ASPEDIA AUSTRALIA PTY LTD
BETWEEN: ASPEDIA AUSTRALIA PTY LTD (ACN 107 553 668) of Brisbane Technology Park, Suite 1, 1 Clunies Ross Court, Eight Mile Plains, Queensland.
"Aspedia"
AND: The person so described in the Aspedia Australia or Member Evolution Order Form (Order Form)
"Customer"
RECITALS:
A. Aspedia is an Internet Service Provider (ISP) and is able to provide electronic access to the Internet Service.
B. Aspedia is able to provide you access to an Internet Service through Aspedia's Aspedia Cloud Network (the "Aspedia Cloud Network” or “ACN").
C. Aspedia may accept the Order Form on the terms and conditions set out in this Agreement by notice to you.
D. Customer has completed a Connectivity Order Form to request Aspedia to provide access to the Internet Service, on the terms and conditions of this
Agreement.
E. Aspedia agrees to license the Customer to remotely access and use the Aspedia Cloud Network in accordance with the terms specified in this Agreement.
AGREEMENT:
This Agreement sets out the contractual relationship between Aspedia and the Customer and takes precedent over all other correspondence including but not limited to the Sales Proposal, Email Correspondence and the Customer Charter.
By signing the Order Form you agree to be bound by this Agreement. If you do not agree to this Agreement, then do not use the Connectivity Service or Aspedia Cloud Network.
From time to time, Aspedia may modify this Agreement, including any referenced policies, fees and other documents. Any modified version will be effective at the time it is posted. To keep abreast of your license rights and relevant restrictions, please bookmark this Agreement and read it periodically.
By continuing to use the Connectivity Service or Aspedia Cloud Network after any modifications, you agree to all of the modifications.
DEFINITIONS:
In this Agreement unless the contrary intention appears:
"Access Keys" means any certificates, usernames, passwords or other security mechanisms used by the Customer, or staff, contractor or clients of the Customer, to access the Hosted Software;
"Acceptable Use Policy" means that policy adopted by Aspedia and annexed as such to this Agreement;
"Aspedia Cloud Network" means the data communication network owned and operated by Aspedia and based on TCP/IP and other internet protocols which provide interconnection between the local area networks of various persons and entities and other networks within Australia and overseas (the "ACN");
"Term" means the term of the Agreement as specified in clause 2. 1;
"Commencement Date" means the date of execution of the Order Form;
"Confidential Information" means information that by its nature is confidential, is designated by a party as confidential, or which the recipient knows or ought to know is confidential including, which in the case of Aspedia includes information about the ACN, Aspedia and Member Evolution that is not publicly available;
"Data" means but is not limited to publicly available data, programs, information and other works and materials;
"Database" means those databases available through the Internet which hold the Data;
"Equipment" means your equipment used to access the ACN including any necessary software and hardware;
"Fee" means the amount payable by you in accordance with the fees described on the Order Form;
"Final Statement" means the financial statement delivered by Aspedia to the Customer on Early Termination of this Agreement. The Final Statement will include all Fees due at that time of the early termination request; and from the early termination request until the end of the full Term of this Agreement.
"Force Majeure" means a circumstance beyond the reasonable control of the Parties, which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, strikes, equipment or communication failures or delays or failures in the provision of goods or services by third parties.
"Hosted Software" means the hosted object code version of the AspediaCRM, AspediaWEB, MailServant or Member Evolution software provided by Aspedia and includes all modifications and additions made by the Configuration Services;
"Intellectual Property Rights" means copyright, trade mark, design, and patents whether registered or not and including any rights to register such intellectual property;
"Internet" means the world wide connection of computer networks providing for the transmittal of electronic mail, on line information, information retrieval and file transfer protocol;
"Internet Service" means the access to the Aspedia Cloud Network allowing you access to the Databases and Data and to the Resources;
"Log In" means the Password to be used in conjunction with the Access Keys when you access the ACN. Aspedia reserves the right to ask you to reset or alter your Log In in its discretion at any time;
"Order Form" means the document included in the Customer sales proposal which outlines the fee summary for the Internet Service executed by the Customer which forms part of this Agreement;
“Password" means a secret unspaced sequence of characters used to determine that a computer user requesting access the ACN is really that particular user;
"Resources" means those services that Aspedia makes available to you, including but not limited to, electronic mail ("email"), Hosted Software, information, databases and the Internet;
"SPAM" means any unsolicited message in the mediums of electronic mail ("email"), newsgroups or web hosting.
1. TERM OF AGREEMENT
1.1 Rights
This Agreement and the rights hereby granted to you by Aspedia under this Agreement commences upon the Commencement Date and will continue subject to the rights of early termination until the expiration of the Term expressly stated on the Order Form by the Customer.
2.2. Expiration of Term
Customer selects its initial Term on the Order Form which may be between twelve (12) and sixty (60) months or other mutually agreed period as stated on the Order Form. Once that Term expires, it will automatically renew for successive Terms of the same period unless either the Customer or Aspedia notifies the other of non-renewal at least thirty (30) business days prior to the upcoming expiration date.
2. REFUSAL OF YOUR ORDER FORM
Aspedia reserves the right to refuse an Order Form by you after you have accepted the terms and conditions of this Agreement. Aspedia shall refund any money that has been received in connection with the Order Form if it rejects your Order Form.
3. PROVISION OF SERVICE
3.1 Access
Aspedia in accordance with the terms and conditions of this Agreement shall provide you with access to the Internet Service by such means as Aspedia determines. Aspedia will make all reasonable efforts to maintain access routes and interconnection agreements with member networks of the Internet.
3.2 Credit for Unavailability
If, due to actions by Aspedia, you are unable to access the ACN or Internet Service during the Term of this Agreement and an SLA has been agreed Aspedia may issue you with an amount of credit as described in the SLA.
3.3 Disclaimer of Accuracy
Aspedia makes no representation concerning the completeness, truth or accuracy of any of the information, Data, programs and material accessed by you from any Database. Aspedia makes no representation that any of the information, Data, programs and material accessed from any Databases is suitable for any purpose contemplated by you.
3.4 Third Party Contact
Should Aspedia be contacted by anyone other than the Customer directly, regarding the Internet Service, the customer's delegated contact person must confirm in writing that Aspedia has the authority to work with that person and in what capacity prior to any service being carried out.
4.1 Company Shall Provide
Aspedia shall provide you with Access Keys and Log In information required for connection to the ACN and access to the Internet Service upon Aspedia accepting your Order Form and initial Fee if any.
4.2 Confidentiality of Access Keys and Log In Information
You are responsible for maintaining the secrecy and confidentiality of your Access Keys and Log In information required by you to access the ACN. You will not disclose to any other person, corporation, entity or organisation any Access Keys or Log In information, whether in use or not, nor any other Confidential Information relating to the ACN or Aspedia.
4.3 Your Liability
You are liable for all Fees resulting from access of the ACN and Internet Service through use of your Access Keys or Log In information, whether authorised by you or not;
5. RISK
5.1 Suitability of Service
The Customer acknowledges that it is responsible for determining the suitability of Internet Service for its purpose.
5.2 Warranty
Aspedia does not make any representations or warrant that the Internet Service will meet the particular needs of the Customer.
6. YOUR OBLIGATIONS
You covenant and agree that:
(a) you shall provide your own Equipment necessary to access the ACN and Internet Service;
(b) any invoice for your Fees raised by Aspedia shall be deemed to be correct and prima facie evidence of all connection, access, usage contained therein;
(c) Aspedia may at its discretion and at any time require you to disconnect your Equipment or any part or parts of your Equipment from accessing and using the ACN or accessing the Internet Service if, in the opinion of Aspedia, such Equipment is or has been the cause or is likely to be the cause of failures, interruptions, errors or defects in the ACN or the Internet Service.
(d) you shall be responsible for all maintenance of your Equipment including but not limited to your software and hardware;
(e) you shall not use your Equipment (when accessing the ACN or Internet Service) in a manner inconsistent with this Agreement;
(f) you warrant that in accessing and using the ACN and Internet Service you will only use software and hardware that you are legally entitled to use;
(g) you are responsible for preparing and maintaining sufficient back up files and data storage capacity for all your data, including electronic messages;
(h) Aspedia has no responsibility to provide training in the use or access of the ACN or Internet Service pursuant to this Agreement;
(i) you are not relying on the ACN or Internet Service having any particular performance characteristics which defines response times or availability unless an SLA has been agreed with Aspedia.
7. USE OF THE ACN
7.1 Complying with Directions
Throughout the term of this Agreement, you shall comply with all reasonable directions that Aspedia may issue in its discretion from time to time.
7.2 Proper Use
You shall refrain from disruptive activities which may include, but are not limited to, the circulation of any unsolicited publicity or advertising material, propagation of computer worms and viruses, use of the ACN to gain unauthorised access to any other computer ACN, the sending of harassing, obscene, offensive or threatening electronic mail, forgery of electronic mail and the placement or transmission or storage of any defamatory or pornographic material on the Internet.
7.3 Unsolicited Commercial Email (UCE)
Aspedia takes a zero tolerance approach to the sending of unsolicited commercial email or unsolicited commercial SMS (known as UCE or UCS respectively or SPAM collectively) over our network. This means that customers may not use, or permit their staff, agents or contractors to use the Internet Service to transact in SPAM. If a customer is found to be in violation of this policy, we may, at our sole discretion, restrict, suspend or terminate your account. Aspedia reserves the right to charge a fee for violation of this policy which is called a “SPAM Administrative Fee”. Should Aspedia determine, at our sole discretion, that you have failed to comply with this policy, we reserve the right to charge a $250 “SPAM Administrative Fee” on the first occasion and any further violation may result in an additional $500 fee per violation.
7.4 Illegal Use
You will not access, nor permit any other party to access the ACN for any purpose or activity of an illegal or fraudulent nature. You will not use the ACN to contribute to or aid the commission of a crime or to infringe the rights of a third party.
7.5 Terminating Event
If Aspedia considers on reasonable grounds that you have breached your obligations in clause 8.2, 8.3 or 8.4, Aspedia may terminate your access to the ACN and Internet Service without notice to you and without a refund of any money paid by you to Aspedia or other action deemed appropriate by Aspedia from time to time.
8. THE DATA
8.1 Variation
Additional or varied Data or Databases may from time to time be made available on the ACN by Aspedia. No consent shall be required from you if any additional or varied Data or Databases becomes available.
8.2 Deletion of Data or Databases
Aspedia reserves the right to restrict access or make unavailable any Data or Database previously accessed by you unless specifically noted in the SLA or the Data or Database reside within the Aspedia Cloud Network.
8.3 Availability of Data or Databases
Aspedia reserves the right to amend, repair, vary particular programs, information and facilities from time to time at its discretion even if that amendment, repair or variation results in a loss of functionality of the ACN, a reduction in the Internet Service or a reduction in the availability of Data or Databases provided by the ACN.
8.4 Use of Data or Databases
You shall not do any act or thing in relation to Data which would infringe any parties copyright or intellectual property nor modify, delete or corrupt the Data (with the exception of deleting your electronic mail) or otherwise tamper with any Data or Database.
9. PROTECTION OF INTELLECTUAL PROPERTY
9.1 Infringement of Intellectual Property
You will not reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information, data, images or programs accessed through or received from the Internet Service or Databases that would infringe the Intellectual Property Rights of any person.
9.2 Responsibility for Consent
You shall be responsible for obtaining any consent, approval or license from the holders of any Intellectual Property Rights required to enable you to deal with any relevant Data or to do any act or thing in relation to those Intellectual Property Rights.
9.3 Notice of Infringement
You shall notify Aspedia immediately upon becoming aware of any infringement of any third party's Intellectual Property Rights as a result of information or Data being made available on a Database or by use of the ACN or Internet Service.
10. ACN AVAILABILITY
10.1 Hours of Operation
Aspedia shall use all reasonable endeavours to provide access to the ACN and provide your Internet Service on a continuous basis during the term of this Agreement subject to the following:
(a) the malfunction or breakdown of any of Aspedia's equipment;
(b) electrical storm, electrical short circuit, power failure, telecommunications failure or fault; or
(c) industrial dispute or other cause beyond the control of Aspedia.
10.2 Service Level Agreement (SLA)
Aspedia will use its best efforts to meet its obligations under the SLA annexed to this Agreement (if any) and as varied from time to time.
10.3 Discontinuation
You acknowledge that access to a Database, the ACN and/or the Internet Service may be discontinued at the discretion of Aspedia at any time, without notice to you, if Aspedia's license or authority to use a Database or provide the Internet Service is withdrawn, restricted or altered in such a way that Aspedia considers it undesirable to continue to provide the Database or Internet Service to you or any claim is made that the inclusion of information, Data, program, code or material in a Database infringes the rights of a third party or exposes Aspedia to liability to any third party or to liability for prosecution for an offence or liability to a statutory penalty, or Aspedia is otherwise obliged to discontinue provision of the information.
10.4 No Claim
No claim shall lie against Aspedia in respect of any loss of access or functionality to the ACN or Databases or Data or to the Internet Service referred to in this clause.
11. FORCE MAJEURE
11.1 Failure to Perform
Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement (other than payment obligations) if such delay is due to Force Majeure.
11.2 Notice and Termination
If a delay or failure of a party to perform its obligations is due to Force Majeure exceeds 14 days, either party may immediately terminate the Agreement on providing notice in writing to the other party.
11.12. FEES AND PAYMENT
12.1 Initial Charge
You acknowledge and agree that any initial Fee required by Aspedia to process your Order Form and provide you with initial access to the ACN is non refundable subject to Clause 3 of this Agreement.
12.2 Order Form
The Fees specified in the Order Form are exclusive of GST, unless it specifically states they are GST Inclusive.
12.3 Payment of Services
Customer must make payment for Service Level Plan Fees through either an automated Credit Card or Direct Debit process unless otherwise stated on the Order Form or agreed in writing between the parties. The related surcharge may be added at the sole discretion of Aspedia.
(a) Visa and MasterCard credit cards using a prearranged automated transaction schedule and no surcharges apply.
(b) American Express credit card using a prearranged automated transaction schedule with a surcharge of 3.5%.
(c) Direct Debit through a processing agent of Aspedia’s choice using a prearranged automated transaction schedule and no surcharges apply.
12.4 Invoices
Customer will pay the Fees specified in the Order Form within 7 days of invoice (Payment Term) unless otherwise specified in the Order Form or on the invoice.
12.5 Credit Card Processing
All credit card payments are processed through a merchant facility under the business name Aspedia Australia Pty Ltd.
12.6 Declined Payments
Should a payment be declined at the time of processing, further attempts to process the transaction will be made by Aspedia. Should your payment continue to be declined, Aspedia will contact you in relation to payment processing and a $30.00 ex GST administrative processing fee may be charged per attempt.
12.7 Resellers
Fees are payable directly to Aspedia unless the Customer ordered the Internet Service from an Aspedia or Member Evolution authorised reseller (referred to as "Aspedia Expert” or “Member Evolution Expert” respectively" or “Reseller” collectively). If the Customer ordered from a Reseller, then the Clauses of this Agreement referring to orders with Aspedia or payments to Aspedia do not apply for those Internet Services. Instead, the Customer agrees to pay the Reseller the fees separately agreed with the Reseller. No Reseller may change the terms of this Agreement but they may impose additional restrictions on use of the Internet Services. No promises, warranties or agreements by Resellers are binding on Aspedia.
12.8 Bank Charges
You acknowledge and agree that Aspedia is not liable for any bank charges or bank costs incurred by you as a result of your bank account becoming overdrawn or your credit card exceeding the limit imposed by the bank when Aspedia, by your authority, processes an automatic or manual Fee on your behalf.
12.9 Outstanding Fees
Customer must ensure all Fees are paid in accordance with the Payment Term unless alternate payment arrangements have been previously agreed in writing between the parties. Should the Customer not pay the Fees within the Payment Term Aspedia reserves the right to remove all access to the Internet Services until the outstanding Fees have been receipted by Aspedia.
12.10 Service Reinstatement
Should the Customer require access to the Internet Services be reinstated after a late payment has been made then a reconnection fee of up to $500.00 ex GST per customer location affected may be charged at the sole discretion of Aspedia.
12.11 Variation
Aspedia may vary the Fees from time to time by giving you thirty (30) days written notice of any intended variation.
12.12 Late Payment
Without relieving you of the obligation to pay any Fees under this Agreement, you shall pay interest at the rate of twelve per cent (12%) per annum and calculated on all accounts due and not paid on the expiration of the due date specified on the invoice. You will not receive a reduction or refund of any amount paid or owing if this Agreement is terminated.
12.13 Termination for Non Payment
Aspedia may terminate this Agreement immediately without notice to you if you do not pay any Fees by the date specified on the invoice.
12.14 GST Liability
The Customer will be liable for any GST payable on a taxable supply made by Aspedia (as that term is defined in A New Tax System (Goods and Services Tax) Act 1999). The Customer will pay such GST at the same time it pays the Fee for such taxable supply.
12.13. LIABILITY
13.1 No Liability
Aspedia shall not be liable to you in contract or in tort arising out of, or in connection with, or relating to, the use of the ACN, Databases, Data or Internet Service or any breach of the conditions of this Agreement or any fact, matter or thing relating to the ACN, Databases, Data or the Internet Service or error (whether negligent or a breach of contract or not) in information supplied to you before or after the date of your use of the ACN, Database, Data or the Internet Service.
13.2 Consequential Loss
Aspedia shall be under no liability to you in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred by you or which may arise directly or indirectly in respect of goods or services supplied pursuant to this Agreement or in respect of a failure or omission on part of Aspedia to comply with its obligations under this Agreement.
13.3 Implied Terms
To the extent permitted by law, all conditions or warranties, which would otherwise be implied, are hereby excluded.
13.4 Trade Practices Act
Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the Order Form of all exercise of all liability under such condition of warranty, the condition or warranty shall be deemed to be included in this Agreement. However, the liability of Aspedia for any breach of such condition or warranty shall be limited, at the option of Aspedia to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i) the suppling of the services again; or
(ii) the payment of the cost of having the services supplied again.
13.5 Intellectual Property and Defamation
You hereby fully release and discharge Aspedia from all liability which may arise in respect of:
(a) any material of a Database or Data which is accessed through the ACN which is in any way defamatory. This release and discharge shall apply in respect of each jurisdiction in which the defamatory material is published from time to time;
(b) any dealing (by any person, including Aspedia) with Data in which you hold any copyright or other Intellectual Property Right.
14. INDEMNITY
You shall at all times release and indemnify Aspedia, its servants, agents, subsidiaries, affiliates, related entities, officers, directors, shareholders, co-branders or other partners, employees, successors and assignees harmless from and against any loss (including reasonable legal costs and expenses) or liability, cost, expense, loss, claim or demand, made by any third party due to, in connection with or arising from:
(a) your access and use of the ACN, Database or Data or the Internet Service;
(b) any information, Data or material obtained, accessed or published by you in whole or in part;
(c) any breach by you of any term or condition of this Agreement; or
(d) any omission or failure to perform by you under the terms and conditions of this Agreement.
15. DISPUTES
15.1 Genuine Effort
In the event of any dispute arising between the parties in relation to this Agreement ("Dispute"), no party may commence any proceedings relating to the Dispute (except where the party seeks urgent interlocutory relief) unless the parties have first made genuine efforts to resolve the Dispute in accordance with this clause.
15.2 Notice
A party will give the other a notice of Dispute in connection with this Agreement. A representative from each party, with unfettered authority to resolve the Dispute, must use all reasonable endeavours to resolve the Dispute within 10 days of a notice of Dispute being received.
15.3 Mediation
If the representatives are unable to resolve the Dispute within 10 days, the Dispute will be referred for mediation in Brisbane, Queensland with a mediator approved by the Australian Commercial Disputes Centre, or its successor. The mediation will be governed by the rules and guidelines agreed by the parties, or failing Agreement, the rules and guidelines set by the mediator (whether or not in conjunction with both parties).
16. TERMINATION BY ASPEDIA
16.1 Immediate Termination
Aspedia may terminate this Agreement immediately if you:
(a) become insolvent or have a receiver, manager, administrator or liquidator appointed or appears likely to do so; or
(b) do not pay any of the Fees under this Agreement within thirty (30) days from the date that the Fees fall due.
16.2 Termination by Aspedia
Aspedia reserves the right to terminate this Agreement at any time by giving at least thirty (30) days notice in writing to you. If you are not in breach of any of the terms and conditions of this Agreement, any Fees paid by you to Aspedia will not be refunded to you by Aspedia.
16.3 Suspension of Services
Aspedia may, as an alternative to termination, suspend Customer access to the Hosted Software until the relevant breach has been rectified.
16.4 Upon Termination
Upon termination of this Agreement for any reason, you shall immediately cease any type of access to the ACN and Internet Service.
16.5 Effect of Termination
Any termination of the Agreement shall not affect any accrued rights or liabilities of either party, nor shall it effect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.
17. EARLY TERMINATION
17.1 Termination Request
Customer may request the early termination of this Agreement by requesting in writing an early termination date which must provide a minimum of 28 day advanced notice to Aspedia.
17.2 Removal of Access
On receiving an early termination notice from the Customer, Aspedia will schedule the automated removal of all access to the Internet Service from the early termination date and provide the Final Statement.
17.3 Final Statement
Customer commits to pay in full the Fees included in the Final Statement within 7 days of its receipt.
18. ASSIGNMENT
18.1 Assignment by You
You shall not be entitled to assign your Rights or Obligations under this Agreement without the prior written consent of Aspedia which consent may be given or withheld, or given on conditions in the absolute discretion of Aspedia.
18.2 Assignment by Aspedia
Aspedia can assign its Rights and Obligations under this Agreement in its absolute and unfettered discretion without the consent of you and upon such assignment shall have no further liability whatsoever to you pursuant to this Agreement.
18.3 Continuation of Liabilities
After an assignment by you only:
(a) you remain principally liable jointly and severally with the assignee for the performance and observance of all Obligations assigned to the assignee; and
(b) you shall procure the assignee to enter into a Deed into which the Assignee covenants to be bound by this Agreement, including (without limitation) this clause.
19. GENERAL
(a) Entire Agreement: This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations, Agreements, statement and understandings, either verbal or in writing.
(b) Warranty of Authority: Each party signing this Agreement warrants to the other party, as at the date of signing, that the signatory has the full power and authority to execute this agreement on behalf of that party.
(c) Notices: Notices under this Agreement may be delivered by hand, by mail, by facsimile, or by email to:
(i) Customer using the contact details provided in the Order Form or using such other contact details as notified to Aspedia in accordance with this clause from time to time.
(ii) Aspedia at the below address or using such other contact details as notified to the other party in accordance with this clause from time to time.
Office Address: 1/1 Clunies Ross Court, Eight Mile Plains, Qld 4113 Australia
Postal Address: P.O. Box 4826, Eight Mile Plains, Qld 4113 Australia
Fax number: +61 7 3243 0009
Email: notices@aspedia.net
(iii) Notices will be deemed to be given:
- in the case of hand delivery upon receipt by an officer or authorised representative of the receiving party;
- in the case of posting, 2 business days after dispatch;
- in the case of facsimile, upon successful completion of transmission received on a business day at the recipient during business hours, or otherwise at the commencement of the next business day; and
- in the case of email, upon successful receipt of the email of the recipient's mail server on business day or the recipient during business hours, or otherwise at the commencement of the recipient's next business day.
(d) Jurisdiction: This Agreement is governed by and shall be construed in accordance with the laws from time to time in force in the State of Queensland and the parties submit to the non-exclusive jurisdiction of the Courts of Queensland.
(e) Validity: The provisions of this Agreement shall be constructed so as not to infringe the provisions of any applicable Act or Regulation or be void, invalid or unenforceable at law or in equity, but if any provision on its true interpretation does infringe any applicable Act or Regulation or is void, invalid or unenforceable at law or in equity then that provision shall be read down to such extent as maybe necessary to ensure that it does not so infringe or is not void, invalid or unenforceable and as maybe reasonable in all the circumstances so as to give such provisions a valid operation of a partial character and in the event that the infringing provision cannot be so read down it shall be deemed to be void and severable from this Agreement.
(f) Counterparts: This Agreement may be signed or executed in a number of counterparts, with the same effect as if the signatures to or execution of each counterpart were on the same instrument. Facsimile copies of this Agreement shall be treated as originals and signatures on facsimile copies deemed to be original and binding.
(g) Variation: No variation of this Agreement nor consent to a departure by a party from a provision, shall be of effect unless it is in writing, signed by the parties or (in the case of a waiver) by the party giving it. Any such variation or consent shall be effective only to the extent to or for which it may be made or given.
(h) Waiver: The non-exercise of or delay in exercising a right of a party shall not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by notice, signed by the party (or its authorised representative) to be bound by the waiver. A waiver by Aspedia will not prejudice Aspedia's rights in respect of any subsequent breach of the Agreement by the Customer. Any failure by Aspedia to enforce its rights under this Agreement, or any delay or indulgence granted by Aspedia to the Customer, will not be construed as a waiver of Aspedia's rights.
