STANDARD MMSHOP TERMS AND CONDITIONS
These Standard MMSHOP Terms and Conditions, the MMSHOP Agreement, Schedule 1, Schedule 2, Schedule 3 and Schedule 4 and all recitals, clauses, annexures, exhibits, appendices and schedules as amended or supplemented from time to time shall collectively be referred to as this “Agreement” and shall govern the rights and obligations of the Parties hereto.
BACKGROUND
A. Shopmatic is the owner of an online international platform offering the entire ecosystem for companies and individuals who wish to create their own ecommerce, increase their online presence and/or benefit from reliable technology, integrated services and solutions, among other benefits (the “Shopmatic Platform”).
B. The Partner and Shopmatic have decided to engage in a mutually beneficial relationship, in which the Partner desires to offer Shopmatic’s products on Shopmatic Platform to its customers and Shopmatic wishes to collaborate with the Partner by providing its services to the Partner’s Customers by means of a co-branded initiative, in accordance with the terms and subject to the conditions as set out in this Agreement.
1. SCOPE OF ENGAGEMENT
1.1 In consideration of the mutual benefits and obligations to be undertaken by each Party under this Agreement, each Party agrees to mutually collaborate with each other in the manner as set out in this Agreement.
2. NON-EXCLUSIVITY
2.1 There shall be no exclusivity applicable under this Agreement and each Party may enter into similar agreements with other similar entities, irrespective of whether such arrangements are within the same territory targeted by each Party or within the same customer profile, and in any of such events, neither Party shall not be construed in any way whatsoever to be in breach of the terms and conditions of this Agreement.
3. MINIMUM TERM AND TERM
3.1 This Agreement shall come into effect on the date as set out in the recital of the MMSHOP Agreement. This Agreement shall be valid and shall remain in force for a duration of three (3) years from the Effective Date (“Term”). Upon expiry of such Term, this Agreement shall be automatically renewed for a successive Term, unless otherwise earlier terminated in accordance with this Agreement. The Minimum Term of this Agreement shall be for a period of two (2) years beginning from the Effective Date. References to “Minimum Term” and “Term” shall mean the duration of this Agreement as provided in this Clause.
4. MAINTAINENCE AND SUPPORT SERVICES
4.1 Shopmatic shall provide maintenance and support services during the Term, in accordance with Schedule 4 (“Support Services”).
4.2 Shopmatic reserves the right to suspend the provision the Support Services at any time, if any amount/s due to be paid by the Partner to Shopmatic under this Agreement is overdue. Shopmatic shall issue a written communication to the Partner setting out the details of the payment/amount overdue and shall exercise the right to suspend Support Services if such payment is not made within fourteen (14) days from the date of the written communication of the overdue payment.
4.3 Where any updates and/or upgrades are required, the Partner shall allow and provide full assistance and co-operation to Shopmatic to install such upgrades and updates. Further, in the event any action is required at the Partner’s end to implement/execute such upgrades and updates, the Partner shall complete the same forthwith without any delays.
5. PAYMENT AND TAXES
5.1 Each Party shall issue invoices for the Fees and amounts due to be paid by the other Party as per the provisions of this Agreement from time to time in accordance with Schedule 2.
5.2 In the event a Party (‘Defaulting Party”) fails to make the payment of any amount due to the other Party under this Agreement within thirty (30) days of the date of the invoice, such Defaulting Party shall be liable to pay a late payment interest of two percent (2%) per month, effective from the date of late payment up to and including the date of total payment to the other Party and pro rata in case of a partial month.
5.3 Shopmatic reserves the right offset any outstanding payments due from the Partner to Shopmatic against any other amounts that many be owed by Shopmatic to the Partner under this Agreement or anu other agreement(s).
5.4 All sums payable by one Party to the other Party under this Agreement shall be paid in full, free of all deductions and withholdings of any kind except where such withholding or deduction is required by law.
5.5 All payments and Fees excludes applicable taxes. Where any applicable taxes are payable, the Parties agree that the Fees and/or payments will be increased by an amount equivalent to the taxes as applicable.
5.6 In case any service provider or vendor of Shopmatic involved in the services under this Agreement introduces or increases their fees/charges to Shopmatic, Shopmatic shall be entitled to increase the Charges accordingly by notifying the Partner thirty (30) days in advance.
6. REPRESENTATIONS AND WARRANTIES
6.1 Each Party hereby represents and warrants to other Party that, as at the date of this Agreement, the following representation and warranties are true and correct:
(a) each Party is duly incorporated in its country of incorporation;
(b) each Party the power to enter into and perform this Agreement and all necessary actions have been taken to authorise the execution, delivery and performance of its obligations under this Agreement;
(c) each Party has all the requisite power and authority to carry on its business as it is being conducted, which includes the required expertise to carry out their obligations in accordance with this Agreement;
(d) each Party owns or possesses all permits, approvals, governmental authorizations, licenses, registrations, consents and property rights that are necessary to operate its business as is being currently conducted;
(e) this Agreement constitutes a legal, valid and binding obligation of each Party enforceable in accordance with its terms; and
(f) the entry into and performance of this Agreement by each Party does not result in a breach of any law or constitute a breach of any obligation (including without limitation, any statutory, contractual or fiduciary obligation) or default under any agreement or undertaking, by which it is or was bound.
6.2 During the Term of this Agreement, each Party shall forthwith notify the other Party of any change or breach of the representations and warranties made in this Clause.
6.3 Both Parties hereby acknowledge that all of the Parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied or read into this Agreement or any related contract or agreement.
7. ACKNOWLEDGEMENTS AND WARRANTY LIMITATIONS
7.1 The Partner acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, Shopmatic does give any warranty or representation that the Shopmatic Platform will always be wholly free from defects, errors and bugs.
7.2 The Partner acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, Shopmatic does not give any warranty or representation that the Shopmatic Platform will always be entirely secure.
8. CONFIDENTIALITY
8.1 Either Party shall not, during the Term of this Agreement and for a period of two (2) years following expiration or termination of this Agreement for any reason, without the prior written approval of the other Party (such approval not to be unreasonably withheld), use for its own benefit or for the benefit of any other person, firm, partner or organisation or directly or indirectly divulge or disclose to any person any Confidential Information which has come, or may come, to that Party's knowledge during or in connection with this Agreement.
8.2 The restrictions contained in Clause 8.1 do not apply to:
(a) any Confidential Information which is already or becomes available to the public generally (otherwise than through the receiving Party’s direct or indirect unauthorised disclosure);
(b) any Confidential Information which was made available to the receiving Party on a non-confidential basis prior to disclosure by the disclosing Party; or
(c) any use or disclosure authorised by the disclosing Party or as required by law.
8.3 Each Party may disclose Confidential Information to its professional advisors who have a specific need to know such information, provided that such professional advisors are:
(a) informed of the confidential nature of the Confidential Information before disclosure, and
(b) required to comply with the provisions of this clause in respect of such information and have entered into a similar confidentiality undertaking with the relevant Party.
8.4 Upon the request of the disclosing Party, the receiving Party shall, within seven (7) days of receipt of such request, return or destroy all Confidential Information and any notes, correspondence, documents or other records containing Confidential Information, including all copies thereof. The receiving Party shall certify the fact of having destroyed the Confidential Information in writing to the disclosing Party.
8.5 Notwithstanding Clause 8.4, upon expiration or termination of this Agreement for any reason, the receiving Party shall be entitled to retain archival copies of Confidential Information received by the disclosing Party (a) which are generated by its automated computer archival back-up system; (b) for legal, regulatory and/or compliance purposes; and/or (c) insofar such Confidential Information has been incorporated in notes, reports, spreadsheets or similar relating to internal case studies or training materials; provided that all such retained Confidential Information shall remain subject to the confidentiality obligations as set out in this Clause.
8.6 If either Party becomes legally compelled to disclose any Confidential Information by any court of competent jurisdiction or by any judicial, governmental, taxation or other supervisory or regulatory authority, stock exchange or similar body, or pursuant to any applicable rule or regulation, or in connection with any litigation, arbitration, administrative or other proceeding, the receiving Party shall provide to the disclosing Party prompt written notice (if legally permissible) and use commercially reasonable efforts to assist the disclosing Party in seeking a protective order or another appropriate remedy.
8.7 In no event shall the receiving Party be deemed to have acquired any right or interest in or to any Confidential Information disclosed in connection with this Agreement, and all Confidential Information and other rights therein shall at all times remain the property of the disclosing Party (or its licensers as the case may be).
8.8 “Confidential Information” means all information or data of a confidential or proprietary nature disclosed by the disclosing Party to the receiving Party in connection with this Agreement, relating to the products, services, business or proposed business, finances, transactions, trade secrets, commercial strategies, Intellectual Property Rights (defined below), patents, copyrights, trademarks, formulas, processes, hardware and software designs, architecture and schematics, workflow processes, project process development plans or methodologies, source code or object code, user interfaces, database development work, hardware types and configurations, customer lists, supplier lists, personnel information, marketing plans, financial projections, pricing information, business plans, business methods, materials, structures and other related documents and/or data of the disclosing Party.
8.9 Except as otherwise agreed, the Parties must not imply that their products are sponsored or endorsed by the other Party (or otherwise embellish their relationship).
8.10 Without prejudice to any other rights or remedies that the Parties may have, the Parties agree that damages may not be an adequate remedy for any breach of this Clause 7 and that the Parties shall be entitled to seek the remedies of injunction, specific performance and/or other equitable relief for any threatened or actual breach of any confidentiality clauses herein.
9. INTELLECTUAL PROPERTY
9.1 During the Term of this Agreement, and subject to the other Party’s prior approval in writing, each Party grants to the other Party a limited, non-exclusive, non-transferable, non-sublicensable, world-wide, royalty-free, revocable right to access and use each other’s marks and logos in its respective website and social media solely to market and promote the relationship contemplated by this Agreement. Either Party may revoke the foregoing license at any time by giving the other Party written notice. Unless revoked sooner in accordance with this Clause, the foregoing license terminates automatically upon expiration or termination of this Agreement, as the case may be.
9.2 Either Party confirms and agrees that:
(a) it shall use the other Party’s marks and logos in a lawful manner and only as permitted hereunder;
(b) it shall use the other Party’s marks and logos in strict compliance with all formats, guidelines, standards and other requirements prescribed by such other Party;
(c) the other Party’s marks and logos are and shall remain the sole property of such other Party; and
(d) nothing in this Agreement confers any right of ownership in any marks or logos of the other Party.
9.3 For the purpose of this Agreement, “Intellectual Property Rights” means all intellectual property rights throughout the world, attributable to any of the Parties, including (but not limited to) registered and unregistered copyright, rights in inventions (whether or not patentable), patents, know-how, methodologies, processes, technologies or algorithms, authors’ rights, rights of attribution, slogans, systems, software testing tools, trade secrets, trademarks, service marks, brand names, design, database rights and rights in data, utility models, domain names and all similar rights and, in each case:
(a) including any applications to protect or register such rights;
(b) including all renewals and extensions of such rights or applications; and
(c) whether vested, contingent or future.
10. MARKETING AND PUBLICITY
10.1 The Parties shall work together and cooperate with each other to create, implement and manage a joint marketing strategy to promote the Shopmatic Platform and the Partner, as well as any other services, benefits, or advantages that the Parties may mutually agree upon from time to time. The Parties shall discuss and mutually agree on the timelines, targets, milestones, operational processes, and any other aspects required for the success of their collaboration.
10.2 Nothing in Clause 10 shall be construed as limiting the obligations of the Parties under Clause 9.
11. DATA PROTECTION
11.1 For the purpose of this Agreement, “Personal Data” shall mean data, whether true or not, about an individual who can be identified (a) from that data; or (b) from that data and other information to which a Party has or is likely to have access.
11.2 Each Party shall comply in all respects with its obligations under the personal data laws in relation to the management and protection of Personal Data collected, accessed, received and/or processed in connection with this Agreement.
11.3 The Partner warrants that it has the legal right to disclose the Personal Data to Shopmatic in connection with this Agreement.
12. CUSTOMER DATA AND REFERRED PERSONS DATA
12.1 The Parties shall co own the information and data in relation to the customers who have accessed the Shopmatic Platform via the co-branded Landing Page as provided on the Partner’s website (“Referred Persons” and “Referred Persons Data”). Either Party shall be free to use the Referred Person Data for the purposes as mentioned under this Agreement.
12.2 Regardless of the termination or expiration of this Agreement, Shopmatic shall have full and irrevocable ownership of all Customers’ data and accounts to the Shopmatic Platform resulting from this Agreement and, accordingly, the Partner shall have full and irrevocable ownership of all Customers’ accounts relating to the Partner’s products resulting from this Agreement. For the avoidance of doubt, in case the Customer is a customer of both Shopmatic and the Partner at the same time, each Party shall be the sole owner for that Customer’s account under their particular products.
13. EXPIRY OR TERMINATION
13.1 Either Party may terminate this Agreement by giving the other Party not less than sixty (60) days written notice of termination (“Termination Notice”) after the end of the Minimum Term.
13.2 The Partner will pay to Shopmatic Early Termination Fees by way of liquidated damages in a sum as specified in Schedule 2 in the event of the termination of this Agreement by the Partner during the Minimum Term.
13.3 Notwithstanding Clause 13.1, either Party may terminate this Agreement immediately in any of the following events:
(a) a Party is subject to judicial managementor corporate voluntary arrangement;
(b) a Party files for voluntary winding up or becomes or is deemed insolvent;
(c) a Party is unable or admits inability to pay its or suspends or threatens to suspend making payment on any of its debts;
(d) a Party has an order made against it or a resolution passed for its administration, winding-up, liquidation or dissolution or any other corporate step or legal proceeding is taken with a view to the same (otherwise than for the purposes of a solvent amalgamation or reconstruction);
(e) a Party has an administrative receiver, receiver, manager, liquidator, administrator, trustee or similar officer appointed over all or any substantial part of its assets;
(f) a Party enters into or proposes any compromise, composition or arrangement with its creditors generally; or
(g) a Party suffers or carries out anything analogous to the foregoing in any applicable jurisdiction.
13.4 Notwithstanding Clause 13.1 hereinabove, Shopmatic may terminate this Agreement immediately at any time, by giving a written notice to the Partner if any amount due to be paid to Shopmatic by the Partner under this Agreement is unpaid by the due date and remains unpaid upon the date that the written notice is given.
13.5 Upon expiry of the Term or termination of this Agreement:
(a) each Party shall immediately cease all use of the Intellectual Property Rights (as defined below) belonging to the other Party;
(b) each Party shall immediately cease all use of the Confidential Information (as defined below) belonging to the other Party.
13.6 Clause 5 (Payment and Taxes), Clause 8 (Confidentiality), Clause 11 (Data Protection), Clause 12 (Customer Data and Referred Persons Data), Clause 14 (Indemnity), Clause 15 (Limitations and Exclusions of Liability), Clause 16 (Non-Solicitation of Personnel), Clause 17 (Force Majeure), Clause 18 (Assignment), Clause 20 (Governing Law, Jurisdiction and Dispute Resolution), Clause 21 (Remedies and Waiver), Clause 22 (Severability), Clause 23 (Third Party Rights), Clause 24 (Variation), Clause 25 (No Agency and No Power to Bind), Clause 26 (As Is Basis), Clause 27 (Entire Agreement), Clause 29 (Interpretation).
shall survive the expiration or termination of this Agreement.
14. INDEMNITY
14.1 Each Party agrees to indemnify, defend and hold harmless the other Party and its officers, directors, shareholders, employees and agents, and their respective successors and permitted assigns, from and against any claim, loss, damage, charges, liabilities, expenses and costs (including reasonable legal fees) incurred or suffered by the other Party and arising directly or indirectly as a result of any breach by a Party to this Agreement (“Indemnity Event”) and against any claims, suits, actions, proceedings instituted or likely to be instituted against Shopmatic, including (but not limited to) those arising in connection with:
(a) gross negligence, misconduct or wilful default of the Party;
(b) any misrepresentation, omission of any material fact or any misleading or incorrect information furnished by the Party;
(c) any breach of the representations and warranties as set out in Clause 6; or
(d) any third-party claim of infringement or misappropriation of Intellectual Property Rights.
14.2 Each Party must:
(a) upon being aware of an actual or potential Indemnity Event, notify the other Party;
(b) provide the other Party with all such assistance as may be reasonably requested by the other Party in relation to the Indemnity Event;
(c) allow the other Party the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Indemnity Event; and
(d) not admit liability to any third party in connection with the Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Indemnity Event without the prior written consent of the other Party.
15. LIMITATIONS AND EXCLUSIONS OF LIABILITY
15.1 Nothing in this Agreement shall exclude or in any way limit either Party’s liability for fraud, wilful misconduct, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.
15.2 Notwithstanding any in this Agreement, Shopmatic’s liabilities and responsibilities to the Customers using the Shopmatic Platform shall be governed in accordance with the Shopmatic Agreements. Shopmatic shall not be liable for any loss or damage howsoever arising as a result of any use of the Shopmatic Platform by any party or as a result of any Shopmatic Platform maintenance (whether or not scheduled or emergency), or any unusual activity beyond the standard maintenance procedures and events beyond Shopmatic’s control, or any suspension and/or disruption of the Shopmatic Platform, or any server upgrade/downgrade, infrastructure changes, catastrophic events or disaster recovery efforts.
15.3 Shopmatic shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement and the total aggregate liability (including in respect of the Indemnity, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total amount paid by the Partner to Shopmatic under this Agreement in the twelve (12) month period preceding the commencement of the event/(s).
15.4 In the event of a dispute reaching to the Court or Arbitration, as the case may be, it is agreed that the aggregate liability of each Party to the other Party under this Agreement shall not exceed the greater of:
(a) the total amount paid and payable by the Partner to Shopmatic upto the date that those liabilities are confirmed by Court or Arbitration.
(b) the total amount paid and payable by the Partner to Shopmatic up to the date that those liabilities are confirmed by Court or Arbitration.
15.5 Nothing in this Agreement excluded the liability of the Partner for any breach, infringement or misappropriation of Shopmatic’s Intellectual Property Rights.
16. NON -SOLICIATION OF PERSONNEL
16.1 Either Party must not, without the prior written consent of the other Party, either during the Term or within the period of six (6) months following the Term, engage, employ or solicit for engagement or employment, any employee or subcontractor of the other Party who has been involved in any ay in the negotiation or performance of this Agreement.
17. FORCE MAJEURE
17.1 Neither Party shall be liable for any loss or damage arising from its failure to perform any of its obligations under this Agreement, if such failure is the result of circumstances outside its control including but not limited to the outbreak of war, fire, floods, storms, governmental act, pandemic, explosion, civil commotion, riot, malicious damage, compliance with any law or governmental order or rule, accident, breakdown of plant or machinery, labour disputes of whatever nature, failure of s utility service or transport or telecommunications network, obstruction of any public or private road or highway, default of suppliers or sub-contractors or any other any act of God (each a “Force Majeure Event”), provided that the other Party is notified of such an event.
17.2 The Parties hereby acknowledge that while current events related to the COVID-19 pandemic are known, future impact of the outbreak are unforeseeable and shall be considered a Force Majeure Event to the extent that they prevent the performance of a Party’s obligations under this Agreement.
17.3 Notwithstanding the foregoing, should a Force Majeure Event suffered by a Party extend beyond three (3) months period, the other Party may then terminate this Agreement by a prior written notice of three (3) days to the non-performing Party.
18. ASSIGNMENT
18.1 Either Party must not assign, transfer or otherwise deal with the contractual rights and/or obligations under this Agreement without the prior written consent of the other Party. Such consent will not be unreasonably withheld or delayed, provided that each Party may assign the entirety of its rights and obligations under this Agreement to any affiliate of the said Party or to any successor to all or a substantial part of the business of the said Party from time to time.
19. NOTICES
19.1 Any notice, request, demand, waiver, consent, approval or other communication permitted or required under this Agreement shall be in writing and delivered through courier, registered post or by emails. This Clause is not intended to govern the day-to-day business communications necessary between the Parties in performing their obligations under the terms of this Agreement.
19.2 Any notice under Clause 12.1 shall be delivered to the details as set out in Clause 6.4 of the MMSHOP Agreement or such other address or email address as notified by a Party to the other Party pursuant to this Clause.
19.3 Any notice delivered in accordance with Clause 12.1 above shall be deemed served:
(a) in the case of by courier, on the date of delivery;
(b) in case of registered post, two (2) calendar days after posting; or
(c) in case of email, on the date the email was sent;
provided that in case of the date of receipt not being a business day, such notice shall be deemed to have been received by the receiving Party on the next business day.
20. GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION
20.1 The Agreement shall be governed by and construed in accordance with Clause 11 in the MMSHOP Agreement.
21. REMEDIES AND WAIVER
21.1 No breach of any provision of this Agreement will be waived express with the express written consent of the Party not in breach.
21.2 Any remedy or right conferred to a Party under this Agreement shall be in addition to and without prejudice to all other rights and remedies available to it by law.
21.3 Any waiver of any breach of this Agreement shall not be deemed or construed to be further or continuing waiver or to apply to any succeeding breach of the provision or of any other provision of this Agreement.
21.4 No failure to exercise and no delay in exercising on the part of any of the Parties any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
22. SEVERABILITY
22.1 If any provision or any portion of any provision of this Agreement is determined by any court or other competent authority to be unlawful, invalid, illegal or unenforceable in any respect for any reason, only such limited part shall be considered deleted from this Agreement and the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions of this Agreement shall not in any way be affected or impaired and will continue to be in effect.
22.2 The Parties shall use reasonable endeavours and good faith to agree upon new provision/(s) that that shall as nearly as possible have the same commercial effect as the void, invalid, illegal or unenforceable provision as mentioned in Clause 15.1 above.
23. THIRD-PARTY RIGHTS.
23.1 The provisions of this Agreement are for the benefit of the Parties and are not intended to benefit or be enforceable by any third party.
23.2 the exercise of the Parties’ rights under this Agreement is not subject to the consent of any third party.
23.3 Nothing in this Agreement shall be deemed to confer any right to enforce any term of this Agreement on anyone not a party to this Agreement. This Agreement shall not be construed in any respect to be a contract or agreement in whole or in part for the benefit of or binding upon anyone not a party to this Agreement.
24. VARIATION
24.1 No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each Party.
25. NO AGENCY AND NO POWER TO BIND
25.1 Nothing in this Agreement or any document referred to in it constitutes or shall be deemed to create a joint venture or partnership, employer-employee, agency relationship or other co-operative entity between the Parties for any purpose whatsoever, and it shall be construed exclusively as a service agreement between independent contracting parties.
25.2 Neither Party shall have no power or authority to bind or impose any obligation on the other Party and shall not purport to do so or hold itself out as capable of doing so. Nothing in this Agreement shall authorise one Party to enter into contractual relationship or incus obligations on behalf of the other Party.
26. AS IS BASIS.
26.1 The Shopmatic Platform is provided on an “as is” and “as available” basis. Shopmatic and its affiliates expressly disclaims all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Shopmatic makes no warranty that the Shopmatic Platform shall meet the Partner’s requirements or that it will be uninterrupted, timely, secure or error-free.
27. ENTIRE AGREEMENT.
27.1 The Parties agree that this Agreement constitutes the entire agreement between them relating to the subject matter hereof and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of the subject matter hereof.
27.2 Neither Party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering to this Agreement.
28. COUNTERPARTS.
28.1 This Agreement may be executed in any number of counterparts and transmitted by facsimile transmission, electronic mail in “portable document format (“pdf”) or similar form, or by any other electronic means that is intended to preserve the original graphic and pictorial appearance of a document, and will have the same effect as physical delivery of this Agreement bearing the original signature of each party, each of which when so executed shall be deemed an original, but all counterparts shall together constitute one and the same document.
29. INTERPRETATION
29.1 References in this Agreement to “calendar months or months” are to the twelve (12) named periods (January, February and so on) into which a year is divided.
29.2 The headings to Clauses are inserted for convenience only and shall not affect the interpretation or construction of this Agreement;
29.3 References to any statute or statutory provision shall include (i) any subordinate legislation made under it, (ii) any provision which it has modified or re-enacted (whether with or without modification), and (iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification);
29.4 References to any act shall include any omissions in connection therewith and vice versa;
29.5 References to the words “include” or “including” shall be construed without limitation;
29.6 References to this Agreement or any other agreement, deed, instrument or document shall be construed as a reference to this Agreement, such other agreement, deed, instrument or document as the same may from time to time be amended, varied, supplemented or novated in accordance with the terms of this Agreement;
29.7 Words imparting the singular shall include the plural and vice versa. Words imparting a gender include every gender and references to persons include an individual, company, corporation, firm or partnership; and
29.8 The words “hereof”, “herein”, “hereby” and other words of similar import refer to this Agreement as a whole.
