with the terms of the Agreement.

4.2 Changes. Any changes or additions to the Delivery and/or Implementation services, including scope, Fees and/or Expenses will only be valid if agreed in writing and executed by both Parties.

4.3 Delivery of NWS Product

Delivery of the Weighing Solutions by NWS shall be made to the address nominated by the Client if specified in the NWS quote. The Client will make all arrangements necessary to take delivery of the Weighing Solutions when they are tendered for delivery. The failure by NWS to deliver shall not entitle the client to treat this contract as repudiated.

Any delivery times quoted by NWS for delivery and/or supply are estimates only and NWS shall not be liable for delay in delivery or supply. The Client will not be relieved of their obligation to accept and pay for Weighing Solutions by reason of any delay in delivery/supply or dispatch. 

The Client are deemed to accept delivery of the goods when they are delivered to the Client premises or when the Client is notified NWS that the goods are available for collection.  

4.4 Client Premises Preparation. the Client will at their own expense and in accordance with NWS reasonable directions prepare the premises so that NWS may deliver the Weighing Solutions.  This preparation shall include but be not limited to: (i)The procurement of all necessary labour, lifting gear, supporting steel work, electricity and other facilities required for the Weighing Solutions; (ii)The provision of all fixed runs of electrical wiring connecting the Weighing Solutions to mains power; (iii)The repair, reconditioning and reconfiguration of any existing machinery, plant or equipment which may be used in conjunction with the Weighing Solutions or that to be supplied by a third party; and (iv) The obtaining of all necessary permits and licences required by all relevant authorities, agencies and any local, state or Commonwealth Government departments or bodies.

NWS take no responsibility for the condition of any existing machinery, plant or equipment which may be used in conjunction with the Weighing Solutions ordered by the Client and any effect that such machinery, plant or equipment may have on the Weighing Solutions. NWS do not warrant the accuracy of any scales outside the range specified on the calibration report which accompanies the scales or otherwise issued to the Client.

4.5 Cooperation. Client will cooperate reasonably and in good faith with NWS in the execution of the Implementation services by, without limitation: (i) allocating sufficient resources and timely performing any tasks reasonably necessary to enable NWS to perform its obligations under each Order; (ii) timely delivering any materials and other obligations specifically required under each Order; (iii) timely responding to NWS’ reasonable inquiries related to the Implementation services; (iv) actively participating in relevant scheduled meetings; (v) providing information, data and feedback that is complete, accurate and timely in all material respects.

4.6 Acceptance Criteria. Upon completion of each Deliverable or the conclusion of a milestone in any Implementation Services, NWS will: (i) submit a complete copy of the Deliverable to Client; and (ii) demonstrate and test its functionality in accordance with the applicable Order. If agreed in the applicable Order for Implementation Services, the Deliverables may be subject to acceptance tests to be defined and executed by Client to verify that they satisfy the agreed specifications set forth in the applicable Order as mutually agreed upon by the Parties for such Deliverable. Upon delivery of a Deliverable, in the absence of any notice from Client within the time agreed in the applicable Order, the Deliverable shall be deemed accepted.

4.7 Provision of Implementation services to Third Parties. NWS is in the business of providing products and consulting services to third parties which are or may be substantially similar to the Deliverables being developed for Client. NWS is free to use all of NWS’ ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, and processes, irrespective of whether possessed by NWS prior to this Agreement, or acquired, developed, or refined by NWS during the execution of the same (“Residual Knowledge”). It is not the intent of this Agreement to prevent NWS from pursuing its stated business by independently creating such original but similar works for the benefit of third parties provided that NWS does not use or disclose Confidential Information, Client’s Content or Personal Data. Such retention of Residual Knowledge shall be unaided and unintentional.

5. FEES AND PAYMENT TERMS AND RETURNS 

5.1 Fees. Client will pay to NWS, without deduction, the fees set forth in the applicable Order. Fees listed in an Order are exclusive of GST. Client will pay or reimburse NWS for all applicable taxes, duties in addition to its stated fees and shall be shown separately on the relevant invoice.  The Client are obliged to pay NWS for Products ordered on the due date notwithstanding that delivery is made after the agreed delivery date. NWS may at any time take a security interest in any NWS Products and Deliverables including but not limited PPS for which the Client will do all things reasonable and necessary to allow NWS to register a security interest. Any Security interest will be withdrawn on full payment to NWS. 

5.2 Payment. All fees herein are payable to NWS, and due within the term in the applicable Order. Except as otherwise stated in this Agreement, all Orders are non-cancellable and, upon payment, all payments are non-refundable.

5.3 Overdue Payments. Undisputed overdue payments shall bear interest at the lesser of 1% per month or the maximum rate allowed under applicable law. Client acknowledges and accepts that the non-payment of any undisputed fees within the term defined in the applicable Order constitutes a material breach of this Agreement and that NWS shall have the right to: (i) upon 30 (thirty) days prior written notice, suspend Client’s right to access or use any portion or all of the Weighing Solutions until all such due and undisputed amounts and respective interests have been paid; and/or (ii) exercise its right to terminate the Agreement under Section 8 (“Term and Termination”); and/or (iii) clam the reasonable costs associated with the collection including legal costs and/or (iv) cancellation of orders yet to be performed. 

5.4 Title and Risk in Weighing Solutions. Risk passes at the delivery of Product and title passes on full payment. We reserve the right to take a security interest in any Product delivered until full payment is received.  The risk of damage, loss of deterioration of any Products ordered by Client will pass to the Client upon the earlier of dispatch or the expiry of fourteen (14) days from the date we notify the Client that the Products are available for collection.

It is further agreed that: (i) Until such time as ownership of the Products and Deliverables shall pass from NWS to the Client, NWS may give notice in writing to the Client to return the Products and Deliverables to us.  Upon such notice the rights of the Client to obtain ownership or any other interest in the Products and Deliverables shall cease. (ii) If the Client fail to return the Products and Deliverables to us then NWS or our agent may enter upon any land and premises owned, occupied or used by the Client, where the Products and Deliverables are situated and take possession of the Products and Deliverables, without being responsible for any damage thereby caused.

5.5 Returns. Any sample of Product inspected by the Client is inspected to enable you to ascertain the quality of the Product and does not constitute a sale by sample under contract.  the Client take the Product at their own risks as to those Product corresponding with the sample or as to their quality and fitness for any purpose.

the Client shall not return any Product to NWS without obtaining our prior authorisation.  the Client must pay the freight charges in connection with the returns unless the client is authorised to return them through our approved carrier.  All Product must be returned in the original packaging and the Client are responsible for all damage incurred during freight.  the Client are not at liberty to deduct any anticipated credit from any payment due to NWS.

No cancellations or partial cancellation of Implementation services or product shall be accepted by NWS unless NWS first consent in writing and unless the cancellations charges assessed by NWS have been paid.  Cancellation will not be accepted on product that are not regular stock which are in the process of manufacture or ready for shipment.

All complaints, claims or notification of lost product, incomplete or damaged products or incorrect products must be submitted by the Client to NWS in writing within seven (7) business days of the date of the invoice for the supply of the products.  Otherwise, the Client shall be deemed to have accepted the products and the Client must pay for them in accordance with the payment terms.

5.6 Credit. NWS may, without consent at their absolute discretion and without any liability for breach of privacy, use Client information to verify the credit worthiness of any Client. NWS may amend any payment terms to reflect any risk. 

6. INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP AND TITLE

6.1 NWS Intellectual Property. Client acknowledges and agrees that all Intellectual Property Rights in the Deliverables including the product design, drawings and engineering, Applications, Software and Implementation services are owned by NWS and shall, notwithstanding the terms of this Agreement, remain vested in NWS. Unless otherwise expressly provided in this Agreement, Client shall not acquire any proprietary right, title or interest in or to any Intellectual Property Rights in the Deliverables, Applications, Software or Hardware. All rights not expressly granted by NWS herein are reserved.

7. CONFIDENTIALITY

7.1 Use and Disclosure. During this Agreement and for a period of 3 (three) years following its termination, each Party shall hold in confidence and not use for any purposes unrelated to this Agreement or disclose to any third party (except the Party’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party. Each Party agrees to take all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by its employees, contractors, or agents in violation of the terms of this Agreement.

7.2 Permitted Disclosures. Either Party may disclose Confidential Information of the other Party either: (i)in response to a valid order by a court or other governmental or regulatory body, or (ii) as otherwise required by law, or (iii) as necessary to establish the rights of either Party under this Agreement. Disclosing Party will promptly give notice to the receiving Party of such compelled disclosure and allows receiving Party to object or to seek a protective order, to the extent legally permitted.

7.3 Non-Confidential Information. The Parties shall not be obligated under this Section 7 (“Confidentiality”) with respect to Confidential Information that: (i) is or becomes a part of the public domain through no act or omission of the receiving Party; (ii) was in the receiving Party’s lawful possession without restriction prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the receiving Party by a third party without restriction on the disclosure; or (iv) is independently developed by the receiving Party without access to the Confidential Information.

7.4 Destruction or Return. Except as otherwise authorised or required in furtherance of the purposes of this Agreement, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify it in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that the receiving Party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, rule, regulation or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this Agreement.

8. TERM AND TERMINATION

8.1 Term of Agreement. Unless earlier terminated pursuant to Sections 8.2 (“Termination for Cause”) or 8.3 (“Termination for Insolvency”), this Agreement commences on the Effective Date and continues in force until all Orders executed in accordance with this Agreement have expired or been terminated.

8.2 Termination for Cause. Either Party will have the right to terminate this Agreement immediately upon written notice at any time if the other Party is in material breach of any warranty, term, condition or covenant of this Agreement and fails to cure that breach within 30 (thirty) days after written notice of that breach.

8.3 Termination for Insolvency. Either Party may terminate the Agreement immediately if the other Party becomes insolvent and the entity licensed and authorised by the applicable law to act in relation to such insolvent Party does not personally guarantee the future payment of any due Fees.

8.4 Termination Without Cause. NWS may terminate this agreement or cancel delivery of any Order at any time before they are supplied provided NWS give the client 30 days written notice.  NWS shall not be liable for any loss or damage howsoever arising from these actions.

8.5 Effect of Termination. (i) Access. Upon termination, any licence or Subscription shall be automatically cancelled, and Client shall no longer have access to the Software, or to the Application. (ii)  Fees. If NWS terminates this Agreement pursuant to Sections 8.2  (“Termination for Cause”) or 8.3 (“Termination for Insolvency”), NWS shall invoice Client all amounts that have accrued for the terminated items prior to such termination, which were not previously invoiced, as well as all sums remaining unpaid under this Agreement. Client will pay such invoices in accordance with the terms of this Agreement. In no event will termination relieve Client of the obligation to pay any Fees due to NWS under this Agreement. 

9. WARRANTIES

9.1 NWS Warranties. NWS represents and warrants that (i) NWS has all necessary rights supply the Weighing Solutions herein; (ii)upon delivery, the Weighing Solution shall operate in compliance with the documentation; (iii Any Implementation services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. 

In the event of a breach of the foregoing warranties, NWS shall, as its sole obligation and entire liability and Client’s exclusive remedy, at NWS’ sole option and expense, either (i) re-perform the applicable Implementation services in a manner that is compliant with such warranty, or (ii) in the event NWS is unable to do so after using commercially reasonable efforts, terminate all or part of the applicable Order and upon such termination, NWS shall promptly refund Client all Fees paid for the non-compliant Implementation services. Claims under the foregoing warranty must be submitted by Client in writing within 30 days of the performance of such Implementation services in order to be considered.

9.2 DISCLAIMER OF WARRANTIES. NWS does not warrant that the application, software, support, Implementation services or deliverables will be uninterrupted, error free or completely secure. Clients Acknowledge that there are risks inherent in internet connectivity that could result in a loss of Client privacy, information and or content. Except as set forth in section 9.1 NWS Warranties and to the extent permitted by law NWS provides Applications, Software, Implementation services and Deliverables ‘as is’ and without warranty of any kind including but not limited to express or implied or statutory or other warranties or conditions including conditions of merchantability, quality, fitness for a particular purpose and those arising out of course of dealing, usage, or trade. Client shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness and ownership of all Client content and applications. NWS will bear no responsibility for data storage beyond the time stipulated in any quote. 

10. LIMITATION OF LIABILITY

10.1 PARTIES LIMITATION OF LIABILITY. To the maximum extent permitted by law and except with respect to claims regarding violation of NWS Intellectual property rights by Clients in no event shall either party be liable to the other for any loss of use, lost data, business interruption, or any incidental, indirect or consequential loss arising from this agreement 

10.2 NWS LIMITATION OF LIABILITY. NWS will not be liable for: (i) Clients inability to use the Weighing Solution including as a result of any (i.a)Termination or, (i.b) Any unanticipated or unscheduled downtime as a result of power outages, system failure and or other interruptions; or (ii) The cost of procurement of substitute Weighing Solutions; or (iii) Any investments, expenditures, or commitments by Clients in connection with this agreement; or (iv) Any unauthorised access to, alteration of, or deletion, destruction, damage, loss of the Weighing Solution due to Client negligence and or misconduct; or (v) Any incidental, indirect or consequential damage which may arise out of any third party.

10.3 NWS TOTAL AGGREGATE LIABILITY. Notwithstanding any other provision in this agreement NWS’s total aggregate liability under this agreement for any claim of any type whatsoever shall be limited to a proven direct damage caused by NWS negligence in an amount not exceeding the amount paid by the Client to NWS in the order a claim relates to.  

11. GENERAL PROVISIONS

11.1 Entire Agreement. This Agreement, including all Addendums (if any) and Orders, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to, supplement or modification of this Agreement will be binding unless in writing and signed by duly authorised representatives of both Parties. In the case of conflicts, discrepancies, errors or omissions among the Agreement/Addendum and the Order, the documents and amendments to them shall take precedence and govern in the following order: (a) Order; (b) Agreement; and (c) Addendum (if any). The Client acknowledges and agrees that it has had the opportunity to review all the documents contained in a URL prior to executing this Agreement, which it can print for its internal records.

11.2 Headings. The caption and the headings to clauses, Sections, parts, paragraphs, and Orders are inserted for convenience only and shall be ignored in interpreting this Agreement.

11.3 Governing law and jurisdiction. The agreement is governed by the laws of New South Wales and each party irrevocably submits to the non-exclusive jurisdiction of the Courts of New South Wales. 

11.4 Compliance with Laws. Client agrees that Client’s use of the NWS supplied Weighing solutions will comply with all applicable laws, including without limitation all applicable calibrations laws and regulations, the Privacy Act, anti-corruption laws, data protection and data privacy laws. NWS shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.

11.5 Notices. Any notice, consent, approval, or other communication intended to have legal effect to be given under this Agreement (“Notices”) must be in writing and will be delivered (as elected by the Party giving such notice): (i) by email to [email protected] or (ii) by registered mail.  Unless otherwise provided herein, all Notices will be deemed effective on the date of receipt. Notices hereunder will be sent to the contact and addresses set forth in the signature’s sections of this Agreement and/or in the applicable Order. Either Party may change the address to which Notices shall be sent by giving Notice to the other Party in the manner herein provided. Notices shall be written in English language.

11.6 Relationship of Parties. The Parties are independent contractors, and not agents, employees or joint ventures of one another, and do not have any authority to bind the other Party, by contract or otherwise, to any obligation. Neither Party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.

11.7 Assignment. This Agreement is not assignable or transferable by either Party without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding, NWS may freely assign or transfer this Agreement to any company that is a part of its group of companies or as a result of a merger or a sale of all or a substantial part of its share capital.

11.8 No Solicitation. During the term of this Agreement and for a period of 6 (six) months thereafter, neither Party shall, either directly or indirectly, solicit the employment of or hire any of the employees of the other Party, excluding the hiring of personnel in response to a general solicitation of employment directed to the public. This promise shall be construed as an agreement independent, yet ancillary, of any other provision of this Agreement.

11.9 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement (including all Orders and Addendums, if applicable), or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement or of the provision will continue in full force and effect, except to the extent such invalid provision or part of provision relates to essential aspects of the Agreement. The parties agree that such provision or portion thereof shall be substituted by a provision with an equivalent legal and economic effect.

11.10 Force Majeure. No Party shall be liable for, or considered to be in breach of this Agreement on account of, any failure or delay in performance of any of its obligations hereunder (except for the payment of money) if such failure or delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general  outages, acts of war or terrorism, Strikes, riots, insurrection, intervention of any government or authority or any other reason where the failure to perform is beyond the reasonable control of and not caused by the negligence or intentional acts or omissions of the non-performing Party.

11.11 Waivers of Rights. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorised representative on behalf of the party claimed to have waived. No provision of any purchase order or other form employed or provided by Client will supersede the terms and conditions of this Agreement and/or Order(s) executed with Client, and any such document relating to this Agreement and/or Order(s) shall be for administrative purposes only and shall have no legal effect.

11.12 Survival. Clauses and / or sections 3(“Restrictions of Use”), 6 (“Intellectual Property Rights, Ownership and Title”), 7 (“Confidentiality”), 8 (Termination), 9 (“Disclaimer of Warranties”), 10(“Limitation of Liability”), and 11 (“General Provisions”) of this Agreement shall survive termination, without prejudice to other obligations that, pursuant to the applicable law or to this Agreement, shall also remain in force after termination date.

11.13 Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same Agreement, notwithstanding the fact that all parties are not signatories to the original or the same counterpart. The Parties hereby agree that this Agreement may be delivered by electronic signature (e.g. DocuSign, in portable data format – PDF - or in any other digital mean of identifying that party’s identity and approval of the counterpart) by any or both Parties in which case all Parties agree to rely on the receipt of such document so executed and delivered by electronic means as if the original had been received. The Parties hereby warrant and represent that such electronic signature is valid and legally binding in jurisdictions they may respectively be subject to, and they waive any potential right or claim against the validity of this Agreement on the basis of its electronic signature.

11.14 Variation of Terms NWS reserve the right to vary these terms from time to time with such variation/s becoming effective within 7 days from the date the client is notified of such variation