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Maintenance and Support general agreement

1.     Definitions

1.1    In this Agreement, except to the extent expressly provided otherwise:

"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;

"Business Day" means any weekday other than a bank or public holiday in Viet Nam;

"Business Hours" means the hours of 09:00 to 17:00 GMT+7 on a Business Day;

"Charges" means the following amounts:

(a)    the amounts specified in Part 2 of Schedule 1 (Software Particulars);

(b)    such amounts as may be agreed in writing by the parties from time to time

(c)    amounts calculated by multiplying the Provider's standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement) by the time spent by the Provider's personnel performing the Services (rounded down by the Provider to the nearest quarter hour);

"Effective Date" means the date of execution of the Agreement

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Maintenance Services" means the supply to the Customer OR application to the Software OR supply to the Customer and application to the Software of Updates and Upgrades;

"Release" means, in respect of an Update or Upgrade, the release of that Update or Upgrade (as the case may be) to the customers of the Provider generally (and "Released" shall be construed accordingly);

"Schedule" means any schedule attached to the main body of this Agreement;

"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;

"Software" means the software identified in Part 1 of Schedule 1 (Software Particulars);

"Term" means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;

"Update" means a hotfix, patch or minor version update to the Software; and

"Upgrade" means a major version upgrade of the Software.

2.     Credit

2.1    This document was created by Wiki Solution Co., LTD.

3.     Term

3.1    This Agreement shall come into force upon the Effective Date.

3.2    This Agreement shall continue in force upon which this Agreement shall terminate automatically, subject to termination in accordance with Clause 11 or any other provision of this Agreement.

4.     Maintenance Services

4.1    The Provider shall provide the Maintenance Services to the Customer during the Term.

4.2    The Provider shall provide the Maintenance Services with reasonable skill and care 

4.3    The Provider shall provide the Maintenance Services in accordance with Schedule 2 (Maintenance SLA).

4.4    The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

5.     Customer obligations

5.1    Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:

(a)    co-operation, support and advice;

(b)    information and documentation; and

(c)    governmental, legal and regulatory licences, consents and permits,

        as are reasonably necessary to enable the Provider to perform its obligations under this Agreement.

5.2    The Customer must provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under this Agreement.

6.     Charges

6.1    The Customer shall pay the Charges to the Provider in accordance with this Agreement.

6.2    If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 6.2.

6.3    All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.

6.4    The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days written notice of the variation expiring on any anniversary of the date of execution of this Agreement, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 15% per annum over the percentage increase.

7.     Payments

7.1    The Provider shall issue invoices for the Charges to the Customer from time to time during the Term.

7.2    The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 7.

7.3    The Customer must pay the Charges by using such payment details as are notified by the Provider to the Customer from time to time.

7.4    If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:

(a)    charge the Customer interest on the overdue amount at the rate of Viet Nam National bank (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b)    claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

OR

7.4    If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may charge the Customer interest on the overdue amount at the rate of Viet Nam National bank (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month). The Provider acknowledges and agrees that it shall have no right to claim interest or statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998, and that its contractual rights under this Clause 7.4 constitute a substantial remedy within the meaning of that Act.

8.     Warranties

8.1    The Provider warrants to the Customer that:

(a)    the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

(b)    the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and

(c)    the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

8.2    The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

8.3    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 into this Agreement or any related contract.

9.     Limitations and exclusions of liability

9.1    Nothing in this Agreement will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence;

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)    limit any liabilities in any way that is not permitted under applicable law; or

(d)    exclude any liabilities that may not be excluded under applicable law.

9.2    The limitations and exclusions of liability set out in this Clause 9 and elsewhere in this Agreement:

(a)    are subject to Clause 9.1; and

(b)    govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

9.3    Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

9.4    Neither party shall be liable to the other party  in respect of any loss of revenue or income.

9.5    Neither party shall be liable to the other party in respect of any loss of use or production.

9.6    Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

9.7    Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.

9.8    Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

10.   Force Majeure Event

10.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

10.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

(a)    promptly notify the other; and

(b)    inform the other of the period for which it is estimated that such failure or delay will continue.

10.3  A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

11.   Termination

11.1  Either party may terminate this Agreement by giving to the other party at least 30 days written notice of termination.

11.2  Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.

11.3  Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)     is dissolved;

(ii)    ceases to conduct all (or substantially all) of its business;

(iii)   is or becomes unable to pay its debts as they fall due;

(iv)   is or becomes insolvent or is declared insolvent; or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up;

12.   Effects of termination

12.1  Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 7.2, 7.4, 9, 12, 15 and 16.

12.2  Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.

12.3  Within 30 days following the termination of this Agreement for any reason:

(a)    the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; 

13.   Notices

13.1  Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 13.2):

(a)    delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or

(b)    sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,

        providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

13.2  The parties' contact details for notices under this Clause 13 are as follows:

(a)    in the case of notices sent by the Customer to the Provider; and

(b)    in the case of notices sent by the Provider to the Customer,.

13.3  The addressee and contact details set out in Clause 13.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 13.

14.   Subcontracting

14.1  The Provider must not subcontract any of its obligations under this Agreement without the prior written consent of the Customer, providing that the Customer must not unreasonably withhold or delay the giving of such consent.

OR

14.1  Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract any of its obligations under this Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.

14.2  The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

15.   General

15.1  No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.

15.2  If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

15.3  This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

15.4  Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.

15.5  This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

15.6  Subject to Clause 9.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

15.7  This Agreement shall be governed by and construed in accordance with Viet Nam law.

15.8  The courts of Viet Nam shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

16.   Interpretation

16.1  In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

16.2  The Clause headings do not affect the interpretation of this Agreement.

16.3  References in this Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

16.4  In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.