(7 September 2009)
1. Definitions
In this Agreement, unless the contrary intention appears:
1.1 "Acceptance Tests" means the evaluation by the Customer of the Website to determine (in good faith) if the Website substantially conforms with the Website Development Specifications;
1.2 "Additional Charge" means a charge in accordance with D2P's standard hourly rates in effect from time to time;
1.3 "Agreement" means the document entitled "Website Development Specifications" executed by D2P and the Customer and includes these Terms and Conditions, in which D2P agreed to develop and host the Website for the Customer;
1.1 "Change Request" means a request for a change as set out in clause 10;
1.4 "Commencement Date" means the date the last of the Parties to the agreement signs it;
1.5 "Confidential Information" means the confidential information of a Party which relates to the subject matter of this Agreement and includes:
(a) confidential information relating to the design of the Website;
(b) information relating to the personnel, policies or business strategies of D2P;
(c) information relating to the terms upon which the Website has been developed pursuant to this Agreement;
1.6 "Customer" means the party invoiced by D2P for the construction of a website or “Online Business”;
1.7 "Disengagement Costs" means the total costs of D2P providing the Disengagement Services at D2P's then hourly rate for the provision of Disengagement Services;
1.8 "Disengagement Services" means those services specifically required or otherwise reasonably necessary to effect the disengagement of the Hosting Services under this Agreement;
1.9 "Intellectual Property Rights" means copyright rights, trade marks, designs, patents, semiconductor or circuit layout rights relevant to, inter alia:
(a) textual, graphical, audio and other material displayed on the Website;
(b) the User interface of the Website including but not limited to screen organisation, patents and operation of the Website or control features; and
(c) all software associated with the Website;
1.10 "Material Breach" means a breach of any term of this Agreement that results in more than an insignificant or insubstantial impact (including, but not limited to, in terms of current or future revenues, company value, security, brand integrity, or legal liability) on the Party claiming that there has been a material breach;
1.11 "Party" and "Parties" means either D2P or the Customer as the context dictates;
1.12 "Schedule" means the Schedule to this agreement and includes all the information from time to time contained or deemed to be contained in it;
1.13 "Website Development Specifications" means the specifications set out in the Agreement for the Website.
2. Interpretation
In this Agreement the following rules apply unless the context otherwise requires:
2.1 Words importing the singular include the plural and vice versa.
2.2 Words importing a gender include all other genders and vice versa.
2.3 Expressions importing a natural person include a corporation and vice versa.
2.4 A covenant, agreement, warranty, obligation, liability or similar on the part of two or more persons binds each of them jointly and severally.
2.5 This Agreement binds and enures for the benefit of successors and permitted transferees or assigns of the Parties.
2.6 Headings or margin notes in this Agreement are for ease of reference only and do not affect the meaning or interpretation of this Agreement.
2.7 If the day on or by which anything is to be done is not a business day then that thing must be done on or by the next business day. For the purposes of this document a business day is a day other than a Saturday, Sunday or Gazetted Public Holiday in the State of Victoria.
2.8 Where any time period is to be calculated from a specified date, that date must be included in the calculation.
2.9 Monetary references are references to Australian currency.
2.10 The recitals to this Agreement, any schedules, annexures and Particulars form part of this Agreement and the Parties acknowledge that the recitals are true and correct.
3. Development Stages
3.1 Whilst D2P will use its reasonable endeavours to adhere to the timeline agreed with the Customer for the completion of the Website it will not be liable to the Customer for any delay in the delivery or completion of the Website.
3.2 If D2P is unable to adhere to the timeline agreed with the Customer for the completion of the Website as a direct or indirect result of an act or omission of the Customer or as a direct or indirect result of a breach by the Customer of this Agreement, D2P may:
(a) make an Additional Charge for time, overtime, travel, materials, extra computer time or resource rationalisation resulting directly or indirectly from such act or omission of the Customer; and
(b) if such act or omission or breach causes delay exceeding 30 days beyond the date of the delivery or completion of the Website, terminate this Agreement, whereupon it may pursue such remedies as may be available to it under this Agreement or at law and for the avoidance of doubt, clause 12.3 will apply.
4. Acceptance Tests
4.1 D2P will notify the Customer when the Website is completed ("Completion Notification") and provide Customer with details for accessing the Website for the purposes of the Acceptance Tests. D2P must provide all reasonable assistance to the Customer to enable it to complete the Acceptance Tests.
4.2 The Customer shall be deemed to have accepted the work comprising the Website ("Acceptance") when either:
(a) the Acceptance Tests have been completed to the Customer's satisfaction acting both reasonably and in good faith toward D2P; or
(b) a period of 14 days has elapsed since the date D2P provided the Completion Notification to the Customer and the Customer has either failed to complete the Acceptance Tests or has failed to notify D2P in writing of any deficiencies detected in the course of conducting the Acceptance Tests which have been determined by the Customer acting both reasonably and in good faith toward D2P.
4.3 After Acceptance, D2P will arrange for the hosting of the Website via the provision of the Hosting Services.
5. Hosting Services
5.1 D2P will provide the Hosting Services.
5.2 Subject to clause 6.3, D2P shall use reasonable endeavours to ensure that sufficient capacity is maintained on its computer facilities to enable Users to access the Website.
5.3 D2P does not warrant that Users will have continuous access to the Website or to the Internet. D2P shall not be liable in the event that the Website or the Internet is unavailable to the Customer or Users due to computer downtime attributable to malfunction, upgrades or preventative or remedial maintenance activities.
5.4 The Customer acknowledges and agrees that D2P performs scheduled maintenance to servers from time to time. D2P will attempt to perform all scheduled maintenance at times which will affect the fewest Users as reasonably practicable.
5.5 The Customer acknowledges and agrees that D2P may need to perform unscheduled maintenance. D2P will use all reasonable endeavours to ensure that the effect of the unscheduled maintenance causes minimal disturbance to the Customer and Users.
5.6 D2P is not responsible for initiating data backups of the Website or related data for the purposes of disaster recovery or for any other purpose. While D2P may make data backups, the Customer acknowledges and agrees that D2P is not required to do so and nor will D2P be liable for any failure to so backup.
5.7 The Customer agrees to D2P's use of spam and virus filters which may require D2P to use third party equipment or services to monitor and filter email traffic between D2P's equipment and the Internet. The Customer agrees that D2P will not be liable for any loss or damage resulting from the use of spam or virus filters.
6. Disengagement
6.1 Subject to payment by the Customer of all amounts owing (or that will become owing) to D2P under this Agreement, the Customer may issue D2P with a notice ("Disengagement Notice") which sets out the Terminated Hosting Service End Date and which date must not be less than 30 days and not more than 60 days after the date the Disengagement Notice is served on D2P.
6.2 The Customer may seek D2P's consent to extend the Terminated Hosting Service End Date and such consent shall not be unreasonably withheld.
6.3 Once the Disengagement Plan has been agreed by the Parties, the obligations contained in the Disengagement Plan are binding and are subject to the terms and conditions set out in this Agreement.
6.4 The Parties agree that wherever the Disengagement Plan requires the Parties to agree on any matter, fact or thing, they will negotiate with all possible dispatch in good faith and with a view to reaching the agreement contemplated by the Disengagement Plan within a period of 48 hours from a Party first notifying the other Party in writing of any dispute as to that matter, fact or thing. In the event that the negotiations anticipated by this clause have failed to resolve any such dispute then the provisions of clause 26 apply.
6.5 D2P shall make available resources as reasonably required to complete the Disengagement Services.
6.6 Both Parties agree to take all reasonable steps to:
(a) complete the tasks in the Disengagement Plan so as to minimise the demands on the other Party's resources and any associated disruption to the other Party's business operations; and
(b) minimise all costs associated with the Disengagement Services.
6.7 Until the Terminated Hosting Service End Date, D2P must continue to perform the Hosting Services in accordance with this Agreement, unless otherwise required by the Customer.
6.8 D2P must provide to the Customer, in a timely manner and in a form reasonably required by the Customer, all information which the Customer reasonably requires relating to third party agreements and arrangements in connection with the hosting services supplied (or to be supplied) to the Customer by the third party.
6.9 D2P will provide the Customer with copies of the code, software, data, information and other records for the Website (if relevant) necessary for the Customer to have the Hosting Services formerly provided by D2P provided by a third party.
6.10 Notwithstanding any provision of this Agreement, D2P will not be required to provide the Customer or any third party any information, documentation, files, data or instructions relating to D2P's proprietary methodology, configuration, systems and processes that would reasonably be considered to be proprietary to D2P (in this clause "D2P Materials"), except to the extent any part of the D2P Materials is embedded in any item the Customer is entitled to retain under this Agreement or to the extent that the D2P Materials are reasonably required for the purposes of transferring the Hosting Services to the Customer or any third party service provider. In this event, D2P grants to the Customer and any third party service provider a royalty-free, non-exclusive licence to use the relevant D2P Materials to the extent required to facilitate transfer of the Hosting Services. As a condition to any third party service provider accessing any D2P Materials, D2P may require that third party service provider to enter into a non-disclosure agreement in favour of D2P on terms that are reasonably acceptable to D2P.
6.11 The Customer must pay D2P's Disengagement Costs (and for the avoidance of doubt all other money owed by the Customer to D2P under the Agreement) on or prior to the Terminated Hosting Service End Date.
6.12 The Customer must make sure that the hardware to which the Website is to be transferred to as part of the Disengagement Services meets the specifications set down by D2P in the Disengagement Plan.
7. Regulatory Requirements
7.1 The Customer is responsible for ensuring it meets its own regulatory requirements.
7.2 D2P will perform and provide all things necessary for the Customer to meet its regulatory requirements provided that any item outside the Hosting Services will be subject to a Change Request.
7.3 If a new regulatory requirement requires a material change to the Hosting Services the Parties will in good faith agree on the necessary service and price provisions, provided that where:
(a) the regulatory change impacts only on the Customer's business, the Customer will be liable for all reasonable costs associated with the change to the Hosting Services;
(b) the regulatory change impacts only on D2P's business as a provider of hosting services or similar services, D2P will be liable for all reasonable costs associated with the change to the Hosting Services; and
(c) if neither or both of paragraphs (a) or (b) applies, the Parties will in good faith use their reasonable endeavours to agree on an equitable allocation of the reasonable costs associated with the change required to the Hosting Services.
8. Change Request
8.1 A Change Request is a request by either Party to change or add to the provisions of this Agreement and includes project work or new services outside the Hosting Services or Website Development Specifications.
8.2 A Change Request must be made in accordance with clause 9 and may be made at any time by either Party.
9. Change Request Procedures
9.1 If the Customer wishes to initiate a Change Request, then it must complete a D2P supplied change request form
9.2 Upon receipt of a Change Request Form D2P must respond to the Customer with a written quote of the estimated cost of the changes within 3 Business Days, unless the scope of the Change Request reasonably requires longer than 3 Business Days to complete a written quote, in which case D2P must notify the Customer as soon as reasonably possible, following which the Parties will, in good faith, use their reasonable efforts to agree a longer period.
10. Customer's Obligations
10.1 The Customer must provide to D2P:
(a) all data requested by D2P to be incorporated into the Website;
(b) all logos, designs, graphic and related materials to be incorporated into the Website; and
(c) all other information, ideas or suggestions which it wishes to be expressly considered by D2P in creating the Website.
10.2 The Customer must ensure D2P is given the information, facilities and services D2P requires to enable it to comply with its obligations under this Agreement.
10.3 D2P will not be responsible for any deficiency in the Website which is attributable to:
(a) incorrect information provided by the Customer, either pursuant to this clause or otherwise; or
(b) failure by the Customer to provide relevant information, either pursuant to this clause or otherwise.
10.4 The Customer undertakes to ensure that any material provided to D2P for the inclusion on the Website:
(a) does not infringe the Intellectual Property Rights of any person;
(b) is not obscene, offensive, or defamatory; and
(c) does not comprise and cannot be used for any purpose or activity of an illegal, fraudulent or defamatory nature.
10.5 Nothing in this clause affects D2P's right to exercise its own judgment and utilise its creative skills as it considers most appropriate in order to develop the Website in accordance with the Website Development Specifications. Without limiting the foregoing, D2P may exercise its total creative discretion in developing the Website to the extent that the exercise of such discretion is not inconsistent with the Website Development Specifications.
11. Maintenance
11.1 D2P will provide Website maintenance services in accordance with the Agreement ("Maintenance Services") or as otherwise agreed by the parties in writing.
11.2 The Customer must pay D2P the Maintenance Charges for the provision of Maintenance Services in accordance with D2P's 30 day payment terms.
11.3 D2P may, in its sole discretion and without the consent of the Customer, provide security and other technological update maintenance services in the course of maintaining and/or hosting the Website at no charge, unless otherwise agreed in writing with the Customer.
12. Charges
Set-up Fees
12.1 In consideration for the construction of the Website, the Customer must pay D2P the Set-up Fees in accordance with Item 4.
12.2 All payments for the Set-up Fees (be it by instalments, lump sum or otherwise indicated in Item 4) must be paid by the Customer within 7 days of the date of D2P's invoice unless otherwise agreed in writing.
12.3 Notwithstanding any other provision in the Agreement if:
(a) the Customer terminates the Agreement in circumstances where the Customer is not entitled to terminate this Agreement;
(b) D2P terminates this Agreement in accordance with the terms of this Agreement; or
(c) the Customer terminates this Agreement in accordance with clause 22.4,
then the balance of the Set-up Fees that remains unpaid together with any interest payable to D2P (calculated pursuant to clause 14.9) and any other money owing under this Agreement by the Customer to D2P, will become a debt immediately due and payable to D2P.
Monthly Hosting Fee
12.4 In consideration of D2P providing the Hosting Services, the Customer must each month pay the Hosting Fee to D2P in accordance with D2P's 30 day payment terms.
12.5 The Hosting Fee must be paid in the manner set out at Item 10.
12.6 The Hosting Fee will be increased at the times and in the manner set out at Item 7.
Additional Charge
12.7 If:
(a) the provision of the services required to be performed by D2P pursuant to this Agreement is delayed;
(b) D2P is required to perform services in circumstances other than those expressly or reasonably anticipated in relation to this Agreement by D2P;
(c) there is a change in the timing or complexity the services required to be performed by D2P pursuant to this Agreement;
and such circumstances are not the result of a breach of this Agreement by D2P, then D2P is entitled to make an Additional Charge.
Interest
12.8 If payment of any charge or fee payable by the Customer to D2P is not made within 7 days of the date of invoice, interest will be payable by the Customer on the overdue sum at a rate of 3% higher than the rate specified in the Penalty Interest Rate Act (Vic) 1983 from time to time. If any payment payable by the Customer to D2P is owing after 60 days from the due date, D2P will be entitled to suspend its remaining obligations under this Agreement, without affecting its other rights and remedies.
13. Taxes
13.1 All fees payable under this Agreement are exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the supply of the Website. Without limiting the foregoing, the Customer will be liable for any new taxes, duties or charges imposed subsequent to the Commencement Date in respect of the goods and services which are the subject of this Agreement.
13.2 Any taxes arising out of this Agreement will be the Customer's responsibility. Specifically, the amounts payable under this Agreement have been calculated without reference to Goods and Services Tax (as defined in the A New Tax System (Goods and Services Tax) Act 1999 as amended, varied or replaced (''GST Act'') or any subsequent or replacement tax (''GST'').
14. Confidentiality
14.1 A Party must not, without the prior written approval of the other Party, disclose the other Party's Confidential Information unless such disclosure:
(a) is required to be disclosed by the Australian Stock Exchange, any court, government or other public regulatory body; or
(b) is in the public domain other than as a result of a breach of this Agreement; or
(c) the receiving Party can prove was known to it at the time of disclosure by the disclosing Party, free from any obligation of confidence.
14.2 Each Party must take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purpose of this Agreement, do not make public or disclose the other Party's Confidential Information.
14.3 Notwithstanding any other provision of this clause, D2P may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers or accountants.
14.4 D2P may make a public announcement in relation to the existence of this Agreement.
15. Intellectual Property Rights
15.1 Except as provided in the following subclauses, this Agreement does not affect the intellectual property rights of either Party existing as at the Commencement Date.
15.2 Where the Customer requests D2P to create any material (including methodologies, tools, concepts, techniques, processes and software, and all expressions in material form of literary works or other works of authorship) for the Customer, or where D2P provides any diagram, report, documentation or record to the Customer ("IP Material"), all intellectual property rights in such IP Material will belong to and vest absolutely in D2P. The Customer assigns, and must ensure that its employees, contractors, sub-contractors or agents and other relevant third parties assign to D2P:
(a) any and all copyright that the Customer, its employees, sub-contractors and agents, and other relevant third parties are entitled to in the IP Material as an assignment of future copyright under law and in equity; and
(b) all intellectual property rights (including copyright) that the Customer, its employees, sub-contractors and agents, and other relevant third parties are entitled to in the IP Material.
15.3 All scripts, software, source code, documentation and intellectual property rights created by D2P, its employees and consultants (whether or not with the Customer's cooperation and/or assistance) created prior to the Commencement Date or otherwise created independently of any IP Materials, or other materials or information provided by the Customer, but excluding the Website, shall in the absence of any contrary written agreement between the Parties, belong to D2P.
15.4 The Parties acknowledge that in the course of the performance of this Agreement, they may jointly develop materials which contain both generic and specific elements ("Joint Materials"). All rights, title and interest in any Joint Materials will belong to and vest absolutely in D2P.
15.5 D2P grants to the Customer a non-exclusive licence to use the IP Material and Joint Material for the sole purpose of making the Website accessible to users of the Website.
15.6 Notwithstanding any other provision in this Agreement, the Customer acknowledges that there is no assignment of Intellectual Property Rights in:
(a) any pre-existing material (including but not limited to D2P's software, documentation, templates and data) which is incorporated into or which has been used in the course of developing the Website; or
(b) the User interface of the Website.
15.7 The Customer must be responsible for:
(a) obtaining all necessary permission, authorisations, licences and consents in relation to the use and incorporation of Third Party Materials into the Website; and
(b) payment of all royalties or licence fees associated with the use of a third party's Intellectual Property Rights in connection with the Website.
16. Indemnity
16.1 The Customer must at all times indemnify and hold harmless D2P and its officers, employees and agents ("those indemnified") from and against any loss (including all legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
(a) a breach by the Customer of its obligations under this Agreement; or
(b) any wilful, unlawful or negligent act or omission of the Customer.
17. Implied Terms
17.1 Subject to clause 20.2, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
17.2 Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty must be deemed to be included in this Agreement. However, the liability of D2P for any breach of such condition or warranty must be limited, at the option of D2P, to one or more of the following:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
18. Liability of D2P
18.1 Except as expressly provided to the contrary in this Agreement, D2P excludes all liability for indirect and consequential loss or damage of any kind, loss or corruption of data, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement and/or its subject matter.
18.2 D2P's total liability for loss or damage of any kind not excluded by clause 21.1, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement is limited in aggregate at D2P's sole option to the remedies provided for under clauses 20.2 (a) and (b).
18.3 Subject to clause 21.4, the Customer warrants to D2P that it has not relied on any representation made by D2P which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produces by D2P.
18.4 The Customer acknowledges that to the extent D2P has made any representation which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.
19. Termination
19.1 Without limiting the generality of any other clause in this Agreement, D2P may terminate this Agreement where:
(a) the Customer has committed a Material Breach not capable of remedy; or
(b) the Customer has committed a Material Breach and has failed to remedy that breach within 14 days after receiving notice in writing from D2P specifying the breach and requiring the breach to be remedied; or
(c) the Customer becomes subject to any form of insolvency or administration; or
(d) the Customer ceases business; or
(e) a force majeure provides the right to terminate pursuant to clause 20.
19.2 Any notice given by D2P pursuant to clause 19.1 must be given as soon as practicable following the date on which D2P became aware of the event or occurrence claimed to amount to an event specified in the relevant clause.
19.3 D2P may without notice to the Customer remove, amend or alter the Customer's data upon being made aware of:
(c) any claim or allegation; or
(d) any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or a breach of a third party's rights.
19.4 D2P may by notice to the Customer, end this Agreement and cease providing all services to the Customer for any reason without cause and the provisions of clause 12.3 will not apply.
19.5 D2P is under no obligation to provide the Customer with a copy of the Customer's data if D2P has suspended or terminated the provision of services due to the Customer's breach. For the purposes of this clause, D2P is entitled to charge a reasonable fee for providing a copy of the Customer's data upon request.
20. Force Majeure
20.1 D2P will not be liable for delay in the performance of, or failure to perform, an obligation under this Agreement to the extent such delay or failure is caused by an event of Force Majeure.
20.2 An event of Force Majeure shall mean any event reasonably outside the control of D2P which causes delay in, or which renders impossible the performance of any obligation under this Agreement.
20.3 If a Force Majeure event occurs which D2P considers will render it unable to provide the services detailed in this Agreement to the Customer, in whole or in part, D2P must notify the Customer of the force majeure event as promptly as is reasonable in the circumstances.
20.4 The Parties agree that to the extent an event of Force Majeure prevents D2P from performing an obligation under this Agreement then D2P will not be liable for any failure to perform that obligation until the cessation of the force majeure.
21. Subcontracts
21.1 D2P at its absolute discretion may subcontract for the performance of all or any part of its obligation under this Agreement.
21.2 D2P at its absolute discretion may engage individuals on a subcontract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of services pursuant to this Agreement.
22. Assignment and Novation
22.1 The benefit of this Agreement must not be assigned by the Customer without D2P's written consent.
22.2 D2P may consent to the assignment or novation of this Agreement by the Customer subject to such conditions as it chooses to impose.
23. Disputes
23.1 The Parties must attempt to settle by negotiation any dispute in relation to this Agreement in accordance with this clause before resorting to external dispute resolution mechanisms.
23.2 A Party claiming that a dispute has arisen under this agreement must immediately notify the other Party's representative. The Party's representatives will make every reasonable effort to resolve the dispute within 10 Business Days.
23.3 If the dispute is not resolved within 10 Business Days by the Parties' representatives in accordance with this clause, then either Party may, without further notice, institute legal proceedings or exercise such other rights as are afforded that Party under this Agreement.
23.4 The exchange of information or documents or the making of any offer of settlement under this clause is for the purpose of attempting to settle the dispute and is provided or made on a "without prejudice" basis.
23.5 A Party may commence court proceedings relating to any dispute arising in relation to this Agreement at any time if that Party seeks urgent interlocutory relief.
24. Notices
24.1 A notice or communication to be served or given under this Agreement must be in writing and may be served or given by any lawful means of service within the State of Victoria including without limitation service by hand delivery or ordinary, certified or registered pre-paid post. The date a notice is deemed served, given and received is:
(a) if delivered by hand, the day of delivery but if delivery takes place after 4:00 pm on a Business Day or on a day that is not a Business Day then it is deemed served, given and received on the next business day;
(b) if posted, three Business Days after the day it is posted;
24.2 The address at which a Party may be served or given notices under this Agreement is its address as appearing in this Agreement or such other address for service it notifies the other Parties of in writing.
25. General Provisions
25.1 This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
25.2 The provisions of this Agreement must not be varied, except by agreement in writing ad signed by all the Parties.
25.3 The documents comprising this Agreement must be read in the following order of precedence:
(a) the Terms and Conditions;
(b) the Website Development Specifications.
25.4 Where any conflict occurs between the provisions contained in two or more of the documents forming this Agreement, the document lower in the order of precedence must where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions must be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.
25.5 Any failure by D2P to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by D2P to the Customer, will not be construed as a waiver of D2P's rights under this Agreement.
25.6 No right under this Agreement must be deemed to be waived except by notice in writing signed by each Party.
25.7 A waiver made by D2P pursuant to clause 28.6 will not prejudice its rights in respect of any subsequent breach of this Agreement by the Customer.
25.8 The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of this Agreement must remain in full force and effect following the expiration of this Agreement.
25.9 Each Party:
(a) irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Victoria and to the Federal Court of Australia sitting in Victoria and any Courts which have jurisdiction to hear appeals from any of those Courts; and
(b) waives any right to object to any proceedings being brought in those Courts for any reason.
25.10 This Agreement or a term of this Agreement is not to be construed to the disadvantage of a Party because that Party was responsible for its preparation.
25.11 Each Party shall bear their own legal costs in relation to or arising from the negotiation, drafting and execution of the Agreement.
25.12 This Agreement may be executed in any number of counterparts. All counterparts taken together will be regarded as constituting one instrument.
